text:
    A17A0315.
    ALEXANDER v. THE STATE.
    (803 SE2d 88)
   Rickman, Judge.

This appeal stems from the denial of a motion to withdraw a guilty plea, and this is the second appearance of this case before this Court. In its first appearance, a direct appeal, Calvin Alexander challenged the lower court’s denial of his motion to withdraw his plea of guilty to three counts of aggravated child molestation, three counts of child molestation, two counts of statutory rape, and two counts of enticing a child for indecent purposes. See Alexander v. State, 328 Ga. App. 300 (761 SE2d 844) (2014). Alexander claimed that his plea counsel rendered ineffective assistance by failing to advise him that because he was sentenced as a recidivist, he would be ineligible for parole under the plea. Id. Relying upon Williams v. Duffy this Court affirmed the lower court’s denial of Alexander’s motion, and held that because parole ineligibility is a collateral consequence of a guilty plea, Alexander could not prove that his plea counsel performed deficiently by failing to discuss that consequence with him. Id. at 307.

On writ of certiorari, the Supreme Court of Georgia reversed and in doing so, overruled Williams and held that when it came to parole eligibility, “an attorney’s failure to inform his or her client that he or she would be ineligible for parole as a recidivist for the entirety of a lengthy prison sentence is constitutionally deficient performance.” Alexander v. State, 297 Ga. 59, 65 (772 SE2d 655) (2015). The Supreme Court remanded for the lower court to evaluate Alexander’s motion under the two-prong test in Strickland v. Washington. Id.

On remand, the lower court again denied Alexander’s motion to withdraw his guilty plea. No hearing was held. The court ruled that Alexander failed to show either deficient performance or harm under the Strickland test. It is from this ruling that Alexander now appeals. We affirm.

“In reviewing a lower court’s determination of a claim of ineffective assistance of counsel, we give deference to the trial court’s factual findings, which are upheld on appeal unless clearly erroneous; however, we review the lower court’s legal conclusions de novo.” (Citation and punctuation omitted.) Navarrette v. State, 298 Ga. App. 637 (680 SE2d 649) (2009).

[A] criminal defendant who seeks to withdraw his guilty plea due to ineffective assistance of counsel must meet the . . . two-part test of Strickland v. Washington — deficient performance and prejudice. Specifically, a defendant who pleads guilty and seeks to overturn his conviction because of counsel’s errors must show both that counsel’s performance was deficient and that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.

(Citation and punctuation omitted.) Hall v. State, 313 Ga. App. 670, 672 (2) (722 SE2d 392) (2012).

“Pretermitting whether trial counsel’s performance was deficient, [Alexander] has failed to meet the prejudice prong of the Strickland test, and it is not necessary for us to examine the [deficient] performance prong of the test.” (Citation omitted.) Walker v. State, 299 Ga. 250, 251 (787 SE2d 718) (2016). To satisfy the prejudice prong, Alexander was required to

set out special circumstances that might support the conclusion that [he] placed particular emphasis on [his] parole
eligibility in deciding whether or not to plead guilty. A court making a Strickland/Hill[ \ prejudice inquiry must examine what the defendant would have done at the guilty plea hearing had [he] been given the correct information.

(Citations and punctuation omitted.) Cox v. Howerton, 290 Ga. 693, 694 (723 SE2d 891) (2012).

At the pre-remand hearing on Alexander’s motion to withdraw his guilty plea, Alexander testified that had he known that he would not have been eligible for parole, he would not have pled guilty. The lower court, however, was entitled, as it did, to discredit Alexander’s testimony at the motion to withdraw hearing that he would not have entered a plea if he had known he would not have been eligible for parole. See Gomez v. State, 300 Ga. 571, 573 (797 SE2d 478) (2017). The court determined that Alexander did not place any “particular emphasis” on his parole eligibility and that there were no “special circumstances” that caused him to place particular emphasis on parole eligibility The lower court summarized proffered evidence of Alexander’s guilt of the charged crimes; found that Alexander strongly believed that he would be convicted at trial; and found that the maximum sentence Alexander could have received after a trial compared to the “more lenient sentence following a plea” weighed against his claim that he would have gone to trial had he known he would have been ineligible for parole. Notably, by entering a nonneg-otiated guilty plea, Alexander “assumed the risk of receiving a sentence of extended duration.” Cox, 290 Ga. at 695.

Decided June 27, 2017

Kenneth D. Kondritzer, for appellant.

Paul L. Howard, Jr., District Attorney, Paige Reese Whitaker, Kevin C. Armstrong, Assistant District Attorneys, for appellee.

The record supports the lower court’s factual findings and determinations, and under the circumstances of this case, we cannot say that the lower court’s conclusion that Alexander did not meet his burden of showing prejudice under the Strickland v. Washington test was in error. “Accordingly, the trial court did not err when it denied [Alexander’s] motion to withdraw his guilty plea on the grounds plea counsel was ineffective.” Gomez, 300 Ga. at 574; see generally Cox, 290 Ga. at 695.

Judgment affirmed.

Ellington, P. J., and Andrews, J., concur.

       In a nonnegotiated guilty plea, Alexander was sentenced to thirty years, to serve fifteen, for each of the three aggravated child molestation counts; fifteen years to serve for each of the three child molestation counts; and fifteen years to serve for each of the two statutory rape counts. The two counts of enticing a child for indecent purposes merged into two of the aggravated child molestation counts. All of the sentences were ordered to run concurrently. The State entered an order of nolle prosequi as to a separate aggravated child molestation count and a separate count of enticing a child for indent purposes.

       270 Ga. 580, 581 (1) (513 SE2d 212) (1999).

       466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984).

       In Hill v. Lockhart, 474 U. S. 52, 58 (106 SCt 366, 88 LE2d 203) (1985), the United States Supreme Court held that the “two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel.”

       Compare State v. Patel, 280 Ga. 181 (626 SE2d 121) (2006); Rollins v. State, 277 Ga. 488 (591 SE2d 796) (2004).

       The charges were based on allegations that Alexander engaged in various sexual acts with the daughter of a man with whom Alexander lived, and with two of the daughter’s friends. All three girls were under the age of sixteen. The sexual acts included, among other things, Alexander inserting his penis in the mouths of all three girls, and engaging in sexual intercourse with two of the girls. The babysitter walked in on Alexander engaging in sexual intercourse with one of the girls. Additionally, there may have been forensic evidence connecting Alexander to the charges.

       At the time they were committed (prior to July 2006), each count of aggravated child molestation carried a maximum sentence of thirty years; each count of child molestation carried a maximum sentence of twenty years; and each count of statutory rape carried a maximum sentence of twenty years. See OCGA §§ 16-6-4 (d) (2006) (aggravated child molestation, punishable by ten to thirty years); 16-6-4 (b) (2006) (child molestation, punishable by five to twenty years); and 16-6-3 (b) (2006) (statutory rape, punishable by one to twenty years). Although each count of enticing a child for indecent purposes carried a maximum sentence of 20 years, even after guilty verdicts at trial, those counts would merge with the aggravated child molestation counts, and no sentence would have been entered on those counts. The maximum sentence Alexander could have received after a trial was 190 years to serve in incarceration.


source: Caselaw Access Project

author: McFADDEN, Presiding Judge.

license: Public Domain

text:
    A17A0386.
    HEISKELL et al. v. ROBERTS.
    (802 SE2d 385)
   McFADDEN, Presiding Judge.

This case stems from a dispute between a former state court judge and a county and its former sole commissioner about the judge’s compensation. The county and the commissioner (together, “the county”) appeal a superior court order entered upon remand from our Supreme Court.

Before us are the trial court’s rulings in favor of the former judge on cross-motions for summary judgment on the county’s claim for reimbursement of his salary supplement and two rulings in favor of the former judge on attorney fees. As to the salary supplement, we affirm because the county has not shown that the supplement was paid with a total absence or want of power. Consequently we also affirm the award of attorney fees to the former judge under the rule that when “an official, acting in his official capacity, is required to hire outside counsel to assert a legal position the local government attorney ... will not assert, and the official is successful in asserting his or her position, the local government must pay the official’s attorney fees.” Gwinnett County v. Yates, 265 Ga. 504, 508 (2) (458 SE2d 791) (1995). And we also affirm, as supported by sufficient evidence, the amount of OCGA § 9-15-14 (a) attorney fees awarded to the former judge for defending against the counterclaims the Supreme Court found to be frivolous.

The former judge, Bruce Roberts, filed suit against Walker County and its sole commissioner at the relevant time, Bebe Heiskell, claiming that, because the county paid him a smaller supplement than his predecessor, it underpaid him for the 15 months that he served as judge of the State Court of Walker County The county denied that it had underpaid him, denied Roberts’s request to pay his legal fees in connection with the case, and filed counterclaims alleging, among other things, that it actually had overpaid Roberts and was entitled to reimbursement for the overpayments. On cross-motions for summary judgment, the trial court granted Roberts’s claim for mandamus and ordered the county to pay him $78,878.55 in unpaid salary; dismissed the counterclaims as barred by judicial immunity; and ordered it to pay Roberts’s attorney fees.

In Heiskell v. Roberts, 295 Ga. 795 (764 SE2d 368) (2014) (“Heiskell I”), our Supreme Court held that the trial court erred in granting summary judgment on the mandamus claim to Roberts instead of to the county, in dismissing the county’s counterclaim for reimbursement, and in granting attorney fees to Roberts based on these erroneous rulings. The court further held that the county’s other counterclaims “totally lacked legal justification,” id. at 803 (4) (b), and that the trial court correctly dismissed them and correctly ruled that the county could be required to pay attorney fees to Roberts under OCGA § 9-15-14 for defending against those claims. Based on these holdings, the Supreme Court affirmed in part, reversed in part, and remanded the case for the entry of a more limited attorney fees award and to allow the county the opportunity to pursue its counterclaim for reimbursement.

On remand, the trial court granted summary judgment to Roberts and denied summary judgment to the county on its counterclaim for reimbursement, ruled that Roberts is entitled to attorney fees in an amount to be determined for defending that counterclaim, and entered a new attorney fees award in Roberts’s favor under OCGA § 9-15-14 for defending against the frivolous counterclaims. The county now appeals.

We find that the trial court correctly granted Roberts summary judgment on the reimbursement counterclaim because the county has not shown that the payment of Roberts’s salary supplement was done with a total absence or want of power. And because Roberts successfully asserted his position on this claim, the trial court did not err in finding that Roberts is entitled to attorney fees for defending against this counterclaim. Finally, as evidence supports the amount of the award of OCGA § 9-15-14 (a) attorney fees to Roberts for defending against the counterclaims the Supreme Court found to be frivolous, we affirm that award.

