text:
    A13A1584.
    CRABAPPLE LAKE PARC COMMUNITY ASSOCIATION, INC. v. CIRCEO et al.
    (751 SE2d 866)
   Branch, Judge.

Crabapple Lake Parc Community Association, Inc. (“Crab-apple” or “the association”) brought a declaratory judgment action against Louis J. Circeo and Janet G. Lacey — two homeowners in the community — seeking to establish that it is (1) authorized to construct a pathway and a footbridge on an existing easement that runs across the Circeo and Lacey properties and (2) authorized to provide all other property owners in the community access across the easement to the lake and dam located behind the Circeo and Lacey properties. Following cross-motions for summary judgment, the trial court denied Crabapple’s motion and granted summary judgment in favor of Circeo and Lacey. Crabapple appeals and we affirm in part and reverse in part.

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). We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant. Home Builders Assn. of Savannah v. Chatham County, 276 Ga. 243, 245 (1) (577 SE2d 564) (2003).

The relevant facts in the record are not in dispute. On October 19, 1993, Torrey/Lake Parc, L.P. (the “Declarant” or “developer”), the owner of a tract of land in Roswell to be developed into an approximately 260-lot, residential community of single-family housing, recorded a “Declaration of Protective Covenants” for Crabapple in the property records of Fulton County, thereby subjecting the property to be developed, which initially did not include the lake at issue, to the terms of the Declaration.

In August 1994, pursuant to authority granted by the Declaration, the Declarant conveyed to Crabapple and subjected to the Declaration an additional 7.43 acres of land that include a several acre lake, an earthen dam, and additional land below the dam. The property description in the deed references a plat of a subdivision of the development entitled “Crabapple Lake Unit II” that was recorded in the Fulton County property records (the “Crabapple II plat”) at about the same time. The plat shows that the lake is located on one side of the Crabapple II subdivision and it abuts the back of approximately 20 of the lots in the subdivision (the “Lake Lots”). On the Crabapple II plat, on the drawing of the lake near the dam, appear the words “LAKE” and underneath it “Common Area.” The property description in the deed together with the Crabapple II plat show that the lake, dam, and the additional area below the dam were all part of the single conveyance of 7.43 acres of land. From the time the Declaration was recorded and therefore at the time of the lake and dam conveyance, Section 6.32 of the Declaration expressly provided that only Lake Lot owners could use the lake:

Use of the lake, a portion of which is within the Community, is restricted to Owners of Lake Lots. No ice skating, swimming, water skiing or motorized craft shall be permitted on the Lake. Fishing by Lake Lot Owners is permitted. ... No boat may be left overnight... within twenty-five feet of the high-water mark of the Lake.

The easement at issue in this case is described exclusively on the Crabapple II plat; neither party contends or has shown that the easement is specifically mentioned in any other document associated with the formation of the association. The plat shows an easement labeled “20' Maintenance & Access Esmt.” running along the common property line between Lake Lots 58 and 59, with 10 feet of the easement on each property. The dam is located behind these two lots, and the easement runs from a street in the development in front of the two lots to the dam-side property lines for the two lots, which lines are shown as being beyond the 100-year high water mark for the lake and running across the dam itself. Running across the rear of lots 58 and 59, between the high water mark and the back property line of the two lots, is a concrete flume or spillway that is approximately 35' wide and several feet deep. Thus, in order to travel across the relevant easement to get to the top of the dam, one would have to traverse the spillway.

On May 31, 1995, Lacey purchased lot 58; on August 28, 2001, Circeo purchased lot 59. Both the Circeo and Lacey deeds state that they are “subject to all easements and restrictions of record, if any” and both deeds incorporate by reference the Crabapple II plat.

In 2008 and 2009, Crabapple engaged in a project to improve the lake and dam area, including landscaping the dam area and making plans to construct a park on the top of the dam for use by all owners in the development. The plans for further improvement include constructing a wooden footbridge over the easement and over the concrete spillway. On February 26, 2008, following a vote of the membership, Crabapple recorded an amendment for Section 6.32 of the Declaration that purported to open access to the lake to all of the lot owners in the development and to provide for access to the lake “from within an easement in the Community” or “from Common Property[] adjacent to the Lake.” New Section 6.32 provides as follows:

Permitted use of the Lake by 0wners[ ] in the Community shall be limited only to fishing and boating____No other use of the Lake shall be permitted.... Access to the Lake for permitted use shall be from within an easement in the Community or from Common Property adjacent to the Lake. The Owner of any Lake Lot may access the Lake from such Lake Lot.... No boat may be left overnight on a Lake Lot or Common Property within twenty-five feet of the high-water mark of the lake.

(Emphasis supplied.)

Prior to beginning work on the park and foot bridge, Crabapple filed this declaratory judgment action. Crabapple contends that it has an easement across the Circeo and Lacey lots that provides it authority to construct a pathway and bridge to access the dam and lake and to allow all Owners in the association to use the areas for recreational purposes. Crabapple primarily argues that based on the name of the easement as shown on the Crabapple II plat, the relevant easement has two functions — maintenance and access — and that, while Crabapple itself requires the easement for maintenance of the dam and lake, the “access” function gives it authority to allow all members of the community to use the easement to access the lake and dam. Circeo and Lacey stress that at the time the easement was created, only Lake Lot owners had authority to use the lake, and therefore the word “access” in the name of the easement cannot be construed as having granted lake and dam access to the full membership of the association. Rather, as held by the trial court, they contend the easement provides for “access by the community for purposes of maintenance.” Circeo and Lacey argue that such expanded access (as well as any construction on the easement) is prohibited because it would unreasonably expand the scope and nature of the original easement without their consent.

In response to cross-motions for summary judgment, the trial court granted summary judgment in favor of Circeo and Lacey and denied Crabapple’s motion. The trial court held that the 20' Maintenance and Access easement came into existence when the lake was accessible only to Lake Lots, that its scope was determined at that time, and that therefore the lake was a “limited common element” and the easement did not authorize general access to the lake via the easement for all members of the association; that the scope of the easement cannot be extended or expanded after the fact; and that a “community document” provides that no structures may be built on a maintenance easement.

1. Crabapple contends the trial court erred in its rulings, primarily by misapplying the rules of contract construction to the various terms of the Declaration that bear on the nature and scope of the relevant easement. Our application of the rules of construction to the relevant documents, however, is de novo. D. S. Ameri Constr. Corp. v. Simpson, 271 Ga. App. 825, 826 (611 SE2d 103) (2005). We will first determine whether one or more of the original Declaration, the Crabapple II plat, or the conveyance of the lake to Crabapple granted to all members of the association access to the lake and dam over the Circeo and Lacey easement prior to the time that Circeo and Lacey purchased their lots. We will then address the effect of the amendment to Section 6.32 of the Declaration together with Crab-apple’s proposed plans for the easement.

(a) The only specific information! available regarding the relevant easement is its name: “20' Maintenance & Access Esmt.” We therefore first look to the Declaration to determine whether it provides direction regarding the nature and scope of this easement. The declaration of a homeowner’s association is considered a contract, and we therefore apply the normal rules of contract construction to determine the meaning of the terms therein. Hall v. Town Creek Neighborhood Assn., 320 Ga. App. 897, 899 (740 SE2d 816) (2013); Southland Dev. Corp. v. Battle, 272 Ga. App. 211, 213-214 (612 SE2d 12) (2005). See also Municipal Elec. Auth. of Ga. v. Gold-Arrow Farms, 276 Ga. App. 862, 866 (1) (625 SE2d 57) (2005) (the interpretation of express easements is governed by the normal rules of contract construction). The normal rules of contract construction require us to ascertain the intent of the parties based on the plain language of the agreement as a whole:

The cardinal rule of construction is to ascertain the intent of the parties. Where the contract terms are clear and unambiguous, the court will look to that alone to find the true intent of the parties. To determine the intent of the parties, all the contract terms must be considered together in arriving at the construction of any part, and a construction upholding the contract in whole and every part is preferred. When the language employed by the parties in their contract is plain, unambiguous, and capable of only one reasonable interpretation the language used must be afforded its literal meaning and plain ordinary words given their usual significance.

(Citations and punctuation omitted.) Municipal Elec. Auth., 276 Ga. App. at 866 (1). If the instrument contains an ambiguity, courts may look to the surrounding circumstances and consider parol evidence:

An ambiguity is defined as duplicity, indistinctness, an uncertainty of meaning or expression used in a written instrument, and also signifies of doubtful or uncertain nature; wanting clearness or definiteness; difficult to comprehend or distinguish; of doubtful purport; open to various interpretations. Where ambiguities exist, the court may look outside the written terms of the contract and consider all the surrounding circumstances to determine the parties’ intent. Parol evidence may not be considered unless the written instrument is ambiguous.

(Citations and punctuation omitted.) Id. at 866-867 (1). Finally, covenants are to be interpreted “so as to give a reasonable, lawful and effective meaning to all manifestations of intention by the parties rather than an interpretation which leaves a part of such manifestations unreasonable or of no effect.” Elite Realty Svcs. v. City of Auburn, 272 Ga. 195, 197 (528 SE2d 236) (2000).

