text:
    A12A0649.
    NORFOLK SOUTHERN RAILWAY COMPANY v. HARTRY et al.
    (729 SE2d 656)
   Blackwell, Judge.

On June 16, 2010, a train operated by Norfolk Southern Railway Company collided with a tractor-trailer in Clayton County. Pursuant to an agreement between Norfolk Southern and Science Applications International Corporation, Inc. (“SAIC”), the train was equipped with an event data recorder known as “RailView” that is owned by SAIC and licensed to Norfolk Southern. The RailView device records digital images of the train’s movement, as well as data about the train’s speed, direction, horn activity, and braking activity.

Winford Hartry, who was the engineer of the train, was injured as a result of the collision. After Hartry and his wife sued Norfolk Southern and others, they sought discovery from Norfolk Southern of the data recorded by the train’s RailView system around the time of the collision. Norfolk Southern agreed to provide a copy of the data disk to the Hartrys, but only under certain conditions, and Norfolk Southern advised the Hartrys that they would only be able to view the information on the RailView data disk if they “obtain[ed] the proprietary Rail[V]iew Playback software directly from SAIC” for $500. Norfolk Southern claimed that it could not provide the Hartrys with a copy of the data disk without imposing these conditions because it owned nothing more than a license to the SAIC software, that the software is necessary to view the data, and Norfolk Southern’s agreement with SAIC did not allow it to provide the software to the Hartrys or anyone else.

The Hartrys filed a motion to compel discovery, and Norfolk Southern filed a motion for a protective order to prevent the Hartrys from requiring it to produce the RailView data except under the conditions it had offered. The court below granted the motion to compel and denied the motion for a protective order. Its order requires Norfolk Southern to provide the RailView video and data recordings “in some usable form to the [Hartrys]” either by obtaining permission from SAIC to produce the data to the Hartrys (presumably through Norfolk Southern’s purchase of a $500 license for the benefit of the Hartrys), by providing the Hartrys with a computer with the necessary software, or by producing the data through “any other method the parties may agree to . . . ,” Norfolk Southern now appeals from that ruling, claiming that the court below erred in granting the Hartrys’ motion to compel. But we will not reverse a trial court’s ruling on discovery matters absent a clear abuse of discretion. Ambassador College v. Goetzke, 244 Ga. 322, 323 (1) (260 SE2d 27) (1979); Dempsey v. Kaminski Jewelry, 278 Ga. App. 814, 815 (630 SE2d 77) (2006); see also Vaughn & Co. v. Saul, 143 Ga. App. 74, 80 (4) (237 SE2d 622) (1977) (“Historically it has been the policy of Georgia appellate courts not to interfere with the trial judge’s broad discretion granted to him under the discovery provisions of the Civil Practice Act.”). We find no abuse of discretion here.

Pursuant to OCGA § 9-11-26 (b) (1), parties to a lawsuit “may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action.” Here, the relevance of the materials sought to be discovered, which relate to the functioning of the train before and during the collision, is not disputed. Indeed, the information included in the RailView data is not only directly relevant, but it appears to be critical to the claims asserted by the Hartrys. But while the parties apparently agree about the relevance of the RailView data, they do not agree about who should bear the expense of providing the Hartrys with access to it.

Under OCGA § 9-11-34 (a), any party may request that another party “produce and permit the party making the request... to inspect and copy [discoverable] documents ...” And when, as here, the document to be produced is a “data compilation” from which information can be obtained, the producing party is tasked with translating the document “through detection devices into reasonably usable form.” Id. So, while a requesting party does not have the right to unrestricted and direct access to a producing party’s data compilations, OCGA § 9-11-34 (a) allows the requesting party to inspect and copy the data after the producing party has translated the data into a reasonably usable form. And while the requesting party generally must bear the burden of its own inspection and copying, the producing party may be required to bear the expense of producing the documents and, when necessary, translating them into reasonably usable form.

The burden of discovery on the producing party will, therefore, vary from case to case, but courts have the discretion under OCGA § 9-11-26 (c) to protect the producing party against, among other things, “undue burden or expense” by a protective order that restricts discovery or requires that the requesting party be permitted to conduct the discovery only upon specified terms and conditions. See Simmons v. Community Renewal &c., 286 Ga. 6, 8 (3) (685 SE2d 75) (2009); see also Bloodworth v. Bloodworth, 225 Ga. 379, 392 (8) (169 SE2d 150) (1969). Unless the trial court has clearly abused its discretion, however, we will defer to its conclusion about whether a protective order should be granted. See McKesson HBOC v. Adler, 254 Ga. App. 500, 505 (3) (562 SE2d 809) (2002).

Here, Norfolk Southern filed a motion for a protective order, but the court below concluded that Norfolk Southern would not be saddled with an “undue burden or expense” if it was required to bear the cost of producing the RailView data in a form that would allow the Hartrys to make their own copy of the data. It appears undisputed that, at most, producing the data in a reasonably usable form would require Norfolk Southern to pay SAIC $500 for an additional license for the Hartrys to use the SAIC software. We cannot say that the court below clearly abused its discretion in making such a determination, especially given the crucial nature of the evidence, the relatively minor cost of the license when compared to the amount at stake in the lawsuit, and the fact that it was Norfolk Southern’s decision to equip its locomotive with a licensed device for recording data so that it would only be able to provide that data to third parties upon payment of a license fee.

Decided June 29, 2012

Hall, Bloch, Garland & Meyer, Eileen M. Crowley, Amanda R. Smith, for appellant.

Warshauer, Poe & Thornton, Michael J. Warshauer, Douglas C. Dumont, for appellees.

