author: Phipps, Presiding Judge.

text:
    A12A1906.
    CHAMBERS v. THE STATE.
    (739 SE2d 513)
   Phipps, Presiding Judge.

In connection with the shooting death of 17-year-old Wendell “L. J.” Lewis Gilliam, Jr., Philmon Chambers, who also was 17 years of age at the time of the shooting, was charged with aggravated assault (by use of a deadly weapon), felony murder, and murder. A jury found him guilty of aggravated assault, felony murder, and voluntary manslaughter as a lesser included offense of murder. After the trial court merged the three counts, Chambers was sentenced for committing voluntary manslaughter. His motion for new trial was denied.

In this appeal, Chambers contends that the trial court erred by, among other things, denying his motion for new trial, which motion raised the issue of juror misconduct. Specifically, Chambers complained that, during deliberations, a juror shared with her fellow jurors legal definitions, which she had found by using the Internet search engine Google; at least one such definition, Chambers argued, was incompatible with an affirmative defense he pursued at trial — defense of habitation, as it pertains to motor vehicles. Because Chambers has demonstrated on appeal that the state failed to carry its burden of proving beyond a reasonable doubt that he was not prejudiced by the juror misconduct, we reverse the trial court’s denial of his motion for new trial. Chambers’s remaining claims of error, for purposes of this appeal, are moot.

At the jury trial, the state called several witnesses to testify about what happened at the shooting scene. At about 10:00 p.m. on June 15, 2006, Chambers drove a Honda vehicle into the parking lot of an apartment complex. He and his passenger were following their two friends, who were in an Oldsmobile vehicle, which also had turned into the same parking lot. Standing in or near the parking lot were about 15 to 20 youngsters.

One witness called by the state was 15 years old on the evening in question and recounted that he and his friends had been at an apartment “rapping, sitting around, chilling” until about 10:00 p.m. When they walked outside, the Oldsmobile and the Honda were being driven into the parking lot. L. J., who was with this witness at the time, began arguing — “gang related or something like that” — with one of the Honda’s occupants. This witness testified, “L. J. start[ed] walking towards the Honda, and he got — like, before he can get closer to the car, I seen the driver driving the [Honda] pull out a pistol and just fire one time and shot L. J., and L. J. came back running towards the breezeway,” before dropping to the ground. L. J. did not have a gun, but immediately after the shot was fired, either L. J. or someone in the crowd threw a bat at the Honda.

Another witness called by the state had been L. J.’s very good friend. He testified that several of the individuals standing in or near the parking lot did not like at least one of the males in the Honda or the Oldsmobile. A verbal altercation erupted. The Oldsmobile was being driven away, and L. J. approached the Honda and there were “[w]ords back to back.” Then “L. J. tried to grab [the driver, Chambers], like take him out of the window, pull him out the window. But he was yanking on him, trying to pull him out of the window, and that’s when [Chambers] shot one time. [L. J.] jumped... and took off running.” But L. J. soon dropped to the ground. This witness had not seen L. J. with a gun. Meanwhile, Chambers, who had never gotten out of the Honda, drove away.

Rescue personnel responded to the shooting scene and found L. J. lying on the ground. Medical intervention failed, and L. J. died. An autopsy later showed that a bullet had entered his chest underneath his right armpit, struck his right lung, traveled through his heart, diaphragm, and spleen, then lodged into skin near the lower, left part of his rib cage. Ballistics testing showed that the bullet removed from L. J.’s body matched the gun that police had seized from Chambers’s bedroom when he was arrested hours after the shooting. Expert testimony showed that the gun had been approximately three-and-a-half to four feet from L. J. at the time it was discharged. Other expert testimony showed that the nature of L. J.’s wounds was consistent with having been inflicted while he was leaning into a vehicle.

After Chambers was arrested on the night of the incident, he told the police the following in his statement. He had gone to the apartment complex looking for a particular friend, but that after stopping an individual to ask about his friend’s whereabouts, approximately eight “guys” approached his car. The guys said they were members of a particular rap group and asked him and the individual whom he had just stopped whether they were members of a certain rival rap group. Chambers and the individual he had just stopped told them no. And although the guys eventually walked away, a person Chambers did not know, later determined to be L. J.,

came up on me and reached into my car. He grabbed me by the shirt trying to pull me out and started to hit me in my chest. . . about four times, and that’s when I reached down on the floor and grabbed the gun. I then shot it out the window trying to scare the dude and get him up off of me. After the shot went off, he let go and ran away. He did not say anything, and I did not realize that it shot him.

In his defense, Chambers called at trial one witness. Chambers’s witness testified that he was 20 years old on the date of the shooting and that he was friends with both Chambers and L. J. That night, this witness was the passenger in the Oldsmobile, whose driver drove into the parking lot to buy marijuana. When the two cars pulled into the parking lot, a group of people were standing at the nearby playground. The witness recounted, “We happened to run into some guys we got into an altercation with earlier.” (Chambers, however, had not been involved in the earlier altercation and knew nothing about it at the time.) Those guys were threatening to attack someone the car occupants knew, but who was not at the scene. The driver of the Oldsmobile began arguing with the crowd of about ten individuals. Chambers, however, was not involved in the argument. L. J. told the two males who had arrived in the Oldsmobile to leave. Still, no words had been spoken between L. J. and Chambers. The Honda’s engine was running, and Chambers was seated in the driver’s seat. As the driver of the Oldsmobile began to drive away, L. J. walked to the driver’s side of the Honda, yelled for Chambers to “Get the F out of the car” and then “just started swinging on him.” About ten people ran to the car. When the shot rang out, L. J. ran from the car, and the people who had gathered about the car scattered. As this witness put it:

[I]t was going to be [Chambers] or it was going to be [L. J. and his friends]. I mean, it was going to be [Chambers] getting pulled out of the car, jumped, beat up, stomped, hit with bats. They had bats. They had all kinds of stuff. It was either going to be him messed up or it was going to be the other way around.

L. J., however, had been holding no bat or any other weapon at the time he was shot.

Chambers took the stand and gave the following account. At the time in question, he had been aware that the two rap groups did not like each other and that the groups had performed songs about each other. Chambers was not a member of either group, although he had written portions of one group’s rap songs. Regarding the shooting episode, he recounted that when he arrived at the parking lot, he remained seated in the Honda. About nine guys, some with bats, surrounded his car, asking the whereabouts of one of his friends; Chambers answered that he did not know. L. J. was not among them. Meanwhile, an argument erupted between the driver of the Oldsmobile and the crowd outside, and the Oldsmobile’s driver got out of his car. But then L. J. walked over to that driver and shook his hand, after which that driver got back into the Oldsmobile and began driving away. Chambers had put his car into reverse to back away when he noticed someone in the crowd saying something to L. J. Mumbling, L. J. walked to Chambers’s side of the Honda, grabbed him, swung at him between two to four times and tried to pull him out of the car window. Chambers was strapped to the car by the seatbelt, however. L. J. next struggled to open the car door. When the car door was opened to about a forty-five degree angle, Chambers reached under bis car seat, grabbed his gun with his right hand, and shot out through his open car window. At that instant, L. J. was leaning on Chambers’s car door. Chambers testified, “I really felt like, I had no choice. ... I wanted all of them away from my car. ... I was being attacked.” Chambers testified that he wanted to scare L. J., and he wanted “L. J. and the rest of them to get away from my car so I could go about my business.” Everyone standing near the car ran away, and Chambers drove away with his passenger. Later that night, police arrested Chambers at his home.

As further shown by defense counsel’s closing argument and by the trial court’s final charge to the jury, Chambers pursued, inter alia, the affirmative defenses of justification, as well as defense of habitation as applicable to motor vehicles. Upon the return of the jury’s guilty verdicts, the court proceeded with sentencing Chambers to 20 years to serve.

