author: Reese, Judge.

text:
    A17A0364.
    THE STATE v. McPHERSON.
    (800 SE2d 389)
   Reese, Judge.

In this child molestation case, the State appeals from an order excluding similar transaction evidence of prior acts of child molestation allegedly committed by the defendant, Dr. Kenneth McPherson. For the reasons set forth infra, we reverse.

The record shows the following facts. After law enforcement officers received complaints that McPherson, a child psychologist, had molested some of his young patients, McPherson was arrested and indicted on seven counts of child molestation, OCGA § 16-6-4 (a) (1), and one count of sexual exploitation of a minor, OCGA § 16-12-100 (b) (8). Specifically, McPherson was charged with molesting four boys and one girl by, inter alia, showing them his penis, by touching the boys’ penises, by having the female child take off all of her clothes except her underwear, and/or by showing them photographs of children and adults in various stages of undress. McPherson was also charged with possessing a photograph that depicted one of the boys engaging in sexually explicit conduct in the form of a “lewd exhibition” of his genitals.

The State filed a notice of intent to introduce evidence of acts of child molestation McPherson allegedly committed between 1979 and 1981, involving a boy under the age of 12. According to the State, the evidence was relevant and admissible because it was

“[e]vidence of other crimes, wrongs, or acts” within the meaning of O.C.G.A. § 24-4-404(b), and generally fit[ ] within the definition of “the accused’s commission of another offense of child molestation” within the meaning of O.C.G.A. § 24-4-414(a), and [was] relevant to prove [McPherson’s] “intent . . . plan, knowledge, motive . . . [and] absence of mistake or accident” as permittedbyO.C.G.A. § 24-4-404(b).

McPherson filed a motion to exclude the evidence, arguing that the alleged similar transaction was too remote in time and that the State’s notice of intent was not timely filed.

During a hearing on the motion, the prosecutor told the court that, at some point after the media publicized the case against McPherson, a man called the district attorney’s office and reported that he had been molested by McPherson several years earlier, when he was in elementary school. According to the prosecutor who was later assigned to the case, she first learned about the man’s phone call while going through a box containing a “voluminous” amount of evidence on February 26, 2016, a few days before trial was scheduled to begin on March 7, 2016. She filed a notice of intent to present the similar transaction evidence, and then interviewed the man in person in order to get more information. During the interview, the man stated that the acts were committed between 1979 and 1981, and that his family knew McPherson, who was between 22 and 24 years old at that time, through the family’s church. McPherson often brought the boy and his brother gifts, took them to football games, and had them stay overnight with him. During these visits, McPherson let the boys know that he had an erection, joking about it and exposing his penis to them. According to the man, McPherson also made him expose his penis and climbed into bed with him, rubbing his erection against the boy’s back.

The prosecutor argued that the similar transactions were similar to the crimes at issue because McPherson was supervising the children at the time the conduct took place, he offered the children gifts to gain their affection and to “groom” them, and his conduct toward the boys was almost exactly like his conduct toward the children in the instant case. She argued, therefore, that evidence of McPherson’s prior conduct demonstrated his sexual or lustful disposition toward children in that age range and, as a result, was admissible.

Following the hearing, the trial court granted the motion to exclude but did not provide a reason for its decision or the basis for its finding that the evidence was inadmissible in this case. This appeal followed.

The Georgia General Assembly adopted a new Evidence Code in 2011, and the new Code applies in this case. As part of the Code’s revision, the General Assembly enacted a new statute, OCGA § 24-4-414 (a), which provides that, “[i]n a criminal proceeding in which the accused is accused of an offense of child molestation, evidence of the accused’s commission of another offense of child molestation shall be admissible and may be considered for its bearing on any matter to which it is relevant.” Given the express direction that evidence of prior sexual offenses committed by the defendant “shall be admissible,” OCGA § 24-4-414 (a) and two related statutes, OCGA §§ 24-4-413 (a) and 24-4-415 (a), have been construed as creating “a rule of inclusion, with a strong presumption in favor of admissibility.” Further, evidence admitted under these statutes is not subject to the limitations of OCGA § 24-4-404 (b), but, instead, “may be considered for its bearing on any matter to which it is relevant,” including whether the evidence demonstrates that the defendant had a propensity to commit certain sexual offenses. As this Court has held, under OCGA § 24-4-414 (a),

showing a disposition toward molestation is a relevant purpose and not unfairly prejudicial in light of the nature of that conduct[. Thus, evidence] that a defendant engaged in child molestation in the past is admissible to prove that the defendant has a disposition of character that makes it more likely that he did commit the act of child molestation charged in the instant case.

Even so, evidence that is admissible under these statutes may be excluded if the trial court concludes that “its probative value is substantially outweighedby the danger of unfair prejudice, confusion of the issues, or misleading the jury[.]” The determination as to whether to exclude evidence for any of these reasons “calls for a common sense assessment of all the circumstances surrounding the [previous] offense, including prosecutorial need, overall similarity between the [previous] act and the charged offense, as well as temporal remoteness.” Indeed, exclusion of otherwise probative and relevant evidence under OCGA § 24-4-403 “is an extraordinary remedy which should be used only sparingly.” Ultimately, a trial court’s decision on whether to admit evidence under one of these statutes “will be overturned only where there is a clear abuse of discretion.” With these guiding principles in mind, we turn now to the specific claims of error on appeal.

1. The State contends that the trial court abused its discretion in excluding the evidence of prior acts of child molestation allegedly committed by McPherson, arguing that OCGA § 24-4-414 (a) specifically states that such evidence “shall be admissible.” The State also argues that the evidence is necessary to demonstrate McPherson’s intent, i.e., that he committed the acts “with the intent to arouse or satisfy the sexual desires of either the child[ren] or [himself].” According to the State, it expects McPherson to claim at trial that the conduct for which he was charged was part of his treatment of the children and occurred during “benign” therapy sessions. In addition, the State argues that the similar transaction evidence is necessary to show that McPherson committed similar acts with a young child long before he became a child psychologist and while he and the child were in a social, not therapeutic, setting.

Pretermitting whether the State raised these specific arguments about McPherson’s anticipated defenses in the trial court, we find no basis in the record to support the “extraordinary remedy” of excluding this evidence as unduly prejudicial under OCGA § 24-4-403, particularly given the strong statutory presumption of admissibility and in light of the close similarities between the crimes at issue. There has been no showing that the evidence would confuse the issues, mislead the jury, waste time, or be cumulative of other evidence, or that the probative value of the evidence would otherwise be “substantially outweighed” by its prejudicial impact. As noted above, the prejudicial impact of evidence of similar transactions in child molestation cases is generally considered to be outweighed by its probative value in demonstrating an accused’s disposition toward committing a molestation. In fact, when the defendant’s intent in committing certain acts is a strongly contested issue at trial, as is the case here, evidence that he committed prior similar acts tends to demonstrate his intent and, thus, has more probative value, which further justifies its admission.

Further, the fact that the prior acts were committed about 35 years earlier does not automatically require their exclusion.

Exclusion of proof of other acts that are too remote in time caters principally to the dual concerns for relevance and reliability. The evaluation of the proffered evidence in light of these concerns must be made on a case-by-case basis to determine whether the significance of the prior acts has become too attenuated and whether the memories of the witnesses has likely become too frail. Neither [Federal Rule of Evidence] 403 nor any analogous Rule provides any bright-line rule as to how old is too old.

In this case, there has been no showing that the potential witness’ memory about the alleged incidents is either impaired or patently unreliable. Moreover, this Court has recently found no abuse of discretion in the admission of similar transactions that occurred about 44 years before the crimes charged. In fact, even before the General Assembly adopted the more liberal “rule of inclusion” for evidence of prior acts of child molestation, Georgia’s appellate courts concluded that, despite substantial lapses of time since they occurred, such acts were admissible as similar transactions under a more stringent three-part test.

Decided May 9, 2017

Reconsideration denied June 21, 2017

Consequently, under the circumstances presented in this case, we conclude that the prior acts of child molestation are admissible under OCGA § 24-4-414 (a). The exclusion of the prior acts evidence by the trial court was an abuse of its discretion.

2. To the extent McPherson contends that the prior acts evidence was inadmissible because the State’s proffer of the evidence below was too vague or otherwise insufficient, the record shows that he failed to raise this issue in the trial court. Consequently, it is deemed waived.

Judgment reversed.

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

Ashley Wright, District Attorney, Joshua B. Smith, Assistant District Attorney, for appellant.

Miller & Key, J. Scott Key; Peters, Rubin & Sheffield, Jason B. Sheffield; K Emerson Gilliard, for appellee.

       See OCGA § 5-7-1 (a) (5) (authorizing the State to appeal from an order excluding evidence).

       See Ga. L. 2011, pp. 99, 100, § 1. The provisions of the new Evidence Code became effective on January 1, 2013. See Ga. L. 2011, pp. 99, 214, § 101.

       See OCGA §§ 24-4-413 (a) (“In a criminal proceeding in which the accused is accused of an offense of sexual assault, evidence of the accused’s commission of another offense of sexual assault shall be admissible and may be considered for its bearing on any matter to which it is relevant.”) (emphasis supplied); 24-4-415 (a) (“In a civil or administrative proceeding in which a claim for damages or other relief is predicated on a party’s alleged commission of conduct constituting an offense of sexual assault or an offense of child molestation, evidence of that party’s commission of another offense of sexual assault or another offense of child molestation shall be admissible and may be considered as provided in Code Sections 24-4-413 and 24-4-414.”) (emphasis supplied).

        Steele v. State, 337 Ga.App. 562, 566 (3) (788 SE2d 145) (2016) (citations and punctuation omitted); see generally Ronald L. Carlson & Michael Scott Carlson, Carlson on Evidence, pp. 213-214 (5th ed. 2016).