Several provisions of the Declaration bear on the question of whether, at the time the lake was conveyed to Crabapple, all members of the association were authorized to access the lake and dam over the Circeo and Lacey easement. First, Section 11.02 of the Declaration has always provided that “Every Owner of a Lot shall have a right and easement of ingress and egress, use and enjoyment in and to the Common Property which shall be appurtenant to and shall pass with the title to each Lot,” subject to certain provisions not applicable here. Second, Section 5.03 of the Declaration shows that when the lake and dam area were transferred to the association, they became Common Property:

The Declarant may transfer or convey to the Association any personal property and any improved or unimproved real property, leasehold, easement or other property interest. Such conveyance shall be accepted by the Association and the property shall thereafter be Common Property to be maintained by the Association for the benefit of all or part of its Members.

(Emphasis supplied.) As shown by the highlighted language, however, the Declaration recognizes that some Common Property might benefit only part of the association membership, yet the association still has the responsibility of maintaining that Common Property. Finally, as shown above, at the time that the lake was conveyed to Crabapple, Section 6.32 of the Declaration limited use of the lake to Lake Lot owners.

Considering these terms together in an attempt to uphold the Declaration in whole and in every part, we agree with the trial court that under the plain meaning of the original Declaration, all members of the association were granted access to all “Common Property” with the exception of the lake and dam, whose use was specifically restricted to Lake Lot owners. Although the Declaration generally grants access to the Common Property to all members, Section 6.32 specifies that the use of the lake was restricted, and the specific clause controls:

If the apparent inconsistency is between a clause that is general and broadly inclusive in character and one that is more limited and specific in its coverage, the latter should generally be held to operate as a modification and pro tanto nullification of the former.

(Citation and punctuation omitted.) Central Ga. Elec. Membership Corp. v. Ga. Power Co., 217 Ga. 171, 173-174 (121 SE2d 644) (1961). See also Southern Telecom v. TWTelecom of Ga., 321 Ga. App. 110, 116 (4) (741 SE2d 234) (2013) (same). Applying this rule, we conclude that the specific restriction of use of the lake to Lake Lot owners controls over the general grant of access to the Common Property to all members of the association. Thus, the word “access,” as found in the name of the easement on the Crabapple II plat, does not indicate that all members of the association had a right to access the lake and dam area using the Circeo and Lacey easement at the time that the lake was deeded to the association.

On a related point, it is true that “[w]hen a developer sells lots according to a subdivision plat, which has a lake area designated on it, the purchasers [of the lots adjoining the lake] acquire an irrevocable easement in that park, with which the developer may not interfere,” Walker v. Duncan, 236 Ga. 331 (223 SE2d 675) (1976), and that “where the plat also provides access to the lake from lots not fronting on the water, a similar rule should apply.” (Citation and punctuation omitted.) Higgins v. Odom, 246 Ga. 309, 310 (271 SE2d 211) (1980), quoting Pindar, Ga. Real Est. Law (2nd ed.)§ 6-23, p. 167. The rationale for these rules is that lot purchasers “have given consideration for its enhanced value in the increased price of their lots.” (Footnote omitted.) Patterson v. Powell, 257 Ga. App. 336, 337 (571 SE2d 400) (2002). Here, however, the terms of the original Declaration expressly provided that only Lake Lot owners could use the lake. Thus, any person purchasing non-Lake Lots at Crabapple Lake Parc prior to 2008 took ownership with express notice that lake use was limited to Lake Lots. Cf. Jakobsen v. Colonial Pipeline Co., 260 Ga. 565, 566 (2) (397 SE2d 435) (1990) (“Where an easement is granted without limitations on its use, the grantee is entitled to avail himself of other reasonable uses which develop over time if such uses significantly relate to the object for which the easement was granted.”) (citation omitted; emphasis supplied).

Crabapple contends that our conclusion — that under the original Declaration the members of the association do not have a right of access to the lake over the Circeo and Lacey easement — essentially renders meaningless the word “access” in the name to the easement. Crabapple argues that because the Declaration grants Crabapple maintenance easements across the entire development in order that it might maintain the Common Property, which easements automatically provide Crabapple with the right to access all Common Property, Crabapple itself has no need for an “access” easement. Specifically, Section 11.05 of the Declaration provides Crabapple with an express but undefined “Easement for Maintenance” anywhere in the Community, as determined solely by Crabapple, in order to perform maintenance:

Declarant hereby expressly reserves a perpetual easement for the benefit of the Association across such portions of the Community, determined in the sole discretion of the Association, as are necessary to allow for the maintenance required under Section 5.01. [] Such maintenance shall be performed with a minimum of interference to the quiet enjoyment to Lots, reasonable steps shall be taken to protect such property, and damage shall be repaired by the Person causing the damage at its sole expense.

At the time the Crabapple II plat was recorded, however, the lake was not a part of the Common Property. It is reasonable to conclude that at that time, the Declarant wanted to ensure that Crabapple had both a right to maintain the lake and dam if it were transferred to the association and a right to access the lake and dam if the lake and dam were not transferred to the association. See generally Gold-Arrow Farms, 276 Ga. App. at 866 (1) (upholding the contract in whole and every part is preferred). This construction is consistent with and supported by all of the other sections of the Declaration discussed above relative to the meaning of the words “maintenance and access” as found on the Crabapple II plat.

Crabapple also argues that although the Declaration originally limited use of the lake to Lake Lot owners, the dam and the area below the dam are not labeled as the “Lake” on the Crabapple II plat; they are therefore fully a part of the Common Property of the development as opposed to the lake, and accordingly, all members of the association should have access to dam areas pursuant to Section 11.02 of the Declaration. Crabapple’s argument is not supported by the record. The plat shows both the word “LAKE” and underneath it the phrase “Common Area” written within the boundaries of the lake itself. It follows that both designations either apply strictly to the lake or to the lake, the dam, and the additional area combined. If both terms apply strictly to the lake, then the words “Common Area” would not apply to the dam and additional area, which would strongly suggest that the dam and additional area are not part of the Common Property. If both terms apply to the entire area deeded to the association, then the entire area is named “Lake” on the plat, and, accordingly, use of the entire area was restricted to Lake Lot owners by Section 6.32 of the original Declaration.

Finally, even if we were to find an ambiguity in the term “access,” as found in the name of the easement or in the original Declaration, regarding the authority of all members of the association to access the lake and dam area over the Circeo and Lacey easement, the surrounding circumstances show that no other member of the association has ever used the easement. See Municipal Elec. Auth., 276 Ga. App. at 866-867 (1) (if instrument contains ambiguity, courts may consider surrounding circumstances and parol evidence). In a sworn response to a discovery request to identify “any and all occasions” that Crab-apple had used the subject easement, Crabapple admitted that it “[was] not aware of any occasion that it used the maintenance and access easement for its members’ access to the lake.” And in an association newsletter sent to all members to explain the 2008 changes, it is stated that “The purpose of this amendment is to give access to the large lake to all homeowners in the Crabapple Lake Parc community. Previously, only lake lot homeowners on the large lake could use this Common Area.” In addition, the presence of a 35'-wide spillway crossing the easement between the high water mark and the end of the easement supports the conclusion that general access to the dam area was not allowed. Indeed, the same newsletter asserts that without a walkway across the spillway, “safe access to the dam does not exist at this time.” These surrounding circumstances show that prior to 2008, Crabapple never intended to allow access to the lake and dam area for all members of the association over the easement at issue.

To summarize, at the time that Circeo and Lacey purchased their lots, the full membership of the association did not have authority to access the lake and dam area via the 20' easement shown on the Crabapple II plat. The purpose of the easement was limited to maintenance of and access to the lake by Crabapple itself.

(b) As shown above, in 2008, Crabapple began improvements to the lake and dam, proposed to build a walkway on the Circeo and Lacey easement over the spillway, and amended Section 6.32 of the Declaration to open access to the lake and dam to all Owners, with access to the lake and dam to be provided “from within an easement in the Community” or “from Common Property adjacent to the Lake.” Thus, Crabapple was proposing a change either in the scope of or in the manner, frequency, and intensity of the use of the easement. See generally Herren v. Mitchell Elec. Membership Corp., 323 Ga. App. 517 (747 SE2d 63) (2013) (certain use of herbicide did not exceed the scope of electric company easement for the construction and maintenance of electric transmission or distribution lines); Wilann Properties I, LLC v. Ga. Power Co., 321 Ga. App. 297, 304 (2) (740 SE2d 386) (2013) (replacing wooden poles with taller, steel-reinforced concrete poles and installing new lines was a permissible change in the manner, frequency, and intensity of the use of the easement). Compare DeSarno v. Jam Golf Mgmt., LLC, 295 Ga. App. 70, 73 (670 SE2d 889) (2008) (“the concept of ‘excessive use’ of an easement relates not to the number of times an easement is used but rather to a use of the easement that exceeds the scope of the easement or that is intended to benefit a property that is not the dominant estate”) (citation and footnote omitted).

Pretermitting whether the 2008 amendment to Section 6.32 of the Declaration constitutes an impermissible change in the manner, frequency, and intensity of use of the easement, we hold that the amendment constitutes an impermissible change in the scope or character of the original easement as a matter of law. As we have held, the original purpose of the easement was specifically limited to maintenance of and access to the lake by Crabapple. The 2008 changes fundamentally altered the scope or character to a degree that would interfere unreasonably with Circeo’s and Lacey’s enjoyment of their own properties. See generally Restatement (Third) of Property (Servitudes) § 4.10 (2000) (“Unless authorized by the terms of the servitude, the holder is not entitled to cause unreasonable damage to the servient estate or interfere unreasonably with its enjoyment.”). Accordingly, the 2008 changes to the scope of the easement cannot be enforced against Circeo and Lacey.