1. Relevant facts.

According to our Supreme Court, these are the relevant facts:

In 2010, Judge C. Donald Peppers, Sr., of the State Court of Walker County was reelected to a four-year term of office that started on January 1, 2011. Effective June 30, 2011, Judge Peppers retired after 26 years in office; at the time he retired, he was allegedly making $172,102.80 per year, although a portion of his salary was reimbursed by Catoosa County for his service as a part-time judge in that neighboring county On September 16,2011, Governor Nathan Deal announced that he would appoint Bruce Roberts to fill the vacancy
On September 30,2011, Roberts met with Bebe Heiskell, Walker County’s sole commissioner. Heiskell informed Roberts that the base salary for the state court judge position was $60,000 per year, see Ga. L. 1994, p. 3726, § 1, but she allegedly offered to pay him at the rate of $100,000 per year, slightly more than the $94,000 that he was making in his previous job. Roberts requested $110,000, but Heiskell declined, citing budget constraints. Roberts was sworn into office on October 3,2011. He stood for election in the next nonpartisan general election in July 2012, but he lost, meaning that his term of office would end on the last day of 2012. During the period following his defeat, Roberts dismissed about 60 traffic cases. The county paid Roberts at an annualized rate of $100,000 for the 15-month period that he held office.
On October 25, 2012, Roberts filed a complaint for mandamus and other relief against Commissioner Heiskell (in her official capacity) and Walker County Roberts sought to recover the difference between what he was being paid and what Judge Peppers would have been paid for the same period based on the provision of Article VI, Section VII, Paragraph V of the Georgia Constitution of 1983 that says: “An incumbent’s salary, allowance, or supplement shall not be decreased during the incumbent’s term of office.” Roberts also asked for the county to provide him with legal representation, but the county did not do so. Appellants filed an answer and counterclaims for breach of contract, “intentional infliction of monetary damages,” and intentional infliction of emotional distress, all based on Roberts’s dismissal of the traffic cases. Appellants later added a counterclaim seeking reimbursement of all salary paid to Roberts at an annualized rate greater than $60,000; the alleged overpay-ments totaled about $50,000.
Roberts filed a motion for summary judgment, and Appellants filed a cross-motion for partial summary judgment. After a hearing, the trial court entered an order on October 30, 2013, granting Roberts’s mandamus claim and directing Commissioner Heiskell to pay him $78,878.55 from county funds for “salary due and unpaid,” dismissing Appellants’ counterclaims as barred by judicial immunity, and requiring Appellants to pay Roberts’s attorney fees based in part on Gwinnett County v. Yates, 265 Ga. 504 (458 SE2d 791) (1995), and in part on OCGA § 9-15-14. The court also dismissed Walker County as a defendant with respect to Roberts’s mandamus claim, but left the county as a defendant on Roberts’s claim for attorney fees based on Appellants’ counterclaims.

Heiskell I, 295 Ga. at 796-797 (1) (footnotes omitted).

As described above, the Supreme Court affirmed the trial court’s decision in part, reversed it in part, and remanded the case for further proceedings. On remand, the trial court awarded Roberts $30,800 in attorney fees and $772.24 in expenses under OCGA § 9-15-14 for defending against the frivolous counterclaims. The trial court granted summary judgment to Roberts on the reimbursement counterclaim and ruled that he is entitled to attorney fees for defending that claim in an amount to be determined. This appeal followed.

2. Counterclaim for reimbursement.

(a) Roberts is entitled to summary judgment.

The county argues that the trial court erred in granting Roberts’s motion for summary judgment on the counterclaim for reimbursement and denying its motion, because the salary supplement was not properly approved and documented. Thus, it reasons, the salary supplement was not authorized and Roberts must pay it back. We disagree.

“On cross-motions for summary judgment, each party must show there is no genuine issue of material fact . . . and that each, respectively, is entitled to summary judgment [as a matter of law]; either party, to prevail by summary judgment, must bear its burden of proof.” Morgan Enterprises v. Gordon Gillett Bus. Realty, 196 Ga. App. 112 (395 SE2d 303) (1990). See also OCGA § 9-11-56.

On remand, the trial court held that Roberts’s salary was “not contractual and thus not required to be on the minutes” and further that “it is on said minutes and budget for 2011 and 2012.” The record contains the county budgets for those years, which list a single line item for the state court and the minutes reflecting adoption of those budgets. Those bulk line items included the salaries of both the judge and the judge’s secretary and the supplement to the judge’s salary The county contends that, because those budget entries are each a single line item for all of the operations of the state court for the year, they are insufficient as to the judge’s supplement.

We agree with the county that the trial court erred in holding that Roberts’s salary was “not required to be on the minutes,” as that holding is inconsistent with what our Supreme Court wrote in Heiskell I:

Other than holding that the reimbursement counterclaim is not barred by judicial immunity, we express no opinion on the merits of the claim. We note, however, that the claim may depend at least in part on whether the annualized $40,000 supplement paid to Roberts above the $60,000 base salary established by local law was properly approved and documented in a budget or other county ordinance.. .. [B]ut even in a county with a sole commissioner form of government, ordinances must be put in writing and filed in the official records of the commissioner in order to be effective.

Heiskell I, 295 Ga. at 802 (3) (b) n. 5.

But the county has failed to show that the trial court erred in holding the entry on the “minutes and budget for 2011 and 2012” sufficient to defeat the county’s claim for reimbursement. Antecedent to the county’s challenge to the sufficiency of that entry is the question of the standard by which its sufficiency is to be measured. The county has failed to provide a persuasive answer.

A statute authorizes “[t]he county governing authority” to supplement the judge’s compensation. OCGA § 15-7-22. And local legislation, which is set out below, sets the judge’s base salary Ga. L. 1994, pp. 3726-3727, § l. Neither provision mandates a procedure for deciding to pay a supplement.

The county cites OCGA § 36-10-1, which requires counties’ contracts to be in writing and entered on minutes. But the trial court correctly rejected that argument. “[T]he payment of salaries of county officials and employees is not contractual within the provisions of this act.” First Nat. Bank of Atlanta v. Mann, 211 Ga. 706, 707-708 (2) (88 SE2d 361) (1955) (construing the prior codification of the statute, Ga. Code Ann. § 23-1701); Deason v. DeKalb County, 222 Ga. 63, 66 (1) (148 SE2d 414) (1966) (same). Mann involved the salary of a probate judge.

The county also cites the Open Meetings Act, OCGA §§ 50-14-lto 50-14-6. We assume, without holding, that the decision to pay Roberts a supplement was taken in violation of the Open Meetings Act. See OCGA §§ 50-14-1 (b) (2); 50-14-3. But it does not follow that the county is entitled to reimbursement.

The Act specifies remedies for a violation. One of those remedies does provide that any “official action” taken in violation of it “shall not be binding.” OCGA § 50-14-1 (b) (2). See also OCGA §§ 50-14-5 (a) (“The superior courts of this state shall have jurisdiction to enforce compliance with the provisions of this chapter. .. .”); 50-14-6 (providing for a civil penalty for a negligent violation of the Act and for a criminal fine for a knowing and willful violation).

But there is a very short limitation period associated with the shall-not-be-binding remedy The next sentence provides:

Any action contesting a resolution, rule, regulation, ordinance, or other formal action of an agency based on an alleged violation of this provision shall be commenced within 90 days of the date such contested action was taken or, if the meeting was held in a manner not permitted by law, within 90 days from the date the party alleging the violation knew or should have known about the alleged violation so long as such date is not more than six months after the date the contested action was taken.

OCGA § 50-14-1 (b) (2). We have held that the statute’s shall-not-be-binding language is limited by the limitation period in the following sentence. Guthrie v. Dalton City School Dist., 213 Ga. App. 849 (446 SE2d 526) (1994) (defendant school board could not void settlement agreement it entered in violation of Open Meetings Act, because it did not assert a violation of the Act within the 90 days allowed by OCGA § 50-14-1 (b)). The county’s answer and counterclaim were filed in December 2012, well outside the limitation period set out at OCGA § 50-14-1 (b) (2). So the Open Meetings Act is not controlling on the issue of whether the county can recoup Roberts’s salary supplement.

There is, however, an important “distinction between a municipality’s [or a county’s] ultra vires acts — acts done with the total absence or want of power — and the irregular exercise of a granted power. . . City of Baldwin v. Woodard & Curran, Inc., 293 Ga. 19, 26-27 (2) (c) (743 SE2d 381) (2013) (citation and punctuation omitted). As to acts done with the total absence or want of power, Georgia has adopted “[a] strict rule of absolute nullity.” Id. at 25 (2) (a), citing H.G. Brown Family, L.P. v. City of Villa Rica, 278 Ga. 819, 822 (2) (607 SE2d 883) (2005) (citing R. Perry Sentell, Jr., Studies in Local Government Law 545 (3rd ed. 1977)). But a “mere procedural irregularity in the exercise of lawful authority” does not necessarily render an act absolutely void. City of Baldwin, 293 Ga. at 24 (2) (a), 27 (2) (c).

As to whether an act was done with the total absence or want of power, our cases look to the statutes and ordinances empowering local governments and officials. In Mann, 211 Ga. 706, our Supreme Court analyzed local legislation dividing the responsibility to set the probate judge’s salary between the county commission and a grand jury In H.G. Brown, 278 Ga. at 820, our Supreme Court explained that “the [c]ity’s charter, enacted by the General Assembly, sets forth the parameters of the [c]ity’s authority to take official action, including its ability to enter into contracts.” Id. at 820 (1) (citation omitted). In City of Baldwin, 293 Ga. at 19, our Supreme Court analyzed the city’s charter.

In the case before us the county has identified no local legislation, charter, or other law that supports the proposition that the county’s payment of a supplement to Roberts was done with the total absence or want of power. For these reasons, the trial court did not err in granting Roberts’s motion for summary judgment and denying the county’s motion for summary judgment on the reimbursement counterclaim.

(b) Voluntary payment doctrine.

Even if Roberts were not entitled to summary judgment on the reimbursement counterclaim, the county would not be entitled to summary judgment either. “The party seeking to recover payments made bears the burden of showing that the voluntary payment doctrine does not apply.” Montgomery County v. Sharpe, 261 Ga. App. 389, 390 (582 SE2d 545) (2003) (citation omitted; emphasis supplied) (county was precluded from recovering payments from tax commissioner because payments were nothing but a mistake of law). The county has not satisfied that burden.

3. Roberts’s entitlement to attorney fees on the counterclaim for reimbursement.

The county argues that Roberts is not entitled to fees for defending against the reimbursement counterclaim because he was unsuccessful in pursuing his principal claim, the claim for mandamus. We disagree.