It is true, of course that a party ordinarily must finance its own litigation, see Baum v. Village of Chittenango, 218 FRD 36, 40-41 (2) (B) (N.D. N.Y. 2003), and no one should mistake our decision today as a retreat from that principle or as a generalized endorsement of cost shifting. We hold only that, in the circumstances presented here, the decision below was no clear abuse of discretion.

Judgment affirmed.

Mikell, P. J., and Miller, J., concur.

Kilpatrick, Townsend & Stockton, Joseph M. Beck, Sabina A. Vayner, amici curiae.

       We note that, although the court below denied Norfolk Southern’s motion for a protective order, it did place several conditions on the Hartrys’ use of the data, ordering them to file any of the digital video data under seal and precluding them from making copies of the images or using the images for any purpose other than their lawsuit.

       Norfolk Southern does not appear to appeal explicitly the denial of its motion for a protective order, although the issues involved in the grant of the motion to compel and the denial of the motion for a protective order are substantially identical.

       Although OCGA § 9-11-34 does not define “data compilation” or describe when such a compilation must be translated by the producing party, the Georgia discovery rules are based on the 1970 amendments to the Federal Rules of Civil Procedure. McKinnon v. Smock, 264 Ga. 375, 380 (2) (445 SE2d 526) (1994) (Fletcher, J., dissenting); see also Trammel v. Nat. Bank of Ga., 159 Ga. App. 850, 851 (1) (285 SE2d 590) (1981). The Advisory Committee notes to those amendments provide that the rule
      applies to electronic data compilations from which information can be obtained only with the use of detection devices, and that when the data can as a practical matter be made usable by the [requesting] party only through [the producing party]’s devices, [the producing party] may be required to use his devices to translate the data into usable form.

        Crown Life Ins. Co. v. Craig, 995 F2d 1376, 1383 (II) (7th Cir. 1993). And the 1972 proposed rules advisory committee note to Federal Rule of Evidence 803(6) explains that
      the expression “data compilation” is used as broadly descriptive of any means of storing information other than the conventional words and figures in written or documentary form. It includes, but is by no means limited to, electronic computer storage. The term is borrowed from revised Rule 34(a) of the Rules of Civil Procedure.
      (Punctuation omitted.) Williams v. Sprint/United Mgmt. Co., 230 FRD 640, 648 (II) (B) (1) (b) (D. Kansas 2005).

       See Moses v. Jordan, 310 Ga. App. 637, 648 (5) (714 SE2d 262) (2011) (reversed on other grounds by Jordan v. Moses, 291 Ga. 39(727 SE2d460) (2012)) (trial court may allow requesting party to inspect, copy, test, or sample a tangible thing, but “nothing in the Civil Practice Act provides authority for a trial court to confiscate the personal property” of the producing party).

       See Nichols v. Ga. Television Co., 250 Ga. App. 789, 792 (2) (552 SE2d 550) (2001) (trial court properly exercised its discretion when it concluded that it was reasonable to require the requesting party to pay a third party $200 for the cost of copying videotapes).

       In addition, where the requesting party has filed a subpoena requesting the production of documents, the court has the discretion to “quash or modify the subpoena if it is unreasonable and oppressive, or condition denial of the motion upon the advancement... of the reasonable cost of producing the . . . documents.” OCGA § 9-11-45 (a) (1) (C); Ga. Emission Testing Co. v. Reheis, 268 Ga. App. 560, 564 (2) (602 SE2d 153) (2004).

       The record before us includes only SAIC’s “standard software license agreement,” and it is not clear from the record that the agreements between Norfolk Southern and SAIC were limited to this form agreement. In any event, we assume without deciding that Norfolk Southern is correct when it says that it is unable to provide the RailView data to the Hartrys unless SAIC is paid $500 for the additional license. But as we noted before, the order of the court below did not require Norfolk Southern either to pay the license fee or to violate its agreements with SAIC, but instead allowed Norfolk Southern to provide the Hartrys with access to the RailView data in several different ways, including any way agreeable to all the parties. And given that it is undisputed that the terms of any agreements between Norfolk Southern and SAIC allowed Norfolk Southern to provide the RailView data to a third party if the third party had a license to use SAIC’s software, Norfolk Southern was not required by the order to violate the terms of its agreements.

       We note that Norfolk Southern acknowledged in its pleadings that the $500 license fee was a “nominal sum.”

       While Norfolk Southern says in its appellate brief that it operates locomotives on over 21,000 miles of track in over 20 states and claims that the “modest cost” of a license to use the SAIC software “could lead to a tremendous burden” if it is required to pay for licenses in many other cases in the future, Norfolk Southern does not appear to have made any showing to the trial court about the estimated number of these future cases or the number of licenses, if any, that it has already had to purchase. Moreover, nothing in our decision today amounts to a finding that Norfolk Southern must bear the cost of producing RailView data in a reasonably usable form in every case in which such data exists and is relevant.


source: Caselaw Access Project

author: Andrews, Judge.

license: Public Domain

text:
    A12A0785.
    GEORGIA DEPARTMENT OF TRANSPORTATION v. CROOMS et al.
    (729 SE2d 660)
   Andrews, Judge.

While driving on Interstate 20 in Greene County in rainy weather, Estelle Meshal Crooms lost control of her vehicle, spun off the road across the grass right-of-way adjacent to the interstate, and crashed into trees. Crooms was injured in the single-vehicle accident and a passenger in the vehicle, Crooms’s minor daughter, Courtney Crooms, was killed. Crooms and her husband, Derick Crooms, sued the Georgia Department of Transportation (DOT) for the wrongful death of their daughter, injuries suffered by Crooms in the accident, and loss of consortium. The complaint, brought pursuant to the Georgia Tort Claims Act (GTCA) (OCGA § 50-21-20 et seq.), alleged that Crooms lost control because her vehicle hydroplaned on rain water, and that the DOT was responsible because it negligently failed to maintain Interstate 20 in a safe condition that would have prevented the accident.