We therefore affirm the trial court’s ruling that the full membership of the association does not have the authority to access the lake and dam area via the 20' easement shown on the Crabapple II plat.

2. Crabapple also contends that even if use of the Circeo and Lacey easement is limited to Crabapple, the trial court erred in concluding that Crabapple is prohibited from building a permanent structure on the easement, i.e., the wooden walkway/bridge across the spillway. Crabapple contends that its duty to maintain the Common Property includes the right to build a wooden walkway on the easement. The trial court ruled against Crabapple on this claim. We again look to the Declaration.

Section 12.16 provides that Crabapple

may exercise any right or privilege given to it expressly by this Declaration, the Bylaws, the Articles of Incorporation, any use restriction or rule, and every other right or privilege reasonably to be implied from the existence of any right or privilege given to it therein or reasonably necessary to effectuate any such right or privilege.

This provision parallels the applicable law: absent specific limitations, “[t]he grant of an easement impliedly includes the authority to do those things which are reasonably necessary for the enjoyment of the things granted.” (Citation omitted.) Jakobsen, 260 Ga. at 566 (2); Parris Properties, LLC v. Nichols, 305 Ga. App. 734, 742-743 (1) (d) (700 SE2d 848) (2010). See also Restatement (Third) of Property, §4.10 (“Except as limited by the terms of the servitude ... the holder of an easement... is entitled to use the servient estate in a manner that is reasonably necessary for the convenient enjoyment of the servitude.”). Thus the Declaration and the relevant law provide that Crabapple has the authority to build on the easement if it is “reasonably necessary” to accomplish the purpose of the easement, which, as we have determined, is access to and maintenance of the lake and dam area by Crabapple, so long as Crabapple does not cause unreasonable damage to Circeo’s and Lacey’s property or unreasonable interference with Circeo and Lacey’s enjoyment of their property.

Circeo and Lacey contend that Section 6.31 of the Declaration prohibits Crabapple from building the bridge. Section 6.31 provides:

No structures of any kind, including, without limitation, decks, fences, storage buildings, docks, or piers shall be • constructed in, on or over any wetland or body of water within the Community.

But Circeo and Lacey have not shown that the spillway is considered a “body of water”; and they have not shown that the lake has been designated as a wetland in accordance with the definition of “wetland” as provided in Section 6.31: “Wetland” is defined as “any area labeled as wetlands on a recorded plat of the Community or otherwise designated as wetlands by the Declarant or the Board of Directors.” There is, however, an issue of fact regarding what is reasonably necessary for the enjoyment of the maintenance and access easement as construed in this opinion, as well as regarding whether the walkway and bridge would cause unreasonable damage to Circeo’s and Lacey’s property or unreasonable interference with Circeo’s and Lacey’s enjoyment of their property. We therefore remand the case to the trial court for further proceedings on that issue.

Decided November 21, 2013

Lueder, Larkin & Hunter, John T. Lueder, David C. Boy TV, Cynthia C. Hodge, Albert D. Williams, for appellant.

Winter, Capriola & Zenner, Richard J. Capriola, David B. Weinberg, for appellees.

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

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

       Crabapple is an incorporated homeowners association in accordance with the Georgia Property Owners’ Association Act, OCGA § 44-3-220 et seq. The association was previously known as Lake Parc Community Association, Inc. but its name was changed to the present name in 2006.

       The plat was first recorded on June 17,1994, and later superseded by a plat recorded on February 16, 1995.

       “Common Property” is defined in the Declaration as “any and all real and personal property and easements and other interests therein, together with the facilities... thereon, now or hereafter owned by the Association for the common use and enjoyment of the Owners.” (Emphasis supplied.)

       “Owners” are defined in the Declaration as record owners of fee simple title to any Lot in the development.

       The Declaration provides for several types of easement, including those captioned as easements for “Encroachment and Overhang,” “Use and Enjoyment,” “Utilities,” “Entry,” “Maintenance,” and others. The Declaration provides, however, that the captions shall not ‘he construed as defining, limiting, extending, or otherwise modifying or adding to the particular Article or Section to which they refer.”

       Section 5.01 of the Declaration provides that Crabapple is charged with maintaining and keeping the Common Property in good repair, including “all lakes, dams and appurtenant structures . . . located in or serving the Community”; and, as noted above, the definition of Common Property includes easements. The maintenance “shall include, without limitation, maintenance, repair, and replacement.” And “Community” refers to all of the real property and interests therein in the entire development.


source: Caselaw Access Project

author: Ray, Judge.

license: Public Domain

text:
    A13A1616.
    QUINNEY et al. v. PHOEBE PUTNEY MEMORIAL HOSPITAL, INC. et al.
    (751 SE2d 874)
   Ray, Judge.

Douglas L. Quinney and his wife sued Phoebe Putney Memorial Hospital, Inc. and Phoebe Putney Health System, Inc. (“the hospital”), Southwestern Emergency Physicians, PC., Raymond E. Gutierrez, M.D., Elizabeth Kenja, R.N., and David Stalvey, R.N. (collectively referred to as “the defendants”) asserting claims for professional negligence and for violations of the Federal Emergency Medical Treatment and Active Labor Act (“EMTALA”) under 42 USC § 1395dd, alleging that the defendants failed to provide Mr. Quinney with necessary medical treatment while he was in the emergency department of the hospital. The trial court granted summary judgment in favor of the defendants, finding that OCGA § 51-1-29.5 applied to the Quinneys’ negligence claims and that the Quinneys failed to satisfy their evidentiary burden of showing gross negligence by clear and convincing evidence. The trial court further found that the hospital was entitled to judgment on the Quinneys’ EMTALA claim. The Quinneys appeal, arguing that the trial court erred: (1) in finding that their claims arose out of the provision of “emergency medical care” as defined by OCGA § 51-1-29.5 (a) (5); or (2) if OCGA § 51-1-29.5 does apply, in finding that they failed to show gross negligence by clear and convincing evidence; and (3) in finding that they failed to show that the hospital violated the federal EMTALA statute. For the reasons that follow, we reverse the trial court’s grant of summary judgment.

A party is entitled to summary judgment if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). On appeal from the grant of summary judgment, we construe the evidence most favorably towards the nonmoving party, who is given the benefit of all reasonable doubts and possible inferences. The party opposing summary judgment is not required to produce evidence demanding judgment for it, but is only required to present evidence that raises a genuine issue of material fact.

(Citations omitted.) Ansley v. Raczka-Long, 293 Ga. 138, 140 (2) (744 SE2d 55) (2013). Our review of the grant or denial of a motion for summary judgment is de novo. Woodcraft by Macdonald, Inc. v. Ga. Cas. and Surety Co., 293 Ga. 9, 10 (743 SE2d 373) (2013).

So viewed, the evidence shows on March 11, 2009, Mr. Quinney underwent surgery to have a spinal cord stimulator implant placed in his back to relieve a neuropathic condition in his feet. The surgery was performed by a neurosurgeon in Columbus, Georgia. Immediately after the surgical procedure, Mr. Quinney was discharged and allowed to go back to his home in Albany.

Five days later, in the early morning hours of March 16, 2009, Mr. Quinney awakened with severe pain in his back. When he got up and walked around in an attempt to alleviate the pain, he noticed that one of his legs was getting weak such that he could no longer stand, so he laid across an ottoman in his living room. During this time, Mr. Quinney told his wife that he could no longer feel his legs. As Mr. Quinney was screaming in pain, Mrs. Quinney called 911 and requested an ambulance. By the time the ambulance arrived, Mr. Quinney had lost the ability to move his right leg, and he had to be physically picked up and placed on a stretcher.

Mr. Quinney was transported by ambulance and arrived at the emergency department of the hospital in Albany at approximately 5:55 a.m. He was immediately triaged by nurse Stalvey, who classified Mr. Quinney as a “level two” patient, meaning that there could be some serious complications if he did not receive immediate medical attention. Mr. Quinney told Stalvey that his pain was a “nine” on a scale of zero to ten, with ten being the worst. Although Mr. Quinney was screaming in pain during his initial examination, Stalvey was able to obtain Mr. Quinney’s medical history, which included his history of neuropathy, as well as the fact that he had recently received a spinal cord stimulator implant.

At approximately 6:09 a.m., Mr. Quinney was examined by Dr. Gutierrez. Dr. Gutierrez noted that Mr. Quinney had presented to the emergency room with severe pain in his back, and Dr. Gutierrez further noted that Mr. Quinney had recently undergone surgery to implant the spinal cord stimulator. Dr. Gutierrez performed a physical examination on Mr. Quinney, as well as a general neurologic examination to evaluate his alertness, his orientation to person, place, and time, his cranial nerve responses, and his motor deficits. Although Dr. Guiterriez’s differential diagnosis included the possibilities of a spinal canal abscess or a spinal canal hematoma, Dr. Gutierrez never performed a complete neurologic examination of Mr. Quinney, which would have included a test for deep tendon reflexes, a neurological sensory exam, and tests to determine if Mr. Quinney had the ability to ambulate. Instead, Dr. Gutierrez ordered a CT scan of Mr. Quinney’s spine.

