author: Ray, Judge.

text:
    A12A1555.
    PARROTT v. THE STATE.
    (736 SE2d 436)
   Ray, Judge.

After a jury trial, Reginald Lee Parrott was convicted of one count of child molestation. He appeals from the denial of his motion for a new trial, enumerating as error: (1) the trial court’s decision to allow oblique references by the prosecutor to the fact that he took and failed a polygraph test; (2) the trial court’s refusal to excuse a juror for cause; and (3) the trial court’s finding, despite his contention that the State failed to prove intent, that the evidence was sufficient to sustain a conviction. Finding no error, we affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict and the defendant no longer enjoys a presumption of innocence. We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt.

So viewed, the evidence shows that the victim, K. N., on November 20, 2009, spent the night at Parrott’s home. Parrott is married to K. N.’s biological mother. K. N., who was fifteen at the time of the crime, had been adopted at a young age and resided with an aunt. On the night at issue, K. N. fell asleep alone in bed. Early in the morning, K. N. became aware that Parrott was touching her breasts through her tank top. She attempted to roll away, but Parrott slid his hand into her sweatpants and rubbed her vagina over her panties. She felt his aroused penis against her, and when he tried to pull down her sweatpants, she got out of bed and went to the garage, where she sat and cried. Parrott came into the garage and asked if she was “okay.” She said yes, but continued to sit there and cry. K. N. later asked to go home, and the next day, told her aunt what happened.

The aunt called K. N.’s biological mother and told her what K. N. had said. Parrott then called the aunt’s home, and she answered. Apparently under the misapprehension that he was talking to K. N., Parrott said, “baby, I’m so sorry. I didn’t mean to hurt you. I thought you were [my wife].” After the aunt revealed her identity, Parrott told the aunt that he wished K. N. had not awakened, that he hoped all this would go away, that he would pay for K. N. to “have someone to talk to,” that he was “half asleep” and that when he woke up, he realized what was going on and left. Parrott later called again and told the aunt’s boyfriend that he thought K. N. was his wife and that he wished she had not awakened. K. N.’s aunt contacted the police.

On November 25, 2009, a Coweta County Sheriff’s Office investigator conducted a video interview with Parrott. Parrott said that he fell asleep in a bed belonging to one of his children while watching television, and K. N. then got in bed with him. He said he awakened when she climbed over him to get out of bed, and that he then got in bed with his wife. He denied speaking to K. N., denied touching her, and said he knew nothing about the episode until the next day, when his wife contacted him after speaking with K. N.’s aunt.

In a second interview conducted the same day in preparation for a polygraph exam that police ultimately never conducted, Parrott admitted he had placed his hand on K. N. “where it shouldn’t have been,” and “on her vagina area.” He denied touching her breasts, but said that he “woke up doing some stuff that I shouldn’t did.” The investigator asked Parrott if he thought K. N. was his wife and he responded, “I guess I did.” Parrott told the investigator he had not mentioned any of this earlier because he “wasn’t clear” and “wanted to be 100% clear where I was at and what I had to tell you.” When police asked Parrott if he had any medical conditions or had received psychiatric treatment, he said no.

At trial, Parrott did not contest the allegations of inappropriate touching, but rather argued that he lacked any criminal intent because he touched K. N. while he was asleep. He argued that he has parasomnia, a medical condition in which people may engage in various behaviors while asleep, including sleepwalking and sexual acts. Parrott’s expert witness, psychiatrist Dr. Gene Abel, performed several tests to gauge, among other things, Parrott’s sexual interests and whether he had parasomnia. These tests included a polygraph. During that polygraph, Parrott was asked whether he had ever fondled K. N.’s breasts and vaginal area, or whether he had ever touched K. N. for sexual gratification. Parrott failed the polygraph examination.

1. In his first enumeration, Parrott contends that the trial court erred in permitting the prosecutor to “inform the jury appellant had submitted to and failed a polygraph examination.”

Outside of the presence of the jury, Parrott’s counsel asked the court to rule that the State could not address the issue of the failed polygraph, arguing that his client had not stipulated to its admission; that it was hearsay, prejudicial, and irrelevant; and that Abel did not rely on the test to form his expert opinion. Abel had included polygraph test results in reports prepared for other defendants, but left them out of Parrott’s report. Counsel for the State thus argued that he wanted to elicit the testimony for impeachment purposes, because Abel’s omitting the negative results called his credibility into question. The trial court ruled that in the interest of a thorough and sifting cross-examination, the prosecutor could refer to the polygraph as the “other test,” but could not refer to it as a polygraph. Parrott’s counsel raised a continuing objection to “any mention of the test,” which the court recognized.

It is well settled that, absent stipulation by the parties, results identified as being from polygraph examinations are generally inadmissible, though they may sometimes be admitted to explain conduct. It is also well-settled that the scope of cross-examination lies within the sound discretion of the trial court, and that a ruling on this issue will not be disturbed on appeal absent an abuse of that discretion. Likewise, the trial court has broad, though not unlimited, discretion to determine the scope of closing arguments, which are judged by the context in which they are made.

At trial, the prosecutor followed the trial court’s order only to the extent that he did not refer to a “polygraph” or “lie detector” test. Rather, he at times referred to the test as an “objective test,” and from this and other statements, Parrott asserts error, arguing that the jury could have inferred that the test was a polygraph. For the reasons that follow, we find this argument unpersuasive.

On cross-examination, Abel testified that he based his evaluation in large part on Parrott’s own statements to him. The prosecutor asked Abel if he had conducted tests to gauge Parrott’s “accuracy or credibility,” and if he had talked with Parrott about doing an “objective test” to evaluate Parrott’s statements to him. Abel said yes. Then, without objection, the prosecutor asked Abel to list the questions posed by the “other test.” Abel testified from his notes that the questions were: “Have you fondled [K. N.’s] breast? Have you fondled [K. N.’s] vaginal area? Have you touched [K. N.] for sexual gratification?” Asked if Parrott passed “this test,” Abel testified, “No.” Parrott also takes issue with closing argument, in which the prosecutor, again without objection, repeated the three questions from the test, then said Parrott told Abel “ ‘give me whatever test you want to give me, I’ll pass.’And then the results came in and he didn’t pass because he lied. He lied. He lied. He continues to lie.”

While we do not endorse the prosecutor’s tactics, we are constrained to find that Parrott’s enumeration of error on this point fails. Below, Parrott raised a continuing objection only to “any mention of this other test.” However, on appeal he argues that the prosecutor exceeded the scope of the trial court’s ruling by referring to the polygraph as an “objective test” as opposed to “the other test,” and he complains about references to the “results” of the test. Parrott made no objectionbelow either to the prosecutor’s exceeding the scope of the instructions, or to the mention of the test results.

Where an entirely different objection or basis for appeal is argued in the brief which was not presented at trial we will not consider that basis as we are limited to those grounds presented to and ruled upon by the trial court. The rule is that the scope of review is limited to the scope of the ruling in the trial court as shown by the trial record and cannot be enlarged or transformed through a process of switching [or] shifting.

Parrott also argues that the jury could have inferred from the prosecutor’s questions and closing argument that the “objective test” was a polygraph. We find this argument unpersuasive.

Polygraph tests are widely viewed as not being objective — something Parrott concedes in his brief. The reason polygraph evidence is generally inadmissible absent stipulation by the parties is because it has long been deemed unreliable in Georgia. As Parrott points out, several jurors during voir dire indicated they were familiar with polygraph tests because of their work in connection with the legal system and law enforcement. This familiarity makes it less likely that they would believe a reference to an “objective test” meant a reference to a polygraph, given that a polygraph is not viewed as an objective test.

Further, there were references at trial to other objective tests that were not polygraphs. Abel testified that he performed “a package” of tests on Parrott. In reference to these tests, the prosecutor asked Abel, without objection, about two tests that were “objective measures” to gauge Parrott’s credibility. In questioning Abel, the prosecutor mentioned one test — the Abel Assessment, which is not a polygraph — identifying it as a test that evaluated Parrott’s “propensity to tell you the truth.” The prosecutor then referred to another test, in this instance, the polygraph, but called it only an “independent test.”

Additionally, even though police never gave Parrott a polygraph test, he did consent to one, and the jury viewed a videotape of him sitting in the polygraph examination room participating in a pre-test interview with police. The jury also heard testimony from the police polygraph examiner who interviewed Parrott in preparation for the test. In closing arguments, Parrott’s counsel told jurors that given the State’s characterization of his client as a liar, “How can you not be unsatisfied with the fact that they didn’t strap [Parrott] in that chair that you saw in there and give him a polygraph?”

Given that a polygraph is not an objective test, and that jurors were repeatedly told that Parrott was willing to take a polygraph administered by police, we find unpersuasive Parrott’s argument that jurors then inferred from the prosecutor’s statements that a second, privately-administered polygraph was conducted or that one of several “objective tests” referred to by the expert was a polygraph. Absent such an inference, we cannot say that the trial court abused its discretion.

2. Parrott next contends that the trial court erred in refusing to dismiss a juror for cause after she indicated that because her sister had been molested, she had a “conceived notion of this type of person in my mind, which I shouldn’t have because he has a right to be proven innocent and I need to listen to that.” Asked if the defendant would have to show he was innocent, she replied in the affirmative. The trial court then explained that the State has the burden of proving guilt. The juror said she believed she could be fair and make a decision based only on the evidence presented.

Whether to strike a juror for cause lies within the sound discretion of the trial court. Unless the juror holds an opinion regarding the guilt or innocence of the defendant that is so fixed and definite that the juror will be unable to set the opinion aside and decide the case based on the evidence and court instructions, a court need not excuse the juror for cause. . . . [T]he judge is uniquely positioned to observe the juror’s demeanor and thereby to evaluate his or her capacity to render an impartial verdict. 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.

Here, because the prospective juror indicated that her bias was against the nature of the crime rather than against Parrott, and because she said she could determine the issues fairly based upon the evidence presented, the trial court did not abuse its discretion in refusing to strike her.