When

an official, acting in his official capacity, is required to hire outside counsel to assert a legal position the local government attorney cannot (because of a conflict in representing the local government) or will not assert, and the official is successful in asserting his or her position, the local government must pay the official’s attorney fees.

Yates, 265 Ga. at 508 (2). An “official’s entitlement to attorney fees depends on his success in asserting his position in court,” Heiskell I, 295 Ga. at 803 (4) (a), and fees may be awarded even if he is not successful in obtaining all the relief requested. Jennings v. McIntosh County Bd. of Commrs., 276 Ga. 842, 847 (5) (583 SE2d 839) (2003) (citations omitted) (magistrate judge’s suit seeking back pay, return to position as clerk of court, and attorney fees and costs). As Roberts was entirely successful in defending against the reimbursement counterclaim, the trial court did not err in ruling that he is entitled to fees.

4. The attorney fees award for defending the frivolous counterclaims.

The county argues that the trial court erred in awarding Roberts $31,572.24inOCGA § 9-15-14 (a) attorneyfees and expenses because the award included fees incurred for work other than defending the frivolous counterclaims. They specify that the attorney’s time sheet introduced into evidence at the post-remand hearing included several entries for work related to the mandamus claim and the reimbursement counterclaim. They argue that these charges included time spent in reviewing their answer and all of their counterclaims, not just the three out of four the Supreme Court found to be frivolous; answering interrogatories related to the mandamus claim; and a general review of the case.

Decided June 27, 2017

As the trial court awarded Roberts attorney fees under OCGA § 9-15-14 (a), we must affirm the award if there is any evidence to support it. Haggard v. Bd. of Regents of the Univ. System of Ga., 257 Ga. 524, 527 (4) (c) (360 SE2d 566) (1987). Under OCGA § 9-15-14 (d), “[attorney's fees and expenses of litigation awarded under this Code section shall not exceed amounts which are reasonable and necessary for defending or asserting the rights of a party” We have held that this language “imposes an affirmative duty upon the trial court to hear evidence and allow the cross-examination of counsel as to the necessity, reasonableness, and amount of work done by counsel by the opposite party prior to the imposition of an award.” Hallman v. Emory Univ., 225 Ga. App. 247, 252 (4) (483 SE2d 362) (1997). But “[t]he trial court need not cite specific testimony, argument of counsel, or any other specific factual reference in its order awarding fees under OCGA § 9-15-14; it is only required to specify the conduct upon which the award is made.” Cohen v. Rogers, 341 Ga. App. 146, 152 (2) (b) (798 SE2d 701) (2017) (citation and punctuation omitted).

Applying those standards here, we conclude that “sufficient proof of the actual costs and the reasonableness of those costs” supports the award. Hindu Temple and Community Center of the High Desert v. Raghunathan, 311 Ga. App. 109, 117-118(3) (714 SE2d 628) (2011). Our Supreme Court affirmed the trial court’s determination that Roberts was entitled to fees under OCGA § 9-15-14 (a), but directed the trial court to “enter an award based solely on Roberts’s reasonable attorney fees and litigation expenses incurred in defending against the . . . three counterclaims” other than the counterclaim for reimbursement. Heiskell I, 295 Ga. at 803 (4) (b). On remand, the trial court conducted a hearing at which counsel testified and was subject to cross-examination. Counsel introduced evidence in support of the claim. The court entered an order that made findings supported by the evidence, allocating fees between the frivolous counterclaims and the counterclaim for reimbursement.

“[T]he goal in shifting attorney fees is to do rough justice, not to achieve auditing perfection.” Cohen, 341 Ga. App. at 154 (2) (b). As evidence supports the award of fees and costs under OCGA § 9-15-14 (a), we must affirm the award. Haggard, 257 Ga. at 527 (4) (c).

Judgment affirmed.

Branch and Bethel, JJ., concur.

W. David Cunningham, Benjamin T. Bradford, Donald F. Oliver, for appellants.

Farrar & Corbin, Archibald A. Farrar, Jr., for appellee.

       An Act creating the State Court of Walker County, approved March 5, 1957 (Ga. L. 1957, p. 2561), as amended, particularly by an Act approved March 20, 1986 (Ga. L. 1986, p. 4144), and particularly by an Act approved March 31,1987 (Ga. L. 1987, p. 5111), is amended by striking Section 3 in its entirety and substituting in lieu thereof a new Section 3 to read as follows:
      “Section 3. (a) There shall be a full-time judge of the State Court of Walker County who shall be elected for a four-year term as provided by Code Section 15-7-20 of the OCGA. In the event a vacancy occurs in the office of said judge for any reason, such vacancy shall be filled as provided in Code Section 15-7-23 of the OCGA.
      (b) The judge of said state court shall receive a salary of $60,000.00 per annum. Such salary shall be paid in equal monthly installments from the funds of Walker County.
      (c) In addition to the secretary appointed by the solicitor pursuant to Section 10.1 of this Act, the judge shall have the authority to appoint a secretary who shall serve at the pleasure of the judge and shall perform such duties as may be prescribed by the judge. Such secretary shall be compensated from the funds of Walker County in the amount of $15,500.00 per year, payable in equal monthly installments.”


author: McMillian, Judge.

text:
    A17A0470.
    THE STATE v. NICHOLSON.
    (803 SE2d 85)
   McMillian, Judge.

The State appeals the trial court’s order granting Kevin Thomas Nicholson’s motion to suppress the results of a state-administered chemical blood test, arguing that the trial court erred in concluding that Nicholson did not voluntarily consent to the test. For the reasons that follow, we agree and reverse.

“On appeal from a ruling on a motion to suppress, we defer to the trial court’s factual findings and credibility determinations, but review de novo the court’s application of the law to the undisputed facts.” (Citation and punctuation omitted.) State v. Depol, 336 Ga. App. 191, 191 (784 SE2d 51) (2016). And, where, as here, the controlling facts are undisputed because they are plainly discernable from the patrol car-mounted video recording, those facts are reviewed de novo. Id.

So viewed, the record shows that at approximately 7:00 p.m. on the evening of June 7, 2014, a Georgia State Patrol Trooper saw that the driver of a motorcycle was not wearing a helmet. When the motorcycle, driven by Nicholson, pulled into a nearby parking lot, the trooper activated his patrol vehicle’s lights, drove into the parking lot, and began a traffic-related investigation. As soon as the trooper approached Nicholson, who was still seated on his motorcycle in an open area, he smelled the odor of intoxicants. While speaking with Nicholson about the need to wear a helmet, the trooper specifically noticed the odor of an alcoholic beverage coming from his breath, and Nicholson admitted to having consumed two beers. Because he had observed Nicholson driving a motorcycle without wearing a helmet, detected the odor of an alcoholic beverage, and received an admission from Nicholson that he had consumed alcohol, the trooper determined that it was appropriate for him to conduct an investigation to determine whether Nicholson was an impaired driver.

After instructing Nicholson, the trooper performed various standardized field sobriety tests, including the horizontal gaze nystag-mus (HGN), the walk and turn, and the one leg stand. The trooper observed six out of six clues for the HGN, four out of eight clues for the walk and turn, and two out of four clues for the one leg stand. Based on the results of those tests, including Nicholson’s slurred speech and swaying, and in addition to his initial observations, the trooper believed that Nicholson was impaired due to the consumption of alcoholic beverages and placed him under arrest for driving under the influence and handcuffed him. The trooper then asked Nicholson how many alcoholic beverages he had actually consumed, and Nicholson changed his response to “two or three.” The trooper also asked Nicholson if he understood he was under arrest for DUI, and he responded, “Uh, yes, sir. I guess.”

Immediately following the arrest, the trooper read Nicholson Georgia’s implied consent notice for suspects over the age of 21 and asked whether Nicholson would agree to a state-administered chemical test of his blood. According to the trooper, Nicholson responded in the affirmative, indicating he was willing to undergo the blood test, and a review of the recording shows that Nicholson nodded his head yes in response to the trooper’s question. The trooper took Nicholson to the Villa Rica Police Department where his blood was drawn by an employee of Ten-Eight Forensics, a company the local Georgia State Patrol routinely uses to draw blood. The trooper was present for the blood draw and observed that Nicholson was cooperative during the procedure, did not resist in any fashion, and did not object or withdraw his consent to the blood test.

In December 2014, the Carroll County Solicitor-General’s Office filed a three-count accusation, charging Nicholson with driving under the influence (less safe), driving under the influence (per se), and failure to wear protective gear on a motorcycle. Nicholson filed a motion to suppress the results of the blood test, which he later supplemented after our Supreme Court’s decision in Williams v. State, 296 Ga. 817 (771 SE2d 373) (2015). Following a hearing in May 2015, at which the trooper was the only witness presented, the trial court issued an order granting the motion to suppress. In its order, the trial court found that, following the trooper’s correct reading of Georgia’s implied consent notice, Nicholson agreed to the state-administered chemical test of his blood without objection and without withdrawing his consent. However, the trial court found that the State had proven only that Nicholson had submitted to the trooper’s request and that this was insufficient to establish “factual consent.” This appeal followed.

1. In its first enumeration of error, the State asserts that the trial court erred in granting the motion to suppress because it incorrectly found that Nicholson’s response was merely a “submission” and not a “factual consent.” In Williams, our Supreme Court rejected a “per se rule automatically equating an affirmative response to the implied consent notice with actual consent to a search within the meaning of the Fourth Amendment.” (Citations and punctuation omitted.) McKibben v. State, 340 Ga. App. 89, 92 (796 SE2d 478) (2017). The courts are now “charged instead with conducting a case-by-case analysis, considering the totality of the circumstances.” (Citations and punctuation omitted.) Id. at 93. Thus, the results of a warrantless blood test are subject to suppression unless the State establishes that the defendant freely and voluntarily consented to the test. Id.

In conducting a totality of the circumstances analysis, we have considered a host of factors. Aconsent to search will normally be held voluntary if the totality of the circumstances fails to show that the officers used fear, intimidation, threat of physical punishment, or lengthy detention to obtain the consent.

(Citation omitted.) Jackson v. State, 340 Ga. App. 228, 228-29 (1) (797 SE2d 152) (2017). Moreover,

[t]he defendant’s affirmative response to the implied consent notice may itself be sufficient evidence of actual and voluntary consent, absent reason to believe the response was involuntary. The defendant’s failure to express an objection to the test or change his or her mind also is evidence of actual consent.

(Citation omitted.) Id. at 229 (1).

Decided June 27, 2017.

