author: BARNES, Presiding Judge.

text:
    A10A1134.
    ATLANTIC STATION, LLC v. VRATSINAS CONSTRUCTION COMPANY.
    (705 SE2d 191)

       Senior Appellate Judges G. Alan Blackburn and Marion T. Pope, Jr., participated in the original opinion.

   BARNES, Presiding Judge.

Atlantic Station, LLC, appeals the trial court’s denial of its petition to stay arbitration sought by Vratsinas Construction Company (VCC), which built the parking deck at the mixed use complex, contending that VCC’s claim is not subject to arbitration because it is for services that were not included in the parties’ written contracts. Because Atlantic Station participated in the dispute resolution process for 18 months before filing its petition to stay the arbitration, we affirm.

We review a grant or denial of a motion to stay arbitration de novo to determine whether the trial court was correct as a matter of law. See Tigner v. Shearson-Lehman Hutton, Inc., 201 Ga. App. 713, 715 (411 SE2d 800) (1991). A review of the voluminous record reveals the following relevant evidence.

The multi-use Atlantic Station complex was built on the 138-acre former “brown field” left by Atlantic Steel. In 1999, VCC began working with Atlantic Station, LLC, to develop proposals for the land. At that time, according to VCC’s first arbitration demand, Atlantic Station did not have the personnel or cash flow to undertake the development itself. VCC contends it had an “understanding” with Atlantic Station that it would defer charging for these “precon-struction services” in exchange for the opportunity to serve as the general contractor for any structures that would be built on the property, essentially giving Atlantic Station the “equivalent of an interest free loan.”

The complex was eventually planned and financed, and in February 2001, the parties entered into a contract providing that VCC would build the parking deck and related structures. According to VCC, this contract “merely formalized the relationship of the parties,” who continued to operate under the mutual understanding that VCC would be given the opportunity to serve as the contractor for new buildings in exchange for its continued consulting services. In September 2001, VCC contracted with Atlantic District, an affiliated partnership, to build the outer shell of some of the buildings on site, and in January 2003, VCC entered into a second contract with Atlantic Station when the parking lot design underwent major changes. Neither of these contracts refers to VCC supplying its consulting services in exchange for the right to bid on new construction. Both contracts include merger clauses, provide that they may be amended only by written modification, and contain specific provisions regarding the timing of claims. The contracts also define “preconstruction services” and specify the hourly rates to be charged by different personnel for these services. In the February 2001 contract the parties agree that VCC’s preconstruction phase began in 1999. The January 2003 contract states that the precon-struction phase began in April 2002.

In May 2006, according to VCC’s initial arbitration demand, Atlantic Station did not allow VCC to submit proposals to serve as the contractor for additional buildings, and in June 2006 VCC billed Atlantic Station for $4.5 million in services rendered from 1999 to 2004. (The company notes that it elected not to bill for services from 2004 to May 2005.) Atlantic Station did not respond to the invoices, and on March 28, 2007, VCC submitted its claims to the project architect, following the payment procedures set forth in the contracts. The architect did not respond in 30 days, and in April 2007 VCC submitted a demand for mediation to the American Arbitration Association (AAA) pursuant to the 2001 contract. In mid-August 2007, Atlantic Station sought backup documentation for the invoices and within a week VCC submitted documentation to Atlantic Station, detailing the services for which VCC sought payment. The parties participated in two unsuccessful mediation sessions in August and November 2007.

On December 18, 2007, VCC filed another demand for arbitration with AAA. In January 2008, Atlantic Station filed an answer and a counterclaim for $1 million, but did not object to the arbitration itself. The parties selected the arbitration panel and began conducting discovery. Meanwhile, Atlantic Town Center, a related entity which owns the retail and residential portions of the project, initiated an arbitration demand against VCC in May 2008, for damages allegedly resulting from water leaks in the buildings. Shortly afterward, Atlantic Station filed a motion in that proceeding, seeking to have VCC’s claim against it for services heard at the same time as Atlantic Town Center’s water damage claims against VCC, and both arbitrations were stayed while AAA decided whether to consolidate the two demands. The motion to consolidate was denied in January 2009. Atlantic Station participated in the arbitration for six months, during which time it served discovery demands, produced and received documents, filed and opposed motions before the arbitrators, participated in telephone hearings with the Arbitrator Panel, and took depositions.

VCC amended its arbitration demand twice. It describes its first amendment in March 2009 as having “refined and expanded on facts in the original Statement of Claim,” but seeking the same amount of damages under the same theories of recovery. The second amendment in June 2009 also sought the same amount of relief. In May 2009, VCC produced 27,000 pages of documents backing up its claim for services performed throughout the project. According to Atlantic Station, depositions taken in June and July 2009 “clarified the basis of VCC’s claims” regarding the agreement upon which it relied to recover the costs of its development services. In one of these depositions, a VCC officer testified that when VCC was denied the opportunity to bid on a contract to build a 24-story office tower in 2006, it considered the agreement breached and issued the invoices, which cover development services provided in connection with the entire project site, not just the parking deck.

Atlantic Station then filed a petition to stay the arbitration, contending that “deposition testimony in recent weeks has demonstrated that VCC seeks to recover in arbitration for work outside the scope of the parties’ contract and outside the scope of the written arbitration agreement within the contract.” According to Atlantic Station, its motion to stay was timely because as a result of “procedural issues” — the motion to consolidate — the parties “did not exchange documents until May 2009” and did not take depositions until late June 2009. Atlantic Station filed the motion to stay within 30 days of the revealing depositions. In its motion to stay, Atlantic Station asserted that the arbitration was barred because the claims were for services outside the scope of the contract. It further contended that VCC failed to make the claims within 21 days of the costs being incurred, as required by the contract, and that the statute of limitation had run on some of the claims.

