author: BARNES, Presiding Judge.

text:
    A12A0158.
    BENNETT v. METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY.
    (730 SE2d 52)
   BARNES, Presiding Judge.

Reginald Bennett was assaulted in the Hamilton Holmes MARTA station and sued MARTA for failing to keep its premises safe from reasonably foreseeable unlawful acts. MARTA answered and denied liability, and following discovery, moved for summary judgment, arguing that Bennett had equal or superior knowledge of the danger and failed to exercise ordinary care for his own safety. The trial court agreed and granted summary judgment to MARTA. After reviewing the record, including the depositions of Bennett and the MARTA agent on duty, as well as video recordings of the assault, we reverse.

“On appeal from the trial court’s grant of summary judgment, we conduct a de novo review of the record to determine whether the evidence, viewed in the light most favorable to the nonmoving party, demonstrates a genuine issue of material fact.” Walker v. Aderhold Properties, 303 Ga. App. 710 (694 SE2d 119) (2010). Summary judgment is proper only when no issue of material fact exists, and the moving party is entitled to judgment as a matter of law. Id. Generally, in premises liability cases,

to survive a motion for summary judgment, a plaintiff must come forward with evidence that, viewed in the most favorable light, would enable a rational trier of fact to find that the defendant had actual or constructive knowledge of the hazard. At that point, the burden of production shifts to the defendant to produce evidence that the plaintiff’s injury was caused by his or her own voluntary negligence (intentional disregard of a known risk) or causal negligence (failure to exercise ordinary care for one’s personal safety). If the defendant succeeds in doing so, the burden of production shifts back to the plaintiff to come forward with evidence that creates a genuine dispute of fact on the question of voluntary or causal negligence by the plaintiff or tends to show that any such negligence resulted from the defendant’s own actions or conditions under the defendant’s control.

(Footnote omitted.) American Multi-Cinema v. Brown, 285 Ga. 442, 444-445 (2) (679 SE2d 25) (2009). See also OCGA § 51-3-1. Liability in these cases is based on the landowner’s superior knowledge of perils on the property and the resultant danger to visitors. Gateway Atlanta Apts. v. Harris, 290 Ga. App. 772, 774 (1) (660 SE2d 750) (2008). While a plaintiff who fails to exercise ordinary care for his safety may be precluded from recovery even if the landowner has superior knowledge of the risk,

as a general proposition issues of negligence, contributory negligence and lack of ordinary care for one’s own safety are not susceptible of summary adjudication but should be resolved by trial in the ordinary manner. The trial court can conclude as a matter of law that the facts do or do not show negligence on the part of the defendant or the plaintiff only where the evidence is plain, palpable and undisputable.

Robinson v. Kroger Co., 268 Ga. 735, 739 (1) (493 SE2d 403) (1997).

Bennett, who is five feet three inches tall, was a regular MARTA customer, and on the night he was attacked, he asked a man in the elevator standing in front of him with a backpack to move over a little. Another passenger began to scold Bennett and the other man not to bump into her baby, and Bennett and the man told her they had not been talking to her. The woman began cussing at them, and continued “ranting and raving and carrying on” after they got off the elevator as Bennett headed toward his bus. When the woman began threatening to “whip [Bennett’s] behind,” he responded that she did not know him and was not going to whip him. Another man on crutches who was with the woman “kind of picked up the slack where she left off about what he was going to do,” and continued to threaten him. Bennett answered, “[N]o, you’re not,” and continued toward his bus stop.

Bennett became concerned that the man was “rounding up his little troops [from] all over the place,” aware that the station had a gang problem. Suddenly four additional men surrounded him, all threatening to “kick his MFA.” Bennett observed to the man that he had a lot of friends, and a MARTA station agent, whose job was to “look for safety issues” walked up, put his hands on Bennett’s shoulder, and said, “[D]on’t worry about it. Don’t waste your time. You know, it ain’t worth it.” The gang of men dispersed, and Bennett went to wait for his bus at the loop.

The agent testified that the station was a “fast-paced environment” that required video surveillance and a constant police presence nearby. Agents were trained in “verbal judo” to control tense situations, and are supposed to contact a police officer when a confrontation arises. A woman came up to him the night of this incident and reported that a fight was about to occur by the elevator, and the agent went to the area “because incidents happen all the time” and he was trained in conflict resolution. His job was to control the situation, and his goal was “protection, not confrontation.” When he arrived in the area he saw “six black males shouting at a middle-aged, heavyset black male,” and he tried to use his radio to contact Central Dispatch “to let them know what was going on,” but it did not work because his battery was too low. He told the group to break it up and go their separate ways or they would end up in jail, and several of the men agreed that the agent made sense. “Everybody stopped” and started to walk away.

The station agent “wanted to make sure [he] verbally resolved the situation,” because at that station, “you have a lot of situations.” He watched two of the men go to one side of the loop to wait for a bus, Bennett go to the other side to wait for his bus, and the other men walk off. The agent “was hoping they left” and because the men waiting for their buses were far apart and the situation appeared to have resolved, he returned to finish his lunch in the station office.

Bennett initially sat on the bench in the bus loop area that was furthest from the station and began talking on his cell phone, then got up and walked to an area closer to the station while he continued to talk. Two people walked by him and got on a bus that was waiting just forward of where Bennett was standing, then seven more people walked by. A woman sat on the bench just behind Bennett and another man sat on the bench just ahead of him. After Bennett had been standing and talking on his phone facing the station for almost four-and-a-half minutes, two men approached him quickly. One passed Bennett then immediately turned back toward him as the other man stepped up and struck Bennett to the ground with enough force that he turned a complete somersault. Bennett got up and retrieved the cell phone and backpack that had been knocked from his hands as three more men approached quickly. Bennett began to walk quickly toward the front of the waiting bus, and the five men followed. Bennett stopped, and one of the men circled around and came straight at him, striking him again.

The men milled around Bennett as yet another patron walked by the group, but their actions are not clear from the recording because they are standing behind the bus shelter that is roofed and enclosed with glass panels. The woman who sat down in the shelter before the assault began remained seated during the incident while one of the mob stood directly in front of her. Bennett moved away from the crowd, into view of the security camera as an assailant struck him repeatedly, then moved back behind the shelter as he absorbed more blows. Suddenly five more men ran into view and joined the assault, and the mob moved down the sidewalk past the front of the waiting bus, hitting and kicking Bennett as they moved. During the assault, Bennett yelled for help. As he was on the ground, someone took money from his pocket and from his bookbag. One of the assailants raised a crutch over his head and slammed it down into Bennett’s body, then the mob suddenly turned and ran away.

Bennett staggered toward the closest bench and sat down, while the man and woman sitting on nearby benches during the entire assault ignored him. About 45 seconds later, the bus that had been parked at the curb right next to the mob drove away. Bennett began to use his cell phone to try to call for help, and the recording showed him standing, sitting, standing, and finally walking into the street while he looked back and forth. He finally walked off camera 11 minutes after the assault began, and another camera showed him approach a police officer a few minutes later. Bennett was taken to Grady Memorial Hospital, where he was admitted and treated for a fractured orbital socket in his face, among other things.

The station agent testified that he always rechecks the area where a confrontation occurs “to make sure it’s okay,” and in this case, after he returned to the station office to finish his lunch, he decided to recheck the area. The agent “stepped back out” and “saw these guys running around.” He figured “something was going on,” but he could not contact a dispatcher because he had forgotten to charge the battery in his radio. The agent ran downstairs, saw Bennett on the ground, and waved down a nearby police officer, who caught one of the suspects. The agent and the officer located and arrested other assailants who had been hiding in a bus.

MARTA argued it was entitled to summary judgment because Bennett had superior knowledge of the danger he would be assaulted when he chose “to inject himself into a volatile and potentially dangerous situation by arguing with people on the elevator.” Bennett also knew the assailants remained in the station after the MARTA agent broke up the verbal fight but “made no effort to see to his own safety by either remaining where he was [waiting for the bus], calling the police, or notifying another MARTA employee.” Instead, MARTA argued, Bennett chose to walk toward the mob when they began to approach him, and thus failed to exercise ordinary care to avoid the danger of being physically assaulted.

The trial court granted summary judgment to MARTA, concluding that as an adult of ordinary intelligence, Bennett was “aware of the manifest risks of deliberately and voluntarily engaging in a verbal altercation,” and then, seeing a “mob” moving toward him, chose to walk toward them instead of calling for help. The court held that MARTA was entitled to summary judgment because Bennett had equal or superior knowledge of the danger posed by the people who had threatened to harm him and failed to exercise ordinary care.

Bennett argues that the trial court erred in granting MARTA’s motion for summary judgment because the evidence establishes that questions of fact exist for a jury to determine. We agree.

There is no evidence that Bennett chose to assume the risk that he would be physically assaulted by a gang of ten or more men because he had words with a rude woman and her companions on an elevator, or that he had superior knowledge that the gang would assault him. To the contrary, he testified that he was not arguing with them, just telling them that they were not going to “whup [his] ass” that day. Bennett thought that the exchange was “just words being thrown out, you know, and that didn’t bother me. It wasn’t [any]thing physical.” He did not think they were going to do anything to him physically, which is why he kept moving away toward his bus stop. He had heard “trash talk” all his life, and “never got assaulted from trash talking, from having somebody talk trash to me and by me responding to trash talk.”