During the CT scan, Mr. Quinney could not lie on his back and had to lie in a different position for the procedure. After the CT scan was performed, the results were interpreted by a radiologist. The radiologist found no evidence of an abscess or any abnormal fluid collection at the operative site along Mr. Quinney’s spine, and his impression of the area was consistent with a recent neurostimulator implant. The radiologist’s report was made available to Dr. Gutierrez at 8:46 a.m.

Importantly, Dr. Gutierrez was unaware that Mr. Quinney could not lie on his back for the CT scan, even though it was clearly noted in the medical records. Dr. Gutierrez testified at his deposition that he did not know if this fact would have changed his mind about the results of the CT scan.

At 8:55 a.m., Dr. Gutierrez re-examined Mr. Quinney and noted that he remained symptomatic. Despite this fact, there is no evidence in the medical records to indicate that Dr. Gutierrez performed any more physical or neurological examinations of Mr. Quinney. Based on his initial examination of Mr. Quinney and the results of the CT scan, Dr. Gutierrez removed the possibilities of a spinal canal abscess and a spinal canal hematoma from his differential diagnosis.

Dr. Gutierrez called the neurosurgeon at the medical center in Columbus who had performed the spinal cord stimulator implant surgery to discuss the details of Mr. Quinney’s presentation to the emergency room. After Dr. Guiterriez informed the neurosurgeon that Mr. Quinney’s general neurological examination and CT scan results were both normal, the neurosurgeon agreed to have Mr. Quinney transferred to him at the medical center in Columbus for further evaluation and treatment. At 9:23 a.m., Dr. Gutierrez ordered Mr. Quinney’s transfer to the medical center in Columbus.

After nurse Stalvey went off duty at 7:00 a.m., nurse Kenja was assigned to monitor Mr. Quinney and to attend to his care during the remainder of his stay in the emergency room. Mr. Quinney had been given several doses of pain medications throughout his stay at the emergency room, with little or no effect. Although Mr. Quinney remained symptomatic, the evidence shows that both Stalvey and Kenja failed to perform any neurologic assessments of Mr. Quinney. Mr. Quinney’s vital signs, including the severity of his pain, were worse at the time of his discharge than they were at the time of his admission into the emergency room.

Dr. Gutierrez’s final diagnosis for Mr. Quinney was “back pain, status post back surgery.” Around 12:30 p.m., approximately three hours after the patient transfer order was entered, Mr. Quinney was discharged from the emergency room and transported by ambulance to the medical center in Columbus. Upon his arrival at the medical center at approximately 3:00 p.m., Mr. Quinney was irreversibly paralyzed from a spinal cord compression caused by an expanding spinal canal hematoma.

1. In granting summary judgment to the defendants, the trial court found that the Quinneys’ negligence claims arose out of the provision of emergency medical care and were therefore subject to the higher evidentiary standard (clear and convincing evidence) and the lower standard of care (gross negligence) mandated by OCGA § 51-1-29.5. The Quinneys contend that the trial court erred in finding that this statute applied to their negligence claims because the treatment Mr. Quinney received was not emergency medical care. We disagree.

OCGA § 51-1-29.5 (c) provides, in pertinent part:

In an action involving a health care liability claim arising out of the provision of emergency medical care in a hospital emergency department... no physician or health care provider shall be held liable unless it is proven by clear and convincing evidence that the physician or health care provider’s actions showed gross negligence.

OCGA § 51-1-29.5 (a) (5) defines “[e]mergency medical care” as:

bona fide emergency services provided after the onset of a medical or traumatic condition manifesting itself by acute symptoms of sufficient severity, including severe pain, such that the absence of immediate medical attention could reasonably be expected to result in placing the patient’s health in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part. The term does not include medical care or treatment that occurs after the patient is stabilized and is capable of receiving medical treatment as a nonemergency patient or care that is unrelated to the original medical emergency.

The Quinneys argue that OCGA § 51-1-29.5 does not apply to their claims because Mr. Quinney was wrongfully treated as a medically “stable” patient by the defendants and that he did not receive “bona fide emergency services” while in the emergency room. However, the record clearly shows that when the defendants began their care of Mr. Quinney, they were providing emergency medical care as defined by OCGA § 51-1-29.5 (a) (5).

When Mr. Quinney presented to the emergency room, he was experiencing a medical condition with acute symptoms of sufficient severity, including excruciating pain in the area of his spine and the inability to walk, such that the absence of immediate medical attention could reasonably be expected to result in placing his health in serious jeopardy. This expectation is evidenced by the following facts: he was triaged with an acuity level of two; within minutes of his arrival, Dr. Gutierrez had examined him and ordered the administration of multiple pain medications and diagnostic tests; and Dr. Gutierrez’s differential diagnosis included the possibilities of a spinal canal abscess or a spinal canal hematoma. Moreover, Mr. Quinney remained symptomatic throughout the entire time he was being treated in the emergency room and, in fact, his vital signs and pain levels had worsened by the time he was discharged and transported by ambulance to the medical center in Columbus.

We note that the Quinneys’ negligence claims, as well as expert opinion evidence upon which they rely, indicate that Mr. Quinney had an emergency medical condition and that the defendants were grossly negligent in failing to properly diagnose and treat it. Under the facts of this case, the services that the defendants provided to Mr. Quinney, although alleged to be deficient, would constitute “emergency medical services” until such time as Mr. Quinney was “stabilized and . .. capable of receiving medical treatment as a nonemergency patient.” (Emphasis supplied.) OCGA § 51-1-29.5 (a) (5). The Quinneys have not shown that Mr. Quinney was ever capable of receiving medical treatment as a nonemergency patient. In fact, the Quinneys have shown just the opposite; that is, that emergency medical services were necessary because his health was in serious jeopardy.

Accordingly, we find that the services rendered by the defendants constituted emergency medical care as it is defined by OCGA § 51-1-29.5 (a) (5) and that the higher evidentiary burden of OCGA § 51-1-29.5 (c) applies to the Quinneys’ negligence claims in this case.

2. The Quinneys contend that if OCGA § 51-1-29.5 does apply, the trial court erred in finding that they failed to meet the evidentiary threshold of showing gross negligence by clear and convincing evidence as required by OCGA § 51-1-29.5 (c). We agree.

For the purposes of OCGA § 51-1-29.5 (c),

gross negligence is the absence of even slight diligence, and slight diligence is ... that degree of care which every man of common sense, however inattentive he may be, exercises under the same or similar circumstances. In other words, gross negligence [is] ... equivalent to the failure to exercise even a slight degree of care, or lack of the diligence that even careless men are accustomed to exercise.

(Citations and punctuation omitted.) Gliemmo v. Cousineau, 287 Ga. 7, 12-13 (4) (694 SE2d 75) (2010).

However, the application of these definitions in the context of emergency room health care liability claims has proven to be quite problematic, because such claims necessarily involve a departure from accepted standards of medical care. See OCGA § 51-1-29.5 (a) (9). The practice of medicine requires years of professional training and specialized education, and what conduct would constitute “slight diligence” or a “slight degree of care” on the part of a physician or other health care provider in diagnosing or treating a patient requires expert witness testimony rather than a juror simply relying upon his or her own experiences. See generally Johnson v. Omondi, 294 Ga. 74 (751 SE2d 288) (2013) (Blackwell, J., concurring).

The facts in Johnson v. Omondi, 318 Ga.App. 787 (736 SE2d 129) (2012), which was recently reversed in Johnson v. Omondi, 294 Ga. 74, are instructive. In that case, Johnson had undergone arthroscopic knee surgery a week before he presented to the emergency room with pain in the leftside of his chest. Johnson, 318 Ga. App. at 787. He was examined by Dr. Omondi, the emergency room physician, who considered several possible conditions in his differential diagnosis, including pulmonary embolism. Id. at 787-788. Dr. Omondi performed a variety of examinations of Johnson’s systems, which included assessments of his pulmonary, cardiovascular, neurologic, lymphatic, and musculoskeletal conditions. Id. at 787. Dr. Omondi also ordered medications, an electrocardiogram (“EKG”), and a chest X-ray. He interpreted the results of the X-ray and found no evidence of pneumonia, pneumothorax, skeletal injury, or an enlarged heart. Dr. Omondi interpreted the results of the EKG and determined that there was no evidence of heart rhythm disturbances, heart attack, or pericarditis. He also determined that the EKG results were not suggestive of pulmonary embolism, and he further considered such factors as Johnson’s normal breathing, normal vital signs, and normal blood oxygenation. Lastly, Dr. Omondi noted that Toradol, an anti-inflammatory medication that had been administered under his orders, had completely resolved Johnson’s pain. Because Toradol would not treat pain from a pulmonary embolism, he concluded that this was further evidence that Johnson did not have a blood clot in his lungs. Based on all of these findings, Dr. Omondi excluded pulmonary embolism from his differential diagnosis. Ultimately, Dr. Omondi diagnosed Johnson with pleurisy, gave him a prescription for anti-inflammatory medication, and discharged him from the hospital. Two weeks later, Johnson died from a bilateral pulmonary embolism. Id. at 789. In affirming summary judgment for Dr. Omondi, we found that the plaintiffs had not presented clear and convincing evidence that Dr. Omondi had failed to exercise even slight care in treating Johnson, and therefore that they could not show gross negligence. Id. at 794.