3. Parrott contends that the evidence is insufficient to sustain his conviction because the State failed to show that he intended to gratify either his own or K. N.’s sexual desires. He argues that because he was asleep, he had no knowledge of his actions. Parrott assigns error to the trial court’s denial of his motion for a directed verdict, postulating that all the evidence was circumstantial and did not exclude any other reasonable hypothesis except that of guilt. We disagree.

The standard of review for the denial of a motion for a directed verdict of acquittal is the same as for determining the sufficiency of the evidence to support a conviction. We view the evidence in the light most favorable to the jury’s verdict, and the defendant no longer enjoys the presumption of innocence. We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the essential elements of the crime beyond a reasonable doubt.

“A motion for directed verdict in a criminal case should only be granted where there is no conflict in the evidence and the evidence demands a verdict of acquittal as a matter of law. If there is any evidence of guilt, it is for the jury to decide whether that evidence, circumstantial though it may be, is sufficient to warrant a conviction.”

Here, the State’s case against Parrott was not based entirely on circumstantial evidence. It was also based on K. N.’s testimony that Parrott touched her inappropriately and did not stop touching her when she tried to move away. “Intent, which is a mental attitude, is commonly detectable only inferentially, and the law accommodates this.” While a person is not presumed to act with criminal intention, “[i]ntent is a question of fact to be determined upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.”

Other evidence included K. N.’s testimony that Parrott followed her to the garage and asked if she was all right. Further, when defense counsel asked on cross-examination if Parrott had done anything inappropriate prior to this incident, K. N. responded, “[Tjhere were some things that were — could be interpreted either way.” The jury also heard testimony that Parrott apologized for his actions and stated that he believed K. N. was his wife. Additionally, the jury heard testimony from police indicating that Parrott’s statements to them not only conflicted with K. N.’s, but were internally inconsistent. For example, in one interview, Parrott stated that he knew nothing about the inappropriate touching until the day after it occurred; in a later interview on the same day, he admitted touching K. N.’s vaginal area.

Although Parrott questions whether the State adequately showed his intent, he does so by arguing that his expert psychiatric witness testified that it was “highly likely” that Parrott was in a parasomniac episode when the touching occurred, and by arguing that various other witnesses presented testimony as to Parrott’s abnormal actions while asleep. However, “this argument addresses itself to the credibility of the witnesses, which is a matter within the province of the jury.”

Decided November 15, 2012.

Bentley C. Adams III, for appellant.

Peter J. Skandalakis, District Attorney, Kevin T. McMurry, Assistant District Attorney, for appellee.

[Wjhether [Parrott’s] intentions were innocent as he asserted,... or to arouse his own sexual desires as found by the jury, was peculiarly a question of fact for determination by the jury and even when a finding that the accused had the intent to commit the crime charged is supported by evidence which is exceedingly weak... the verdict will not be set aside on that ground.

Here, K. N.’s testimony provided direct evidence, but even if the State’s case had relied solely on circumstantial evidence, although “such evidence had to exclude every reasonable hypothesis except the guilt of the accused,... it did not have to remove every possibility of his innocence.” Here, the jury was entitled to infer from the direct and circumstantial evidence that Parrott acted with the intent to arouse or satisfy his own sexual desires. The evidence was sufficient to convict him, and the trial court did not err in denying his motion for a directed verdict.

Judgment affirmed.

Miller, P. J., and Branch, J., concur.

       OCGA § 16-6-4 (a) (1) (“A person commits the offense of child molestation when such person: Does any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person”).

       (Citations omitted.) Maloney v. State, 317 Ga. App. 460 (731 SE2d 133) (2012).

       Parrott additionally claims that the results of the polygraph were admitted as hearsay, but presents no argument or citation to authority on this point. Thus, he has abandoned any such claim under Court of Appeals Rule 25 (c) (2).

       The Court notes that Parrott was under no compulsion to call Abel as a witness. Parrott did so with the understanding that the prosecution would attempt to impeach Abel because Abel had discounted the unfavorable results of the polygraph in his analysis.

       See Norman v. State, 278 Ga. App. 497, 498 (3) (629 SE2d 489) (2006) (polygraph results are inadmissible unless stipulated, but there is no prejudice in apprising the jury that the test was taken if no inference is raised as to results).

       See Morris v. State, 264 Ga. 823, 824 (2) (452 SE2d 100) (1995) (absent stipulation, the jury may be told that a polygraph was administered only to explain an actor’s conduct and motives if those are “matters concerning which the truth must be found”) (citations omitted).

        Rogers v. State, 282 Ga. 659, 667 (8) (653 SE2d 31) (2007).

        DeCastro v. State, 221 Ga. App. 83, 88 (3) (470 SE2d 748) (1996).

        Hughes v. State, 302 Ga. App. 251, 253 (1) (690 SE2d 898) (2010).

       (Citation, punctuation and footnote omitted.) Guild v. State, 234 Ga. App. 862, 867-868 (5) (a) (508 SE2d 231) (1998).

       See generally Lockett v. State, 258 Ga. App. 178, 180 (2) (573 SE2d 437) (2002) (polygraph tests are not reliable sources of evidence); Salisbury v. State, 221 Ga. 718, 719 (4) (146 SE2d 776) (1966) (polygraph results inadmissible because they are scientifically unreliable as an “accurate means of detecting deception”).

       See generally Billings v. State, 278 Ga. 833, 835 (4) (607 SE2d 595) (2005) (detective’s indication in videotape that he found defendant’s statements unbelievable was deemed unlikely to trigger an inference regarding defendant’s decision not to testify at trial); Crawford v. State, 301 Ga.App. 633, 636-637 (2) (688 SE2d 409) (2009) (given prior testimony on a closely related subject, a witness’s later hearsay statement was deemed unlikely to raise a jury inference as to defendant’s guilt).

       (Citation and punctuation omitted.) Beaudoin v. State, 311 Ga.App. 91, 92-93 (2) (714 SE2d 624) (2011).

       See Pearce v. State, 300 Ga. App. 777, 780-781 (2) (686 SE2d 392) (2009) (trial court not required to excuse prospective juror for cause where prospective juror was victim of child molestation and indicated he “probably could” he fair and impartial). See also Amador v. State, 310 Ga. App. 280, 281 (1) (713 SE2d 423) (2011) (neither a prospective juror’s reservations about her own partiality, nor her statement that she would “try” to decide the case based upon the court’s instructions and evidence required the trial court to strike her for cause).

       See OCGA § 24-4-6.

       (Citation omitted.) Valentine v. State, 301 Ga.App. 630, 630 (689 SE2d 76) (2009).

       (Citation and punctuation omitted; emphasis supplied.) Morris v. State, 226 Ga.App. 535, 535-536 (1) (488 SE2d 685) (1997).

       See Cook v. State, 276 Ga.App. 803, 804-805 (1) (625 SE2d 83) (2005) (testimony of victim is direct evidence; testimony of victim and those to whom she reported defendant’s actions sufficient to sustain child molestation conviction); Cunningham v. State, 240 Ga.App. 92, 99 (4) (b) (522 SE2d 684) (1999) (evidence not merely circumstantial, and denial of directed verdict upheld, where although defendant alleged there was a possibility “that he had no knowledge or participation” in sex with another defendant and child victim, victim testified that defendant was involved).

       (Citation omitted.) Klausen v. State, 294 Ga. App. 463, 465 (1) (669 SE2d 460) (2008) (child molestation conviction upheld where, although defendant contended victim was unaware of his presence while he masturbated as she watched television, jury could infer that victim was aware of defendant’s actions given his proximity).

       OCGA § 16-2-6.

       (Punctuation and footnote omitted.) DeLong v. State, 310 Ga.App. 518, 520(1) (714 SE2d 98) (2011) (criminal intent found even where, inter alia, defendant “claimed that he could not remember how he had come to be in such a position” when he was found in bed with his underwear pulled down, next to minor child who had what appeared to be fecal matter smeared on her buttocks).

       (Citation and punctuation omitted.) Moody v. State, 206 Ga. App. 387, 391 (5) (425 SE2d 397) (1992) (denial of directed verdict in child molestation case upheld based on circumstantial evidence where defendant challenged victim’s credibility based on her inconsistent statements); Klausen, supra (jury may assess credibility of witnesses and weigh it against other evidence).

       (Citation omitted.) Klausen, supra at 465 (1).

       (Citations and punctuation omitted.) Hunter v. State, 194 Ga. App. 711, 713 (3) (391 SE2d 695) (1990).

       Id.


source: Caselaw Access Project

author: McFADDEN, Judge.

license: Public Domain

text:
    A12A1589.
    YOUNGER v. DUNAGAN.
    (733 SE2d 81)
   McFADDEN, Judge.

Postal worker James Younger was injured while trying to escape from a dog at a house at which Younger was delivering mail. In a personal injury action, Younger claimed that the dog owner’s landlord, Gary Dunagan, knew or should have known that the dog was present on the property and had vicious tendencies, and that Dunagan as landlord was “negligent in failing to remove or insist upon the removal of the [dog] or insist upon reasonable restraint upon the [dog].” The trial court granted summary judgment to Dunagan, and Younger appeals. Because the undisputed evidence shows that Dunagan was not in possession of the property, he was entitled to summary judgment against Younger’s claim under OCGA § 44-7-14. Accordingly, we affirm.

Summary judgment is appropriate when no genuine issues of material fact remain and the moving party is entitled to judgmentas amatteroflaw. On appeal, we review a trial court’s grant of summary judgment de novo, construing the evidence and all inferences drawn from it in a light favorable to the nonmovant.

(Citations and punctuation omitted.) Stolte v. Hammack, 311 Ga. App. 710 (716 SE2d 796) (2011).

So viewed, the evidence showed that Dunagan leased a house to Norma Neubold, who had been in continuous possession and control of the house for approximately 19 years. Dunagan worked in a business located directly across the street from and with a view of the rental house. On February 28,2009, Younger approached the porch of the house to deliver mail in a mailbox adjacent to the porch. Neubold’s dog was on the porch, tethered in a manner that allowed the dog to leave the porch. The dog approached Younger in a menacing fashion and attempted to bite him. Younger was injured while running away from the dog.