       OCGA § 24-4-404 (b) provides that, while evidence of other crimes, wrongs, or acts committedby the defendant are not admissible to prove that he has a propensity to commit such offenses, such evidence may “be admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”

       See Eubanks v. State, 332 Ga. App. 568, 571 (2) (774 SE2d 146) (2015) (punctuation and footnote omitted); see also Arbegast v. State, 332 Ga. App. 414, 417 (2) (a), n. 1 (773 SE2d 283) (2015) (“[I]n general, the new Evidence Code eliminates bent of mind and course of conduct as permissible purposes for the admission of similar transaction evidence. But in criminal proceedings in which the defendant is accused of a sexual assault or child molestation, the new Code includes provisions for the admission of certain prior sexual assaults or child-molestation offenses for bearing on any matters to which they are relevant.”) (citations and punctuation omitted); see generally Ronald L. Carlson & Michael Scott Carlson, Carlson on Evidence, p. 214 (5th ed. 2016).

        Eubanks, 332 Ga. App. at 571 (2) (punctuation and footnote omitted).

       OCGA § 24-4-403; see Chase v. State, 337 Ga.App. 449, 455 (3) (a) (787 SE2d 802) (2016) (“[I]t is only unfair prejudice, substantially outweighing probative value, which permits exclusion of relevant matter.”) (punctuation and footnote omitted; emphasis in original); see also United States v. McGarity, 669 F3d 1218, 1244 (V) (B), n. 32 (11th Cir. 2012) (evidence admitted under Federal Rule of Evidence 414 (a) must also satisfy Rule 403); Parker v. State, 296 Ga. 586, 592 (3) (a) (769 SE2d 329) (2015) (“Our new Evidence Code was based in large part on the Federal Rules of Evidence. And where the new Georgia rules mirror their federal counterparts, it is clear that the General Assembly intended for Georgia courts to look to the federal rules and how federal appellate courts have interpreted those rules for guidance.”) (citation omitted); Eubanks, 332 Ga. App. at 571 (2), n. 10 (OCGA § 24-4-414 (a) tracks the language of Federal Rule of Evidence 414 (a).); Williams v. State, 328 Ga.App. 876, 879 (1) (763 SE2d 261) (2014) (OCGA § 24-4-403 tracks the language of Federal Rule of Evidence 403); see generally Ronald L. Carlson & Michael Scott Carlson, Carlson on Evidence, pp. 216-217 (5th ed. 2016).

        Eubanks, 332 Ga. App. at 570 (1) (punctuation and footnote omitted). See Olds v. State, 299 Ga. 65, 76 (2) (786 SE2d 633) (2016) (The probative value of evidence depends, in part, upon the need for the evidence. “When the fact for which the evidence is offered is undisputed or not reasonably susceptible of dispute, the less the probative value of the evidence.” In contrast, “the more strongly an issue is contested, the greater the justification for admitting other act evidence bearing on the point.”) (citation, punctuation and footnote omitted).

        Olds, 299 Ga. at 70 (2) (citation, punctuation and footnote omitted). Accord United States v. Lopez, 649 F3d 1222, 1247 (VII) (11th Cir. 2011) (Federal Rule of Evidence 403 “is an extraordinary remedy which the [trial] court should invoke sparingly, and the balance should be struck in favor of admissibility. Rule 403 requires a court to look at the evidence in a light most favorable to its admission, maximizing its probative value and minimizing its undue prejudicial impact.”) (citations and punctuation omitted); see United States v. Meacham, 115 F3d 1488, 1492 (I) (B) (a) (10th Cir. 1997) (“To implement the legislative intent, the courts must liberally construe [Federal Rule of Evidence 414] to provide the basis for a fully informed decision of sexual assault and child molestation cases, including assessment of the defendant’s propensities and questions of probability in light of the defendant’s past conduct. [While] Rule 403 balancing is still applicable, . . . clearly under Rule 414 the courts are to liberally admit evidence of prior uncharged sex offenses.”) (citation and punctuation omitted); Williams, 328 Ga. App. at 879-880 (1) (“The primary function of [Federal Ruleof Evidence] 403 ... is to exclude evidence of scant or cumulative probative force, dragged in by the heels for the sake of its prejudicial effect.”) (punctuation and footnote omitted).

        Steele, 337 Ga. App. at 565-566 (3) (citation and punctuation omitted).

       See OCGA § 16-6-4 (a) (1).

       Notably, to the extent the State’s brief referred to testimony from the trial transcript of an unrelated case, referred to documents outside the record, or proffered a “hypothetical cross-examination” of the defendant, this Court has disregarded these passages in deciding this appeal. See Locke’s Graphic & Vinyl Signs v. Citicorp Vendor Finance, 285 Ga.App. 826 (1) (648 SE2d 156) (2007) (“Abrief cannot be used in lieu of the record or transcript for adding evidence to the record; we must take our evidence from the record and not from the brief of either party.”) (punctuation and footnote omitted).

       See Olds, 299 Ga. at 70 (2).

       See generally Steele, 337 Ga. App. at 567 (3).

       See OCGA § 24-4-403; Williams, 328 Ga. App. at 879 (1); see also United States v. St. Claire, 831 F3d 1039, 1042 (II) (A) (8th Cir. 2016) (The Court concluded that, with respect to whether the probative value of the similar transaction victim testimony was “substantially outweighed by the risk of unfair prejudice, [her] testimony [was] not unfairly prejudicial because it [was] so similar to the acts charged, it would not be so facially inflammatory as to unduly divert attention from the issues of the case.”) (citations and punctuation omitted).

        See Eubanks, 332 Ga.App. at 571 (2).

       See Olds, 299 Ga. at 76 (2); see also Bradshaw v. State, 296 Ga. 650, 656-657 (3) (769 SE2d 892) (2015) (“With regard to intent, a defendant who enters a not guilty plea makes intent a material issue which imposes a substantial burden on the government to prove intent, which it may prove by qualifying [prior acts] evidence absent affirmative steps by the defendant to remove intent as an issue. Where the extrinsic offense is offered to prove intent, its relevance is determined by comparing the defendant’s state of mind in perpetrating both the extrinsic and charged offenses.”) (citation and punctuation omitted).

       See Eubanks, 332 Ga. App. at 570 (1) (holding that the fact that a prior act of child molestation occurred in the past did not automatically require exclusion, given the similarity of the acts and the resulting probative value of the challenged evidence); see also United States v. Reynolds, 720 F3d 665, 671 (III) (A) (8th Cir. 2013) (“[W]hen Congress enacted [Federal Rule of Evidence] 414, it expressly rejected imposing any time limit on the admission of prior sex offense evidence[.]”); Meacham, 115 F3d at 1492 (I) (B) (a) (“No time limit is imposed on the uncharged offenses for which evidence may be admitted; as a practical matter, evidence of other sex offenses by the defendant is often probative and properly admitted, notwithstanding very substantial lapses of time in relation to the charged offense or offenses.”) (citations omitted).

        United States v. Larson, 112 F3d 600, 605 (II) (A) (2nd Cir. 1997). Accord Reynolds, 720 F3d at 671 (III) (A); Meacham, 115 F3d at 1492 (I) (B) (a).

        See Harris v. State, 340 Ga.App. 865, 868 (1) (b) (798 SE2d 498) (2017) (evidence of prior acts of child molestation were properly admitted even though they occurred 44 years earlier).

       See Steele, 337 Ga.App. at 566 (3); Ronald L. Carlson & Michael Scott Carlson, Carlson on Evidence, p. 213 (5th ed. 2016) (Before the adoption of the new Evidence Code, Georgia law had no presumption in favor of the admission of prior sexual acts. As a result, the adoption of the new Code “will likely allow for the admission of a greater volume of this evidence at trial.”).

       See Pareja v. State, 286 Ga. 117, 119, 121 (686 SE2d 232) (2009) (The Supreme Court found that an act of child molestation that occurred 26 years earlier was admissible after applying the following three-part test: The State had to have affirmatively shown that “(1) [it] seeks to admit evidence of the independent offenses or acts for an appropriate purpose [(i.e., identity, motive, plan, scheme, bent of mind and course of conduct)]; (2) there is sufficient evidence that the accused committed the independent offenses or acts; and (3) there is sufficient connection or similarity between the independent offenses or acts and the crimes charged so that proof of the former tends to prove the latter.”) (citation and punctuation omitted); see also, e.g., Dean v. State, 321 Ga. App. 731, 734 (1) (b) (742 SE2d 758) (2013) (similar transaction evidence of acts of child molestation was properly admitted even though they occurred in 1984); Pendley v. State, 308 Ga. App. 821, 824-825 (2) (709 SE2d 18) (2011) (similar transaction evidence of an act of child molestation was properly admitted even though it occurred about 30 years earlier); Cannon v. State, 296 Ga. App. 687, 688 (2) (675 SE2d 560) (2009) (similar transaction evidence that the defendant “previously engaged in a similar pattern of ‘grooming’ a nine-year-old boy by giving him expensive presents and money, watching pornography, photographing him in the nude, and eventually molesting him” was admissible at trial, even though the acts occurred 15 years earlier); Williams v. State, 284 Ga.App. 255, 257-258 (2) (643 SE2d 749) (2007) (similar transaction evidence of acts of child molestation were properly admitted even though they occurred about 26 years earlier); Parker v. State, 283 Ga. App. 714, 721 (3) (642 SE2d 111) (2007) (similar transaction evidence of an act of child molestation was properly admitted even though it occurred 15 years earlier).

       See Locke’s Graphic & Vinyl Signs, 285 Ga.App. at 828 (2) (a) (“An argument not raised in the trial court is waived and cannot be raised for the first time on appeal.”).


source: Caselaw Access Project

license: Public Domain

text:
    A17A0184.
    RABUN v. RABUN.
    (802 SE2d 296)
   Reese, Judge.

Mildred Rabun (hereinafter “the widow”) appeals from an order of summary judgment in favor of her stepson, Timothy Rabun (“the executor”), in the widow’s action to impose a constructive trust on assets transferred to the executor from Elwood Rabun, Sr. (“the decedent”) during the decedent’s lifetime. The widow also seeks review of that portion of the trial court’s order that awarded certain properties in her possession to the executor. For the reasons set forth infra, we affirm the grant of summary judgment as to the trial court’s refusal to impose a constructive trust, but reverse that portion of the order directing the return of certain personal property to the executor.

