author: Barnes, Presiding Judge. Blackwell, Judge,

text:
    A11A0321.
    JONES, MARTIN, PARRIS & TESSENER LAW OFFICES, PLLC v. WESTREX CORPORATION.
    (712 SE2d 603)
   Barnes, Presiding Judge.

This case involves the value of a discharged law firm’s attorney fee lien and the proper procedures and evidence for determining that value. Martin & Jones had a contingency fee contract which provided it was entitled to a “reasonable fee for the work performed up to that time” if the client dismissed it before the case ended. The client dismissed Martin & Jones, which filed an attorney fee lien in the underlying case. After six months, the case settled for $2.5 million, and the new firm moved to discharge the lien. The fee lien was tried before a jury, which awarded Martin & Jones $20,750 in fees. Martin & Jones appeals, and for the reasons that follow, we affirm the judgment entered on the verdict.

Martin & Jones enumerates six errors on appeal, contending that the trial court erred in (1) denying its motion to intervene in the underlying suit as a party, (2) ordering it to trial on the attorney fee lien on less than 24 hours notice, (3) concluding as a matter of law that the firm was required to present evidence of hours and rates to establish the value of its services, (4) “excluding evidence of work performed and results accomplished,” and (5) failing to charge the jury on quantum meruit. It also argues that (6) the evidence did not support the judgment.

1. Martin & Jones contends the trial court erred in denying its motion to intervene as a party in the underlying suit and in requiring it to proceed to trial on the issue of reasonable fees when it did. It asserts that it had a right to intervene because it had an interest in the settlement proceeds, and that its rights were impaired because, as a non-party, it was unable to conduct discovery. It also argues that it was harmed by the denial of the motion because neither the former client — Westrex Corporation — nor the opposing party — the City of Atlanta — had an interest in establishing Martin & Jones’s attorney fee claim.

The attorney lien statute, OCGA § 15-19-14 (b),

confers upon an attorney at law the right to impose a lien upon actions, judgments, and decrees for money, and prevents the satisfaction of such an action, judgment, or decree until the claim of the attorney for his fees is fully satisfied. The lien arises upon the institution of the suit; it is fixed as soon as the suit is filed and may not be divested by any settlement or contract, it matters not by whom the settlement may have been made or attempted. After suit has been filed it can not be settled so as to defeat the lien of the attorney for his fees.

(Citations, punctuation and footnote omitted.) Howe & Assocs., P.C. v. Daniels, 280 Ga. 803, 804 (631 SE2d 356) (2006), aff'g 274 Ga. App. 312 (618 SE2d 42) (2005). Under OCGA § 9-11-24 (a) (2), a party may intervene as a matter of right if it has “an interest relating to the property or transaction which is the subject matter of the action” and is “so situated that the disposition of the action may as a practical matter impair or impede [its] ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.” However,

[ijntervention must be timely, whether asserted as a right or as a matter of discretion. . . . The decision whether application for intervention is timely and the showing sufficient are matters within the sound discretion of the trial court. The most important factor is whether intervention will prejudice existing parties in the case.

(Citations omitted.) Sta-Power Indus. v. Avant, 134 Ga. App. 952, 958 (3) (216 SE2d 897) (1975).

We find no abuse of discretion in the trial court’s denial of the motion to intervene. Sta-Power Indus., 134 Ga. App. at 958 (3). Martin & Jones was discharged from the case on October 28, 2009 and filed its lien on November 18, 2009. The firm knew before May 3, 2010 that its former client Westrex and the City had reached a settlement agreement, but did not move to intervene as a party until June 30, 2010. Martin & Jones was allowed to prosecute its fee lien to the jury as a party, making opening statements, calling witnesses, introducing evidence, and arguing in closing. The only additional benefit Martin & Jones could have obtained as an intervener was the ability to conduct discovery as a party. Granting the motion and reopening discovery, as discussed further in Division 2, would have prejudiced the existing parties — Westrex and the City — who were only days from being able to exchange the settlement check for a final release, but whose case could not be fully resolved until the lien was discharged. Accordingly, we find no abuse of discretion in the trial court’s denial of the motion to intervene.

2. Martin & Jones also asserts the trial court erred in denying its motion for continuance and ordering it “to trial on less than 24 hours notice,” arguing it was denied adequate notice of trial or the opportunity to conduct discovery. “[T]he time for conducting discovery rests in the sound discretion of the trial court,. . . [which] has wide discretion to shorten, extend, or reopen the time for discovery, and its decision will not be reversed unless a clear abuse of that discretion is shown.” (Citations and punctuation omitted.) Lawrence v. Direct Mtg. Lenders Corp., 254 Ga. App. 672, 673 (1) (563 SE2d 533) (2002). Further, “trial courts have discretion to set their trial calendars and manage the call of cases for trial!,] . . . limited by the due process requirement. . . that notice be reasonable . . . under the totality of the circumstances.” Thornton v. Nat. American Ins. Co., 269 Ga. 518, 518-519 (1) (499 SE2d 894) (1998). Our Supreme Court in Thornton held that, as a general rule, trial courts should provide at least two business hours notice to parties on a trial calendar that the case was being called for trial. Id. at 519 (3).

The record indicates that the firm had notice that the underlying case was included on trial calendars in February and April 2010, and was continued to the July 2010 trial calendar after Westrex announced the settlement in open court. Martin & Jones received Westrex’s May 28, 2010, motion to discharge the fee lien promptly so the case could be settled, and received the company’s “Notice of Hearing” asking that the motion be heard on July 6, 2010.

The trial court sent Westrex and the City notice that their case was set for a calendar call on July 6, 2010 to determine the schedule for the court’s July 2010 civil trial calendar, and ordered the recipients “to ensure that all Parties and Counsel have adequate notice of the Calendar.” Counsel for Westrex had informed Martin & Jones of its intention to announce ready for trial at the July 6, 2010, calendar call and offered it the opportunity to inspect and copy all of Westrex’s files related to this litigation. Westrex had also offered to permit the deposition of its president and both of the attorneys from the new firm, but Martin & Jones made no effort to conduct any discovery.

Finally, the firm argues that by being put on trial so quickly, it was denied the opportunity to develop and present expert testimony regarding the value of its services. However, both the managing partner of the parent firm and the Atlanta partner of Martin & Jones were present and testified at trial. Based on their testimony, either lawyer could have testified as an expert about the value of the firm’s services.

The trial court did not err in denying Martin & Jones’s motion for a continuance. The firm received more than two business hours of notice. While the firm argues that the lien was not published on a trial calendar, the underlying case was. Martin & Jones had known for two months that the case had been settled and that the lien was the only issue remaining. As the trial court noted before the trial began, the firm had made its own determination of the lien’s value. In its final judgment, the trial court found that by July 6, 2010, Martin & Jones had “virtually all of the relevant facts” regarding the value of the work it had performed before its discharge, which was the issue presented at trial for the jury to resolve. Notice was adequate and reasonable considering the totality of the circumstances, and the trial court did not abuse its discretion in requiring Martin & Jones to present its lien claim during the trial calendar on which the underlying case was set.

3. In related enumerations of error, Martin & Jones argues that the trial court erred in concluding as a matter of law that establishing the value of the firm’s services required presentation of hours and rates, in excluding evidence of the “results obtained,” the value of the case, or the amount of the settlement, and in declining to give its requested charge on quantum meruit. In essence, Martin & Jones asserts that the jury should have been allowed to determine the amount of its reasonable fee for work performed before its discharge in light of the new firm’s $2.5 million settlement, rather than a reasonable fee based upon an hourly rate multiplied by the number of hours spent on the case.

All parties agreed that Martin & Jones was not entitled to a contingency fee, because it was discharged before the contingency occurred. All parties also agreed that the firm was entitled to a reasonable fee for the work it performed before discharge. The dispute is about the evidence a jury should be able to consider when evaluating the amount of the fee. “Questions of relevancy of evidence, which includes the issue of materiality, are for the court, and in the absence of an abuse of judicial discretion, this court will not interfere.” (Citation omitted.) Kilpatrick v. Foster, 185 Ga. App. 453, 457 (4) (364 SE2d 588) (1988).

(a) The trial court in this case held that the “reasonable fee for the work performed” was determined by the value of the discharged attorney’s services to the client, and excluded evidence of the amount of the $2.5 million settlement, the amount of damages estimated by Westrex’s owner or expert witnesses, and the amount of the verdicts and settlements Martin & Jones had obtained in similar cases. The court did not require Martin & Jones to present evidence of the number of hours it spent on the case or of its hourly rate, and the firm did not do so. In fact, its partners testified that they did not keep track of their hours. Rather, the court held consistently that the value to Westrex of the work Martin & Jones performed up to the time it was discharged was not affected by events that occurred after the discharge.