Younger essentially contends that Dunagan should be liable to him for damages resulting from Neubold’s alleged failure to restrain her dog properly. “A landlord’s liability to a third person who is injured on property which was relinquished by rental or under a lease is determined by OCGA § 44-7-14.” (Citation omitted.) Colquitt v. Rowland, 265 Ga. 905, 906 (1) (463 SE2d 491) (1995); accord Ranwez v. Roberts, 268 Ga. App. 80, 81-82 (1) (601 SE2d 449) (2004). OCGA § 44-7-14 provides:

Having fully parted with possession and the right of possession, the landlord is not responsible to third persons for damages resulting from the negligence or illegal use of the premises by the tenant; provided, however, the landlord is responsible for damages arising from defective construction or for damages arising from the failure to keep the premises in repair.

Under this Code section, Dunagan is not liable to Younger for his claimed damages. See Ranwez, 268 Ga. App. at 83 (1). There is no evidence that Younger’s injuries arose from defective construction or a failure to keep the premises under repair. See Griffiths v. Rowe Properties, 271 Ga. App. 344, 345 (1) (609 SE2d 690) (2005). And the undisputed evidence shows that Dunagan had fully parted with possession and the right of possession of the rental house, entitling him to the protection of OCGA § 44-7-14. He stated in his affidavit that, under his lease agreement, he “relinquished full possession and control of said property to Ms. Neubold, except for the right to enter the premises for landlord purposes with the permission of the tenant.” See Ranwez, 268 Ga. App. at 82 (1) (use of premises belongs to tenant during lease, and landlord’s reservation of right of access for landlord-related purposes does not mean that landlord did not fully part with leased premises). Younger has not pointed to any record evidence disputing Dunagan’s affidavit statement. See generally Cowart v. Widener, 287 Ga. 622, 623 (1) (a) (697 SE2d 779) (2010) (after defendant moving for summary judgment discharges burden of demonstrating no genuine issue of material fact, party opposing summary judgment must point to specific evidence giving rise to triable issue). Although Younger asserts that Dunagan performed weekly maintenance of the property’s grounds, he has not provided either a record citation for this assertion or any authority supporting the position that a landlord could retain a right of possession in rental property by performing such maintenance work.

Younger contends that Dunagan is liable because he “was aware of a condition that was an ongoing nuisance under . . . municipal ordinances and that he acquiesced in the maintenance of the nuisance by his tenant.” Even if Dunagan were aware that the dog presented a dangerous condition on the property, however, OCGA § 44-7-14 shields him from liability because his tenant created the dangerous condition after Dunagan relinquished possession and control of the premises. See Colquitt, 265 Ga. at 906 (1) (landlord entitled to summary judgment on personal injury claim brought by tenant’s invitee, who was injured after diving into shallow pool placed on premises by tenant, despite landlord’s knowledge of dangerous condition posed by pool and diving board, because tenant erected pool after landlord relinquished possession and control of premises). Moreover, while Younger attached copies of the ordinances to his summary judgment pleadings, the copies were not certified. “Neither this court nor the trial court may take judicial notice of municipal ordinances; they must be alleged and proved by production of the original or of a properly certified copy.” (Citations and punctuation omitted.) Latimore v. City of Atlanta, 289 Ga. App. 85, 86 (2) (656 SE2d 222) (2008). Because Younger did not produce the originals or properly certified copies of the ordinances, we cannot consider them in our evaluation of the motion for summary judgment. Id.

Decided October 12, 2012

Reconsideration denied November 16, 2012.

Douglas Pi. Daum, for appellant.

Jones, Cork & Miller, Thomas C. Alexander, Renee S. Rainey, for appellee.

Judgment affirmed.

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


text:
    A12A0808.
    GRISWOLD et al. v. COLLINS.
    (734 SE2d 425)
   McFADDEN, Judge.

Idris Griswold, individually and on behalf of his minor daughter, B. G., brought an action against B. G.’s teacher, Audrey Collins, for assault, battery, and negligence per se based upon Collins’s discipline of B. G. at school. The trial court granted summary judgment to Collins, concluding that she was immune from suit and that her alleged acts did not amount to corporal punishment under OCGA § 20-2-730 et seq. (the basis of Griswold’s negligence per se claim). Griswold appeals. As detailed below, we find that questions of fact as to her entitlement to immunity preclude Collins from summary judgment on the assault and battery claims, and accordingly we reverse the trial court’s judgment as to those claims. We find, however, that Collins is entitled to summary judgment on the negligence per se claim because her alleged actions did not violate the statutes upon which Griswold premised that claim, and accordingly we affirm the trial court’s judgment as to that claim.

Summary judgment is appropriate when no genuine issues of material fact remain and the moving party is entitled to judgment as a matter of law. On appeal, we review a trial court’s grant of summary judgment de novo, construing the evidence and all inferences drawn from it in a light favorable to the nonmovant.

(Citations and punctuation omitted.) Stolte v. Hammack, 311 Ga. App. 710 (716 SE2d 796) (2011).

1. Facts.

Three incidents form the basis of Griswold’s complaint against Collins. The parties strongly dispute much of the evidence pertaining to these incidents; in fact, Collins denies that two of the three incidents occurred at all. Viewed most favorably to Griswold, however, the evidence shows that, in the fall of 2009, B. G. was a second-grade student in a class taught by Collins at a Clayton County elementary school. In early November of that year, B. G. walked across the classroom and put a tissue in the trash. As she was returning to her seat, Collins summoned her. WhenB. G. approached, Collins struck her bare leg with two rulers, leaving a red mark or bruise.

Later in November, B. G. approached Collins with some schoolwork. Collins told B. G. that her answer to one of the problems was incorrect, and then grabbed the girl’s shirt collar and pulled it tight, choking her and leaving red marks on her neck. B. G. deposed that Collins held her in this position for two or three minutes.

Finally, on December 4, Collins made B. G. stand in a corner for a “time out” after the girl began dancing in class. At the end of the “time out,” Collins asked B. G. to approach her. She then grabbed B. G.’s shirt collar, twisted it, and pulled the girl forward, choking her, snapping her necklace and leaving red marks on her neck. B. G. deposed that, when Collins grabbed and twisted her collar, she “couldn’t breathe a little bit.” Collins admitted touching B. G.’s collar on this instance, but testified in deposition that she did so to check if. B. G. was wearing a school uniform under her sweater.

When Griswold learned about the third incident, he contacted the school’s assistant principal and asked to meet that afternoon, a Friday. Dissatisfied with the school’s suggestion that the meeting occur the following Monday, Griswold then called the police, who investigated but apparently did not bring any criminal charges against Collins. The school then moved B. G. to a different class.

2. A fact question exists as to whether Collins is immune from the claims for assault and battery.

(a) Official immunity. Collins asserts that she is entitled to immunity from Griswold’s suit under the doctrine of official immunity, which “protects individual public agents from personal liability for discretionary actions taken within the scope of their official authority, and done without wilfulness, malice, or corruption.” (Citation and punctuation omitted.) McDowell v. Smith, 285 Ga. 592, 593 (678 SE2d 922) (2009); see Ga. Const, of 1983, Art. I, Sec. II, Par. IX (d).

We agree with Collins that her acts toward B. G. were discretionary, not ministerial. As a teacher, Collins was required to exert discipline, control and supervision over the students in her classroom, acts that this Court has held constitute discretionary acts involving the exercise of personal deliberation and judgment. See Gamble v. Ware County Bd. of Ed., 252 Ga.App. 819, 824 (2) (b) (561 SE2d 837) (2002). We are not persuaded by Griswold’s argument that, under our Supreme Court’s decision in McDowell v. Smith, 285 Ga. 592 (678 SE2d 922) (2009), Collins’s acts were ministerial because she failed to follow a “simple, absolute, and definite” school policy against touching students to “invoke punishment.” The defendant in McDowell, a school receptionist, “was merely required to execute specific duties as dictated by the school checkout policies,” id. at 593, not to supervise students in a classroom. “Supervision of students is considered discretionary even where specific school policies designed to help control and monitor students have been violated.” (Citations omitted.) Chamlee v. Henry County Bd. of Ed., 239 Ga. App. 183, 184 (1) (521 SE2d 78) (1999).

Nevertheless, Collins is not entitled to official immunity as a matter of law because questions of fact exist regarding whether her actions against B. G. were done with wilfulness or actual malice. We recognize that actual malice requires a showing that the actor had a deliberate intention to do wrong, Adams v. Hazelwood, 271 Ga. 414 (2) (520 SE2d 896) (1999), and that “[wjilful conduct is based on an actual intention to do harm or inflict injury.” (Citations omitted.) Chrysler Corp. v. Batten, 264 Ga. 723, 726 (3) (450 SE2d 208) (1994). But at this stage we must take B. G.’s depiction of the events as true, and she testified that Collins choked her on two different occasions (once for a period of two to three minutes) and hit her bare leg with two rulers on a third occasion. In the process, B. G. testified, Collins made it difficult for her to breathe, broke her necklace, and left noticeable marks on her leg and neck.

If the jury found B. G.’s testimony persuasive, it would be authorized to find that Collins’s conduct exceeded the permissible “reasonable physical force” a teacher can use “to keep good order in the classroom,” as seen in Daniels v. Gordon, 232 Ga.App. 811, 813 (1) (503 SE2d 72) (1998) (citations and punctuation omitted) (involving uncontroverted testimony of teacher that she merely grasped middle school student’s face to get his attention and stop his misbehavior). A jury reasonably could view the behavior described by B. G. as egregious, unprovoked physical attacks by an adult on a young child. While a jury would not be compelled to accept B. G.’s version of the events or to find that the nature of those actions reflected actual malice or wilfulness on Collins’s part, given the girl’s depiction of Collins’s behavior, a jury could find that she deliberately intended to do wrong or to injure the girl.

B. G. and Collins offer two very different versions of the events in this case. Neither the trial court nor this Court may determine whose version is more credible. See Quarles v. Quarles, 285 Ga. 762, 763 (683 SE2d 583) (2009) (questions relating to witness credibility are for the factfinder). The factual dispute that exists regarding the nature of Collins’s actions toward B. G. precludes a determination as a matter of law that Collins was entitled to official immunity for those actions. See Porter v. Massarelli, 303 Ga. App. 91, 96 (2) (692 SE2d 722) (2010).