Viewing the evidence in the light most favorable to the widow, as the nonmoving party, the evidence shows that the decedent, the widow’s husband of 17 years, died testate on April 20, 2014, after a battle with lung cancer that had lasted several years. The will which the decedent had executed in November 2012 granted a life estate in the marital residence to the widow, with the remainder to go to the executor, and devised adjacent property to the executor’s siblings. The will left the remainder of the decedent’s estate to the executor.

Prior to the filing of the widow’s complaint in the superior court, a probate court had awarded the widow as year’s support “all of the decedent’s interest in the household furniture and furnishings, appliances, and all other personal property located at the marital residence.” The probate court found that the widow was in poor health and was being cared for by her daughter (the decedent’s stepdaughter) at the daughter’s home and that, at the time the will was probated, it was questionable whether the widow would be able to return to the marital residence in which she had been devised a life estate.

The decedent and the widow had maintained a joint checking account in which the executor claimed no interest; the account balance was approximately $41,000 at the time of the decedent’s death. In addition, the decedent’s estate included three accounts with SunTrust Bank: (1) a joint checking account in the names of the decedent, the executor, and the widow (the “three-party account”); (2) a money market account in the names of the decedent and the executor (the “two-party account”); and (3) an individual money market account with a provision that the proceeds were payable on death to the executor (the “individual account”).

The estate also included a life insurance annuity worth approximately $88,000, a $5,000 life insurance policy, and a life insurance annuity worth approximately $50,000. Each of these designated the executor as the sole beneficiary.

In her complaint, the widow alleged that, after she and the decedent both became ill, the decedent rewrote his will and transferred substantial assets to the executor with the intent that the executor would provide and care for the widow after the decedent’s death. The widow contended that, as a result, the executor held more than $200,000 in cash and various accounts in a constructive trust for the benefit and use of the widow.

The executor moved for summary judgment, arguing that he was the sole owner of the financial assets and that the insurance policies, annuity contracts, and bank deposit documents created no legal obligation for him to care for the widow as a matter of law. The executor also sought the return of various estate items in the widow’s possession that the executor contended had neither been devised to the widow nor included in the year’s support.

The superior court granted summary judgment to the executor, finding that there had been no constructive trust imposed on any of the SunTrust accounts or life insurance policies and annuities. The court also directed the widow to return certain estate items, as requested in the executor’s summary judgment motion.

A party is entitled to summary judgment if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. On appeal from the grant of summary judgment, [the reviewing court] construe [s] the evidence most favorably toward the nonmoving party, who is given the benefit of all reasonable doubts and possible inferences.

We will affirm the grant of summary judgment if it is right for any reason. With these guiding principles in mind, we turn now to the widow’s specific claims of error.

1. The widow argues that the trial court erred in granting summary judgment in favor of the executor because factual disputes remained as to the existence of a constructive trust.

“A constructive trust is a trust implied whenever the circumstances are such that the person holding legal title to property, either from fraud or otherwise, cannot enjoy the beneficial interest in the property without violating some established principle of equity.”

The record on appeal includes the deposition of the widow’s daughter, Janet Bennier. Bennier testified that, in 2010, after the widow suffered a second stroke and was in failing health, the decedent came to visit Bennier in West Virginia, where she was then living. According to Bennier, the decedent told her that the executor would take care of the widow because the executor lived closer to the widow than did Bennier or her children. The decedent added that he had taken “care of everything” and that the decedent’s money “would be in [the executor’s] name ... where he would have the funds to take care of [the widow].”

The two revisited the conversation after the decedent discovered his cancer had returned. “[W]e were talking about it because I was taking him for his last... radiation treatments and all, and... I said, [‘]Papa, are you sure about [the executor]?[’] He said [‘]yes, sister. Don’t worry.. . . [T]he money is there. . . . There’s more than enough money to take care of her in her lifetime. [’] The decedent told Bennier that he and the widow had talked to the executor and “explained everything” and that the executor had “assured” the decedent that he was going to take care of the widow.

The record also contains the deposition of Ernest Martin, a longtime, close friend of the decedent. Shortly after the decedent found out he had cancer, Martin asked him if he had his “affairs straight.” The decedent responded that he had a will and that the Appellee was the executor. The decedent added that he and the executor had a long conversation in which “[the executor had] assured [him] that [the widow] would be taken care of.” Although the decedent did not go into specifics, he said the widow would stay in the house and that there was enough money to take care of her.

The executor argues on appeal that the decedent’s statements to Bennier and Martin constituted inadmissible hearsay that lacked any probative value. In her reply brief, the widow contends that the testimony fell within the hearsay exception of OCGA § 24-8-807, because the decedent was unavailable as a witness and the close relationships between the decedent and the witnesses demonstrated sufficient guarantees of trustworthiness to warrant admission of the statements. Although not specifically noted in the summary judgment order, the trial court’s finding that no genuine issue of material fact existed implies that the court did not consider this hearsay testimony in reaching the judgment. We find that the trial court did not abuse its discretion in not considering this hearsay evidence.

OCGA § 24-8-804 (b) provides certain exceptions to the hearsay rule if the declarant is unavailable as a witness. “ ‘[U]navailable as a witness’ includes situations in which the declarant. . . [i]s unable to be present or to testify at the hearing because of deathf.]” The widow does not argue that any of the specific exceptions of OCGA § 24-8-804 (b) apply, but contends that the hearsay evidence was admissible under the “residual” exception. The “residual” hearsay exception of the new Evidence Code, OCGA § 24-8-807, provides in part:

A statement not specifically covered by any law but having equivalent circumstantial guarantees of trustworthiness shall not be excluded by the hearsay rule, if the court determines that:
(1) The statement is offered as evidence of a material fact;
(2) The statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and
(3) The general purposes of the rules of evidence and the interests of justice will best be served by admission of the statement into evidence.

Rule 807 was intended to be used only rarely, and was not intended to provide a broad license for trial judges to admit hearsay statements that do not fall within one of the other exceptions contained in Rules 803 and 804 (b). In order for hearsay evidence to be admitted under Rule 807, there must be “circumstances evidencing a clear basis of trustworthiness” to support the out-of-court statement. Otherwise, “exceptions to the rule against hearsay could swallow the rule.” “[T]he burden is on the party seeking to invoke the residual exception to clearly demonstrate the existence of the requisite guarantees of trustworthiness.”

Particularly in the absence of a hearing transcript, the widow has not shown that the trial court abused its discretion in refusing to admit the vague hearsay testimony of Bennier and Martin. It necessarily follows that, without the hearsay evidence detailed above, no genuine issue of material fact existed, and summary judgment was proper.

Decided June 21, 2017.

William R. McCracken, for appellant.

Capers, Dunbar, Sanders & Bellotti, Paul H. Dunbar III, E. Freddie Sanders, for appellee.

2. The widow argues that the trial court clearly erred in awarding certain estate items to the executor.

The widow admitted in her deposition that she had possession of various items of personal property that were sought by the executor. The record is unclear, however, as to whether these items had been taken from the marital residence and, thus, were included in the award of year’s support. Construing the evidence in the light most favorable to the widow, we find that a genuine issue of material fact existed as to whether these items were included in the year’s support awarded to the widow. Consequently, the trial court erred in granting summary judgment to the executor on that claim.

Judgment affirmed in part and reversed in part.

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

       The Supreme Court’s “equity jurisdiction is not invoked if the issue raised on appeal involves only whether the evidence is sufficient to authorize the imposition of an implied trust.” Robertson v. Robertson, 333 Ga. App. 864, 867, n. 4 (778 SE2d 6) (2015) (citation omitted).

       See Ansley v. Raczka-Long, 293 Ga. 138, 140 (2) (744 SE2d 55) (2013).

       The executor testified in his deposition that the decedent was his biological grandfather who had adopted him when he was four or five years old. References to the executor’s siblings are to the decedent’s children, i.e., the executor’s biological aunts and uncles.

       See OCGA § 53-3-1 et seq.

        Ansley, 293 Ga. at 140 (2) (citations omitted).

        Phinazee v. Interstate Nationalease, 237 Ga. App. 39, 40 (514 SE2d 843) (1999).

       OCGA § 53-12-132 (a). See also Aetna Life Ins. Co. v. Weekes, 241 Ga. 169, 172 (1) (244 SE2d 46) (1978) (applying former Ga. Code Ann. §§ 108-106, 108-107).

       The record on appeal does not contain a transcript of the summary judgment hearing. In her notice of appeal, the widow stated that the “ [t] ranscript of evidence and proceedings [would] not be filed for inclusion in the record on appeal [,] and the clerk of the trial court certified that the record forwarded to this Court was a complete copy of those portions of the record directed to be transmitted to this Court pursuant to the notice of appeal.

       See Maloof v. MARTA, 330 Ga. App. 763, 765 (1) (769 SE2d 174) (2015) (“This Court will not disturb a trial court’s ruling on whether to admit evidence as an exception to the hearsay rule absent an abuse of discretion.”) (citation omitted).

       See Yetman v. Walsh, 282 Ga. App. 499, 500 (1) (639 SE2d 491) (2006) (“The burden is upon the party assigning error to show it affirmatively by the record. Where no transcript is included in the record on appeal, we must assume that the evidence was sufficient to support the judgment.”) (citations and punctuation omitted).

       OCGA § 24-8-804 (a) (4).

       To the extent the widow argues that the statements were admissible under the “necessity” exception, she improperly relies on decisions that applied the former Evidence Code. “Under Georgia’s former Evidence Code, for a statement to be admissible under the necessity exception to the rule against hearsay, its proponent must show a necessity for the evidence, a circumstantial guaranty of the statement’s trustworthiness, and that the hearsay statements are more probative and revealing than other available evidence.” Hornbuckle v. State, 300 Ga. 750, 758 (6) (b) (797 SE2d 113) (2017) (citations and punctuation omitted). Because the hearing on the executor’s motion for summary judgment took place after January 1, 2013, however, the provisions of Georgia’s new Evidence Code apply. See Ga. L. 2011, pp. 99, 214, § 101.

