author: BARNES, Presiding Judge.

text:
    A10A1415.
    CUZZORT v. THE STATE.
    (703 SE2d 713)
   BARNES, Presiding Judge.

Following a jury trial, William Luther Cuzzort was found guilty of felony family violence battery, simple battery, and simple assault. The trial court denied his motion for new trial, and he appeals, contending that the evidence was insufficient and that his trial counsel was ineffective. Following our review, we affirm.

1. In his first enumeration of error, Cuzzort challenges the sufficiency of the evidence. He contends that the felony family violence battery and the simple battery convictions should be reversed because the evidence shows that he was defending himself. Cuzzort also argues that there was no “substantial step” toward committing a battery necessary to sustain his simple assault conviction.

On appeal, we view the evidence in the light most favorable to support the verdict, and Cuzzort no longer enjoys a presumption of innocence. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Young v. State, 242 Ga. App. 681 (530 SE2d 758) (2000). An appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Anderson v. State, 265 Ga. App. 428 (594 SE2d 669) (2004).

So viewed, the evidence shows that on November 11, 2006, a Gwinnett County police officer responded to a domestic violence call at Cuzzort’s residence. The victim, Cuzzort’s wife, was standing outside crying when the officer arrived. The officer noticed red marks around her neck. The victim told the officer that Cuzzort had slapped and choked her. She testified that the couple had argued the morning of the incident and that when Cuzzort pushed a laundry basket at her, she pushed it back at him. He trapped her between the dryer and a dresser located in the laundry room, then “slapped . . . [her] and grabbed [her] throat and [she] ended up in the kitchen on the kitchen floor with [her] glasses knocked off [her] face and [Cuzzort] was choking [her].” She left the house and went to a neighbor’s home, where she called police. The wife also testified about prior difficulties between the couple, including that Cuzzort had once knocked her onto a table and given her a concussion, and that he had choked her once before when she was pregnant.

The State also presented the testimony of two officers who had responded to prior domestic disputes between Cuzzort and the victim. One officer testified that he responded to a call from Gwinnett Medical Center in November 2004 about a suspected domestic violence incident involving the couple. He testified that he observed marks on the wife’s wrist, arms and neck, and arrested Cuzzort for battery. A second officer testified that he was dispatched to the couple’s home in July 2005, and the victim told him that Cuzzort had knocked her down and kicked her in the stomach, and that Cuzzort admitted that he had hit his wife.

Under OCGA § 16-5-23.1 (a) and (f), “[a] person commits the offense of [family violence] battery when he or she intentionally causes substantial physical harm or visible bodily harm to” a spouse. Cuzzort was charged with the offense in that he “unlawfully and intentionally cause[d] visible bodily harm, to wit: red marks around the neck, to [the victim], a present spouse of [Cuzzort], by grabbing her around the neck.” OCGA § 16-5-23 (a) (2) provides, in part, that a person commits the offense of simple battery when he or she “[intentionally causes physical harm to another.” The indictment charged Cuzzort with simple battery in that he caused physical harm to the victim by slapping her.

Regarding the simple battery and family violence battery convictions, Cuzzort does not dispute on appeal that he caused the injuries to his wife, but argues that the evidence did not support a finding that he intentionally caused them because the marks were made when he was attempting to defend himself after his wife slapped him.

“[IJntent is a question for the jury, which is authorized to consider all other circumstances connected with the act at issue as well as the defendant’s words, conduct and demeanor.” (Footnote omitted.) Garrett v. State, 300 Ga. App. 391, 394 (685 SE2d 355) (2009). In light of the evidence above, and the evidence of prior difficulties between Cuzzort and the victim, resulting in his guilty pleas to two previous batteries against his wife, the jury was authorized to find that Cuzzort intentionally caused the victim’s injuries here. See Simmons v. State, 285 Ga. App. 129,130 (645 SE2d 622) (2007) (prior difficulties evidence admissible to demonstrate the state of the relationship between the defendant and the victim, and relevant to show abusive bent of mind toward the victim).

Cuzzort also contends that the evidence was insufficient to sustain the simple assault conviction. He argues that there was no evidence that he made “any requisite demonstration of violence” against his wife, or that he made a “substantial step” toward committing a battery necessary to sustain an assault conviction.

Simple assault is defined as “an act which places another in reasonable apprehension of immediately receiving a violent injury.” OCGA § 16-5-20 (a) (2). “This offense is complete if the assailant has made such a demonstration of violence, coupled with an apparent ability to inflict injury so as to cause the person against whom it is directed reasonably to fear the injury unless [she] retreats to secure [her] safety.” (Citation and punctuation omitted.) Lewis v. State, 253 Ga. App. 578, 580 (560 SE2d 73) (2002). “The focus of a reasonable apprehension of harm ... is on the apprehension of the victim,” Wroge v. State, 278 Ga. App. 753, 754 (1) (629 SE2d 596) (2006), and it is for the factfinder to determine whether the victim’s apprehension was reasonable. Paul v. State, 231 Ga. App. 528, 529 (499 SE2d 914) (1998). “However, proof that the victim has been placed in apprehension of immediately receiving a violent injury need not necessarily be solely by reason of the victim’s testimony of [her] mental state but may be inferred from the conduct of the victim such as when [she] retreats to secure [her] safety.” (Citations omitted.) Hurt v. State, 158 Ga. App. 722, 723 (282 SE2d 192) (1981).

Evidence at trial showed that during the November 11 altercation, when the victim went back to the house to get her children, she was afraid of Cuzzort and stood on the porch leading into the kitchen. Cuzzort kicked a baby gate down and the door to the bedroom, and told her that if the police arrested him he would “put [her] brains across the kitchen wall.” The wife’s fear of receiving a violent injury was supported by Cuzzort’s actions before she left the house, and also her fear of entering the house to get the children.

This evidence was sufficient to support Cuzzort’s conviction for simple assault.

2. Cuzzort also contends that trial counsel was ineffective for failing to strike a juror for cause, failing to object to prejudicial testimony, failing to object to the admission of prejudicial evidence, and failing to file a general demurrer to the simple assault count.

To prove ineffectiveness of trial counsel, the defendant must show that his tried counsel’s performance was deficient and that the deficient performance prejudiced him. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

To meet the first prong of this test, [Cuzzort] must overcome the strong presumption that counsel’s performance fell within a wide range of reasonable professional conduct, and that counsel’s decisions were made in the exercise of reasonable professional judgment. The reasonableness of counsel’s conduct is examined from counsel’s perspective at the time of trial and under the particular circumstances of the case. To meet the second prong, [Cuzzort] must show that there is a reasonable probability that, absent any unprofessional errors on counsel’s part, the result of his trial would have been different.

(Citations and punctuation omitted.) Pruitt v. State, 279 Ga. 140, 143-144 (5) (611 SE2d 47) (2005). Furthermore, in considering a claim of ineffectiveness of trial counsel, a court is not required to address the performance portion of the inquiry before the prejudice component or even to address both components if the defendant has made an insufficient showing on one. Lajara v. State, 263 Ga. 438, 440 (3) (435 SE2d 600) (1993). In reviewing a trial court’s determination of a claim of ineffective assistance of counsel, we give deference to that court’s factual findings, which are upheld on appeal unless clearly erroneous; however, we review the trial court’s legal conclusions de novo. Williams v. State, 277 Ga. 853, 857 (6) (596 SE2d 597) (2004).

(a) Cuzzort asserts that trial counsel erred in failing to move to strike juror number 1 because voir dire showed that the juror was biased for the State and prejudiced against him, and instead used a peremptory strike to remove him. Trial counsel explained at the motion for new trial hearing that he did not remember why he used a peremptory strike to remove juror number 1 rather than to strike him for cause.

A juror’s mere “indecisiveness” as to whether he could be fair and impartial is insufficient to support a strike for cause. Rather, a party seeking to strike a juror for cause must show that the potential juror has an opinion so fixed and definite that the juror will be unable to set the opinion aside and decide the case based upon the evidence or the court’s charge upon the evidence. Moreover, a juror who expresses a willingness to try to be objective and whose bias arises from feelings about the particular crime as opposed to feelings about the accused may be eligible for service. Similarly, a juror who has expressed doubts about his ability to be impartial will be eligible to serve where he also positively testifies that, despite his general doubts, he could set his feelings aside and make a decision based on the facts and law alone.

(Citations and punctuation omitted.) Brown v. State, 293 Ga. App. 633, 635 (1) (a) (667 SE2d 899) (2008).

Here, juror number 1 expressed that he was biased in the case because of his personal experience with domestic violence involving his parents. He also opined that despite his feelings, he would be able to decide Cuzzort’s case based only on the evidence at trial rather than his experiences, and that he had not formed an opinion about Cuzzort’s guilt or innocence.

The juror’s responses did not indicate that he had formed “an opinion of [Cuzzort’s] guilt or innocence ... so fixed and definite that [he would] be unable to set the opinion aside and decide the case based upon the evidence or the court’s charge upon the evidence. [Cits.]” Somchith v. State, 272 Ga. 261, 262 (2) (527 SE2d 546) (2000). Accordingly, as Cuzzort has failed to show that a motion to strike prospective juror number 1 for cause would have been successful and thus produced a different result in his trial, trial counsel was not ineffective on this basis. See Cole v. State, 279 Ga. App. 219, 225 (8) (b) (630 SE2d 817) (2006) (trial counsel’s failure to make a meritless motion will not support a claim of ineffective assistance).

(b) Cuzzort also contends that trial counsel was ineffective for failing to file a special or general demurrer to the simple assault charge in the indictment.

Pretermitting whether [Cuzzort] is able to demonstrate deficiency, he is unable to establish prejudice. A defendant is entitled to be tried on an indictment that is perfect in form. And, if an indictment is imperfect, a defendant may file a special demurrer challenging the form of the indictment. If no special demurrer is filed, any error in the indictment’s form is waived. If the demurrer is granted, the trial court quashes the indictment. However, the quashing of an indictment merely bars trial on the flawed indictment; it does not bar the State from reindicting the defendant. Thus, even if [Cuzzort’s] attorney had filed a demurrer, it would not have prevented the State from reindicting and trying [Cuzzort]. And [Cuzzort] does not argue that the imperfect indictment prejudiced his defense in any way. Under these circumstances, [Cuzzort] has failed to show that he was prejudiced by his attorney’s failure to file such demurrer.