In reversing our decision, our Supreme Court in Johnson v. Omondi, 294 Ga. 74, found that the plaintiffs had presented expert testimony to show that Dr. Omondi had deviated from accepted standards of medical care (1) when he relied on the above facts to exclude pulmonary embolism, and (2) when he failed to administer a CT scan or a lung scan. Given this evidence, our Supreme Court held that “a reasonable jury could find[ ] by clear and convincing evidence, that in addressing [Johnson’s] symptoms, Dr. Omondi acted with gross negligence, i.e., that he lacked the diligence that even careless men are accustomed to exercise.” (Citations and punctuation omitted.) Id. Thus, it appears that in the context of a motion for summary judgment, the burden of showing gross negligence (or lack of slight diligence) for the purposes of OCGA § 51-1-29.5 may in some cases be satisfied through the opinion testimony of a qualified expert.

In this case, the Quinneys presented the expert affidavit of Alan E. Jones, M.D., to show that, with regard to Mr. Quinney’s treatment, the defendants did not meet the accepted standards of care of the medical and nursing professions, in general, under like conditions and similar circumstances.

Dr. Jones opined that the following facts demonstrate clear and convincing evidence that the defendants were grossly negligent in failing to properly diagnose and treat Mr. Quinney. Mr. Quinney presented to the emergency room with classic symptoms of a spinal canal hematoma or a spinal canal abscess, either of which can cause spinal cord compression. Spinal cord compression can be a progressive condition that causes severe pain at the site of compression and neurological deficits below the level of the compression. Such deficits may include, inter alia, the loss of sensation, the loss of the ability to determine the position of a body part, the loss of motor function of minor and major muscle groups, and the loss of tendon reflexes. Dr. Gutierrez failed to obtain the relevant history that Mr. Quinney, before arriving at the emergency room, had lost the ability to feel his right leg, as well as his ability to stand. Although Dr. Gutierrez noted in his records that Mr. Quinney had no motor deficits, he did not indicate what muscle groups he checked, and at no time did he perform a complete neurological examination of Mr. Quinney to determine whether he had any of the other deficits. A complete neurological exam would have required Dr. Gutierrez to perform deep tendon reflexes, a complete sensory exam, and a proprioception exam (an exam to assess a person’s ability to determine the position of a body part). The neurological deficits indicating a spinal compression are also progressive, and complete neurological examinations are required to be repeated at regular intervals to determine the onset and progression of a spinal cord compression. Although Dr. Gutierrez had ordered a CT scan of Mr. Quinney’s spine to determine the presence of an abscess, he failed to review the subsequent medical records which indicated that Mr. Quinney was unable to lie in the proper position during the CT scan. The fact that Mr. Quinney’s severe back pain did not decrease and instead increased after he had been administered massive doses of pain medications should have alerted Dr. Gutierrez that Mr. Quinney had a serious condition affecting his spinal canal. Under such circumstances, he should have performed further physical examinations, neurological examinations, and diagnostic testing of Mr. Quinney, but he did not do so. Lastly, despite Mr. Quinney’s history and symptoms, nurses Stalvey and Kenj a never performed any physical assessments of Mr. Quinney beyond the taking of his vital signs, and at no time did they perform a basic nursing neurological evaluation of Mr. Quinney.

In considering the above evidence, we are cognizant of the fact that Dr. Gutierrez had ordered a CT scan to check for the presence of a spinal canal abscess, and that he had relied on the radiologist’s report to exclude a spinal canal abscess or a spinal canal hematoma as possible causes of Mr. Quinney’s back pain. A similar factual scenario was presented in Pottinger v. Smith, 293 Ga. App. 626 (667 SE2d 659) (2008).

In Pottinger, we reversed the trial court’s denial of an emergency room physician’s motion for summary judgment because the undisputed evidence showed that the physician had ordered the diagnostic measure appropriate to the symptoms the plaintiff presented, i.e., an X-ray, and then relied on the radiologist’s report when determining the course of treatment. We held that, under those circumstances, a reasonable jury would not be able to find that the physician “failed to exercise even slight care and was therefore grossly negligent.” Id. at 629. However, the present case has additional facts that make it distinguishable from Pottinger.

Here, at the time he relied upon the radiologist’s report, facts were made available to Dr. Gutierrez that called into question the reliability of the CT scan results. Specifically, Mr. Quinney could not lie in the proper position for the procedure, and Dr. Gutierrez failed to note this fact despite that it was clearly stated in the CT scan report. As Dr. Gutierrez could not state whether this fact would have changed his mind about the results of the CT scan, an inference could be made that, had he simply reviewed the medical records which indicated this fact, he would have been required to consult with the radiologist or a neurosurgeon before relying on the results of the CT scan. He did not do so. Indeed, the Quinneys’ expert pointed to these facts as additional clear and convincing evidence that Dr. Gutierrez had deviated from the accepted standards of medical care and was therefore grossly negligent in excluding spinal canal hematoma from his differential diagnosis.

As to the motion for summary judgment, we are required to construe the evidence most favorably towards the Quinneys, giving them the benefit of all reasonable doubts and possible inferences. Ansley, supra. Furthermore, the issue of whether evidence meets the required standard of being “clear and convincing” is generally a question of fact for the jury. Johnson v. Omondi, 294 Ga. 74. Under the facts of this case, we cannot say as a matter of law that a reasonable jury would be unable to find by clear and convincing evidence that the defendants were grossly negligent. Id. Accordingly, it was error for the trial court to grant the defendants’ motion for summary judgment with regard to the Quinneys’ negligence claims.

3. The Quinneys also contend that the trial court erred in granting summary judgment in favor of the hospital on the EMTALA claim. We agree.

EMTALA, which is also referred to as the “Anti-Patient Dumping Act,” is codified at 42 USCA § 1395dd. EMTALA imposes two duties on hospitals. First, when an individual comes to a hospital’s emergency department requesting examination and treatment for a medical condition, the hospital is required to provide an appropriate medical screening examination within its capability to determine whether an emergency medical condition exists. 42 USCA § 1395dd (a). Second, if the hospital determines that an emergency medical condition exists, the hospital must provide further medical examination and treatment of the individual so as “to stabilize” his or her condition or arrange for a transfer of the individual to another medical facility, within certain parameters. 42 USCA § 1395dd (b) (1). A hospital may not transfer an individual unless his or her condition has stabilized, absent certain defined exceptions. 42 USCA § 1395dd(c) (1). Ifa hospital violates any of these provisions, EMTALA allows an injured party to “obtain those damages available for personal injury under the law of the State in which the hospital is located.” 42 USCA § 1395dd (d) (2) (A).

In their EMTALA claim, the Quinneys do not allege that the hospital failed to provide him with its standard medical screening when he presented to the emergency department. Rather, the Quinneys’ EMTALA claim is based on the hospital’s failure to provide further medical treatment to stabilize Mr. Quinney with regard to his emergency medical condition before transferring him to another hospital.

As noted in Divisions 1 and 2 of this opinion, there is sufficient evidence in the record to show that Mr. Quinney presented to the hospital’s emergency department with an emergency medical condition. Furthermore, there is sufficient evidence to show that Mr. Quinney was discharged and transferred in an unstable condition. The hospital argues, however, that it “had no notice nor any actual knowledge of an emergency condition” and, therefore, it cannot be liable for failing to stabilize an unknown emergency condition prior to transfer. However, this argument lacks merit.

42 USCA§ 1395dd (e) (1) (A) (i)-(iii) defines an “emergency medical condition” as

a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in . . . placing the health of the individual ... in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part[.]

Here, there is sufficient evidence for the jury to find that the hospital, through its agents, was aware that Mr. Quinney was experiencing a medical condition that manifested itself by acute symptoms of severe pain in the area of his spine and that the medical condition had resulted in his inability to ambulate. Moreover, a jury could also find that the hospital was aware that Mr. Quinney’s condition was more than just post-operative discomfort, as evidenced by the fact that the massive doses of pain medications that had been administered to Mr. Quinney had little or no effect. In fact, Mr. Quinney’s pain had increased to its highest level immediately prior to transfer. Even assuming that the hospital was unaware of the specific cause of his pain and inability to ambulate, there is sufficient evidence to allow a jury to decide whether it possessed knowledge of an emergency medical condition, as defined by 42 USCA § 1395dd (e) (1), which would trigger the EMTALA requirement that the hospital provide “further medical examination and such treatment as may be required to stabilize [this] condition” prior to transfer. 42 USCA § 1395dd (b) (1) (A) and (c) (1). Accordingly, the trial court erred in granting summary judgment to the hospital on the EMTALA claim.

Decided November 21, 2013.

Adams & Adams, Charles R. Adams, Jr., Adams & Jordan, Virgil L. Adams, William C. Heard, for appellants.

Huff, Powell & Bailey, Jeffrey D. Braintwain, Michael G. Frank-son, Joseph P. Durham, Jr., Donald W. Lee, for appellees.

For the above reasons, the trial court’s grant of summary judgment to the defendants must be reversed.

Judgment reversed.

Ellington, P. J., and Branch, J., concur.

       Both of these conditions would constitute an emergency because they can cause spinal cord compression, which can lead to irreversible paralysis.