       Because OCGA § 24-8-807 mirrors Federal Rule of Evidence 807, we will look to case law from federal courts within the Eleventh Circuit for guidance in interpreting that statute. See Maloof, 330 Ga. App. at 765 (1) (a), n. 3 (regarding Rule 803); see also Federal Rule of Evidence 807 (a) (“Under the following circumstances, a hearsay statement is not excluded by the rule against hearsay even if the statement is not specifically covered by a hearsay exception in Rule 803 or 804: (1) the statement has equivalent circumstantial guarantees of trustworthiness; (2) it is offered as evidence of a material fact; (3) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts; and (4) admitting it will best serve the purposes of these rules and the interests of justice.”).

       See United States v. Mathis, 559 F2d 294, 299 (5th Cir. 1977) (quoting the legislative history to former Federal Rule of Evidence 803 (24), which was transferred to Rule 807); see also Bonner v. City of Prichard, Alabama, 661 F2d 1206, 1207 (11th Cir. 1981) (adopting as binding precedent all decisions of the former Fifth Circuit handed down on or before September 30, 1981).

         Nat. Labor Relations Bd. v. United Sanitation Svc., 737 F2d 936, 941 (11th Cir. 1984) (citation and punctuation omitted) (applying former Federal Rule of Evidence 804 (b) (5)).

       Id. (citation and punctuation omitted).

       Id. (citation omitted).

       See Herzog v. Castle Rock Entertainment, 193 F3d 1241, 1254-1255 (B) (1) (11th Cir. 1999) (affirming decision to exclude hearsay testimony under Federal Rule of Evidence 807 because there was no way “to verify the accuracy of the testimony or of the out-of-court statements that the testimony report [ed], and the reliability of the testimony [could] not be taken for granted”) (citation omitted).

       See Urban v. Lemley, 232 Ga. App. 259, 260-261 (1) (501 SE2d 529) (1998).


author: McFADDEN, Presiding Judge.

text:
    A17A0327.
    THOMPSON v. THE STATE.
    (802 SE2d 713)
   McFADDEN, Presiding Judge.

After a jury trial, Cedric Thompson was convicted of three counts of aggravated battery and one count of possession of a firearm during the commission of a felony. Thompson challenges the sufficiency of the evidence, but there was enough evidence to authorize the jury to find guilt beyond a reasonable doubt. He complains of the omission of certain language from a jury instruction that the testimony of a single witness is sufficient to establish a fact, but that instruction was not objected to and did not constitute plain error. And he challenges the effectiveness of his trial counsel, but trial counsel’s performance was not both deficient and prejudicial. So we affirm.

1. Sufficiency of the evidence.

Thompson contends that there was insufficient evidence to support his convictions. The contention is without merit.

The applicable standard of review directs that

[w]hen reviewing a defendant’s challenge to the sufficiency of the evidence, 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 defendant guilty of the charged offense beyond a reasonable doubt.

Kilby v. State, 289 Ga. App. 457 (1) (657 SE2d 567) (2008) (citations omitted).

So viewed, the evidence showed that on October 8, 2011, Thompson was outside at an apartment complex in Atlanta, yelling that anyone selling drugs in the neighborhood would have to give him a 10 percent commission. Darrice Smith, who was standing with a group of men, laughed as Thompson yelled. Thompson then went into his apartment and returned with a handgun. Thompson began shooting the gun, hitting Smith in the leg with a bullet. As Thompson continued firing, his gunshots hit two other victims — Sandra Howell was shot in the arm as she ran back to an apartment and 14-year-old T. D. was shot in the foot as she ran down steps. The evidence was sufficient to authorize a rational trier of fact to find Thompson guilty beyond a reasonable doubt of the charged offenses of aggravated battery (OCGA § 16-5-24) and possession of a firearm during the commission of a felony (OCGA § 16-11-106). See Fulton v. State, 278 Ga. 58, 59 (1) (597 SE2d 396) (2004).

2. Jury instruction on testimony of a single witness.

Thompson asserts that the trial court erred in instructing the jury that the “[tjestimony of a single witness is sufficient to establish a fact.” He argues that the instruction should have included the following emphasized language, as set forth in the suggested pattern jury instructions: the “testimony of a single witness, if believed, is sufficient to establish a fact.” Georgia Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, § 1.31.90 (emphasis supplied). As Thompson concedes in his brief, no objection to the instruction was raised at trial, and therefore we review it for plain error under OCGA § 17-8-58 (b).

[T]he test for determining whether there is plain error in jury instructions under OCGA § 17-8-58 (b) [is] as follows. First, there must be an error or defect — some sort of deviation from a legal rule — that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error — discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.

Cheddersingh v. State, 290 Ga. 680, 683 (2) (724 SE2d 366) (2012) (citation omitted). “Thus, beyond showing a clear or obvious error, plain-error analysis requires the appellant to make an affirmative showing that the error probably did affect the outcome below.” Gates v. State, 298 Ga. 324, 327 (3) (781 SE2d 772) (2016) (citation and punctuation omitted).

In this case, even if we assume, without deciding, that the jury instruction was erroneous, Thompson has not shown that such error probably affected the outcome below. “[A]n erroneous jury instruction cannot be considered in isolation, but must be considered in the context of the entire jury charge on the record asa whole to determine whether there is a reasonable likelihood that the jury improperly applied the challenged instruction.” Davis v. State, 329 Ga. App. 797, 801 (2) (764 SE2d 588) (2014) (citation omitted). Here, after the trial court gave the single witness jury charge, it fully charged the jury on the credibility of witnesses. Amongst other things, the court instructed the jurors that they must determine the credibility of the witnesses and that they must decide which witnesses and which testimony to believe or not believe. The court further charged the jury on the various factors to consider in deciding witness credibility.

Given the jury instructions as a whole, there is no reasonable likelihood that the jury improperly applied the challenged instruction as not requiring them to determine the believability of any single witness. Rather, it is apparent that the jury was fully informed that they were required to determine the credibility of all of the witnesses and the believability of their testimony. Because Thompson has failed to make an affirmative showing that the jury instruction probably affected the outcome below, the instruction did not constitute plain error.

3. Ineffective assistance of counsel.

Thompson claims that his trial counsel was ineffective in failing to object to the single-witness jury instruction discussed above, in failing to object to testimony about a transcript of recorded telephone conversations, and in withdrawing a hearsay objection to certain testimony “To prevail on these claims, [Thompson] must show both that his counsel’s performance was deficient and that the deficient performance so prejudiced him that, but for the deficiency, there is a reasonable probability that the outcome of the trial would have been different.” Daniel v. State, 338 Ga. App. 389, 392 (3) (787 SE2d 281) (2016) (citations omitted). “Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim.” Cushenberry v. State, 300 Ga. 190, 197 (3) (794 SE2d 165) (2016) (citations and punctuation omitted). Thompson has failed to show both deficient performance and prejudice.

(a) Failure to object to jury instruction.

Thompson claims that his trial counsel was ineffective in failing to object to the jury instruction on the testimony of a single witness being sufficient to establish a fact because it omitted the “if believed” language of the pattern jury instruction as discussed above in Division 2. In the case of Wilhite v. State, 337 Ga. App. 324 (787 SE2d293) (2016), this same claim of ineffective assistance was rejected on the ground that the appellant had “failed to show the requisite prejudice in light of the trial court’s full charge to the jury, which included an instruction that the jury must determine witness credibility and decide which witnesses to believe or not to believe.” Id. at 327 (1) (c). Likewise, in the instant case, Thompson has failed to show that he was prejudiced by the lack of an objection to the single witness jury instruction in light of the trial court having fully charged the jury on its duties to determine witness credibility and to decide which witnesses to believe or not believe.

(b) Failure to object to testimony about transcript.

At trial, a deputy sheriff identified Thompson’s voice on recorded jail telephone conversations. Portions of the recorded calls, totaling approximately three minutes, were then played for the jury Thereafter, the state showed a transcript of the recording to the deputy and asked him questions about its contents. Thompson now asserts that his trial counsel was ineffective in failing to object to the deputy’s testimony about the transcript, arguing that the transcript, unlike the recording, was not evidence and that the deputy’s testimony improperly gave credibility to the transcript.

Thompson, however, has not identified any specific part of the transcript that differed from the recording played for the jury, has not pointed to any testimony by the deputy that misconstrued the contents of the transcript or the recording, and has not shown how he was harmed by the testimony. Thus, even if we assume that counsel was deficient in failing to object to the deputy’s testimony about the transcript, Thompson has not shown that, but for the lack of such an objection, there is a reasonable probability the outcome of the trial would have been different. See Stokes v. State, 281 Ga. 825, 834 (8) (e) (642 SE2d 82) (2007) (no ineffective assistance where appellant did not demonstrate how alleged failures of counsel resulted in prejudice to his defense).

(c) Withdrawal of hearsay objection.

Thompson contends that his trial counsel was ineffective in withdrawing a hearsay objection to a detective’s testimony that the mother of one of the shooting victims had said that she knows Thompson from the apartment complex. At the motion for new trial hearing, Thompson’s counsel testified that sometimes a decision to allow hearsay can be strategic. When Thompson further questioned trial counsel about withdrawing a hearsay objection, counsel responded that “trials are very fluid,” that “there are so many things going on at trials [that] strategies change depending on how testimony comes out from various witnesses,” that she had no rule to stay with an objection “because there could have been something else going on in the trial,” and that she could not “answer the question with a hard [and] fast rule because things change all the time during trial.” Thompson elicited no other testimony from trial counsel explaining any further motive behind her decision to withdraw the hearsay objection.

As a general rule, matters of reasonable trial strategy and tactics do not amount to ineffective assistance of counsel, and an attorney’s decision to forego objecting to hearsay may constitute reasonable trial strategy Williams v. State, 282 Ga. 561, 564 (5) (a) (651 SE2d 674) (2007). “In the absence of testimony to the contrary, counsel’s actions are presumed strategic.” Patel v. State, 279 Ga. 750, 754 (c) (620 SE2d 343) (2005) (citation and punctuation omitted). Here, because Thompson failed to elicit any such testimony to the contrary, trial counsel’s decision to forego the hearsay objection “is presumed strategic and will not support a claim of ineffective assistance.” Traylor v. State, 332 Ga. App. 441, 448 (3) (b) (773 SE2d 403) (2015) (citations omitted). See also Futch v. State, 286 Ga. 378, 383 (2) (c) (687 SE2d 805) (2010).