Pursuant to OCGA§ 9-11-12 (b) (1), the DOT moved prior to trial for dismissal of the complaint asserting that, because it had sovereign immunity from the suit under the GTCA, the court lacked subject matter jurisdiction. After considering evidence supporting and opposing the motion, the trial court ruled that the DOT was not immune and denied the motion. The DOT brought this direct appeal. For the following reasons, we find the DOT was entitled to sovereign immunity and reverse.

Under the GTCA, sovereign immunity granted by the Georgia Constitution to the State and its departments, including the DOT, is waived subject to certain exceptions. Ga. Forestry Comm. v. Canady, 280 Ga. 825-826 (632 SE2d 105) (2006). To the extent the GTCA provides an exception to the waiver of sovereign immunity, the State and its departments remain immune from suit, and any suit to which an exception applies is subject to dismissal pursuant to OCGA § 9-11-12 (b) (1) for lack of subject matter jurisdiction. Steele v. Ga. Dept. of Transp., 271 Ga. App. 374-376 (609 SE2d 715) (2005). As the parties seeking to benefit from the waiver of sovereign immunity, the Croomses had the burden of establishing the waiver, and the trial court’s pre-trial determination of factual issues necessary to decide the DOT’s dismissal motion pursuant to OCGA § 9-11-12 (b) (1) is reviewed on appeal under the any evidence rule. Dept. of Transp. v. Dupree, 256 Ga. App. 668, 671 (570 SE2d 1) (2002); Steele, 271 Ga. App. at 376; OCGA § 9-11-12 (d).

In its dismissal motion, the DOT asserted that the GTCA exception to the waiver of immunity set forth in subsection (10) of OCGA § 50-21-24 established that it was immune from any claim based on the contention that it negligently failed to maintain Interstate 20 in a safe condition. Subsection (10) provides that

[t]he state shall have no liability for losses resulting from... [t]he plan or design for construction of or improvement to highways, roads, streets, bridges, or other public works where such plan or design is prepared in substantial compliance with generally accepted engineering or design standards in effect at the time of preparation of the plan or design.

The exception set forth in OCGA § 50-21-24 (10) retained the DOT’s immunity from a claim that an accident was proximately caused by the DOT’s negligent failure to adequately design and construct a roadway, as long as the evidence shows that the roadway was originally designed and constructed in substantial compliance with generally accepted engineering or design standards in effect at the time of the original design. Dept. of Transp. v. Cox, 246 Ga. App. 221, 223 (540 SE2d 218) (2000); Steele, 271 Ga. App. at 376. Although subsection (10) has no application to claims that the DOT negligently breached a duty to thereafter maintain the roadway in substantial compliance with the original design, it does render the DOT immune from claims that it negligently breached a duty to improve or upgrade the original design and construction of the roadway to current design standards to make it safer. Cox, 246 Ga. App. at 223; Daniels v. Dept. of Transp., 222 Ga. App. 237, 238-239 (474 SE2d 26) (1996). The DOT may, of course, elect to improve a roadway by altering its original design and construction. In that event, subsection (10) retains the DOT’s immunity from a claim that a proximate cause of an accident was the DOT’s negligent failure to adequately design and construct the subsequent improvement to the roadway which altered the original design, as long as the evidence shows that the improvement was designed and constructed in substantial compliance with generally accepted engineering or design standards in effect at the time of the improvement. Cox, 246 Ga. App. at 223-224. Again, subsection (10) does not apply to claims that the DOT negligently breached a duty to thereafter maintain the roadway in substantial compliance with its improved design, but it does render the DOT immune from claims that it has a duty to make further design improvements or upgrades to make the roadway safer. Daniels, 222 Ga. App. at 238-239; Cox, 246 Ga. App. at 223.

In the present case, there is no evidence that the DOT elected to improve Interstate 20 by altering its original design and construction, nor is there any evidence that the original design and construction of Interstate 20 was not in substantial compliance with generally accepted engineering or design standards in effect at the time of the original design. Accordingly, under OCGA § 50-21-24 (10), the DOT remained immune from any claim that the accident at issue was proximately caused by a negligent failure to adequately design or construct Interstate 20 in a manner that would have prevented Crooms’s vehicle from hydroplaning on rain water. In fact, after the DOT moved for dismissal of the complaint on the basis of sovereign immunity provided under the design exception set forth in OCGA § 50-21-24 (10), the Croomses entered into a stipulation with the DOT stating that “the parties hereby stipulate that the Plaintiffs have not and shall not assert or allege any claim against the DOT for damages arising out of negligent design or professional negligence.”

Rather, the Croomses contend that their complaint asserted ordinary negligence based on an allegation that the DOT negligently maintained Interstate 20 for which OCGA § 50-21-24 (10) provides no immunity. In support of this contention, the Croomses provided evidence showing that Crooms was driving on a section of Interstate 20 that had just experienced heavy rainfall; that while traveling 12 to 14 miles per hour below the posted speed limit she suddenly felt her steering wheel pull to the right; that she lost control of her vehicle, spun off the roadway, and crashed; and that she lost control because her vehicle hydroplaned on rain water on the roadway. The Croomses produced a professional engineer who testified that, based on rainfall data at or before the time of the accident, and considering the flow of rain water on the cross slope of Interstate 20, Crooms lost control of her vehicle because she hydroplaned on rain water flowing off the roadway. Another professional engineer produced by the Croomses testified that the accident occurred near a point where Interstate 20 made a transition from a curve, where rain water flowed off a three degree cross slope on the roadway in one direction, to a straight section, where rain water flowed off a one degree cross slope on the roadway in the opposite direction. According to this engineer, there was an area in the transition between the cross slopes where Interstate 20 had little or no cross slope, and this area created, not standing rain water, but an increased accumulation of flowing rain water that was a hydroplaning hazard. A police officer testified that, after a rain storm that occurred about a year prior to the present accident, she observed a small puddle of rain water on Interstate 20 near the accident area. Because evidence showed that other vehicles being driven in similar rainy conditions in the same area of Interstate 20 had previously hydroplaned on rain water and crashed, the Croomses contended that the DOT knew or should have known that this area of Interstate 20 was unsafe in those conditions and negligently failed to take steps to make the roadway safe. The Croomses also produced expert engineering testimony that the DOT could have addressed the hydroplaning hazard and made this area of Interstate 20 safer: (1) by placing an asphalt overlay on the concrete road surface to absorb and disperse the rain water; or (2) by placing grooves in the roadway to channel and disperse the rain water; or (3) by erecting signs on the roadway warning motorists of the hazard.