       Even though these examinations were not performed, Dr. Gutierrez determined that Mr. Quinney had “no motor deficit.”

       The radiologist was not named as a defendant in this case.

         No argument has been presented on appeal regarding Dr. Jones’s competency to testify as to these standards under OCGA § 24-9-67.1.

       The radiologist’s findings were later determined to be incorrect.

       Our Supreme Court has embraced our holding in Pottinger. See Johnson, 294 Ga. 74.

       EMTALA’s definition of “emergency medical condition” is provided at 42 USCA § 1395dd (e) (1) (A), and it is substantially similar to the definition provided in Georgia’s emergency room statute under OCGA § 51-1-29.5 (a) (5).

       As used in EMTALA, the term “to stabilize” means “to provide such medical treatment of the condition as may be necessary to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result from or occur during the transfer of the individual from a facilityf.]” 42 USCA § 1395dd (e) (3) (A).

       The statute permits a hospital to transfer or discharge a patient whose condition has not stabilized when (1) the patient requests the transfer in writing after being informed of the hospital’s obligations under the statute, or (2) a physician certifies that the medical benefits of treatment at another facility outweigh the increased risks to the individual. See 42 USCA § 1395dd (c) (1). Neither of these circumstances is present in this case.

       When an EMTALA claim against a hospital is based on the failure to provide an appropriate medical screening, the plaintiff must show that the hospital treated him differently than other patients with similar conditions. See Bryant v. John D. Archbold Memorial Hosp., No. 6:05-CV-ll (II) (B) (M.D. Ga. May 23,2006). However, such a showing is not required for an EMTALA claim based on a hospital’s failure to stabilize an emergency medical condition. See Morgan v. North Miss. Med. Center, Inc., 403 FSupp.2d 1115, 1125-1128 (II) (C) (3) and (4) (S.D. Ala. 2005).

       We recognize that claims under OCGA § 51-1-29.5 require clear andconvincing evidence of gross negligence. However, EMTALA does not appear to provide any such evidentiary burden. Therefore, we note, without expressly holding, that EMTALAcould authorize a finding of liability without any finding of gross negligence on the part of the hospital. The Quinneys’ theory of liability is based on an alleged violation of 42 USCA § 1395dd (b), and such a claim cannot be construed as a negligence or a malpractice claim. See Morgan, supra at 1130-1131 (II) (C) (4).


author: McMillian, Judge.

text:
    A13A1648.
    CASE v. BUTLER et al.
    (751 SE2d 883)
   McMillian, Judge.

We granted Mary E. Case’s application seeking discretionary review of the superior court’s order affirming the denial of unemployment benefits, and she filed the present appeal. We reverse for the following reasons.

The circumstances that led to the termination of Case’s employment are undisputed. On March 22, 2012, she was employed as a licensed practical nurse supervisor at Magnolia Manor Nursing and Rehabilitation Center on St. Simons Island (“Magnolia Manor”), where she had worked for seven years. That day, as Case was distributing medication to the residents of Magnolia Manor, a subordinate reported that a resident with an extensive medical history was confused. Case was concerned because mental confusion can be a symptom of various medical problems. In an attempt to quickly assess the resident’s mental status, Case went to the resident’s room and told her that she was about to administer a pain patch that Case knew had not been prescribed to the resident. The resident replied that she did not get a pain patch. Case testified that this response demonstrated to her that the resident was not confused and that Case “didn’t have to rush out and call the Doctor.” Case never actually administered the patch to the resident. Nevertheless, after the resident’s family reported the incident, Magnolia Manor terminated Case’s employment, finding that she “displayed behaviors that were detrimental to patient care.”

Case subsequently applied for unemployment benefits, which were initially refused by a claims examiner. Case appealed, and two hearings were held before an administrative hearing officer (“AHO”). The AHO reversed the claims examiner’s ruling and allowedbenefits. In her order, the AHO noted that Magnolia Manor had a policy requiring that employees “report a resident’s condition to the resident’s doctor if the employee believed that the resident suffered from a mental issue.” But she concluded that Case was not disqualified from receiving benefits because Magnolia Manor failed to meet its burden of showing that Case was “at fault for her discharge by a deliberate, willing, and knowing action on her part or that she failed to perform her duties.”

The employer appealed this determination to the Board of Review of the Georgia Department of Labor (the “Board”), which reversed, finding that Magnolia Manor had carried its burden of showing that Case was disqualified from receiving benefits. The Board found that

[w]hile there is no evidence the claimant intended to administer the wrong medication or harm the patient, [Case] overstepped her authority [,] . . . placed the patient’s health at risk and could have caused severe medical consequences [,. .. and] was grossly negligent in the performance of her duties.

Case then petitioned for judicial review and after a hearing, the superior court denied her appeal. In making this determination, the superior court found that Case

acknowledged, in writing, that with respect to medications she was obligated to follow the orders of the prescribing physician, and not deviate from them. Making a statement to a patient to the effect that a medication which had not been prescribed for her was about to be administered was inexcusable poor judgment, and it was contrary to the spirit of the policy [Case] agreed to follow.

The court noted that the potential consequences to Magnolia Manor from Case’s actions were “obvious” and could be “highly detrimental to the employer’s reputation.” Thus, the superior court concluded that Magnolia Manor had good cause for terminating Case.

On appeal, Case argues that the superior court applied the wrong standard of review in considering her denial of benefits and further argues that the Board’s findings are not supported by the evidence.

1. We first address Case’s argument that the superior court failed to adhere to the proper standard of review by making findings of fact not made by the Board. We agree.

Under Georgia law, when a superior court reviews a decision by the Board, “the findings of the [Board] as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law.” OCGA § 34-8-223 (b). Thus, “[t]he factual determinations of the board must be affirmed if there is ‘any evidence’ to support them.” (Citation omitted.) TNS Mills v. Russell, 213 Ga. App. 107, 107 (443 SE2d 658) (1994). See also Williams v. Butler, 322 Ga. App. 220, 222 (1) (744 SE2d 396) (2013). And “[t]he superior court is not authorized to weigh the evidence and substitute its factfindings for those of the administrative trier of fact.” (Citation omitted.) McGahee v. Yamaha Motor Mfg. Corp. of America, 214 Ga. App. 473, 474 (448 SE2d 249) (1994).

Here, the superior court exceeded the scope of its review by making its own findings of fact rather than evaluating whether any evidence supported the Board’s decision. The court based its ruling on a Magnolia Manor policy that was not referenced in the Board’s decision and made specific findings with regard to Case’s behavior based on that policy. Therefore, the superior court engaged in fact-finding, which it is not permitted to do. Nevertheless, we must affirm the superior court’s decision if it is right for any reason. Aimwell, Inc. v. McLendon Enterprises, Inc., 318 Ga. App. 394, 400 (2) (734 SE2d 84) (2012).

2. Turning to Case’s argument that the Board’s findings are not supported by the evidence, this Court, too, applies the any evidence test. Robinson v. Butler, 319 Ga. App. 633, 634-635 (737 SE2d 731) (2013).

Applying that standard, we conclude that the evidence did not support the Board’s finding that Case’s actions “placed the patient’s health at risk and could have caused severe medical consequences.” In fact, the Board acknowledged that “there is no evidence [that Case] intended to administer the wrong medication or harm the patient,” and it is undisputed that Case never administered the pain patch to the resident. Thus, the record contains no evidence that the resident’s health was ever at any risk. Nevertheless, from these findings, the Board concluded that Case overstepped her authority and was grossly negligent in the performance of her duties.

We find that these conclusions and the evidence adduced at the hearing do not support the denial of unemployment benefits to Case. Georgia law provides that an individual shall be disqualified for unemployment benefits if he or she was discharged “for failure to obey orders, rules, or instructions or for failure to discharge the duties for which the individual was employed as determined by the Commissioner [of Labor] according to the circumstances in the case.” OCGA § 34-8-194 (2) (A). Accordingly, “[i]f the employee refuses to comply with a specific, equitably applied and reasonable rule, then the employer may fire him or her for misconduct and be confident that no unemployment compensation benefits . . . will be paid.” (Emphasis supplied.) Millen v. Caldwell, 253 Ga. 112, 114 (317 SE2d 818) (1984).

But this provision must be read in conjunction with OCGA § 34-8-194 (2) (B), which states:

An individual shall not be disqualified for benefits under subparagraph (A) of this paragraph if, based on the rules and regulations promulgated by the Commissioner, the Commissioner determines: (i) The individual made a good faith effort to perform the duties for which hired but was simply unable to do so; (ii) The individual did not intentionally fail or consciously neglect to perform his or her job duties[.]

Therefore, an employer must show that the termination was caused by “the deliberate, conscious fault” of the employee before he or she maybe disqualified from receiving unemployment benefits. (Citation and punctuation omitted.) Barron v. Poythress, 219 Ga. App. 775, 776 (466 SE2d 665) (1996). And “ ‘[fjault’ means more than mere failure to perform one’s work duties.” Millen, 253 Ga. at 113. This comports with the “strong public policy favoring payment of unemployment benefits to persons unemployed through no fault of their own. OCGA § 34-8-2.” (Emphasis in original.) Id. Thus, “[disqualification is an exception to the statutory scheme for unemployment benefits and the employer must show by a preponderance of the evidence that disqualification is appropriate.” (Citations omitted.) Barron, 219 Ga. App. at 776.