(b) Immunity under OCGA § 20-2-1000 (b). Collins also asserts that she is entitled to immunity from Griswold’s suit under OCGA § 20-2-1000 (b), which provides that “[n]o educator shall be liable for any civil damages for, or arising out of, any act or omission concerning, relating to, or resulting from the discipline of any student or the reporting of any student for misconduct, except for acts or omissions of willful or wanton misconduct.” The term “educator” includes a teacher. OCGA § 20-2-1000 (a). Because this Code section contains an exception for wilful misconduct, a fact question exists as to Collins’s entitlement to this immunity for the same reasons as set forth in Division 2 (a). Consequently, there is no merit in Collins’s argument that at this time she is entitled to attorney fees in connection with this appeal pursuant to OCGA § 20-2-1000 (c), an issue that is more properly directed to the trial court in any event.

3. Collins is entitled to summary judgment on the negligence per se claim.

Griswold also set forth a claim for negligence per se premised on his assertion that Collins “issued corporal punishment not within the guidelines of OCGA §§ 20-2-730, 20-2-731, and 20-2-732.” “Negligence per se arises when a statute is violated, the person injured by the violation is within the class of persons the statute was intended to protect, and the harm complained of was the harm the statute was intended to guard against.” (Citation and punctuation omitted.) Chancey v. Peachtree Pest Control Co., 288 Ga. App. 767, 770 (2) (b) (655 SE2d 228) (2007); see OCGA § 51-1-6 (“When the law requires a person to perform an act for the benefit of another or to refrain from doing an act which may injure another, although no cause of action is given in express terms, the injured party may recover for the breach of such legal duty if he suffers damage thereby.”). The Code sections cited by Griswold, however, govern the actions of school districts in creating corporal punishment policies, not the actions of teachers in complying with those policies. Consequently, Collins’s actions did not violate these statutes, and the trial court did not err in granting summary judgment to Collins on the claim for negligence per se.

Decided November 16, 2012

Michael O. Mondy, for appellants.

Hawkins, Parnell, Thackston & Young, Ronald G. Polly, Jr., Alex M. Barfield, Brenton S. Bean, for appellee.

Judgment affirmed in part and reversed in part.

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


author: Ellington, Chief Judge.

text:
    A12A0892.
    TENDER LOVING HEALTH CARE SERVICES OF GEORGIA, LLC et al. v. EHRLICH et al.
    (734 SE2d 276)
   Ellington, Chief Judge.

In this medical malpractice and wrongful death case, the plaintiffs, Howard Ehrlich, Barbara Woods, and Kenneth Ehrlich, the surviving children of the decedent, Francine Ehrlich, sued the Emeritus Corporation, the owners of the nursing home where the decedent lived for four months before succumbing to complications from an infected sacral decubitus ulcer in November 2008 (hereinafter, “the nursing home”). The plaintiffs also sued Tender Loving Health Care Services of Georgia, LLC, d/b/a Staff Builders Home Health, a home health care company that supplied skilled nurses to monitor and care for the decedent at the nursing home after she developed the ulcer (hereinafter, “Staff Builders”). The defendants jointly appeal from the Superior Court of Fulton County’s January 26, 2011 order denying their joint motion for a qualified protective order (“QPO”) that would have allowed their attorneys to conduct ex parte interviews of the decedent’s treating healthcare providers without the plaintiffs’ permission. They also appeal from the court’s January 31, 2011 order denying their motion in the alternative, which asked the court to prohibit the plaintiffs from conducting ex parte interviews of those same healthcare providers. The defendants contend that the court’s denial of their motions violated their constitutional rights to equal protection and due process. For the following reasons, we affirm the trial court’s orders.

The plaintiffs’ complaint contains the following relevant allegations. In July 2008, the 88-year-old decedent began residing at the nursing home. At that time, she had a history of Alzheimer’s disease with mild dementia and needed assistance with routine daily activities, but she was able to walk around with the help of a walker and did not have any decubitis ulcers (pressure wounds). On or about August 28, however, a nursing home employee noticed a pressure wound on the decedent’s right buttock (“the wound”). At the request of the decedent’s daughter, the decedent was transported to Northside Hospital on September 2, and a physician examined and treated the wound before releasing the decedent. Two days later, Staff Builders began providing skilled nurses to monitor and care for the wound at the nursing home. From September 4 until October 31, the wound became much larger, deeper, and infected, while the decedent’s mental and physical status seriously declined.

On October 31, the decedent was examined at Cobb Hospital’s wound treatment center and was immediately transferred to Kennestone Hospital, where she was admitted for treatment due to the severity of the wound. At that point, the wound had become a “large Stage IV decubitis ulcer” that was so deep it exposed the decedent’s sacrum bone. Despite antibiotic therapy and surgical debridement of the wound, the decedent’s condition deteriorated, and, on November 5, she was discharged from the hospital and transferred to a family member’s home, where she received hospice care until her death ten days later.

In their July 2010 complaint, the plaintiffs asserted that the nursing home was vicariously liable for the negligence of their agents and employees in caring for, monitoring, and treating the decedent and that it was directly liable for negligently allowing her to remain at the facility after it knew or should have known that her condition mandated a transfer to a better equipped healthcare facility. They also asserted claims against the nursing home for statutory remedies resulting from alleged violations of state and federal laws governing the operation of nursing homes and patient rights. In addition, the plaintiffs asserted a professional negligence claim against Staff Builders, claiming that it was vicariously liable for the alleged negligence of its agents and employees.

The defendants answered the complaint and disputed many of the facts and the claims based thereon. During the discovery period, counsel for each of the defendants requested that the plaintiffs permit them to conduct ex parte interviews with the decedent’s treating healthcare providers, asking them to either sign a medical authorization form that complied with the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) or agree to a consent order that would allow such ex parte interviews, but the plaintiffs refused the requests.

Then, in December 2010, the defendants filed a motion for a QPO, pursuant to HIPAA, asking the trial court to permit their counsel to conduct ex parte interviews with the decedent’s treating healthcare providers so they could discuss information that they contend is relevant to the decedent’s medical conditions that the plaintiffs placed in issue in this suit. See Moreland v. Austin, 284 Ga. 730, 733-734 (670 SE2d 68) (2008) (holding that HIPAA preempts OCGA § 24-9-40 (a) “with regard to ex parte communications between defense counsel and plaintiff’s prior treating physicians [,] because HIPAA affords patients more control over their medical records when it comes to informal contacts between litigants and physicians. [] ... [Consequently,] in order for defense counsel to informally interview plaintiff’s treating physicians, they must first obtain a valid authorization [from the plaintiff], [a] court order[,] or otherwise comply with [HIPAA’s regulations].”) (citations omitted).

In addition to the motion for a QPO, the defendants presented a motion in the alternative (to be considered if the trial court denied the QPO motion), asking the court “to place the same requirements on Plaintiff[s] and Plaintiffs’] counsel that may be placed upon Defendants’ counsel in interviewing [the decedent’s] treating medical providers[,]” arguing that it would provide them “equal access and a level playing field in interviewing [the decedent’s] treating medical providers, who are ultimately third party fact witnesses that should be equally available to all parties to this case.” (Emphasis in original.)

The trial court conducted a hearing on the motions, during which the defendants allegedly submitted a proposed QPO allowing them to conduct the ex parte interviews. The proposed QPO stated, in relevant part, that the defendants and/or their counsel “are permitted to engage in ex parte communications with [the decedent’s] healthcare providers.” It limited such communications as follows:

Ms. Ehrlich’s healthcare providers are ONLY permitted to discuss “information [that] is relevant to the medical condition^] the litigant has placed in issue in the legal proceeding.” “Relevant” information is strictly limited to the following:
1) any and all medical care she received from August 28, 2008 until her death on November 15, 2008;
2) any and all medical care involving skin care related to bedsores, decubitus ulcers, skin lesions, abscesses, or other skin breakdowns, including preventive care for same and/or Ms. Ehrlich’s propensity to develop same; [and]
3) any and all medical care for co-morbidities that could affect the life expectancy of Francine Ehrlich.

(Footnote omitted; emphasis in original.) In compliance with HIPAA, the proposed QPO expressly prohibited the defendants or their counsel from using or disclosing the decedent’s protected health information for any purpose other than this litigation, and it required them to either return the protected health information (including all copies made) to the healthcare providers or destroy it at the end of this litigation. It then listed six healthcare providers: four physicians who treated the decedent’s wound at Northside or Kennestone Hospitals, and a physician and a nurse practitioner who allegedly treated the decedent at the nursing home. Finally, the QPO stated that, “[b]y receipt of a copy of this [QPO], the medical provider to be interviewed shall be made aware of the fact that the interview is at the request of the defendantfs], not the patient-plaintifffs], and is for the purpose of assisting defense counsel in the litigation” and that “the health care provider’s participation in the interview is voluntary." (Emphasis in original.)

During the hearing, the defendants urged the trial court to issue the proposed QPO, arguing that they believed it complied with the requirements for permitting the oral or written disclosure of otherwise protected health information under HIPAA, as well as the Supreme Court of Georgia’s ruling in Baker v. Wellstar Health Systems, 288 Ga. 336 (703 SE2d 601) (2010). Following the hearing, however, the trial court denied both the motion for a QPO and the motion in the alternative. Although the trial court did not rule on whether the proposed QPO complied with the applicable law cited above, it expressly found no merit in the defendants’ argument that such rulings would violate their “constitutional right to a fair trial.” It also reminded the defendants that they may still “avail themselves of Georgia’s standard discovery procedures in order to secure [medi-. cal] records, information, and testimony from [the] decedent’s treating healthcare providers.”

1. On appeal, the defendants raise two related allegations of error, to wit, that the trial court’s denial of their motion for a QPO and their motion in the alternative violated their constitutional rights to equal protection and due process. As explained below, we find these contentions to be without merit.