Assuming that Crooms lost control of her vehicle and crashed because of a hydroplaning hazard on Interstate 20 that the DOT knew about or should have known about, there is no evidence in the record that the hazard existed because Interstate 20 had deteriorated in some manner so that it no longer substantially conformed to its original design and construction. The DOT provided evidence based on surveys made after Crooms’s accident that showed the section of Interstate 20 at issue was originally designed and constructed, and thereafter maintained, in conformance with the generally accepted design standards in effect at the time of the original design. Nevertheless, the Croomses contend in their brief on appeal that the DOT had a duty to address a hydroplaning hazard at the accident site as part of routine maintenance to restore Interstate 20 because “concrete surfaces such as the roadway at issue wear down and need to be restored.” In support of their contention that Interstate 20 was worn down at the location of the accident and needed to be restored or maintained, the Croomses cited to a portion of an affidavit by one of their expert engineers filed in response to the DOT’s motion to dismiss about a year after the engineer’s deposition. The affidavit addresses the engineer’s prior deposition testimony about an increased accumulation of rain water where Interstate 20 was designed with little or no cross slope, and the steps he recommended that the DOT take to make the surface of the roadway safer. The affidavit states:

This area of accumulation of water on the roadway can and should have been remedied with minor, small scale, inexpensive maintenance activities affecting the surface of the roadway. This type of maintenance is regularly performed by or through the DOT maintenance department in response to areas of roadway that are accumulating water. The DOT regularly, as part of its ordinary maintenance of the state highway system, responds to problem areas where wrecks are occurring by implementing such small scale remedies, that in no way change the design of the roadway. Indeed, over time, the concrete surface of the roadway wears down and needs to be restored when there is a history of accidents at a particular, discrete location. This is a maintenance function and the responsibility of the maintenance department of the DOT. While the geometric configuration of 1-20 westbound in this area has not changed since it was built approximately forty years ago, there can be no question that the concrete surface was no longer in the same condition forty years later.

The affidavit does not state that the engineer saw any deteriorated or worn down areas of Interstate 20 at the accident location; it does not refer to any observation or measurement showing that Interstate 20 was deteriorated or worn down from its original design and construction at the accident location; and it concedes that Interstate 20’s original geometric configuration remains unchanged at the accident location. Instead, the affidavit simply offers the engineer’s opinion, based solely on a history of similar accidents at the accident location, that the roadway surface is worn down or deteriorated from its original design and construction, and needs maintenance to make it safe. The affidavit states that maintenance on the roadway is needed to restore Interstate 20 to its original condition, but the maintenance suggested in the affidavit is based on the same measures that the engineer suggested in his prior deposition — an asphalt overlay on the concrete surface to absorb and disperse rain water; grooves in the roadway to channel rain water; and signs to warn about the hazard. Although characterized as “maintenance,” these measures involve improvements to the original design of the roadway, not maintenance to restore the roadway to its original design and construction to remedy wear or deterioration.

In fact, the engineer’s earlier deposition testimony confirms that he examined Interstate 20 at the accident site and reported no visible wear or deterioration in the roadway. In the deposition, the engineer testified that the construction of Interstate 20’s concrete road surface according to the original design was completed in the early 1970s, and that he visited, surveyed, and photographed the roadway at the accident site in 2007. When asked at his deposition what observable evidence was present at the accident site on Interstate 20 to show that the roadway was unsafe, the engineer pointed only to: (1) the history of similar hydroplane accidents at that location, and (2) the original design of Interstate 20 in the transition area between cross slopes at that location. The engineer was specifically asked at his deposition: “Did you ever make a comparison with the designed cross slope for the same area that you surveyed and how it compared with what you surveyed out there? In other words, did you compare the design plans to what was ultimately constructed or what actually exists out there today?” He responded that he did not make that comparison; that he did not test the roadway for rain water flow; that he did not check the roadway for wear or rutting caused by wheel tracks or for cracking; and that he did not test the roadway for “skid-resistance numbers or pavement texture.” The engineer testified he was aware that in the late 1990s the DOT employed contractors to do routine maintenance work on the concrete surface of Interstate 20 in the subject area, and concluded that “if there were any construction defects in the material or surface itself, those kinds of work by contractors would be removing that anyway.” The engineer further testified that the DOT’s maintenance work did not change the design or geometries of the roadway, and that he had no criticisms of the maintenance work. Finally, he was asked: “Isn’t the problem with the roadway, whatever this problem is, a problem at the time it was built?” to which he responded, “Could have been. I don’t have any information about that.”