Applying these standards, the Supreme Court of Georgia has held that “benefits should not be denied to an employee who has been fired for failure to comply with unknown work requirements, or requirements which could not have been reasonably anticipated.” (Emphasis in original.) Millen, 253 Ga. at 114. “If an employer nevertheless wishes to be arbitrary about [applying unwritten rules or in enforcing rules], Georgia law allows it nearly free rein as far as the firing is concerned, but not as far as payment of unemployment compensation benefits to the ex-employee is concerned.” Id. And “[a] determination of a disqualifying fault must be made in the context of whether the employee would reasonably expect, under all the circumstances of employment, that sanction would result from a violation. [Cit.]” Barron, 219 Ga. App. at 777. Although we are bound to apply the any evidence standard, “[w]hether there is fault assignable to [a] claimant, which is a legal requirement for disqualification, often requires a legal conclusion. [Cit.]” Id.

Decided November 21, 2013.

Vincent D. Sowerby, for appellant.

Here, although the Magnolia Manor representative stated that Case should have contacted a social worker or the resident’s physician “if she had a question about the resident’s . . . mental status,” Magnolia Manor failed to prove that Case intentionally refused or consciously neglected to comply with any rule or policy in that regard. Case testified that she took the disputed actions in an effort to determine whether, in fact, a question did exist with regard to the resident’s mental status, and she agreed that if she had found the resident to be confused, she would be required to call the doctor. Although Magnolia Manor disapproved of Case’s methods, the evidence does not show that Case acted with “deliberate, conscious fault” in disobeying any policy. And “[s]ince disqualification of benefits requires ‘deliberate, conscious fault’ by the employee, an employee’s bona fide effort to comply with an employer’s orders is not consistent with a finding of fault.” (Citation omitted.) Davane v. Thurmond, 300 Ga. App. 474, 477 (685 SE2d 446) (2009).

“As [Magnolia Manor] did not carry its burden of showing that [Case] came within the disqualification exception, she is entitled under the law to unemployment compensation and the superior court erred in affirming the denial of benefits.” (Citation and punctuation omitted.) Id. at 478. See also Fulton County School Dist. v. Hersh, 320 Ga. App. 808, 813 (1) (740 SE2d 760) (2013).

Judgment reversed.

Andrews, P. J., and Dillard, J., concur.

Samuel S. Olens, Attorney General, Kimberly B. Lewis, Assistant Attorney General, for appellee.

       We note that Magnolia Manor filed no brief on appeal.

       The employer’s sole witness at the hearing was its human resources coordinator, who testified that Case previously had been suspended and had received a final warning, making her subject to termination upon any further violation.

       Magnolia Manor had no representative at the first hearing, but was able to have the case reopened upon showing cause for the representative’s failure to appear.

       In any event, we note that the Board never identified any Magnolia Manor rule or policy with which Case intentionally failed or consciously neglected to comply, nor did the Board make any finding that Case’s termination was caused by any deliberate, conscious fault on her part.


author: Miller, Judge.

text:
    A13A1590.
    THE STATE v. JOHNSON.
    (749 SE2d 828)
   Miller, Judge.

The State charged Holly Johnson by citation in municipal court in May 2010 and then by accusation in the State Court of Cherokee County in November 2010 with driving under the influence of alcohol to the extent that she was a less safe driver (“DUI less safe” OCGA § 40-6-391 (a) (1)). On February 25, 2013, the trial court granted Johnson’s motion for discharge and acquittal based upon her constitutional right to a speedy trial. The State appeals, contending that the trial court misapplied the principles set out in Barker v. Wingo, 407 U. S. 514 (92 SCt 2182, 33 LE2d 101) (1972) and Doggett v. United States, 505 U. S. 647 (112 SCt 2686, 120 LE2d 520) (1992), which guide a court in consideration of whether a delay in bringing an accused to trial amounts to a denial of her right to a speedy trial. After a thorough review of the record and the evidence, we affirm the trial court’s finding that Johnson’s right to a speedy trial was violated.

In Georgia, the application of these principles to the circumstances of a particular case is a task committed principally to the discretion of the trial courts, and it is settled law that our role as a court of review is a limited one. See State v. Porter, 288 Ga. 524, 526 (2) (a) (705 SE2d 636) (2011). Under our precedents, we must accept the factual findings of the trial court unless they are clearly erroneous, id., and we must accept the ultimate conclusion of the trial court unless it amounts to an abuse of discretion, even though we might have reached a different conclusion were the issue committed to our discretion. Id. at 533 (2) (e).

(Footnote omitted; emphasis supplied.) State v. Buckner, 292 Ga. 390, 391 (738 SE2d 65) (2013).

The record shows that following the issuance of the citation on May 12,2010, Johnson appeared at least three times in the Municipal Court of Woodstock, where her case was repeatedly reset because she did not have counsel. On October 26, 2010, Johnson, proceeding pro se, filed her request for a jury trial in order to transfer the case to the State Court of Cherokee County and get it resolved. On November 3, 2010, a notice of court date in the State Court of Cherokee County was issued to Johnson to appear on November 18, 2010. On November 18, 2010, the solicitor-general issued an accusation charging Johnson with DUI, less safe. Because Johnson was in jail in another county on a separate charge, she did not appear on November 18, and a bench warrant was issued.

Apparently in response to letters sent from jail by Johnson and telephone calls from her mother and sister, the state court judge’s administrative assistant sent an e-mail to an assistant solicitor-general on April 20, 2011, stating “[n]eed your help. Ms. Johnson is in the Cobb County Jail — probation revoked. Do we need a production order and bring her here to take care of her case here?” In response, the assistant solicitor-general indicated that, because Johnson was in bench warrant status, “[t]hat will hold her until she is done her probation sentence, then she’ll be brought here. I don’t know if I can do a production order, unless there is some special need.” According to the assistant solicitor-general, the “special need” to which he referred was the approval of his boss, the solicitor-general. No production order is contained in the record.

On August 15, 2011, while she was incarcerated in Pulaski State Prison on the separate charges, Johnson wrote a letter explaining that she had been in jail when she failed to appear on the DUI charge in this case and “requesting that you assist me either with a plea of absentia or a court date with a production order to clear my case with you so that I may participate in many programs within the prison system that help to better me as a person and prevent reci[d]ivism.” This letter was filed by the clerk. In apparent response to this letter, on August 23, 2011, the state court clerk’s office sent Johnson a letter indicating that the clerk did not handle production orders and her request had been forwarded to the solicitor-general’s office. No response from the solicitor-general’s office is contained in the record, and no production order was ever issued.

Johnson was incarcerated from November 10, 2010 until September 12, 2012. Upon her release from prison, Johnson, pro se, filed a motion to lift the bench warrant, which was granted on September 27, 2012. An entry of appearance was filed by her attorney on November 30, 2012, and her motion for discharge and acquittal was filed on January 10, 2013.

The Sixth Amendment to the United States Constitution guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy . . . trial.” U. S. Const. Amend. VI. The Georgia Constitution also guarantees criminal defendants the right to a speedy trial (Ga. Const., Art. I, Sec. I, Par. XI (a)), and “[t]he speedy trial right enshrined in the Georgia Constitution is coextensive with the federal guarantee.” (Footnote omitted.) Ruffin v. State, 284 Ga. 52, 54 (2) (663 SE2d 189) (2008). Constitutional speedy trial claims are analyzed under the framework set forth in the United States Supreme Court’s decisions in Barker v. Wingo, supra, and Doggett v. United States, supra, which has two stages. Ruffin, supra, 284 Ga. at 55 (2). First, the trial court must determine whether the accused has been subjected to a delay that is presumptively prejudicial. If the delay is presumptively prejudicial, the trial court must proceed to the second step of the Barker-Doggett analysis which requires “application of a delicate, context-sensitive, four-factor balancing test.” Id. These four factors are (i) whether the pretrial delay was uncommonly long; (ii) whether the government or the criminal defendant is more to blame for the delay; (iii) whether, in due course, the defendant asserted the right to a speedy trial; and (iv) whether the defendant suffered prejudice as a result of the delay. Buckner, supra, 292 Ga. at 393 (3).

Presumptive prejudice.

The right to a speedy trial attaches at the time of arrest or formal accusation or indictment, whichever occurs first, and the courts measure the delay from the time the right attaches. A delay approaching one year is sufficient in most cases to raise a presumption of prejudice and to warrant a more searching inquiry.

(Citations and punctuation omitted.) Buckner, supra, 292 Ga. at 392-393 (2).

Here, Johnson was arrested in May 2010, and the trial court ruled on her speedy trial motion in February 2013. The State acknowledged and the trial court held that the period of approximately two years and nine months was presumptively prejudicial.

Therefore, we proceed to consider the four-factor balancing test.

1. Length of the Delay. Although not separately enumerated, the State argues that the trial court abused its discretion by improperly weighing the length of the delay against the State apart from its analysis of the other factors. We find the trial court’s analysis correct.

Here, the trial court found that a delay of almost three years in a misdemeanor case was significant. Because this was a simple DUI case, all the investigation appeared to have been completed at the time of Johnson’s arrest. According to the clerk’s office, eight terms of court had passed since she filed her request for a jury trial, at least half of which occurred after August 2011. The delay in this case is presumptively prejudicial and, as the trial court found, is considered an uncommonly long delay. “Excessive delay has a tendency to compromise the reliability of trials in ways that neither party can prove or, for that matter, identify.” (Punctuation omitted.) Ruffin, supra, 284 Ga. at 56 (2) (b) (i).