Judgment affirmed.

Branch and Bethel, JJ., concur.

Decided June 21, 2017.

Debra Kay Jefferson, for appellant.

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


text:
    A17A0527.
    JONES v. THE MEDICAL CENTER OF CENTRAL GEORGIA, INC.
    (802 SE2d 286)
   McFADDEN, Presiding Judge.

John Jones was injured while he was a passenger in an elevator at the Medical Center of Central Georgia. Jones sued The Medical Center of Central Georgia, Inc., and its elevator maintenance contractor, ThyssenKrupp Elevator Corporation, for his injuries. The trial court granted the Medical Center’s motion for summary judgment, and Jones filed this appeal.

Jones argues that the trial court erred by granting summary judgment because the material facts are disputed. But Jones has not shown that the Medical Center had superior knowledge of any defect. Jones argues that the Medical Center is vicariously liable for any negligence on the part of ThyssenKrupp, but he has not pointed to evidence of any such negligence. Finally, Jones argues that the trial court should have applied the rebuttable presumption of a defect that arises for violations of OCGA § 8-2-106, which requires reports of elevator accidents, but he has not shown trial court error. So we affirm.

1. Facts.

A trial court properly grants summary judgment when

there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. We review a grant of summary judgment de novo, and we view the evidence and all reasonable inferences drawn from it in the light most favorable to the nonmovant. A defendant seeking summary judgment need only show an absence of evidence to support an essential element of the plaintiff’s case to prevail.

Brady v. Elevator Specialists, 287 Ga. App. 304 (653 SE2d 59) (2007) (citations and punctuation omitted).

So viewed, the evidence shows that Jones went to the Medical Center to pick up his wife and his daughter, who had had surgery the day before. His daughter was in a room on the seventh floor. Jones entered the Medical Center and walked to the main bank of elevators. He and another man entered elevator three. Jones pushed the button for the seventh floor, and the other man pushed the button for the eighth floor. The elevator rose to the third or fourth floor then fell downward, crashing into something solid. Jones was able to grab a handrail, which kept him from falling to the floor of the elevator.

The other passenger tried to open the door and then pressed the emergency button. The person who came to their assistance told them from outside the elevator that the car was one-and-a-half feet below floor level and that he needed to get someone to help him move it. About 20 minutes later, Jones felt more jolting. People outside the elevator said they could not open the doors and they needed to get more help. Five minutes later, the doors opened; the elevator was on the ninth floor and the car was level with the floor. Jones injured his feet, legs, knees, and neck in the incident.

Mark Singletary, the assistant director of facilities management at the Medical Center, called and e-mailed the state Office of Insurance and Safety Fire Commissioner to report the incident. On July 31, 2013, technicians with ThyssenKrupp, the Medical Center’s elevator maintenance contractor, met the state inspectors at the Medical Center to investigate the cause of the incident. The state inspectors and ThyssenKrupp technicians tried to recreate the incident conditions for three-and-a-half hours on July 31. The elevator ran normally the entire time. Because they were unable to find anything wrong with the elevator and could not recreate the conditions of malfunction, the inspectors concluded that the cause of the incident was unknown. After the inspection on July 31, 2013, the state inspectors returned the elevator to service.

The Medical Center, which owns the elevator, purchased the highest level of service plan available from ThyssenKrupp. According to the maintenance agreement, ThyssenKrupp’s maintenance program “meets or exceeds any and all requirements of ASME A 17.1-2007 Code, Section 8.6” and its testing program complies with the testing requirements of the American National Safety Code for Elevators and Escalators, ANSI A 17.1, or the governing authority’s requirements, if different,.

In accordance with the maintenance agreement, ThyssenKrupp performed five-year, annual, and monthly safety tests and regular preventative maintenance on the Medical Center’s elevators, including examination, lubrication, and adjustment of the car and hoistway door operating devices and door protection equipment. A Thyssen-Krupp mechanic is physically present at the hospital 40 hours per week.

The Medical Center performs its own monthly inspections of its elevators. These inspections involve an experienced mechanic riding every elevator at the Medical Center and stopping at every floor to check for “rough rides and/or uneven stops,” among other things.

One week prior to Jones’s incident, on July 18, 2013, Thyssen-Krupp performed a five-year safety test on elevator three. The five-year test takes one to two days per car. It involves testing multiple functions, including the power door system. Elevator three passed the test.

Two days later, on July 20, 2013, five days before the incident at issue, the Medical Center’s mechanic inspected elevator three again. The inspection included the mechanic riding the car to every floor and checking for rough rides and uneven stops. He identified no problem with elevator three.

Singletary testified that he has personal knowledge of the day-to-day maintenance of the hospital; that all elevator incidents are reported to him; and that because no problem had been reported between the July 20 inspection and the July 25 incident, he was unaware of any defective condition. Jones does not dispute that there were no complaints or service calls made about elevator three between July 20, 2013, the date of the Medical Center’s mechanic’s inspection, and July 25, 2013, the date of the incident. He points to no evidence of any complaints or service calls between July 18, the date of the five-year safety test, and July 20, the date of the Medical Center inspection.

In opposition to the Medical Center’s motion for summary judgment, Jones presented the affidavit of John W. Koshak, an expert in elevator safety. Koshak reviewed ThyssenKrupp’s account history report, which showed that ThyssenKrupp employees responded to calls about the elevator five or six times during the several months preceding Jones’s incident. Specifically, Koshak noted that on March 11, 2013, two ThyssenKrupp employees responded to a call that the elevator doors were slamming. The report listed as the resolution of the problem “door clutch” and “safety edge.” On April 24, 2013, a ThyssenKrupp employee responded to a call that elevator three was stuck on the third floor. The report listed as the resolution “adjusted door operator.” On May 28,2013, a ThyssenKrupp employee responded to a call that elevator three was jerking on the third and fourth floors. The report listed as the resolution, “[fjound no problems.” On June 26, 2013, a ThyssenKrupp employee responded to a call that the elevator was not responding. The report listed as the resolution “replaced 1st floor interlock contact.” On July 8, 2013, a Thyssen-Krupp employee responded to a call that elevator three was stuck on the sixth floor. The report listed as the resolution “adjusted 6th floor door interlock.”

Jones’s expert testified that these incidents demonstrate that elevator three had a history of issues involving a misalignment of the clutch, “a device used in elevator power door operation to engage the car door to the landing door by a grasping and holding movement.” www.mass.gov/anf/docs/dcam/mafma/tutorials/elevator-101.pdf, retrieved May 9, 2017. The expert testified that correct mounting of the clutch is necessary to prevent unwarranted emergency stops, the kind of incident Jones described. Specifically, the expert testified that after work was performed on the clutch on March 11,2013, there were repeated calls related to the interlock and the car door equipment, which led him to conclude that the clutch was misaligned. Instead of resolving the issue, according to the expert, the technicians replaced and adjusted the interlocks.

2. The grant of summary judgment.

Jones argues that in granting summary judgment, the trial court improperly weighed the evidence and ignored evidence of a defect. We disagree.

[A] building owner [ ] owes a duty of extraordinary diligence to elevator passengers and cannot delegate this duty to an independent contractor engaged to repair the elevator. . . . Neither building owners nor elevator maintenance providers, however, are insurers of elevator passengers’ safety . . . [and pjroof of the occurrence of a fall, even an elevator-related one, does not establish liability The true ground of liability is a defendant’s superior knowledge of the defective condition.

Brady, 287 Ga. App. at 307-308 (2) (citations and punctuation omitted; emphasis supplied). Here, the trial court ruled that the Medical Center was entitled to summary judgment because Jones failed to point to evidence that the Medical Center had any knowledge of a defective condition that may have led to the incident in which Jones was injured. The record supports the trial court’s order.

Jones points to the incidents referred to by his expert to show that the Medical Center had actual knowledge of the elevator’s defect. But all of the incidents occurred before the July 18 and July 20 inspections, in which ThyssenKrupp and the Medical Center mechanic found no problems at all. The Medical Center “had in place an extensive program of elevator inspection and repair, and elevator [three] had been inspected [twice within a week of Jones’s] injury, and it was found to be operating properly.” Brady, 287 Ga. App. at 308 (2). Although Jones presented evidence of certain occurrences with elevator three, because of the inspection and maintenance program, elevator three had also been inspected or maintained multiple times during that period, and Jones does

not show that the inspections or maintenance actually performed were negligent or that [the Medical Center] knew or [was] put on notice during these procedures that elevator [three] was defective. Thus, there is no basis for a jury to find that [the Medical Center] knew, or had reason to know, that elevator [three] was defective or presented a danger to passengers on

the date Jones was injured. Id. (citation omitted).

Jones argues that the hospital presented no evidence that it increased or altered its maintenance and inspection program in light of the elevator’s age. But as discussed in Division 3 below, he presented no evidence that the Medical Center’s maintenance and inspection program, which complied with relevant codes, was inadequate. Further, “[i]t is a matter of speculation whether [the Medical Center’s] alleged failure to perform additional maintenance in light of the age of elevator [three] had any connection to the” incident at issue. Brady, 287 Ga. App. at 309 (2).

3. Vicarious liability.

Jones argues that the trial court failed to recognize that the Medical Center is vicariously liable for ThyssenKrupp’s negligence. The trial court did not address the issue of vicarious liability. Instead, the court ruled that the Medical Center was entitled to summary judgment because there was no evidence that the hospital had any knowledge of any possible defect with elevator three on the date of the incident. And although Jones argues that the trial court ignored ThyssenKrupp’s knowledge in deciding whether the Medical Center had knowledge or breached any duty, he fails to point to evidence that ThyssenKrupp had such knowledge. In fact, he concedes that Thyssen-Krupp would have no knowledge of any elevator problems independent of the Medical Center’s knowledge.

Jones argues that the trial court erred because the Medical Center was vicariously liable for ThyssenKrupp’s negligent inspection and repair of the clutch problems. Jones’s expert testified that the defendants breached the standard of care

by following an inadequate maintenance and inspection program, by failing to adjust and/or modify the maintenance and inspection programs in consideration of the advanced age of the elevator in question and/or the occurrence of prior problems with Elevator Number 3, namely on the maladjustment of the clutch and not repairing same.