(a) As an initial matter, the defendants argue that this Court should apply a “strict scrutiny’ analysis in deciding whether the trial court violated their constitutional rights by denying their motions. Under the strict scrutiny test, a statute that infringes on a person’s fundamental constitutional rights is “deemed unconstitutional unless the State can demonstrate it is justified by a compelling interest and is narrowly drawn to serve that interest.” (Citation omitted.) Final Exit Network v. State of Ga., 290 Ga. 508, 509 (2) (722 SE2d 722) (2012) (addressing the constitutionality of a content-based statute restricting speech). “Unless governmental action infringes upon a fundamental right or the complaining party is a member of a suspect class, [however,] a substantive due process or equal protection challenge is examined under the ‘rational basis’ test.” (Citation omitted.) Favorito v. Handel, 285 Ga. 795, 796 (1) (684 SE2d 257) (2009) (holding that, even though the right to vote is a fundamental constitutional right, some laws establishing the manner of voting are subject to review under the rational basis test). See also Nichols v. Gross, 282 Ga. 811, 813 (653 SE2d 747) (2007) (reviewing the constitutionality of a medical malpractice statute of repose under the rational basis test).

Here, the defendants do not argue that, pursuant to a strict scrutiny analysis, HIPAA or any other federal or state statute is per se unconstitutional and invalid, nor do they argue that the trial court improperly relied on the relevant provisions of HIPAA or the holdings of Moreland or Baker when ruling on their motions. Further, the defendants have failed to show that they are members of a “suspect class” whose rights were infringed upon by the trial court’s rulings.

Instead, they argue that the trial court’s orders violated their fundamental right to a fair trial by preventing them from conducting ex parte interviews with the decedent’s treating healthcare providers, interviews which they characterize as an inherent and necessary part of effective trial preparation. According to the defendants, if they are prohibited from conducting the ex parte interviews, they will be unable to obtain the affidavits of those healthcare providers; will be unable to obtain medical narratives pursuant to OCGA § 24-3-18; will be unable to protect their “attorney work product”; will be unable to “prepare [the decedent’s treating healthcare providers] for their trial testimony”; and will be subjected to greater trial preparation expenses. As a result, they argue that they

will be forced to call [the decedent’s] treating medical providers to the witness stand and blindly hope that [the providers] remember the treatment at issue, the issues relevant to their testimony, and the specific pages of their medical records containing pertinent information. [The defendants’] prohibition from preparing these witnesses for trial will result in scattered, disjointed trial testimony that reflects poorly on the witnesses and the [defendants] in the eyes of the jury, especially compared to the polished, succinct testimony of medical providers prepared for their trial testimony by [the plaintiffs].

Despite presenting such an impassioned argument outlining the potential dire consequences of an adverse ruling from this Court, however, the defendants have failed to support it with any evidentiary or legal authority, nor have they shown that these alleged consequences cannot be avoided by utilizing the other discovery methods and trial preparation techniques that remain available to them. Instead, this argument constitutes mere speculation and conjecture about possible future events that cannot fulfill their burden of demonstrating harm by the record. See McConnell v. State, 263 Ga. App. 686, 689 (3) (b) (589 SE2d 271) (2003) (“Harm cannot be shown by mere speculation and conjecture unsupported by the record.”) (punctuation and footnote omitted).

In addition, these alleged consequences of the trial court’s order lack merit because the defendants have failed to support their assertions that the ex parte interviews are, in fact, necessary for them to obtain either affidavits or medical narratives from the healthcare providers or to protect their work product. Nor have they shown why they need to meet with the healthcare providers ex parte in order to “prepare” them for their trial testimony, especially since the providers are not parties to the litigation, are not the defendants’ expert witnesses, are not agents or employees of the defendants or represented by their attorneys, were in a confidential patient-physician relationship with the decedent at the time they obtained her medical information, and have an ongoing fiduciary duty to the decedent (and, by extension, her estate’s representative) to protect that confidential information to the extent required under federal and state law. Finally, the defendants have failed to make any showing that the additional expenses allegedly associated with the other discovery methods that are readily available to them present a financial hardship to the extent that such hardship outweighs the decedent’s ongoing, legally protected right to the confidentiality of her entire medical history (except to the extent that it is directly related to a medical condition at issue here) or the risk of the intentional or inadvertent discovery of such protected information.

Accordingly, we reject as without merit the defendants’ argument that, because the trial court’s denial of their motions allegedly violates their constitutional right to a fair trial, the applicable standard of review in this case is strict scrutiny.

(b) The defendants contend that the trial court violated their equal protection rights by denying their QPO motion and their motion in the alternative, arguing that it deprived them of “equal access to interview [the decedent’s] relevant treating medical providers.” (Emphasis supplied.) It is axiomatic that, while “[t]he Georgia and U. S. Constitutions require government to treat similarly situated individuals in a similar manner,” it is also true that the

person who is asserting the equal protection claim has the burden to establish that he is similarly situated to members of the class who are treated differently from him. If the person asserting the violation cannot make the foregoing showing, there is no need to continue with an equal protection analysis.

(Citation and punctuation omitted.) Dunn v. State, 286 Ga. 238, 242 (2) (686 SE2d 772) (2009).

In this case, the defendants argue that the trial court’s orders denying their counsel

the right to conduct ex parte interviews of treating medical providers, while simultaneously permitting [the plaintiffs’] counsel to do so, creates two classifications among similarly situated litigants. This inequality exists even though it is axiomatic that the parties to litigation stand equal before the law.

The defendants, however, have failed to cite to any legal authority to support this broad assertion; they have also failed to cite to any evidence or legal authority that supports a finding that they are “similarly situated” to the plaintiffs in any way that is significant to an equal protection analysis, nor does the record support such a finding.

Instead, the record shows that the plaintiffs, as the surviving adult children of the decedent and/or the administrator of the decedent’s estate, brought wrongful death and medical malpractice claims to recover for the decedent’s injuries and death. It is axiomatic that the plaintiffs are only authorized to do so because the decedent, who had a privileged, confidential relationship with her healthcare providers at the time they obtained the information at issue here, is no longer alive and able to represent her own interests in the medical malpractice action. Thus, the plaintiffs are not only representing their interests in recovering for the loss of their mother, but the estate administrator is also representing the decedent’s interests in recovering for her pain and suffering on behalf of her estate.

Moreover, contrary to the defendants’ assertions, the decedent’s treating healthcare providers are not “independent third party fact witnesses” who must be made equally available to all of the parties. Instead, the providers gathered the decedent’s medical information — including the information the defendants are seeking — while owing a fiduciary duty to the decedent and while bound by duties of confidentiality imposed by federal and state law, as discussed above. Thus, unlike a true independent third party fact witness who can only testify to his or her actual observations of the event at issue, such as a pedestrian who just happened to witness an automobile collision between two people he or she did not know, it is highly probable that the healthcare providers in this case possess specific and privileged medical information collected from the decedent herself, as well as from the medical records of others, that is entirely unrelated to the medical condition at issue here.

Accordingly, we conclude that the defendants have failed to carry their burden of demonstrating that the trial court violated their equal protection rights by denying the orders at issue.

(c) Although the defendants separately enumerate as error their allegation that the trial court violated their due process rights by denying them a fair trial, the arguments and authority they offer in support of this contention are the same as those we have found to be without merit in Division 1 (a), supra. Accordingly, there is nothing else for this Court to review on this issue.

In sum, we conclude that the defendants have failed to articulate or support a successful constitutional challenge to the trial court’s rulings in this case.

2. Still to be decided, however, is whether the defendants are correct in asserting that the trial court in this case was required to either issue their proposed QPO or grant their motion in the alternative, or whether the trial court was authorized to use its discretion to decide whether to issue the QPO after considering the specific circumstances presented here.

(a) In their appellate brief, the defendants explicitly request that this Court establish new legal precedent, as follows:

Carefully crafted [Q]ualified [Protective [Ojrders specifying precise parameters within which ex parte interviews may be conducted should typically be granted, but when Qualified Protective Orders are denied or provide unequal access to treating medical providers, the trial court should place the same limitations on plaintiff’s counsel as on defendant’s counsel.

(Punctuation and footnote omitted.) In other words, the defendants are asking this Court to establish a new rule stating that, as long as a defendant’s proposed QPO seeking ex parte access to the plaintiff’s treating healthcare providers complies with HIPAA and applicable Georgia law, the trial court must either grant it or prohibit the plaintiff’s counsel from conducting such interviews, regardless of the underlying circumstances of the case, thereby removing the court’s discretion in such matters.

(i) The record shows, however, that the defendants have only recently embraced its effort to have this Court establish this new precedent. Specifically, the record shows that this appeal was previously docketed in this Court as Case No. A11A1834 on May 27, 2011. In a brief they filed in that case, the defendants (as the appellants) made the following declaration:

Contrary to Appellees’ assertion, Appellants did not argue that once a QPO is sought, the trial court “should be stripped of its discretion” and enter QPOs “as a matter of course,” tantamount to a “check the box” scheme. Appellants readily acknowledged that Baker vests the trial courts with the discretion to decide whether to enter a QPO permitting ex parte communications with treating medical providers. This is implicitly acknowledged by Appellants’ Motion in the Alternative, which sought to have restrictions placed on Appellees’ counsels’ access to Ms. Ehrlich’s treating medical providers in the event the trial court exercised its discretion and denied Appellants’ underlying Motion for a QPO.

(Emphasis in original and supplied in part.)

Before deciding the merits of that appeal, however, this Court remanded the case to the trial court to resolve an alleged conflict of interest of counsel. The trial court addressed and resolved that single issue, and it is undisputed that nothing occurred in the trial court that materially impacted the orders or the issues that the defendants had already raised on appeal. This case was then re-docketed as the instant appeal, and the parties again submitted briefs addressing “the original issues” raised on appeal. It is in their new appellate brief, however, that the defendants have reversed course and now argue, for the first time, that trial courts lack discretion and must either issue QPOs that comply with HIPAA and Georgia law or prohibit plaintiffs from communicating ex parte with their treating healthcare providers, regardless of the facts and circumstances distinguishing individual cases.