Martin & Jones argues that the trial court erred in prohibiting it from presenting evidence of the “results obtained” — that is, the successor firm’s final $2.5 million settlement — as a factor in determining its fee, citing Ellerin & Assoc. v. Brawley, 263 Ga. App. 860, 861-862 (1) (589 SE2d 626) (2003); Yetman v. Greer, Klosik & Daugherty, 225 Ga. App. 397, 399 (1) (483 SE2d 878) (1997), aff'd, Greer, Klosik & Daugherty v. Yetman, 269 Ga. 271 (496 SE2d 693) (1998); Brookhauen Supply Co. v. Rary, 131 Ga. App. 310, 311 (2) (205 SE2d 885) (1974). The contingency fee contracts in those cases differed from the contract in this case, however, as they included no provision for the payment of attorney fees if the client discharged the firm before the contingency occurred. Thus, the discharged attorney fees could not be calculated under the terminated contract, but only under the equitable provisions of quantum meruit. In this case, the contract specified that the firm was entitled to reasonable fees for work performed up to the date of discharge, and we find no abuse of discretion in the trial court’s exclusion of evidence about the amount of the final settlement in Westrex’s case against the City.

The trial court also did not err in excluding evidence about Westrex’s ante litem notice for $1.5 million in damages, its experts’ estimate of the damages, verdicts and settlements in other cases, and “discussions of the value of the case from the perspective of M&J and Westrex.” While one of eight factors listed by the Georgia Rules of Professional Conduct to be considered in determining whether a fee is reasonable is “the amount involved and the results obtained,” Rule 1.5 (a) (4) of Bar Rule 4-102 (d), in this case, the trial court did not abuse its discretion in excluding evidence of the perceived value of the claim before Martin & Jones was discharged. As the trial court noted, this claim was for breach of contract damages, not for the quantum meruit value of an unrealized contingent fee. Thus, the court concluded, neither the size of the claim nor the outcome of the case were relevant because the reasonable fee for the contract work performed did not vary with the value of the case.

Accordingly, the court admitted only evidence of the results Martin & Jones obtained before it was discharged. Martin & Jones’s partners testified at length about the firm’s expertise in these cases and the process by which it developed that expertise. The Atlanta partner testified that, although the City routinely stonewalled property owners who claimed water damages, it responded promptly to claims presented by the firm because of its reputation and ability. He also described the work he had done on the case before the discharge and noted that he did not keep track of his hours.

Considering the record as a whole, including the procedural history of the case, we cannot say the trial court abused its discretion in excluding evidence of how much the client or its experts thought the claim was worth or the amount of Westrex’s settlement with the City.

(b) We find no error in the trial court’s charges to the jury.

A request to charge must embody a correct, applicable and complete statement of law, legal and perfect in form and adjusted to the pleadings and evidence; it must not be argumentative or seek an expression of opinion on the part of the court; and it must not be so phrased as to have tendency to confuse and mislead the jury or to becloud the issues in the case.

Bakery Svcs. v. Thornton Chevrolet, 224 Ga. App. 31, 33 (3) (479 SE2d 363) (1996).

Martin & Jones’s request to charge number 2 provided: “The discharge of the attorney by the client does not defeat the attorney’s right to be paid; the right to receive compensation comes, not under the contract of employment which is at an end, but under quantum meruit which is protected by the attorney[ ] lien statute.” This charge is not adjusted to the evidence. Martin & Jones’s right to receive compensation came from its employment contract, not from the equitable provisions of quantum meruit, and thus the trial court did not err in refusing to give this request.

Martin & Jones also argues that the trial court erred in refusing to give another of its quantum meruit charges, the charge is only described during the charge conference as plaintiffs request to charge “number 3,” and Martin & Jones has not described the charge or cited to its location in the record. Without knowing the precise charge requested, we cannot review the trial court’s denial of that request. See Sanders v. Bowen, 196 Ga. App. 644, 646 (3) (396 SE2d 908) (1990).

Finally, while Martin & Jones argues that the trial court’s charge regarding factors considered to determine the reasonable value of a fee was incomplete, absent a written request to charge or plain error, we will not reverse for failure to give an instruction. Colbert v. State, 263 Ga. App. 193, 194 (2) (587 SE2d 300) (2003). “ ‘Plain error’ is that which is so clearly erroneous as to result in a likelihood of a grave miscarriage of justice or which seriously affects the fairness, integrity or public reputation of a judicial proceeding.” (Citation and punctuation omitted.) Drug Emporium v. Peaks, 227 Ga. App. 121, 125 (2) (a) (488 SE2d 500) (1997). This is not such a case. We note that the trial court charged the jury that factors to consider in determining the fee included the time and labor required, the novelty and difficulty of the issues, the skill required, and the experience, reputation, and ability of the lawyers.

4. Finally, the firm contends the evidence does not support the judgment and thus the trial court erred in denying its motion for new trial. We do not agree. In the presentation of its case, Martin & Jones called as witnesses the attorney who represented the City in West-rex’s lawsuit, the firm’s managing partner from its Raleigh office, and the firm’s remaining Atlanta partner. The City’s attorney testified that he had worked on many flood and sewer back-up cases with Martin & Jones, whose lawyers had taken the depositions of many city employees in related cases, and that this complaint was substantially similar to all the firm’s complaints. In this case, as in others, the City agreed to stipulate to the authenticity of documents to avoid having to coordinate the appearance of City employees who would merely testify that a document was a document, although it did not stipulate that the documents were admissible. The stipulation was not complex and took less than half an hour to prepare.

Eventually, the City’s attorney testified, he discovered that the City had paid an insurance subrogation claim related to this incident and decided to admit liability, but that decision resulted from a review of City documents, not from any actions by Martin & Jones. The City’s attorney also discussed the length of time he spent on the generally routine written discovery requests and responses in this case. He testified that Martin & Jones filed numerous deposition notices for City employees, all related to the issue of liability and all of whom had been deposed before, but deposed only one witness before it was discharged, an environmental specialist with the Georgia Department of Natural Resources, Environmental Protection Division, who had never been deposed before. The City had conducted no settlement negotiations or damages review with Martin & Jones before its termination.

The firm’s managing partner testified about his diverse contingent fee practice and explained that he had opened the Atlanta office because the two lawyers there had been local counsel in so many water damage cases against the City. He never kept account of the hours spent on his cases and had no default hourly rate, although he had previously obtained hourly fees of $435 and $475 for two successful class actions. He had not participated in the Westrex litigation, but knew that Martin & Jones had spent thousands of hours developing forms for these nuisance cases against the City but had never been completely compensated for all of its previous work. Finally, the partner testified that no other firm could match his firm’s expertise in these matters.

Finally, Martin & Jones’s Atlanta partner testified that while working on a previous case, discovery obtained from the City led him to direct the firm’s paralegal to contact Westrex’s owner in March 2007 and send him information about the firm. Westrex contacted the firm about a year later and signed a fee contract with Martin & Jones on February 18, 2009. The firm filed a complaint the next day, February 19, 2009, with interrogatories and requests for production, then after the City failed to respond to the discovery within 45 days the firm pressed for and finally obtained 800 pages of documents, which it reviewed to identify potential witnesses. The partner sent multiple deposition notices, discussed with the City the possibility of using depositions from previous nuisance cases, met with the client, talked to experts about evaluating damages, and researched evidence about the sewer system that had been developed as a result of a federal case, including closed circuit video camera recordings of the interior of the sewer lines. He also obtained a stipulation from the City about document authenticity.

The partner testified that he had no family, worked thirteen to fifteen hours a day, never took more than two or three days off at a time, and had been handling twenty to twenty-five flood or sewer damage cases during the time Martin & Jones represented Westrex, from February 2009 to November 2009. He had handled flood and sewer litigation exclusively since 2003 and had developed the procedures and documents it used over and over in these kinds of cases. He admitted that the City had not stipulated liability before the firm was discharged. Finally, he explained that the firm was not seeking a contingency fee, but was seeking a “reasonable fee” for the work it performed before it was terminated, as provided in paragraph six of its fee contract with Westrex.

In its closing, Martin & Jones argued that the jury should consider two issues in determining the reasonable value of its work: the case-specific work it performed for Westrex, and all of its earlier work that gave the firm its extensive expertise and allowed it to work efficiently on Westrex’s case. It gave examples of how to calculate the value of these fees: if it had worked on the case for fifteen hours a day for nine months, or 540 hours, at a rate of $475 per hour, it would be entitled to $256,500 in fees; or if the jury considered even half of the 6,400 hours Martin & Jones had spent developing its expertise from October 2005 to January 2009, at $250 per hour, its fee would be $800,000.