This testimony, however, was insufficient to create a question of fact regarding the adequacy of the maintenance and inspection program.

[T]he plaintiff cannot prevail on motion for summary judgment by merely presenting a conclusory opinion that defendant was negligent or failed to adhere to the . . . standard [of care]. [He] must state the particulars. [He] must establish the parameters of the acceptable . . . conduct and set forth how or in what way the defendant deviated therefrom.

Loving v. Nash, 182 Ga. App. 253, 255 (1) (355 SE2d 448) (1987) (citations and emphasis omitted).

Because Jones has not shown that ThyssenKrupp had independent knowledge of a defect or that the maintenance and inspection program was inadequate, this enumeration of error lacks merit.

4. Spoliation.

Jones argues that the trial court erred by finding that he was not entitled to the presumption of spoliation that arises from the hospital’s violation of OCGA § 8-2-106. In relevant part this Code section states that an “elevator... involved in an accident [involving personal injury, death, or structural damage] shall be removed from service at the time of the accident [and] shall not be repaired, altered, or placed back in service until inspected by a certified inspector for the enforcement authority” OCGA § 8-2-106 (c). A defendant’s failure to comply with the statute gives rise to the spoliation presumption under OCGA § 24-14-22 that the evidence would have favored the plaintiff. See Beach v. B.F. Saul Property Co., 303 Ga. App. 689, 696 (2) (694 SE2d 147) (2010) (applying presumption under former OCGA § 24-4-22). “[A] trial court has wide discretion in adjudicating spoliation issues, and such discretion will not be disturbed absent abuse.” Phillips v. Harmon, 297 Ga. 386, 397 (II) (774 SE2d 596) (2015) (citation omitted). Jones has not shown that the trial court abused his discretion in determining that no factual dispute existed as to whether elevator three was removed from service.

To prove that the Medical Center failed to comply with OCGA § 8-2-106 (c), Jones relies on the self-contradictory testimony rule of Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 28 (1) (343 SE2d 680) (1986). Specifically, Jones points to the testimony of Chad Hester, one of the ThyssenKrupp employees who released the passengers from the elevator car. In his deposition, Hester first testified that after the passengers were off the car, he and another employee rode elevator number three “up and down the hoistway, . . . trying to get it to mess up again... but it never would.” Later in his deposition, after taking a brief recess, Hester testified that “now that [he] remembere[d they] did not run the car that day because [they] could not run it until the inspector inspected it. So [they] did leave it off that day”

Jones argues that construing Hester’s contradictory testimony against him leads to the conclusion that the employees placed the elevator back in service before it had been inspected, even though it had been involved in an incident involving personal injury, in violation of OCGA § 8-2-106 (c). But the Prophecy rule does not apply.

“In Prophecy, [our Supreme Court] held that if, on motion for summary judgment, a respondent offers self-contradictory testimony on a dispositive issue in the case, and if the contradiction is not adequately explained, the contradictory testimony must be construed against the respondent for purposes of summary judgment.” Thompson v. Ezor, 272 Ga. 849, 851 (1) (536 SE2d 749) (2000) (citation omitted). But the Prophecy rule does not apply to nonparty witnesses. Id. at 851-853 (2). Hester is not a party to this case, and his deposition does not reflect that he gave testimony as the Medical Center’s or co-defendant ThyssenKrupp’s representative under OCGA § 9-11-30 (b) (6). Accordingly, the Prophecy rule doesnotapply.

Jones argues that the testimony of three witnesses besides Hester creates a fact question regarding the Medical Center’s compliance with the statute. According to Jones, all three witnesses testified that a July 31, 2013, semi-annual, state inspection form reflected that elevator three was not out of service. At their depositions, the witnesses were asked to review the form, which Jones’s counsel clarified was “not related to the incident.” One box of the form, labeled “Out of Service Reason,” was left blank. In his testimony, Singletary agreed that one box of the form was labeled “Out of Service Reason.” Art Justice, an employee of ThyssenKrupp, testified that the form indicated that the elevator was not out of service. And Herman Willingham, a hospital employee, testified that the form did not show an “out of service reason” and that he did not see that the form showed the elevator was out of service at all. But as counsel clarified, this form was not related to the incident; it was related to the state’s semi-annual inspection of the elevator. And once the state inspectors completed their inspection relating to the incident, they cleared the elevator for operation. So there was no reason for the form to reflect that the elevator was out of service.

Decided June 21, 2017.

Kenney & Medina, Thomas S. Kenney, for appellant.

Taylor English Duma, R. Harold Meeks, Jr., Amanda W. Speier; McAngus Goudelock & Courie, John W. Campbell, for appellee.

“It was the trial court’s job to resolve issues of fact regarding the hotly contested issue of spoliation....” Wright v. VIF/Valentine Farms Bldg. One, 308 Ga. App. 436, 443 (2) (a) (708 SE2d 41) (2011). As some evidence supports the trial court’s order, Jones has not shown error. Id.

Judgment affirmed.

Branch and Bethel, JJ., concur.


author: DOYLE, Chief Judge.

text:
    A15A1272.
    THE STATE v. BAXTER.
    (801 SE2d 927)
    Decided June 22, 2017.

      Tom Durden, District Attorney, Sandra Dutton, Jillian L. Harmon, Assistant District Attorneys, for appellant.

      Cheryl C. Quick, William O. Cox, for appellee.
   DOYLE, Chief Judge.

In State v. Baxter, the Supreme Court of Georgia reversed this Court’s judgment affirming the trial court’s decision to transfer the case to juvenile court. Consequently, we vacate our earlier opinion, adopt the opinion of the Supreme Court as our own, and reverse the judgment of the trial court.

Judgment reversed.

Reese and Self, JJ., concur.

       300 Ga. 268 (794 SE2d 49) (2016).

        State v. Baxter, 333 Ga. App. 849 (777 SE2d 696) (2015).


author:
MILLER, Presiding Judge.
      McFADDEN, Presiding Judge,

text:
    A17A0161.
    JEWELL v. McGINNIS et al.
    (802 SE2d 306)
   MILLER, Presiding Judge.

This is the second appearance of this grandparent custody case in this Court. In Jewell v. McGinnis, 333 Ga. App. 108 (775 SE2d 539) (2015) (“Jewell I”), this Court vacated the superior court’s order granting joint legal custody to the mother and the paternal grandparents, with primary physical custody to the grandparents. Further, in Jewell I, this Court remanded the case with direction for the superior court to make the statutorily required factual findings by clear and convincing evidence under OCGA § 19-7-1 (b.l). Onremand, the superior court entered a new order (the “Revised Custody Order”), which contained factual findings and again granted joint legal custody to the mother and grandparents and primary physical custody to the grandparents.

1. The mother appeals from the superior court’s Revised Custody Order, contending, inter alia, that OCGA § 19-9-6 does not authorize an award of joint legal custody to a parent and a third party. We agree, and therefore we reverse the award of joint legal custody in this case and remand for further proceedings consistent with this opinion.

The Supreme Court of Georgia and this Court have both held that a third party may have sole legal custody of a child when no parent is suitable for custody; however, Georgia statutory law only supports joint legal custody arrangements between parents. Stone v. Stone, 297 Ga. 451, 455 (774 SE2d 681) (2015); Sheffield v. Sheffield, 338 Ga. App. 667, 669 (791 SE2d 428) (2016); Marks v. Soles, 339 Ga. App. 380, 386 (2) (793 SE2d 587) (2016). See also OCGA § 19-9-6 (5) (“Joint legal custody means both parents have equal rights and responsibilities for major decisions concerning the child[.]”) (punctuation omitted); OCGA § 19-9-3 (a) (1) (setting out general custody guidelines and recognizing that joint custody considerations remain with the child’s parents).

The superior court had no power to grant joint legal custody to the mother and the paternal grandparents. Consequently, we must reverse that award and remand this case for further proceedings. Stone, supra, 297 Ga. at 455.

2. In light of our holding in Division 1, we need not address the mother’s remaining argument.

Judgment reversed and case remanded with direction.

Bethel, J., concurs. McFadden, P. J., concurs fully and specially.

McFADDEN, Presiding Judge,

concurring specially.

I agree that we must reverse and remand. I concur fully in Division 1: the trial court was not authorized to award joint legal custody to a parent and a third party. But while I concur in the judgment of Division 2, I would remand with further instructions. We must address — and reverse — the trial court’s finding “that the child would suffer both physical and significant emotional harm if she were placed in the custody of [the mother].”

As the majority notes, this case is now before us for the second time. The first appeal was by the mother from an order “awarding joint legal custody of her daughter, C. M., to Jewell and to the child’s paternal grandparents, Stephen and Diane McGinnis, with primary physical custody to the grandparents.” Jewell v. McGinnis, 333 Ga. App. 108 (775 SE2d 539) (2015) (Jewell I). “[W]e vacate[d] and remand[ed] the case for the trial court to make ... findings under the required standard.” Id. at 111 (3). Those findings included whether “parental custody would harm the child physically or emotionally.” Id. That finding is required by a gloss our Supreme Court put on the grandparent custody statute, OCGA § 19-7-1 (b.l), when the statute’s constitutionality was challenged. Clark v. Wade, 273 Ga. 587 (544 SE2d 99) (2001).

On remand after Jewell I, the trial court found the requisite prospect of harm. The mother has enumerated that finding as error. And error it is. It is error that would surely drive the proceedings on remand and so generate a third appeal and a third remand.

Such delay is always a denial of justice. But delay is particularly harmful to children. This child was six years old when her grandparents first filed an emergency motion seeking custody of her. She is now almost ten. This litigation has already overshadowed too much of her childhood.