To the extent the engineer’s earlier deposition testimony contradicted his affidavit opinion regarding the condition of the roadway at the accident site, the contradiction cannot be addressed by this Court under the contradictory testimony rule in Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (343 SE2d 680) (1986). Under that rule, the portions of a party’s contradictory testimony favorable to the party’s claim are construed against the party. Id. But as the Supreme Court has made clear, the contradictory testimony rule does not apply to the testimony of a nonparty witness, so it does not apply to the engineer’s expert testimony. Thompson v. Ezor, 272 Ga. 849, 851-853 (536 SE2d 749) (2000). Nevertheless, there are no facts in the record showing that Interstate 20 at the accident site was deteriorated or worn down so that the condition of the roadway did not substantially conform to its original design and construction. Where the evidence shows no substantial change in a roadway from an original design and construction which conformed to then-existing standards, a subsequent history of accidents at a particular location on the roadway imposes no legal duty on the DOT to take steps to make the roadway safer. Cox, 246 Ga. App. at 222-224; OCGA § 50-21-24 (10). The sole basis for the expert engineer’s opinion that the roadway at the accident site was “worn down” or “no longer in the same condition” and needed to be “restored” to its original condition was the history of similar accidents at the same location. We conclude that this opinion lacks foundation and is wholly speculative and conjectural in the absence of any facts showing that Interstate 20 had substantially deteriorated from its original condition. An expert opinion that is wholly speculative and conjectural is without foundation, has no probative value, and creates no factual issue. Bankers Health & Life Ins. Co. v. Fryhofer, 114 Ga. App. 107, 111 (150 SE2d 365) (1966); see Drawdy v. Dept. of Transp., 228 Ga. App. 338, 341-342 (491 SE2d 521) (1997) (physical precedent).

Decided June 29, 2012

As the record stands after disregarding the engineer’s speculative opinion, there is no evidence showing that the DOT failed to originally design, construct, and thereafter maintain Interstate 20 in substantial compliance with then-existing engineering or design standards. It follows that there is no evidence to support the Croomses’ claim that a hydroplaning hazard on Interstate 20, which caused Grooms to lose control of her vehicle and crash, was caused by the DOT’s negligent failure to maintain the roadway in substantial conformance with its original design and construction. Assuming that Interstate 20, as originally designed and constructed, presented a known hydroplaning hazard at the location of Crooms’s accident, the DOT remained immune pursuant to OCGA § 50-21-24 (10) from any claim that it negligently failed to take steps to make the roadway safer to eliminate the hazard. Because the Croomses failed to carry their burden to establish a waiver of the DOT’s immunity, the trial court erred by finding the DOT was not immune and by denying the DOT’s motion to dismiss the complaint.

Judgment reversed.

Boggs, J., concurs. Doyle, P. J., concurs in judgment only.

Samuel S. Olens, Attorney General, Claude M. Sitton, Assistant Attorney General, for appellant.

Henry, Spiegel, Fried & Milling, Roberts C. Milling II, Marla M. Eastwood, for appellees.

       Although the order denying the DOT’s motion pursuant to OCGA §9-11-12 (b)(1) was not a directly appealable final judgment under OCGA § 5-6-34 (a) (1), we have jurisdiction to consider the DOT’s direct appeal of this ruling pursuant to the collateral order exception to the final judgment rule. Bd. of Regents &c. of Ga. v. Canas, 295 Ga. App. 505, 506-507 (672 SE2d 471) (2009); In re Paul, 270 Ga. 680, 682-683 (513 SE2d 219) (1999).

       We need not address the DOT’s additional enumerations of error contending on other grounds that the trial court was required to dismiss the complaint.


author: Blackwell, Judge.

text:
    A12A0535.
    ALEXANDER v. DEPARTMENT OF REVENUE.
    (728 SE2d 320)
   Blackwell, Judge.

The Department of Revenue determined that Herald J. A. Alexander underpaid his income taxes for several years, and it assessed additional taxes, as well as penalties and interest, against him, an assessment with which Alexander does not agree. The law recognizes a number of procedures by which a taxpayer can dispute such an assessment, and Alexander elected to dispute his assessment by commencing proceedings under the auspices of the Georgia Administrative Procedure Act. The dispute was referred for initial decision to an administrative law judge with the Office of State Administrative Hearings (OSAH), see OCGA§ 50-13-41, and the administrative law judge entered an initial decision affirming the assessment. Alexander never asked the Commissioner of Revenue to review this initial decision, and he instead waited until the passage of time turned the initial decision of the administrative law judge into the final decision of the Department by operation of law, see OCGA § 50-13-41 (e) (l), and then filed a petition for judicial review in the superior court. See OCGA § 50-13-19. Concluding that Alexander had failed to exhaust his administrative remedies, the court below dismissed his petition. Alexander appeals, and we affirm.

When a final decision is rendered by an agency in a contested case, judicial review of that decision under the Administrative Procedure Act is available only to those who have “exhausted all administrative remedies available within the agency.” OCGA § 50-13-19 (a). See also OCGA § 50-13-19 (c) (“[N]o objection to any order or decision of any agency shall be considered by the court upon petition for review unless such objection has been urged before the agency.”); Fulton County Taxpayers Foundation v. Ga. Public Service Comm., 287 Ga. 876, 878-879 (2) (700 SE2d 554) (2010); Dept. of Transp. v. Gibson, 251 Ga. 66, 69 (1) (303 SE2d 19) (1983). The court below concluded that Alexander did not exhaust his administrative remedies because he failed to ask the Commissioner to review the initial decision before it became final. Alexander does not dispute his obligation to exhaust the administrative remedies available to him, but he contends that he could not properly have sought review by the Commissioner of the initial decision because OCGA§ 50-13-41, which sets out the procedures for proceedings before an administrative law judge with OSAH, makes no express provision for such review. We are not persuaded.