Here, the undisputed facts show that Nicholson was neither injured nor threatened with harm during his interaction with the trooper. Nicholson appeared to be acting and responding rationally and did not appear to be confused or extremely intoxicated. Throughout their encounter, the trooper maintained a friendly demeanor and tone of voice and allowed Nicholson to ask questions. At one point, Nicholson asked if he could perform the walk and turn test on more even ground, and the trooper readily agreed, moving his patrol vehicle so that the camera would be facing the area of the parking lot that Nicholson chose. Nor does Nicholson argue that youth, lack of education, or low intelligence somehow negated the voluntariness of his consent. See McKibben, 340 Ga. App. at 93.

Nicholson, however, argues that “this Court cannot overlook the wording of the implied consent notice itself and the effect this created on [Nicholson].” According to Nicholson, because the implied consent notice uses the word “submit” versus “consent,” a defendant’s submission to a search (via a state-administered blood test) under Georgia’s implied consent statute is not the same as a defendant “actually consenting” to a search under the Fourth Amendment, an assertion that the trial court adopted in its order granting the motion to suppress. However, this Court has previously considered and rejected this argument. See Kendrick v. State, 335 Ga. App. 766, 769-71 (782 SE2d 842) (2016) (implied consent notice is not coercive in failing to inform suspect of right to refuse); State v. Oyeniyi, 335 Ga. App. 575, 578 (782 SE2d 476) (2016) (implied consent notice is not misleading or an overstatement of penalties authorized by law).

Based upon our de novo review, we find that, under a totality of the circumstances, Nicholson freely and voluntarily consented to the blood test. Accordingly, we reverse the trial court’s grant of Nicholson’s motion to suppress. See Depol, 336 Ga. App. at 200; State v. Young, 339 Ga. App. 306, 312 (793 SE2d 186) (2016) (where there is no evidence defendant’s consent was anything but free and voluntary, trial court erred in granting motion to exclude).

2. Based on our holding in Division 1, the State’s remaining enumeration of error is moot.

Judgment reversed.

Barnes, P. J., and Mercier, J., concur.

Douglas C. Vassy, Solicitor-General, James W. Kesler, Assistant Solicitor-General, for appellant.

Stein & Ward, George A. Stein, Steven M. Ward, T. Kevin Mooney, for appellee.

       The encounter was recorded by the trooper’s patrol car camera, and a digital copy of the audio and video recording was admitted into evidence without objection at the motion to suppress hearing.

       The results of the blood test indicated Nicholson had a blood alcohol concentration of 0.136.

       See OCGA § 40-6-391 (a) (1) and (5) and OCGA § 40-6-315.

       In Williams, the Supreme Court clarified that, “[wjhether a warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case based on the totality of the circumstances.” (Citation and punctuation omitted.) Williams, 296 Ga. at 821.

       At the hearing, Nicholson conceded that he is not contesting the traffic stop or the trooper’s reading of the implied consent warning.

       The trial court did find, however, even disregarding the results of the blood test, that there was probable cause for Nicholson’s arrest and denied Nicholson’s motion to dismiss.

       Georgia’s implied consent notice applicable to suspects over 21 concludes with the question: “Will you submit to the state administered chemical tests of your [blood] under the implied consent law?” OCGA § 40-5-67.1 (b) (2).


author: Branch, Judge.

text:
    A17A0578.
    STYLES v. SPYKE TEN, LLC.
    (802 SE2d 369)
   Branch, Judge.

Freddie Styles appeals following the denial of his motion to set aside a default judgment entered against him in a suit where he was served by publication. Because we find that the trial court erred by allowing service by publication, we reverse.

In his motion, Styles attacked the trial court’s jurisdiction over him based on improper service, and a trial court’s judgment may be set aside for “[l]ack of jurisdiction over the person.” OCGA § 9-11-60 (d) (1). “We review a trial court’s ruling on a motion to set aside a judgment under OCGA § 9-11-60 (d) for abuse of discretion.” Moore v. Davidson , 292 Ga. App. 57, 58 (663 SE2d 766) (2008) (citation omitted). “Factual disputes regarding service are to be resolved by the trial court, and the court’s findings will be upheld if there is any evidence to support them.” Vibratech, Inc. v. Frost, 291 Ga. App. 133, 140 (1) (b) (661 SE2d 185) (2008) (citation, punctuation and emphasis omitted).

The record shows that on October 6, 2015, based on unpaid taxes, the DeKalb County Tax Commissioner sold property owned by Styles, located at 149 Candler Road, Atlanta, Georgia 30317 (the “DeKalb property”), to Callaway Holdings, LLC, for $150,000. The sale generated $145,423.69 of funds in excess of the amount due to the tax commissioner (which funds were later deposited into the registry of the court). Shortly before the DeKalb tax sale, Spyke Ten, LLC, had acquired a tax lien against Styles from Fulton County based on unpaid taxes of $2,574.33 on a separate property located in Fulton County. After the DeKalb tax sale, Spyke Ten purported to exercise a redemption of the DeKalb property under OCGA § 48-4-40 et seq. by paying $180,000 to Callaway Holdings.

In an unverified complaint, Spyke Ten then filed suit to enforce a claim of lien against the DeKalb property arising from its redemption of that property pursuant to OCGA § 48-4-43; it also sought to foreclose on the DeKalb property, to quiet title to that property pursuant to OCGA § 23-3-40, and to recover the excess funds generated by the DeKalb tax sale. In the petition, Spyke Ten asserted that Styles could be served at an address different from the subject property, namely 98 Candler Road S.E., Atlanta, Georgia. Spyke Ten also asserted that it would “serve any tenant, owner, or occupant of [149 Candler Road] by tacking and mailing.” In two affidavits of service filed with the court, the process server averred that he did just that: he served the petition and summons “by posting same on the subject property[, i.e., 149 Candler Road S.E.] on December 29, 2015, 2:08 p.m.,” and he attempted to serve the petition and summons on Styles at 2:14 p.m. the same day at 98 Candler Road S.E. but averred that Styles was “ ‘Non-Est’ at this vacant, uninhabitable house address.”

Less than 30 days later, Spyke Ten moved to allow service on Styles by publication under OCGA § 9-11-4 (f) (1) (B). In support of its motion, Spyke Ten attached an affidavit of its attorney who averred the following: that he searched for Styles’s address; that Spyke Ten based its attempts at service on the efforts of an unnamed “skip tracer” who found the last known address using “the database maintained by Lexis-Nexis, and has been unable to locate a more current address”; that Spyke Ten attempted personal service on Styles at that last known address; and that the process server’s affidavit was returned marked “non est.” No affidavit from the skip tracer was presented. The trial court allowed service by publication on the ground that Styles could not be found within the state.

When Styles failed to answer after publication, Spyke Ten filed a motion for a default judgment and final order, which the trial court granted. Without an accompanying affidavit, Spyke Ten attached to its motion a copy of an envelope that is not dated, stamped, or postmarked, which is addressed to “Tenant/Owner/Occupant” at 149 Candler Road. The final order included, among other things, “a judgment against all Respondents for equitable subrogation in the amount of $180,000.00 plus applicable statutory interest.”

Styles responded with a verified motion to set aside the judgment. In the motion, Styles averred that he was the owner of 149 Candler Road; that he resided at the property at the time of the attempted service; that he had resided there continuously for years; that the home has utility service, a flower bed that Styles tends all year, and a garbage bin; that he was never properly served; and that he had not attempted to evade service. Attached to a subsequent brief, Styles submitted DeKalb County Real Estate Tax Statements for the years 2012, 2013, 2014, and 2015, each of which shows that it is addressed to Styles at 149 Candler Road.

Spyke Ten responded, and among other things, argued that Styles “likely had actual knowledge of this action but simply chose to ignore it” given that a notice was tacked onto the door of the address where Styles claimed to reside. At a hearing on Styles’s motion, Spyke Ten’s counsel stated that the Lexis database that was used to find Styles’s last known address is named “Accurint.” Spyke Ten’s process server testified that he was specifically hired to attempt service on Styles at 98 Candler Road; that when he went to 149 Candler Road, it was his “purpose ... to post the property”; that 149 Candler Road appeared to be uninhabited; that he did not encounter Styles at 149 Candler Road; and that he did not see cars, a garden, or a garbage bin on the property. On cross-examination, however, he admitted that he did not have any information showing that Styles did not live at 149 Candler Road; that he did not look on the Internet for any information about where Styles might live; that he was not hired to research where Styles might live, stating “There are times I am retained to do locate and investigations. In this case I was not”; that he was only hired to make the service that he attempted; that if he had been hired to perform an investigation it might have included searching “a number of proprietary investigative data bases among other things,” and “old-fashioned gum shoe checking out places”; that he also could have used on-line resources to look for Styles’s tax returns on the property; that he could easily have looked at other on-line resources such as 411.com and whitepages.com, although he preferred to use more sophisticated resources; and that he took no additional steps to locate Styles, stating that “once I visited 149, didn’t see him there, I didn’t make any further efforts.” Spyke Ten’s skip tracer again did not testify.

The trial court denied Styles’s motion to set aside on three grounds. It first found that Spyke Ten showed that it had satisfied “state and federal concepts of due process” because it “underwent steps reasonably calculated to give the defendant actual notice of this action” by attempting to serve Styles at 98 Candler Road where the Lexis search showed that he resided at the time, by posting at 149 Candler Road, and by mailing a copy of the summons and petition to 149 Candler Road, such that it was reasonable to infer that Styles had actual knowledge of the action but chose to ignore it. Second, the court found that service by publication satisfied OCGA § 9-11-4 (f) (1) (B) by posting at 149 Candler Road and attempting personal service at 98 Candler Road because it reasonably relied on the Lexis search result in attempting to locate Styles. Finally the court found that the notice by publication was proper and a defect in the publisher’s affidavit was immaterial. We granted Styles’s application for discretionary review.

The service by publication underlying Spyke Ten’s in personam default judgment against Styles is insufficient to support that judgment unless it satisfies the requirements of OCGA § 9-11-4 (f) (1) (B) and due process. Hutcheson v. Elizabeth Brennan Antiques & Interiors, 317 Ga. App. 123, 127 (1) (730 SE2d 514) (2012) (“service must be made as provided by the Code section”) (footnote omitted); Abba Gana v. Abba Gana, 251 Ga. 340, 343 (1) (304 SE2d 909) (1983) (“regardless of whether a proceeding is in rem or in personam, due process requires that a chosen method of service be reasonably certain to give actual notice of the pendency of a proceeding to those parties whose liberty or property interests may be adversely affected by the proceeding”).