Decided November 23, 2010

G. Richard Stepp, for appellant.

(Punctuation and footnotes omitted.) Wallace v. State, 253 Ga. App. 220, 223 (3) (558 SE2d 773) (2002).

(c) Cuzzort also claims trial counsel was ineffective for failing to object to certain testimony regarding his drug use during prior difficulties between him and the victim, and to the admission of a petition for relief under the Family Violence Act that the victim had in the past filed against Cuzzort. We find these contentions merit-less.

At the motion for new trial hearing, trial counsel testified that in both instances his decisions not to object were strategic, in that he did not want to “draw more attention to the [drug use]” statement by objecting, and that the admission of the petition was strategy consistent with Cuzzort’s defense of being forthcoming about the couple’s turbulent relationship.

Tactical or strategic decisions by defense counsel “do not constitute deficient performance unless they are so patently unreasonable that no competent attorney would have chosen them.” (Punctuation and footnote omitted.) Nesbitt v. State, 296 Ga. App. 139, 142 (3) (d) (673 SE2d 652) (2009). “Decisions regarding which defense or defenses to pursue at trial are a matter of strategy with which this [c]ourt will not generally interfere.” Daniel v. State, 228 Ga. App. 634, 635 (492 SE2d 542) (1997). Likewise, when and how to raise objections are generally matters of trial strategy. Nesbitt v. State, supra, 296 Ga. App. at 142 (3) (d).

Judgment affirmed.

Blackwell and Dillard, JJ., concur.

Daniel J. Porter, District Attorney, Kimberly A. Gallant, Assistant District Attorney, for appellee.

       Cuzzort was acquitted of one count of obstructing persons making emergency telephone calls. OCGA § 16-10-24.3.


source: Caselaw Access Project

author: SMITH, Presiding Judge.

license: Public Domain

text:
    A10A1554.
    FRED’S STORES OF TENNESSEE, INC. v. DAVENPORT.
    (703 SE2d 700)
   SMITH, Presiding Judge.

In this slip-and-fall case, Fred’s Stores of Tennessee, Inc. appeals from the trial court’s denial of summary judgment in its favor. Appellee Barbara Davenport alleged that she slipped and fell on a jumbo paper clip in the aisle of one of Fred’s stores. Fred’s moved for summary judgment on the ground that it had no actual or constructive knowledge of the presence of the paper clip. The trial court denied summary judgment on the basis that a Fred’s employee allegedly engaged in spoliation of evidence and that this action could be construed as “evidence of actual or constructive knowledge of the foreign substance.”

We granted Fred’s application for interlocutory appeal to consider the possible effect of the alleged spoliation of evidence on Fred’s knowledge of the hazard. Because uncontradicted evidence establishes that Fred’s had no knowledge of the paper clip before Davenport’s fall and the alleged spoliation after the fall is therefore irrelevant, we reverse.

The relevant facts can be briefly stated. The store’s assistant manager, Ann Rowell, testified that she performed Fred’s required periodic inspection procedures approximately two minutes before Davenport’s fall. She also testified that she inspected the exact location where Davenport fell and that there was no paper clip on the floor at that time.

After Davenport’s fall, Thomas Isham, the store manager, came to the scene. Davenport’s niece alleges that Isham stated that there was nothing on the floor that caused Davenport’s fall. She contends that when the paper clip was pointed out to him, Isham picked it up, put it in his shirt pocket, and repeated that nothing on the floor caused the fall. Isham admits that he came to the scene immediately after Davenport’s fall, but he denies that he ever saw a paper clip, that one was pointed out to him, or that he picked up or pocketed a paper clip. On summary judgment, however, we must construe all disputed testimony in Davenport’s favor. Jimenez v. Gilbane Bldg. Co., 303 Ga. App. 125, 126 (693 SE2d 126) (2010).

1. In order to survive a motion for summary judgment in a slip-and-fall case, a plaintiff must show some evidence that the property owner had knowledge of the hazard that caused the plaintiff to fall. Robinson v. Kroger Co., 268 Ga. 735, 749 (2) (b) (493 SE2d 403) (1997). That knowledge may be actual or constructive. Id. In the absence of evidence of actual knowledge,

[constructive knowledge may be shown in two ways: by showing that an employee of the defendant was in the immediate vicinity of the fall and had an opportunity to correct the hazardous condition before the fall; or by showing that the substance had been on the floor for a sufficient length of time that it would have been discovered and removed had the proprietor exercised reasonable care in inspecting the premises.

Bolton v. Wal-Mart Stores, 257 Ga. App. 198 (570 SE2d 643) (2002). Here, no evidence was presented that an employee was in the vicinity of the fall, and Davenport’s niece did not recall seeing any. We therefore apply the rule that

a plaintiff need not show how long a substance has been on the floor unless the defendant has established that reasonable inspection procedures were in place and followed at the time of the incident. Thus, the critical issue in this case is whether [the defendant] established that it conducted a reasonable inspection of the premises prior to the slip and fall that was adequate, as a matter of law, to show the exercise of ordinary care to keep the premises safe under OCGA § 51-3-1.

(Citations and punctuation omitted.) Markham v. Schuster’s Enterprises, 268 Ga. App. 313, 314 (601 SE2d 712) (2004).

Davenport has not refuted Fred’s evidence that an employee was in the same area minutes earlier in the course of a regular inspection and that the floor was clear at that time. We agree that, in light of these facts, she has not established actual or constructive knowledge and that the trial court should have granted summary judgment in Fred’s favor. Markham, supra at 315.

2. We next consider the question of spoliation of evidence. Assuming without deciding that Isham’s conduct amounted to spoliation, we cannot agree with the trial court that it is relevant to the question of Fred’s constructive knowledge of the presence of the paper clip before Davenport’s fall. In this respect, the situation before us is identical to that presented in Craig v. Bailey Bros. Realty, 304 Ga. App. 794 (1) (697 SE2d 888) (2010), which was decided after the trial court entered its order here. In Craig, a child’s foot was impaled on a protruding spike in a retaining wall. After the accident, the property owners inspected the wall, hammered down any protruding spikes, and cleared away obscuring vegetation. The father of the injured child appealed the grant of summary judgment in the property owner’s favor, contending that the owners’ actions constituted spoliation of evidence, created a presumption in his favor, and precluded summary judgment. Id. at 796 (1).

Decided November 23, 2010.

Goodman, McGuffey, Lindsey & Johnson, Peter Muller, for appellant.

We first summarized the law pertaining to spoliation, noting that “even if evidence was wrongfully destroyed, the injured party still must show prejudice, and the grant of summary judgment is appropriate if the injured party cannot establish any causal link between the failure of his underlying claims and the alleged misconduct by the defendant.” (Citations and punctuation omitted.) Craig, supra at 797 (1). We concluded that the father had failed to

establish any causal link between the failure of his premises liability and attractive nuisance claims and the alleged misconduct by the owners. The dismissal of those claims was warranted for separate and independent reasons relating to [the owners’] lack of actual or constructive knowledge, as explained infra in Divisions 2 and 3. The owners’ actions, therefore, did not preclude the trial court’s grant of summary judgment in their favor. [Cits.]

Id. at 797-798. Here, the only inference that could be drawn from Isham’s alleged destruction of evidence would be that a paper clip was on the floor when Isham came to the scene after Davenport’s fall, not that it was on the floor when the area was inspected earlier. The alleged spoliation therefore has no effect on Davenport’s underlying claim or on Fred’s defense to that claim. Id.; see also Sharpnack v. Hoffinger Indus., 231 Ga. App. 829, 830 (499 SE2d 363) (1998). The trial court therefore erred in denying summary judgment to Fred’s on this basis.

Judgment reversed.

Mikell and Adams, JJ., concur.

John T. Croley, Jr., for appellee.

       The case cited by the trial court in support of its ruling, however, does not involve spoliation of evidence. Anderson v. Sears Roebuck & Co., 292 Ga. App. 603 (664 SE2d 911) (2008) (physical precedent only).


author: Doyle, Judge.

text:
    A10A1605.
    PARKER v. THE STATE.
    (704 SE2d 438)
   Doyle, Judge.

Following a jury trial, Judy Michelle Parker appeals from her conviction of DUI per se, contending that the trial court erred by (1) ruling that the initial traffic stop was authorized, (2) admitting evidence of a horizontal gaze nystagmus (“HGN”) test, (3) admitting evidence of subsequent roadside sobriety tests performed without a Miranda warning, and (4) finding that the arresting officer had probable cause to arrest her. For the reasons that follow, we affirm.

Construed in favor of the verdict, the evidence shows that shortly after midnight one morning in May 2008, an officer in a marked patrol car was traveling on a state route when he was cut off by Parker, who abruptly changed lanes in front of him without signaling, requiring the officer to quickly apply his brakes. After waiting for a safe opportunity, the officer turned on his blue lights and executed a traffic stop.

The officer made contact with Parker, immediately smelled a strong odor of alcohol on her breath, and asked her where she had come from. Parker explained that she was driving from a restaurant where she had split “a pitcher or two” of beer with a friend. The officer asked Parker if she would perform some field sobriety evaluations, and she agreed. The officer performed a HGN test, noting six out of six clues of impairment; a walk-and-turn test, noting five out of eight clues of impairment; a one-leg-stand test, noting two out of four clues of impairment; and an alco-sensor test, which registered positive for alcohol consumption. Based on his observations, the officer advised Parker that she was under arrest and placed her in handcuffs.

After the officer read her the implied consent warning at the roadside, Parker elected to take a breath test, which was later performed at the sheriffs department on an Intoxilyzer 5000. That test, which was performed within three hours of Parker’s driving, resulted in two 0.101 readings for blood alcohol concentration.