It is true, as Alexander notes, that OCGA § 50-13-41 itself says nothing about an aggrieved party applying to an agency for review of the decision of an administrative law judge. But the statute clearly makes provision for an agency to undertake such review, inasmuch as it unambiguously provides that “[a] reviewing agency shall have a period of 30 days following the entry of the decision of the administrative law judge in which to reject or modify such decision.” OCGA § 50-13-41 (e) (1). If an agency is authorized to undertake such a review, there appears no reason why an interested party could not ask the agency to do so. More important, OCGA § 50-13-41 also provides that, “[ejxcept as otherwise provided in this article, in all cases every decision of an administrative law judge shall be treated as an initial decision as set forth in [OCGA § 50-13-17].” OCGA § 50-13-41 (d). And OCGA§ 50-13-17 clearly contemplates applications to an agency to review initial decisions in contested cases. OCGA § 50-13-17 (a). Accordingly, even when an agency refers administrative proceedings to an administrative law judge with OSAH for an initial decision pursuant to OCGA § 50-13-41, a person aggrieved by the initial decision can make application to the agency under OCGA§ 50-13-17 for review of that initial decision. Alexander failed in this case to do so, and he did not, therefore, exhaust the administrative remedies available to him. For that reason, the court below properly dismissed his petition for judicial review.

Decided May 4, 2012

Reconsideration denied July 2, 2012

Herald J. A. Alexander, pro se.

Samuel S. Olens, Attorney General, Warren R. Calvert, Michele M. Young, Assistant Attorneys General, for appellee.

Judgment affirmed.

Mikell, P. J., and Miller, J., concur.

       To dispute such an assessment of taxes, a taxpayer may pay the tax and file a claim for a refund, OCGA § 48-2-35, file an appeal of the assessment with the superior court, OCGA § 48-2-59, await the issuance of a writ of execution and then dispute the tax with an affidavit of illegality, OCGA § 48-3-1, or seek administrative review of the assessment under the Administrative Procedure Act, OCGA§ 50-13-12. When a taxpayer elects to seek administrative review, the review procedures set out in the Administrative Procedure Act are his exclusive remedies. See OCGA§ 50-13-12 (d).

       The administrative law judge entered the initial decision on February 7,2011. Alexander moved the administrative law judge for reconsideration of that initial decision, but the administrative law judge denied the motion for reconsideration on February 18, 2011.

       Generally speaking, the Department has 30 days in which to reject or modify the initial decision of an administrative law judge, and if it fails to do so within 30 days of the initial decision, “then the decision of the administrative law judge shall stand affirmed by the [Department] by operation of law.” OCGA § 50-13-41 (e) (1). In some circumstances, however, the Department may extend its time to review the initial decision. See OCGA § 50-13-41 (e) (2).

       Alexander filed his petition for judicial review on March 16, 2011.

       Alexander filed a timely application for discretionary review of the dismissal of his petition, and we granted that application. See OCGA § 5-6-35 (a) (1). This appeal followed.

       Alexander argues that an application for agency review cannot possibly be available to an aggrieved party when the initial decision was rendered by an administrative law judge under OCGA § 50-13-41, inasmuch as a party is allowed 30 days following an initial decision to make an application for review under OCGÁ § 50-13-17 (a), but the agency itself has only 30 days after an initial decision by an administrative law judge to “reject or modify” it. See OCGA § 50-13-41 (e) (1). If a party made an application for agency review on the 30th day, he says, the agency could not possibly be expected to undertake such review and “reject or modify” the initial decision on the same day. We note, however, that OCGA § 50-13-41 (e) (2) expressly permits an agency to extend its time to review the initial decision of an administrative law judge “in any case wherein unusual and compelling circumstances render it impracticable for the reviewing agency to complete its review within [the original 30-day] period.” An application for review filed on the 30th day, it seems to us, might well present such circumstances.


text:
    A12A0196.
    COLES v. REESE.
    (730 SE2d 33)
   Blackwell, Judge.

The third time is not always the charm. In November 2008, Brian Coles sued Sparkle Junell Reese to recover damages for injuries that he sustained in an October 2007 automobile accident. But Coles never perfected service of that lawsuit and voluntarily dismissed it instead. He then filed a second lawsuit in April 2009, which he attempted to serve upon Reese under the auspices of the Nonresident Motorist Act, OCGA § 40-12-1, notwithstanding that he alleged in the second lawsuit that Reese was a resident of Georgia at the time of the accident. When Reese specifically appeared and moved to dismiss the second lawsuit for insufficiency of service, Coles voluntarily dismissed it too. By the time Coles dismissed his second lawsuit, more than two years — the period of limitation for a lawsuit for injuries to the person, see OCGA § 9-3-33 — had passed since the October 2007 automobile accident.

Then, in March 2010, Coles filed his third lawsuit against Reese, which he characterized as a renewal of the second lawsuit. The problem is, a lawsuit is void if service is never perfected, Hobbs v. Arthur, 264 Ga. 359, 360 (444 SE2d 322) (1994), and a void lawsuit cannot be renewed outside the period of limitation. United States Fidelity & Guaranty Co. v. Reid, 268 Ga. 432, 432 (491 SE2d 50) (1997). Reese moved to dismiss the third lawsuit, arguing that the period of limitation had run before it was filed, and it could not properly be characterized as a renewal of the second lawsuit because Coles never perfected service on the second lawsuit. The court below granted the motion to dismiss, and Coles appeals. We see no error and affirm.

Coles argues that the third lawsuit is a proper renewal of the second lawsuit, and he contends that he properly perfected service of the second lawsuit by serving Reese through the Secretary of State under the Nonresident Motorist Act. The Act provides in pertinent part that, when a nonresident of Georgia is involved in an automobile accident in this state, she can be served with process through the Secretary of State “in any action or proceeding against any such nonresident growing out of [the] accident.” OCGA § 40-12-1 (a). Coles says that the Act governs the service of his second lawsuit, and although he alleged in the second lawsuit that Reese was a Georgia resident at the time of the accident, he also alleged that she since had moved from the state.