It is axiomatic, however, that “our appellate courts are courts for the correction of errors of law committed in the trial court. . . . Therefore, absent special circumstances, an appellate court need not consider arguments raised for the first time on appeal.” (Citation and punctuation omitted.) Safe Shield Workwear v. Shubee, Inc., 296 Ga. App. 498, 500-501 (2) (675 SE2d 249) (2009).

(ii) Moreover, even if this Court was willing to embrace the new precedent proposed by the defendants, we are powerless to do so, because it conflicts with the Supreme Court of Georgia’s ruling in Baker. In Baker, the Court discussed the inherent dangers of ex parte interviews such as those sought by the defendants herein and the minimal legal requirements for QPOs authorizing such interviews. Baker v. Wellstar Health Systems, 288 Ga. at 339 (3) (a), (b). It then emphasized that, before trial courts issue such QPOs, they

should consider whether the circumstances—including any evidence indicating that ex parte interviews have or are expected to stray beyond their proper bounds — warrant requiring defense counsel to provide the patient-plaintiff with prior notice of, and the opportunity to appear at, scheduled interviews or, alternatively, requiring the transcription of the interview by a court reporter at the patient-plaintiff’s request.

(Citations omitted.) Id. at 339-340 (3) (b). In so ruling, the Court implicitly, if not explicitly, ruled that trial courts retain the discretion to decide whether to issue such QPOs (and, if they do so, to decide whether to include additional procedural protections) even if the QPOs met the minimal legal requirements and after considering the individual facts and circumstances surrounding each case. Id.; see also Moreland v. Austin, 284 Ga. at 735 (holding that the trial court acted “well within [its] discretion” when issuing an order that allowed defense counsel to interview the decedent’s treating physicians, but only after giving the plaintiff notice and providing the opportunity for plaintiff’s counsel to be present during the interviews).

Thus, pretermitting whether this issue was preserved for appellate review, we are bound by the Supreme Court’s ruling in Baker and, consequently, we reject the defendants’ request to adopt a new rule that effectively strips trial courts of all discretion in deciding whether to issue QPOs that authorize the type of ex parte interviews sought in this case.

(b) Given our holdings thus far, the only remaining issue is whether the trial court in this case abused its discretion in denying the defendants’ motion for a QPO. Because we find that the proposed QPO was insufficiently limited in scope to comply with the Supreme Court of Georgia’s ruling in Baker, we find no abuse of discretion.

In Baker, the Supreme Court considered whether a trial court properly issued a QPO allowing the defendant’s counsel to engage in ex parte communications with the plaintiff’s “treating physicians and other healthcare providers” and permitted them to discuss the plaintiff’s “medical conditions and any past, present, or future care and treatment[.]” Baker v. Wellstar Health Systems, 288 Ga. at 337-338 (1). Although the Court found that the QPO complied with the applicable HIPAA privacy regulations, id. at 338 (1), it warned that, while “the purpose of [those regulations] is to protect and enhance the rights of consumers by providing them access to their health information and controlling the inappropriate use thereof[,]” there was a “gaping loophole in the procedural protections afforded by HIPAA in the context of litigation.” (Citation and punctuation omitted.) Id. at 338-339 (3) (a). According to the Court,

the dangers associated with ex parte interviews of health care providers are numerous, including (1) the potential for unwarranted probing into matters irrelevant to the litigation yet highly sensitive and possibly prejudicial to the patient-plaintiff; (2) the potential for disclosure of information, such as mental impressions not documented in the medical record, that the health care provider has never actually communicated to the patient-plaintiff; and (3) the potential for defense counsel to influence the health care provider’s testimony, unwittingly or otherwise, by encouraging solidarity with or arousing sympathy for a defendant health care provider.

Id. at 339 (3) (a). Given these concerns, the Court ruled that, even if the QPO at issue complied with HIPAA, further analysis of the QPO was required to ensure that it complied with Georgia law, because, although “HIPAA preempts Georgia law in its imposition of procedural requirements, the substantive right to medical privacy under Georgia law endures. See King v. State, 272 Ga. 788 (1) (535 SE2d 492) (2000) (Georgia Constitution guarantees right of medical privacy).” Id. at 338 (2).

After so considering the QPO at issue, the Court ruled that the scope of information that the healthcare providers could disclose to the defendant’s counsel pursuant to the QPO was too broad and that the QPO “should have limited [the defendant’s] inquiry to matters relevant to the medical condition Baker has placed at issue in this proceeding^ pursuant to OCGA § 24-9-40 (a)]. Without this limitation, the qualified protective order must be considered deficient.” Baker v. Wellstar Health Systems, 288 Ga. at 338 (2).

The Supreme Court then delineated the following requirements that trial courts must address (in addition to the HIPAA requirements) in order to properly issue QPOs authorizing ex parte interviews:

[T]rial courts should state with particularity: (1) the name(s) of the health care provider(s) who may be interviewed; (2) the medical condition(s) at issue in the litigation regarding which the health care provider(s) may be interviewed; (3) the fact that the interview is at the request of the defendant, not the patient-plaintiff, and is for the purpose of assisting defense counsel in the litigation; and (4) the fact that the health care provider’s participationin the interview is voluntary.

(Citations omitted.) Baker v. Wellstar Health Systems, 288 Ga. at 339 (3) (b). The Supreme Court urged the trial courts to issue “carefully crafted orders specifying precise parameters within which ex parte interviews may be conducted,” emphasizing that such orders “will serve to enforce the privacy protections afforded under state law and advance HIPAA’s purposes while at the same time preserving a mode of informal discovery that may be helpful in streamlining litigation in this State.” Id. at 340 (3) (b).

Applying the Baker analysis to the instant case, the proposed QPO appears to comply with the first, third, and fourth requirements. As for whether the proposed QPO properly limited the defendants to discussing only “the medical condition(s) at issue in the litigation” with the named healthcare providers, the record shows that, by filing their complaint, the plaintiffs initiated a dispute as to the cause, extent, treatment, and consequences of the decedent’s wound. Yet, the defendants’ proposed QPO sought authorization to question the decedent’s healthcare providers about “any and all medical care she received from August 28, 2008 until her death on November 15, 2008[.]” In other words, the defendants sought permission to question the providers about all of the medical care the decedent received after she developed the wound, even if it had absolutely no relevance to the cause, extent, treatment, or consequences of her wound. Further, the defendants sought authorization to question the providers about “any and all medical care for comorbidities that could affect [her] life expectancy[,]” in other words, every health problem she had ever experienced that might have affected her life expectancy.

Thus, under the circumstances presented here, we conclude that the trial court was authorized to find that, pursuant to Baker, the proposed QPO failed to sufficiently limit the scope of the ex parte interviews sought by the defendants. Accordingly, we find no abuse of discretion in this case.

Decided November 16, 2012.

Lewis, Brisbois, Bisgaard & Smith, Thomas E. Lavender III, Brantley C. Rowlen, for appellants.

Perrotta, Cahn & Prieto, Michael A. Prieto, Robert W. Lamb, Andrew E. Goldner, Summerville & Moore, James D. Summerville, Sidney L. Moore III, for appellees.

Oates & Courville, Traci G. Courville, amicus curiae.

Judgment affirmed.

Andrews and Boggs, JJ., concur.

       Howard Ehrlich sued in his individual capacity as a surviving son of the decedent and as administrator of her estate.

       This Court granted the defendants’ application for interlocutory review of the trial court’s orders.

       The hearing on the defendants’ motion for a QPO and motion in the alternative was not transcribed, and there are no answers to interrogatories or other sources in the record that otherwise support or contradict these allegations. We recite these allegations only to provide context to the issues on appeal, without ruling upon their accuracy or legal significance.

       HIPAA “authorized the Secretary of the Department of Health and Human Services to promulgate rules and regulations which would ensure the privacy of patients’ medical information.” (Citation omitted.) Moreland v. Austin, 284 Ga. 730, 731 (670 SE2d 68) (2008). The resulting regulations “prohibit healthcare providers from disclosing protected health information, whether ‘oral or recorded in any form or medium,’ unless the providers comply with the Secretary’s rules and regulations.” (Footnote omitted.) Id. See also 45 CFR § 160.103 (“Health Information means any information, whether oral or recorded in any form or medium, that... [i] s created or received by a health care provider... [and relates] to the past, present, or future physical or mental health or condition of an individual [or] the provision of health care to an individualf.]”).

       45 CFR § 164.512 (e) (1) provides, in relevant part, as follows:
      A covered entity may disclose protected health information in the course of any judicial or administrative proceeding: (i) In response to an order of a court or administrative tribunal, provided that the covered entity discloses only the protected health information expressly authorized by such order; or (ii) In response to a subpoena, discovery request, or other lawful process, that is not accompanied hy an order of a court or administrative tribunal, if... [t] he covered entity receives satisfactory assurance ... from the party seeking the information that reasonable efforts have been made hy such party to secure a qualified protective order that meets the requirements of paragraph (e) (1) (v) of this section.... (iv) [A] covered entity receives satisfactory assurances from a party seeking protected health information, if the covered entity receives from such party a written statement and accompanying documentation demonstrating that: (A) The parties to the dispute giving rise to the request for information have agreed to a qualified protective order and have presented it to the court or administrative tribunal with jurisdiction over the dispute; or (B) The party seeking the protected health information has requested a qualified protective order from such court or administrative tribunal.
      See 45 CFR § 164.512 (e) (1) (v) (“[A] qualified protective order means, with respect to protected health information requested under paragraph (e) (1) (ii) of this section, an order of a court or of an administrative tribunal or a stipulation by the parties to the litigation or administrative proceeding that: (A) Prohibits the parties from using or disclosing the protected health information for any purpose other than the litigation or proceeding for which such information was requested; and (B) Requires the return to the covered entity or destruction of the protected health information (including all copies made) at'the end of the litigation or proceeding.”); see also 45 CFR § 160.103 (“Covered entity means: (l)Ahealthplan. (2)Ahealth care clearinghouse. (3) A health care provider who transmits any health information in electronic form in connection with a transaction covered by this subchapter.”).