1. Chambers contends that the trial court erred by denying his motion for new trial on the ground of juror misconduct. Specifically, a juror injected into deliberations extra-judicial information. Chambers argues that the prosecution failed to disprove, beyond a reasonable doubt, by competent evidence, that the juror misconduct of introducing extra-judicial information did not prejudice him.

About three hours after the jury retired to deliberate, the jury sent a note to the court that asked, “May we have a copy of the definitions & requirements of charges?” The jury was brought back into the courtroom, and the court explained its general practice of not sending out with the jury a copy of any portion of the final charge, but promised to provide a copy to them the following morning, then recessed for the day, as it already was after 5:00 p.m.

The next morning, the jury reconvened in the deliberations room. The sole juror who was called to testify at the new trial hearing recounted what happened. Neither the judge nor counsel for either side was present in the jury room. The juror recalled, “We were already looking at the evidence, and then we sent word to the judge that we want what the counts meant.” But before the court provided the jury the promised copy of the instructions, another juror (hereinafter “Juror 38”) announced that she had conducted her own legal research and thereupon shared with the jurors various definitions. The testifying juror described the setting: all twelve jurors were “at the same table”; he was reviewing his notes; and several jurors near him were also talking. The juror testified, “I was at the other end of the table. I did not hear the entire conversation what — I heard she had looked it up. I didn’t hear what counts. And when the judge then sent word of the counts, we used the counts in our final. . . deliberation.”

The lawyer who had prosecuted the case against Chambers also testified at the new trial hearing. She revealed how Juror 38’s misconduct came to her attention. Hours after the jury returned its verdict, Juror 38 called her. During their telephone conversation, Juror 38 said something to the effect of: “I had my Blackberry and Googled something about the law.” The prosecutor ended the telephone call and, among other things, informed the trial judge about Juror 38’s revelation.

At some point thereafter, investigating this issue further, the prosecutor personally interviewed all 12 jurors. Juror 38 agreed to send to the prosecutor, by e-mail, exactly what she had found during her Internet research. The prosecutor identified the e-mail she received from Juror 38 as a two-page document, which was admitted in evidence at the new trial hearing as State’s Exhibit No. 2.

One page of State’s Exhibit No. 2 contained the entirety of OCGA § 16-3-23, concerning the use of force in defense of habitation. The trial court had not charged the jury on the entirety of that Code section. And particularly problematic was this sentence that appeared at the bottom of that page: “As used in Code Sections 16-3-23 and 16-3-24,[] the term ‘habitation’ means any dwelling, motor vehicle, camper or other similar shelter generally used for occupation overnight, or place of business, and ‘personal property’ means personal property other than a motor vehicle.” That sentence was not a part of OCGA§ 16-3-23, although OCGA § 16-3-24.1 provided: “As used in Code Sections 16-3-23 and 16-3-24, the term ‘habitation’ means any dwelling, motor vehicle, or place of business, and ‘personal property’ means personal property other than a motor vehicle.” But even that Code section (OCGA § 16-3-24.1) contains no requirement that the “habitation” constitute “shelter generally used for occupation overnight.” As made clear by cases such as Benham v. State, “habitation” does not require a showing of “shelter generally used for occupation overnight.” Correctly, the trial court’s instruction concerning OCGA § 16-3-23 (the use of force in defense of habitation) did not include any such requirement.

The other page of the two-page document e-mailed to the prosecutor was a memo wherein Juror 38 pertinently stated:

I did a Google search for “defense of habitation in Georgia law”. The reason I conducted the online search and sent the result to my blackberry, was to attempt to understand what was meant by “defense of habitation” and then to share it with my fellow jurors who were also unsure of what it meant as we hadn’t heard the term prior to the closing arguments. At the time of my reading of the below email to the other jurors, it was . . . prior to when the jury received the court transcript of the charges and related definitions. The jurors discussed “defense of habitation”, including the 3 stipulations and definitions. We then received the transcript from the court and from that point until we decided the verdict, we reviewed the transcript (both aloud by the foreman and then personally when passed around the table) and useditscontent/definitions for our voting on each charge____In no way was I attempting to alter case facts or law. Rather my intent was to clearly understand the legal term and then to share with my fellow jurors. The jury did discuss that the defendant didn’t live in his car so it wasn’t a place of habitation and thusly couldn’t be used as a defense. I believe we would have ultimately come to the same verdict; however, being that I shared the below information, I cannot be 100% certain that we would have. []

Given the foregoing, Chambers maintains on appeal that his affirmative defense of habitation “was wrongly assassinated by the petit juror’s extra-judicial ‘law’ that if one does not live in his vehicle, he cannot defend himself inside same.”

Allowing jurors to decide a case based on “law” provided by a juror during deliberations patently violates a defendant’s Sixth Amendment rights not only to be present at all critical stages of his trial, but also to be tried by a fair and impartial jury. “It has long been recognized by the courts of this state that the guarantee of a fair and impartial jury is a central safeguard to a fair trial in our system of criminal justice.” As our Supreme Court recognized well over a century ago, when a jury is selected and sworn to try the criminally accused, “[the law] contemplates that no outside influence shall be brought to bear on the minds of the jury, and that nothing shall occur outside of the trial which shall disturb their minds in any way.” And where, as here, “misconduct of a juror or of the jury is shown, [] the presumption is that the defendant has been injured, and the onus is upon the State to remove this presumption by proper proof.” That is, “the burden is on the prosecution to prove beyond a reasonable doubt that no harm has occurred.” A jury verdict will not be upset solely because of juror misconduct, however, “unless such conduct [was] so prejudicial that the verdict must be deemed inherently lacking in due process.” “Put another way, a new trial will not be granted unless there is a reasonable possibility that the improper [information] collected by jurors contributed to the conviction.”

In this case, to remove the presumption of prejudice that arose as a result of juror misconduct, the state introduced in evidence at the new trial hearing affidavits from all jurors except Juror 38. Each affiant stated that, in reaching the verdicts, he or she had relied upon the definitions provided by the court. Several of those eleven jurors further averred either that they did not recall any juror bringing information into the jury room during deliberations or that they did not recall what the juror who had conducted her own research had read to them. And those jurors who stated that they had heard what Juror 38 read to them gave conflicting accounts as to what she had read to them; their recollections varied as to whether Juror 38 had read “law” or “legal definitions” on murder and/or voluntary manslaughter and/or aggravated assault and/or defense of habitation.

The trial court rejected Chambers’s claim that juror misconduct required the grant of his motion for a new trial, stating in its order: “This Court has considered [the testimony of the sole (petit) juror who testified], the affidavits of the petit jurors, and State’s Exhibit 2 to the Motion for New Trial and finds the misconduct was not so prejudicial that the verdict was lacking in due process.” The trial court noted further that “many of the jurors’ recollection of what was read [by Juror 38] were inconsistent with each other and with State’s Exhibit 2.” And the trial court found:

Most significantly, all petit jurors stated that they totally relied upon the Court’s instruction and not the information conveyed by [Juror 38]. There was no evidence that the juror tried to sway her fellow jurors or that the outcome of the deliberations was affected. The jury’s verdict was sound.

While the trial court’s ruling on this issue is entitled to deference, the record constrains us to conclude that the ruling was erroneous. Even accepting that the trial court found credible the eleven jurors’ affidavit testimony that they had not relied upon any extra-judicial information from Juror 38, we find nothing in the record that allowed for such a finding for the twelfth juror, Juror 38. Undisputedly, that juror collected extra-judicial “law” that she found compelling enough to share with fellow jurors (before she herself necessarily assented to the unanimous guilty verdicts). Juror 38’s e-mail to the prosecutor was not sworn; but even if it had been, in it Juror 38 did not state that she had relied only on the court’s definitions and not on her own extra-judicial information. We cannot agree with the state’s contention on appeal that “there was no evidence... that any of the jurors were influenced by the extrajudicial information.”