The trial court held a hearing in November 2009, and denied the motion to stay. In its order the court found that “from the sum and substance of the Agreement between them and the ALA documents that were in place between them and the arguments of counsel that it was the intent specifically of Atlantic Station and VCC to arbitrate.”

On appeal, Atlantic Station enumerates five substantive errors: (1) the trial court failed to perform its “gatekeeping” duty and decide whether VCC’s claims were included in the arbitration agreement; (2) VCC failed to meet contractual conditions precedent to the claim, such as giving notice within 21 days; (3) VCC waived its claims because they were not made timely; (4) VCC’s claims are for “development” services, not “preconstruction services” as defined in the contracts, and thus are not arbitrable because they do not “arise out of or relate to” the written contracts; and (5) the trial court should have stayed the arbitration of VCC’s claims for quantum meruit or implied contract. In addition to responding to these specific enumerations of error, VCC contends that Atlantic Station waived its right to object to the arbitration by participating in the process for 18 months before seeking a stay.

Atlantic Station’s argument that it had no idea until June 2009 that VCC’s claims were based on something other than the written contract is not persuasive, considering de novo the evidence in the record. VCC’s initial arbitration demand in December 2007 described the basis for its claims seeking payment for development services. VCC stated that it was retained in 1999 by Atlantic Station to perform preconstruction and other services to develop Atlantic Station Project on the former “brown field” of a long-idled industry site. It began performing these services in 1999, as the parties acknowledged in their 2001 written contract, which according to VCC “merely formalized the relationship of the parties” as well as providing for the construction phase of the parking structure. VCC said in its December 2007 statement of claim that when the parties entered into the contract, they

had been operating under a mutual understanding or agreement that VCC would be given every opportunity to perform the work for Atlantic Station and its affiliated entities for the construction of all the physical structures within the Project after the plans for construction were developed and that, in return for such future opportunities, . . . VCC would defer from charging Atlantic Station for the performance of the preconstruction and other consulting services related to the Project development. . . . VCC thereafter continued to perform other consulting services for Atlantic Station and its affiliates until May, 2006 pursuant to the same understanding and agreement between VCC and Atlantic Station.

VCC said it “became aware” in May 2006 that Atlantic Station no longer intended to give it the opportunity to undertake additional construction work, which triggered its submission of invoices for the consulting services it performed from 1999 to 2004. VCC even said in its initial arbitration demand that the parties proceeded with the understanding that VCC would defer billing “despite the contract terms” to the contrary providing that claims were waived unless presented within the specified time provided. Finally, VCC argued that the parties by “conduct, mutual understandings and agreement” modified the contract’s payment terms regarding the services VCC performed, for which it did not submit invoices until June 2006.

OCGA § 9-9-6 (b) provides:

Subject to subsections (c) and (d) of this Code section, a party who has not participated in the arbitration and who has not made an application to compel arbitration may apply to stay arbitration on the grounds that:
(1) No valid agreement to submit to arbitration was made;
(2) The agreement to arbitrate was not complied with; or
(3) The arbitration is barred by limitation of time.

While most of the case law regarding waiver under OCGA § 9-9-6 (b) addresses waiving the right to arbitrate by participating in litigation, rather than waiving the right to stay arbitration by participating in the arbitration, the considerations that apply to waiving the right to arbitrate also apply to waiving the right to stay arbitration. See, e.g., Tillman Group v. Keith, 201 Ga. App. 680 (411 SE2d 794) (1991) (litigating the merits of a claim without seeking to initiate arbitration proceedings waives a party’s right to insist upon arbitration).

Generally, parties cannot participate in the process — litigation or arbitration — and then change their minds after conducting discovery. “An agreement to arbitrate is waived by any action of a party which is inconsistent with the right of arbitration.” McCormick-Morgan, Inc. v. Whitehead Elec. Co., 179 Ga. App. 10, 13 (345 SE2d 53) (1986); accord Wise v. Tidal Constr. Co., 261 Ga. App. 670, 675 (583 SE2d 466) (2003). Applying that concept to OCGA § 9-9-6 (b), a party also waives its right to litigation by taking action inconsistent with that right and participating in arbitration.

Atlantic Station argues that under OCGA § 9-9-6 (d), it has an absolute right to apply for a stay within 30 days after Vratsinas amended its claim, regardless of its participation in the arbitration process for 18 months or the substance of the amendment. OCGA § 9-9-6 (d) provides that after service of the demand for arbitration “or any amendment thereof,” the party served must apply to the court within 30 days for a stay of arbitration or is barred from denying the agreement is valid, timely, or had been complied with. The subsection concludes, “The right to apply for a stay of arbitration may not be waived, except as provided in this Code section.” (Emphasis supplied.)

Decided October 29, 2010

Reconsideration denied December 15, 2010.

Alston & Bird, Michael H. Shanlever, John I. Spangler III, for appellant.

Smith, Currie & Hancock, Kent B Smith, Stephen G. Joy, for appellee.

Johnson, J., concurs. Dillard, J., concurs in judgment only.

       According to Atlantic Station, its sole member is now AIG Global Real Estate Investment Corp.


source: Caselaw Access Project

author: MIKELL, Judge.

license: Public Domain

text:
    A10A1182.
    BOYKINS v. THE STATE.
    (705 SE2d 186)
   MIKELL, Judge.