Parker was charged with one count of DUI per se, one count of DUI less safe, and improper lane change. A jury found her guilty of the DUI per se count, and acquitted her of the other counts. Following the denial of her motion for new trial, she filed this appeal.

1. Parker contends that the trial court erred by ruling that the arresting officer had sufficient suspicion to execute the initial traffic stop. We disagree.

“[A] brief investigatory stop of a vehicle is justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct. ‘Reasonable suspicion’ is a less demanding standard than probable cause.” Observing even a minor traffic violation authorizes an officer to stop a vehicle.

Here, the officer testified at the suppression hearing that he observed Parker change lanes by cutting him off in a manner he believed to be unsafe, causing him to abruptly apply his brakes. OCGA § 40-6-123 (a) provides that “[n]o person shall ... change lanes or move right or left upon a roadway unless and until such movement can be made with reasonable safety.” In light of the officer’s testimony, the trial court was authorized to find that the traffic stop was justified by specific articulable facts giving the officer a reasonable suspicion of a traffic violation, i.e., changing lanes without reasonable safety. That Parker was ultimately acquitted of that offense is of no moment. “If an officer in good faith believes that an unlawful act has been committed, his actions Eire not rendered improper by a later determination that the conduct observed was not a crime.”

2. Parker next contends that the trial court erred by denying her motion to suppress evidence from the HGN test because the “smooth pursuit” portion of the test was performed improperly. Because the record supports a finding that the officer substantially performed the HGN test in an acceptable manner, we discern no error.

[T]he trial court sits as the trier of fact when ruling on a motion to suppress or a motion in limine, [and] its findings based upon conflicting evidence are analogous to a jury verdict and should not be disturbed by a reviewing court if there is any evidence to support them. When we review a trial court’s decision on such motions to exclude evidence, we construe the evidence most favorably to uphold the findings and judgment, and we adopt the trial court’s findings on disputed facts and credibility unless they are clearly erroneous. When the evidence is uncontroverted and no question of witness credibility is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review. With mixed questions of fact and law, the appellate court accepts the trial court’s findings on disputed facts and witness credibility unless clearly erroneous, but independently applies the legal principles to the facts.

The admissibility of evidence based on a scientific principle or technique such as the HGN test is analyzed as follows: “the party offering the evidence [must show] that (1) the general scientific principles and techniques involved are valid and capable of producing reliable results, and (2) the person performing the test substantially performed the scientific procedures in an acceptable manner.” With respect to the first prong, “[i]n Harper v. State, the Supreme Court of Georgia explained that evidence based on a scientific principle or technique is admissible only if the science underlying the evidence is a phenomenon that may be verified with such certainty that it is competent evidence in a court of law.”

Parker correctly concedes that the first prong was met here because “the HGN test is an accepted, common procedure that has reached a state of verifiable certainty in the scientific community meeting the Harper v. State standard and is admissible as a basis upon which an officer can determine that a driver was impaired by alcohol.” Nevertheless, Parker challenges the second prong, i.e., whether the State demonstrated that the officer substantially performed the HGN test in an acceptable manner.

In ruling on whether an HGN test was administered properly under law enforcement guidelines, our courts have considered whether the arresting officer was sufficiently trained to give the test, whether the officer was experienced in administering the test, whether the officer administered the test according to the standardized techniques, and whether the officer scored or interpreted the test properly.

When making this showing, the State may have the officer testify both as a fact witness and an expert, as was done here.

According to the officer’s testimony, the HGN test is composed of a baseline observation to qualify the subject for evaluation (resting nystagmus and equal tracking) and three evaluative components: smooth pursuit, sustained nystagmus at maximum deviation, and the degree of deviation at which the onset of nystagmus occurs. Specifically, Parker challenges the smooth pursuit component and relies on the officer’s testimony on cross-examination that his performance of that part of the test was “a little quick.” The officer otherwise testified that Parker was appropriately qualified as a subject, the other evaluative components were performed correctly, and she exhibited six out of six clues for impairment. The officer also testified as to his training and experience in administering the HGN test, including having advanced training in detecting alcohol impairment and several hundred occasions of having administered the HGN test in the field.

The smooth pursuit component of the HGN test accounted for two out of the six possible clues of impairment, and the record supports a finding that no other flaws occurred with respect to the qualification portion and the other four clues of impairment. “Under law enforcement guidelines, a score of four out of six clues on an HGN test constitutes evidence of impairment.” Based on the record before us, we conclude that performing one of the three evaluative components “a little quick[ly]” did not render the entire test inadmissible. Absent a fundamental error, such as one affecting the subject’s qualification for the HGN test, “evidence of the possibility of error goes only to the weight of the test results, not to their admissibility.” Further, the officer’s testimony was limited to stating only that Parker’s performance exhibited “a level of impairment.” Accordingly, the trial court did not err by denying the motion to suppress.

3. Parker next contends that the trial court erred by failing to suppress evidence from the field sobriety tests performed at the roadside after the HGN test because she was not given a Miranda warning before completing those tests. This argument fails because Parker was not under arrest when the sobriety tests were given.

The requirement to give a Miranda warning does not apply until a person is actually in custody “or otherwise deprived of [her] freedom of action in some significant way.” In making this determination,

a court must examine all of the circumstances surrounding the interrogation, but the ultimate inquiry is simply whether there was a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest. The test for determining whether a person is “in custody” at a traffic stop is if a reasonable person in the suspect’s position would have thought the detention would not be temporary. The issue of whether one is in custody for Miranda purposes is a mixed question of law and fact, and we will not disturb the trial court’s determination unless it is clearly erroneous.

Here, the arresting officer testified that the field sobriety tests were conducted in a parking lot, and Parker stood freely outside of her vehicle during the tests. Parker voluntarily performed the sobriety tests at the request of the officer, who did not place Parker in handcuffs or otherwise restrict her movements until after he told her that he believed she was impaired and after she had completed the sobriety tests. “It is well established that Miranda warnings are not required while an investigating officer conducts preliminary questioning or field sobriety tests, but apply only after a DUI suspect is arrested.” Based on the circumstances here, the trial court was authorized to find that Parker was not “in custody” for Miranda purposes until after the field sobriety tests were performed. Therefore, admitting evidence from pre-Miranda field sobriety tests was not erroneous.

Decided November 23, 2010.

Philip P. Pilgrim, Jr., for appellant.

Rosanna M. Szabo, Solicitor-General, Richard C. Armond, Assistant Solicitor-General, for appellee.

4. Finally, Parker contends that the arresting officer lacked probable cause to arrest her. “The test of probable cause requires merely a probability [of unlawful behavior] — less than a certainty but more than a mere suspicion or possibility.” Based on our holdings herein, Parker’s argument fails because, as explained by the trained and experienced officer, he believed Parker was “over the limit,” and there was evidence to support findings that Parker performed a dangerous lane change; had watery and bloodshot eyes; admitted having consumed “a pitcher or two” of beer with a friend; had a positive aleo-sensor test; and exhibited a level of impairment based on her performance on the HGN, walk-and-turn, and one-leg-stand field sobriety tests. These facts were sufficient to give the officer probable cause to believe that Parker had committed a DUI violation.

Judgment affirmed.

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

       OCGA § 40-6-391 (a) (5).

        Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1996).

       See Guyton v. State, 281 Ga. 789 (1) (642 SE2d 67) (2007).

       (Citation and punctuation omitted.) State v. Jones, 287 Ga. App. 259, 260 (651 SE2d 186) (2007).

       See Wright v. State, 272 Ga. App. 423, 427 (2) (612 SE2d 576) (2005).

        Swearingen v. State, 255 Ga. App. 85, 86 (1) (564 SE2d 498) (2002). See State v. Armstrong, 223 Ga. App. 350, 352 (2) (477 SE2d 635) (1996).

       (Citations and punctuation omitted.) State v. Tousley, 271 Ga. App. 874 (611 SE2d 139) (2005).

       (Punctuation and footnote omitted.) Id. at 876 (1) (a).

       249 Ga. 519 (292 SE2d 389) (1982).

       (Punctuation omitted.) Tousley, 271 Ga. App. at 877 (1) (a).

       (Punctuation omitted.) Id. at 878 (1) (b) (i).

       Id. at 879 (1) (b) (ii).

       See id.

       See, e.g., Laseter v. State, 294 Ga. App. 12, 15 (1) (668 SE2d 495) (2008).

        Tousley, 271 Ga. App. at 880 (1) (b) (ii).

       See id. at 880 (1) (b) (ii).

       Compare Sultan v. State, 289 Ga. App. 405, 408 (1) (657 SE2d 311) (2008) (HGN test inadmissible “because the officer failed to qualify [the defendant] as a suitable subject”).

        Duncan v. State, 305 Ga. App. 268, 272 (2) (a) (699 SE2d 341) (2010). See also Tousley, 271 Ga. App. at 881 (1) (c).

       Compare Bravo v. State, 304 Ga. App. 243, 248 (1) (696 SE2d 79) (2010) (HGN not recognized in court as a sufficiently certain method to determine a precise blood alcohol concentration).

       See Tousley, 271 Ga. App. at 879 (1) (b) (ii).

       (Punctuation omitted.) Brown v. State, 299 Ga. App. 402, 404 (1) (683 SE2d 614) (2009).

       The officer’s subjective belief of whether the subject is intoxicated is not relevant to the inquiry at this stage unless this belief is manifested in a way that would make a person in the suspect’s position think that the detention is not temporary. See, e.g., State v. Foster, 255 Ga. App. 704, 705-706 (566 SE2d 418) (2002). There is no evidence of such a manifestation here.

       (Citation and punctuation omitted.) Brown, 299 Ga. App. at 404 (1).

       Id.

       See id. at 405 (1); Foster, 255 Ga. App. at 706.

       See Polizzotto v. State, 248 Ga. App. 814, 817 (1) (547 SE2d 390) (2001).

       (Punctuation omitted.) Steinberg v. State, 286 Ga. App. 417, 419 (2) (650 SE2d 268) (2007).