Westrex called no witnesses and introduced no evidence, but argued that Martin & Jones’s own evidence presented at the trial showed it had performed 90 to 180 hours of work on this case, and suggested that a fee of 100 hours times $200 per hour was a reasonable fee under the contract. After deliberating, the jury found that the reasonable fee for the work Martin & Jones performed for Westrex before it was discharged was $20,750.

Having reviewed the record in its entirety, we find no merit in this enumeration that the evidence presented at trial did not support the verdict.

Judgment affirmed.

Adams, J., concurs. Blackwell, J., concurs fully and specially.

Blackwell, Judge,

concurring fully and specially.

I join the opinion of the Court in full, including Division 3 (a), in which we conclude that the court below did not abuse its discretion when it excluded certain evidence relating to the amount involved in the underlying litigation between Westrex and the City. I do not understand Division 3 (a) to endorse the idea that the amount involved in a case never is relevant in assessing the reasonableness of a fee for the work done by a lawyer in the case, and I would be reluctant to join it if it did. I write separately to explain my views of the relevance of the amount involved and to explain more fully why I think the trial court here did not abuse its discretion when it excluded evidence of the amount involved.

Imagine two lawsuits, in both of which the same theory of liability is asserted and the same method of calculating damages applies, but the amount of damages varies substantially from one to the other. The lawyer and client in one case genuinely and reasonably believe that the client ought to recover $500 in damages, and the lawyer and client in the second genuinely and reasonably believe that the client ought to recover $500 million in damages. A fee of $50,000 for preparing and filing the initial pleadings, preparing and serving written discovery requests, preparing and serving written responses to discovery requests, identifying and consulting with a potential expert witness, and conducting a deposition almost certainly would be, it seems to me, unreasonable in the $500 case, but it might be a real bargain for the client in the $500 million lawsuit. This is so because one reasonably might expect, I think, that the lawyer in the $500 million case would work longer and think harder about his case, even if he ultimately performs the same kinds of tasks and produces the same kinds of work product as the lawyer in the $500 case. And this is the very reason why, I think, the Rules of Professional Conduct provide that the “amount involved,” among many other considerations, may be relevant to the reasonableness of the fee. See Rule 1.5 (a) (4) of the Georgia Rules of Professional Conduct, found in Bar Rule 4-102 (d). I do not mean to suggest that a more significant fee always is warranted in a case with more at stake. My point is a small one: the stakes in a case are a factor that sometimes properly may be considered in assessing the reasonableness of the fee.

Nevertheless, I agree with the majority that the exclusion in this case of evidence concerning the amount involved is no reason to reverse the judgment below. In my view, the amount involved in a case is relevant to the reasonableness of a fee for work done in the case when there is some reason to think that the lawyer treated the case differently — that he worked longer on it, that he thought harder about it, or that he did something else different than in other similar cases — because the lawyer and client thought it was worth more. But here, the firm presented no evidence that it treated this case any differently because it thought the case was worth more. To the contrary, it appears that the firm lawyer primarily responsible for the Westrex case had devoted nearly all his time in the past six years to sewer and flood cases. By handling these cases over a long period of time, the firm developed expertise and forms that allowed it to handle similar cases, like this one, in a more efficient manner. For instance, the firm was able to file a complaint in this case the day after Westrex retained the firm, and other documents prepared by the firm on behalf of Westrex, such as discovery requests and responses, were substantially similar to the documents the firm had used in other cases it had litigated against the City. Nothing about the firm’s representation of Westrex suggests that the amount involved in this case caused the firm to do anything more in this case than it did in the other sewer and flood cases that it handled.

While I do not doubt that the firm was required to invest years to develop forms that it could use, as it admitted, “over and over[,]” and I do not doubt that the firm ought to be able to profit from its investment, the court below did not prohibit the jury from rewarding the firm for the time that it took to develop these forms. The jury heard evidence, for instance, of the firm’s experience and success in handling other sewer and flooding cases and was able to consider the extent to which such matters affected the reasonableness of its fee. But because the firm failed to show that its perception of the value of this case had any effect on the work it performed for Westrex, I agree that the trial court did not abuse its discretion when it excluded evidence of the amount involved. See Johnson v. Leibel, 307 Ga. App. 32, 43 (6) (703 SE2d 702) (2010).

Decided June 21, 2011.

Womble, Carlyle, Sandridge & Rice, Adam S. Katz, Jennifer S. Collins, George W. Long III, for appellant.

L. Matt Wilson, Clinton W. Sitton, Richard Kopelman, for appellee.

       The firm’s name is Jones, Martin, Parris & Tessener Law Offices, PLLC, and its Atlanta office is known as Martin & Jones. For ease of reference, we will refer to the firm as Martin & Jones.

       While Martin & Jones asserts that litigation and discovery on the lien “would not have been ripe until after the settlement was reached and approved by the city council and the funds disbursed, none of those events were relevant to a determination of the “reasonable value” of the firm’s work, as discussed in Division 3.

       There were other reasons to exclude some of the evidence that the firm sought to introduce at trial. Some are identified in the majority opinion. In addition, with respect to the amount of the final settlement between Westrex and the City, I note that the firm was discharged long before the settlement was negotiated, and the amount of the final settlement is not probative, therefore, of the amount that the firm and Westrex genuinely and reasonably believed the case to be worth at the time the firm was representing Westrex. And with respect to the amount of the demand set forth in the ante litem notice that the firm prepared and served for Westrex, if the notice were offered as proof of the amount that the firm genuinely believed to be at stake, the notice would be hearsay offered for the truth of the matter asserted therein and would not, therefore, be competent evidence. Aon Risk Svcs., Inc. of Ga. v. Commercial &c. Inc., 270 Ga. App. 510, 511-512 (1) (607 SE2d 157) (2004).


source: Caselaw Access Project

author: Barnes, Presiding Judge.

license: Public Domain

text:
    A11A0386.
    GEORGIA NEUROLOGY & REHABILITATION, P.C. et al. v. HILLER.
    (712 SE2d 611)
   Barnes, Presiding Judge.

The plaintiffs in this case are Dr. Carl Shenkman and corporate entities owned solely by him. The defendant, Ms. Maria Hiller, was formerly married to Shenkman and worked for his medical practice. The plaintiffs sued Hiller to recover funds allegedly stolen by her in 2006 and 2007 through the use of forgeries and other fraudulent conduct. Hiller subsequently moved for summary judgment on the ground that the plaintiffs’ claims were barred by collateral estoppel, judicial estoppel, and res judicata. The trial court granted summary judgment to Hiller, concluding that the plaintiffs were collaterally estopped from asserting their claims because issues relating to the allegedly stolen funds were previously litigated in a post-divorce contempt action brought by Hiller against Shenkman. For the reasons discussed below, we affirm the trial court’s grant of summary judgment to Hiller on the plaintiffs’ claims pertaining to funds allegedly stolen in 2007. However, because the plaintiffs’ claims pertaining to funds allegedly stolen in 2006 were not actually litigated and determined in the prior contempt action, and given that the record on appeal is incomplete with regard to those claims, we vacate the grant of summary judgment to Hiller on the plaintiffs’ claims predicated upon the 2006 funds and remand for further consideration in light of this opinion.

Summary judgment is appropriate where “there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.” OCGA § 9-11-56 (c). “A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.” (Citation omitted.) Salahat v. Fed. Deposit Ins. Corp., 298 Ga. App. 624, 625 (680 SE2d 638) (2009).

So viewed, the record shows that Shenkman and Hiller were married and had one child together. During their marriage, Hiller was employed in a marketing position at Shenkman’s medical practice, Coastal Neurological.

In May 2007, Hiller filed for a divorce from Shenkman. That same month, Shenkman submitted a civilian warrant affidavit to a magistrate in which he alleged that Hiller had stolen funds from his personal and corporate banking accounts by committing acts of forgery and financial transaction card fraud. Hiller was charged with four counts of forgery in the first degree and ten counts of financial transaction card fraud, but, in August 2007, the assistant district attorney assigned to the case dismissed the charges at the request of Shenkman. The dismissal form that was filed by the assistant district attorney stated: “The State declines to prosecute. Defendant has paid full restitution, and the victim has requested dismissal of the charges.” However, according to Shenkman, Hiller never in fact paid full restitution to him or his corporations despite her promise to do so in return for his decision to request dismissal of the criminal charges.

Thereafter, Shenkman and Hiller’s divorce was finalized in a judgment and decree entered on December 4, 2007, nunc pro tunc to August 7, 2007. The decree incorporated a settlement agreement entered by the parties that addressed issues of child support, property division, alimony, and debt allocation.