Reginald Boykins was indicted for possession of cocaine after the contraband was found in the center console of his vehicle during a search conducted incident to his arrest for a probation violation. Boykins filed a motion to suppress. At the hearing held on the motion, he contended that the police conducted a Terry stop of his vehicle without a reasonable, articulable suspicion of criminal activity and that the search was invalid under Arizona v. Gant, in which the United States Supreme Court significantly curtailed the authority of the police to conduct a warrantless search of a vehicle incident to a recent occupant’s lawful arrest. Based on the arresting officer’s testimony, the trial court denied the motion on two grounds. First, the court found that the contact between the officer and Boykins was a “first-tier” encounter, which did not require articulable suspicion. Second, the trial court ruled that the search was valid under Gant because Boykins was standing next to his car when it was searched. Boykins was then convicted at a bench trial. On appeal, he challenges the denial of his motion to suppress. Because there is evidentiary support for the trial court’s findings, we affirm the trial court’s judgment.

At a hearing on a motion to suppress, the trial judge sits as the trier of fact. And Georgia law has long held that the trier of fact may believe or disbelieve all or any part of the testimony of any witness. Thus, on appellate review of a trial court’s order on a motion to suppress evidence, we never second-guess the trial court’s factual findings where they are based on testimonial evidence. We construe the evidence most favorably to the upholding of the trial court’s findings and judgment and affirm unless the court has committed an error of law.

Properly viewed, the evidence adduced at the suppression hearing shows that on January 3, 2009, DeKalb County Police Officer Michael Morales was patrolling a high crime area when he observed a man in a stopped vehicle talking to a woman who was walking near the entrance of the Wyntree Apartments on Plaster Road. Suspecting prostitution, Morales turned around, and he saw the vehicle leave rapidly. Morales made contact with the woman and inquired whether she knew the man in the vehicle. She stated that she did not and explained that he had offered her a ride. Morales entered the complex to look for the vehicle, which he found backing into a parking space in front of apartment number 58. Morales did not turn on his blue lights but pulled his police car in front of the vehicle, blocking it in.

Once the vehicle was parked, Morales approached the driver, later identified as Boykins, to ask for identification. Boykins, who was still inside his vehicle, stated that his identification was in his apartment. Morales then determined that Boykins had an outstanding probation warrant and arrested him. Morales testified that he handcuffed Boykins, then placed him in the custody of a second officer on the scene. Morales searched Boykins’s person and the “wing span within his vehicle,” finding cocaine in the center console. Morales testified that at the time of the search, Boykins was standing outside of his vehicle. When Morales produced the narcotics, Boykins said, “Ah, man, you got me.” He also told Morales that there was no need to field test the substance; it was crack cocaine.

Morales testified that his purpose in searching the vehicle was to ensure that no weapons were left in it because the officers were going to impound it. Morales also testified, however, that the vehicle was not impounded. The officers knocked on the door of apartment number 58, and when Boykins’s wife answered the door, they released the vehicle to her.

1. Boykins first argues that the trial court erred in determining that the initial contact with police was a first-tier encounter. Specifically, Boykins contends that when the officer blocked his vehicle with the police car, the encounter escalated into a second-tier Terry stop. He further contends that the officer lacked any reasonable, articu-lable suspicion justifying the stop, so that the trial court erred in denying his motion to suppress.

“At least three types of police-citizen encounters exist: verbal communications involving no coercion or detention; brief ‘stops’ or ‘seizures’ that require reasonable suspicion; and ‘arrests,’ which can only be supported by probable cause.”

In the first tier, police officers may approach citizens, ask for identification, and freely question the citizen without any basis or belief that the citizen is involved in criminal activity, as long as the officers do not detain the citizen or create the impression that the citizen may not leave. The second tier occurs when the officer actually conducts a brief investigative Terry stop of the citizen. In this level, a police officer, even in the absence of probable cause, may stop persons and detain them briefly, when the officer has a particularized and objective basis for suspecting the persons are involved in criminal activity.

Whether police-citizen contact qualifies as a first-tier encounter is a mixed question of fact and law, and we will uphold the trial court’s findings of fact if there is any evidence to support them. Here, the evidence supported the trial court’s finding that Morales stopped in front of a parked car and asked the occupant for identification. It is well established that “[t]he actions of an officer approaching a stopped vehicle, requesting to see a driver’s license, and inquiring about possible criminal or suspicious activity clearly fall within the realm of the first type of police-citizen encounter and do not amount to a stop.” Contrary to Boykins’s argument, the fact that Morales parked the police car in front of his vehicle did not, as a matter of law, create the impression that he could not leave. The evidence shows that when Morales approached Boykins, he had driven into his apartment complex and was parked in front of his own apartment. We infer from this evidence that he intended to walk inside, not drive away, so the trial court was authorized to find that the manner in which the officer parked his car is not dispositive under the circumstances. Morales did not have his blue lights on and did not restrain Boykins until probable cause existed for his arrest, i.e., upon learning that he had no identification and had an outstanding warrant. The trial court did not err in denying the motion to suppress on this basis.

2. Boykins contends that the trial court erred in finding that the search of the passenger compartment of his vehicle was valid under Gant as a search incident to a lawful arrest. Again, we disagree.

The search incident to arrest exception to the warrant requirement was established in Chimel v. California. Under Chimel, police officers are authorized, pursuant to a lawful custodial arrest, to search the arrestee and the area “within his immediate control” in order to remove weapons the arrestee might grab or evidentiary items he might conceal or destroy. Chimel involved a search of a residence, and courts began having difficulty applying the exception to the automobile context. Thus, in New York v. Belton, * the Court sought to establish a workable rule in that context. The Court held that when police officers “ha[ve] made a lawful custodial arrest of the occupant of an automobile, [they] may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile[ and] the contents of any containers found” therein. In Georgia, we interpreted Belton as granting police officers broad authority to search automobiles pursuant to the incident-to-arrest exception, with the authority extending to the entire passenger compartment of the vehicle and any closed containers therein.