       See Jaffray v. State, 306 Ga. App. 469 (702 SE2d 742) (2010); Steinberg, 286 Ga. App. at 419-420 (2); Frederick v. State, 270 Ga. App. 397, 398 (606 SE2d 615) (2004) (“even without the field sobriety tests, the experienced officer’s undisputed testimony that [the defendant] smelled of alcohol, admitted that he had been drinking, and had glossy eyes sufficed to create probable cause for the arrest”).


text:
    A10A1111.
    CHENEY v. THE STATE.
    (703 SE2d 664)

       Senior Appellate Judge G. Alan Blackburn and Senior Appellate Judge Marion T. Pope, Jr., concurred in the original opinion issued in this case. Their successors, Judge Keith R. Blackwell and Judge Stephen Louis A. Dillard, authorized the substitution.

   BARNES, Presiding Judge.

Donnie Sanders Cheney appeals his conviction of one count of theft by receiving, arguing that the State failed to prove the identity of the item’s owner, failed to prove the item was stolen, and failed to prove he ever possessed it. For the reasons that follow, we affirm.

Cheney was indicted on 15 counts of theft by receiving various pieces of heavy equipment that were discovered on his property or at his friend’s racetrack, including a dump truck, trailers, and logging equipment. At trial, Cheney’s employee Donnie Walker, who lived in a trailer on Cheney’s 700-acre farm, admitted stealing the equipment over a period of several years and placing it in Cheney’s equipment repair shop or elsewhere on his property. He explained that he thought he might go into business for himself one day and use the stolen goods, but most of the equipment had been sitting for so long that trees had grown up through it. Walker initially told Cheney that a friend of his needed to store some equipment until he became “straight” with the IRS, and Cheney said that was fine as long as it was not stolen. After that Walker kept bringing in more stolen equipment and leaving it on Cheney’s property, which was messy and already contained numerous pieces of equipment belonging to Cheney and his neighbors. He took the equipment from the side of the road, from job sites, and from farmers’ fields. He stopped stealing when he thought he had enough, and simply left it all on Cheney’s property instead of selling or using it. He pled guilty to one count of theft by receiving stolen property, specifically a “Lowboy trailer.”

A witness testified that he owned a grading company and had previously employed Walker in November 2004 at a site in Milledge-ville. In response to the State’s question whether the witness had been using a trench packer that looked like the one pictured in State’s Exhibit 3, the witness replied, “I don’t know what it looked like. I had one rented, but never looked at it.” He had rented the tool from Nef Tool Rental, which failed to pick it up when it was supposed to and when it finally came to get it the tool was gone.

Walker identified the trench packer pictured on State’s Exhibit 3 as one he had taken from Milledgeville, loaded onto his pickup truck, and spray-painted to hide the owner’s name. He took it to Cheney’s shop and thought it had remained there. Walker first testified he did not know any more if the packer had been taken to the Alabama racetrack, but later testified he thought they had used it once at the track. He also testified that the packer, a loader, and a truck sat on Cheney’s property for four years, and Cheney finally asked him if the owner was going to want it back. Walker told him not to worry about it, and encouraged him to use the equipment. None of the items had tags or registration papers and thus could not be operated on public roads, so Cheney took them to his friend’s racetrack in Alabama and used them there.

The sheriff identified State’s Exhibit 3 as a picture of the trench packer named in Count 3, describing it as having blue spray paint covering the owner’s name. A sheriffs deputy testified that Walker admitted he had stolen from Milledgeville the trench packer depicted in State’s Exhibit 3 and had taken it to Cheney’s property. The deputy located the equipment at the Alabama racetrack, where it was being used.

The State argued that Cheney knew or should have known the equipment on his property was stolen, because the ownership information had been defaced. Additionally, some of the equipment was worth a great deal of money, and the State argued that Walker’s explanation about his friend with IRS difficulties was not credible.

The trial court granted a directed verdict on four of the fifteen counts because the statute of limitation had run or because the State was unable to introduce evidence that the property had been stolen. The jury considered the remaining eleven counts and convicted Cheney only of Count 3, which accused him of receiving “a Ram Max Trench Compactor, the property of Choate Construction, with a value of more than five hundred dollars ($500.00) which he knew or should have known was stolen.”

Cheney contends the evidence was insufficient to sustain his conviction because the State failed to prove the identity of the trench packer’s owner, failed to prove the item was actually stolen, and failed to prove he ever “possessed” it.

OCGA § 16-8-7 (a) provides that “[a] person commits the offense of theft by receiving stolen property when he receives, disposes of, or retains stolen property which he knows or should know was stolen. . . . ‘Receiving’ means acquiring possession or control or lending on the security of the property.”

First, the identity of the owner is not a material element of the crime of theft by receiving. The State need only show that the stolen property belonged to someone other than the defendant. Brandeburg v. State, 292 Ga. App. 191, 193 (1) (663 SE2d 844) (2008) (defining “property of another” in theft by taking case); see also Causey v. State, 139 Ga. App. 499, 500 (1) (229 SE2d 1) (1976).

Second, the State presented sufficient evidence for a reasonable factfinder to conclude that the trench packer identified in Count 3 of the indictment and depicted in State’s Exhibit 3 was stolen. At trial, Walker identified the trench packer in the photograph introduced as State’s Exhibit 3 as the tool he stole from a job site in Milledgeville and left at Cheney’s shop. Compare Causey, supra, 139 Ga. App. at 501 (2) (State failed to establish that clothing stolen from van was same clothing found in defendant’s house).

Finally, the State presented some evidence that Cheney possessed the trench packer. The deputy testified that Walker admitted stealing the trench compactor and it was found on Cheney’s property. This evidence, along with Walker’s testimony that he left the equipment at Cheney’s shop, is sufficient to allow a rational trier of fact to find that Cheney possessed the stolen trench compactor and was guilty beyond a reasonable doubt of this count of theft by receiving stolen property. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Causey, supra, 139 Ga. App. at 500 (1).

Accordingly, the evidence was sufficient to sustain Cheney’s conviction on one count of theft by receiving stolen property.

Decided October 5, 2010

RECONSIDERATION DENIED NOVEMBER 24, 2010.

Perry & Walters, George P Donaldson III, Misty G. Haskins, for appellant.

Joseph K. Mulholland, District Attorney, Charles E. Rooks, Assistant District Attorney, for appellee.

Judgment affirmed.

Senior Appellate Judge G. Alan Blackburn and Senior Appellate Judge Marion T Pope, Jr, concur.


author: Barnes, Presiding Judge.

text:
    A10A1459.
    BRANNON v. GARCIA.
    (703 SE2d 668)
   Barnes, Presiding Judge.

Gary Brannon appeals the order of the superior court enforcing the award of the State Board of Workers’ Compensation under OCGA § 34-9-106, which granted benefits to Daniel Garcia. Bran-non contends the superior court abused its discretion and exceeded its authority by modifying the award and by substituting him as a party to an action to enforce a workers’ compensation award. We agree and reverse the judgment of the superior court.

The standard of review in workers’ compensation appeals is clear:

In the absence of legal error, the factual findings of the State Board of Workers’ Compensation must be affirmed by the superior court and by the Court of Appeals when supported by any evidence in the administrative record. However, erroneous applications of law to undisputed facts, as well as decisions based on erroneous theories of law, are subject to the de novo standard of review.

(Citation and footnote omitted.) Trent Tube v. Hurston, 261 Ga. App. 525 (583 SE2d 198) (2003).

The record shows that Garcia filed a “Petition to Adopt, Modify, and Enforce Order,” seeking to enforce a certified order of the Workers’ Compensation Board. The award of the State Board of Workers’ Compensation attached to the petition showed that Daniel Garcia was the employee and Brennan Roofing Company was the employer. In the award, the administrative law judge found as fact that Garcia was an employee of “Brennan Roofing Company” and that “the claimant’s supervisor, Mr. Gary Brennan, had notice of the accident on the day it occurred.” The ALJ further found that the employer’s failure to appear at the hearing and defend the claim was “tantamount to an admission that it had no reasonable defense.” As a consequence, the award ordered “Brennan Roofing Company” to pay benefits, penalties, and attorney fees to Garcia.

In his petition to enforce and modify the workers’ compensation award, Garcia styled it as “Daniel Garcia, Employee v. Brennan Roofing Co. [sic] Brannon Roofing Col, Employer, and Gary Bran-non, Company Owner.” A sheriffs return of service shows Brannon was personally served with a copy of the petition at the same address the AU listed for Brennan Roofing Company. After the superior court made the orders of the State Board of Workers’ Compensation the orders of the court and adopted all findings of fact and conclusions of law in those orders, Garcia moved “to correct a scrivener’s error.” In the motion he asked the superior court to change the name of the employer in the State Board of Workers’ Compensation’s award from Brennan Roofing Company to “Brannon Roofing Company.” Then, in a separate motion, Garcia moved to add Gary Brannon as a party defendant. The superior court granted both motions.

By modifying the award in this fashion, the superior court exceeded its authority.

OCGA § 34-9-106 provides a mechanism for an interested party, who has been awarded benefits, to enforce the award in the superior court in the county in which the injury occurred. The filing of such petition is not a separate suit but rather a continuation of the Board’s proceeding. And a superior court lacks jurisdiction in a Section 106 proceeding to hear, dispute, or decide issues of fact which were determined in the administrative forum and which provide the basis for the award or settlement.

(Citation and punctuation omitted.) Willis v. McClain Indus. of Ga., 260 Ga. App. 195, 196 (1) (581 SE2d 293) (2003). The authority of the superior court is limited to an enforcement of the final award of the State Board of Workers’ Compensation. Kingery Block & Concrete Co. v. Luttrell, 174 Ga. App. 481, 483 (330 SE2d 181) (1985). Consequently, the superior court had no authority to change the employer’s name in the award or to add Brannon as a party to the award. If Garcia deemed this action necessary, his recourse was to the State Board.