       See OCGA § 24-9-40 (a) (No physician shall be required to release any medical information concerning a patient except when authorized or required to by law, when authorized by the patient, or when ordered by a court; however, the “privilege shall be waived to the extent that the patient places his or her care and treatment or the nature and extent of his or her injuries at issue in any civil or criminal proceeding.”).

       In Moreland, the Supreme Court of Georgia explained that, under OCGA § 24-9-40 (a),
      once a patient files suit and puts his medical condition in issue, his treating physicians can then disclose his medical records and defendant’s lawyer can informally contact those physicians and orally communicate with them about plaintiff’s medical condition. HIPAA, on the other hand, prevents a medical provider from disseminating a patient’s medical information in litigation, whether orally or in writing, without obtaining a court order or the patient’s express consent, or fulfilling certain other procedural requirements designed to safeguard against improper use of the information. In other words, HIPAA requires a physician to protect a patient’s health information, unless the patient is given reasonable notice and an opportunity to object. Georgia law stands in sharp contrast: it facilitates and streamlines the litigation process; it was not designed to protect a patient’s private health information in the course of oral communications between the patient’s physicians and defense counsel. It follows that HIPAA is more stringent and that it governs ex parte communications between defense counsel and healthcare providers.
      (Citations omitted.) Moreland v. Austin, 284 Ga. at 733. See also 42 USCA § 1320d-7 (HIPAA’s general preemption clause); 45 CFR § 160.203 (b) (“A standard, requirement, or implementation specification adopted under this subchapter that is contrary to a provision of State law preempts the provision of State law. This general rule applies, except if. .. [t]he provision of State law relates to the privacy of individually identifiable health information and is more stringent than a standard, requirement, or implementation specification adopted under [HIPAA’s privacy rule].”).

       According to the Supreme Court,
      [although defense counsel can engage in such discussions if a plaintiff gives his or her consent, it must be clear that the plaintiff consented to ex parte oral communications. We will not presume a plaintiff consented to such communications simply because the plaintiff did not object when defendant sought plaintiff’s medical records pursuant to a subpoena or request for production of documents.
      (Footnote omitted.) Moreland v. Austin, 284 Ga. at 735.

       The record shows that the defendants attached a proposed QPO as “Exhibit B” to their December 2010 motions. Then, after the trial court denied the motions, the defendants filed a “revised” QPO to replace the earlier one, along with a document stating that they had provided the trial court with a “courtesy copy” of the revised QPO during the motion hearing, which, as noted above, was not transcribed. The document also stated, however, that the revised QPO “had not otherwise been filed into the [c] ourt record, and Defendants are uncertain whether [the trial court] filed it into the [c]ourt record during the oral argument.” Even so, it is the “revised” QPO that the defendants claim, on appeal, that the trial court erroneously denied.

       See footnote 5, supra.

       None of the named providers are parties to the instant suit, nor are they agents or employees of the defendants.

       Healthcare providers are free to decide whether or not to cooperate with defense counsel. HIPAA-compliant authorizations and HIPAA court orders cannot force a health care professional to communicate with anyone; they merely signal compliance with HIPAA and the Privacy Rule as is required before any use or disclosure of protected health information may take place.
      (Citation and punctuation omitted.) Moreland v. Austin, 284 Ga. at 731, n. 5.

       See Division 2 (b), infra, regarding the proposed QPO’s compliance with the Baker requirements.

       In fact, we note that, although the defendants originally filed an application for interlocutory appeal from the trial court’s orders in the Supreme Court of Georgia, the Supreme Court transferred the application to this Court based upon its finding that it lacked subject matter jurisdiction. According to the Supreme Court,
      this appeal does not involve the construction of a treaty or of the Constitution of the State of Georgia or of the United States and does not draw into question the constitutionality of a law, ordinance, or constitutional provision. Instead, it involves the mere application, in a general sense, of unquestioned and unambiguous provisions of the Constitution to a given state of facts.
      (Citations and punctuation omitted; emphasis supplied.)

       Under OCGA § 24-3-18,
      (a) Upon the trial of any civil case involving injury or disease, any medical report in narrative form which has been signed and dated by an examining or treating licensed medical doctor .. . shall be admissible and received in evidence insofar as it purports to represent the history, examination, diagnosis, treatment, prognosis, or interpretation of tests or examinations, including the basis therefor, by the person signing the report, the same as if that person were present at trial and testifying as a witness; provided, however, that such report and notice of intention to introduce such report must first be provided to the adverse party at least 60 days prior to trial.... Any adverse party may object to the admissibility of any portion of the report, other than on the ground that it is hearsay, within 15 days of being provided with the report. Further, any adverse party shall have the right to cross-examine the person signing the report and provide rebuttal testimony. The party tendering the report may also introduce testimony of the person signing the report for the purpose of supplementing the report or otherwise.
      (b) The medical narrative shall be presented to the jury as depositions are presented to the jury and shall not go out with the jury as documentary evidence.
      We note that this statute is an exception to the hearsay rule that authorizes a party to admit a medical narrative at trial in lieu of (or in addition to) producing the author of the report as a sworn witness at trial. Bell v. Austin, 278 Ga. 844, 844-845 (1) (a) (607 SE2d 569) (2005). Thus, it does not address the substance of evidence presented at trial, but simply the manner in which the evidence is presented.

       We note that the privilege of shielding confidential attorney work product in Georgia is not a due process right, but is, instead, a product of statutory law. See OCGA § 9-11-26 (b) (3) (work product protection extends to “documents and tangible things” containing the attorney’s “mental impressions”).

       It is undisputed that the defendants have access to the decedent’s relevant medical records.

       Indeed, the questions posed by the defendants’ counsel to the nonexpert witnesses (the third party providers) and the answers thereto do not constitute attorney work product, and the fact that the attorneys intend to pose their questions to the third party providers implicates their waiver of work product protection. See OCGA §§ 9-11-26 (b) (3) (“[T]he court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigationf.]”); 24-9-24 (An attorney shall not disclose the advice or counsel he may give to his client, nor any communications between the client and the attorney.); see also McKesson Corp. v. Green, 279 Ga. 95, 96 (1) (b) (610 SE2d 54) (2005) (noting that the “prevailing rule is that disclosure [of information] to an adversary, real or potential, forfeits work-product protection”) (citation and punctuation omitted).

       See Baker v. Wellstar Health Systems, 288 Ga. at 339 (3) (a) (outlining some of the dangers of ex parte interviews of a plaintiff’s healthcare providers by the defendant’s counsel, including “the potential for unwarranted probing into matters irrelevant to the litigation],] yet highly sensitive and possibly prejudicial to the patient-plaintiff,” and “the potential for defense counsel to influence the health care provider’s testimony, unwittingly or otherwise, by encouraging solidarity with or arousing sympathy for a defendant health care provider.”).

       See OCGA § 51-4-2 (a) (a wrongful death action may be brought by the decedent’s children if there is no surviving spouse).

       See OCGA § 51-1-27 (authorizing recovery for medical malpractice); see also OCGA §§ 9-2-21 (“An action for a tort shall, in general, be brought in the name of the person whose legal right has been affected.”); 9-11-17 (a) (Every cause of action shall be prosecuted by the real party in interest, which may include the executor or administrator of an estate.); 53-7-1 (general powers and duties of an estate’s representative); 53-7-45 (authorizing the estate’s personal representative to litigate claims in favor of the estate).

       See Cox v. Athens Regional Med. Center, 279 Ga. App. 586, 593 (4), n. 14 (631 SE2d 792) (2006) (noting that, “ordinarily, physicians owe a fiduciary duty to their patients with respect to the care given”) (citation omitted).

       See footnote 19, supra, and Division 2 (b), infra.

       We note that this conclusion is consistent with OCGA § 9-11-26 (c), which provides that the court “may” issue a protective order for good cause shown, as well as the general rule that “the conduct of discovery is within a trial court’s broad discretion.” (Footnote omitted.) Exxon Corp. v. Thomason, 269 Ga. 761, 763 (3) (504 SE2d 676) (1998).

       See Ga. Const, of 1983, Art. VI, Sec. VI, Par. VI (“The decisions of the Supreme Court shall hind all other courts as precedents.”).

       Cf. Arby’s Restaurant Group v. McRae, 292 Ga. 243 (734 SE2d 55) (2012) (In a workers’ compensation case, the Supreme Court ruled that, because HIPAA specifically exempts from its requirements disclosures that are made in accordance with state workers’ compensation laws, HIPAA’s privacy provisions do not preempt Georgia law on the subject of ex parte communications with the plaintiff’s treating physicians in workers’ compensation cases. As a result, an employee who files a workers’ compensation claim is required, under OCGA § 34-9-207, to authorize his or her treating physician to engage in ex parte communications with his or her employer or an employer representative in exchange for receiving benefits for a compensable injury. In so ruling, the Court distinguished its holding in Baker, stating that, because Baker was a medical malpractice case, the disclosure was subject to HIPAA’s privacy requirements.).


author: McFadden, Judge.

text:
    A12A0898.
    SETTLES BRIDGE FARM, LLC v. MASINO et al.
    (734 SE2d 456)
   McFadden, Judge.

This appeal is from a trial court order dismissing a complaint pursuant to Georgia’s anti-SLAPP (Strategic Lawsuits Against Public Participation) statute, OCGA § 9-11-11.1. Because the trial court correctly found that the alleged statements which form the basis for the complaint were privileged under that statute, we affirm.

Settles Bridge Farm, LLC filed a complaint against Nick Masino and the Gwinnett Chamber of Commerce, Inc., claiming tortious interference with business and contractual relations. Settles Bridge complains about a telephone call from chamber vice president Masino to a city manager, which purportedly acted as the catalyst for zoning changes that interfered with Settles Bridge’s ability to sell certain property. The complaint alleges that Settles Bridge had agreed to sell 36.5 acres of land located in a residential area of the City of Suwanee to Notre Dame Academy, which planned to build a school on the property. The city confirmed to representatives of both Settles Bridge and Notre Dame that under the zoning code, construction of a school on the property was permitted as a “by-right use.” In February 2008, Notre Dame’s president, Debra Orr, attended a chamber of commerce meeting. During a break in the meeting, chamber vice president Masino heard Orr discussing the relocation of Notre Dame to the property. Masino later called City Manager Marty Allen to inquire about the property’s zoning and was informed that a school was permissible as a “by-right use.” Thereafter, Allen sent an e-mail to the mayor and city council advising that the zoning ordinance should be amended to prevent Notre Dame’s relocation to the property. The mayor and city council subsequently adopted a moratorium on large projects within residential districts, which precluded the application for or issuance of a building permit for the property. In May 2008, the city approved an amendment to the zoning ordinance, which required a special use permit to develop the property. Unable to develop the property for its school, Notre Dame terminated the contract to buy the property. According to the complaint, the city never would have acted to impede the Notre Dame project and purchase of the property without Masino’s conduct.