In Gant, the Supreme Court rejected a broad interpretation of Belton and held that “the Chimel rationale authorizes police to search a vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search.” The Court added that, although it does not follow from Chimel, a search incident to a lawful arrest is also justified “when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” The Court thus reaffirmed that a search incident to arrest is limited by its two justifications —: officer safety and evidence preservation. “If there is no possibility that an arrestee could reach into the area that law enforcement officers seek to search, both justifications for the search-incident-to-arrest exception are absent and the rule does not apply.” The Court determined that the practice of conducting the search incident to a lawful arrest after the car’s occupant had been handcuffed and placed in the back of a patrol car exceeded the boundaries prescribed by Chimel. The Court concluded:

Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.

Decided October 28, 2010

Reconsideration denied December 15, 2010

Lynn M. Kleinrock, for appellant.

Noticeably absent from this conclusion is the requirement that the arrestee also be unsecured. The Court seemingly addressed this issue in a footnote: “Because officers have many means of ensuring the safe arrest of vehicle occupants, it will be the rare case in which an officer is unable to fully effectuate an arrest so that a real possibility of access to the arrestee’s vehicle remains. . . . But in such a case a search incident to arrest is reasonable under the Fourth Amendment”

We interpret Gant to mean that the police may conduct a search of the passenger compartment of the arrestee’s vehicle incident to his lawful arrest in the “rare case” in which the arrestee still has a “real possibility of access” to his vehicle. Applying this interpretation to the case at bar, we conclude that the trial court did not err in finding the search of the passenger compartment of Boykins’s vehicle permissible under Gant. The arresting officer testified that, at the time of the search, Boykins was standing outside of his automobile. The trial court apparently inferred from the officer’s testimony that Boykins was within arm’s reach of the passenger compartment. The officer also testified that Boykins was handcuffed and standing with a second officer in that officer’s custody at the time of the search. Boykins argues that those facts compel the conclusion that he had no “real possibility of access” to his vehicle. But unlike the defendant in Gant, Boykins had not been placed in the back of the patrol car at the time of the search; he was standing outside of his vehicle. In the final analysis, we hold that whether he had any “real possibility of access” to the passenger compartment of his vehicle was a mixed question of fact and law for the trial court to determine. We will not second-guess the trial court’s finding that the search was justified under Gant and Chimel on the basis of officer safety.

Judgment affirmed.

Smith, P. J., concurs. Adams, J., concurs in judgment only.

Gwendolyn Keyes Fleming, District Attorney, William T Kemp III, Daniel J. Quinn, Assistant District Attorneys, for appellee.

This section of the Code, if construed alone, would appear to authorize the contentions of counsel, but our system of law is not to be construed by single Code sections or single provisions of the law; the entire system must be construed as a whole to determine the intent and purpose of the law as applied to each particular case or state of facts.

Lucas v. Smith, 201 Ga. 834, 837 (41 SE2d 527) (1947). In other words, “[a] statute must be construed to give sensible and intelligent effect to all of its provisions and to refrain from any interpretation which renders any part of the statute meaningless.” (Citations and punctuation omitted.) Expedia, Inc. v. City of Columbus, 285 Ga. 684, 689 (4) (681 SE2d 122) (2009).

Thus, OCGA § 9-9-6 (b) and (d) must be construed together, considering that (b) refers to (d), and (d) states that the right to apply for a stay may be waived “as provided in this Code section.” It would be illogical to construe the statute to allow a party to fully participate in the arbitration process but still retain the absolute right to seek a stay any time the other party amends its statement of facts. If the party initiating the arbitration amends its claim to add an entirely new and different issue, then the respondent would have the right under OCGA § 9-9-6 (d) to seek a stay within 30 days regardless of whether it participated in arbitrating the original issues. But construing the statute as a whole, a party who has participated in the arbitration process has no right to apply for a stay simply because the initiator amends its statement of facts. This construction harmonizes subsection (b)’s provision allowing a party who has not participated in arbitration to apply for a stay with subsection (d)’s provision that the respondent’s right to seek a stay may not be waived except as otherwise provided in the Code section.

VCC’s demands for arbitration put Atlantic Station on notice that its claims arose out of an understanding between the parties and not from the written contracts. While Atlantic Station asserts that it did not know the basis for VCC’s arbitration demand until VCC’s second amended demand 18 months after its initial demand, VCC claimed in its very first arbitration demand that the parties had proceeded to collaborate under “mutual understandings” which modified the terms of the written contracts. Atlantic Station actively participated in the arbitration from January 2008 to July 2009, and then, once the facts were developed, challenged the demand and initiated a new action by filing a motion to stay the arbitration. By participating for 18 months in the arbitration process regarding Vratsinas’ $4.6 million claim for services rendered, Atlantic Station waived its right to seek a stay after Vratsinas amended its supporting facts.

The trial court did not err in denying Atlantic Station’s motion to stay the arbitration.

Based on the foregoing, Atlantic Station’s enumerations of error are moot.

Judgment affirmed.

        Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968).

       556 U. S. 332 (129 SC 1710, 173 LE2d 485) (2009).

       Id., 129 SC at 1723-1724 (VI). The search under consideration took place on January 3, 2009. Gant was decided on April 21, 2009.

       (Punctuation and footnotes omitted.) State v. Rowell, 299 Ga. App. 238-239 (682 SE2d 343) (2009).

       (Citation omitted.) Brittian v. State, 257 Ga. App. 729, 731 (572 SE2d 76) (2002).

       (Footnote omitted.) Pruitt v. State, 263 Ga. App. 814, 816-817 (1) (589 SE2d 591) (2003).

       Id. at 817 (1); accord Carrera v. State, 261 Ga. App. 832, 834 (584 SE2d 2) (2003).

       (Citations and footnote omitted.) McClain v. State, 226 Ga. App. 714, 716-717 (1) (487 SE2d 471) (1997) (officer pulled up alongside defendant in parking lot). Accord Carrera, supra (police approaching parked car is first-tier encounter); Mijares v. State, 252 Ga. App. 804, 805 (2) (556 SE2d 927) (2001) (first-tier encounter where officer did not create impression that defendant could not leave, after officer approached defendant standing outside his parked car).