The state cites the principle that where the substance of the juror communication is established without contradiction, the facts themselves may establish the lack of prejudice or harm to the defendant. But as the trial court noted, “many of the jurors’ recollections of what was read [by Juror 38] were inconsistent with each other and with State’s Exhibit 2”; and as the state concedes in its brief, “[n]one of the jurors were consistent in what definition was read.” Because the substance of Juror 38’s “law” was not established without contradiction, the cited principle is unavailing to the state.

The state did not overcome, by proof beyond a reasonable doubt, the presumption of prejudice that arose in this case. State’s Exhibit No. 2, introduced in evidence at the new trial hearing, was expressly relied upon by the trial court in reaching its decision. To the extent it was not incompetent hearsay, it showed that Juror 38 used her own Internet research to dispense with the defense of habitation: “the defendant didn’t live in his car so it wasn’t a place of habitation and thusly couldn’t be used as a defense.” What is more, the portion of State’s Exhibit No. 2 that was used to so conclude was not consistent with Georgia law and was not part of the trial court’s final charge to the jury. Even if State’s Exhibit No. 2 is properly construed as incompetent hearsay, the state’s remaining evidence nevertheless fell short of meeting its burden of proof, in light of the undisputed actions of Juror 38.

Whether Chambers was entitled to be acquitted based on the affirmative defense of habitation was featured prominently as a disputed issue by the presentment of evidence to the jury, the arguments of counsel, and the instructions to the jury. As the Court espoused in Bonham, OCGA § 16-3-23 (setting forth the use of force in defense of habitation)

authorizes the use of force which is intended to cause death or great bodily injury to prevent or terminate unlawful entry into or attack upon a habitation (including a motor vehicle under OCGA § 16-3-24.1) if the entry is made or attempted in a violent and tumultuous manner and there is a reasonable belief that the entry is made for the purpose of assaulting or offering personal violence to any person therein.

In this case, the evidence authorized a finding that, at the time Chambers inflicted L. J.’s fatal wound, L. J. was unlawfully entering, or attempting to enter, Chambers’s car in a violent and tumultuous manner for the purpose of assaulting Chambers or offering him personal violence. Considering the evidence produced by the state at trial, the affirmative defenses pursued by Chambers, the jury’s request for supplemental instructions hours after retiring to deliberate, Juror 38’s usurping the province of the trial court by presenting fellow jurors with “law” she found using Google to search the Internet, together with the evidence adduced at the new trial hearing,

we find that there is at least a reasonable possibility that the [extra-judicial information] contributed to the conviction, and that the verdict must therefore be deemed inherently lacking in due process. This misconduct cannot be ignored and requires a reversal of the judgment based on the jury’s verdict in this case.

Accordingly, the trial court abused its discretion in denying Chambers’s motion for a new trial.

2. Chambers also enumerates as error: (a) the trial court’s failure to instruct the jury, sua sponte, on the absence of the duty to retreat; and (b) the trial court’s rejection of his claim that his trial counsel rendered ineffective assistance by failing to submit a written jury instruction that the prosecution had the burden to disprove beyond a reasonable doubt affirmative defenses. Regarding the latter, the transcript shows that the trial court did instruct the jury on that principle, but Chambers asserts that the instruction given was confusing.

Because our holding in Division 1 renders these claims of error moot and because the propriety of the jury charges upon a retrial will depend upon the facts thereupon developed, we need not address these claims of error relating to Chambers’s first trial.

3. “Because the evidence [met] the standard of Jackson v. Virginia,[] the case may be retried.”

Decided March 29, 2013

Reconsideration denied April 12, 2013

Brian Steel, for appellant.

Robert D. James, Jr., District Attorney, Deborah D. Wellborn, Assistant District Attorney, for appellee.

Judgment reversed.

Ellington, C. J., concurs. Dillard, J., concurs in judgment only.

       (concerning use of force in defense of property other than a habitation).

       (Emphasis supplied.)

       277 Ga. 516 (591 SE2d 824) (2004).

       (Emphasis supplied.)

       See Peterson v. State, 284 Ga. 275, 278-279 (663 SE2d 164) (2008) (“The United States and Georgia Constitutions both secure the fundamental right of criminal defendants to be present at all critical stages of the proceedings against them.”); Locklin v. State, 228 Ga. App. 696, 697 (2) (492 SE2d 712) (1997) (holding that an accused is entitled to be present for, among other things, the giving of a charge to the jury).

        Inman v. State, 281 Ga. 67, 74 (6) (635 SE2d 125) (2006) (“The Sixth Amendment right to a jury trial guarantees a criminal defendant the right to a trial by an impartial jury.”) (citation omitted); see Turner v. Louisiana, 379 U. S. 466, 471-472 (85 SC 546, 13 LE2d 424) (1965) (explaining that the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, indifferent jurors and that the failure to accord an accused a fair hearing violates even the minimal standards of due process) (citing Sixth Amendment). See generally Desverges v. Goette, 121 Ga. 65, 67 (3) (48 SE 693) (1904) (“The sanctity of the court and the purity of trial by jury alike demand that the verdict shall not be in the slightest degree influenced or controlled by matters and conduct extrinsic to the trial.”).

        Lamons v. State, 255 Ga. 511, 512 (340 SE2d 183) (1986), citing Monroe v. State, 5 Ga. 85 (1848).

        Shaw v. State, 83 Ga. 92, 100 (1) (9 SE 768) (1889).

       See Steele v. State, 216 Ga. App. 276, 278-279 (2) (454 SE2d 590) (1995) (finding juror misconduct, where juror copied encyclopedia’s definitions of manslaughter and read her notes to jury), overruled on other grounds, Kennebrew v. State, 267 Ga. 400, 404 (4), n. 2 (480 SE2d 1) (1996); Moore v. State, 172 Ga. App. 844, 846 (324 SE2d 760) (1984) (finding juror misconduct, where juror studied Reader’s Digest book on the law and told jurors what he had gotten from the book).

        Shaw, supra at 98 (1); see Lockridge v. State, 260 Ga. 528 (397 SE2d 695) (1990).

        Sims v. State, 266 Ga. 417, 419 (3) (467 SE2d 574) (1996) (citation and punctuation omitted).

        Boone v. State, 293 Ga. App. 654, 662 (9) (667 SE2d 880) (2008) (citation and punctuation omitted); see Sims, supra.

        Bobo v. State, 254 Ga. 146 (1) (327 SE2d 208) (1985) (citation omitted); see Gaines v. State, 274 Ga. App. 575, 577 (1) (618 SE2d 197) (2005).

        Lockridge, supra at 529; Gaines, supra at 575 (“[M]otions for new trial because of improper conduct of jurors ... are addressed to the sound discretion of the trial judge. Unless there is an abuse of discretion, the appellate court will not upset the trial judge’s determination.”) (citation omitted).

       See Henley v. State, 285 Ga. 500, 503-504 (2) (678 SE2d 884) (2009) (noting trial court’s prerogative to ascertain credibility of affidavit on motion for new trial based on alleged juror misconduct). But see Shaw, supra at 101 (“It is true that the jury say in their affidavits that these things did not influence their minds; but how can they tell — how can any man tell what particular facts and circumstances influence his judgment?”) (citations omitted); Moore, supra (“Despite the two juror witnesses’ . . . protestations that the jury verdict was not actually affected..., this is a conclusion or opinion only and is not something to be presumed inasmuch as the misconduct cannot be ignored and [the appellate court has] no way of knowing what effect the juror’s interpretations from [a book entitled You and The Law, published by Reader’s Digest Association, Inc.] had on the others.”) (citation omitted; emphasis supplied).

       (Emphasis supplied.)

       See Holcomb v. State, 268 Ga. 100, 103 (2) (485 SE2d 192) (1997).