Further, the recording of the assault contained in the record establishes that Bennett did not move toward the mob to confront the men instead of taking some other evasive action. He had been waiting for his bus for six minutes before the assault began, and for three-and-a-half of those minutes he stood at the curb, talking on his cell phone. During that time at least eight MARTA patrons walked by him, and he stood by a MARTA bus whose driver was aboard the entire time. He saw men gathering inside the station, in the area where the station agent worked, and looked to see if they were coming toward him. By that time, the men had crossed the short distance between the station and Bennett at a “trot run” and were “almost in [his] face” immediately. He did not attempt to call 911 when he first saw them because he thought that “at 46 years old trying to run around with a cell phone running from 17-to-20 year old,... athletic-looking youths, I wouldn’t have made it.” Rather than try to run away, which would have taken him away from the station, he tried to “cover up” and protect himself as best he could, and as soon as they reached him, he “went down ... and everything was blurry and pitch-black by then.”

In contrast, the record contains evidence that MARTA had superior knowledge that the men might escalate the confrontation. The MARTA agent testified that he always rechecks the area where a confrontation occurred “to make sure it’s okay. It’s not the first time.” Usually he stayed on location, but in this case he returned to his office instead, which was a “nice walk” from the area, and then decided to go back and check on the situation, but by that time the assault had already occurred.

Given these facts, none of the cases MARTA cites control. In one case the plaintiff got out of his car to confront someone who spit at him and was struck when he got back in. Rappenecker v. L.S.E., Inc., 236 Ga. App. 86 (510 SE2d 871) (1999). In another, the decedent crossed the street to join a fight. Cornelius v. Morris Brown College, 299 Ga. App. 83, 86 (681 SE2d 730) (2009) (“an adult of ordinary intelligence will be held to be aware of manifest risk or danger of possible injury when he deliberately and voluntarily joins in an affray, as a matter of law”). Another plaintiff failed to exercise ordinary care by returning to his motel room after he had a fight with his co-workers, who were attending a party at the hotel and who fought with him again. Snellgrove v. Hyatt Corp., 277 Ga. App. 119 (625 SE2d 517) (2006). Finally, a theater patron chose to confront an audience member who was cursing instead of moving or seeking help. Fernandez v. Ga. Theatre Co., 261 Ga. App. 892 (583 SE2d 926) (2003). Here, Bennett did not approach the men who had begun a verbal altercation with him earlier, nor did he exchange any words with them before they physically attacked him. He was standing at the bus stop, which is what he had been told to do by the MARTA agent, and his options were limited by the time he saw the men gathering in the station, in the area where the station agent had been. He would have had to run away from the station to get away from them, and according to him, he had no time to summon help on his cell phone. The bus driver was sitting in the bus parked right beside him, and other patrons were in the vicinity.

Decided July 3, 2012.

Isenberg & Hewitt, Hilary A. Wayne, for appellant.

Mabry & McClelland, James W. Scarbrough, for appellee.

[T]he “routine” issues of premises liability, i.e., the negligence of the defendant and the plaintiff, and the plaintiff’s lack of ordinary care for personal safety are generally not susceptible of summary adjudication, and ... summary judgment is granted only when the evidence is plain, palpable, and undisputed.

Dickerson v. Guest Svcs. Co. &c., 282 Ga. 771, 771-772 (653 SE2d 699) (2007), citing Robinson, 268 Ga. at 749. The evidence in this case is not plain, palpable, and undisputed, and liability should be determined by a jury. The trial court therefore erred in granting summary judgment to MARTA.

Judgment reversed.

Adams and McFadden, JJ., concur.


source: Caselaw Access Project

author: Blackwell, Judge.

license: Public Domain

text:
    A12A0490.
    PETERSON v. BANKER.
    (730 SE2d 89)
   Blackwell, Judge.

Following a bench trial, the court below entered judgment for Judi Digilio Banker on her claim against Charles Alexander Peterson for malicious prosecution, and the court awarded more than $250,000 to Banker as damages. Peterson had attempted on seven occasions to have Banker prosecuted, and the court below concluded that five of these occasions — one warrant application in Fulton County and four applications in Rabun County — were actionable as malicious prosecutions. But the magistrate court in Fulton County declined to issue a warrant, and on one application, so did the magistrate in Rabun County. To be actionable as a malicious prosecution under the precedents, an attempt to have someone prosecuted must result in the issuance of a valid warrant, summons, accusation, or other formal process. See Gooch v. Tudor, 296 Ga. App. 414, 416 (1) (674 SE2d 331) (2009); Cox v. Turner, 268 Ga. App. 305, 305-306 (1) (601 SE2d 728) (2004); Kaiser v. Tara Ford, Inc., 248 Ga. App. 481, 486 (1) (546 SE2d 861) (2001); see also South Ga. Grocery Co. v. Banks, 52 Ga. App. 1, 6 (182 SE 61) (1935) (“Simply making an affidavit before a justice of the peace, charging one with an offense against the criminal laws of this State, when not followed up by an arrest, does not render the prosecution, even if malicious and without probable cause, actionable.”) (citation and punctuation omitted). Accordingly, the court below should not have awarded damages for the warrant applications that resulted in the issuance of no warrant, and so we must vacate the judgment below to the extent that it awards damages for malicious prosecution, and we remand this case for further proceedings consistent with this opinion.

Decided July 3, 2012.

Hotard & Hise, Thomas G. Hotard, Jr., for appellant.

Moorman Pieschel, Nicholas J. Pieschel, for appellee.

Judgment vacated in part, and case remanded.

Mikell, P. J., and Miller, J., concur.

       The judgment also dealt with, among other things, the ownership of some dogs and a boat, but those parts of the judgment are not at issue here.

       We have reviewed the other claims of error that Peterson asserts on appeal, and we conclude that they are without merit. Because no error appears in the conduct of the bench trial, only in the judgment and award of damages, the court below may rely upon the record made at trial to enter a new judgment, and no new trial is required.


author: PHIPPS, Presiding Judge.

text:
    A12A0516.
    LIGHTSEY v. THE STATE.
    (730 SE2d 67)
   PHIPPS, Presiding Judge.

Following a jury trial, Primóse Lightsey appeals his conviction for trafficking in cocaine and possession of marijuana (less than an ounce). He contends that the trial court erred by denying his motion to suppress the drugs found in his vehicle. Because Lightsey has waived this argument, we affirm.

A police officer stopped Lightsey to give him a warning citation for driving a vehicle with defective equipment. After the officer issued the warning citation and returned to Lightsey his driver’s license, the officer asked Lightsey for consent to search his vehicle, to which Lightsey first replied “yes,” but then later stated “no.” Minutes later, a drug-sniffing dog was brought to the scene and “gave a positive alert on the driver’s door.” The officer searched Lightsey’s vehicle and located substances that were later determined to be cocaine and marijuana therein.

Before trial, Lightsey unsuccessfully moved to suppress the cocaine and marijuana seized from his vehicle on the ground that the police officer had exceeded the permissible scope to detain him after the purpose of the stop had been fulfilled. During trial, when the state tendered the cocaine and marijuana into evidence, the trial court inquired whether Lightsey had any objections. Lightsey’s counsel responded “No objection.”

When a prior motion to suppress has been filed, merely failing to object to the admission of the evidence during the subsequent trial does not constitute a waiver of the grounds asserted in the motion. [] But affirmatively stating there is no objection to admission of the evidence in effect concedes the point. [] In this case, when asked at trial whether there was any objection to the admission of the [cocaine and marijuana, Lightsey]’s attorney affirmatively stated that he had no objection. Thus, [Lightsey] waived and failed to preserve his right to contest the admission of the evidence on appeal on the grounds raised in the motion to suppress.

Decided July 3, 2012

Mark A. Yurachek, for appellant.

Denise D. Fachini, District Attorney, Cheri L. Nichols, Assistant District Attorney, for appellee.

We have no rule in this state which prohibits counsel from affirmatively waiving or withdrawing an objection previously made. When defense counsel stated that he had no objection to the introduction of the evidence, he waived any objection which might have been urged including those contained in the motion to suppress.

Judgment affirmed.

Ellington, C. J., and Dillard, J., concur.

        Kilgore v. State, 247 Ga. 70 (274 SE2d 332) (1981).

       See generally Nowlin v. State, 260 Ga. App. 903, 904 (581 SE2d 413) (2003).

        Mew v. State, 267 Ga. App. 454, 456 (2) (600 SE2d 397) (2004) (punctuation omitted); Givens v. State, 281 Ga. App. 370,372 (1) (636 SE2d 94) (2006); Banks v. State, 269 Ga. App. 653, 655 (3) (605 SE2d 47) (2004); Dyer v. State, 233 Ga. App. 770, 771-772 (505 SE2d 71) (1998); Abrams v. State, 144 Ga. App. 874 (1) (242 SE2d 756) (1978); Carter v. State, 137 Ga. App. 823 (225 SE2d 64) (1976); compare Felker v. State, 172 Ga. App. 492, 494 (3) (323 SE2d 817) (1984) (the appellant’s failure to object to the admission of the contraband during the course of the trial did not constitute a waiver of the motion to suppress; and in stating that he had no objection to the crime lab report identifying the seized substances as cocaine, counsel for the appellant did not stipulate to the legality of the search or to the admissibility of the drugs themselves but merely to the admissibility of the crime lab tests identifying the drugs).