       Cf. State v. Kaylor, 234 Ga. App. 495, 496-498 (507 SE2d 233) (1998) (officer parked his car behind defendant’s van in parking lot of a convenience store but did not block van’s means of egress; officer approached defendant and requested license and proof of insurance; stop was a first-tier encounter).

       The trial court also found that the search was justified as an inventory search because the officer testified that he planned to impound the vehicle. The state concedes that this finding is erroneous because the car was legally parked outside of Boykins’s apartment at the time of the search and was released to his wife.

       395 U. S. 752 (89 SC 2034, 23 LE2d 685) (1969).

       Id. at 762-763. Accord Banks v. State, 246 Ga. 178, 180 (2) (269 SE2d 450) (1980) (“it is reasonable for an officer to search an area surrounding the arrest area into which a suspect might reach to obtain a weapon”) (citations omitted).

        Chimel, supra at 753.

       453 U. S. 454 (101 SC 2860, 69 LE2d 768) (1981).

       (Citations and footnotes omitted.) Id. at 460 (II).

        Hurley v. State, 287 Ga. App. 482, 483 (651 SE2d 748) (2007); Vega v. State, 236 Ga. App. 319, 320 (512 SE2d 65) (1999); State v. Hopkins, 163 Ga. App. 141, 144 (293 SE2d 529) (1982) (whole court).

       Supra.

       (Footnote omitted.) Id., 129 SC at 1719 (III).

       (Citation and punctuation omitted.) Id. See Humphreys v. State, 287 Ga. 63, 76 (7) (694 SE2d 316) (2010).

       (Citation omitted.) Gant, supra, 129 SC at 1716 (II).

       Id., 129 SC at 1718 (III).

       Id. at 1723-1724 (VI).

       (Citation omitted; emphasis supplied.) Id. at 1719 (III), n. 4.


author: SMITH, Presiding Judge.

text:
    A10A1377.
    SLAICK v. ARNOLD.
    (705 SE2d 206)
   SMITH, Presiding Judge.

Nancy Slaick appeals from the superior court’s order declaring that a deed transferring Katie Day’s interest in real property to Slaick was void because it lacked “valid and valuable consideration.” For the reasons set forth below, we reverse in part, vacate in part, and remand this case to the trial court to make findings with regard to the issues of fraud and after-acquired title.

The record shows that the administrator of Day’s estate, Emmett J. Arnold, filed an action for declaratory judgment in probate court against Slaick to determine if Slaick received a valid deed from Day before her death. The administrator asserted the deed might not be valid based upon an after-acquired title problem, as well as issues of invalid consideration and fraud in the inception. Based upon the consent of the parties, the probate court transferred resolution of these issues to the superior court. Following a bench trial, the superior court ruled in favor of Day’s estate.

“The [trial] court is the trier of fact in a bench trial, and its findings will be upheld on appeal if there is any evidence to support them. The plain legal error standard of review applies where the appellate court determines that the issue was of law, not fact.” (Citation and punctuation omitted.) Crowell v. Williams, 273 Ga. App. 676 (1) (615 SE2d 797) (2005). So viewed, the record shows that the real property at issue in this case was previously owned by Cora Belle Dorsey, who died on September 4, 1989. In her will, Dorsey devised the property at issue to Day and Slaick “share and share alike.” Slaick, as the executor of Dorsey’s will, filed an assent to the devise on August 2, 1991 “so that full fee-simple title thereto is vested in [Day and Slaick] as provided in [Dorsey’s] will.”

On April 20, 1990, before Slaick’s devise from Dorsey’s estate to Day and Slaick, Day and Slaick went to an attorney’s office for the purpose of executing reciprocal deeds for the property at issue that reserved a life estate for each grantor. According to Slaick,

Aunt Belle wanted her to fix this here so that if I died first it went to mother, but if she died first it went to me. And reserve for herself a life estate. She told my mother that. . . . And it had been over six months and I hadn’t even mentioned it to my mother and she mentioned it to me, we need to go and do what Cora Belle wanted us to do. . . .

The deed from Day to Slaick provides:

[F]or and in consideration of LOVE AND AFFECTION AND OTHER GOOD AND VALUABLE CONSIDERATION, the receipt of which is hereby acknowledged, has bargained, sold and does by these presents bargain, sell, remise, release, and forever quit-claim to [Slaick], her heirs and assigns, all the right, title, interest, claim or demand which [Day] has or may have had or may acquire in the future in and to [the property at issue].
Day “expressly reserves for herself a life estate in and to the aforesaid lands, it is the intent of the grantor to deed a remainder interest only.”

It is undisputed that the reciprocal deed from Slaick to Day was never recorded and cannot be located.

In Day’s will, she devised her half interest “in any real property owned jointly by me and [Slaick]” to her four other children. She then specifically identified the property at issue in this suit. Day died on March 27, 2006.

Following a bench trial, the trial court issued an order declaring the deed from Day to Slaick “void as it lacks valid and valuable consideration.” The trial court reasoned, “In Georgia, deeds which are giv[en] for ‘Love and Affection and other Good and Valuable Consideration’ but do not state a monetary amount given are voluntary, and on their face, lack valid consideration required to effectuate a binding transfer.”