Masino and the chamber of commerce moved to dismiss the complaint based on Georgia’s anti-SLAPP statute. After a hearing, the trial court granted the motion to dismiss the complaint pursuant to OCGA § 9-11-11.1, finding that Masino’s alleged statements to the city manager were privileged because they related to matters of public concern. The trial court also dismissed as moot Settles Bridge’s motion to lift the automatic stay for limited discovery. Settles Bridge appeals.

1. Georgia’s anti-SLAPP statute.

The purposes of the anti-SLAPP statute “are to encourage citizen participation in matters of public significance through the exercise of the right of free speech and the right to petition the government for redress of grievances, and to prevent their valid exercise from being chilled through abuse of judicial process.” Atlanta Humane Society v. Harkins, 278 Ga. 451, 452 (1) (603 SE2d 289) (2004) (Paraphrasing OCGA § 9-11-11.1 (a)). To those ends, OCGA § 9-11-11.1 (b) provides that a claimant and its attorney must file a verification, certifying that to the best of their knowledge the claim

is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; that the act forming the basis for the claim is not a privileged communication under paragraph (4) of Code Section 51-5-7; and that the claim is not interposed for any improper purpose such as to suppress a person’s or entity’s right of free speech or right to petition government, or to harass, or to cause unnecessary delay or needless increase in the cost of litigation.

But the filing of the verification does not end the matter because the trial court can ultimately reject the verification and dismiss the claim. Atlanta Humane Society, supra at 453 (1). “If a claim is verified in violation of this Code section, the court, upon motion or upon its own initiative, shall impose upon the persons who signed the verification, a represented party, or both an appropriate sanction which may include dismissal of the claim[.]” OCGA § 9-11-11.1 (b). Thus, if the trial court finds that the claim infringes on the rights of free speech or petition, it may dismiss the claim. Atlanta Humane Society, supra at 454 (1).

2. Confidentiality agreement.

Settles Bridge argues that the trial court erred in finding that the anti-SLAPP statute applies to its claims based on Masino’s statements to the city manager because they violated an agreement that Masino had with the chamber not to divulge confidential information to anyone outside the chamber. As an initial matter, to the extent Settles Bridge is arguing that the anti-SLAPP statute is inapplicable to its complaint, such an argument is inconsistent since Settles Bridge filed the verification as required by that statute and, in its response to the motion to dismiss, expressly conceded that “the claims against Masino and The Chamber are governed by O.C.G.A. § 9-11-11.1.” See Hindu Temple &c. v. Raghunathan, 311 Ga. App. 109, 115 (1) (714 SE2d 628) (2011) (argument that trial court erred in finding anti-SLAPP statute applicable particularly disingenuous in light of filings made pursuant to OCGA § 9-11-11.1 (b) showing that plaintiffs were obviously under the impression that the statute did in fact govern their claims).

Regardless, Settles Bridge’s reliance on the confidentiality agreement between Masino and the chamber is completely misplaced. There is no evidence that such an agreement was intended for Settles Bridge’s benefit. “In order for a third party to have standing to enforce a contract, it must clearly appear from the contract that it was intended for his benefit. The mere fact that he would benefit from performance of the agreement is not alone sufficient.” (Citation and punctuation omitted.) Graham v. Cobb County, 316 Ga.App. 738, 743 (2) (730 SE2d 439) (2012). The contract in this case provided that as a condition of Masino’s employment he may have access to various confidential documents and he agreed not to divulge such proprietary information to anyone outside of the chamber. There is nothing in the employment confidentiality agreement between Masino and the chamber to indicate that it was intended for the benefit of Settles Bridge.

Furthermore, even if the agreement were relevant, Masino did not violate it by divulging confidential information. Pretermitting the issue of whether this public zoning issue could constitute confidential information, as indicated in Settles Bridge’s complaint, before Masino ever contacted the city manager, representatives from both Settles Bridge and Notre Dame had already approached the city regarding the property’s zoning classification and development of the school on that property. As the trial court found, the information “had already been communicated to the City by both the plaintiff and non-party Notre Dame prior to the alleged telephone call by Defendant Masino.” Thus, Masino’s similar statements about the property’s zoning simply did not concern any proprietary, confidential matter. Accordingly, Settles Bridge’s arguments premised on the confidentiality agreement are without merit.

3. Privileged statements.

Settles Bridge contends that the trial court erroneously determined that the statements made by Masino were privileged. We disagree.

The plain language of OCGA § 9-11-11.1 (b) authorizes dismissal of a claim if the statements in question are privileged under paragraph OCGA § 51-5-7 (4). Atlanta Humane Society, supra at 454 (1). Pursuant to OCGA § 51-5-7 (4), statements are privileged if they are

made in good faith as part of an act in furtherance of the right of free speech or the right to petition government for a redress of grievances under the Constitution of the United States or the Constitution of the State of Georgia in connection with an issue of public interest or concern, as defined in subsection (c) of Code Section 9-11-11.1.

The definition set forth in OCGA § 9-11-11.1 (c) includes statements made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law. “Such protected statements even include those that initiate a proceeding to address matters of public concern. [Cit.]” Harkins v. Atlanta Humane Society, 264 Ga. App. 356, 361 (2) (590 SE2d 737) (2003), reversed in part on other grounds, 278 Ga. supra at 456 (2). See also Hawks v. Hinely, 252 Ga. App. 510, 513 (1) (a) (556 SE2d 547) (2001) (statements made in application before beginning of recall proceeding included in scope of anti-SLAPP statute).

In this case, Masino’s alleged statements to the city manager, concerning a zoning matter that had already been communicated to the city and which allegedly initiated the city’s adoption of a moratorium and special permit requirement, constituted statements made in connection with an issue of public interest or concern. See Metzler v. Rowell, 248 Ga. App. 596, 599 (1) (547 SE2d 311) (2001) (antiSLAPP statute applied to letter concerning development and zoning issue); Providence Constr. Co. v. Bauer, 229 Ga. App. 679, 680 (1) (494 SE2d 527) (1997) (letters to county officials concerning development covered by anti-SLAPP). Compare Ga. Community Support &c. v. Berryhill, 275 Ga. App. 189, 192 (1) (620 SE2d 178) (2005) (antiSLAPP statute did not apply where there was no evidence that any official proceeding was ever involved, “either before or after [the defendant’s] statements”).

In addition, Settles Bridge has made no showing that Masino did not act in good faith. On the contrary, affidavits in the record show that Masino did not coerce or pressure the city to interfere with Notre Dame’s relocation to the property, and instead simply made good faith statements because he was familiar with the property Notre Dame sought to purchase and believed it was zoned for residential development. Accordingly, such good faith statements concerning a matter of public concern, which purportedly led to official zoning decisions, was “privileged as a matter of law, and [the] lawsuit initiated in response to the protected statements [was properly] dismissed.” (Citations omitted.) Harkins v. Atlanta Humane Society, 273 Ga. App. 489, 491 (618 SE2d 16) (2005).

4. Request to lift stay and extend discovery under OCGA § 9-11-11.1 (d).

Settles Bridge contends that the trial court erred in denying its request to lift the automatic stay on all discovery imposed by the anti-Slapp statute and to extend discovery for 60 days. The contention is without merit.

OCGA § 9-11-11.1 (d) provides:

All discovery and any pending hearings or motions in the action shall be stayed upon the filing of a motion to dismiss or a motion to strike made pursuant to subsection (b) of this Code section. The motion shall be heard not more than 30 days after service unless the emergency matters before the court require a later hearing. The court, on noticed motion and for good cause shown, may order that specified discovery or other hearings or motions be conducted notwithstanding this subsection.

The requirement that the motion to dismiss be heard within 30 days effectuates the anti-SLAPP statute’s purpose of providing “an early means of testing the bonafides of the plaintiff’s claim.” Atlanta Humane Society, supra, 278 Ga. at 452 (1). “The purpose of the anti-SLAPP statute is to quickly end oppressive and speech-chilling litigation against those who attempt to participate in discussions on matters of public importance.” Id. at 457 (Fletcher, C. J., concurring in part and dissenting in part). Although subsection (d) gives the trial court the discretion to order specified discovery for good cause shown, the sole possible reason for such limited discovery “is to obtain evidence for use in resolving a motion to dismiss pursuant to OCGA § 9-11-11.1 (b).” (Citation omitted.) Id. at 453 (1).

Decided November 16, 2012.

Bloom, Sugarman & Everett, Simon H. Bloom, Stephanie A. Everett, Ariel D. Zion, for appellant.

Hall, Booth, Smith & Slover, Jack G. Slover, Jr., Chad A. Wingate, Carlock, Copeland & Stair, Johannes S. Kingma, William P. Jones, Christopher J. Hoffman, for appellees.

Settles Bridge has not made a good cause showing that there was other evidence necessary for resolution of the motion to dismiss. It claims that the hearing should have been delayed to allow discovery of Masino’s motives for disclosing confidential information that derailed the development. However, it made no showing as to why it could not have already discovered such information and, as discussed above, the very premise of the claim is flawed since Masino did not disclose confidential information. “Atrial court has wide discretion to shorten, extend, or reopen the time for discovery, and its decision will not be reversed unless a clear abuse of that discretion is shown.” (Citations and punctuation omitted.) Zywiciel v. Historic Westside Village Partners, 313 Ga.App. 397, 403 (6) (721 SE2d 617) (2011). Here, the trial court did not abuse its discretion in refusing the request to lift the stay and extend discovery.

Judgment affirmed.

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