Decided October 14, 2010

Reconsideration denied November 24, 2010

Burkhalter, Pierce & Burkhalter, Albert F. Burkhalter, Jr., for appellant.

William H. Stoll, for appellee.

Garcia’s reliance upon Winnersville Roofing Co. v. Coddington, 283 Ga. App. 95 (640 SE2d 680) (2006), is misplaced because Winnersville was an appeal of the judgment of a superior court refusing to set aside an award by an administrative law judge. In Winnersville, the employee filed an action in superior court under OCGA § 34-9-106 to enforce the workers’ compensation award, and in response the employer sought to vacate or set it aside, claiming it had not received notice of the application or hearing. Id. at 96. The superior court denied the motion, finding that the company had received proper notice and was negligent in failing to appear. Id. On appeal, Winnersville argued among other things that the award was defective because it was against a sole proprietorship, which was not a legal entity separate from its owner. Id. We affirmed the superior court’s denial of the motion, holding that a misnomer could have been corrected by the ALJ or State Board, and thus was not grounds to set aside the award. We further observed that “this alleged defect in the award was hardly a defect. A trade name such as that which denominates the Sole Proprietorship is merely a name assumed or used by a person recognized as a legal entity. A judgment against one in an assumed or trade name is a judgment against him as an individual.” Id. at 98.

Because the superior court was without authority to change the workers’ compensation award to add Brannon or change the name of the company, we must reverse.

Judgment reversed.

Senior Appellate Judge G. Alan Blackburn and Senior Appellate Judge William LeRoy McMurray, Jr., concur.

       Any party in interest may file in the superior court of the county in which the injury occurred ... a certified copy of... a final order or decision of the members or of an award of the members unappealed from or of an award of the members affirmed upon appeal, whereupon the court shall render judgment in accordance therewith and notify the parties. Such judgment shall have the same effect and all proceedings in relation thereto shall thereafter be the same as though the judgment had been rendered in an action duly heard and determined by such court. . ..


author: PHIPPS, Presiding Judge.

text:
    A08A2030.
    MEADOW SPRINGS, LLC v. IH RIVERDALE, LLC et al.
    (704 SE2d 239)
   PHIPPS, Presiding Judge.

In Meadow Springs, LLC v. IH Riverdale, LLC, the Supreme Court of Georgia reversed our judgment, in which we had affirmed an order of the trial court that granted IH Riverdale, LLC and Geoffrey Nolan’s motion for summary judgment and denied Meadow Springs, LLC’s motion for partial summary judgment in an action brought by Meadow Springs asserting claims for slander of title, tortious interference with contract, and tortious interference with economic opportunities.

[W]hen faced with the Supreme Court’s reversal of one of its opinions, the Court of Appeals is required: (1) to read [the Supreme] Court’s opinion within the context of the opinion being reversed; (2) to determine whether any portions of the opinion being reversed were neither addressed nor considered by the Supreme Coprt; and (3) enter an appropriate disposition with regard to those portions that is consistent with the issue addressed and considered by [the Supreme] Court.

Having conducted this analysis, and for the following reasons, we vacate our previous opinion in this case, reverse the trial court’s grant of summary judgment to IH and Nolan, vacate the trial court’s denial of summary judgment to Meadow Springs, and remand the case for further proceedings.

Meadow Springs based its claims against IH and Nolan on their acts of filing a lis pendens on real property owned by Meadow Springs in connection with another lawsuit (the “prior action”), and of delivering to a third party, Regions Bank, copies of the notice of lis pendens and complaint in the prior action. The trial court granted summary judgment to IH and Nolan on the grounds that the lis pendens was valid and the filing and publication of the notice of lis pendens and complaint were subject to an absolute privilege set forth in OCGA § 51-5-8. For these reasons, the court also denied Meadow Springs’s motion for partial summary judgment.

In reversing our judgment affirming the trial court’s order, the Supreme Court found that the prior action did not involve real property for purposes of creating a lis pendens and that we thus had erred in holding that the lis pendens was valid. But the Supreme Court’s decision did not address whether, in light of its ruling, this Court had erred in affirming the grant of summary judgment to IH and Nolan or the denial of partial summary judgment to Meadow Springs.

We review the grant or denial of summary judgment de novo, viewing the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. The evidence, which is set out more fully in the Supreme Court’s opinion, showed that IH and Nolan brought the prior action against Meadow Springs, among other defendants. Therein, IH and Nolan (as a member of IH) asserted a violation of their rights under an operating agreement for a limited liability company in which IH was a member. As described by the Supreme Court,

the complaint alleged that the defendants had deprived IH . . . of its right to invest in [a real estate] development and sought specific performance of an alleged option to purchase 50% of the land involved in the . . . development and the imposition of a constructive trust on the land and profits of that development.

The complaint included the allegation that the defendants had “exercised improper, wrongful and illegal dominion and/or control over property and property interests belonging to Nolan and IH, including . . . the real property subject to the . . . [ojption.”

Asserting that the prior action thus “involv[ed]” the real property, IH and Nolan filed a notice of lis pendens on the property. Through their attorney, IH and Nolan delivered a copy of the complaint in the prior action and the notice of lis pendens to Regions Bank, which had entered into a construction loan agreement with Meadow Springs. Upon learning of the lis pendens, Regions Bank declined to fund the construction loan. Shortly thereafter, Meadow Springs lost the property in foreclosure.

1. IH and Nolan’s Motion for Summary Judgment. For the following reasons, we reverse that portion of the trial court’s order granting summary judgment to IH and Nolan.

(a) The trial court held that IH and Nolan were entitled to summary judgment because the lis pendens was valid and thus the filing and publication of the notice of lis pendens were subject to an absolute privilege under OCGA § 51-5-8. In light of the Supreme Court’s decision that the lis pendens was not valid, this ground no longer authorizes the grant of summary judgment.

OCGA § 51-5-8 provides:

All charges, allegations, and averments contained in regular pleadings filed in a court of competent jurisdiction, which are pertinent and material to the relief sought, whether legally sufficient to obtain it or not, are privileged. However false and malicious such charges, allegations, and averments may be, they shall not be deemed libelous.

This privilege extends to the proper filing of a notice of lis pendens. But it does not extend to the improper filing of a notice of lis pendens. And although this privilege covers all statements made within a pleading filed in a court of competent jurisdiction, even if false, it “has not been extended to publishing the contents of official court documents outside the judicial process.” Thus, IH and Nolan’s act of sending copies of the notice of lis pendens and complaint to Regions Bank did not fall under this privilege, and the trial court erred in granting summary judgment to IH and Nolan on this ground.

(b) We find no merit in the other grounds asserted by IH and Nolan in support of summary judgment on the slander of title and tortious interference claims.

(i) IH and Nolan argue that the defense of truth entitled them to summary judgment on the slander of title claim. In light of the Supreme Court’s ruling that the prior action, and the interests asserted therein, did not involve the real property, IH and Nolan are not entitled to summary judgment on this ground.

(ii) IH and Nolan argue that they were entitled to summary judgment on the ground that the filing and publication of the notice of lis pendens were privileged under OCGA § 51-5-7 (3), which concerns “[statements made with a good faith intent on the part of the speaker to protect his or her interest in a matter in which it is concerned.” This privilege has been applied to claims for tortious interference as well as defamation. In reviewing whether summary judgment was appropriate on this ground, we consider whether IH and Nolan have “established as a matter of law that [they] made privileged statements.” To do so, they must show good faith, an interest to be upheld, a statement properly limited in scope, a proper occasion and publication to proper persons.

In support of their claim of privilege under this Code section, IH and Nolan point to their counsel’s letter accompanying the transmission of the complaint and notice of lis pendens to Regions Bank. That letter provided:

Please find enclosed copies of: (1) a Complaint filed yesterday by Geoff Nolan and IH Riverdale, LLC in Fulton County Superior Court; and (2) a Notice of Lis Pendens filed today in Clayton County Superior Court. The announced intention of [defendants in the prior action] not to pay Wilson & Nolan Southeast, Inc. a brokerage fee for the Regions Bank loan set to close shortly is an issue in the above-described litigation.

IH and Nolan argue that the contents of this letter demonstrated their entitlement to the privilege under OCGA § 51-5-7 (3), citing this Court’s decision in Choice Hotels Intl. v. Ocmulgee Fields, Inc. In that case, we held that statements in a letter — in which one hotel company informed another hotel company that a third company with which the second company had entered into a franchising agreement was still under contract with the first company — were subject to privilege. Unlike the author of the letter in that case, however, IH and Nolan have not demonstrated that they held an interest which their publication of the complaint and notice of lis pendens purported to protect. The letter does not refer to a commission owed to either IH or Nolan, but rather to one owed to another entity, Wilson & Nolan Southeast, Inc. The agreement giving rise to that entity’s right to the commission described Wilson & Nolan as “affiliated” with IH, but it did not describe the interest, if any, that either IH or Nolan held in Wilson & Nolan’s commission. And IH and Nolan do not point in their appellate brief to any other record evidence addressing their interest in a commission due Wilson & Nolan.

Consequently, IH and Nolan have not shown that they had an interest to uphold in the commission such that they were entitled as a matter of law to the privilege set forth in OCGA § 51-5-7 (3). Summary judgment is not proper on this ground.

(iii) IH and Nolan argue entitlement to summary judgment on the ground that there is no evidence showing that the tortious acts alleged in the complaint damaged Meadow Springs. Meadow Springs, however, has pointed to evidence that Regions Bank refused to fund the pending construction loan after learning of the improperly-filed notice of lis pendens and the allegations therein. Summary judgment is not proper on this ground.