Slaick appealed to the Georgia Supreme Court, which transferred the case to this court through the following order:

Appellant filed this direct appeal seeking to invoke this Court’s jurisdiction over “(c)ases involving title to land . . ..” Ga. Const, of 1983, Art. VI, Sec. VI, Par. Ill (1). But this Court has defined title to land cases as “actions at law, such as ejectment and statutory substitutes, in which the plaintiff asserts a presently enforceable legal title against the possession of the defendant for the purpose of recovering the land.” Graham v. Tallent, 235 Ga. 47 (218 SE2d 799) (1975). Here, appellee did not dispute appellant’s record ownership of the property at issue; instead, appellee sought a judicial declaration that appellant’s deed was void for various reasons including lack of valid consideration. Therefore, this case does not come within this Court’s title to land jurisdiction. See Arrington v. Reynolds, 274 Ga. 114 (549 SE2d 401) (2001). Nor does this case invoke the equity jurisdiction of this Court since any equitable relief sought is ancillary to the legal issues on appeal. See Arrington v. Reynolds, supra at 115; Redfearn v. Huntcliff Homes Assn., 271 Ga. 745 (524 SE2d 464) (1999). Finally, although this case originated as an action to probate a will, it does not involve the validity or meaning of any provision of a will and thus is not a case “involving wills” such that this Court would have jurisdiction pursuant to Ga. Const, of 1983, Art. VI, Sec. VI, Par. Ill (3). See In re Estate of Lott, 251 Ga. 461 (306 SE2d 920) (1983). Accordingly, it hereby is ordered that this appeal be transferred to the Court of Appeals.

All the Justices concur, except Melton, J., who dissents.

1. Slaick correctly asserts that the trial court erred by voiding the deed for lack of consideration. “[I]n the absence of some equitable ground such as fraud, a voluntary deed will not be canceled on the ground of a lack of consideration.” (Citation omitted.) Williams v. Lockhart, 221 Ga. 343, 344 (1) (144 SE2d 528) (1965). The case relied upon by the trial court, McDonald v. Taylor, 200 Ga. 445, 449 (1) (37 SE2d 336) (1946), does not apply here. Instead, it applies to cases involving a transfer of land to a bona fide purchaser after the same land was voluntarily conveyed to another without consideration. Id. at 450 (1).

The administrator appears to argue that a reciprocal deed from Slaick was the actual consideration for Day’s deed based upon parol evidence submitted during the trial. Because this deed cannot be located, the administrator asserts that the consideration promised for Day’s deed was never given and her deed is therefore void.

We find no merit in this argument. “Failure to pay the consideration promised, although it constitutes a breach, does not render the conveyance invalid for lack of consideration.” Barrett v. Simmons, 235 Ga. 600, 601-602 (1) (221 SE2d 25) (1975). See also Jones v. Brawner, 151 Ga. App. 437, 439-440 (260 SE2d 385) (1979).

2. Slaick asserts the trial court erred by concluding the deed lacked consideration because Day did not have title at the time she executed the deed. Based upon our review of the trial court’s order, it does not appear that the trial court grounded its finding of no consideration on this basis. As a result, we cannot rule on this issue. Pantusco v. Wiley, 274 Ga. App. 144, 147 (2) (616 SE2d 901) (2005).

Decided November 17, 2010

Reconsideration denied December 15, 2010.

James F. Baker, for appellant.

Driebe & Driebe, Charles J. Driebe, for appellee.

3. Because the trial court’s order does not address the administrator’s claim of fraud in the inception and Slaick’s claim regarding after-acquired title, we must vacate the trial court’s judgment declaring the deed void and remand this case to the trial court to make findings with regard to these issues.

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

Mikell and Adams, JJ., concur.

       In Arrington, a homeowner sought to set aside a foreclosure sale and deed based upon improper notice of the foreclosure proceedings.


author: Mikell, Judge.

text:
    A10A1385.
    PATTMAN v. MANN et al.
    (701 SE2d 232)
   Mikell, Judge.

Fifty-eight-year-old Willie Pattman was admitted to Banks, Jackson, Commerce Hospital and Nursing Home Authority d/b/a BJC Medical Center (“BJC”) on August 8, 2003, for gastrointestinal bleeding and died the following day. His surviving spouse and the administrator of his estate, Mary Alice Pattman, filed a wrongful death action against Lorraine Dale Mann, R.N.; Roberta Faye Samet Keller, R.N.; and BJC (collectively “appellees”), alleging that appel-lees’ failure to obtain blood and administer a blood transfusion in a timely manner, as ordered by Mr. Pattman’s treating physician, caused Mr. Pattman’s death. The trial court granted summary judgment in favor of appellees, ruling that Pattman’s claims sounded in professional negligence — not ordinary negligence — which required an affidavit pursuant to OCGA § 9-11-9.1. Pattman appeals, contending generally that the trial court erred in granting summary judgment on her ordinary negligence claim. We disagree and affirm.

To prevail at summary judgment. . . , the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiffs case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiffs claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial. ... If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.

We review de novo a trial court’s grant of summary judgment, construing the evidence most favorably to the nonmovant. So viewed, the evidence shows that on August 8, 2003, Mr. Pattman went to his cardiologist, Dr. Narasimhulu Neelagaru, to obtain treatment for rectal bleeding. Dr. Neelagaru, who previously had prescribed the blood thinner Coumadin for Mr. Pattman’s cardiac condition, diagnosed him with gastrointestinal bleeding and admitted him to BJC at approximately 6:00 p.m. At BJC, Mr. Pattman received treatments ordered by Dr. Neelagaru and a physician’s assistant. At approximately 6:00 a.m. on August 9, 2003, Dr. Neela-garu ordered fresh frozen plasma and a blood transfusion; however, because Mr. Pattman had rare antibodies in his blood, the blood had to be obtained from the American Red Cross in Atlanta, which also tested a sample of Mr. Pattman’s blood for antibody identification and cross-matching. In the meantime, Mr. Pattman received continuing medical treatment, including the fresh frozen plasma and other medications while the ICU awaited delivery of the blood. At approximately 6:40 p.m., a courier service delivered the blood to BJC. According to Riczen Mamites, the medical technologist on duty in the BJC laboratory at the time the blood was delivered, when blood arrives at the hospital it is retyped, a process that takes 15 to 30 minutes. Mamites testified that the blood would have been ready by 7:30 p.m. at the latest, and that he called the ICU to pick it up but that no one came. According to appellee Lori Mann, the nurse on duty in the ICU from 7:00 a.m. to 7:00 p.m. on August 9, the laboratory never called to advise that the blood had arrived or that it was ready for pickup. Appellee nurse Keller testified that she was on duty at 6:00 a.m. on August 9, when Dr. Neelagaru ordered a blood transfusion and that when she came back on duty at approximately 7:00 p.m., no blood transfusion had been given. At 7:27 p.m., Mr. Pattman experienced a cardiac arrest and died shortly thereafter.