We have explained as follows the findings requiredunder OCGA § 19-7-1 (b.l) for a transfer of custody from a parent to a third party:

OCGA § 19-7-1 (b.l), which governs custody disputes between a biological parent and a limited number of third parties who are related to the child, including grandparents. OCGA § 19-7-1 (b.l) establishes a rebuttable presumption that it is in the best interest of the child to award custody to the parent of the child. The following three presumptions are implicit in the statute: (1) the parent is a fit person entitled to custody, (2) a fit parent acts in the best interest of his or her child, and (3) the child’s best interest is to be in the custody of a parent. The presumption can nonetheless be overcome by the third-party relative showing, by clear and convincing evidence, that parental custody would harm the child. Harm in this context has been defined as either physical harm or significant, long-term emotional harm, not merely social or economic disadvantages. Once the presumption has been overcome, the third-party relative must prove that an award of custody to him or her will best promote the child’s health, welfare, and happiness. Thus, in applying the legal standard set forth in OCGA § 19-7-1 (b.l), the trial court need not determine that the parent seeking custody is unfit, only that the third-party relative has established by clear and convincing evidence that awarding custody to the parent would cause either physical harm or significant, long-term emotional harm to the child. If the third-party relative meets this burden, then the relative must show that an award of custody to him or her would best promote the child’s health, welfare, and happiness.

Trotter v. Ayres, 315 Ga. App. 7, 8-9 (2) (726 SE2d 424) (2012) (citations and punctuation omitted; emphasis supplied).

Here, the trial court found that awarding custody to the mother would cause both physical harm and significant, long-term emotional harm to the child. But the evidence cannot sustain that finding.

The court cited testimony of a counselor that the child had a strong bond with the grandparents, that the child showed anxiety when asked about the mother, that the counselor could not continue counseling the child if she moved to the mother’s home, that changing schools would not be good for the child, and that the child was uncomfortable with the schedule of spending alternating weeks with the mother and grandparents. “[T]he type of harm noted by the trial court falls within that level of stress and discomfort that is an acceptable price for reuniting a child with a parent, and is insufficient to infringe the fiercely guarded right of a parent to have legal and physical custody of his or her child.” Bell v. Taylor, 334 Ga. App. 267, 269 (779 SE2d 42) (2015).

The trial court also pointed to evidence that the mother had allowed sexually provocative photographs of herself (in which she is fully clothed) to be used as advertising for her husband’s business and to an allegation that the mother had posted a “boastfully promiscuous” comment on Facebook. In the first place there is no evidence to support the finding about a Facebook comment. Regardless, those findings cannot sustain the trial court’s conclusion. The trial court speculated that the child might someday be teased about the photographs or the alleged Facebook comment. But such speculation, particularly in the absence of any showing that these matters have actually caused any harm to the child, does not support an award of custody to the grandparents. See Bowman v. Bowman, 234 Ga. 348, 350 (216 SE2d 103) (1975) (findings that father was too young to care for children and was delinquent in work habits were insufficient to support award of custody to a third party); In re M. M. A., 166 Ga. App. 620, 624 (1) (305 SE2d 139) (1983) (possibility that child may receive superior influences or amenities in third-party custody is insufficient to justify taking child from natural parents).

The trial court also focused on the mother’s formerly meretricious relationship with her husband. At a 2 014 hearing, three months after the grandparents filed their emergency motion for custody, the mother’s husband testified that they had been in a committed relationship for “[gjoing on 2½, 3 years” but had married a month earlier. Asked if they had married in response to something the trial court had said, he answered:

We had already planned on getting married. It is just the actual ceremony had sped up some.
I was wanting to give Lindsey the marriage and ceremony that I thought she deserved, so we were going to either wait until next year, or the year after, and have a big wedding with reception, and the whole nine yards.

In the 2016 order now before us, the trial court wrote:

The Court is similarly concerned that it apparently never occurred to Ms. Jewell that her living with Mr. Fitton in a meretricious relationship was potentially harmful to her children until the Court said something about it.

The trial court is again in error.

Georgia’s appellate courts have held that a parent’s cohabitation with someone, regardless of that person’s gender, is not a basis for denying custody or visitation absent evidence that the child was harmed or exposed to inappropriate conduct. See, e.g., Hayes v. Hayes, 199 Ga. App. 132, 133 (404 SE2d 276) (1991) (affirming the trial court’s finding that there was no change in material circumstances even though both parents were involved in meretricious relationships, because there was no evidence that the child had been exposed to inappropriate conduct); Livesay v. Hilley, 190 Ga. App. 655, 656-657 (2) (379 SE2d 557) (1989) (mother’s cohabitation provides no basis for a change in custody absent evidence of harm to the child); see also Brandenburg v. Brandenburg, 274 Ga. 183, 184 (1) (551 SE2d 721) (2001) (wherein the Supreme Court of Georgia reversed an order which prohibited contact between the children and their father’s live-in girlfriend, because there was no evidence that the children had been exposed to inappropriate conduct or had been adversely affected by the relationship).

Decided June 22, 2017.

Turner & Lawrence, Kenneth G. Lawrence, for appellant.

Frost Law Firm, Bryan H. Frost, for appellees.

Moses v. King, 281 Ga. App. 687, 691-692 (1) (637 SE2d 97) (2006) (physical precedent only).

The trial court pointed to evidence that the child had a rapid weight gain. But no witness could pinpoint the exact cause of this change.

Finally the trial court cited evidence that while with the mother, the child had gotten minor cuts and bruises when she was allowed to take a stray dog around the neighborhood in search of its owner. But those cuts and bruises were minor. And while the trial court found that the child had been unsupervised, there is once again no evidence to support that finding.

In short, the evidence does not support a finding, by clear and convincing evidence, that awarding custody to the mother would cause either physical harm or significant, long-term emotional harm to the child. Compare Strickland v. Strickland, 298 Ga. 630, 632 (783 SE2d 606) (2016) (sufficient evidence children would be harmed if placed with mother where mother lacked income and a stable residence, her interest in the children was sporadic, she was a drug abuser, and had drug-related arrests); Harris v. Snelgrove, 290 Ga. 181, 183-184 (2) (718 SE2d 300) (2011) (clear and convincing evidence that child would suffer physical and emotional harm if placed with biological parents where there were drugs, alcohol, violence, and arrests in the home; the child was asked to give urine so that others in the household could pass drug tests; and the mother removed the child from school, saying that she would home school him but then failed to do so).

I would therefore reverse the trial court’s custody order on that ground as well.

       The relevant facts in this case are set out in Jewell I.


author: Rickman, Judge. McFADDEN, Presiding Judge,

text:
    A17A0242.
    OXENDINE v. GOVERNMENT TRANSPARENCY AND CAMPAIGN FINANCE COMMISSION.
    (802 SE2d 310)
   Rickman, Judge.

Approximately eight years ago, a citizen filed a complaint with the Government Transparency and Campaign Finance Commission (the “Commission”) alleging that John Oxendine violated a provision of the Ethics in Government Act (the “Act”), OCGA § 21-5-41 (2005), during his candidacy for the 2010 gubernatorial election. In October 2009, the Commission held its first preliminary hearing on the matter. The Commission voted to table the matter while also approving a motion “to investigate the political action committees and regulated entities involved[.]” In June 2012, the Commission held a second preliminary hearing and found that “reasonable grounds” existed to believe Oxendine committed a violation of OCGA § 21-5-41 (a) (2005).

On August 15,2015, the Atlanta Journal-Constitution (the “AJC”) published an article reporting that ethics experts questioned why Oxendine failed to return campaign money to donors. Two days later, the Commission issued subpoenas for Oxendine’s financial records. Approximately one month after the publication of the AJC article, the Commission filed an amended complaint against Oxendine asserting violations of the Act pursuant to OCGA §§ 21-5-41 (a), 21-5-43 (c) and (d), and 21-5-33. Oxendine subsequently filed motions to sever, to deny a finding of probable cause to initiate an investigation under the new complaint, and to dismiss.

On December 16, 2015, the Commission held a hearing on Oxendine’s motions. Following the hearing, the Commission issued an order denying Oxendine’s motions to dismiss and sever. The Commission did, however, grant Oxendine’s motion in part, barring prosecution of several allegations in the amended complaint. In January 2016, pursuant to the Georgia Administrative Procedure Act (the “APA”), OCGA § 50-13-19 (a), Oxendine filed a Petition for Judicial Review seeking review of the Commission’s ruling. On June 21, 2016, the trial court issued an order finding that it did not have jurisdiction under OCGA § 50-13-19 to review the Commission’s “interim decision,” resulting in the case being returned to the Commission. This appeal follows.

1. We must first address whether we have jurisdiction to consider this appeal.

“Under OCGA § 50-13-20, only a final judgment of the superior court rendered pursuant to the APA may be reviewed on appeal by this Court. Generally, where a superior court remands for additional findings on any issue, this is not a final judgment subject to appellate review.” Coastal Marshlands Protection Committee v. Center for a Sustainable Coast, 286 Ga. App. 518, 520 (1) (649 SE2d 619) (2007). See OCGA § 50-13-20 (“An aggrieved party may obtain a review of any final judgment of the superior court under this chapter by the Court of Appeals or the Supreme Court, as provided by law.”).

Nevertheless, we find that, in this case, the superior court did not merely remand to the Commission for additional findings. The superior court held that, inter alia, Oxendine had not demonstrated irreparable harm, and thus, the superior court did not have jurisdiction under OCGA § 50-13-19 (a) to review the Commission’s “interim decision.” Accordingly, we conclude that the superior court’s order was an appealable final judgment under OCGA § 50-13-20. See Coastal Marshlands Protection Committee, 286 Ga. App. at 520 (1); see also Ga. Pub. Sue. Comm. v. Campaign for a Prosperous Ga., 229 Ga. App. 28, 29 (1) (492 SE2d 916) (1997).

2. Oxendine contends that, inter alia, the superior court erred by finding it lacked jurisdiction to review the “interim decision” of the Commission under OCGA § 50-13-19 (a). Specifically Oxendine argues that he has suffered irreparable harm that could not be remedied by a final Commission hearing under the APA, and thus the superior court, pursuant to OCGA § 50-13-19 (a), had jurisdiction to review his case.

The provision for immediate appeal under OCGA § 50-13-19 (a) is not applicable simply because an administrative ruling risks duplication of effort or expense. Such would render virtually every interlocutory administrative decision subject to immediate review. Instead there must be some suggestion that the administrative ruling, if incorrect, could not be remedied so as to cause irreparable harm.