2. Meadow Springs’s Motion for Partial Summary Judgment. In its motion for partial summary judgment, Meadow Springs asserted that the evidence showed as a matter of law that, by filing and publishing the notice of lis pendens and complaint, IH and Nolan had “uttered and published slanderous words” which were false and which concerned property in which Meadow Springs possessed an estate. The trial court held that its ruling granting summary judgment to IH and Nolan necessitated the denial of the motion for partial summary judgment filed by Meadow Springs. Thus, the court did not reach the question of whether, as a matter of law, the contents of the improperly-filed notice of lis pendens constituted the uttering and publishing of slanderous words against property in which Meadow Springs had an interest. And in addressing the denial of Meadow Springs’s motion in their appellate briefs, the parties have focused on whether the notice of lis pendens was valid, not on why its invalidity would or would not entitle Meadow Springs to partial summary judgment. Moreover, interests of judicial efficiency are not implicated here, where the case will proceed below in some form regardless of the disposition of the motion for partial summary judgment.

Under these circumstances, we decline to engage in a “right for any reason” analysis. We vacate that portion of the court’s order denying the motion for partial summary judgment and remand the case to the trial court for proceedings consistent with this opinion and the Supreme Court’s opinion in Meadow Springs.

Decided November 24, 2010.

Heyman & Sizemore, William B. Brown, Jacqueline Marcucci, for appellant.

Swift, Currie, McGhee & Hiers, David L. Pardue, Hartman, Simons, Spielman & Wood, Christopher S. Badeaux, for appellees.

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

Barnes, P. J., and Johnson, J., concur.

       286 Ga. 701 (690 SE2d 842) (2010).

        Meadow Springs, LLC v. IH Riverdale, LLC, 296 Ga. App. 551 (675 SE2d 290) (2009).

        Shadix v. Carroll County, 274 Ga. 560, 563-564 (554 SE2d 465) (2001).

       The court did not address counterclaims and third-party claims also pending before it.

       See generally OCGA § 44-14-610 et seq. (providing for the filing of a notice of lis pendens against real property involved in a legal action).

        Meadow Springs, supra, 286 Ga. at 705 (1).

       See id.

        Talbot County Bd. of Commrs. v. Woodall, 275 Ga. 281 (1) (565 SE2d 465) (2002).

        Meadow Springs, supra, 286 Ga. 701.

       Id. at 702.

        Sanders v. Brown, 257 Ga. App. 566, 568 (1) (a) (571 SE2d 532) (2002); Panfel v. Boyd, 187 Ga. App. 639, 647 (4) (371 SE2d 222) (1988).

         South River Farms v. Bearden, 210 Ga. App. 156, 158 (435 SE2d 516) (1993).

        O’Neal v. Home Town Bank of Villa Rica, 237 Ga. App. 325, 332 (8) (514 SE2d 669) (1999).

       See generally City of Gainesville v. Dodd, 275 Ga. 834, 838 (573 SE2d 369) (2002).

       See OCGA § 51-5-6 (“The truth of the charge made may always be proved in justification of an alleged libel or slander.”).

       See Meadow Springs, supra, 286 Ga. at 705.

       See Choice Hotels Intl. v. Ocmulgee Fields, Inc., 222 Ga. App. 185, 188 (2) (474 SE2d 56) (1996).

        Kennedy v. Johnson, 205 Ga. App. 220, 223 (3) (421 SE2d 746) (1992) (citations and punctuation omitted).

        Davis v. Sherwin-Williams Co., 242 Ga. App. 907, 908 (531 SE2d 764) (2000).

       Supra.

       Id. at 188-189 (2).

       See Davis, supra; Kennedy, supra.

       See City of Gainesville, supra.

       Supra, 286 Ga. 701.


text:
    A09A0979.
    McCHESNEY v. IH RIVERDALE, LLC et al.
    (704 SE2d 244)
   PHIPPS, Presiding Judge.

In McChesney v. IH Riverdale, LLC, this Court affirmed the grant of partial summary judgment to IH Riverdale, LLC and Geoffrey Nolan in an action brought by Michael McChesney seeking a declaratory judgment on his interest in real property and damages for slander of title to that property. This Court based its affirmance on the decision in a related case, Meadow Springs, LLC v. IH Riverdale, LLC. The Supreme Court of Georgia subsequently reversed this Court’s decision in Meadow Springs, and it granted a writ of certiorari and remanded this case to us in light of that reversal. For reasons that follow, we vacate the previous opinion in this case and reverse the trial court’s grant of partial summary judgment on the slander of title claim.

McChesney based his claim of slander of title against IH and Nolan on their acts of filing a lis pendens on real property in connection with another lawsuit (the “prior action”), and of delivering to a third party, Regions Bank, copies of the notice of lis pendens and complaint in the prior action. The trial court granted summary judgment to IH and Nolan on the slander of title claim on the grounds that the lis pendens was valid and the filing and publication of the notice of lis pendens and complaint were subject to an absolute privilege set forth in OCGA § 51-5-8. In Meadow Springs, however, the Supreme Court found that the prior action at issue here did not involve real property for purposes of creating a lis pendens and that this Court thus had erred in holding that the lis pendens at issue here was valid. Given the Supreme Court’s ruling, we now consider whether IH and Nolan are nevertheless entitled to summary judgment on the slander of title claim.

We review the grant or denial of summary judgment de novo, viewing the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. The evidence, which is set out more fully in the Supreme Court’s opinion, showed that IH and Nolan brought the prior action against Meadow Springs, LLC, among other defendants. Therein, IH and Nolan (as a member of IH) asserted a violation of their rights under an operating agreement for a limited liability company in which IH was a member. As described by the Supreme Court,

the complaint alleged that the defendants had deprived IH ... of its right to invest in [a real estate] development and sought specific performance of an alleged option to purchase 50% of the land involved in the . . . development and the imposition of a constructive trust on the land and profits of that development.

The complaint included the allegation that the defendants had “exercised improper, wrongful and illegal dominion and/or control over property and property interests belonging to Nolan and IH, including . . . the real property subject to the . . . [olption.”

Asserting that the prior action thus “involv[ed]” the real property, IH and Nolan filed a notice of lis pendens on the property. Through their attorney, IH and Nolan delivered a copy of the complaint in the prior action and the notice of lis pendens to Regions Bank. Regions Bank had entered into a construction loan agreement with Meadow Springs, the proceeds of which would be used to repay a loan that Meadow Springs had obtained from McChesney and for which McChesney had received a deed to secure debt in the property. Upon learning of the lis pendens, Regions Bank declined to fund the construction loan, and Meadow Springs defaulted on its obligations to McChesney.

In this case, McChesney asserted a claim that the filing of the notice of lis pendens, and the publication of the complaint and notice to Regions Bank, constituted slander of title. To prevail on this claim, he was required to show “the uttering and publishing of the slanderous words; that they were false; that they were malicious; that he sustained special damage thereby; and that he possessed an estate in the property slandered.” In support of their motion for summary judgment on this claim, IH and Nolan argued that the notice of lis pendens was valid and properly filed, that consequently its contents were true, and that the filing and publication of the notice and complaint were privileged under either OCGA § 51-5-7 or § 51-5-8.

1. The trial court held that IH and Nolan were entitled to summary judgment on the slander of title claim because the lis pendens was valid and thus the filing and publication of the notice of lis pendens and the complaint were subject to an absolute privilege under OCGA § 51-5-8. In light of the Supreme Court’s decision that the lis pendens was not valid, this ground no longer authorizes the grant of summary judgment.

OCGA § 51-5-8 provides:

All charges, allegations, and averments contained in regular pleadings filed in a court of competent jurisdiction, which are pertinent and material to the relief sought, whether legally sufficient to obtain it or not, are privileged. However false and malicious such charges, allegations, and averments may be, -they shall not be deemed libelous.

This privilege extends to the proper filing of a notice of lis pendens. But it does not extend to the improper filing of a notice of lis pendens. And although this privilege covers all statements made within a pleading filed in a court of competent jurisdiction, even if false, this privilege “has not been extended to publishing the contents of official court documents outside the judicial process.” Thus, IH and Nolan’s act of sending copies of the notice of lis pendens and complaint to Regions Bank did not fall under this privilege, and the trial court erred in granting summary judgment to IH and Nolan on this ground.

2. We find no merit in the other grounds asserted by IH and Nolan in support of summary judgment on the slander of title claim.

(a) IH and Nolan argue that the defense of truth entitled them to summary judgment on the slander of title claim. In light of the Supreme Court’s ruling that the prior action, and the interests asserted therein, did not involve the real property, IH and Nolan are not entitled to summary judgment on this ground.

(b) IH and Nolan argue that they were entitled to summary judgment on the ground that the filing and publication of the notice of lis pendens were privileged under OCGA § 51-5-7 (3), which concerns “[statements made with a good faith intent on the part of the speaker to protect his or her interest in a matter in which it is concerned.” In reviewing whether summary judgment was appropriate on this ground, we consider whether IH and Nolan have “established as a matter of law that [they] made privileged statements.” To do so, they must show good faith, an interest to be upheld, a statement properly limited in scope, a proper occasion and publication to proper persons.

In support of their claim of privilege under this Code section, IH and Nolan point to their counsel’s letter accompanying the transmission of the complaint and notice of lis pendens to Regions Bank. That letter provided:

Please find enclosed copies of: (1) a Complaint filed yesterday by Geoff Nolan and IH Riverdale, LLC in Fulton County Superior Court; and (2) a Notice of Lis Pendens filed today in Clayton County Superior Court. The announced intention of [defendants in the prior action] not to pay Wilson & Nolan Southeast, Inc. a brokerage fee for the Regions Bank loan set to close shortly is an issue in the above-described litigation.

Decided November 24, 2010.

Michael D. McChesney, pro se.

Hartman, Simons, Spielman & Wood, Kristen A. Yadlosky, for appellees.

IH and Nolan argue that the contents of this letter demonstrated their entitlement to the privilege under OCGA § 51-5-7 (3), citing this Court’s decision in Choice Hotels Intl. v. Ocmulgee Fields, Inc. In that case, we held that statements in a letter — in which one hotel company informed another hotel company that a third company with which the second company had entered into a franchising agreement was still under contract with the first company — were subject to privilege. Unlike the author of the letter in that case, however, IH and Nolan have not demonstrated that they held an interest which their publication of the complaint and notice of lis pendens purported to protect. The letter does not refer to a commission owed to either IH or Nolan, but rather to one owed to another entity, Wilson & Nolan Southeast, Inc. The agreement giving rise to that entity’s right to the commission described Wilson & Nolan as “affiliated” with IH, but it did not describe the interest, if any, that either IH or Nolan held in Wilson & Nolan’s commission. And IH and Nolan do not point to any other record evidence addressing their interest in a commission due Wilson & Nolan.