After the completion of the divorce case, Hiller filed a contempt action against Shenkman, claiming that he had not paid alimony, child support, and other financial obligations required under the settlement agreement incorporated into the final judgment and decree. At the contempt hearing, Shenkman maintained that Hiller had agreed to pay him restitution for the dismissal of the criminal charges against her and sought a set off for the monies that Hiller allegedly had stolen from him and his corporations. The trial court agreed to consider evidence regarding whether Hiller had stolen the funds and ruled that any amounts that Shenkman could prove were stolen would be set off against the amount he owed under the divorce settlement agreement. See, e.g., Fuller v. Fuller, 279 Ga. 805, 807 (2) (621 SE2d 419) (2005) (trial court in post-divorce contempt action was authorized to set off funds converted by former spouse). Shenk-man responded that he had evidence of funds stolen by Hiller in 2006 and 2007, but the trial court ruled that it would only consider evidence of funds allegedly stolen in 2007, the year that Shenkman’s payment obligations under the divorce settlement agreement commenced which he was attempting to reduce by way of set off.

Following the trial court’s ruling, Hiller took the stand and testified regarding the issue of the allegedly stolen funds. After hearing Hiller’s testimony, the trial court ruled from the bench that Shenkman had failed to show that Hiller stole any money in 2007 and thus would not be entitled to a set off. The trial court subsequently entered an order holding Shenkman in contempt and requiring him to pay certain alimony, child support, and other financial obligations owed under the divorce settlement agreement. Consistent with the trial court’s oral findings at the contempt hearing, the contempt order did not reflect any set off for the funds allegedly stolen by Hiller in 2007.

A few months after entry of the contempt order, Shenkman and his corporations commenced the instant action against Hiller, alleging that she stole funds from them in 2006 and 2007 and asserting claims for conversion, breach of fiduciary duty, fraud, an accounting, and punitive damages. Hiller answered and moved for summary judgment on the ground that all of the plaintiffs’ claims were precluded by collateral estoppel, judicial estoppel, and res judicata. The trial court granted the motion, reasoning that the plaintiffs were collaterally estopped from asserting their claims because the issue of whether Hiller had stolen the funds was previously litigated in the post-divorce contempt action as part of Shenkman’s request for a set off. The plaintiffs now appeal from the trial court’s summary judgment order.

1. The plaintiffs contend that the trial court erred in granting summary judgment to Hiller based upon the doctrine of collateral estoppel. “Collateral estoppel applies where an issue of fact or law is actually litigated and determined by a valid judgment, and the determination is essential to the judgment. That determination is then conclusive in a subsequent action between the same parties [or their privies].” (Punctuation and footnote omitted.) Dickerson v. Dickerson, 247 Ga. App. 812, 813 (1) (545 SE2d 378) (2001). See In re T. M. G., 275 Ga. 543, 544 (570 SE2d 327) (2002). The doctrine “does not require precise identity of the claim — so long as an issue was determined in the previous action and there is identity of the parties or their privies, that issue may not be re-litigated, even as part of a different claim.” (Footnote omitted.) In re T. M. G., 275 Ga. at 544. Nevertheless, “[f]or collateral estoppel to apply, a party must have had [a] full opportunity to litigate the issue in question during the prior action. Collateral estoppel will not bar consideration of an issue that has not actually been decided.” (Citations and punctuation omitted.) Toporek v. Zepp, 224 Ga. App. 26, 28 (1) (479 SE2d 759) (1996).

The parties do not dispute that Shenkman and his corporations were in privity with one another, and so application of the collateral estoppel doctrine turns on what issues were actually litigated and determined in the prior contempt action between Shenkman and Hiller. As previously noted, the trial court in the contempt action allowed Shenkman to introduce evidence that Hiller stole funds from his personal and corporate accounts in 2007 for purposes of establishing the right to a set off, and after hearing the evidence on that issue, the trial court ruled from the bench that no set off would be permitted. The trial court thereafter entered a final order holding Shenkman in contempt that reflected no set off for the funds allegedly stolen in 2007. Accordingly, the record makes plain that the issue of whether Hiller stole funds in 2007 was actually litigated and determined in the prior contempt action and was reduced to a final judgment; the plaintiffs thus were collaterally estopped from asserting claims pertaining to those allegedly stolen funds in the present case.

Significantly, however, the trial court in the prior contempt action did not permit Shenkman to introduce evidence that Hiller stole funds from his personal and corporate accounts in 2006 for purposes of establishing the right to a set off, given that his obligations to her that were at issue in the contempt action did not arise until the parties’ divorce in 2007. Consequently, Shenkman did not litigate the issue of whether Hiller stole funds in 2006, and the trial court in the contempt action never decided that issue in considering whether a set off was appropriate. It follows that the plaintiffs were not collaterally estopped from asserting claims pertaining to funds allegedly stolen in 2006 in the present case, and the trial court erred in holding otherwise in its grant of summary judgment to Hiller.

2. The trial court’s order addressed only whether the plaintiffs’ claims were barred by collateral estoppel. Nevertheless, “[a] grant of summary judgment must be affirmed if right for any reason, whether stated or unstated. It is the grant itself that is to be reviewed for error, and not the analysis employed.” (Citation and punctuation omitted.) Gilbert v. City of Jackson, 287 Ga. App. 326, 327 (1) (651 SE2d 461) (2007). Although not addressed by the trial court, Hiller argued in her motion for summary judgment that the plaintiffs’ claims also were precluded under the doctrines of judicial estoppel and res judicata. Therefore, we turn to whether the plaintiffs’ claims pertaining to funds allegedly stolen in 2006 were precluded on these alternative grounds.

(a) Hiller argued that judicial estoppel applied in this case because in the prior criminal case brought against her, the State dismissed the charges at Shenkman’s request after he purportedly told the State that Hiller had already paid full restitution to him. The doctrine of judicial estoppel “precludes a party from asserting a position in a judicial proceeding which is inconsistent with a position previously successfully asserted by it in a prior proceeding.” Southmark Corp. v. Trotter, Smith & Jacobs, 212 Ga. App. 454, 455 (442 SE2d 265) (1994).

Application of the doctrine to a particular case depends on three factors: (1) the party’s later position must be clearly inconsistent with his earlier one; (2) the party must have persuaded a court to accept his earlier inconsistent position; and (3) the party must derive an unfair advantage or impose an unfair detriment on his opponent if not estopped.

Battle v. Liberty Mut. Fire Ins. Co., 276 Ga. App. 434, 435 (623 SE2d 541) (2005).

In light of these factors, judicial estoppel clearly does not apply in this case. Regardless of what Shenkman said to the State about the criminal charges, the charges were voluntarily dismissed by the State, and so it cannot be said that Shenkman persuaded a court to accept his allegedly inconsistent position. Furthermore, no unfair advantage or detriment resulted or will result from the dismissal of the criminal charges against Hiller. As such, the doctrine of judicial estoppel does not bar the plaintiffs from asserting their claims predicated upon the funds allegedly stolen by Hiller in 2006. See IBF Participating Income Fund v. Dillard-Winecoff LLC, 275 Ga. 765, 767 (573 SE2d 58) (2002) (doctrine of judicial estoppel did not apply where prior bankruptcy proceeding concluded in dismissal of the debtor’s petition “because no benefit or unfair advantage result[ed] from [the] dismissal”). As such, the trial court’s summary judgment order cannot be affirmed on this alternative ground.

(b) Hiller also argued that the doctrine of res judicata barred the plaintiffs’ claims because Shenkman could have alleged all of the claims upon which the current complaint was based in the prior divorce action. “The doctrine of res judicata prevents the re-litigation of all claims which have already been adjudicated, or which could have been adjudicated, between identical parties or their privies in identical causes of action.” Waldroup v. Greene County Hosp. Auth., 265 Ga. 864, 865 (1) (463 SE2d 5) (1995). See OCGA § 9-12-40. But as a matter of public policy, the doctrine of res judicata is less strictly applied in the context of divorce. See Dial v. Adkins, 265 Ga. App. 650, 651-652 (2) (595 SE2d 332) (2004).

Thus, the true rule of res judicata in divorce . . . cases seems to be that a final decree has the effect of binding the parties and their successors as to all matters which were actually put in issue and decided, or which by necessary implication were decided between the parties.

(Citation, punctuation and emphasis omitted.) Brookins v. Brookins, 257 Ga. 205, 207-208 (357 SE2d 77) (1987). Moreover, in applying res judicata in cases where a settlement agreement was incorporated into the final judgment and decree of divorce, we apply the rules of contract construction to determine whether the agreement manifested an intent to settle all issues between the parties. See Anderson v. Larkin, 190 Ga. App. 283, 284-285 (378 SE2d 707) (1989); Prince v. Prince, 147 Ga. App. 686, 688-689 (1), (2) (250 SE2d 21) (1978).