       Dyer, supra at 771 (citation, punctuation and footnotes omitted); Monroe v. State, 272 Ga. 201, 204 (6) (528 SE2d 504) (2000); Williams v. State, 314 Ga. App. 840, 844 (4) (a) (726 SE2d 66) (2012).


author: Adams, Judge.

text:
    A12A0543, A12A0544.
    WITCHER v. McGAULEY et al.; and vice versa.
    (730 SE2d 56)
   Adams, Judge.

Jeff Witcher brought suit against Dr. David McGauley and his firm and alleged, among other things, that McGauley — the physician for Witcher, his wife, and three children — committed malpractice and breached his fiduciary duties with regard to Witcher and his care in part because McGauley was having an affair with Witcher’s wife at the time. Witcher alleged that as a result of McGauley’s actions, he had to seek psychiatric treatment, was divorced, lost his job, and suffered mental and physical distress, humiliation, and anguish. The trial court granted summary judgment on the medical malpractice claims, from which Witcher appeals, but denied summary judgment on the claim of breach of a confidential relationship, from which McGauley cross-appeals.

Construed in favor of Witcher, the record shows the Witchers were patients of McGauley from August 2003 through 2007 and that Witcher discovered the affair near the end of May 2007. For a few weeks prior to that discovery, Witcher saw McGauley for complaints including depression and anxiety. At some point, he told McGauley that he thought “something was not clicking right at home,” which was causing him to have an inability to focus on his work, yet McGauley never revealed the affair, and he continued to treat Witcher for anxiety and diagnosed him with Attention Deficit Disorder (ADD), which necessitated prescribing medication. Despite discovering the affair in May, Witcher admits he continued to see McGauley through the fall of 2007. On appeal, McGauley concedes there is an issue of fact regarding whether he and Shelley Witcher were engaged in an affair at the relevant time. And Witcher presented factual support in the form of records of over 240 telephone calls between his wife and McGauley that occurred while McGauley treated Witcher for inability to focus on his work because of anxiety.

Case No. A12A0543

1. Witcher contends the trial court erred by granting summary judgment on his malpractice claim because he presented evidence sufficient to create an issue of fact regarding liability, causation, and damages. Witcher relies on his own testimony and the expert testimony of Dr. Mark Shoag and Dr. Michael Lyles, as well as, to some degree, McGauley’s own expert, Dr. Robert Kaufman.

(a) In his affidavit and deposition Dr. Shoag averred that to a reasonable degree of medical certainty, McGauley failed to exercise the degree of care and skill ordinarily exercised by members of the medical profession in the following ways (which we will refer to as “Shoag Allegations”):

(1) By entering into a sexual relationship with Witcher’s wife while treating her as a patient;

(2) By continuing to treat Witcher during the affair with Witcher’s wife;

(3) By continuing to treat Witcher for depression and anxiety caused by a belief that his wife was having an affair;

(4) By failing to terminate his professional relationship with Witcher given that he was having an affair with Witcher’s wife, so that Witcher could receive treatment for depression and anxiety elsewhere;

(5) By prescribing medication to Witcher for ADD in 2007 without either performing a thorough workup and properly diagnosing Witcher or referring Witcher to another doctor regarding his possible ADD; and

(6) With regard to other professional members of his firm and to the extent they were aware of the affair, by not ensuring that McGauley ceased treating Witcher.

First, any aspects of Witcher’s claims that can be characterized as causes of action “for adultery, alienation of affections, or criminal conversation” are barred by OCGA § 51-1-17, which abolished all such torts. See Arnac v. Wright, 163 Ga. App. 33 (292 SE2d 440) (1982). Thus, the simple fact that McGauley may have had an affair or sexual relations with Witcher’s wife is not actionable, and Witcher cannot claim damages for interference with his marriage, loss of affection, or depression and anxiety that result solely from his concern that his wife was having an affair. And we agree with McGauley’s argument that Witcher may not bring any action abolished by OCGA § 51-1-17 by merely renaming it as some other claim. Arnac, 163 Ga. App. at 34-35.

Nevertheless, that Code section did not immunize medical professionals from conduct that would otherwise constitute medical malpractice. Cf. Doe v. Zwelling, 620 SE2d 750 (Va. 2005) (although a substantial part of plaintiff’s claimed damages against health care provider, who was subject to physicians’ standard of care, arising out of affair with plaintiff’s wife were barred by ban on claims of alienation of affections, some allegations stated a claim for breach of the defendant’s professional standard of care); Figueiredo-Torres v. Nickel, 584 A2d 69 (Md. App. 1991) (allegations that licensed psychologist who was having affair with plaintiff’s wife advised plaintiff to be distant from his wife, to avoid sexual contact with her, and to separate from her stated a cause of action for professional liability even though Maryland had abolished actions for criminal conversation and alienation of affection).

The court in Nickel relied on an earlier Maryland case that explained that the abolition of the actions of criminal conversation and alienation of affection

does not preclude a person from maintaining a traditional breach of contract action or a recognized tort action merely because the breach arose from an improper liaison with the plaintiff’s spouse or because one effect of the alleged breach or tortious conduct was a disruption or breakup of his or her marriage.

Gasper v. Lighthouse, Inc., 533 A2d 1358, 1360 (1987). The court in Gasper then meticulously analyzed each of the plaintiff’s claims to determine whether they were simply “the refitting of the abolished actions into other forms.” Id. at 1360; Zwelling, 620 SE2d at 752 (allowing allegations that constituted “breaches of the defendant’s professional standard of care that would be compensable in damages even if the plaintiff were unmarried”). We agree that the correct approach is to determine whether Witcher has alleged and provided support for a claim of actual medical malpractice, i.e., professional liability, under Georgia law. And although Nickel, Gasper, and Zwelling involved claims against a psychologist, a marriage counselor, and a licensed clinical social worker, respectively, from whom the plaintiff sought marital counseling, there is a sufficient analogy here because Witcher sought at least some treatment from McGauley for depression and anxiety arising out of concern about his marriage.

In this state, doctors are liable for the failure to use a reasonable degree of care and skill:

A person professing to practice surgery or the administering of medicine for compensation must bring to the exercise of his profession a reasonable degree of care and skill. Any injury resulting from a want of such care and skill shall be a tort for which a recovery may be had.

(Emphasis supplied.) OCGA § 51-1-27. A claim of professional liability has been defined as “allegations of negligence against a professional [that] involve the exercise of professional skill and judgment within the professional’s area of expertise.” (Citations and punctuation omitted.) Hamilton-King v. HNTB Ga., 311 Ga. App. 202, 204 (715 SE2d 476) (2011). We therefore look to see whether Witcher has alleged and supported with some proper evidence any claim that McGauley failed to exercise professional skill and judgment in providing Witcher medical care, as well as evidence that any such failure caused Witcher injury. Cf. Tante v. Herring, 264 Ga. 694, 695 (1) (453 SE2d 686) (1994) (in a claim of professional liability, plaintiff must allege breach in performance of professional services). The fact that McGauley may have engaged in an affair with Witcher’s wife is only relevant in this context.

(i) Turning to Shoag’s allegations of professional malpractice, it is easy to see that Shoag Allegations No. 1 and 2 above fail to allege any error of professional skill or judgment with regard to Witcher’s care, and therefore summary judgment was properly granted on those claims. Neither claim purports to show that McGauley rendered medical care to Witcher in a substandard manner.

(ii) When read together, Shoag Allegations No. 3 and 4 claim that McGauley treated Witcher for depression and anxiety without revealing the affair or without terminating the professional relationship so that Witcher could receive proper care elsewhere. During his deposition, Shoag clarified that he was “not positive that [McGauley] needed to disclose that relationship [to] Mr. Witcher as much as he needed to terminate his relationship with Mr. Witcher.” Witcher cites no other expert opinion in support. Therefore, Shoag Allegation No. 3 fails for lack of a supporting expert opinion.

With regard to Shoag Allegation No. 4, and pretermitting consideration of a breach of duty, Shoag averred that McGauley’s failure to terminate the professional relationship “caused injuries and damages to Jeff Witcher, including increased depression and [anxiety] [] and otherwise unnecessary medical and psychological treatment and medication.” During his deposition, he clarified that the depression and anxiety resulted from Witcher believing that his wife was having an affair; he further clarified that by “increased” depression and anxiety, he meant over and above “any preexisting depression he may have.” And Shoag explained that Witcher’s injuries included “medical and psychological treatment and medication” that resulted because the physician/patient relationship was never terminated, as well as whatever additional treatment was required to treat the depression and anxiety resulting from the suspected affair. But Shoag never opined that had McGauley terminated his professional relationship with Witcher during the affair, Witcher’s anxiety and depression would be reduced or alleviated or that treatment elsewhere for the same anxiety and depression would have improved his condition. Finally, Witcher admits he continued to see McGauley for months after discovering the affair.

[A]ny claim for damages resulting from the death of or injury to any person arising out of:
(1) Health, medical, dental, or surgical service, diagnosis, prescription, treatment, or care rendered by a person authorized by law to perform such service or by any person acting under the supervision and control of the lawfully authorized person; . . .

After careful review, and construing Shoag’s opinion and the other evidence in favor of Witcher we conclude that in Shoag Allegation No. 4, Witcher has only raised claims whose damages are the depression and anxiety associated with concern about his wife having an affair, as well as psychological and medical treatment arising from the same. Thus, Shoag Allegation No. 4 only raises claims abolished by OCGA § 51-1-17. He has not supported with proper evidence a claim for damages arising out of a breach of any duty regarding Witcher’s medical care.