Pattman filed a wrongful death action on July 22, 2005, alleging that appellees committed professional negligence in their care and treatment of her husband. Although the complaint references an attached affidavit, filed in accordance with OCGA § 9-11-9.1, one is not attached to the complaint. However, in response to BJC’s request for production of documents, Pattman filed the affidavit of Andre Jawde, M.D., a cardiothoracic surgeon. Shortly thereafter, BJC moved to exclude Dr. Jawde’s expert testimony on the ground that he was not qualified as an expert under OCGA § 24-9-67.1. The trial court granted the motion, ruling that Dr. Jawde lacked the requisite experience and knowledge in nursing and/or hospital laboratory operations to offer standard of care testimony against appellees. The trial court further ruled that Dr. Jawde’s opinion, that Mr. Pattman would not have died had he received a blood transfusion any time before he went into cardiac arrest, was speculative and lacked scientific support. Following this ruling, appellees moved for summary judgment, alleging that Pattman’s claim for professional negligence was unsupported by expert medical testimony. Pattman subsequently amended her complaint, alleging that Mann, Keller, and other BJC employees/agents committed ordinary negligence in failing to comply timely with Dr. Neelagaru’s orders to obtain and administer frozen plasma, vitamin K, and red blood cells. The trial court concluded that Pattman’s claims sounded in professional negligence, requiring expert testimony and, therefore, granted summary judgment to appellees. This appeal followed.

In three related enumerations of error, Pattman contends that the trial court erred in granting summary judgment in favor of appellees because her wrongful death claim alleges only ordinary negligence. We disagree.

“Whether a complaint alleges ordinary negligence or professional malpractice is a question of law for the court, regardless of how the plaintiff categorizes it.”

Although complaints against professionals may state claims based on ordinary as well as professional negligence, where the allegations of negligence against a professional involve the exercise of professional skill and judgment within the professional’s area of expertise, the action states professional negligence.

“If a claim of negligence goes to the propriety of a professional decision rather than to the efficacy of conduct in the carrying out of a decision previously made, the claim sounds in professional malpractice.” However, “administrative, clerical, or routine acts demanding no special expertise fall in the realm of simple negligence.”

Pattman argues that the failure of Mamites, the lab technologist, to notify nurses that the blood had arrived did not involve the exercise of professional skill and judgment but was a purely administrative act, “a simple, mandatory, and non-discretionary phone call,” sounding in ordinary negligence. In support of this assertion, Pattman points to Mamites’s deposition testimony, wherein he stated that laboratory/hospital procedure required him to call the ICU twice, once when the blood arrived and a second time when the blood was ready. We are not persuaded by Pattman’s attempt to categorize her claim as one involving a simple failed telephone call. As noted previously, Pattman alleged in her amended complaint that BJC employees and agents failed to comply timely with Dr. Neela-garu’s orders to obtain and administer frozen plasma, vitamin K, and red blood cells. While we have held that a hospital employee’s failure to carry out instructions can constitute ordinary negligence, such is not the case here. The allegation of negligence here was not that a simple phone call was not made, but that the red blood cells and other treatments were not administered to Mr. Pattman as quickly as they should or could have been, and that this failure to act timely caused Mr. Pattman’s death. Whether or not the treatments ordered by Dr. Neelagaru and carried out by BJC employees were timely, particularly given that Mr. Pattman’s blood contained rare antibodies, is a question of medical judgment and the duties involved in the administration of medications and treatments constitute a professional service. In this case, BJC agents/employees “[were] not simply effecting a judgment previously made by another, [they were] exercising an independent medical judgment that required [them] to evaluate [Mr. Pattman]” and then act accordingly to obtain blood compatible with his condition. Whether BJC employees should have recognized that this was a medical emergency, whether they proceeded correctly given the medical situation, whether they should have called the lab to ascertain the whereabouts of the blood and/or advise the lab that Mr. Pattman’s situation was urgent, and whether Mr. Pattman died as a result of the delays allegedly caused by hospital employees are all medical questions that require expert testimony. Contrary to Pattman’s argument, “this is not a case involving merely administrative actions by the employees, such as simply moving the patient or leaving the patient unsupervised and unrestrained.”

Even if this Court were to categorize Pattman’s claim against BJC as one for ordinary negligence based on Mamites’s alleged failure to call the ICU when the blood arrived, we agree with the trial court that Pattman has failed to demonstrate a causal connection between this negligent conduct and Mr. Pattman’s death. In order to maintain a cause of action for ordinary or professional negligence, a plaintiff must prove the following elements: “(1) a legal duty to conform to a standard of conduct; (2) a breach of this duty; (3) a causal connection between the conduct and the resulting injury; and (4) damage to the plaintiff.” “If the defendant is successful in piercing plaintiffs pleadings with regard to one essential element, the defendant is entitled to summary judgment regardless of whether issues of fact remain with regard to the other elements.”