Schlachter v. Ga. State Bd. of Examiners of Psychologists, 215 Ga. App. 171, 172 (450 SE2d 242) (1994).

Oxendine, citing Wills v. Composite State Bd. of Med. Examiners, 259 Ga. 549, 550 (1) (384 SE2d 636) (1989), alleges that a review of the final Commission hearing would not provide an adequate legal remedy because it would be impossible for him to prepare a defense to the amended complaint “other than to repeat the same argument that he has already repeatedly made and that has been repeatedly rejected.” This case is factually distinguishable from Wills. In Wills, our Supreme Court held that judicial review of an administrative agency’s preliminary ruling was appropriate where the appellant was not provided with necessary discovery and thus was unable to adequately prepare his defense. Id. Oxendine’s argument, however, focuses on his contention that the Commission has misapplied the substantive law. Unlike in Wills, in this case, if the Commission does in fact misapply the substantive law at the final hearing, resulting in an incorrect ruling, then that ruling can be remedied by further judicial review. See Schlachter, 215 Ga. App. at 172.

Oxendine further argues that he has suffered irreparable injury to both his personal and professional reputation while waiting for his final Commission hearing. We are certainly troubled by the amount of time that has elapsed since the first complaint was filed against Oxendine. However, it is undisputed that currently the APA does not contain a time limit in which the Commission must hold a final hearing. The amount of effort and expense exerted in defending the charges against Oxendine does not amount to irreparable harm authorizing immediate appeal under OCGA § 50-13-19 (a). See Schlachter, 215 Ga. App. at 172. Nor does any potential damage to Oxendine’s reputation while charges are pending against him amount to the requisite harm. The harm alleged is the same harm that would potentially exist in every case where a candidate is accused of a violation of the Act. “Such would render virtually every interlocutory administrative decision subject to immediate review.” Id. Applying binding precedent from our Supreme Court and this Court to the facts and circumstances of this case, we hold that Oxendine has not met his burden to show that a ruling following the final Commission hearing, if incorrect, could not be remedied, thus causing irreparable harm. See id.; compare Wills, 259 Ga. at 550 (1). Accordingly, the trial court did not err in denying Oxendine’s petition for judicial review on this basis.

3. Based on our ruling in Division 2, we need not address Oxendine’s remaining arguments.

Judgment affirmed.

Doyle, C. J., Ellington, P. J., Andrews, Ray, McMillian, Mercier, and Reese, JJ., concur. McFadden, P. J., concurs in Division 1 and dissents in Divisions 2 and 3.

McFADDEN, Presiding Judge,

concurring in part and dissenting in part.

I agree that we have jurisdiction over this appeal, so I concur in Division 1 of the majority opinion. But I would hold that the superior court is authorized, on the record before us and in the exercise of his discretion, to hold that a final agency decision would not provide Oxendine an adequate remedy and so that Oxendine is entitled to interlocutory review under OCGA § 50-13-19 (a). So I respectfully dissent from Divisions 2 and 3. I would vacate and remand with instructions so the superior court can exercise that discretion.

OCGA § 50-13-19 (a) authorizes, under certain circumstances, interlocutory review of administrative agency actions. It provides:

Any person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision in a contested case is entitled to judicial review under this chapter. ... A preliminary, procedural, or intermediate agency action or ruling is immediately reviewable if review of the final agency decision would not provide an adequate remedy.

Oxendine invoked that provision, contending that he has been and continues to be subjected to prejudice over and above that which the law authorizes and practical necessity requires. He contends that the complaint against him must be dismissed because it failed to state a claim and was time-barred. And he claims that the commission has needlessly prolonged resolution of the proceeding against him and thereby caused him unwarranted reputational damage.

The superior court held that he lacked jurisdiction and dismissed. He stated three grounds: that Oxendine had failed to exhaust his administrative remedies before seeking judicial review, that the commission’s decision was not a “contested case,” and that review of the final agency decision would provide Oxendine with an adequate remedy. As detailed below, the first and second are simply wrong. The third asked the right question, but the superior court gave an answer infected with error and suggestive of failure to exercise discretion.

1. Failure to exhaust administrative remedies.

The superior court’s order cited Oxendine’s failure to exhaust his administrative remedies as an independent reason why the superior court lacked jurisdiction under OCGA § 50-13-19 (a). That is a misreading of the statute: it creates an exception to the exhaustion requirement. OCGA § 50-13-19 (a) expressly authorizes immediate judicial review of a preliminary, procedural, or intermediate agency action “if review of the final agency decision would not provide an adequate remedy” So in appropriate cases, it authorizes judicial review of preliminary procedural rulings like the Commission’s denial of Oxendine’s motions in this case. See Wills v. Composite State Bd. of Med. Examiners, 259 Ga. 549, 550 (1) (384 SE2d 636) (1989) (holding that OCGA § 50-13-19 (a) permitted judicial review of agency’s denial of motion to dismiss on statute of limitations grounds and motion to compel discovery).

2. Contested case.

The superior court also erred in holding that it lacked jurisdiction because this is not a “contested case,” as that phrase is used in the Administrative Procedure Act. The Act defines a “contested case” as a proceeding “in which the legal rights, duties, or privileges of a party are required by law to be determined by an agency after an opportunity for hearing.” OCGA § 50-13-2 (2). Here, the underlying issue is whether Oxendine violated a provision of the Ethics in Government Act and should be sanctioned.

3. Adequate remedy.

The superior court held, “Petitioner will be afforded an adequate remedy by first exhausting his administrative remedies” and then exercising his right to judicial appeals.

I agree that, in most cases, appellate review of a final agency decision would remedy a legal error in an interim agency decision. The “provision for immediate appeal under OCGA § 50-13-19 (a) is not applicable simply because an administrative ruling risks duplication of effort or expense.” Schlachter v. Ga. State Bd. of Examiners of Psychologists, 215 Ga. App. 171, 172 (450 SE2d 242) (1994). But OCGA § 50-13-19 (a) expressly contemplates that there will be some cases in which judicial review of a final agency decision will not be an adequate remedy: it permits immediate review of an interim ruling “if review of the final agency decision would not provide an adequate remedy.” OCGA § 50-13-19 (a) (emphasis supplied). We cannot construe our decision in Schlachter to eliminate the possibility that review of a final agency decision may not be enough. See North Fulton Med. Center v. Stephenson, 269 Ga. 540, 544 (501 SE2d 798) (1998) (construing, in the context of mandamus, the term “adequate remedy” to mean a “remedy [that] is equally convenient, complete and beneficial”). So the mere fact that Oxendine could obtain appellate review of a final agency decision in this case does not, on its own, support a finding that such review would be an adequate remedy under the facts of this case.

The superior court’s finding that Oxendine “had not demonstrated irreparable harm,” is unexplained, and it is intertwined with his erroneous determination that failure to exhaust administrative remedies is an in depen dent bar to jurisdiction under OCGA § 50-13-19 (a). His order does not set out an analysis of why, under the facts of this particular case, review of a final agency decision would be an adequate remedy That analysis requires an exercise of discretion. As our Supreme Court has held, it entails recognition that review of a final agency decision would not provide an adequate remedy where “[i]rreparable injury could result without a resolution of [the] issues prior to the final hearing on the merits.” Wills, supra, 259 Ga. at 550 (1).

I would not decide today whether that analysis must be set out in an order under OCGA § 50-13-19 (a). But the order now before us suggests that the superior court erroneously concluded that he was barred as a matter of law from exercising jurisdiction.

That inference is bolstered by the hearing transcript. The superior court opined that the case had not been “handled appropriately” so far and expressed “very little confidence” that the Commission would handle it appropriately in the future. He asked its representative, “At what point does fundamental due process play into your agency’s formula for providing somebody who’s . . . brought up on these charges with an ability to have his day in court?” The Commission’s attorney responded, “this court just simply doesn’t have jurisdiction.”

Yes, he does. Under OCGA § 50-13-19 (a), upon a finding that “the final agency decision would not provide an adequate remedy,” the superior court has appellate jurisdiction. The concerns the superior court expressed at the hearing are supported by the record. And they are sufficient to authorize him, in the exercise of his sound discretion, to so find.

Decided June 22, 2017

Chalmers Pak Burch & Adams, Douglas Chalmers, Jr., Carolyn C. Burch, for appellant.

Christopher M. Carr, Attorney General, Dennis R. Dunn, Deputy Attorney General, Russell D. Willard, Senior Assistant Attorney General, Christian A. Fuller, Assistant Attorney General; Robert S. Lane, for appellee.

In order to give the superior court an opportunity to exercise that discretion, I would vacate and remand.

       OCGA § 21-5-1 et seq.

       OCGA § 21-5-41 (2005) regulates campaign contributions from persons, corporations, political committees, or political parties.

       Under OCGA § 21-5-6 (b) (10) (A) (2011) the Commission has power
      [t]o conduct a preliminary investigation ... of the merits of a written complaint by any person who believes that a violation of this chapter has occurred. ... If there are found no reasonable grounds to believe that a violation has occurred, the complaint shall be dismissed.... If the commission determines that there are such reasonable grounds to believe that a violation has occurred, it shall give notice by summoning the persons believed to have committed the violation to a hearing. . . .

       The “[sjummary” notes from this preliminary hearing reflect that the Commission “found probable cause” in the Oxendine matter. However, that finding was misstated in the notes. The Commission actually made a finding of “reasonable grounds.”

       One of those subpoenas was later quashed “due to ministerial error related to service upon [Oxendine].”

       OCGA §§ 21-5-43 (c) and (d) and 21-5-33 address how a candidate for political office can use campaign contributions and what to do with unexpended contributions.

       OCGA § 50-13-1 et seq.

       OCGA § 50-13-19 (a) (2016) provides:
      Any person who has exhausted all administrative remedies available within the agency and who is aggrieved by a final decision in a contested case is entitled to judicial review under this chapter... .A preliminary, procedural, or intermediate agency action or ruling is immediately reviewable if review of the final agency decision would not provide an adequate remedy.

       Although the dissent addresses other grounds cited by the trial court, those grounds are not addressed in this opinion because they are not applicable here.