(iii) Shoag Allegation No. 5 — that McGauley prescribed medication to Witcher for ADD in 2007 without either performing a thorough workup and properly diagnosing Witcher or without referring Witcher to another doctor — stands as a valid allegation of breach of a medical duty. But Shoag conceded that he did not know whether Witcher, in fact, had ADD; he did not know whether Witcher had a reaction to the medication McGauley allegedly inappropriately prescribed; and he could not say whether the medications were the cause of any subsequent conditions that Witcher displayed. And Witcher testified that no other physician that he had seen since McGauley disagreed with McGauley’s diagnosis. Accordingly, we conclude that Witcher has failed to show any possible harm arising from this allegation of professional malpractice, and therefore the claim must fail. See Zwiren v. Thompson, 276 Ga. 498, 500 (578 SE2d 862) (2003); Webster v. Desai, 305 Ga. App. 234, 238 (2) (699 SE2d 419) (2010).

(iv) In Shoag Allegation No. 6, Witcher alleges that professional members of McGauley’s firm, to the extent they were aware of the affair, breached the standard of care by not ensuring that McGauley ceased treating Witcher. But he has presented no evidence to raise an issue of fact regarding whether any professional members of the firm had that knowledge. Furthermore, Witcher has not supported this allegation with any argument, citations to the record, or citations of law, and, therefore, the allegation is abandoned. See Court of Appeals Rule 25 (c) (2) (“Any enumeration of error which is not supported in the brief by citation of authority or argument may be deemed abandoned.”).

(b) Witcher also relies on Lyles, a medical doctor certified in the field of psychiatry, who diagnosed Witcher in September 2007 as having depression and Post-Traumatic Stress Disorder. In his two-page affidavit, however, Lyles did not make a single allegation regarding McGauley’s treatment of Witcher, and he averred that Witcher’s maladies “resulted from his concern that he would lose his wife, would lose his job ... and would lose his reputation,” which are all claims barred by OCGA § 51-1-17, as shown above. Finally, there is no link between Lyles’s opinion and Shoag’s opinion. Thus, Lyles’s affidavit provides no support whatsoever for a claim of medical malpractice against McGauley.

In summary, we conclude that for all assertions of professional liability, the trial court’s order is affirmed.

Case No. A12A0544

2. In the cross-appeal, McGauley contends the trial court erred by refusing to grant summary judgment on Witcher’s claim of breach of fiduciary duty/confidential relationship, arguing that because the claim arose out of the affair it is nothing more than a renamed claim of the torts banned by OCGA § 51-1-17.

We disagree with McGauley’s simple reasoning. As stated above, we agree that a claim of alienation of affections or criminal conversation may not be asserted by simply renaming it. But we do not agree that a doctor is incapable of breaching a fiduciary duty to a patient while having an affair with that patient’s wife. Cf. Zwelling, 620 SE2d 750 (allegation that health care provider disclosed to the patient’s wife, with whom health provider was having an unprofessional relationship, intimate details that plaintiff/patient had disclosed to the health care provider in confidence was sufficient to allege a breach of professional standard of care). Therefore, we will carefully examine the allegations and factual support to determine whether Witcher has alleged and supported a claim of breach of fiduciary duty under Georgia law.

Witcher has characterized this claim in several ways. In his complaint, Witcher alleged that “[t]he Defendants breached and violated the fiduciary relation by having an illicit sexual and emotional relationship with the Plaintiff’s wife.” In his deposition, Witcher averred that McGauley breached a fiduciary duty by having an affair with his wife and not telling him. In his appellate brief, Witcher argues that McGauley breached his duty by having an affair with his wife, by failing to terminate his physician/patient relationship with Witcher while having the affair, and by prescribing him sleeping pills during the affair. But we find no allegation or assertion of fact to the effect that McGauley ever disclosed confidential information acquired from Witcher to his wife or any third party.

First, as already explained, the assertion of a breach of duty by having a sexual and emotional relationship is barred by OCGA § 51-1-17. Second, the assertion of a breach of duty by failing to inform Witcher of the affair or failure to terminate the professional relationship is properly characterized as a claim of professional negligence, which has already been addressed in Division 1. See Stafford-Fox v. Jenkins, 282 Ga. App. 667, 671 (2) (639 SE2d 610) (2006) (claim of breach of fiduciary duty for failing to inform patient about her condition stated a claim for medical malpractice); Oliver v. Sutton, 246 Ga. App. 436, 438 (540 SE2d 645) (2000) (failing to communicate proper diagnosis can breach professional standard of care). In fact most of Witcher’s brief simply reiterates his assertions of a breach of a professional duty of care. Witcher’s additional claim that McGauley improperly prescribed sleeping pills to Witcher is also a claim of professional liability, but it is not supported by expert testimony and therefore fails. Next, McGauley had no duty to disclose to his patient personal life factors, such as an affair, that might adversely affect his professional performance. See Albany Urology Clinic v. Cleveland, 272 Ga. 296, 299-300 (528 SE2d 777) (2000) (no duty to disclose illicit drug use). Although evidence of such a factor may be relevant to a claim that the physician rendered deficient professional services, see id., Witcher’s claims in this regard are flawed as shown in Division 1. Finally, we find no allegation that McGauley disclosed Witcher’s confidential information or breached a confidence in any other way; nor does Witcher offer any such facts in his brief. See Tante, 264 Ga. at 695 (1) (professional has fiduciary duty with regard to the confidential information). “The defendants’ summary judgment motion was properly supported, so [Witcher] was required to come forward with some evidence showing, or supporting reasonable inferences of, a genuine issue of material fact.” Deen v. Stevens, 287 Ga. 597, 611 (3) (698 SE2d 321) (2010). This he has not done.

Decided July 3, 2012

Robin F. Clark, for appellant.

Peters & Monyak, Robert P. Monyak, Benjamin D. Chastain, for appellees.

The case of Brewer v. Paulk, 296 Ga. App. 26 (673 SE2d 545) (2009), is not on point because the husband in that case only brought a derivative claim — loss of consortium — arising out of his wife’s claim of breach of fiduciary duty against a priest for engaging in a sexual relationship with her.

In sum, we find no support for a separate claim of breach of a confidential or fiduciary duty. We therefore reverse the trial court’s denial of summary judgment on that claim and remand for entry of judgment consistent with this opinion.

Judgment affirmed in Case No. A12A0S43. Judgment reversed and case remanded with direction in Case No. A12A0544.

Barnes, P. J., and McFadden, J., concur.

       On March 5, 2009, as amended on March 18, the trial court dismissed for failure to state a claim the following counts of Witcher’s complaint: Count 3 — negligence per se; Count 5 — negligent infliction of emotional distress; Count 6 - loss of consortium; Count 8 — harboring another man’s wife, as well as a claim of respondeat superior based on these counts. On May 31, 2011, the court issued the order at issue on appeal. In that order, the trial court clearly granted summary judgment on Witcher’s claims of medical malpractice (Count 1) and denied summary judgment on the claim of breach of a confidential relationship (Count 7); but the court did not mention any other counts. It would appear, therefore, that the remaining counts of Witcher’s complaint remain pending; we leave any issue in that regard to the trial court.

       Even construing Kaufman’s testimony in favor of the plaintiff, however, we find no admissions by Kaufman that McGauley breached the standard of care.

       In his deposition Shoag added two other assertions of a breach of the standard of care: (1) that in August 2003, McGauley administered two drugs that were inappropriate for Witcher; and (2) that in February 2006, McGauley improperly treated Witcher’s sore throat with a shot of penicillin. But in his appellate brief, Witcher clarified that he has expressly withdrawn these two allegations of malpractice. Finally, Witcher asserts that McGauley prescribed him sleeping medication so that his wife could sneak out of the house to he with McGauley. But this allegation of professional liability is not supported by any expert evidence.

       Two cases cited by McGauley are distinguishable in this regard because they do not involve claims of professional liability. See Arnac, 163 Ga. App. at 33 (claim for intentionally interfering with and maliciously procuring breach of husband’s marriage contract); Hyman v. Moldovan, 166 Ga. App. 891 (305 SE2d 648) (1983) (allegation of conspiracy to alienate affections of son from father).

       McGauley’s citations to two cases involving allegations of clergy malpractice are not persuasive. Both note the peculiarities of claims regarding the duties of clergy to their parishioners. See Bladen v. First Presbyterian Church, 857 P2d 789 (Ok. 1993); Strock v. Pressnell, 527 NE2d 1235 (Oh. 1988).

       With regard to statutes of limitation, OCGA § 9-3-70 defines an “action for medical malpractice” as follows:

       In his deposition he clarified that he meant anxiety instead of paranoia.

       Witcher has made clear that his claim of breach of a confidential relationship is a claim regarding his relationship with McGauley, his doctor; it does not involve the physieian/patient relationship between his wife and McGauley.

       In Tante, the lawyer breached his fiduciary duty to his client by taking advantage of her confidential information to engage in an affair with her. The Court did not describe why the client’s husband was entitled to recover, perhaps as a loss of consortium derivative claim, but it did not state that he had a direct claim.


text:
    A12A0554.
    COFIELD v. HALPERN ENTERPRISES, INC. et al.
    (730 SE2d 63)
   PHIPPS, Presiding Judge.