Both OCGA § 9-11-4 (f)(1) (B) and due process require a showing that the plaintiff has acted with due diligence when attempting to locate the defendant. OCGA § 9-11-4 (f) (1) (B) (judge may order service by publication where the defendant “cannot, after due diligence, be found within the state, or conceals himself or herself to avoid the service of the summons”); Abba Gana, 251 Ga. at 343 (1) (“Because notice by publication is a notoriously unreliable means of actually informing interested parties about pending suits, the constitutional prerequisite for allowing such service when the addresses of those parties are unknown is a showing that reasonable diligence has been exercised in attempting to ascertain their whereabouts.”) (citations omitted); Ragan v. Mallow, 319 Ga. App. 443, 446-447 (2) (744 SE2d 337) (2012). In making this decision, “it is the duty of the courts to determine whether the movant has exercised due diligence in pursuing every reasonably available channel of information.” Abba Gana, 251 Ga. at 343 (1). “[Although it is the trial court which first passes upon the legality of notice, the appellate courts must independently decide whether under the facts of each case the search for the absentee interested party was legally adequate.” Id.; H & C Dev. v. Bershader, 248 Ga. App. 546, 549-550 (1) (546 SE2d 907) (2001).

Here, Spyke Ten’s offer of proof as to its own due diligence fails to meet the required standard. First, Spyke Ten’s attorney’s affidavit that the skip tracer found the last known address using a Lexis database shows that only one source was used to attempt to obtain the correct address, and the website used has a disclaimer stating that the information should be independently verified. Second, the simple assertion that Spyke Ten used a skip tracer is insufficient to show due diligence without providing specific details or dates to show diligence. See McGhee v. Jones, 287 Ga. App. 345, 346 (1) (652 SE2d 163) (2007). Third, Spyke Ten gave the process server the limited instruction to serve Styles at what turned out to be the wrong location and to tack service on 149 Candler Road; Spyke Ten did not instruct the process server to investigate and locate Styles for purposes of service. Fourth, the process server testified that he had several additional channels for obtaining information about Styles but that he was not hired to use them and therefore did not do so. Fifth, the envelope submitted as purported evidence for the assertion that Spyke Ten mailed the summons and petition to 149 Candler Road does not have a postmark, postage, or a date, and it is therefore of little value in determining whether Spyke Ten mailed anything or what steps Spyke Ten actually performed and when. Sixth, the process server made only one outing to perform his two efforts at service, which occurred six minutes apart, following which he made no further attempts to locate or serve Styles. Seventh, the process server offered no evidence to show that Styles was actually at 149 Candler Road at the time of the attempted service but avoided coming to the door.

In sum, Spyke Ten has not shown that Styles could not be found in the state or that he concealed himself to avoid service. See OCGA § 9-11-4 (f) (1) (B); cf. Hutcheson, 317 Ga. App. at 127 (1) (“ ‘substantial compliance’ in matters involving service of process is insufficient”) (footnote omitted). And Spyke Ten plainly failed to pursue every reasonable “channel of information” in attempting service. Abba Gana, 251 Ga. at 344 (1); see also Hamilton v. Renewed Hope, 277 Ga. 465, 469 (589 SE2d 81) (2003) (error upholding service by publication where plaintiff did not show that it made any effort to obtain defendant’s address “from any source other than the tax and deed records, that other channels of information were not reasonably available, or that use of them would have been impractical or fruitless”) (citation and punctuation omitted). Accordingly, the trial court abused its discretion by permitting service by publication, and the denial of Styles’s motion to set aside the default judgment must be reversed. It follows that we need not reach Styles’s enumeration of error concerning the legal validity of the trial court’s final judgment.

Decided June 27, 2017.

A. Thomas Stubbs, for appellant.

Ayoub & Mansour, John A. B. Ayoub, Carolina D. Bryant, for appellee.

Judgment reversed.

McFadden, P. J., and Bethel, J., concur.

       Although Spyke Ten’s petition states that the Fulton tax lien pertained to 149 Candler Road, thefi.fa. attachedto the petition shows alien pertainingto “2455 McAlpin Ter” in Fulton County.

       “OCGA § 48-4-40 authorizes redemption by ‘the defendant in fi. fa. or any person having any right, title, or interest in or lien upon such property.’ OCGA § 48-4-41 authorizes redemption by ‘a creditor of the defendant in fi. fa. who has no lien....’ ” DRST Holdings v. Brown, 290 Ga. 3Í7, 318 (2) (720 SE2d 626) (2012) (punctuation omitted).

       OCGA § 9-11-4 (f) (1) (B) provides:
      In any action which relates to, or the subject of which is, real or personal property in this state in which any defendant, corporate or otherwise, has or claims a lien or interest, actual or contingent, or in which the relief demanded consists wholly or in part of excluding such defendant from any interest therein, where the defendant resides outside the state or has departed from the state, or cannot, after due diligence, be found within the state, or conceals himself or herself to avoid the service of summons, the judge or clerk may make an order that the service be made by publication of summons. The service by publication shall be made in the same manner as provided in all cases of service by publication.

       The Lexis Accurint database is a search engine to locate people and businesses. It reviews “65 billion public and proprietary records from more than 10,000 diverse sources.” However, it cautions the user:
      This product or service aggregates and reports data, as provided by the public records and commercially available data sources, and is not the source of the data, nor is it a comprehensive compilation of the data. Before relying on any data, it should be independently verified.
      https://www.lexisnexis.com/en-us/products/accurint-for-legal-professionals.page (accessed May 30, 2017).

       Although this third point is raised on appeal, it is moot given our holding below.

       For this reason Styles’s pending motion for leave to file a supplement brief is denied.


author: BARNES, Presiding Judge.

text:
    A17A0243.
    CENTRAL GEORGIA WOMEN’S HEALTH CENTER, LLC et al. v. DEAN et al.
    (800 SE2d 594)
   BARNES, Presiding Judge.

Katherine B. Dean and Lester Harold Dean IV, individually and as administrators of the estate of their deceased child, filed this medical malpractice action against several defendants, including Dr. Henry J. Davis and Central Georgia Women’s Health Center, LLC (collectively, the “Davis Defendants”), seeking damages for the wrongful death of their child and for the pain and suffering of their child and Mrs. Dean. Following a seven-day trial, the jury awarded the plaintiffs over $4 million in damages and apportioned 50 percent of the fault to the Davis Defendants. The Davis Defendants now appeal, contending that the trial court erred in denying their motions for directed verdict and for judgment notwithstanding the verdict (“j.n.o.v.”) because the plaintiffs failed to present evidence to a reasonable degree of medical certainty that the child’s premature delivery and death could have been prevented by Dr. Davis. The Davis Defendants also contend that the trial court erred in denying their motion for new trial because the plaintiffs should not have been permitted to cross-examine Dr. Davis about an entry he made in Mrs. Dean’s hospital chart that the plaintiffs alleged was probative of his untruthfulness. For the reasons discussed below, we affirm.

Construed in favor of the jury’s verdict, the evidence shows that in April 2007, Mrs. Dean became a patient at the Central Georgia Women’s Health Center, LLC (“Women’s Health Center”), an obstetrics-gynecology practice in Macon. Mrs. Dean was 33 years old and six weeks pregnant at her first visit. She had two prior miscarriages and had previously undergone a loop electrosurgical excision procedure (“LEEP”) to remove abnormal tissue from her cervix. Undergoing a LEEP procedure can place a woman at risk for a medical condition known as an “incompetent” or “insufficient” cervix in which the cervix is too weak, without medical intervention, to support a pregnancy to term. Administering progesterone and/or performing a “cerclage,” a surgical procedure in which the cervix is sewn closed during pregnancy, were known treatments for cervical incompetence in 2007.

On her initial office visit at the Women’s Health Center, Mrs. Dean saw Dr. Kerry Holliman and informed her of her medical history Because of Mrs. Dean’s prior LEEP procedure, Dr. Holliman ordered that ultrasounds be performed at an increased frequency throughout the pregnancy. The ultrasounds would show whether Mrs. Dean’s cervix abnormally shortened in length and/or exhibited tunneling, which are prominent markers for cervical incompetence and preterm delivery

The July 25, 2007 Ultrasound. Over the course of her pregnancy, Mrs. Dean’s ultrasounds showed a progressive shortening of her cervix. At Mrs. Dean’s first ultrasound visit on April 2, 2007, her cervical length was 4.4 centimeters. By July 11, 2007, her cervical length was 3.6 centimeters. Asubsequent ultrasound on July 25,2007 showed that Mrs. Dean’s cervix had shortened to 1.9 centimeters with tunneling at one point during the ultrasound.

Mrs. Dean was 22 weeks, four days pregnant at the time of the July 25 ultrasound. A cervical length of less than 2.5 centimeters at that early stage of a pregnancy is considered “critical” and increases the risk of premature delivery (i.e., before 34 weeks) to greater than 50 percent. A baby born prematurely at 22 weeks has approximately a 10 percent chance of survival. Based on the July 25 ultrasound results, Dr. Holliman told Mrs. Dean to “take it easy,” not lift any heavy objects, and come back to the office in one week for an additional ultrasound.

The July 31, 2007 Hospital Visit and, Call to Dr. Davis. After the July 25 ultrasound, Mrs. Dean stayed home from work and rested. However, before the week passed, on the evening of July 31, 2007, Mrs. Dean began to have thick, dark vaginal discharge. Mrs. Dean and her husband drove to the hospital emergency room. On the way to the hospital, Mrs. Dean spoke on the telephone with Dr. Davis, who was the obstetrician-gynecologist on-call that night for the Women’s Health Center. Mrs. Dean informed Dr. Davis of her prior LEEP procedure, the shortening of her cervix shown on the July 25 ultrasound, her week of bed rest, and the thick brown discharge. Dr. Davis told Mrs. Dean that the thick brown discharge was probably “old blood” from the ultrasound, that the hospital would likely send her home, and that she could just come to her scheduled office visit at 9:00 the following morning.

Mrs. Dean and her husband decided to continue to the hospital for an evaluation, where Mrs. Dean was seen by a nurse in the labor and delivery department. The nurse took down Mrs. Dean’s medical history, questioned her about her symptoms, and conducted a vaginal examination. Mrs. Dean explained to the nurse that she had dark, brown vaginal discharge, vaginal spotting, cramping, and urinary frequency and burning. The nurse noted from her vaginal examination that Mrs. Dean’s cervix was not dilated and that she was having no contractions.

The nurse called Dr. Davis and spoke with him about the results of the examination. Dr. Davis did not come to the hospital to evaluate Mrs. Dean or order any diagnostic tests such as an ultrasound or urinalysis. He recommended that Mrs. Dean continue with bed rest and gave the nurse orders over the phone to discharge Mrs. Dean from the hospital. Mrs. Dean was told to follow-up the next morning with the Women’s Health Center at her previously scheduled 9:00 a.m. office visit. The nurse told Mrs. Dean that Dr. Davis had diagnosed her with a urinary tract infection and checked a box on her discharge instructions for her to drink more fluids for such an infection.