       Cf. id. (the substance of the communication involved in an incidence of juror misconduct, having been established without contradiction, proved beyond a reasonable doubt that no harm occurred); Sims, supra at 420 (3) (no reversible error arising out of juror misconduct by violating court orders not to discuss the case because the substance of the communication was established without contradiction and the statements “did not involve extrajudicial information, or demonstrate that they were deliberating the case prior to the close of evidence, or that one juror was attempting to persuade another on any issue or testimony in the case”); Henry v. State, 265 Ga. 732, 738 (7) (a) (462 SE2d 737) (1995) (sequestered juror had unauthorized contact with girlfriend but no harm where facts established conversation did not involve discussion about the merits of the case); Lawrence v. State, 289 Ga. App. 163, 165-166 (1) (657 SE2d 250) (2008) (concluding that there was no reasonable probability that the juror misconduct contributed to the guilty verdict, where juror examined the injuries victim received during the charged offense, but there was no evidence that juror discussed those injuries with, or presented any other extra-judicial information to, any of the other jurors and the trial court dismissed that juror within minutes after her inappropriate contact with the victim, and it did not appear that juror had much, if any, opportunity to discuss her contact with the remaining members of the jury).

       See Inman, supra at 72 (4) (noting that hearsay evidence is admissible “in exceptional circumstances, i.e., when the hearsay bears persuasive assurances of trustworthiness and is critical to the defense,” and the "[ejxclusion of hearsay testimony that meets the exceptional circumstances test violates traditional and fundamental standards of due process”) (citations omitted). See generally Turpin v. Todd, 268 Ga. 820, 822 (1) (a) (493 SE2d 900) (1997) (explaining that “the general prohibition against allowing a jury to impeach its verdict cannot be applied to emasculate a defendant’s constitutional right to a fair trial”); Watkins v. State, 237 Ga. 678, 683-685 (229 SE2d 465) (1976) (explaining that the general rule that jurors are not permitted to impeach their own verdict is deeply rooted in Georgia law as it promotes important public policy considerations, but that such rule does yield to a defendant’s constitutional right to a fair trial).

       Supra.

       Id. at 517 (punctuation omitted).

       See Hammock v. State, 277 Ga. 612, 615 (3) (592 SE2d 415) (2004) (“Unlike the defense of justification, the habitation defense . . . allows the use of deadly force in certain situations even if the occupant does not fear death or great bodily injury.”); Benham, supra (explaining that defense of habitation may justify the use of deadly force even if that amount of force was not necessarily required to repel an unlawful attack upon one sitting in a motor vehicle).

        Bobo, supra at 148 (1) (citations omitted); see Hammock, supra at 614 (2) (finding a reasonable possibility that juror misconduct contributed to the accused’s conviction, where juror misconduct affected key issue of affirmative defense and verdict became unanimous only after the introduction of the improper evidence); Steele, supra; Moore, supra.

       Supra.

       See generally Steele, supra at 279 (6).

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

        Lively v. State, 262 Ga. 510, 512 (3) (421 SE2d 528) (1992).


source: Caselaw Access Project

author: PHIPPS, Presiding Judge.

license: Public Domain

text:
    A12A1950, A12A1951.
    CANCEL v. SEWELL et al.; and vice versa; FAULK et al. v. CANCEL.
    A12A1952.
    (740 SE2d 870)
   PHIPPS, Presiding Judge.

After the anesthesiology department of a hospital underwent a restructuring, four anesthesiologists who had been working there under their practice group were not selected for continued employment. Alleging that they had been wrongfully terminated because they had voiced concerns of fraudulent billing practices by fellow anesthesiologists, the four anesthesiologists • — -Angel Cancel, M.D., Pravin Jain, M.D., Grace Duque-Dizon, M.D., and Monajna Sanjeev, M.D. —-filed suit against numerous individuals and entities. Herein, we review several rulings on various defendants’ motions for summary judgment. For reasons explained below, we affirm the judgment in Case No. A12A1950; we reverse in part the judgment in Case No. A12A1951, while dismissing that case in part; and we dismiss Case No. A12A1952.

Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” “In our de novo review of the grant [or denial] of a motion for summary judgment, we must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant.”

Viewed thus in favor of the plaintiffs, the evidence showed the following. The four anesthesiologists formerly practiced medicine under their group called Central Georgia Anesthesia Services, P.C. (hereinafter “CGAS”). It was comprised of approximately 14 anesthesiologists who were all shareholders, members of the board of directors, and employees of that company. During the years leading up to the restructuring in 2003, CGAS was under an exclusive contract with The Medical Center of Central Georgia, Inc. (hereinafter “The Medical Center”), whereby only CGAS would provide anesthesiology services, through its physician-employees, to The Medical Center’s Macon hospital and that hospital’s patients.

Pertinent Terms of the Contract between CGAS and The Medical Center

The contract relevant here provided that its “Term” would run from March 1, 2000 to February 28, 2002, unless terminated earlier pursuant to that contract. Upon its expiration or termination, the contract required CGAS physicians to resign their hospital privileges; if any such physician failed to do so, the contract provided that The Medical Center could terminate that physician’s privileges. The contract did not terminate in February 2002, as the parties agreed to extend it through mid-January 2004.

Allegations of Billing Fraud Committed by Certain CGAS Physicians

In April 2001, CGAS physician Cancel (who would become a plaintiff in the instant action) was named CEO of CGAS. Thereafter, he discovered what he believed showed that certain of his CGAS physician colleagues were fraudulently billing Medicare/Medicaid as well as insurance companies, thereby yielding unearned revenues for both CGAS and The Medical Center. He discussed the billing irregularities with CGAS members. And later, Cancel met with the Vice President for Medical Affairs for The Medical Center, Louis Goolsby, M.D., and notified him of the perceived billing problems. Cancel deposed that, within a short period of time, tension, stress and interpersonal problems arose amongst certain of the CGAS physicians.

Dissatisfied because of what he saw as continued noncompliant billing practices, Cancel, with The Medical Center’s approval, contacted the American Society of Anesthesiologists (hereinafter “ASA”) and requested an independent third-party investigation. But about a week before the scheduled investigation, during the first week of December 2002, Goolsby canceled the ASA’s visit and investigation. Cancel, who already was contemplating quitting his practice at the hospital and moving to another state, was not informed of the cancellation beforehand. As he recalled during his deposition, “[B]y then I am frustrated and when [Goolsby] cancels that without telling me, without consulting with anybody, just unilaterally cancels, I gave up and I said, that’s it.. . . Emotionally I had probably decided I can no longer stay here unless this is fixed.”

Investigation Conducted by a Third-Party

Meanwhile, the Chief Executive Officer of The Medical Center, A. Donald Faulk, engaged a psychological consultant to evaluate the interpersonal dynamics amongst the CGAS physicians. Alvin Sewell, M.D., a shareholder/director/employee himself of CGAS, encouraged his fellow CGAS physicians to interact with that consultant. And thereafter, they did so. Cancel revealed during his discussion with the consultant in January 2003 his concerns of ongoing fraudulent billing irregularities.

In January 2003, Cancel submitted his resignation to be effective March 1, 2003, but within days of so submitting, changed his resignation to a one-year vacation leave. In February 2003, Cancel began a series of trips to Colorado, during which he researched housing, hospitals, and medical licensing. In March, he began a medical practice in Colorado, where he continued to practice until at least his deposition in the instant case. Hence, after Cancel took vacation leave in February 2003, he never again practiced medicine as a CGAS employee or at the Macon hospital. Cancel admitted in his deposition that he had essentially abandoned his post as CEO of CGAS, adding that he had concluded that “the post had no power any more and no decision-making, I was a captain without a ship.” In June 2003, Cancel resigned from his employment with CGAS.

While Cancel was on leave, Jain (who would become another plaintiff in the instant case) had acted as CGAS’s CEO. Having also become concerned about potential billing noncompliance, Jain reviewed anesthesia records for a period of time through about the middle of April 2003 and discovered therein indications of billing irregularities by certain CGAS physicians. Jain shared with Goolsby his findings, as well as his belief that his findings showed that elements of billing compliance were missing.