Janice Cofield filed a complaint for damages against Halpern Enterprises, Inc., Halpern Properties, LLC, Halpern Management Company, LLC, and other unnamed parties (collectively “Halpern”) for injuries she allegedly sustained when she fell while walking on property owned and/or maintained by Halpern. On the issue of punitive damages, Halpern moved for summary judgment, which the trial court granted. Cofield appeals.

Cofield contends that the trial court erred in granting partial summary judgment to Halpern because: (1) the court conducted a hearing on Halpern’s motion for summary judgment despite its failure to give “clear notice” to the parties of a hearing date; (2) Halpern failed to support its motion for summary judgment because deposition transcripts upon which Halpern relied had not been filed with the court prior to the court’s grant of the motion; and (3) the court prevented her from filing deposition transcripts just prior to argument on the day of the hearing. Because the trial court failed to give the parties written notice of the summary judgment hearing, we reverse.

A motion for summary judgment is a vehicle for disposing of a controversy without the necessity of a trial. It is, as the description shows, a summary disposition of the issues in order to efficiently resolve litigation. Nevertheless, due process requires that the respondent not be surprised; rather, that he be given reasonable opportunity to refute the movant’s showing that there are no genuine issues of material fact.

“It is error to grant a motion for summary judgment without affording the opposite side the time provided [by law] or without giving notice or the opportunity to be heard.” Oral notice of a motion for summary judgment hearing is insufficient under OCGA § 9-11-6 (d).

OCGA§ 9-11-6 (d) pertinently provides that “[a] written motion, other than one which may be heard ex parte, and notice of the hearing thereof shall be served not later than five days before the time specified for the hearing, unless a different period is fixed by this chapter or by order of the court.”

Service of notice pursuant to OCGA § 9-11-6 (d) is controlled by OCGA § 9-11-5 (b), which provides that service upon a party or his attorney may be accomplished “by delivering a copy to the person to be served or by mailing it to the person to be served at the person’s last known address. . . .”

Decided July 3, 2012.

Joseph N. Harden, Daniel B. Greenfield, for appellant.

“Compliance with the notice requirement of OCGA § 9-11-5 (b) is mandatory, not discretionary. Absent notice of the hearing to the proper party or attorney of record, the judgment . . . suffers from a nonamendable defect.”

Halpern’s motion for partial summary judgment was heard on September 8, 2011. A transcript of that hearing shows that Halpern’s counsel and the trial court recalled that at a July 14, 2011 hearing, the court had set “motions” to be heard on September 8, 2011. The trial court further stated to Cofield: “The motions calendar, it doesn’t say what it is, but when did you — you were told to be here and what it was for.” Concerning the “motions calendar,” the trial court stated that “[n]otice was sent August 1st.” But Cofield’s counsel recalled differently; he recalled that at the July 14 hearing the court had ordered, with regard to motions, that if the parties had any “complicated motion in limine,” the court wanted it to be argued on September 8, 2011.

The appellate record shows that the only written order concerning September 8, 2011, was filed on August 29, 2011. That order was entitled “Notice of Hearing” and it directed Cofield and her counsel to appear before the court on September 8,2011 to “show cause why they should not be held in contempt of court for failure to comply with the Court-ordered deadline” to inform Halpern’s counsel of whether Cofield would object to the admissibility of certain medical records.

The record is void of any written notice by the trial court that it was scheduling a hearing on Halpern’s motion for partial summary judgment on September 8, 2011. Accordingly, we reverse the trial court’s grant of partial summary judgment to Halpern.

Based on this holding, we do not address Cofield’s remaining errors enumerated.

Judgment reversed.

Ellington, C. J., and Dillard, J., concur.

Drew, Eckl & Farnham, Bruce A. Taylor, Jr., Douglas K. Burrell, for appellees.

        Porter Coatings v. Stein Steel &c. Co., 247 Ga. 631 (278 SE2d 377) (1981); Hardwick v. Williams, 272 Ga. App. 680, 682 (2) (a) (613 SE2d215) (2005); Barrett v. Wharton, 196 Ga. App. 688, 689 (396 SE2d 603) (1990).

        Morrison v. Morrison, 299 Ga. App. 758, 760 (2) (683 SE2d 696) (2009) (punctuation and footnote omitted).

        Sprint Transport Group v. China Shipping NA Agency, 313 Ga. App. 454, 456, n. 7 (721 SE2d 659) (2011); Saturday Enterprises v. Citizens Bank &c., 308 Ga. App. 491, 492 (707 SE2d 875) (2011).

         Saturday Enterprises, supra (footnote omitted).

        Sprint Transport Group, supra at 456 (punctuation and footnotes omitted).

       See Barrett, supra; Morrison, supra; Saturday Enterprises, supra; Sprint Transport Group, supra at 455-456.

       See Saturday Enterprises, supra.

       Id.


author: Dillard, Judge.

text:
    A12A0641.
    AMTRUST NORTH AMERICA, INC. v. PALMER TRUCKING & LEASING, INC. et al.
    (730 SE2d 65)
   Dillard, Judge.

Amtrust North America (“Amtrust”) appeals the trial court’s decision to strike its complaint and enter judgment in favor of Palmer Trucking and Leasing, Inc., An Jan Hauling, Inc., and Janette Palmer (collectively “Palmer”) after counsel for Amtrust failed to appear at the call of the case for trial. Specifically, Amtrust argues that the trial court erred in granting Palmer’s motion to strike ,(1) in light of a conflict letter filed by counsel for Amtrust, which listed two other trial cases having priority; (2) without affording Amtrust the response time set forth in Uniform Superior Court Rule 6.2; and (3) without allowing adequate response time because the motion was never served upon Amtrust. Because we agree that the trial court erred in striking the pleadings and entering judgment against Amtrust, we vacate the court’s order and reverse the judgment for the reasons set forth infra.

The record reflects that Amtrust filed suit against Palmer in January 2011, seeking monetary damages for an allegedly fraudulent workers’ compensation claim. Palmer answered and sought attorney fees and other damages based on a claim that Amtrust had been stubbornly litigious. The case was eventually set for an October 3, 2011 trial date. But in a letter dated September 22, 2011, Amtrust’s counsel notified judges, clerks of court, and opposing counsel of conflicts for the week of October 3,2011, through October 7,2011. The letter listed two cases in the State Court of Fulton County as having priority over the instant case pursuant to Uniform Superior Court Rule 17.1, and it notified the recipients that counsel would “appear as set forth below and ask the Courts to consider Conflict [sic] if I am not able to reach their case.”

As scheduled, on October 3,2011, at 9:00 a.m., the Superior Court of White County called the case sub judice for jury trial. Neither Amtrust nor Amtrust’s counsel was present for the call, and the court later called the case for trial again at 10:15 a.m. Upon the second call of the case and nonappearance of Amtrust or Amtrust’s counsel, Palmer entered a Motion to Strike for Failure to Appear. The motion cited Amtrust’s failure to appear for either call and Palmer’s presence at both calls, and Palmer requested that the court strike Amtrust’s pleadings and grant judgment in favor of Palmer. The motion was granted the same day, Amtrust’s pleadings were struck, and judgment was granted in favor of Palmer. This appeal by Amtrust follows.

At the outset, we note that a trial court’s ruling on a motion to strike is reviewed for an abuse of discretion. With this in mind, we will now address Amtrust’s enumerations of error.

1. Amtrust first argues that the trial court erred in granting Palmer’s motion to strike and judgment in favor of Palmer for Amtrust’s failure to appear when counsel for Amtrust sent a timely conflict letter in compliance with Uniform Superior Court Rule 17.1. We agree.

Uniform Superior Court Rule 17.1 provides that an attorney is not deemed to have a conflict unless (1) the attorney is lead counsel in two or more of the affected actions and (2) the attorney certifies that the matter and client interests cannot be adequately handled and protected by another attorney, the attorney has been unable to resolve the conflict, and the attorney proposes a resolution in compliance with the Rule’s order of priorities. And when an attorney is scheduled for a day certain by “trial calendar, special setting or court order to appear in two or more courts . . . , the attorney shall give prompt written notice ... of the conflict to opposing counsel, to the clerk of each court and to the judge before whom each action is set for hearing . . . .” This written conflict notice is expected to be received at least seven days prior to the conflict date.

After the conflict notice is given, unless there is an objection by opposing counsel or the affected courts, the attorney’s proposed resolution of conflict order stands as offered in the letter. As to which obligations take priority, Rule 17.1 provides a list of varying categories of legal matters in order and specifies that “[j]ury trials shall prevail over non-jury matters, including trials and administrative proceedings.” Finally, the Rule designates that within each category, “the action which was first filed shall take precedence.” And if a judge wishes to change the order of cases to be tried, notice must be given promptly after the affected judges reach an agreement.

Decided July 3, 2012.

Scott M. Stevens, for appellant.

Martin W. Welch, for appellees.

Here, the conflict letter from Amtrust’s counsel was dated September 22 and marked as received on September 26, and listed two Fulton County cases as having priority over that between Amtrust and Palmer. The conflicting cases were both listed as “on call” for jury trials on October 3,2011, in the State Court of Fulton County and had been filed in August 2009 and November 2009, respectively — well before the January 2011 filing date in this case. Finally, the record does not reflect any objection to the conflict letter by either opposing counsel or the Superior Court of White County.