The August 1, 2007Premature Delivery. After her discharge from the hospital, Mrs. Dean experienced worsening symptoms throughout the night, including pelvic pressure, urinary frequency and burning, and lower abdominal pain. Early on the morning of August 1, 2007, Mrs. Dean called Dr. Davis and reported her worsening symptoms, but Dr. Davis reiterated that he believed she had a urinary tract infection, that if she went to the emergency room again she would simply be sent back home, and that she should come to the office for her regular appointment at 9:00 that morning.

Mrs. Dean arrived at the Women’s Health Center for her 9:00 a.m. appointment and was seen by another obstetrician in the group, who examined her and ordered an ultrasound. When the ultrasound showed increased cervical shortening from the previous July 25 ultrasound, the obstetrician diagnosed Mrs. Dean with “possible incompetent cervix” and recommended that Mrs. Dean go directly to the nearby office of Dr. Mark Boddy, a maternal fetal medicine specialist with whom obstetricians in the area routinely consulted. Before Mrs. Dean could see Dr. Boddy at his office, however, she was sent to the hospital labor and delivery department because of her increased complaints of pain.

At the hospital, Mrs. Dean went into premature labor, and Dr. Holliman delivered her baby by emergency cesarean section that night because of the baby’s transverse (or sideways) position. Postoperative hospital records listed Mrs. Dean’s diagnosis as incompetent cervix. The baby was at a gestational age of 23 weeks, four days and weighed one pound, four ounces at the time of delivery The baby subsequently died in the hospital neonatal intensive care unit because of extreme prematurity. The pathology report found no signs of infection and listed incompetent cervix under Mrs. Dean’s clinical history A urinalysis performed on Mrs. Dean in the hospital tested negative for infection.

The August 2, 2007 Physician Note. On August 2, 2007, as Mrs. Dean was recovering in the hospital from her cesarean section, Dr. Davis wrote a physician progress note at 10:00 a.m. reflecting that he had physically examined her (the “August 2 Physician Note” or “Note”). Mrs. Dean, however, had no memory of Dr. Davis ever coming into her room that day, and Mr. Dean testified that a different physician from the Women’s Health Center visited his wife’s hospital room on August 2, but not until that evening. Dr. Davis, at some unknown time after making the August 2 Physician Note, struck through the entire entry and wrote “error pt [patient] not seen[,] out of room” followed by his signature. In contrast, other medical records prepared by a nurse on August 2 reflect that Mrs. Dean and her husband had been in the hospital room that morning, and Mrs. Dean testified that she did not leave her hospital room that day.

The August 4, 2007Physician Note. On August 4, 2007, Dr. Davis documented in his physician progress notes at 9:15 a.m. that he performed a physical exam of Mrs. Dean that included listening to her lungs and bowel sounds with a stethoscope and checking her extremities for swelling. Mrs. Dean, however, testified that Dr. Davis had lifted up her patient gown and looked at her surgical incision, but had done nothing else that day to physically assess her condition. Mr. Dean, who was in the hospital room at the time, testified that Dr. Davis had simply looked under his wife’s gown at the surgical incision and that if the physician progress note documented a more thorough exam, it was inaccurate.

Discharge from the Hospital and, Subsequent Pregnancy. On August 4, 2007, after Dr. Davis visited her hospital room, Mrs. Dean was discharged from the hospital. The discharge summary prepared by Dr. Davis listed incompetent cervix as the clinical reason for Mrs. Dean’s hospitalization.

Mrs. Dean gave birth again in 2009. Mrs. Dean was seen by an obstetrician in a different practice, who administered progesterone and performed a cerclage to treat her condition of incompetent cervix. Mrs. Dean went into labor at 34 weeks and gave birth to a healthy baby.

The Wrongful Death Suit. In 2009, Mr. and Mrs. Dean, individually and as administrators of the estate of their deceased child, filed this medical malpractice action against several defendants, including the Davis Defendants, in which they sought damages for the wrongful death of their child and for the pain and suffering of their child and Mrs. Dean. Before trial, the Davis Defendants filed two motions in limine seeking to prevent the plaintiffs from presenting any evidence regarding the August 2 Physician Note. The plaintiffs responded that the August 2 Physician Note reflected false entries in the medical record by Dr. Davis that were probative of his character for untruthfulness and could be inquired into during his cross-examination under OCGA § 24-6-608 (b) (1). The trial court agreed with the plaintiffs and denied the motions.

At the ensuing jury trial, the plaintiffs’ theory of the case with respect to the Davis Defendants was that in light of Mrs. Dean’s medical history, symptoms, and July 25, 2007 ultrasound, Dr. Davis violated the standard of care on July 31 by failing to go to the hospital to examine Mrs. Dean and diagnose her condition of cervical incompetence. According to the plaintiffs, if Dr. Davis had come to the hospital and properly diagnosed Mrs. Dean with cervical incompetence, Dr. Davis then would have been required under the standard of care to have a cerclage performed or administer progesterone to prevent preterm delivery. The plaintiffs further contended that if Dr. Davis had taken these steps, Mrs. Dean’s pregnancy would have been prolonged and the premature delivery and death of her child would have been avoided. The Davis Defendants denied that Dr. Davis violated the standard of care or that any treatments or interventions on July 31 or August 1 could have avoided the outcome in this case.

At the close of all the evidence, the trial court heard several motions for directed verdict brought by the Davis Defendants. Among other things, the Davis Defendants sought a directed verdict on the ground that the plaintiffs had failed to prove that Dr. Davis’s acts or omissions caused the premature delivery and death of the child. The trial court declined to enter a directed verdict on the issue of causation.

After hearing conflicting testimony of the parties, the various experts, and other witnesses, the jury found in favor of the plaintiffs and awarded over $4 million in damages. Following the entry of final judgment on the jury verdict, the Davis Defendants filed a motion for j.n.o.v. and for new trial, contending that the plaintiffs had failed to prove causation and that the trial court had erred in denying their motions in limine relating to the August 2 Physician Note. The trial court denied the motion in a detailed order, and this appeal by the Davis Defendants followed.

1. The Davis Defendants contend that the trial court erred in denying their motions for directed verdict and j.n.o.v. According to the Davis Defendants, the plaintiffs failed to present evidence to a reasonable degree of medical certainty that the child’s premature delivery and death could have been prevented by Dr. Davis, even if he had complied with the standard of care espoused by the plaintiffs’ medical expert.

(a) As an initial matter, before turning to the merits of the Davis Defendants’ enumerated error, we note that in addition to the live testimony of multiple experts and witnesses, excerpts from four videotaped depositions were played at the jury trial. The video recordings of the depositions, however, were not transmitted with the appellate record. And while the written transcripts of the entire depositions were included in the appellate record, the record is confusing and incomplete as to which particular portions of the depositions were played for the jury, and the parties have not addressed the issue in their appellate briefs. Rather, the plaintiffs and the Davis Defendants have simply cited to portions of the deposition transcripts in their briefs without any objection or comment from the opposing party

Under these circumstances, in reviewing the Davis Defendants’ enumeration of error, we have limited our consideration of the depositions to those portions cited by the parties without objection in their appellate briefs. To the extent that other portions of the depositions were played at trial and might have supported the arguments raised by the Davis Defendants on appeal, we point out that the Davis Defendants, as the appellants, ‘Tore the burden of ensuring an accurate and complete record on appeal” and of taking steps to have the record supplemented with any necessary materials. (Citation and punctuation omitted.) Griffin Builders v. Synovus Bank, 320 Ga. App. 307, 309 (739 SE2d 760) (2013). See State v. Young, 339 Ga. App. 306, 306-307, n. 5 (793 SE2d 186) (2016) (citing Court of Appeals Rule 18 (b) and noting that the burden is on the appellant to ensure that a complete record is transmitted to this Court, including the transmission of audio and video recordings).

(b) We now turn to the merits of the Davis Defendants’ claim that the trial court erred in denying their motions for a directed verdict and for j.n.o.v. on the issue of causation. “On appeal from the denial of a motion for a directed verdict or for j.n.o.v., we construe the evidence in the light most favorable to the party opposing the motion, and the standard of review is whether there is any evidence to support the jury’s verdict.” (Citation and punctuation omitted.) Park v. Nichols, 307 Ga. App. 841, 845 (2) (706 SE2d 698) (2011). A directed verdict or j.n.o.v. should not be granted “unless there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demands a certain verdict.” (Citation and punctuation omitted.) James E. Warren, M.D., P.C. v. Weber & Warren Anesthesia Svcs., 272 Ga. App. 232, 235 (2) (612 SE2d 17) (2005). In determining whether the record demanded a particular verdict, we “consider all relevant admissible evidence of record whether admitted or elicited during the plaintiffs’ case in chief or subsequent thereto.” (Citation and punctuation omitted.) Fowler v. Smith, 230 Ga. App. 817, 819 (1) (b) (498 SE2d 130) (1998).

To recover in a medical malpractice case, a plaintiff must show not only a violation of the applicable medical standard of care but also that the purported violation or deviation from the proper standard of care is the proximate cause of the injury sustained. In other words, a plaintiff must prove that the defendants’ negligence was both the cause in fact and the proximate cause of his injury

(Citations and punctuation omitted.) Walker v. Giles, 276 Ga. App. 632, 638 (624 SE2d 191) (2005). See Zwiren v. Thompson, 276 Ga. 498, 499 (578 SE2d 862) (2003). Medical negligence without proof of causation is insufficient to withstand a motion for directed verdict and j.n.o.v., and causation cannot be based on speculation or guesswork. Walker, 276 Ga. App. at 638 (1). “[T]here can be no recovery for medical negligence involving an injury to the patient where there is no showing to any reasonable degree of medical certainty that the injury could have been avoided.” (Citations and punctuation omitted.) Anthony v. Chambless, 231 Ga. App. 657, 659 (1) (500 SE2d 402) (1998).

Causation in a medical malpractice action must be established through expert testimony because the question of whether the alleged professional negligence caused the plaintiff’s injury is generally one for specialized expert knowledge beyond the ken of the average layperson.” Zwiren, 276 Ga. at 500. But “Georgia case law requires only that an expert state an opinion regarding proximate causation in terms stronger than that of medical possibility, i.e., reasonable medical probability or reasonable medical certainty.” Id. at 503. And “[cjausation may be established by linking the testimony of several different experts” and “must be determined in light of the evidentiary record as a whole.” Walker, 276 Ga. App. at 642 (1). Furthermore, it is well established that “[qjuestions regarding causation are peculiarly questions for the jury except in clear, plain, palpable and undisputed cases.” (Citation and punctuation omitted.) Moore v. Singh, 326 Ga. App. 805, 809 (1) (755 SE2d 319) (2014).