The final judgment and decree of divorce entered in 2007 incorporated the settlement agreement executed by Shenkman and Hiller. Given the precedent discussed above, the question, therefore, is whether the settlement agreement manifested an intent to settle all issues between the parties regarding the division of property and funds. If that was the intent of the parties manifested by the settlement agreement, res judicata bars the plaintiffs’ claims pertaining to the funds allegedly stolen by Hiller in 2006. See Prince, 147 Ga. App. at 689 (2) (claim that ex-wife converted ex-husband’s funds was barred by res judicata, where divorce settlement agreement stated that the parties desired “to settle all matters pertaining to alimony and division of property”) (punctuation omitted). Compare Anderson, 190 Ga. App. at 284-285 (ex-husband’s suit on promissory note brought against ex-wife was not barred by res judicata, where divorce settlement agreement was not intended to be a complete settlement of all issues regarding the disposition of property).

Notably, we cannot resolve this interpretive question because the record on appeal is incomplete. While the final judgment and decree of divorce indicates that the settlement agreement between Shenkman and Hiller addressed the division of property, the copy of the settlement agreement included in the record on appeal as part of the parties’ record appendix is missing the second page, which apparently contained the property-related provisions. Moreover, it is unclear from the record whether the trial court, in resolving Hiller’s motion for summary judgment, had a complete copy of the settlement agreement before it, or was likewise missing the second page. Under these circumstances, we exercise our discretion and vacate the trial court’s order to the extent that it granted summary judgment to Hiller on the plaintiffs’ claims pertaining to funds allegedly stolen in 2006, and we remand for the trial court to consider the issue of res judicata in the first instance. See Grimes v. State, 303 Ga. App. 808, 812-813 (1), n. 4 (695 SE2d 294) (2010) (vacating in part trial court’s order and remanding for consideration of alternative legal theory, where the record was incomplete on appeal such that this court could not resolve whether trial court’s order should be affirmed as right for any reason). See also City of Gainesville v. Dodd, 275 Ga. 834, 838-839 (573 SE2d 369) (2002) (Court of Appeals retains discretion in determining whether to apply the right for any reason rule and consider alternative legal theories not addressed by the trial court in its order granting summary judgment, or to vacate the order and remand for the trial court to consider the alternative legal theories in the first instance).

Judgment affirmed in part and vacated in part, and case remanded with direction.

Adams and Blackwell, JJ., concur.

Decided June 21, 2011.

Millard C. Farmer, Jr., for appellants.

Weinstock & Scavo, Adam M. Gleklen, Lindsay B. Dodson, Jami M. Kohn, for appellee.

       The plaintiff corporations are Georgia Neurology & Rehabilitation, EC. d/b/a Coastal Neurological Institute d/b/a Neurology Institute of Georgia (collectively, “Coastal Neurological”), and Neurological Institutes of Atlanta, EC. d/b/a Neurological Institute of Atlanta.

       In their appellate brief, the plaintiffs also appear to contend that they brought a separate claim for Hiller’s alleged breach of her promise to pay full restitution for the stolen funds in return for Shenkman’s request for the dismissal of the criminal charges against her. The plaintiffs first made reference to a potential cause of action for breach of contract in their response to Hiller’s motion for summary judgment. Hiller did not file a reply brief that addressed the plaintiffs’ newly asserted breach of contract claim, and the trial court did not consider the claim in its order granting summary judgment to Hiller. Pretermitting whether the plaintiffs’ complaint should be deemed constructively amended to include the breach of contract claim, see BTL COM Ltd. v. Vachon, 278 Ga. App. 256, 259 (1), n. 3 (628 SE2d 690) (2006), we have no jurisdiction to address the claim because the trial court never ruled upon it in its summary judgment order. See Sharpnack v. Hoffinger Indus., 223 Ga. App. 833, 836 (3) (479 SE2d 435) (1996).

        Miller v. Steelmaster Material Handling Corp., 223 Ga. App. 532 (478 SE2d 601) (1996), relied upon by Hiller, is distinguishable because there was no settlement agreement incorporated into the final judgment and decree that reflected the intent of the parties regarding what issues were settled by the divorce.


author: Ellington, Chief Judge.

text:
    A11A0634.
    A11A0635.
    WILLIAMS et al. v. BOOKER et al. MEADOWS REGIONAL MEDICAL CENTER, INC. v. BOOKER et al.
    (712 SE2d 617)
   Ellington, Chief Judge.

Pursuant to granted interlocutory appeals, Meadows Regional Medical Center (“the hospital”), Dr. Michael Williams and his medical practice, Williams Medical Care Clinic of Vidalia, EC., contend that the Superior Court of Toombs County erred in denying their motions for partial summary judgment on the issue of Williams’ alcohol addiction in this medical malpractice suit filed by Gloria Booker. We consolidate these appeals for disposition and, for the following reasons, we reverse.

We conduct a de novo review of the trial court’s ruling on summary judgment, viewing the evidence and all reasonable inferences and conclusions drawn from it in a light favorable to the nonmoving party. Summary judgment is appropriate when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. A defendant is entitled to summary judgment if it can demonstrate that there is no evidence to create a jury issue on at least one essential element of the plaintiffs case. A defendant need not affirmatively disprove the plaintiff s case, but may prevail simply by pointing to the lack of evidence. If the defendant does so, the plaintiff cannot rest on his pleadings, but must point to specific evidence that gives rise to a triable issue of fact.

(Punctuation and footnotes omitted.) Latimore v. City of Atlanta, 289 Ga. App. 85 (656 SE2d 222) (2008). So viewed, the record shows the following.

This is a suit for medical malpractice arising out of a laproscopic cholecystectomy that Williams performed on Booker on March 29, 2001, at the hospital. During Booker’s first post-operative visit on April 6, 2001, Williams observed that she appeared jaundiced and ordered additional tests. Suspecting a bile duct injury, Williams referred Booker to another physician on April 11, 2001. The following day, Booker underwent surgery for a bilateral catheter placement, and the surgeon later removed surgical clips that Williams had placed in Booker’s abdomen during her first surgery, some of which had occluded her common bile duct.

On March 28, 2003, Booker filed the instant action contending that Williams violated the standard of care by improperly placing the surgical clips, which caused Booker to suffer a bile duct injury, and in failing to diagnose timely the bile duct injury. Booker also alleged that Williams was addicted to alcohol and that his alcoholism impaired his ability to perform surgery. Booker further alleged that the hospital was aware of Williams’ alcohol addiction and violated a duty to disclose Williams’ alcohol addiction to her. The appellants moved for summary judgment on the issue of Williams’ alcohol addiction, but the trial court denied the motions, finding that material issues of fact remained for jury resolution.

Williams admits that he is an alcoholic. He sought inpatient treatment for alcohol addiction in November and December 1997, then continued with outpatient treatment through July 1998. The hospital became aware of Williams’ alcohol addiction during the mid-1990s and was aware that Williams thereafter sought and received treatment for his addiction while on leave from his practice. After being discharged from treatment in 1998, Williams returned to his practice, treated patients at the hospital, and remained sober for over two years. During the two years following his treatment, Williams informed the Composite State Board of Medical Examiners as part of the credentialing process that he had undergone treatment for alcohol abuse and, at the Board’s request, entered into a consent agreement that required him to maintain his sobriety.

Williams relapsed and began consuming alcohol again in July or August 2000. He deposed that he drank only at home and that he believed no one at the hospital was aware that he had relapsed until mid-June 2001. He did not report his relapse to anyone at the hospital. However, following a urine test that was positive for alcohol, he admitted to the Composite State Board of Medical Examiners on June 22, 2001, that he had used alcohol during the past ten to twelve months “at the rate of approximately one pint of vodka two to three times per week.” On June 19, 2001, the hospital became aware that Williams had relapsed when a nurse smelled an alcoholic beverage on Williams’ person. A few weeks later, Williams returned to inpatient alcohol treatment, continued thereafter in an outpatient program in a half-way house, and then returned home on January 11, 2002. He completed outpatient therapy on February 28, 2002.

Williams deposed that, during the period of his relapse, he did not perform surgery while consuming alcohol, that he believed his performance as a surgeon had not been impacted by his alcohol use, and that he was careful not to drink “around any cases.” He deposed that he drank at home, usually on the weekends, and that he did not drink when he was on call or when he had any patient responsibilities. Williams said that he did not drink every day. When asked whether he performed surgery within 24 hours of having a drink, he responded: “[No,] I usually did not drink before my cases.”