Given the compliance by Amtrust’s counsel with the explicit terms of Rule 17.1, it is unclear why the trial court granted Palmer’s motion to strike for failure to appear, and the court’s order (which was drafted by Palmer’s counsel) neglects to even mention the conflict letter. Nevertheless, Palmer argues on appeal that the Fulton County cases did not have priority over the White County case because those cases were merely “on call” for trial. But Rule 17.1 makes no such distinction in its priority list. Accordingly, the trial court erred by failing to consider Amtrust’s conflict letter. We therefore reverse.

2. Given our holding in Division 1, we need not address Amtrust’s remaining enumerations of error.

Accordingly, for all the foregoing reasons, we vacate the trial court’s order and reverse the judgment granted in favor of Palmer.

Order vacated and judgment reversed.

Ellington, C. J., and Phipps, P. J., concur.

        See Cameron v. Miles, 311 Ga. App. 753,754 (716 SE2d 831) (2011) (“[R]ulings on motions to strike and for entry of default judgment are reviewed by this Court using an abuse of discretion standard.”).

       Unif. Sup. Ct. R. 17.1 (A).

       Unif. Sup. Ct. R. 17.1 (B).

        Id.

        Id.

        See Unif. Sup. Ct. R. 17.1 (B) (l)-(4).

        Id. (B) (2).

        Id. (B) (4).

        Id. (B).

       We note that the copy of the letter in the record before us does not bear a file stamp but is initialed as having been received on September 26, 2011. Nevertheless, Palmer does not dispute that counsel for Amtrust sent the letter or that the letter was received hy all listed recipients.

        See Unif. Sup. Ct. R. 17.1 (B) (l)-(4).

        See Foster v. Gidewon, 280 Ga. 21, 22-23 (1) (622 SE2d 357) (2005) (reversing trial court’s judgment when trial court failed to honor conflict letter). Compare McKnight v. Wyrick, 247 Ga. App. 584, 585 (544 SE2d 507) (2001) (holding that trial court properly granted motion to dismiss without prejudice when counsel failed to give requisite notice of conflict and failed to appear).


text:
    A12A0654.
    JACKSON v. THE STATE.
    (730 SE2d 69)
   BARNES, Presiding Judge.

A jury found Anthony Jackson guilty of two counts of aggravated assault, two counts of aggravated battery, and burglary. The trial court denied his motion for new trial. On appeal, Jackson raises multiple enumerations of error. He contends that there was insufficient evidence to convict him of the charged offenses, that the burglary count of the indictment was fatally defective, and that the trial court erred by not permitting him to impeach one of the victims with a first offender guilty plea. Jackson further contends that the trial court committed several errors in its charge to the jury and that his trial counsel rendered ineffective assistance. For the reasons set forth below, we affirm.

1. Jackson challenges the sufficiency of the evidence to convict him of the charged offenses. In reviewing whether the evidence was sufficient,

we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence. We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

(Citations and punctuation omitted.) Sidner v. State, 304 Ga. App. 373, 374 (696 SE2d 398) (2010).

Viewed in this manner, the evidence showed that Jackson and the female victim, his former girlfriend, had been involved in an “off and on” intimate relationship lasting several years, had a daughter together, and lived with one another for a period of time at the victim’s apartment in Chatham County. Their relationship was tumultuous and marked by episodes of physical violence. In October 2005, the girlfriend broke up with Jackson for the last time and told him to stay out of her apartment, and he moved back into his mother’s house. Because she had ended her relationship with Jackson, the girlfriend had the locks changed on her apartment doors.

In the early morning hours of January 15,2006, Jackson’s former girlfriend and her new boyfriend were spending the night at her apartment. The girlfriend and her boyfriend had been romantically involved previously, and Jackson and the boyfriend knew of one another.

At the time of the attack at issue in this case, the girlfriend and her boyfriend were together in bed in the upstairs bedroom. The girlfriend was watching television, and her boyfriend was asleep beside her. Jackson suddenly entered the bedroom with a steak knife in his hand that had been retrieved from the downstairs kitchen. He approached the bed “real fast” with the knife. The boyfriend awoke when he heard his girlfriend say in a frightened voice to Jackson, “How the f**k you get in my house?” The girlfriend tried to grab the knife from Jackson, but he cut her hand. When the boyfriend sat up in bed, Jackson stabbed him in the spine. As Jackson tried to pull the knife out, the blade broke off in the boyfriend’s back. Jackson then reached for a baseball bat that the girlfriend kept by her bed for personal protection, and the boyfriend began “tussling” with him over it. During the struggle over the bat, the boyfriend fell from the bed onto the floor, and Jackson fled from the bedroom. Unable to get up from the floor, the boyfriend realized that he could not feel his legs.

After Jackson fled from the bedroom, his former girlfriend headed downstairs to call the police on the land-line in the kitchen. Upon retrieving another steak knife from the kitchen, Jackson attacked her on the stairway. While calling her a “bitch” and a “whore,” Jackson cut his former girlfriend with the knife on the back of her head, on the side of her face, and on her shoulder and back. Jackson slashed her across the nose with the knife and stabbed her in the stomach. Jackson eventually stopped striking his former girlfriend with the knife and fled from the apartment.

The girlfriend ran outside and had a neighbor call 911. After the police and emergency medical technicians arrived at the scene, she and her boyfriend were taken to the hospital. Her boyfriend was hospitalized for over a month after the attack. He was paralyzed as a result of his spinal cord injury. The girlfriend received staples and stitches for her cuts and stab wounds, and she continues to bear scars on her body from the knife attack. After the attack, Jackson’s former girlfriend and her boyfriend got married and have remained married, although his paralysis has made their marriage difficult over the years.

Based upon his entering and remaining in the apartment and his stabbing of his former girlfriend and her new boyfriend, Jackson was charged and tried before a jury on two counts of aggravated assault, two counts of aggravated battery, and burglary. The two victims of the knife attack testified to the events as set out above, and the jury also heard from the patrol officer who responded to the scene of the attack, as well as the forensic investigator and detective who were involved in the case. Jackson chose not to testify, although he presented witness testimony through which he attempted to establish that he was still living with his girlfriend at the time of the attack. After hearing all of the testimony, the jury found Jackson guilty of the charged offenses, and the trial court merged the aggravated assault convictions into the aggravated battery convictions for sentencing purposes. Jackson filed a motion for new trial, which the trial court denied, leading to this appeal.

When viewed in the light most favorable to the verdict, the evidence presented at trial and summarized above was sufficient to authorize a rational jury to find Jackson guilty beyond a reasonable doubt of the two counts of aggravated battery and burglary for which he was convicted. See Jackson v. Virginia, 443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560) (1979). The testimony of the victims, standing alone, was sufficient to sustain the convictions. See OCGA § 24-4-8 (“The testimony of a single witness is generally sufficient to establish a fact.”); Obeginski v. State, 313 Ga. App. 567, 569 (1) &n. 5 (722 SE2d 162) (2012). And it was the role of the jury, not this Court, “to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence.” (Citation and punctuation omitted.) Farris v. State, 290 Ga. 323, 324 (1) (720 SE2d 604) (2012).

Jackson, however, argues that there was insufficient evidence to convict him of aggravated battery for stabbing his former girlfriend because her wounds were “superficial” and no “medical evidence was presented by trained physicians to explain the injury.” Consequently, Jackson contends, there was insufficient evidence that the girlfriend suffered serious disfigurement, one of the elements of aggravated battery as charged in this case. See OCGA § 16-5-24 (a) (“A person commits the offense of aggravated battery when he or she maliciously causes bodily harm to another ... by seriously disfiguring his or her body or a member thereof.”).

We are unpersuaded because the evidence showed that Jackson’s former girlfriend bore scars as a result of her stab wounds. Whether the scars rose to the level of serious disfigurement was a factual issue for the jury to resolve. See Grace v. State, 210 Ga. App. 718, 719 (2) (437 SE2d 485) (1993); Barfield v. State, 170 Ga. App. 796, 797 (2) (318 SE2d 219) (1984). Nor was the State required to present expert testimony from a physician to prove serious disfigurement. See Holloway v. State, 269 Ga. App. 500, 503 (2) (604 SE2d 844) (2004). The jury, which heard from the girlfriend and saw her scars, was authorized to find from the evidence that the girlfriend was seriously disfigured as a result of the knife attack. See id. Jackson’s argument, therefore, is without merit.

2. Jackson maintains that the burglary count of the indictment was defective because the offense was misnamed as “aggravated battery.” Specifically, Count 5 of the indictment stated:

COUNT [FIVE]: BUGLARY [sic]
(OCGA § 16-7-1)
And the jurors aforesaid, in the name and behalf of the citizens of Georgia, further charge and accuse ANTHONY JACKSON with having committed the offense of AGGRAVATED BATTERY [sic], for that the said ANTHONY JACKSON, in the County of Chatham and State of Georgia, did knowingly, intentionally, unlawfully and without authority, on or about January 15, 2006, enter or remain within the dwelling house of another, to wit: [his former girlfriend’s apartment], with the intent to commit a felony, to wit: aggravated assault, therein, contrary to the laws of the State of Georgia, the good order, peace and dignity thereof.

According to Jackson, the mislabeling of the offense as “aggravated battery” in the body of the indictment required the trial court to grant his motion to quash Count 5.