Action by The Medical Center

A few days later, Faulk (as President/CEO of The Medical Center) sent a letter dated April 25, 2003 to Cancel (as CEO of CGAS), advising that, due to the allegations raised about and by certain CGAS representatives, including behavioral issues and fraudulent billing practices, The Medical Center was intending to cancel its contract with CGAS, effective May 31, 2003, pursuant to the contract’s “with cause” clause, unless CGAS demonstrated by that date that it was in substantial compliance with the contract. The April 25 letter demanded that CGAS promptly retain a qualified independent consulting firm, subject to The Medical Center’s approval of both the firm and its audit protocol, to conduct an audit of CGAS’s billing practices and report the findings thereof to CGAS and to The Medical Center.

Additionally, the April 25 letter announced The Medical Center’s intent to restructure its anesthesiology department effective February 29, 2004, even if CGAS demonstrated its compliance with their contract on or before May 31, 2003. And the letter informed CGAS that, beginning May 12, 2003, The Medical Center would begin a “recruitment process for staff anesthesiology positions” and those hired would become its “employees or independent contractors.” The letter outlined that any CGAS physician intending to provide services in the restructured anesthesiology department should promptly submit an application and that, although The Medical Center could not guarantee that any member of CGAS would be offered a contract of employment within the restructured department, The Medical Center would evaluate each application “fairly, objectively and on its individual merits.”

Actions Taken by CGAS and Certain CGAS Physicians

Days later, at a CGAS shareholders and directors meeting on April 29, 2003, the attendees discussed a corporate dissolution. Sewell represented that a dissolution would serve to remove any encumbrances that might stand in the way of the hospital’s restructuring and allow the hospital to negotiate contracts with the individuals of the group. At a May 5, 2003 CGAS shareholders and directors meeting, a proposal was unanimously passed that the CGAS contract with The Medical Center would terminate on August 31, 2003.

Meanwhile, Cancel, Jain, Duque-Dizon, and Sanjeev (who would become the four plaintiffs), along with other CGAS physicians, submitted their respective applications to work in the restructured department. Of those specific four, three were interviewed; Cancel, who by then was living in Colorado, was invited to be interviewed, but declined. None of those four doctors received an offer to join the restructured department, but eight other CGAS physicians did receive offers. Consequently, withtheAugust 31,2003 termination of CGAS’s contract with The Medical Center, the three doctors (excepting Cancel, who already had resigned) lost their jobs as CGAS employees practicing at The Medical Center’s hospital.

Changes Implemented at the Department of Anesthesiology

A few months later, in November 2003, Nexus Medical Group, LLC was formed. It is undisputed that, as of January 1, 2004, that company was under contract with The Medical Center as its exclusive provider of anesthesia services. Nexus was comprised of some former CGAS physicians — including Sewell, as well as physicians who had never been members of CGAS. Several of those physicians who had not been part of CGAS were recruited to Nexus as a result of Sewell’s efforts. One such anesthesiologist, Nexus’s Rule 30 (b) (6) witness in the instant action, deposed that in 2003, “[Sewell] just came to me purporting to represent the group that was hiring some anesthesiologists. He had already hired two of my partners before me.” That anesthesiologist deposed further that, at Nexus, Sewell’s title was “board chair”; serving in that role from 2004 to 2009, then re-elected in 2009 to serve another five-year term, Sewell was a “point of continuity” and “represent [ed] the [Nexus] group primarily to the hospital. . . . He would be the primary face there.”

Litigation in the Trial Court

Cancel, Jain, Duque-Dizon, and Sanjeev initiated the instant lawsuit for damages. They claimed that they had been “singled out” for exclusion and expulsion from providing services to The Medical Center because they had voiced concerns about fraudulent billing procedures. The defendants they named, as have since been grouped by the litigating parties, were: (a) Sewell, Miles H. McDonald, M.D., and Sanjiwan Tarabadkar, M.D. — who all were CGAS physicians, but more significantly here, who all were CGAS physicians who subsequently became Nexus physicians working at The Medical Center’s hospital; (b) The Medical Center and two of its officers, Goolsby and Faulk; and (c) Nexus, the corporate entity that obtained an exclusive contract to provide anesthesiology services for The Medical Center after its contract with CGAS terminated.

The plaintiffs sought recovery under a number of causes of action. Among their theories, they alleged: (1) Sewell, Tarabadkar, and McDonald, as directors and officers of CGAS, had breached fiduciary duties owed to them by engaging in fraud and misrepresentations; (2) The Medical Center and two of its officers, Goolsby and Faulk, had caused, induced, or conspired in the breach of fiduciary duties by Sewell, Tarabadkar, and McDonald; and (3) all defendants had committed fraud and deceit. The plaintiffs also sought relief under the False Claims Act; plaintiffs alleged that they (the plaintiffs) had engaged in conduct protected thereunder, yet The Medical Center, its agents and officials had retaliated against them by terminating their ability to provide anesthesiology services at the hospital. Additionally, the plaintiffs asserted that “the Defendants have breached and violated Plaintiffs’ freedom of speech rights under the Georgia Constitution,” by “retaliating against them for speaking out and opposing Medicaid/Medicare fraud, which is a matter of public concern.” Regarding Nexus, the plaintiffs set out in their complaint:

In order to effectuate their scheme to exclude the [p]laintiffs from continuing to provide anesthesia medical services to [The Medical Center] and to silence the [plaintiffs’ criticisms, and to exclude [p]laintiffs from having access to billing records, the [defendants utilized the subterfuge of terminating the anesthesia contract with CGAS and created a new company (The Nexus Medical Group, LLC) which excluded the [p]laintiffs. Defendants Tarabadkar, Sewell and McDonald became principals and members of Nexus who in turn became a participant in the wrongdoing as a co-conspirator. In actuality, [Nexus] is the alter ego of [The Medical Center], Goolsby and Faulk and Defendants Sewell, Tarabadkar and McDonald individually, and was established and designed to further the fraudulent conspiratorial actions of Defendants in depriving the [p]laintiffs of their contractual rights and eliminating the [pjlaintiffs from being able to provide anesthesia services to [The Medical Center]. [Nexus] through the actions of Tarabadkar, Sewell and McDonald became a co-conspirator to their actions and is equally liable for them.

A barrage of summary judgment motions filed by the defendants challenged the plaintiffs’ claims on various grounds. Numerous hearings were conducted. At one such hearing, defendants attacked particularly Cancel’s claims, positing that circumstances leading to his employment termination differed from those of the other plaintiffs in this critical aspect: Cancel chose not to be interviewed and instead resigned.

Subsequently, a series of orders entered by the trial court amounted to the grant of summary judgment against Cancel as to all his claims — the last of such orders recited: “[H]aving heard oral argument on November 10, 2011, as well as on several other occasions, IT IS HEREBY ORDERED that Defendants’ motions for summary judgment as to plaintiff Cancel are GRANTED, and Dr. Cancel is hereby dismissed from this case.” That order was entered on November 10, 2011.

Within 30 days of said entry, on December 8, Cancel filed a notice of appeal, citing the November 10 order as the directly appealable order and further stating that he would be challenging additional rulings in the case, including an “October 28, 2011 order granting summary judgment on Plaintiff Cancel’s Tree speech’ retaliation claim pursued under the Georgia Constitution.” Therefore, Cancel asserted, “The Georgia Supreme Court has jurisdiction over this appeal because it involves the construction of a provision of the Georgia Constitution”; hence, Cancel’s notice of appeal was to the Supreme Court of Georgia. And within 15 days of the filing of Cancel’s notice of appeal, two notices of cross-appeals were filed, thus, also to the Supreme Court of Georgia.