Booker deposed that, during her time as Williams’ patient, she never suspected that he was an alcoholic or that he was under the influence of alcohol. Booker took the depositions of 16 people who were hospital administrators, nurses, or staff and none gave testimony indicating that Williams was using alcohol, was under the influence of alcohol, or was otherwise visibly impaired during March and April 2001, the time period during which Williams was treating Booker. Booker has not included in the record the deposition of her expert witness, or any evidence from that witness suggesting that he had information from any source that would give him reason to believe that Williams was under the influence of alcohol during Booker’s surgery or treatment.

Case No. A11A0634

1. In her complaint, Booker averred that Williams was an alcoholic, that he was under the influence of alcohol when he treated her, and that his addiction impaired his ability to practice medicine. Williams moved for summary judgment on Meadows’ claim “relating to Dr. Williams’ alcohol addiction,” and the court denied it, finding that material issues of fact existed with respect to whether Williams was intoxicated at the time he operated on Booker. On appeal, Williams challenges the court’s order denying his motion for summary judgment on the issue of Williams’ alleged alcohol use at the time of Booker’s treatment as well as the admissibility of that evidence.

(a) To the extent that Booker is asserting that Williams’ alcoholism at the time of the surgery created an independent claim or issue of negligence for the jury, we reject that proposition. The mere fact of a physician’s alcohol or drug addiction or use at the time of the alleged malpractice does not create, in and of itself, a separate issue or claim of medical malpractice. Rather, “it is only when that alcoholism translates into conduct falling below the applicable standard of care that it has any relevance.” Ornelas v. Fry, 151 Ariz. 324, 328 (727 P2d 819) (1986); Watson v. Chapman, 343 S.C. 471 (540 SE2d 484) (2000) (accord). Therefore, to the extent the trial court denied Williams’ motion for summary judgment on any such independent claim, the court’s order is reversed.

(b) In medical malpractice suits, evidence of a physicians’ alcohol or drug use or addiction is relevant and admissible only when there is evidence from which the jury may infer that the physician was under the influence of alcohol or drugs at the time of the allegedly negligent treatment. See Wheeler v. Stewart, 234 Ga. App. 714, 714-716 (507 SE2d 540) (1998) (The trial court did not abuse its discretion in excluding evidence of the physician’s abuse of mood-altering drugs.); Whorton v. Boatright, 233 Ga. App. 369, 369-371 (504 SE2d 216) (1998) (The trial court did not abuse its discretion in excluding evidence of alcohol use by the physician two days after treatment and evidence of the excessive or improper use of alcohol by the physician on other occasions over ten years before and two years after the alleged malpractice.). Absent a factual basis linking Williams’ alcohol addiction or use to the claimed act of medical malpractice, the evidence is inadmissible because it is both irrelevant and highly prejudicial. See Wheeler v. Stewart, 234 Ga. App. at 715-716.

“Questions of relevancy are generally matters within the trial court’s discretion[.]” Id. at 715-716.

An abuse of discretion is generally the only basis for overruling a trial court’s judgment as to evidence’s relevancy. The existence of such an abuse may be measured by weighing the challenged evidence’s probative value against the risk that its admission misled the jury or created a substantial danger of unfair prejudice or confusion.

(Citations omitted.) Key v. Grant, 238 Ga. App. 818, 819 (2) (520 SE2d 277) (1999).

In the instant case, although it is undisputed that Williams is an alcoholic and that he consumed a significant amount of alcohol during the period of his relapse, there is no evidence that Williams was under the influence of alcohol when he performed Booker’s surgery. Williams deposed that he did not drink before or during surgery or when he had patient responsibilities, and neither Booker nor any hospital employee testified to the contrary. Nevertheless, the trial court found, based upon Williams’ general alcohol use during the period of his relapse and his deposition testimony that he “usually” did not drink within 24 hours of surgery, that “he could have consumed alcohol within [the 24-hour] time frame of performing [Booker’s] surgery and could have, therefore, been under the influence at that time.” Of course, based on these same facts, it is also equally possible that Williams was not intoxicated. Thus, the court’s conclusion is speculation rather than a reasonable inference from the facts. See Denson Heating & Air Conditioning Co. v. Oglesby, 266 Ga. App. 147, 148 (596 SE2d 685) (2004) (a reasonable inference cannot be based on mere conjecture or probability, or on evidence that is too uncertain or speculative). Such speculation is insufficient as a factual basis for demonstrating that Williams was under the influence of alcohol at the time of the surgery such that his alcohol use had any probative value on the issue of his alleged negligence. That Williams was a relapsed alcoholic, however, is highly prejudicial and could create a substantial risk that the jury would be confused, misled, or prejudiced against Williams. See Wheeler v. Stewart, 234 Ga. App. at 716. Consequently, the trial court abused its discretion in finding that evidence of Williams’ alcohol addiction and use was admissible at trial.

Case No. A11A0635

2. In her complaint, Booker made the following averments with respect to the hospital: the hospital knew that Williams was addicted to alcohol; the hospital had a duty to inform Booker of Williams’ addiction; and the hospital was negligent in “failing to inform” Booker of Williams’ addiction. This failure-to-inform claim is the sole direct negligence claim Booker has averred against the hospital.

Booker has cited to no authority, nor have we found any, holding that a hospital has a duty to inform a physician’s patient that the physician is an alcoholic, has abused alcohol in the past, or has been treated for alcohol dependence. It is axiomatic that an “essential element of a tort claim is the existence of a duty owed by the defendant to the purported plaintiff.” Oswell v. Nixon, 275 Ga. App. 205, 207 (1) (620 SE2d 419) (2005).

The Supreme Court of Georgia has held that a physician has no duty to inform a patient of his use of and dependence upon the illegal drug cocaine. In Albany Urology Clinic, P.C. v. Cleveland, 272 Ga. 296, 296-297 (528 SE2d 777) (2000), the Court explained that physicians have no common law or statutory duty to volunteer information to their patients of “unspecified life factors which might be subjectively considered to adversely affect the professional’s performance.” The Court held that the failure to make such a disclosure could not “provide a basis for a fraud claim, nor [could] it vitiate a patient’s consent so as to authorize an action for battery.” Id. Likewise, absent some duty to disclose his alcoholism, Williams’s failure to inform Booker of the same provides no basis for her failure-to-disclose claim. See id. Moreover, if the physician does not have a duty to disclose such matters, we see no basis for imposing that duty upon the hospital. As this Court explained in Parr v. Palmyra Park Hosp., 139 Ga. App. 457, 459-460 (228 SE2d 596) (1976),

Decided June 21, 2011

Carlock, Copeland & Stair, Wade K. Copeland, Lee P. Gutschen-ritter, for appellants (case no. A11A0634).

Martin Snow, John C. Daniel III, Richard A. Epps, Jr., Stuart E. Walker, for appellant (case no. A11A0635).

[s]urely if the physician who is treating the patient, who has responsibility for seeing that he is properly treated . . . , and who is the only one who has personal contact with the patient[,] is required to do no more than inform the patient of [certain informed consent information], the hospital, which deals only with the doctor[,] ... is under no greater obligation or higher standard of disclosure. To require a hospital to contact a patient to discuss the risks of a surgical procedure . . . would be a presumptuous invasion of the province of the physician, on whom rests the responsibility of the patient’s welfare.

Finally, pretermitting whether a hospital has a duty to inform a patient who is being treated at the hospital that the patient’s physician is currently abusing alcohol or drugs, there is no evidence in the instant case that, at the time of Booker’s surgery, the hospital knew or had any reason to suspect that Williams had relapsed and had been using alcohol. See Division 1, supra. Consequently, the trial court erred in denying summary judgment to the hospital on this failure-to-inform claim.

Judgment reversed.

Miller, P J., and Doyle, J., concur.

Smith & Jenkins, Wilson R. Smith, for appellees.

       Booker’s husband, Derek, later joined the suit, asserting a claim for loss of consortium. As his claims are not relevant to this appeal, our references hereafter to “Booker” are references to Gloria Booker only.

       Booker did not aver in her complaint that the hospital was negligent in granting Williams hospital privileges, in allowing him to serve on the staff, or in failing to take measures to ensure that he maintained his sobriety, as the trial court seems to imply in its order. Because these allegations are not elements of the plaintiffs failure-to-disclose claim, they are immaterial to our de novo review of the trial court’s decision to deny summary judgment. See MEA Family Investments., L.P. v. Adams, 284 Ga. 407, 410 (667 SE2d 609) (2008) (“Summary judgment is proper when no genuine issue of material fact remains. Assuming, without deciding, that a factual dispute may remain as to some immaterial issues, summary judgment was properly granted to Appellee.”) (emphasis supplied).


text:
    A11A0639.
    McCRARY v. THE STATE.
    (712 SE2d 622)
   Barnes, Presiding Judge.