We disagree. As an initial matter, we note that “[a]n accused may challenge the sufficiency of an indictment by filing a general or special demurrer. A general demurrer challenges the sufficiency of the substance of the indictment, whereas a special demurrer challenges the sufficiency of the form of the indictment.” (Citation, punctuation and emphasis omitted.) State v. Corhen, 306 Ga. App. 495, 496-497 (700 SE2d 912) (2010). Under OCGA § 17-7-110, a special demurrer must be filed within ten days after the arraignment, unless the trial court extends the time for filing. See Palmer v. State, 282 Ga. 466, 468 (651 SE2d 86) (2007). But “[a] general demurrer, in which a defendant contends that the charging instrument fails altogether to charge him with a crime, may be raised at any time” before the trial court. See Kain v. State, 287 Ga. App. 45, 48 (2) (650 SE2d 749) (2007); Moore v. State, 246 Ga. App. 163,165 (3) (539 SE2d 851) (2000).

While Jackson did not file a timely special demurrer and thus waived his right to a perfect indictment, see Jones v. State, 289 Ga. 111, 115 (2) (c) (709 SE2d 773) (2011), his motion to quash the indictment can be construed as a timely general demurrer. See Kain, 287 Ga. App. at 48 (2).

In determining the sufficiency of an indictment to withstand a general demurrer, the following test is applied: If all the facts which the indictment charges can be admitted, and still the accused be innocent, the indictment is bad; but if, taking the facts alleged as premised, the guilt of the accused follows as a legal conclusion, the indictment is good. An indictment which charges the offense in the language of the defining statute and describes the acts constituting the offense sufficiently to put the defendant on notice of the offense with which he is charged survives a general demurrer.

(Footnote omitted.) Pulliam v. State, 309 Ga. App. 477, 479-480 (2) (711 SE2d 21) (2011).

The burglary count of the indictment was sufficient to withstand a general demurrer. Although the offense was mislabeled as “aggravated battery” in the body of Count 5, “it is immaterial what the offense is called, if the averments of the presentment are such as to describe an offense against the laws of the [S]tate. It is not the name given to the bill which characterizes it, but the description in the averments of the indictment.” (Citation and punctuation omitted.) Williams v. State, 165 Ga. App. 69, 71 (4) (299 SE2d 402) (1983). See State v. Eubanks, 239 Ga. 483, 484 (238 SE2d 38) (1977), superseded in part on other grounds as stated in Palmer, 282 Ga. 466; Striplin v. State, 284 Ga. App. 92, 94-95 (643 SE2d 361) (2007). The averment portion of Count 5, which described the offense that had been committed by Jackson, followed the language of the burglary statute and fully apprised him of the offense charged. See OCGA § 16-7-1 (a). Furthermore, the subject heading of Count 5 (although misspelled) clearly referred to the offense as burglary, and the heading was followed by a citation to the burglary statute itself. Hence, Count 5 charged the offense in the language of the defining statute and described the acts constituting the offense sufficiently to put Jackson on notice that he was being charged with burglary. It follows that Count 5 was sufficient to survive a general demurrer, and we find no merit to this enumeration.

3. Jackson also contends that Count 5 of the indictment was defective because burglary was misspelled as “buglary” in the subject heading. Yet, at the hearing on the motion for new trial, Jackson conceded that the misspelling was not a ground for reversal. Because Jackson abandoned this enumeration of error at the hearing, it is not properly preserved for appellate review. See Donald v. State, 312 Ga. App. 222,229 (4) (e) & n. 15 (718 SE2d 81) (2011); Vincent v. State, 276 Ga. App. 415, 417 (3) (623 SE2d 255) (2005).

4. Jackson argues that the trial court erred by prohibiting him from impeaching the boyfriend with his guilty plea for possession of more than an ounce of marijuana. The boyfriend’s plea to the marijuana charge had been accepted under the First Offender Act, OCGA § 42-8-60 et seq., and he had completed his sentence and been discharged without an adjudication of guilt prior to the trial in this case.

[I]t is well settled that the first offender record of one who is currently serving a first offender sentence or of one who has successfully completed the first offender sentence may not be used to impeach the first offender on general credibility grounds (i.e., by establishing that the first offender has been convicted of a felony or crime of moral turpitude) because no adjudication of guilt has been entered.

(Citation and punctuation omitted.) Davis v. State, 312 Ga. App. 328, 331 (2) (718 SE2d 559) (2011). See Butler v. State, 285 Ga. 518, 519-520 (2) (678 SE2d 92) (2009); Davis v. State, 269 Ga. 276, 277 (2) (496 SE2d 699) (1998). In contrast, evidence of a witness’s first offender status is admissible to “reveal a possible bias, prejudice, or ulterior motive on the part of the witness to give untruthful or shaded testimony in an effort to please the State.” (Citation and punctuation omitted.) Melson v. State, 263 Ga. App. 647, 648 (2) (588 SE2d 822) (2003). See Manley v. State, 287 Ga. 338, 346 (5) (698 SE2d 301) (2010).

Jackson sought to admit evidence of the boyfriend’s first offender guilty plea to impeach him on general credibility grounds, not to show bias, prejudice, or ulterior motive. Therefore, the trial court committed no error in prohibiting him from using the plea for impeachment. See Davis, 312 Ga. App. at 331 (2).

5. Jackson asserts that the trial court made several errors in its final charge to the jury. We will address each purported error separately.

(a) The trial court declined to charge the jury on the defense of justification, and Jackson contends that this was error. Under Georgia law, “[a] person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to defend himself or herself... against such other’s imminent use of unlawful force[.]”QCGA § 16-3-21 (a). “[I]t is not error to refuse a justification charge where there is no evidence to support it.” Reese v. State, 289 Ga. 446, 448 (2) (711 SE2d 717) (2011). Here, Jackson declined to testify at trial or present any defense witnesses to support a justification defense. Nor did his cross-examination of the State’s witnesses reveal any evidence that would support a defense of justification. Rather, all of the evidence presented at trial pointed to Jackson as the initial aggressor who carried out an entirely unprovoked knife attack against defenseless victims. Consequently, Jackson’s claim that the trial court should have charged the jury on justification lacks merit.

(b) The trial court charged the jury with the definition of an “offensive weapon” drawn from Section 2.60.31 of the Suggested Pattern Jury Instructions, Vol. II: Criminal Cases. Specifically, the trial court charged the jury:

An offensive weapon is any object, device, or instrument that, when used offensively against a person, is likely to or gives the appearance of being likely to or actually does result in serious bodily injury. The character of a weapon may be established by direct or circumstantial evidence.

Jackson contends that the trial court erred in giving this charge defining an “offensive weapon” because the charge is intended for armed robbery cases, where use of an “offensive weapon” is an element of the offense. See OCGA § 16-8-41 (a). Because armed robbery was not one of the charged offenses in the retrial of this case, Jackson argues that the “offensive weapon” definition was inapt and likely confused the jury, entitling him to a new trial.

We do not agree. As an initial matter, after the final jury charge, the State made the trial court aware that the “offensive weapon” definition had mistakenly been included in the instructions, and the court offered to recharge the jury in an effort to cure the mistake. However, Jackson chose not to make any objection to the “offensive weapon” charge and expressly declined the trial court’s offer to recharge the jury. Based on the law in effect at the time of the trial, J ackson was required to “inform the court of the specific obj ection and the grounds for such objection before the jury retire[d] to deliberate.” OCGA § 17-8-58 (a); Walker v. State, 305 Ga. App. 607, 616 (7) (699 SE2d 902) (2010). Moreover, given that Jackson expressly declined the trial court’s offer to recharge the jury to cure any error in the initial charge, his complaint regarding the charge rings hollow. See Jeffers v. State, 290 Ga. 311, 316 (5) (721 SE2d 86) (2012) (“Since defense counsel declined the trial court’s offer to give curative instructions to the jury, appellant will not now be heard to complain.”) (citation, punctuation and footnote omitted).

Nevertheless, regardless of the lack of preservation in the court below, we must review the trial court’s charge on the definition of “offensive weapon” to determine whether it constituted plain error, given that Jackson has properly enumerated and argued the error on appeal. See OCGA § 17-8-58 (b); State v. Kelly, 290 Ga. 29, 31-32 (1) (718 SE2d 232) (2011). Reversal based on plain error is authorized if “the instruction was erroneous, the error was obvious, the instruction likely affected the outcome of the proceedings, and the error seriously affects the fairness, integrity or public reputation of judicial proceedings.” White v. State, 291 Ga. 7, 8 (2) (727 SE2d 109) (2012). See Kelly, 290 Ga. at 33 (2) (a). “Satisfying all four prongs of this standard is difficult, as it should be.” (Citation and punctuation omitted.) Kelly, 290 Ga. at 33 (2) (a).

Irrespective of whether any of the other prongs were satisfied, there is no plain error because Jackson cannot show that the error likely affected the outcome of the proceedings. Jackson was charged and tried for having committed aggravated assault “with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” (Emphasis supplied.) OCGA § 16-5-21 (a) (2). He also was charged and tried for having committed burglary by entering or remaining in his former girlfriend’s apartment with the intent to commit aggravated assault. And we have noted that the definition of “offensive weapon” applicable to armed robbery “mirrors very closely” the definition of aggravated assault set forth in OCGA § 16-5-21 (a) (2), and that an “offensive weapon” under the armed robbery statute “necessarily wouldfall within the category of weapons described in OCGA § 16-5-21 (a) (2).” Taylor v. State, 304 Ga. App. 395, 398 (1) & n. 2 (696 SE2d 686) (2010). See also Long v. State, 287 Ga. 886, 889 (2) (700 SE2d 399) (2010). Hence, Jackson cannot demonstrate that the giving of the “offensive weapon” definition drawn from the pattern instructions on armed robbery likely had any effect on the jury’s decision to convict him of aggravated assault or burglary with the intent to commit an aggravated assault, and, therefore, cannot establish plain error.