Upon the docketing of the three cases in the Supreme Court, however, that Court entered an order stating:

These appeals do not invoke the Court’s jurisdiction over cases “in which the constitutionality of a law, ordinance, or constitutional provision has been drawn into question” (1983 Ga. Const., Art. 6, Sec. 6, Par. 2), since resolution of the issue (whether the defendants are state actors such that the constitutional provision applies to them) involves only the application of an unquestioned and unambiguous provision of the Constitution. [Cit.] Since appellate jurisdiction over the cross-appeals is dependent upon the alleged constitutional question and there does not appear to be any other basis for jurisdiction in this Court, all the appeals hereby are transferred to the Court of Appeals.

Accordingly, the three cases were docketed in this court. We consider each of the three appeals in turn.

Case No. A12A1950

The notice of appeal that gave rise to Case No. A12A1950 was filed solely by Cancel.

1. Cancel contends that the trial court erred by granting summary judgment against him on his claim brought pursuant to the False Claims Act. But at the summary judgment hearing thereon, counsel for the plaintiffs (and, hence, for Cancel) announced to the trial court that he agreed that the motion for summary judgment should be granted as to that cause of action. Thereafter, the trial court entered an order granting summary judgment to all defendants as to this cause of action, citing, inter alia, the summary judgment hearing. Given that this cause of action was thereby expressly abandoned, this contention has no merit.

2. Cancel contends that the trial court erred by granting summary judgment against him on his free speech claim, which was premised on Ga. Const. Art. I, Sec. I, Par. V. He cites language in Goolsby v. Regents of the Univ. System of Ga.: “For a state to withhold an expected promotion or pay raise as a sanction for the exercise of the right to free speech is a restriction of that right in violation of the First and Fourteenth Amendments to the U. S. Constitution.”

Summary judgment was entered on this claim because the trial court found no evidence of a state action. Cancel does not dispute that state action is an essential element of the free speech claim; he argues that he presented evidence thereof.

(a) Cancel asserts that the requisite state action was shown “by virtue of the [1995] Hospital’s lease with the Macon-Bibb County Hospital Authority ‘to promote the public health needs of the community.’ ” But Cancel has failed to support his assertion with a record citation for the purported lease. “Because [Cancel] is the appellant, it is axiomatic that [he] bears the burden of showing error affirmatively by the record.” And an appellate court has no duty to cull the record on behalf of a party, which record in this case comprises well over 16,000 pages. Furthermore, Cancel has cited no authority to support his assertion that the requisite state action was shown “by virtue of” a 1995 lease between the Macon-Bibb County Hospital Authority and The Medical Center, the latter of which the evidence showed was a private, nonprofit corporate entity. This assertion demonstrates no basis for reversal.

(b) Cancel points out that one of the defendants, Sewell, was serving on the Macon-Bibb County Hospital Authority and asserts that certain conduct by Sewell thus supplied the requisite state action. In particular, Cancel cites evidence: that Sewell was present at the initial meeting between Goolsby and the consultant; that Sewell admittedly told the CGAS physicians, who had not wanted to interact with that consultant, that it was mandatory that they do so; that in April 2003, Sewell said at a CGAS shareholders and directors meeting that the purpose of the corporate dissolution was to remove any encumbrances that might stand in the way of the hospital’s restructuring of the group and to allow the hospital to negotiate contracts with the individuals of the group; and that subsequent to the termination of the CGAS contract (effective August 31, 2003), Sewell took steps to hire physicians who would work for a newly-formed company, which became Nexus.

Notwithstanding, there is no evidence that these actions were taken by Sewell in his capacity as a member of the hospital authority. The evidence showed that Sewell was acting as a shareholder and director of CGAS (a private entity). The evidence showed further that Sewell was acting as a liaison between CGAS and The Medical Center (also a private entity). According to Sewell, “[t]he hospital had come to a point at which they were so disgusted with our dysfunctional behavior, that they did not want to deal with us at all. I believe that they were contemplating getting rid of all of us. They were sick of us fighting and using them as a third-party mediator.” Acknowledging that he was not a duly elected officer of CGAS at the time, Sewell deposed further that Goolsby and other such hospital personnel “had indicated to [him] in no uncertain terms that they did not want to deal with the CGAS officers” and had “asked [him] to be the contact person for the group. They did not want to talk directly to Dr. Jain or Dr. Cancel.”

The mere fact that Sewell was a member of the hospital authority did not demonstrate a sufficient “nexus between the state and the challenged action” (which action Cancel does not specify herewith, but it is presumably the termination of his hospital privileges, despite his resignation) so as to supply the state action as a foundation for the free speech claim. Nothing in the cases cited by Cancel, Faucher v. Rodziewicz and Malak v. Associated Physicians, cases which involved public hospitals, provide for an outcome in Cancel’s favor. Cancel has shown no error in the grant of summary judgment on his free speech claim.

3. Cancel contends that the trial court erred by granting summary judgment on his remaining claims, thereby dismissing him from the entirety of the case. He asserts, “The defendants failed to adequately pierce the allegations raised in the Complaint which show that Cancel was constructively discharged.” Cancel does not offer any substantive argument to explain how his assertion, even if correct, resurrects any of his causes of action. And “[w]e will not speculate or make arguments on [Cancel’s] behalf; to do so would improperly change this court’s role from disinterested decision-maker to appellate advocate.”

(a) Instead, Cancel asserts that the defendants failed to pierce allegations he raised in his complaint. As reiterated recently in Cowart v. Widener however, a defendant moving for summary judgment

need not affirmatively disprove the nonmoving party’s case, but may point out by reference to the evidence in the record that there is an absence of evidence to support any essential element of the nonmoving party’s case. Where a defendant moving for summary judgment discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.

(b) Cancel next asserts that he presented evidence that authorized a finding that he was “forced to quit his job due to the hospital defendants’ refusal to address the concerns raised by him related to potentially fraudulent billing practices of the CGAS physicians for work performed in the Department of Anesthesiology at the hospital.” But as Cancel acknowledges, after he took leave, the anesthesiology department underwent changes, and he was invited to interview for a position within the restructured department. He declined to be interviewed.

Cancel was asked during his deposition why he had declined, and answered, “I had gotten word that [a certain doctor (who is not a party to this litigation)] was on the board of the — committee board, so he is one of the anesthesiologists vying for the same position as I am in there.” But Cancel conceded that the hospital would have needed more than one anesthesiologist for that particular position. In Cancel’s opinion, however, the other doctor did not have “the most merit,” which Cancel could not reconcile with his understanding of language in the April 25 letter which indicated that physicians would be selected based on merit. Additionally, Cancel gleaned it inappropriate for that doctor to interview him, given Cancel’s belief at the time that both of them were seeking “a position at the same place in the same stature.”

On appeal, Cancel maintains that it was reasonable for him to so decline to be interviewed because, as was the case in Kodish v. Oakbrook Terrace Fire Protection Dist., “the handwriting was on the wall.” While Cancel may have speculated that interviewing for a new position would have been fruitless, “[s]ummary judgment cannot be avoided based on speculation.” And although Cancel may also have felt pressured by the parties later named as defendants to effectively resign by choosing not to interview, the cases upon which he relies are inapposite. Cancel has demonstrated no basis to overturn the grant of summary judgment as to any of the causes of action that he pursued.

4. Cancel contends that the trial court erred by denying his motion to compel financial information from Sewell, Tarabadkar, and McDonald relating to their earnings, compensation, and benefits for the years after they had left the employ of CGAS and were employed by Nexus. Given our holdings in Divisions 1 through 3, as to Cancel (the only plaintiff to file a notice of appeal and hence the sole appellant in Case No. A12A1950), this issue is moot, and we therefore do not reach it.

5. Cancel challenges the trial court’s refusal to exclude at trial certain of the consultant’s notes taken during her discussions with the CGAS physicians. Given the foregoing, as to Cancel (the only plaintiff to file a notice of appeal and hence the sole appellant in Case No. A12A1950), this issue is moot, and we therefore do not reach it.