A jury convicted Dezreal McCrary of aggravated assault and aggravated assault with intent to rob. On appeal from the denial of his motion for a new trial, McCrary contends that there was insufficient evidence to support his convictions; that the trial court erred by giving the “level of certainty” portion of the jury charge on the reliability of eyewitness identification; and that his trial counsel was ineffective. For the reasons discussed below, we affirm.

Following a criminal conviction, we view the evidence in the light most favorable to the jury verdict. Paul v. State, 231 Ga. App. 528 (499 SE2d 914) (1998). So viewed, the evidence showed that on the evening of December 8, 2005, the victim was standing outside a bar in Fulton County. While outside the bar, the victim was speaking on his cell phone with his father when he noticed an individual later identified as McCrary approaching him. McCrary pulled a gun from his pocket and pointed it directly at the victim. McCrary and the victim then struggled over the cell phone, and the victim called out to the patrons in the bar for help. When a friend of the victim ran out of the bar to aid the victim, McCrary “cut and r[a]n.” As he did so, McCrary turned around and fired three shots, and one bullet struck the victim’s arm. McCrary got into the passenger seat of a Nissan Sentra and fled from the scene. Both the victim and his friend gave a description of the vehicle and McCrary to a police officer responding to the scene.

The next day, officers responded to a call of “shots fired.” The officers encountered a vehicle that was similar to the vehicle described by the victim and his friend. When the officers approached the vehicle, it sped off. A few minutes later, officers found the vehicle abandoned and wrecked. While searching for the passengers of the wrecked vehicle, officers found McCrary under a stairwell and took him into custody.

The victim subsequently identified McCrary out of a photographic lineup as the individual who attacked him. During trial, the victim and his friend also identified McCrary in court as the attacker.

1. McCrary challenges the sufficiency of the evidence supporting his convictions. On appeal from a criminal conviction, we do not weigh the evidence or assess the credibility of the witnesses, but only decide whether the evidence was sufficient to allow a rational jury to find the defendant guilty beyond a reasonable doubt of the charged offenses. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). That test clearly was met in this case. The testimony of the victim and his friend in which they identified McCrary as the perpetrator was sufficient to convict him of the charged offenses. See Burden v. State, 290 Ga. App. 734, 735 (1) (a) (660 SE2d 481) (2008). Regardless of any inconsistency in the testimony, it was for the jury to assess witness credibility and resolve any conflicts in the evidence, and the jury chose to believe the victim and his friend. See Williams v. State, 300 Ga. App. 839, 840 (1) (a) (686 SE2d 446) (2009).

2. Relying on Brodes v. State, 279 Ga. 435, 442 (614 SE2d 766) (2005), McCrary next argues that the trial court erred by giving the “level of certainty” charge in instructing the jury on the reliability of eyewitness identification. In Brodes, the Supreme Court of Georgia advised trial courts to refrain from instructing jurors that they may consider a witness’s level of certainty. Id. The Supreme Court further concluded that the giving of the instruction constituted harmful error under the circumstances of that case. Id.

Significantly, however, McCrary did not specifically object to the giving of the “level of certainty” charge. Hence, he waived any objection he might have had, unless he can show that the giving of the charge “constitute[d] plain error which affect[ed] substantial rights of the parties.” OCGA § 17-8-58 (b). McCrary has failed to make such a showing in this case. McCrary’s trial counsel thoroughly cross-examined the victim regarding his ability to have accurately identified McCrary as the assailant. Furthermore, the victim interacted with McCrary at close range, described him to police immediately after the attack, and positively identified him in a photographic lineup, in addition to identifying him in court. Another eyewitness, the victim’s friend, also identified McCrary as the attacker. Moreover, McCrary’s attempt to elude the police after fleeing from a vehicle that was consistent with the one described by the victim and his friend could be taken into account by the jury. See McKenzie v. State, 284 Ga. 342, 345 (3) (a) (667 SE2d 43) (2008). Lastly, the jury was specifically instructed that the State had to prove the identity of the assailant beyond a reasonable doubt, and that it was the duty of the jury to acquit the defendant if the State failed to meet its burden of proof in this regard. Given these combined circumstances, McCrary cannot demonstrate that the giving of the “level of certainty” charge constituted plain error requiring the reversal of his convictions. See id.; Williams, 300 Ga. App. at 844-845 (3) (a).

Decided June 21, 2011.

Cromwell & Hibbert, Henry A. Hibbert, for appellant.

Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Paige R. Whitaker, Stephany J. Luttrell, Assistant District Attorneys, for appellee.

3. McCrary argues that his trial counsel was ineffective for not objecting to the “level of certainty” charge. We disagree. For McCrary to prevail on his claim of ineffective assistance of counsel, he must prove both that his counsel’s performance was deficient and that the deficient performance prejudiced his defense. See Hubert v. State, 297 Ga. App. 71, 76 (7) (676 SE2d 436) (2009). McCrary cannot establish prejudice for the same reasons discussed in Division 2. Accordingly, he cannot prevail on his ineffective assistance claim.

Judgment affirmed.

Adams and Blackwell, JJ., concur.

       The trial court instructed the jury:
      Identity is a question of fact for you to determine. Your determination of identity is dependent upon the credibility of the witness or witnesses offered for this purpose. You should consider all of the factors previously charged you regarding credibility of witnesses. Some but not all of the facts that you may consider in assessing the liability [sic] of identification are the opportunity of the witness or witnesses to view the alleged perpetrator at the time of the alleged incident, the witness’ degree of attention towards the alleged perpetrator at the time of the alleged incident, the level of certainty shown by the witness about his or her identification, the possibility of mistaken identity, whether the witness’ identification may have been influenced by factors other than the view that the witness claim [sic] to have, and whether the witness on any prior occasion did not identify the defendant in this case as the alleged perpetrator.

       McCrary’s trial occurred in October 2007. OCGA § 17-8-58 (a), effective July 1, 2007, requires that a defendant “inform the court of the specific objection and the grounds for such objection before the jury retires to deliberate.” Failure to comply with subsection (a) “precluded] appellate review of such portion of the jury charge, unless such portion of the jury charge constitutes plain error which affects substantial rights of the parties.” OCGA § 17-8-58 (b).


author: Mikell, Judge.

text:
    A11A0753.
    BATTLE PROPERTIES, INC. et al. v. BRANCH BANKING AND TRUST COMPANY.
    (712 SE2d 625)
   Mikell, Judge.

This case arises from the applications for confirmation of two foreclosure sales filed pursuant to OCGA § 44-14-161 by Branch Banking and Trust Company (“BB&T”) against Battle Properties, Inc. and Brady F. Battle, who guaranteed the underlying promissory notes. Appellants appeal the trial court’s final order confirming the sale of two parcels in the combined amount of $576,000, challenging the trial court’s valuation of the property for failing to consider the “true” market value of each of the properties as an individual parcel. For the reasons set forth below, we affirm.

In confirming a nonjudicial foreclosure sale under OCGA § 44-14-161, the trial court shall require evidence to show the true market value of the property sold under the powers and shall not confirm the sale unless it is satisfied that the property so sold brought its true market value on such foreclosure sale. In such proceedings, the trial court sits as the trier of fact, and its findings and conclusions have the effect of a jury verdict. Thus, we will not disturb the trial court’s decision if there is any evidence to support it. Additionally, we do not determine witness credibility or weigh the evidence and we view the evidence in the light most favorable to the trial court’s judgment.

Viewed in the proper light, the record shows that Battle Properties executed two promissory notes dated October 6, 2006, in favor of BB&T in the original principal amounts of $1,287,360 and $944,640. Each promissory note was secured by a separate parcel of property located in the Carrington Park subdivision in Gwinnett County, as evidenced by the Deeds to Secure Debt and Security Agreements. The first parcel contained eight townhome lots, and the second parcel contained sixteen townhome lots. Battle Properties defaulted on the notes, and BB&T elected to declare the outstanding debt immediately due and payable. BB&T thereafter foreclosed on the parcels under power of sale provisions contained in the deeds to secure debt. On September 2, 2008, both parcels were sold at auction at separate foreclosure sales in Gwinnett County. BB&T, which bid on both parcels, purchased the first parcel for $192,000 and the second for $384,000 for a total of $576,000.

On September 30, 2008, BB&T reported the sales to a judge in the Superior Court of Gwinnett County and applied for confirmation of the two sales pursuant to OCGA § 44-14-161. At the hearing, both parties presented evidence from valuation experts. Appellants presented the testimony of Larry Thomas in support of their contention that the combined true market value of both parcels was $816,000. BB&T presented the testimony of Michael L. Hunter in support of its contention that the two parcels sold at the foreclosure sale for more than their combined true market value. In completing their valuations of the twenty-four lots, both experts assumed that the parcels would be sold in bulk in a single transaction to one investor. Thomas utilized the “sales comparison” approach to value the properties at $34,000 per lot on the date of sale. Hunter employed the discounted cash flow model, which considered the depressed market conditions in the subject area at the time of sale, to conclude that each lot was worth $23,958 as of the date of the sale. Hunter testified that because all of the lots in question were in the same subdivision and were similar in characteristic and value, the appropriate methodology for determining the value of the properties was to determine an individual lot value and then multiply that value by the number of lots under each of the two notes.