Decided July 2, 2012.

Jason A. Craig, for appellant.

Gray, Rust, St. Amand, Moffett & Brieske, Michael D. St. Amand, William J. Martin, for appellee.

But as this Court has said before, there is “[a]n entire body of law” that concerns service of process in such cases. Farrie v. McCall, 256 Ga. App. 446, 447 (568 SE2d 603) (2002) (en banc). And according to that “entire body of law,” the Nonresident Motorist Act does not apply when, at the time of the accident, the defendant lived in Georgia. Id. See also Crowder v. Ginn, 248 Ga. 824, 825 (286 SE2d 706) (1982); Andrews v. Stark, 264 Ga. App. 792, 793 (1) (592 SE2d 438) (2003); Bailey v. Hall, 199 Ga. App. 602, 603 (1) (405 SE2d 579) (1991). Instead, a Georgia court may obtain jurisdiction of such a defendant under the Georgia Long Arm Statute, OCGA § 9-10-91. Crowder, 248 Ga. at 825; Farrie, 256 Ga. App. at 447. See also OCGA § 9-10-90 (defining a “nonresident” under the Georgia Long Arm Statute to include any individual who resided in Georgia at the time a tort occurred, but who subsequently became a resident of another state). And a defendant subject to jurisdiction under the Long Arm Statute, unlike a defendant subject to jurisdiction under the Nonresident Motorist Act, cannot be served through the Secretary of State. Rather, pursuant to OCGA § 9-10-94, such a defendant must be served either personally or by leaving copies of the summons and complaint “at [her] dwelling house or usual place of abode with some person of suitable age and discretion then residing therein.” OCGA § 9-11-4 (e) (7).

Consequently, we agree with the court below that Coles never perfected service of the second lawsuit upon Reese. Having failed to perfect service of the second lawsuit, it could not be properly renewed outside the period of limitation. And the period of limitation having run before the filing of the third lawsuit, the court below properly dismissed the third lawsuit. For these reasons, we affirm the judgment below.

Judgment affirmed.

Mikell, P. J., and Miller, J., concur.

       Under OCGA§ 9-2-61, when a plaintiff initiates a lawsuit within the applicable period of limitation, he may subsequently voluntarily dismiss it and renew it “within six months after the dismissal by filing a new complaint, subject only to the requirement of payment of costs in the original action.” Robinson v. Boyd, 288 Ga. 53, 56 (2) (701 SE2d 165) (2010).

       We believe that on June 3, 2011, rather than filing a brief in support of Reese’s Motion to Dismiss, Coles intended to submit a brief entitled “Brief in Support of Response to Defendant’s Motion to Dismiss.”

       In his third lawsuit, Coles alleged for the first time that Reese was a resident of another state both at the time of the accident and at the time the lawsuit was filed. But as to whether service of the second lawsuit was perfected, Coles is bound by his allegation in the second lawsuit — which Reese admitted when she specially appeared in the second lawsuit, and which Coles never withdrew by amending or striking the allegation from his pleadings in the second lawsuit — that Reese was a resident of Georgia at the time of the accident. See Colonial Properties Realty Ltd. Partnership v. Lowder Constr. Co., 256 Ga. App. 106, 107-108 (1) (567 SE2d 389) (2002) (“admissions in judicio in a party’s pleadings bind the party so that they cannot put up evidence over objection to contradict such admissions”) (citations and punctuation omitted). See also OCGA § 24-3-30; Mitsubishi Motors Corp. v. Coleman, 290 Ga. App. 86, 87-88 (1) (658 SE2d 843) (2008) (in determining whether jurisdiction over a defendant was proper, court properly relied upon admissions in answer of defendant).

       OCGA § 9-10-94 provides, in relevant part, that a person subject to jurisdiction of a Georgia court under OCGA § 9-10-91 “may be served within the state by any person authorized to make service by the laws of the state, territory, possession, or country in which service is made.”


author: Boggs, Judge.

text:
    A12A0362.
    WOODS et al. v. ALLIED VAN LINES, INC. et al.
    (730 SE2d 35)
   Boggs, Judge.

We granted the application for interlocutory review in this case to consider a legal issue of first impression: the admissibility under OCGA § 24-3-35 of an admission against interest by a third party, when that third party is alleged to be a person at fault under the apportionment statute, OCGA § 51-12-33. We conclude that, under these circumstances, admissions by a third party are admissible under OCGA § 24-3-35 (2), when that third party’s fault properly has been made an issue under OCGA § 51-12-33. We therefore affirm the trial court’s denial of motions in limine to exclude them.

OCGA § 51-12-33 (b), after its substantial revision in 2005, provides:

Where an action is brought against more than one person for injury to person or property, the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall after a reduction of damages pursuant to subsection (a) of this Code section, if any, apportion its award of damages among the persons who are liable according to the percentage of fault of each person. Damages apportioned by the trier of fact as provided in this Code section shall be the liability of each person against whom they are awarded, shall not be a joint liability among the persons liable, and shall not be subject to any right of contribution.

OCGA § 51-12-33 (c) further provides: “In assessing percentages of fault, the trier of fact shall consider the fault of all persons or entities who contributed to the alleged injury or damages, regardless of whether the person or entity was, or could have been, named as a party to the suit.”