Here, Pattman has pointed us to no admissible medical testimony to support her claim that Mamites’s failure to call the ICU when the blood arrived caused her husband’s death. On the other hand, appellees supported their summary judgment motion with the deposition of Dr. Dollar, who testified that even if Mamites had called the ICU when the blood arrived at 6:40 p.m., the blood had to be retested and would not have been ready for another 20 minutes. Dr. Dollar averred that arrival of the blood in the ICU at 7:10 p.m. or even 7:00 p.m. was still too late to save Mr. Pattman’s life. It was Dr. Dollar’s unequivocal opinion that Dr. Neelagaru was guilty of “gross malpractice and negligence”; he did not have any criticism of the hospital’s actions. Dr. Dollar deposed that Dr. Neelagaru and his staff should have made it clear in the initial transfusion order at 6:00 a.m. that this was a medical emergency and that in such a situation, he would have called the blood bank himself to convey the urgency of the situation. According to Dr. Dollar, if the blood had arrived at noon and was administered in a timely fashion, Mr. Pattman may have survived; however, at the same time, it was incumbent upon Dr. Neelagaru to reverse the “anticoagulation” of Mr. Pattman’s blood by ordering the proper amount of fresh frozen plasma, which he did not do. Nevertheless, Pattman contends that there is expert testimony by Drs. Jawde and Neelagaru that Mr. Pattman would have survived had he received a blood transfusion. While Dr. Jawde testified that Mr. Pattman’s condition could have been reversed had he received a blood transfusion at 7:00 p.m. or 7:10 p.m., the trial court excluded Dr. Jawde’s testimony as speculative and lacking scientific support, and Pattman has not challenged that ruling. As for Dr. Neelagaru’s testimony, he merely agreed that Mr. Pattman died from blood loss and opined that he would not have died if he had not experienced such massive blood loss. Because there is no evidence that Mr. Pattman would have survived had Mamites called the ICU when the blood arrived and/or was ready, Pattman cannot “point to specific evidence giving rise to a triable issue.”

Pattman contends that she does not need to provide medical evidence of causation because the link between Mamites’s negligent act and Mr. Pattman’s death is well within the common knowledge of a jury. This argument is controlled adversely to Pattman by R. J. Taylor Mem. Hosp. v. Gilbert, which also involved a simple negligence claim against a hospital under the doctrine of respondeat superior. “Although [Mamites’s negligence in failing to call the ICU] was not an issue involving expert medical testimony...[,] the proximate cause of the damages sought by [Pattman] does present a medical question controlled by expert medical testimony.” The question of whether or not Mamites’s failure to call the ICU, resulting in the failure of the ICU to administer a blood transfusion, caused Mr. Pattman’s death, requires expert testimony, which was excluded in this case.

Judgment affirmed.

Smith, P. J., and Adams, J., concur.

Decided November 17, 2010

Reconsideration denied December 15, 2010.

David E. Betts, for appellant.

Huff, Powell & Bailey, Anna B. Fretwell, for appellees.

       (Citations omitted; emphasis in original.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

        Rooks v. Tenet Health System GB, 292 Ga. App. 477 (664 SE2d 861) (2008).

       Dr. Neelagaru was a party to the original action but was dismissed with prejudice.

       (Punctuation and footnote omitted.) Walls v. Sumter Regional Hosp., 292 Ga. App. 865, 868 (2) (666 SE2d 66) (2008).

       (Punctuation and footnote omitted.) Id. at 868-869 (2).

       (Punctuation and footnote omitted.) Baskette v. Atlanta Center for Reproductive Medicine, 285 Ga. App. 876, 880 (3) (648 SE2d 100) (2007); Upson County Hosp. v. Head, 246 Ga. App. 386, 389 (1) (540 SE2d 626) (2000).

       (Punctuation and footnote omitted.) Baskette, supra at 880 (4).

       See Smith v. North Fulton Med. Center, 200 Ga. App. 464, 465-466 (1) (408 SE2d 468) (1991) (heavily sedated patient fell out of bed; evidence showed her bed rail was down).

       See, e.g., Wellstar Health System v. Painter, 288 Ga. App. 659 (655 SE2d 251) (2007).

       Id. at 662.

       See id.

       (Punctuation omitted.) Id. at 663, citing Shirley v. Hosp. Auth. of Valdosta/Lowndes County, 263 Ga. App. 408, 410 (1) (587 SE2d 873) (2003).

       The affidavit requirement does not apply to any acts committed by Mamites, who is not recognized as a “professional” under Georgia law. See OCGA § 14-7-2. Compare Robinson v. Med. Center of Central Ga., 217 Ga. App. 8, 9 (456 SE2d 254) (1995) (“affidavit is required in an action against a hospital where . . . liability is predicated on the doctrine of respondeat superior and the averment of acts or omissions requiring the exercise of professional skill and judgment by agents or employees who themselves are recognized as ‘professionals’ under [the Code section]”) (citation and punctuation omitted).

       (Citations omitted.) Johnson v. American Nat. Red Cross, 253 Ga. App. 587, 591-592 (2) (569 SE2d 242) (2002).

       (Citation and punctuation omitted.) Id. at 592 (2).

       Pattman’s own (excluded) expert, Dr. Jawde, opined that Dr. Neelagaru should have ordered the fresh frozen plasma, blood, and blood typing and cross-matching upon Mr. Pattman’s admission to BJC on the evening of August 8, 2003.

       (Punctuation and footnote omitted.) Naik v. Booker, 303 Ga. App. 282, 290 (2) (692 SE2d 855) (2010) (Mikell, J., concurring specially).

         213 Ga. App. 104 (443 SE2d 656) (1994), rev’d on other grounds by Gilbert v. R. J. Taylor Mem. Hosp., 265 Ga. 580 (458 SE2d 341) (1995).

       (Citation omitted.) R. J. Taylor, supra at 105.