(c) Count 4 of the indictment charged Jackson with aggravated battery. In its final charge, the trial court accurately read Count 4, but prefaced its reading of that count by mistakenly labeling the crime as aggravated assault:

Aggravated assault, count four. And the jurors aforesaid in the name and behalf of the citizens of Georgia further charge and accuse Anthony Jackson with having committed the offense of aggravated battery. For that the said Anthony Jackson in the County of Chatham in the State of Georgia did knowingly, intentionally, and unlawfully on or about January 15th, 2006 maliciously cause bodily harm to another, to wit [his former girlfriend], by seriously disfiguring her body by repeatedly slashing or stabbing her with a knife, contrary to the laws of the State of Georgia, the good order, peace, and dignity thereof.

Jackson argues that by initially referring to Count 4 as an aggravated assault count rather than an aggravated battery count, the trial court likely confused the jurors, justifying a new trial.

Again, we disagree. “The general rule is that, a mere verbal inaccuracy in a charge, which results from a palpable slip of the tongue, and clearly could not have misled or confused the jury is not reversible error.” (Citation and punctuation omitted.) Arthur v. Walker, 285 Ga. 578, 579-580 (679 SE2d 13) (2009). While the trial court initially referred to the crime in Count 4 as aggravated assault, the court went on to state that the crime at issue was aggravated battery and accurately read the substance of the count to the jury. Additionally, a written copy of the indictment went out with the jury, and the verdict form accurately listed Count 4 as aggravated battery. Under these circumstances, the trial court’s slip of the tongue cannot be said to have misled or confused the jury. See id.

6. Lastly, Jackson contends that his trial counsel was ineffective in several respects.

To prevail on a claim of ineffective assistance, appellant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the client that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. We need not address both the deficient performance and prejudice prongs of the test if the defendant has made an insufficient showing on either prong.

(Citation and punctuation omitted.) Ledford v. State, 313 Ga. App. 389, 393 (4) (721 SE2d 585) (2011). See Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). Guided by these principles, we turn to Jackson’s specific allegations of ineffective assistance.

(a) Jackson contends that his trial counsel was ineffective for failing to file a timely special demurrer challenging the form of the burglary count of the indictment.

To succeed on his ineffective assistance claim, [Jackson] was required to show that his trial counsel’s failure to specially demur materially impacted his ability to present a defense, thereby creating a reasonable probability that counsel’s deficiency changed the outcome of the case.

(Citation and punctuation omitted.) Lewis v. State, 304 Ga. App. 831, 837 (5) (698 SE2d 365) (2010). “Further, as we have previously noted, because a defendant can be re-indicted after the grant of a special demurrer, a failure to file such a demurrer generally will not support a finding of ineffective assistance of counsel.” Washington v. State, 298 Ga. App. 105, 106 (679 SE2d 111) (2009).

Here, the evidence of record fails to establish that Jackson was unable to present a defense to the burglary count as a result of the imperfections in the indictment identified supra in Divisions 2 and 3. Furthermore, as pointed out above, even if Jackson’s trial counsel had filed a timely special demurrer, it would not have prevented the State from reindicting and trying him for burglary. Accordingly, Jackson has failed to show that he was prejudiced by his trial counsel’s failure to file a timely special demurrer. See Wallace v. State, 253 Ga. App. 220, 223 (3) (558 SE2d 773) (2002).

(b) Jackson also argues that his trial counsel was ineffective for failing to object to the trial court’s charge on the definition of “offensive weapon.” However, as explained supra in Division 5 (b), the giving of the charge did not affect the outcome of the proceedings, and, therefore, Jackson cannot show that he was prejudiced by his counsel’s alleged deficiency.

(c) Additionally, Jackson asserts that his trial counsel was ineffective for failing to encourage him to testify on his own behalf to support a defense of justification and right of habitation. At the hearing on Jackson’s motion for new trial, his trial counsel testified that he advised Jackson not to testify because he believed that “putting him on the witness stand could be the worst thing that [he could] do,” given that the State would likely impeach Jackson with his five prior felony convictions, including a prior conviction for aggravated assault, which would have caused Jackson to “crash and burn.” Thus, trial counsel made a tactical decision to advise Jackson not to testify, “[a]nd trial tactics and strategy, no matter how mistaken in hindsight, are almost never adequate grounds for finding trial counsel ineffective unless they are so patently unreasonable that no competent attorney would have chosen them.” (Citation and punctuation omitted.) Ledford, 313 Ga. App. at 393 (4). See Warner v. State, 287 Ga. App. 892, 895 (3) (a) (652 SE2d 898) (2007) (“Counsel’s advice against putting [the defendant] on the stand was tactical and does not reach the level of deficient performance.”). Because trial counsel’s tactical decision was not patently unreasonable in light of Jackson’s multiple prior convictions, Jackson failed to demonstrate that his trial counsel was deficient.

(d) Jackson further maintains that his trial counsel was ineffective for failing to request a jury charge on common law marriage. But “trial counsel cannot be faulted for failing to request a jury charge that was not authorized by the evidence,” Jones v. State, 287 Ga. 770, 771 (2) (700 SE2d 350) (2010), and Jackson has failed to point to any evidence introduced at trial that would have supported a charge on common law marriage. Consequently, Jackson cannot establish that his trial counsel was deficient.

Decided July 3, 2012.

Mark J. Nathan, for appellant.

Larry Chisolm, District Attorney, Arvo H. Henifin, Assistant District Attorney, for appellee.

(e) Finally, Jackson contends that his trial counsel was ineffective for failing to object to the boyfriend’s sister giving victim impact testimony during the sentencing hearing because the defense had no prior notice of her testimony. See OCGA§ 17-10-1.2 (a) (3) (authorizing the victim, the family of the victim, or other witnesses with personal knowledge of the crime to testify during the sentencing phase regarding “the impact of the crime on the victim, the family of the victim, or the community”). However, Jackson has failed to explain how the sister’s testimony during sentencing prejudiced him, given that the trial court had already heard the boyfriend’s testimony that he had been hospitalized for over a month as a result of the knife attack, that the attack had paralyzed him, that he could not live with his wife (Jackson’s former girlfriend) because her Section 8 housing could not accommodate his disability, and that his only income now is social security disability payments. Because Jackson cannot establish prejudice, he cannot succeed on his ineffective assistance claim.

Judgment affirmed.

Adams and McFadden, JJ., concur.

       Jackson was previously tried and convicted of the same offenses, but his prior conviction was reversed on appeal as a result of improper witness testimony about his criminal history. See Jackson v. State, 302 Ga. App. 412, 413-417 (1) (691 SE2d 553) (2010).

       Jackson and the boyfriend had known each other for approximately 15 to 20 years but were not friends. Both men had fathered children with the same woman before they became involved with the female victim in this case.

       As noted supra in footnote 1, this was the second jury trial. In the first trial, Jackson was acquitted of armed robbery and two additional counts of aggravated assault.

       We need not address the sufficiency of the evidence as to the merged aggravated assault counts, given that the trial court did not enter judgment on them. See Mays v. State, 306 Ga. App. 507, 509 (1), n. 3 (703 SE2d 21) (2010).

       Former OCGA § 16-7-1 (a), applicable in this case, provides in relevant part: “A person commits the offense of burglary in the first degree when, without authority and with the intent to commit a felony or theft therein, he or she enters or remains within [the] dwelling house of another . . . .”

       Citing to OCGA § 24-9-84.1 (c) (1), Jackson contends that a witness should be subject to impeachment despite a successful discharge under the First Offender Act, if the witness was “convicted of a subsequent crime that was punishable by death or imprisonment for one year or more,” as was the boyfriend, who later pled guilty to another drug charge. We disagree because OCGA § 24-9-84.1 (c) (1) is inapposite. By its plain terms, that statutory subsection applies to a “conviction [that] has been the subject of a pardon or annulment.” (Emphasis supplied.) OCGA§ 24-9-84.1 (c) (1). In contrast, a defendant who successfully completes a first offender sentence cannot he said to have had a criminal conviction, given that there was never an adjudication of guilt. See OCGA § 42-8-62 (a); Priest v. State, 261 Ga. 651, 652 (2) (409 SE2d 657) (1991).

       OCGA § 16-8-41 (a) provides in relevant part: “A person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon, or any replica, article, or device having the appearance of such weapon.”

       As noted supra in footnote 3, Jackson was acquitted of armed robbery in the first trial.

       OCGA§ 17-8-58 (a) applies to all trials occurring on or after July 1,2007. See Ga. L. 2007, p. 595, § 5.

       We also note that the “offensive weapon” charge did not affect Jackson’s aggravated battery conviction, given that the definition of aggravated battery does not refer to use of a “weapon” or to an object, device, or instrument used in an “offensive” manner. See OCGA § 16-5-24 (a).