After the hearing, the trial court entered an order confirming the foreclosure sales. In its order, the trial court determined that the properties sold for their true market values by adopting Hunter’s valuation of $23,958 for each lot and multiplying that number by the number of lots sold in the two foreclosure sales. The trial court credited Hunter’s testimony and appraisal as providing the most accurate method of determining the true market value because Hunter utilized the discounted cash flow analysis to determine the properties’ true market value in the declining real estate market conditions of 2008. The trial court discredited Thomas’s testimony that each lot was worth $34,000 for several reasons: two of the sales Thomas relied upon were single-family home lots, and not townhome lots; Thomas used an insider transaction that was not arms length in his analysis as a comparable sale; and several of the comparable sales cited by Thomas reflected prices agreed to a year before the 2008 sale date. The trial court further noted that BB&T bid even more than the true market value of the properties at the foreclosure sale.

In their sole enumeration of error, appellants argue that the trial court erred in confirming the foreclosure sales because the evidence presented was insufficient to establish that BB&T met its burden to prove that the properties sold for their true market value. Appellants argue that BB&T failed to prove the value of the two properties as separate parcels and thus, it could not meet its burden to establish that each of these properties independently sold for its true market value. We disagree.

The language of OCGA § 44-14-161 (b) “does not preclude any specific method of property appraisal.” Thus, the trial court’s decision to adopt Hunter’s valuation method of calculating the true market value of the properties together, rather than as two separate parcels, is not in error.

Decided June 21, 2011.

Schreeder, Wheeler & Flint, Philip R. Green, John A. Christy, for appellants.

On appellate review, the test is not whether this court would have accepted [appellants’] expert appraisals as the most reliable and accurate, but whether the record contains any evidence to support the findings of the trial court that the property brought its true market value at the foreclosure sale. Where the evidence is in conflict as to the market value of the property, the trial court’s findings will be affirmed if they are supported by any evidence and are not clearly erroneous.

The trial court’s order found Hunter’s appraisal and testimony assigning a true market value of $23,958 per lot to be more accurate than Thomas’s valuation because Hunter took the depressed real estate market conditions of 2008 into consideration when assessing the properties’ value. In contrast, Thomas’s appraisal was discredited by the trial court for utilizing the sales of single-family lots as comparable sales for townhome lots as well as utilizing comparable sales from 2007 without accounting for market depreciation appropriately. Although Hunter’s appraisal did not specifically provide the separate true market value for each parcel of lots, his testimony and appraisal provided the methodology by which the separate value of each parcel could be obtained, i.e., by multiplying the true market value of each lot by the number of lots in each parcel. Further, it is clear from the appraisal reports and testimony of both experts that the valuation of each parcel would not change if they were sold separately or together as a bulk transaction. Thus, we find that there was evidence in the record to support the trial court’s finding that the two properties sold for their true market value at foreclosure sale.

Judgment affirmed.

Barnes, P. J., and Adams, J., concur.

Greenberg Traurig, Sean A. Gordon, for appellee.

       (Punctuation and footnotes omitted.) The Hudson Trio v. The Buckhead Community Bank, 304 Ga. App. 324-325 (696 SE2d 372) (2010).

       To determine the true market value, Hunter multiplied $23,958 (his per lot valuation) by 24 lots (the total number of lots sold) to reach a total of $574,992. He then rounded his figure up to $575,000.

       See, e.g., First Nat. Bank &c. v. Childress-Ross Properties, 189 Ga. App. 765 (377 SE2d 533) (1989).

       (Footnote omitted.) Trefren v. Freedom Bank of Ga., 300 Ga. App. 112, 115 (2) (684 SE2d 144) (2009). Cf. Wheeler v. Coastal Bank, 182 Ga. App. 112 (354 SE2d 694) (1987). See generally Marion G. Davis, Inc. v. Cameron-Brown Co., 177 Ga. App. 646 (340 SE2d 216) (1986).

       (Punctuation and footnotes omitted.) The Hudson Trio, supra at 328 (2).


author: Smith, Presiding Judge.

text:
    A11A0603.
    COLSON v. THE STATE.
    (712 SE2d 520)
   Smith, Presiding Judge.

Lee Otis Colson appeals pro se from the trial court’s order dismissing his “motion to vacate/correct a void sentence.” We affirm because Colson has failed to assert any colorable claim that his sentence was void.

A Wilcox County grand jury indicted Colson for the crime of escape. On December 14, 1998, Colson entered a guilty plea and was sentenced to ten years, five to be served concurrently with any other sentence he was serving, and five to be served consecutively to any such sentence. In 2003, he moved to modify his sentence, contending that the five years to be served consecutively constituted a void sentence and should be vacated. That motion was denied for lack of jurisdiction. In 2010, he filed the subject motion, again asserting that his sentence is void and seeking a declaration that it should have run concurrently with his previous conviction from December of 1998.

The trial court treated Colson’s motion as a motion to vacate a void judgment and dismissed it pursuant to Harper v. State, 286 Ga. 216 (686 SE2d 786) (2009). But, as Harper acknowledges, id. at 217 n. 1, a void sentence may be attacked at any time. See Williams v. State, 271 Ga. 686, 688 (1) (523 SE2d 857) (1999). The dismissal, however, was nevertheless correct because the trial court had no jurisdiction to modify a sentence after the expiration of the term of court during which the sentence was entered, unless the sentence was void. Anderson v. State, 251 Ga. App. 785, 786 (554 SE2d 811) (2001). Here, Colson’s sentence is not void.

[A] sentence is void if the court imposes punishment that the law does not allow. Nevertheless, when the sentence imposed falls within the statutory range of punishment, the sentence is not void and is not subject to post-appeal modification beyond that provided in OCGA § 17-10-1 (f). Upon the expiration of the period provided in OCGA § 17-10-1 (f), post-appeal pleadings filed in the sentencing court seeking sentence modification must set forth why the sentence is void, i.e., how it imposes punishment the law does not allow.

Decided June 2, 2011

Reconsideration denied June 22, 2011

(Citations and punctuation omitted.) Hughes v. State, 273 Ga. App. 705, 705-706 (615 SE2d 819) (2005). Colson’s sentence was within the statutory range of punishment permitted by OCGA § 16-10-52 (b) (1) (“[a] person who, having been convicted of a felony, is convicted of the offense of escape shall be punished by imprisonment for not less than one nor more than ten years.”).

Colson complains that the trial court’s sentence was void because it imposed a split sentence: five years to be served concurrently with any sentence he was now serving, and five to be served consecutively to any sentence he was now serving. He contends that OCGA § 17-10-10 provides for a sentence to be concurrent or consecutive, but not both, and from this he argues that his sentence is not one which the law allows and is therefore void. But the Code section does not say what Colson contends it says.

OCGA § 17-10-10 (b) provides: “Where a person is convicted on more than one indictment or accusation at separate terms of court, or in different courts, and sentenced to imprisonment, the sentences shall be served concurrently, one with the other, unless otherwise expressly provided therein.” (Emphasis supplied.) Here, the sentence expressly provides for both a concurrent and a consecutive portion of the term to be served. Moreover,

[t]he (b) section of Code Ann. § 27-2510 [now OCGA § 17-10-10] properly is to be construed as being applicable to groups of offenses committed in a single crime spree, where convictions for such offenses have been obtained in separate courts or terms of court. That section does not constitute a limitation upon the discretion of the trial court, derived from the common law, to set sentences imposed as a result of convictions for a new group of offenses that are separate and distinct from previous sentences to commence at the termination of all sentences previously imposed.

(Citation omitted.) Amerson v. Zant, 243 Ga. 509, 510 (255 SE2d 34) (1979). Colson’s sentence therefore is not void and is not subject to post-appeal modification outside of the provisions of OCGA § 17-10-1 (f). Hughes, supra, 273 Ga. App. at 706.

Judgment affirmed.

Mikell and Dillard, JJ., concur.

Lee O. Colson, pro se.

Denise D. Fachini, District Attorney, Matthew P. Brown, Assistant District Attorney, for appellee.

       Colson also filed an appeal from the denial of his motion to vacate the sentence in his prior conviction as void. That denial was affirmed in Colson v. State, 283 Ga. App. XXV (Case No. A06A2500, decided February 2, 2007), where we observed that his life sentence as a recidivist was within the statutory guidelines and declined to review it.