6. Cancel’s final contention likewise is moot. He complains that the trial court denied the plaintiffs’ motion to compel documents from The Medical Center. Cancel does not specify which discovery request was denied, but describes generally in his appellate brief that “[plaintiffs sought to discover information related to the facts and/or information considered by the interview committee during the selection process utilized to rehire physicians after the termination of [The Medical Center]/CGAS contract.” Cancel argues that, contrary to the position taken by The Medical Center, neither the peer review privilege nor the medical review privilege provided any basis for withholding the requested documents.

In light of the foregoing, however, as to Cancel (the only plaintiff to file a notice of appeal and hence the sole appellant in Case No. A12A1950), this contention is moot and we therefore do not reach it.

Case No. A12A1951

The notice of cross-appeal that gave rise to Case No. A12A1951 was jointly filed by the individual defendants Sewell, Tarabadkar, and McDonald, as well as the corporate entity Nexus. In their joint brief, the parties enumerate as error the denial of their respective motions for summary judgment.

7. Sewell, Tarabadkar, and McDonald contend that the trial court erred by denying their motion for summary judgment, but we have no jurisdiction over the challenged ruling.

The case is not final, and the denial of Sewell’s, Tarabadkar’s, and McDonald’s motion for summary judgment is not directly appeal-able. These defendants had the right to file a joint cross-appeal from the November 10, 2011 order granting summary judgment against Cancel, once Cancel filed on December 8, 2011 a timely notice of appeal from that directly appealable judgment. But the order they seek to challenge — the denial of their motion for summary judgment — was not entered until December 13, 2011. “Clearly, the [December 13,2011] order was not prior to or contemporaneous with that directly appealable judgment. Judgments cannot be considered on appeal if rendered subsequent to the judgment appealed from” — here, the grant of summary judgment against Cancel. Indeed, to hold otherwise would permit a cross-appellant (the party often with no right to directly appeal) to challenge rulings entered during the 15 days after the filing of the appellant’s notice of appeal, whereas it is axiomatic that the appellant (the party with the right to a direct appeal) may not — despite the broad language of OCGA § 5-6-34 (d). We glean no legislative intent for granting favor in that manner to cross-appellants over appellants.

8. Nexus contends that the trial court erred in denying its motion for summary judgment, which order was entered on November 21, 2011. Nexus asserts that it (Nexus) was not in existence until months after the plaintiffs’ employment through CGAS terminated, when it (Nexus) was organized as a legally separate entity from CGAS.

Under the plaintiffs’ theory, the eventual formation of Nexus was a vital component of the other defendants’ alleged scheme to defraud the plaintiffs out of their contractual rights. And cross-appellants have aptly cited cases for the proposition that, under a successor-in-interest principal, the date of a corporate formation may not end, as a matter of law, all inquiry as to the corporation’s liability.

Notwithstanding, Nexus is correct that the plaintiffs failed to provide any basis for disregarding the legal separateness of it and CGAS. Although the plaintiffs recite language quoted above from the complaint alleging that Nexus is liable to them, the cases cited by plaintiffs fall short of supporting their contention that Nexus itself may be held liable as the alter-ego of any combination of the remaining defendants. Because no basis for liability was shown for Nexus, the trial court erred by denying Nexus’s motion for summary judgment.

Decided March 29, 2013

Reconsideration denied April 12, 2013

Eric E. Wyatt, George W. McGriff Nicholas G. Dumich, for Cancel.

Holland & Knight, Cynthia G. Burnside, Alfred B. Adams III, Heather A. Calhoun, for Sewell.

King & Spalding, W. Ray Persons, Richard L. Shackelford, Conley, Griggs & Partin, Ranse M. Partin, for Faulk.

Case No. A12A1952

The notice of cross-appeal that gave rise to Case No. A12A1952 was filed jointly by The Medical Center and its officers Faulk and Goolsby. Their joint notice of cross-appeal and their claims of error enumerated in their joint brief show that these parties challenge orders denying their respective motions for summary judgment, which orders were entered on December 13, 2011.

9. For reasons discussed above, because the notice of appeal that allowed for this cross-appeal was filed prior to December 13, 2011, challenges to those orders are not properly before this court. Consequently, this case is dismissed.

Judgment affirmed in Case No. A12A1950. Judgment reversed in part and appeal dismissed in part in Case No. A12A1951. Appeal dismissed in Case No. A12A1952.

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

       OCGA § 9-11-56 (c).

        Cowart v. Widener, 287 Ga. 622, 624 (1) (a) (697 SE2d 779) (2010) (citation and punctuation omitted); see Norton v. Budget Rent A Car System, 307 Ga. App. 501 (705 SE2d 305) (2010) (“We review the denial of summary judgment de novo, viewing the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party.”) (footnote omitted).

       See OCGA § 9-11-30 (b) (6) (concerning deposition of an organization).

       Although Valray Jean McDonald, as Executrix of the Estate of McDonald, has since been substituted for this defendant, we refer to that party herein as “McDonald.”

       31 USC § 3729 et seq.; see 31 USC § 3730 (h) (concerning relief from retaliatory actions).

       (Citing Ga. Const., Art. I, Sec. I, Par. V.)

       See Heidler v. State, 273 Ga. 54, 61 (9) (537 SE2d 44) (2000) (“A party cannot request a ruling from the trial court and then, on appeal, take the contrary position and complain that the ruling was error.”); Vincent v. State, 276 Ga. App. 415, 417 (3) (623 SE2d 255) (2005) (concluding that where counsel expressly abandoned issue at the hearing, the issue was not preserved for appellate review); Cooper Tire & Rubber Co. v. Merritt, 271 Ga. App. 16, 22 (1) (b) (608 SE2d 714) (2004) (where party expressly abandoned during trial a cause of action, that claim could not be “resurrected on appeal”). See generally Pfeiffer v. Ga. Dept. of Transp., 275 Ga. 827, 828 (2) (573 SE2d 389) (2002) (“Each party has a duty to present his best case on a motion for summary judgment. . . . [I]n responding to a motion for summary judgment, plaintiffs have a statutory duty to produce whatever viable theory of recovery they might have or run the risk of an adjudication on the merits of their case.”) (punctuation and footnotes omitted); Blakely & Son, Ltd. v. Humphreys, 148 Ga. App. 281, 283 (1) (250 SE2d 826) (1978) (“[Ojne cannot complain of a judgment that by his own agreement he has aided in causing.”).

       (“No law shall be passed to curtail or restrain the freedom of speech or of the press. Every person may speak, write, and publish sentiments on all subjects but shall be responsible for the abuse of that liberty.”).

       141 Ga. App. 605 (234 SE2d 165) (1997), overruled on other grounds, Donaldson v. Dept. of Transp., 262 Ga. 49, 53 (3) (414 SE2d 638) (1992).

       Id. at 610 (6) (emphasis supplied).

        Luong v. Tran, 280 Ga. App. 15, 18 (2) (633 SE2d 797) (2006) (punctuation and footnote omitted).

        Westmoreland v. State, 287 Ga. 688, 696 (10) (699 SE2d 13) (2010) (noting that appellant’s failure to provide record citations for purportedly pertinent evidence left appellate court without any information as to the content of such evidence), citing Luong, supra at 16 (1) (reiterating that factual assertions must be supported with citation to the record and that “it is not [appellate court’s] job to cull the record on behalf of a part/’).

       See generally St. Mary’s Hosp. of Athens v. Radiology Professional Corp., 205 Ga. App. 121, 125-126 (3) (a) (421 SE2d 731) (1992) (“State regulation of the hospital industry, even if extensive and detailed, does not give rise to the requisite connection. Nor is the fact that the administration of hospitals may be characterized as a business affected with a public interest sufficient to create the necessary nexus.”).