Consequently, IH and Nolan have not shown that they had an interest to uphold in the commission such that they were entitled as a matter of law to the privilege set forth in OCGA § 51-5-7 (3). Summary judgment is not proper on this ground.

(c) IH and Nolan contend on appeal that there is no evidence showing that the alleged slander of title caused McChesney’s injury. They did not make this argument before the trial court. Moreover, the record contains evidence that Regions Bank refused to fund the pending construction loan to Meadow Springs after learning of the notice of lis pendens, leading to Meadow Springs’s inability to meet its obligations to McChesney. Summary judgment is not proper on this ground.

Judgment reversed.

Smith, P. J., and Dillard, J., concur.

       300 Ga. App. XXV (2009) (unpublished opinion).

       The trial court’s order addressed only McChesney’s claim for slander of title. The court expressly noted that it had not ruled on the request for declaratory judgment. The order also did not address the counterclaim or various third-party claims raised by IH and Nolan. These claims remain pending before the trial court.

       296 Ga. App. 551 (675 SE2d 290) (2009).

        Meadow Springs, LLC v. IH Riverdale, LLC, 286 Ga. 701 (690 SE2d 842) (2010).

       Case No. S10C0482 (March 15, 2010) (order).

       See generally OCGA § 44-14-610 et seq. (providing for the filing of a notice of lis pendens against real property involved in a legal action).

        Meadow Springs, supra, 286 Ga. at 705 (1).

        Talbot County Bd. of Commrs. v. Woodall, 275 Ga. 281 (1) (565 SE2d 465) (2002).

        Meadow Springs, supra, 286 Ga. 701.

       Id. at 702.

        Latson v. Boaz, 278 Ga. 113, 114 (598 SE2d 485) (2004) (citations and punctuation omitted).

        Sanders v. Brown, 257 Ga. App. 566, 568 (1) (a) (571 SE2d 532) (2002); Panfel v. Boyd, 187 Ga. App. 639, 647 (4) (371 SE2d 222) (1988).

        South River Farms v. Bearden, 210 Ga. App. 156, 158 (435 SE2d 516) (1993).

        O’Neal v. Home Town Bank of Villa Rica, 237 Ga. App. 325, 332 (8) (514 SE2d 669) (1999).

       See generally City of Gainesville v. Dodd, 275 Ga. 834, 838 (573 SE2d 369) (2002).

       See OCGA § 51-5-6 (“The truth of the charge made may always be proved in justification of an alleged libel or slander.”).

       See Meadow Springs, supra, 286 Ga. at 705.

        Kennedy v. Johnson, 205 Ga. App. 220, 223 (3) (421 SE2d 746) (1992) (citations and punctuation omitted).

        Davis v. Sherwin-Williams Co., 242 Ga. App. 907, 908 (531 SE2d 764) (2000).

       222 Ga. App. 185 (474 SE2d 56) (1996).

       Id. at 188-189 (2).

       See Davis, supra; Kennedy, supra.


text:
    A10A0869.
    PENDLEY et al. v. SOUTHERN REGIONAL HEALTH SYSTEM, INC.
    (704 SE2d 198)
   Doyle, Judge.

Linda Pendley, individually and on behalf of the estate of Mark Pendley, her son, brought the instant medical malpractice action against various parties, including Southern Regional Health System, Inc., d/b/a Southern Regional Medical Center (“Southern Regional”). Pendley appeals the trial court’s order granting summary judgment to Southern Regional as well as the trial court’s order granting Southern Regional’s motion in limine to exclude expert testimony of Dr. Jonathan Ilowide. For the reasons that follow, we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

Furthermore,

the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.

So viewed, the evidence establishes that decedent Mark Pendley arrived at the emergency room of Southern Regional on November 29, 2003, complaining of nausea and abdominal pain. Mark was examined by Dr. William Watkins, who deposed that Mark’s blood sodium level was very low, close to the point at which seizures could occur, and he had exhibited tachycardia and hypotension, but Dr. Watkins’s evaluations had not produced a diagnosis for the cause of the symptoms. Dr. Watkins also ordered a series of further tests in an attempt to discover the cause of Mark’s abdominal pain, and in the early morning of November 30, Dr. Watkins determined that Mark should be admitted to the telemetry floor.

That morning, Dr. Watkins discussed Mark’s case with Dr. Cashmir C. Okoro, and Dr. Watkins’s order for admission stated “Admit to telemetry. Diagnosis: Abdominal pain, hypotension, electrolyte imbalance. Attending Dr. Okoro. Condition: Fair. . . . Call Dr. Okoro on arrival of the patient to the floor for further orders.” After Dr. Watkins’s discussion with Dr. Okoro some time after 6:20 a.m. on November 30, an emergency room nurse noted in the Intra-Hospital Transfer section of the emergency room records that Mark’s blood pressure was 79/49; the Transfer section states that it is to be completed (including recording various vital signs such as blood pressure of the patient) within 30 minutes of a patient’s transfer, which occurred in this case at 8:00 a.m. on November 30. Dr. Okoro deposed that he reviewed these records prior to examining Mark. The nurse’s notes do not indicate whether this blood pressure reading was orally communicated to any physician.

On the afternoon of December 1, Dr. Okoro examined Mark. Early on the morning of December 2, Mark’s condition deteriorated, and he passed away.

Dr. Ilowide, who practices in pulmonary and critical care and who testified as Pendley’s expert witness, deposed that his practice employs two registered nurses and a nurse practitioner. Dr. Ilowide deposed that he annually conducted continuing education classes for nurses at Winthrop University Hospital. Dr. Ilowide also specifically deposed that he (1) never trained or practiced as a nurse, (2) did not regularly train or supervise nurses outside of writing orders that nurses then carried out, (3) was not an expert in the nursing field, and (4) was not an expert as to the standard of care of nurses. Dr. Ilowide deposed that based on the medical record, his education and experience, and Dr. Okoro’s deposition, he believed Mark died after suffering from sepsis or an idiopathic problem, which led to acute respiratory distress syndrome, which was apparent while he was still in the emergency room and escalated into the full-blown syndrome while he was in telemetry. He concluded that an “institutional failure” occurred when Mark was not admitted to the intensive care unit (“ICU”) because of his deterioration during his emergency room stay, and had Mark been admitted to the ICU, he likely would have survived.

Dr. Ilowide deposed that he did not “have [any] specific criticisms” of the nursing care provided to Mark; he also deposed that the nurse who noted in Mark’s records the blood pressure reading of 79/49 should have orally communicated the reading to the treating physician because it was so abnormal, but he agreed with defense counsel’s statement that he could not say any particular failure on the part of a nurse involved in Mark’s care was a breach of the standard of care. Dr. Ilowide also deposed that Dr. Okoro breached the standard of care by allowing Mark to be admitted to telemetry instead of the ICU and by not transferring Mark from telemetry to the ICU while Dr. Okoro treated him during the following hours.

Southern Regional submitted the affidavit of Susan A. Nemchik, director of risk management, which stated that (1) Dr. Okoro does not have an employment contract with Southern Regional; (2) Southern Regional did not exercise control over the manner in which Dr. Okoro rendered care for his patients; (3) Southern Regional did not provide medical malpractice insurance for Dr. Okoro; (4) Southern Regional did not directly compensate Dr. Okoro for services rendered to Mark; and (5) Southern Regional did not bill for Dr. Okoro’s services. Dr. Okoro’s affidavit provided that at the time of Mark’s death, Dr. Okoro was a shareholder, member, and employee of Southside Internal Medicine, EC. In addition to stating that he maintained a separate practice from Southern Regional, Dr. Okoro’s affidavit stated that he (1) maintained his own insurance and (2) billed patients separately from Southern Regional for services rendered at the hospital. Dr. Okoro’s affidavit maintains that he never stated to Pendley or Mark that he was an employee of Southern Regional. Moreover, Pendley, on behalf of Mark, signed two documents, a “General Consent for Treatment” and a “Routine Consent,” each of which stated that all physicians providing treatment at Southern Regional were independent contractors and not employees of Southern Regional.

In its order, the trial court determined that Dr. Okoro was not an employee of Southern Regional, and Pendley had no reason at the time of Mark’s admission to believe that Dr. Okoro was employed at Southern Regional. Additionally, the trial court concluded that Dr. Ilowide’s testimony should be excluded as to the standard of care of nurses because he did not meet the requirements of OCGA § 24-9-67.1 (c) (2) (D). The trial court also concluded that, even if Dr. Ilowide’s testimony was admissible, Pendley had failed to present evidence that any alleged breach of the standard of care of the nurses treating Mark was the proximate cause of Mark’s death. Based on those findings, the trial court granted summary judgment on Pend-ley’s claims to Southern Regional.

1. Pendley argues that the trial court erred by granting summary judgment to Southern Regional based on the alleged negligence of Dr. Okoro.

(a) First, Pendley argues that the trial court erred by granting Southern Regional’s motion for summary judgment on its finding that Dr. Okoro was not an employee of Southern Regional.

[F]or the hospital to be held liable [for the acts of a doctor,] it must be shown that the doctor was an employee of the hospital and not an independent contractor. The true test of whether the relationship is one of employer-employee or employer-independent contractor is whether the employer, under the contract either oral or written, assumes the right to control the time, manner[,] and method of executing the work, as distinguished from the right merely to require certain definite results in conformity to the contract.