The trial court properly weighed this factor against the State and analyzed it in conjunction with the remaining factors. Ruffin, supra, 284 Ga. at 56 (2) (b) (i); State v. Reid, 298 Ga. App. 235, 238 (2) (b) (i) (679 SE2d 802) (2009); Robinson v. State, 298 Ga. App. 164, 167 (1) (b) (i) (679 SE2d 383) (2009).

2. Reason for the Delay. The State argues that almost the entire delay of Johnson’s case going to trial was caused by her own actions and that the trial court abused its discretion by weighing this factor against it. Specifically, the State argues that, because Johnson was imprisoned on other charges during 22 months of the delay in trying her DUI charge, she is therefore responsible for all of that delay. We disagree.

The trial court found that the State did nothing from April 2011 forward to attempt to produce Johnson’s appearance for trial or otherwise and attributed that delay to the State. The trial court found that the delay prior to April 2011 was attributable to Johnson because her failure to appear in November 2010 was due to her own admitted actions in committing separate unrelated offenses.

Although the assistant solicitor-general testified that his office had previously initiated requests for production orders, that practice had ceased and is now left to the court. The State argues that the solicitor-general was not responsible for issuing production orders and, therefore, any delay caused by the failure to issue one is not its fault. This argument clearly overlooks the fact that “the primary burden is on both the prosecutor and the court to bring the case to trial, and the [S]tate bears the ultimate responsibility for its dockets.” (Footnotes omitted.) Harris v. State, 314 Ga. App. 565, 567-568 (b) (ii) (724 SE2d 864) (2012). Further, “[w]hen a delay is unexplained, it is treated as having been caused by the negligence of the State in bringing the case to trial.” (Citations omitted.) Reid, supra, 298 Ga. App. at 239 (2) (b) (ii).

Here, the trial court found that, since at least April 2011, the delay in bringing Johnson to trial was due to the State’s deliberate choice not to request a production order, but to allow Johnson to serve her sentence and then prosecute her thereafter for the DUI. Although the trial court did not ascribe any intent to deliberately penalize Johnson to the State, it did note that this delay is “some type of official neglect” at a bare minimum, relying on State v. Shirley, 311 Ga. App. 141, 143 (3) (b) (714 SE2d 636) (2011).

The State’s reliance on Wilson v. State, 311 Ga. App. 780 (717 SE2d 300) (2011), to support its argument that the total delay should be weighed against Johnson is unavailing. There, the trial court denied Wilson’s plea in bar because, not only did he fail to appear at two scheduled arraignments, but when the case was set for trial, he requested a continuance. Further, the case was tried, resulting in a mistrial, and Wilson did not file his claim that he had been prejudiced by the delay until following the mistrial. Wilson, supra, 311 Ga. App. at 781.

Based on the foregoing, we find no error in the trial court’s finding that the reasons for the delay weighed in favor of Johnson.

3. Johnson’s Assertion of her Right to Speedy Trial. Although the Sixth Amendment and the corresponding provision of the Georgia Constitution place the burden squarely on the government to ensure accused individuals are brought to trial in a timely manner, “the accused bears some responsibility to invoke the speedy trial right and put the government on notice that he or she, unlike so many other criminal defendants, would prefer to be tried as soon as possible.” Ruffin, supra, 284 Ga. at 62 (2) (b) (iii).

An accused is not required to file a speedy trial demand at the first available opportunity because the “Supreme Court has expressly rejected the demand-waiver approach to the constitutional speedy trial right.” (Footnote omitted.) Ruffin, supra, 284 Ga. at 62 (2) (b) (iii). Nor is the accused required to file a formal motion. Id. “Whether a defendant has asserted the right to speedy trial in due course requires a close examination of the procedural history of the case with particular attention to the timing, form, and vigor of the accused’s demands to be tried immediately.” Shirley, supra, 311 Ga.App. at 145 (3) (c).

As the trial court found, although it was not a demand for a speedy trial, Johnson, pro se, did request a jury trial in October 2010. Thereafter, from at least April 2011, she attempted to be brought to court and, as soon as she was released from custody, she appeared and had her bench warrant lifted. Further, from at least August 2011, the clerk’s office was aware that Johnson wanted to appear and resolve her case. Within two months of her attorney entering his appearance, Johnson’s motion for discharge and acquittal was filed.

The trial court noted that Johnson asserted her right to a jury trial early in the process when she filed a request for jury trial in an attempt to resolve her case. While the initial request for a jury trial was not designated as a request for a speedy trial, the trial court found that this omission was mitigated by the fact that Johnson was out on bond and proceeding pro se at that point. The trial court concluded that she timely asserted her right to a trial and that the speedy trial issue was raised appropriately and with due haste, weighing this factor slightly against the State and for Johnson.

We find no error in the trial court’s analysis and weighing of this factor. See State v. Pickett, 288 Ga. 674, 676 (2) (c) (3) (706 SE2d 561) (2011); Harris, supra, 314 Ga. App. at 568 (b) (iii).

4. Prejudice.

As the United States Supreme Court has explained, prejudice should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect, namely to prevent oppressive pretrial incarceration, to minimize anxiety and concern of the accused, and to limit the possibility that the defense will be impaired.

(Citations and punctuation omitted.) Buckner, supra, 292 Ga. at 398 (3) (d).

(a) Although Johnson was incarcerated on other charges, the trial court found that the pending DUI charge did have an impact on her incarceration in that she was not able to participate in certain programs and her inability to do so prolonged her incarceration. We agree.

With regard to a defendant incarcerated on other charges, the Supreme Court of the United States has opined that a delay in bringing such a person to trial could aggravate and compound the three concerns of prejudice. Specifically, the Supreme Court has suggested that the possibility that the defendant already in prison might receive a sentence at least partially concurrent with the one he is serving may be forever lost if trial of the pending charge is postponed. Additionally, the duration of his present imprisonment may be increased, and the conditions under which he must serve his sentence greatly worsened, by the pendency of another criminal charge outstanding against him.

(Punctuation and footnotes omitted.) Johnson v. State, 313 Ga. App. 895, 904 (2) (d) (i) (723 SE2d 100) (2012).

(b) Regarding Johnson’s anxiety and concern, she testified that, because of the pending charges and their impact on her incarceration and her inability to get a trial, she met with the guidance counselor at the prison to discuss her anxiety. Also, one of her children was seeing a counselor following her release from prison, and Johnson began talking to this counselor three times a week about her problems getting the DUI charge resolved after the counselor spoke with her child. Johnson noted that, following her release, she was again the caretaker for her children, and she was worried about her inability to drive if her license were suspended.

The trial court noted that, had Johnson’s DUI case been resolved during her incarceration on the other charges, any license suspension would have run while she was in prison.

We find no error in the trial court’s finding that Johnson had provided specific evidence that she did suffer anxiety and concerns while in jail above and beyond those normally suffered by defendants in a pending case. See State v. Bazemore, 249 Ga. App. 584, 586 (1) (d) (549 SE2d 426) (2001) (an accused, even if not incarcerated prior to trial, still disadvantaged by restraints on liberty and living under a cloud of anxiety, suspicion, and hostility, and a showing of stress and embarrassment sufficient).

(c) Regarding whether the delay resulted in any impairment of the defense, Johnson produced evidence that the security videotape which would have shown her encounter with the police in front of the Flash Foods on Highway 92 in Woodstock was no longer available, nor could the identity of the clerk working there on the evening of her arrest be determined. Under the factual circumstances of this case, we agree with the trial court that Johnson has shown that preparation of her case was greatly harmed by the delay. Bazemore, supra, 249 Ga. App. at 586-587 (1) (d) (breakup with and ensuing hostility of ex-girlfriend during delay prejudiced Bazemore who intended to call her as witness).

Therefore, we affirm the trial court’s weighing prejudice against the State and in favor of Johnson.

Given all of the facts, including the lengthy pretrial delay, the failure of the State to respond to Johnson’s requests for assistance in going to trial, and her assertion of her right to a jury trial, this Court finds that the trial court did not abuse its discretion in finding that Johnson’s right to a speedy trial was violated.

Judgment affirmed.

Barnes, P. J., concurs. Ray, J., concurs in judgment only.

Decided November 7, 2013

Reconsideration denied November 22, 2013

Jansen T. Jones, Solicitor-General, Leslie M, Donaho, Assistant Solicitor-General, for appellant.

Richard A. Jones, Ali-Reza P. Ghanouni, for appellee.

       Although the State argues that Johnson’s testimony regarding the effect of the pending charges on her incarceration should be ignored, it cites no authority for this proposition. OCGA § 24-14-8 provides that “[t]he testimony of a single witness is generally sufficient to establish a fact.” Also, the State introduced no evidence to contradict Johnson’s testimony on this issue.

       Police received an unknown trouble call to the Flash Foods at 1:14 a.m. and parked near the side of the building. The officer saw Johnson’s vehicle parked in front of the building, and Johnson was complaining about where the officer had parked. After going inside the store and finding nothing wrong, the officer returned to Johnson, who had become profane and was acting belligerent. According to the officer’s report, this is when the DUI investigation began.