Applying these principles, we conclude that the plaintiffs came forward with evidence of causation and thus were entitled to have the jury decide the issue. At trial, the plaintiffs presented the expert testimony of Dr. Frank Bottiglieri, a board-certified obstetrician-gynecologist who had delivered approximately 6,000 babies and performed over 75 cerclages during the course of his career. Dr. Bottiglieri testified that in light of the information available to Dr. Davis about Mrs. Dean’s medical history and condition, Dr. Davis violated the standard of care by failing to go to the hospital and personally examine Mrs. Dean on July 31, 2007, and by failing to properly diagnose her with cervical incompetence on that date. Dr. Bottiglieri further testified that if Dr. Davis had properly diagnosed Mrs. Dean with cervical incompetence on July 31, the standard of care would have required Dr. Davis to have a cerclage performed on Mrs. Dean or administer progesterone. The plaintiffs also presented evidence that all obstetricians are routinely trained to perform cerclages during medical school and that Dr. Davis had been shown how to perform the procedure, although he had not previously performed one on a patient.

With respect to the harm caused by Dr. Davis’s failure to come to the hospital on July 31, diagnose Mrs. Dean with cervical incompetence, and develop a plan to have a cerclage performed or administer progesterone, Dr. Bottiglieri testified:

Q: Do you have an opinion whether or not — if Dr. Davis had come to the hospital and examined Katie in person, whether or not it would have made a difference in whether Katie and [her husband]’s baby lived or died?
A: Would have made a difference if he did something, if he came up with a plan. I mean, yeah, it would have made a difference.
Q: And how do you know it would have made a difference?
A: Because a stitch would have saved this pregnancy, as far as I’m concerned. You’d have prolonged those critical days. You just can’t keep watching this progression. You have to do therapy. You have to do — whether it be progesterone or a cerclage, you have to take action. We’re running out of time. It’s only getting worse with each ultrasound. There will be a point of no return, happened later. Have to do something....
Q: The opinions that you’ve given us, Dr. Bottiglieri, regarding Dr. Davis and Katie’s presentation at [the hospital] on 7/31/07, do you hold those to a reasonable degree of medical probability and certainty?
A: I do.

Regarding the success of cerclages in increasing the chances of infant survival in at-risk pregnancies, the plaintiffs also presented the expert testimony of Dr. Brian Carter, who was board-certified in pediatrics and neonatal/perinatal medicine. Dr. Carter testified that cerclages can be performed on a pregnant woman from 16 weeks to 25 weeks of pregnancy and that “the likelihood of gained time [before delivery of the baby] would be in the order of two weeks to two months.” Dr. Carter further testified regarding infant survival rates when premature delivery is postponed:

A: [Generally speaking, from 28 weeks and about two pounds forward, there’s a 90 percent chance of survival. . . .
Q: Let me ask you, was that true in 2007?
A: Yes, that was true in 2007. So if a baby — if a pregnancy can make it to 28 weeks, and the baby weighed over two pounds, 900 grams, there’s greater than 90 percent likelihood that a, the baby’s going to survive ... andb, would only have about a 15 percent likelihood of disability of any sort .... At 24 weeks, you’re up to somewhere between 40 and 60 percent survival, at 25 weeks, you’re certainly 50 to 60 on the low end to as high as 70 or 80, and at 26 weeks, you’re pretty consistent 70 to 80 percent, and 27, 28 weeks, like I said, you’re taking off, and have a far brighter future.

Dr. Carter further testified that a “two to four percent likelihood of survival is conferred on the fetus every day that he or she stays longer in the womb between 23 and 25 weeks,” and that all of the statistics he had provided would be applicable to Mrs. Dean’s baby:

Q: Now, the statistics that you were giving us earlier about survival rates and percentages, if [Mrs. Dean’s baby] had been able to stay in the womb until let’s say 25 or 26 weeks, 27 weeks, would you expect [the baby’s] survival rate to match these statistics that you have given us?
A: Yes. I think anywhere across the states where modern neonatology is practiced, there’s every reason to expect that type of outcome, and having practiced in Georgia before, I know here in Macon, there’s good capability for taking care of premature babies.
Q: Did you see anything about the medical records as it relates to [the baby] that would suggest to you that he would not have been able to match those statistics?
A: No, sir. I saw no evidence for him not matching those statistics.

Dr. Carter testified that his opinions and testimony were to a reasonable degree of medical probability

Regarding the success of administering progesterone to prevent preterm birth, Dr. Davis conceded on cross-examination that “the recent studies and the current thinking is that [progesterone] does make a difference in preterm birth.” Additionally, Dr. Davis’s expert, Dr. Jonathan Weeks, admitted that he was one of the authors of a paper entitled “Vaginal Progesterone is Associated with a Decrease in Risk of Early Preterm Birth and Improved Neonatal Outcome in Women with a Short Cervix: a Secondary Analysis from a Randomized Double-Blind Placebo Controlled Trial,” which was published in August 2007. Dr. Weeks’ paper concluded that “vaginal progesterone may reduce the rate of early preterm birth and improve neonatal outcome in women” with a short cervical length revealed in ultrasounds. Moreover, Dr. Weeks acknowledged that a prior study referenced in his 2007 paper had found that “[p]rogesterone treatment was associated with a significant reduction in preterm birth at less than 34 weeks,” and that “women with a short cervical length identified in midtrimester by transvaginal [ultrasound] are less likely to deliver preterm if they are treated with vaginal progesterone.”

Based on this combined expert testimony, construed in the light most favorable to the plaintiffs with all inferences drawn in their favor, we conclude that the plaintiffs presented evidence from which a jury could find that if Dr. Davis had followed the standard of care on July 31, 2007, by having a cerclage performed on Mrs. Dean or administering progesterone, there was a reasonable medical probability that it would have postponed the birth of Mrs. Dean’s baby to a point in time when the baby would have survived. Based on the record before us, we cannot say that the evidence regarding causation was so “clear, plain, palpable and undisputed” as to demand a verdict in favor of the Davis Defendants. (Citation and punctuation omitted.) Moore, 326 Ga. App. at 809 (1). See Walker, 276 Ga. App. at 638-642 (1) (reversing grant of directed verdict to defendant physicians where plaintiffs presented evidence that the physicians’ deviations from the standard of care caused the premature birth and death of the baby “by linking the testimony of several different experts” and reviewing “the evidentiary record as a whole”).

In arguing that the record demanded a verdict in their favor because of insufficient evidence of causation, the Davis Defendants rely on Reeves v. Mahathre, 328 Ga. App. 546 (759 SE2d 926) (2014). Reeves was a wrongful death suit where the plaintiffs sued an emergency room physician and his practice for failing to properly diagnose and treat a blockage in the decedent’s kidney caused by a kidney stone, allegedly resulting in the decedent’s septic shock and death. Id. at 547-548. The plaintiffs’ expert testified that the defendant physician would have met the standard of care if he had ordered a CT scan, had properly diagnosed the decedent’s kidney blockage, and had then consulted with a urologist and followed the urologist’s instructions regarding the treatment of the decedent. Id. at 549. However, the urologist who would have been consulted on the night in question testified that, if the defendant physician had performed a CT scan and consulted with him about the results, he would have advised the physician to treat the decedent “in the exact fashion that [the physician], in fact, did.” Id. We concluded that in light of the urologist’s testimony and the plaintiffs’ failure to present any expert testimony contradicting it, the plaintiffs had failed as a matter of law to prove that the defendant physician’s violation of the standard of care proximately resulted in the decedent’s death. Id. at 550.

Relying on Reeves, the Davis Defendants maintain that the plaintiffs’ expert, Dr. Bottiglieri, essentially testified that Dr. Davis could have met the standard of care by consulting a maternal fetal medicine specialist on July 31, 2007, and following the specialist’s recommendations. The Davis Defendants further emphasize that Dr. Boddy, the maternal fetal medicine specialist with whom Dr. Davis would have consulted on July 31, 2007 if he had sought a consultation, testified that he would not have recommended that a cerclage be performed or progesterone be administered to Mrs. Dean. Based on Dr. Bottiglieri and Dr. Boddy’s testimony, the Davis Defendants contend that Reeves is factually on point and controls the outcome here.

The Davis Defendants’ reliance on Reeves is misplaced. As an initial matter, one of the three appellate judges in Reeves concurred only in the judgment, and thus the case is physical precedent only and not binding on this Court. See Court of Appeals Rule 33 (a); Groth v. Ace Cash Express, 276 Ga. App. 350, 353 (623 SE2d 208) (2005). In any event, Reeves is factually distinguishable. Unlike in Reeves, the plaintiffs’ expert, Dr. Bottiglieri, testified that Dr. Davis would have met the standard of care by performing a cerclage on Mrs. Dean, having another physician perform the cerclage, or administering progesterone. Dr. Bottiglieri also testified that he “would expect anyone, whether it be a maternal fetal medicine specialist or a generalist to either consider the cerclage or do progesterone” in this case, and that if a specialist was consulted and declined to do a cerclage, Dr. Davis could have disagreed with the specialist and would have needed to make the “final decision” about his patient’s care. Hence, this is not a case where the sole testimony of the plaintiff’s expert was that the standard of care could be met by the physician simply consulting a specialist and then following the specialist’s recommendations. Therefore, Reeves is not controlling.

Accordingly, for all these reasons, the evidence did not demand a finding in favor of the Davis Defendants on the issue of causation, and the matter was properly submitted to the jury for resolution. The trial court thus committed no error in denying the Davis Defendants’ motions for directed verdict and j.n.o.v.

2. The Davis Defendants also contend that the trial court should have granted their motion for new trial. According to the Davis Defendants, a new trial was warranted because the trial court abused its discretion by denying their motions in limine seeking to exclude any evidence of the August 2 Physician Note. More specifically, the Davis Defendants contend that the trial court erred in concluding that evidence regarding the August 2 Physician Note was probative of Dr. Davis’s untruthfulness under OCGA § 24-6-608 (b) (1) (“Rule 608”) because the Note involved an innocent mistake rather than deliberate deception. The Davis Defendants also maintain that the August 2 Physician Note was not relevant to any issues raised in the case and that the plaintiffs introduced evidence of the Note simply to attack Dr. Davis’s general character. Consequently, the Davis Defendants contend that the probative value of the Note was not substantially outweighed by the danger of unfair prejudice and thus should have been excluded under OCGA § 24-4-403 (“Rule 403”).