       See generally Spencer v. McCarley Moving & Storage Co., 174 Ga. App. 525, 528 (1) (330 SE2d 753) (1985) (explaining that determining whether a private citizen’s conduct may be attributable to the state invokes the inquiry: “whether there is a sufficiently close nexus between the state and the challenged action of the private entity so that the action of the latter may be fairly treated as that of the state itself”) (citation omitted).

       See id.

       See generally St. Mary’s Hosp. of Athens, supra at 126 (3) (a) (concluding that, where no state entity or official participated in the challenged action of termination of doctor’s staff privileges at the private hospital, and where the state regulations at issue did not compel plaintiff’s termination of staff privileges, the private hospital was entitled to summary judgment on that claim for lack of state action).

       891 F2d 864, 868 (II) (A) (11th Cir. 1990) (noting that, when those in charge of the affairs of a public hospital deal with staff, the dealings must conform to requirements and prohibitions of 14th Amendment, and thus when authorities of a public hospital, acting under color of law, deprive a person of a federally protected right, he may seek redress under Code Section 1983).

       784 F2d 277, 282 (III) (7th Cir. 1986) (finding that the conduct of a public hospital and its employees was clearly state action and the conduct of otherwise private entities that acted jointly with them was also state action).

        Harmon v. Innomed Technologies, 309 Ga. App. 265, 270 (1) (b) (709 SE2d 888) (2011) (punctuation and footnote omitted).

       Supra.

       Id. at 623 (1) (citations and punctuation omitted).

       604 F3d 490, 502 (II) (B) (7th Cir. 2010) (“In other words, constructive discharge also occurs where, based on an employer’s actions, the handwriting was on the wall and the axe was about to fall.”) (citation and punctuation omitted).

        Cowart, supra at 633 (3) (c) (citation omitted); see Shadburn v. Whitlow, 243 Ga. App. 555, 556 (533 SE2d 765) (2000) (an inference cannot be based upon evidence which is too uncertain or speculative or which raises merely a conjecture or possibility).

       Cancel cites Kodish, supra at 508-509 (II) (B) (concluding in a Free Speech case that constructive discharge was demonstrated, based on evidence of remarks made by the employee’s supervisor during a personnel meeting where supervisor advocated for employee’s termination and communicated that he did not like employee’s pro-union stance, where supervisor expressed in deposition anti-union animus, and where supervisor commented to a third-party employee who later spoke with plaintiff/employee; such evidence showed that “had [employee] not resigned he would have been terminated immediately’), and Neal v. Honeywell, Inc., 191 F3d 827, 829-831 (7th Cir. 1999) (concluding in a False Claims Act case that a jury could find that the applicable test — whether a reasonable employee would have found her working conditions so inappropriate to her skill level that they made remaining in the job unbearable • — • was met, where whistle-blowing employee’s immediate supervisor harangued employee for reporting the company’s fraud then took away most of her responsibility until less than a quarter of her duties remained, and where a company manager who had been transferred out of state after the fraud revelations began a campaign of intimidation against whoever had alerted his superiors, made plenty of threats, and related to all who would listen his plans to “get” the snitch, describing the whistleblower as “dead meat,” and announcing his intention to “break his legs,” and where company did nothing in response to manager’s public threats).

       See generally Johnson v. Gen. Motors Corp., 144 Ga. App. 305, 306 (1) (241 SE2d 30) (1977) (granting summary judgment to employer in action for wrongful discharge where plaintiffs admitted that they had resigned; “[e]ven if it were shown that they resigned under pressure at their employer’s request, that did not amount to discharge”); Wilkinson v. Trust Co. of Ga. Assoc., 128 Ga. App. 473, 474 (2) (197 SE2d 146) (1973) (holding that, where employee was asked by employer to take a two months’ leave of absence with pay in order to “think about his employment situation” and at the end of that period, employee submitted his resignation, “[e] ven if it is shown that the [employee] resigned under pressure at his employer’s request, this did not amount to a discharge”).

       Supra.

       While the remaining three plaintiffs could have sought review of rulings adversely affecting them, they elected not to file any notice of cross-appeal. See generally Centennial Ins. Co. v. Sandner, 259 Ga. 317-318 (1) (380 SE2d 704) (1989) (holding that an appellee may institute a cross-appeal against a party other than an appellant); Executive Jet Sales v. Jet America, 242 Ga. 307 (248 SE2d 676) (1978) (holding that where trial court granted one co-defendant’s motion to dismiss, but denied the other co-defendant’s motion to dismiss, and where plaintiff thereafter appealed the dismissal against the prevailing co-defendant, the other co-defendant was entitled to cross-appeal from the denial of its motion to dismiss).

       See OCGA §§ 5-6-34 (d) (providing that appellate court is not required “to pass upon questions which are rendered moot”); 5-6-48 (b) (3) (providing that consideration of any enumerated error may be refused where the question presented has become moot).

       Divisions 1 through 3, supra.

       See OCGA §§ 5-6-34 (d) (providing that appellate court is not required “to pass upon questions which are rendered moot”); 5-6-48 (b) (3) (providing that consideration of any enumerated error may be refused where the question presented has become moot).

       See OCGA § 31-7-133 (concerning confidentiality of review organization’s records).

       See OCGA § 31-7-143 (concerning committee proceedings and records immune from discovery or use as evidence in civil actions).

       See Divisions 1 through 3, supra.

       See OCGA §§ 5-6-34 (d) (providing that appellate court is not required “to pass upon questions which are rendered moot”); 5-6-48 (b) (3) (providing that consideration of any enumerated error may be refused where the question presented has become moot).

       See OCGA § 5-6-44 (a) (providing for joint appeals).

       See OCGA § 5-6-44 (b) (allowing, but not requiring, parties in joint appeals to file separate enumerations of error); Court of Appeals Rule 22 (a) (providing that “the enumeration of errors . .. shall be [p]art... of the appellant’s brief” and that “[a] separate enumeration of errors is not required”).

       OCGA § 9-11-56 (h) (pertinently providing: “An order denying summary judgment shall be subject to review by direct appeal in accordance with subsection (b) of Code Section 5-6-34.”).

       OCGA § 9-11-56 (h) (pertinently providing: “An order granting summary judgment on any issue or as to any party shall be subject to review by appeal”).

        Patel v. State of Ga., 289 Ga. 479, 487 (5), n. 14 (713 SE2d 381) (2011) (citations and punctuation omitted).

       OCGA § 5-6-34 (d) provides:
      Where an appeal is taken under any provision of subsection (a), (b), or (c) of this Code section, adjudgments, rulings, or orders renderedin the case which are raised on appeal and which may affect the proceedings below shall be reviewed and determined by the appellate court, without regard to the appealability of the judgment, ruling, or order standing alone and without regard to whether the judgment, ruling, or order appealed from was final or was appealable by some other express provision of law contained in this Code section, or elsewhere. . . .

      (Emphasis supplied.) See, however, Southeast Ceramics v. Klem, 246 Ga. 294, 295 (1) (271 SE2d 199) (1980) (in direct appeal from final judgment a party may enumerate as error prior or contemporaneous rulings); Cates v. Cates, 225 Ga. 612 (2) (170 SE2d 416) (1969) (appellant’s challenge to ruling could not be considered on review where order had been entered after filing of notice of appeal).

       See Pet Care Professional Center v. BellSouth Advertising & Publishing Corp., 219 Ga. App. 117, 118-119 (1) (464 SE2d 249) (1995) (holding that “complete identity’ of ownership is not required if a corporation is to be deemed a successor-in-interest to a predecessor entity); Ney-Copeland & Assocs. v. Tag Poly Bags, 154 Ga. App. 256 (267 SE2d 862) (1980) (concluding that, by reasons of an identity of name, objects, assets, and stockholders, that a subsequently formed corporation was successor-in-interest of a partnership, such that upon its formation, the corporation assumed and was liable for all the debts and obligations of the prior partnership).

       See Pet Care Professional Center, supra; Ney-Copeland & Assocs., supra.

       See Division 7, supra.