Because the cause of action here arose prior to February 16, 2005, we apply the factors set forth in Cooper v. Binion, in order to determine whether Pendley has submitted sufficient evidence to show that there is a question of fact as to whether Dr. Okoro was an employee of Southern Regional. These factors are:

(a) The right to direct the physician’s work step-by-step [;] ... (b) Contracts to perform a service rather than accomplish a task[;] ... (c) The right of the hospital to inspect the physician’s work[;] . . . (d) The supplier of the equipment^] . . . (e) The nature or skill of the physician’s work[;] . . . (f) The hospital’s right to control the physician’s time[;] . . . (g) The method of payment[;] . . . (h) [The rlight to choose which patients to treat[;] . . . (i) Physician spends all working hours at hospital[;] . . . (j) The method of billing the patients [; and] . . . (k) Payments for medical malpractice insurance.

Specifically, Pendley contends that the trial court erred by granting summary judgment on the question of whether Dr. Okoro was an employee because (1) Southern Regional exercised control over Dr. Okoro’s time and schedule for working at the hospital, and (2) Southern Regional supplied equipment to Dr. Okoro. Dr. Okoro deposed that at the time he treated Mark, he had been on call for Southern Regional for the preceding 24 hours and was required to be the admitting doctor on November 29 and 30. He also deposed that he utilized the hospital dictation equipment when recording his notes on hospital patients, and he does not maintain separate files for those patients in his private practice. Dr. Okoro also deposed that when a physician has privileges at a hospital, the physician undertakes certain tasks, such as seeing a certain number of patients.

We do not find that Pendley has supplied sufficient facts to overcome Southern Regional’s motion for summary judgment. In addition to the affidavit of Nemchik, which stated that Southern Regional did not employ, directly compensate, bill patients on behalf of, provide insurance for, or exercise control over the methods of Dr. Okoro, Dr. Okoro stated he was not employed by Southern Regional and maintained his own separate practice. And while Dr. Okoro deposed that he had been on call for 24 hours at the time of Mark’s admission, and he was the admitting physician “by [7:00] in the morning” and that as an attending physician with privileges he undertook certain obligations, the record is devoid of evidence that Southern Regional controlled the time at which Dr. Okoro was required to perform at the hospital. Neither Nemchik’s nor Dr. Okoro’s affidavit states whether Southern Regional maintained control of Dr. Okoro’s schedule, and neither witness states whether Dr. Okoro dictated the dates upon which he could work or if Southern Regional dictated when Dr. Okoro was required to work during a given time period. This does not meet Pendley’s burden of identifying specific evidence giving rise to a triable issue with respect to Dr. Okoro’s status as an employee of Southern Regional, because “speculation which raises merely a conjecture or possibility is not sufficient to create even an inference of fact for consideration on summary judgment.” Stated plainly, the fact that Dr. Okoro used the hospital’s dictation equipment or that he was scheduled to be at the hospital on the day Mark was admitted is simply not enough to create an issue of fact as to whether the hospital controlled Dr. Okoro’s time, method, or manner of work to the degree that he should be considered an employee of Southern Regional. Accordingly, we affirm the trial court’s grant of summary judgment on this issue.

(b) Next, Pendley argues that the trial court erred by granting Southern Regional’s motion for summary judgment on the basis that Dr. Okoro was not an apparent or ostensible agent of Southern Regional. We disagree.

The doctrine of apparent or ostensible agency provides: One who represents that another is his servant or other agent and thereby causes a third person justifiably to rely upon the care or skill of such apparent agent is subject to liability to the third person for harm caused by the lack of care or skill of the one appearing to be a servant or other agent as if he were such.

Relying on Cooper, Pendley contends that there is a question of fact as to whether Southern Regional represented that Dr. Okoro was an agent of the hospital. When Mark arrived at Southern Regional without a physician, neither Pendley nor Mark selected Dr. Okoro for treatment Mark would receive at the hospital, and Pendley claimed that she selected Southern Regional for Mark’s treatment based on the hospital’s reputation and not on the reputation of Dr. Okoro. In Cooper, however, the physician in question told the plaintiffs “he could not be their private doctor inasmuch as he had no private practice and did not see patients outside of the hospital’s emergency room.” There is nothing in our record to indicate that Dr. Okoro made any statement to Pendley from which she could conclude he was an employee of the hospital.

Pendley also contends that the waiver forms were defective on their face because they excepted physicians from Southern Crescent Physicians Group and Southern Crescent Behavioral Medicine from the disclaimer that physicians were not employees or agents of Southern Regional. There are no facts in the record, however, to suggest that Pendley believed she was utilizing the services of either of those groups. Mark was seen in the emergency department and later admitted to the telemetry floor, and the disclaimers state that all other departments of the hospital are staffed by independent contractor physicians. In Cooper, we found that the hospital failed to call attention to the acknowledgment of physician independent contractors. Here, however, Southern Regional bolded the independent contractor disclaimers in both the General Consent for Treatment and the Routine Consent, and the Routine Consent also cautioned readers in bold: “Important: Do not sign this form without reading and understanding its contents.”

Pretermitting whether a question of fact may remain as to the conspicuousness of the signage posted by Southern Regional based on Pendley’s averment that she did not recall seeing them, the conspicuous disclaimers in the General Consent for Treatment and the Routine Consent as well as the lack of any evidence of record that Dr. Okoro held himself out as Southern Regional’s employee support the trial court’s grant of summary judgment to Southern Regional on this issue.

2. Pendley contends that the trial court erred by granting summary judgment to Southern Regional based on the alleged negligence of the nursing staff. We disagree and affirm as to this issue.

Pretermitting whether there was a failure of causation apparent in the record, we cannot conclude that the trial court abused its discretion by finding that Dr. Ilowide was not qualified to testify as an expert on whether any member of the nursing staff breached the standard of care pursuant to OCGA § 24-9-67.1 (c) (2) (D).

To be qualified to render an opinion in a professional malpractice action, an

expert’s knowledge and experience [must be] relevant to the acts or omissions that the plaintiff alleges constituted malpractice and caused the plaintiffs injuries. But a minimum level of knowledge in the area in which the opinion is to be given is insufficient; instead, an expert must be both familiar with the standard of care at issue and also demonstrate specific experience in the relevant practice area.

Decided November 24, 2010.

Donald W. Johnson, for appellants.

Greenberg Traurig, Lori G. Cohen, R. Scott Campbell, Paul E. Weathington, Stanley P. Riepe, for appellee.

Dr. Ilowide deposed that he did not train or practice as a nurse, did not train nurses, did not supervise nurses outside of normal nurse-physician interactions, and did not hold himself out to be an expert in nursing or in the standard of care of nurses. Although Dr. Ilowide deposed that his private practice employed nurses and that it was his opinion that the nurse who recorded Mark’s blood pressure reading of 79/49 on the morning of November 30 should have also orally informed a physician of that reading, we cannot say that under these circumstances the trial court abused its discretion by granting Southern Regional’s motion to exclude Dr. Ilowide’s testimony.

Judgment affirmed.

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

       (Punctuation omitted.) Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

       (Punctuation omitted.) Ellison v. Burger King Corp., 294 Ga. App. 814, 819 (3) (a) (670 SE2d 469) (2008).

       (Punctuation omitted.) Cooper v. Binion, 266 Ga. App. 709, 710 (1) (598 SE2d 6) (2004), superceded by statute as stated in Blackmon v. Tenet Healthsystem Spalding, 288 Ga. App. 137, 139, n. 7 (653 SE2d 333) (2007) (noting that “in 2005, the Georgia legislature enacted OCGA§ 51-2-5.1 (f) and (g), which effectively superseded Lee and Cooper by allowing the language of the contract to control and, where a contract was absent, unclear or ambiguous, by announcing new factors and by eliminating many of the old eleven factors in making this determination. The legislature specified, however, that this new Code section would only apply to causes of action arising on or after February 16, 2005.”). (Punctuation omitted.)

       266 Ga. App. at 710-713 (1).

       (Emphasis omitted.) Id. at 710-713 (1) (a)-(k).

        Brown v. Coastal Emergency Svcs., 181 Ga. App. 893, 896 (2) (354 SE2d 632) (1987) (applying law to two emergency room physicians). See also Cooper, 266 Ga. App. at 711 (1) (f) (“Where the hospital requires the physician to work certain hours or arranges the physician’s schedule, this factor shows that the physician is an employee and may alone preclude summary judgment.”).

       Compare Hollingsworth v. Ga. Osteopathic Hosp., 145 Ga. App. 870, 871-872 (245 SE2d 60) (1978) (holding that summary judgment was improper when evidence showed that the hospital required physician to work certain hours at least once a month); with Williamson v. Coastal Physician Svcs. of the Southeast, 251 Ga. App. 667, 670 (554 SE2d 739) (2001) (holding that it was appropriate to grant summary judgment to a hospital when evidence showed that physician controlled own time by informing hospital when he would be available to work).

       (Punctuation omitted.) Ellison, 294 Ga. App. at 819 (3) (a).

       Compare with Cooper, 266 Ga. App. at 710-713 (1) (a)-(k) (listing numerous factors which could show that the hospital in question controlled the physician’s time, method, or manner of work, including facts that the hospital billed patients on behalf of the physician, provided him with insurance, and controlled his scheduling); Hollingsworth, 145 Ga. App. at 871-872 (in response to the summary judgment motion, plaintiff presented evidence that hospital controlled physician’s scheduling).

       (Punctuation omitted.) Cooper, 266 Ga. App. at 714 (2) (physical precedent only). See Richmond County Hosp. Auth. v. Brown, 257 Ga. 507, 508 (361 SE2d 164) (1987).

        Cooper, 266 Ga. App. at 714 (2).

       See id.

       See id.

       See id. at 714 (2).

       OCGA § 24-9-67.1 (c) (2) (D) provides:
      Notwithstanding any other provision of this Code section, an expert who is a physician and, as a result of having, during at least three of the last five years immediately preceding the time the act or omission is alleged to have occurred, supervised, taught, or instructed nurses, . . . has knowledge of the standard of care of that health care provider under the circumstances at issue shall be competent to testify as to the standard of that health care provider. . . .

       (Citation and punctuation omitted; emphasis supplied.) Dawson v. Leder, 294 Ga. App. 717, 719 (1) (669 SE2d 720) (2008).

       See id. at 719-720 (1).