“If evidence is admissible for any purpose, its admission will not cause a new trial.” (Citation and punctuation omitted.) West v. West, 199 Ga. 378, 387 (4) (34 SE2d 545) (1945).

We review the trial court’s decisions on the admissibility of evidence, including a denial of a motion in limine, for an abuse of discretion. And motions in limine should only be granted with great care and when there is no circumstance under which the evidence at issue could be admissible at trial[.] By its very nature, the grant of a motion in limine excluding evidence suggests that there is no circumstance under which the evidence under scrutiny is likely to be admissible at trial. In light of that absolute the grant of a motion in limine excluding evidence is a judicial power which must be exercised with great care.

(Citations and punctuation omitted.) One Bluff Drive v. K. A. P., Inc., 330 Ga. App. 45, 51-52 (3) (766 SE2d 508) (2014).

The Davis Defendants have failed to show that the trial court abused its discretion in concluding that evidence regarding the August 2 Physician Note was admissible under Rule 608 (b) (1) and in denying their motion in limine to exclude any reference to the Note at trial. Under Rule 608 (b) (1) of Georgia’s revised Evidence Code, a trial court may allow questioning about specific instances of conduct by a witness on cross-examination, if the conduct is probative of the witness’s character for truthfulness or untruthfulness. OCGA § 24-6-608 (b) (l). See Gaskin v. State, 334 Ga. App. 758, 761-763 (1) (a) (780 SE2d 426) (2015) (discussing Rule 608 (b)). However, a party “may not use impeachment as a guise for submitting to the jury substantive evidence that is otherwise unavailable.” (Citation and punctuation omitted.) Id. at 763 (1) (a). Thus, the specific instances of conduct must involve “acts probative of untruthfulness,” including “misconduct such as perjury, fraud, swindling, forgery, bribery, and embezzlement.” (Citations and punctuation omitted.) Id. See United States v. Morgan, 505 F3d 332, 340 (II) (C) (2) (5th Cir. 2007); United States v. Novaton, 271 F3d 968, 1006 (II) (F) (11th Cir. 2001). We will reverse a trial court’s ruling regarding whether specific instances of conduct fall within the ambit of Rule 608 (b) only if there is a clear abuse of discretion. Gaskin, 334 Ga. App. at 762 (1) (a).

Applying these principles, we conclude that the trial court acted within its broad discretion in finding that the August 2 Physician Note was probative of Dr. Davis’s character for untruthfulness. As previously noted, Dr. Davis originally charted in his August 2 Physician Note that he had physically examined Mrs. Dean at the hospital on that date, and then, at some unknown time after making the Note, Dr. Davis struck through the entire entry and wrote “error pt [patient] not seen[,] out of room.” However, other hospital records prepared by a nurse and introduced without objection during the trial reflect that Mrs. Dean was in her hospital room and could have been examined by Dr. Davis, had he in fact chosen to do so on August 2, and Mrs. Dean confirmed that she did not leave her hospital room that day Furthermore, Dr. Davis’s original charting and subsequent revision to the August 2 Physician Note occurred against the backdrop of Dr. Davis having previously failed to examine and treat Mrs. Dean on the evening of July 31 and early morning of August 1.

Under these circumstances, the trial court was authorized to find that the jury could reasonably decide that Dr. Davis’s August 2 Physician Note involved deliberate deception rather than simply a mistake. We therefore cannot say that the court abused its discretionary authority by allowing inquiry into the Note during Dr. Davis’s cross-examination for purposes of probing his character for untruthfulness.

Nor did the trial court abuse its discretion in finding that the probative value of evidence regarding the August 2 Physician Note was not substantially outweighed by the danger of unfair prejudice. Rule 403 provides in part that “relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice,” but Rule 403 is “an extraordinary remedy which the courts should invoke sparingly, and the balance should be struck in favor of admissibility” (Citation and punctuation omitted.) Kim v. State, 337 Ga. App. 155, 157-158 (786 SE2d 532) (2016).

The “extraordinary remedy” of exclusion of the August 2 Physician Note under Rule 403 was not demanded under the circumstances of this case, where the accuracy of Dr. Davis’s physician notes and his credibility were hotly disputed. At trial, Dr. Davis repeatedly testified that he could not personally remember his conversations with Mrs. Dean on the telephone leading up to the premature delivery of her baby Instead, Dr. Davis relied on the accuracy of his transcribed physician notes of his July 31, 2007 and August 1, 2007 conversations with Mrs. Dean as providing a true account of their conversations and his recommendations to her.

Decided May 10, 2017

Reconsideration denied June 28, 2017

McCall, Williams, Wilmot & Powell, W. Earl McCall; Owen, Gleaton, Egan, Jones & Sweeney, Theodore E.G. Pound, Laura M. Strong, for appellants.

Mrs. Dean’s testimony of her conversations with Dr. Davis, however, conflicted in several material respects with Dr. Davis’s physician notes from July 31 and August 1. For example, Mrs. Dean testified that during her conversation with Dr. Davis on the evening of July 31, he discouraged her from going to the hospital emergency room after noticing the dark, brown discharge, but Dr. Davis’s note stated, “I suggested the patient go to the hospital to be evaluated.” Mrs. Dean further testified that during her telephone conversation with Dr. Davis on the morning of August 1, he reiterated to her his belief that she had a urinary tract infection and told her to come to the office for her regularly scheduled appointment at 9:00 a.m., but Dr. Davis’s note made no reference to a urinary tract infection and stated that he gave Mrs. Dean the option of coming to the office earlier that morning when it first opened.

In light of these circumstances, the accuracy of Dr. Davis’s physician notes regarding his interactions with Mrs. Dean and his character for truthfulness or untruthfulness were clearly relevant, and the trial court was authorized in its discretion to strike the balance in favor of admissibility and find that the probative value of the August 2 Physician Note outweighed the risk of any unfair prejudice. Accordingly, the trial court did not abuse its discretion in denying the Davis Defendants’ motion in limine on the ground that inquiry into the Note during the cross-examination of Dr. Davis was permissible under Rule 608 (b) (l).

Judgment affirmed.

McMillian and Mercier, JJ., concur.

Clark & Smith Law Firm, John C. Clark, Michael M. Smith; Dellacona Law Firm, Tracey L. Dellacona, for appellees.

       The jury apportioned the remaining 50 percent of the fault to a different defendant physician, who is not a party to this appeal.

       See Park v. Nichols, 307 Ga. App. 841, 845 (2) (706 SE2d 698) (2011).

       Funneling refers to dilation at the internal orifice of the uterus, with protrusion of the amniotic sac into the cervical canal.

       Among other defendants, the plaintiffs also sued Dr. Holliman. The jury apportioned 50 percent of the fault to Dr. Holliman in its verdict, and the plaintiffs’ claims against Dr. Holliman subsequently were resolved by a satisfaction of judgment entered in October 2015.

       To the extent that Dr. Bottiglieri gave other, conflicting testimony that was more equivocal on the issue of causation, “the ‘self-contradictory testimony rule’ is not applicable to an expert witness,” and it was the jury’s role to resolve those conflicts. Aleman v. Sugarloaf Dialysis, 312 Ga. App. 658, 662 (2) (719 SE2d 551) (2011). See Moore, 326 Ga. App. at 811 (2) (“Contradictions go solely to the expert’s credibility, and are to be assessed by the jury when weighing the expert’s testimony.”) (citation and punctuation omitted).

       Because the trial in this case occurred in April 2015, Georgia’s revised Evidence Code, effective January 1, 2013, applies. See Ga. L. 2011, pp. 99, 214, § 101 (revised Evidence Code “shall become effective on January 1, 2013, and shall apply to any motion made or hearing or trial commenced on or after such date”).

       OCGA § 24-6-608 (b) (1) provides:
      Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’s character for truthfulness, other than a conviction of a crime as provided in Code Section 24-6-609, or conduct indicative of the witness’s bias toward a party may not be proved by extrinsic evidence. Such instances may however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness:
      (1) Concerning the witness’s character for truthfulness or untruthfulness [.]

       “[BJecause the provisions of OCGA § 24-6-608 were borrowed from the Federal Rules of Evidence, we look to decisions of the federal appeals courts construing and applying the F ederal Rules, especially the decisions of the Eleventh Circuit.” (Citations and punctuation omitted.) Gaskin, 334 Ga. App. at 762 (1) (a).

       Rule 608 (b) provides that if the witness denies the specific bad act on cross-examination that bears on the witness’ character for untruthfulness, the act “may not be proved by extrinsic evidence and the questioning party must take the witness’ answer, unless the evidence would be otherwise admissible as bearing on a material issue of the case.” (Citation omitted.) United States v. Matthews, 168 F3d 1234, 1244 (II) (11th Cir. 1999). See Gilmer v. State, 339 Ga. App. 593, 599 (2) (c) (794 SE2d 653) (2016). During trial, the plaintiffs introduced into evidence all of Mrs. Dean’s medical records of her hospitalization from August 1 to August 4, 2007, including all of the physician notes and nurse records for August 2, and both plaintiffs also testified about the care and treatment received by Mrs. Dean at the hospital on August 2. Hence, extrinsic evidence was introduced that went to the falsity of the August 2 Physician Note beyond the testimony of Dr. Davis on the issue. However, in their appellate briefing, the Davis Defendants have not challenged the use of this extrinsic evidence at trial and thus have abandoned any argument in that regard. See Leatherwood v. State, 212 Ga. App. 342, 345 (5) (441 SE2d 813) (1994) (evidentiary issues not argued on appeal “are deemed abandoned”). Furthermore, Mrs. Dean’s hospital records, and the testimony of Mrs. Dean and her husband about her care and treatment (or lack thereof) during her hospital stay, were material to Mrs. Dean’s substantive claim for her own pain and suffering arising out of the alleged medical malpractice . Thus, the extrinsic evidence was admissible on the independent ground that it bore “on a material issue of the case.” Matthews, 168 F3d at 1244 (II).

       The Davis Defendants also argue that the plaintiffs’ questioning of Dr. Davis about the August 2 Physician Note during his cross-examination was excessive and showed that the plaintiffs were simply trying to impugn Dr. Davis’s general character before the jury. But control over the length and scope of cross-examination is a matter within the sound discretion of the trial court. See Lott v. Hatcher, 275 Ga. App. 424, 424 (620 SE2d 651) (2005). Here, the trial court acted within its discretion in concluding that the length and scope of the plaintiffs’ questioning of Dr. Davis about the August 2 Physician Note was not excessive, given that the accuracy of Dr. Davis’s notes and his character for truthfulness or untruthfulness were of central import to the parties’ different versions of what transpired before Mrs. Dean prematurely delivered her baby.