The relevant facts for purposes of this analysis are not disputed. In August 2005, Donnie Jean Woods’ decedent, Jimmy Ray Woods, was killed in a multi-vehicle collision on Georgia Highway 20 in Bartow County. The incident began when a service van owned by B&W Mechanical Contractors (“B&W’) and driven by its employee, Jason Lee Green, crossed the centerline and collided with a box truck owned by Budget Rental and driven by Wayne Ramey, an employee of Berger Transfer & Storage, Inc. Ramey’s truck then crossed the centerline and struck the car driven by Woods’ decedent, who was killed. Green was charged with failure to maintain lane and second degree vehicular homicide, and he pled guilty to those charges.

Woods settled her wrongful death claims against Green and B&W and then filed this action against Ramey, Allied Van Lines, Berger Transfer & Storage, Inc., Berger Atlanta, Inc., and various insurers. The Berger defendants then filed the notice prescribed by OCGA§ 51-12-33 (d).

Woods filed an omnibus motion in limine seeking to exclude 34 instances of evidence or testimony, including the traffic citations received by Green and his guilty pleas to those charges. The trial court denied those motions, ruling that “the traffic ticket issued to and the guilty plea therefrom by Jason Lee Green are admissible under OCGA § 51-12-33.”

Appellees argue that the trial court was correct for two reasons: (1) that under the provisions of OCGA § 51-12-33, Green became a “virtual defendant” and thus a party to the case; and (2) that Green’s plea was admissible under OCGA § 24-3-35 (2) as a third-party admission. We find that the evidence here is admissible as a third-party admission because of the apportionment mandated by OCGA § 51-12-33. We therefore need not address the specific question of whether Green is a “virtual defendant.”

OCGA § 24-3-35 provides, in pertinent part: “The following admissions by third persons, strangers to a suit, shall be received in evidence ... (2) Admissions by a third person which are against his interest, as to a fact collateral to the main issue between the litigants but essential to the adjudication of the cause.” The main issue presented in this action is not, as Woods contends, “who is at fault for causing the death of Jimmy Ray Woods.” The only issue between the litigants here is the negligence and thus the liability of the defendants for their part in the collision. Under the plain language of OCGA § 51-12-33, any assessment of fault against Green “shall not subject [him] to liability in any action.” (Emphasis supplied.) OCGA § 51-12-33 (f) (2).

Decided July 2, 2012

Law & Moran, Peter A. Law, Kelly A. Christian, Chambers, Aholt & Rickard, Douglas F. Aholt, Ronald A. Lowry, for appellants.

Owen, Gleaton, Egan, Jones & Sweeney, Roger E. Harris, Lewis, Brisbois, Bisgaard & Smith, Brantley C. Rowlen, Ronald S. Master-son, for appellees.

The question of Green’s percentage of fault is therefore merely “collateral to the main issue” of the defendants’ negligence and liability, but is “essential to the adjudication of the cause” due to the language of the apportionment statute.

This testimony was to facts collateral to the main issue in the case, which was the negligence of appellees. However, it was essential to the adjudication of this cause since whether or not [Green’s] actions were the proximate cause of or contributed to the accident necessarily determined appellees’ negligence and the extent of their liability.

Hadden v. Owens, 154 Ga. App. 467, 468 (1) (268 SE2d 760) (1980). Green’s guilty pleas therefore fall directly within the purview of OCGA § 24-3-35 (2) and are admissible as an admission against interest of a third party. The cases cited by Woods are inapposite as they predate the extensive revision of the apportionment statute in 2005. See Ga. L. 2005, p. 1, § 12.

Judgment affirmed.

Doyle, P. J., and Andrews, J., concur.

       OCGA § 51-12-33 (d) (1) provides: “Negligence or fault of a nonparty shall he considered if the plaintiff entered into a settlement agreement with the nonparty or if a defending party gives notice not later than 120 days prior to the date of trial that a nonparty was wholly or partially at fault.”
      Subsection (d) (2) provides: “The notice shall he given by filing a pleading in the action designating the nonparty and setting forth the nonparty’s name and last known address, or the best identification of the nonparty which is possible under the circumstances, together with a brief statement of the basis for believing the nonparty to be at fault.”

       Woods argues that the trial court held that Green is “a putative defendant.” This is not correct; the trial court simply recited the contentions of the parties, then ruled without assigning a specific reason for its ruling other than that the citation and plea “are admissible under OCGA § 51-12-33.”

       The parties do not dispute that a guilty plea to a traffic offense is generally admissible as an admission against interest of a party. See Lewis v. Uselton, 224 Ga. App. 428, 431 (7) (480 SE2d 856) (1997).


author: Dillard, Judge.

text:
    A12A0381.
    ASHMID v. THE STATE.
    (730 SE2d 37)
   Dillard, Judge.

Following a trial by jury, Lakerim Ashmid was convicted on one count of child molestation. He appeals this conviction, contending that (1) the trial court erred by allowing the victim to refresh her recollection, (2) a potential juror was improperly struck for cause, and (3) he received ineffective assistance of counsel when his trial counsel failed to obtain criminal histories on state witnesses or make proper objections in three specific instances. For the reasons set forth infra, we affirm Ashmid’s conviction.

Viewed in the light most favorable to the jury’s guilty verdict, the record reflects that Ashmid, who is from New York, was staying at the home of his cousin, his cousin’s girlfriend, and their child, J. S., in September 2005. J. S. was three years old at the time and, because her parents worked different shifts, there was a brief period of time during the day in which neither parent was home to care for the child. Thus, during the three- to four-week period in which Ashmid stayed with the family, he watched J. S. daily from approximately 4:00 p.m. until 5:00 p.m.

On one such evening, J. S.’s mother returned home to find J. S. with her underwear on backward, and the child told her almost immediately that Lako (Ashmid’s nickname) had “hurt her pee-pee.” The mother took J. S. upstairs to make further inquiry in private, and J. S. repeated her assertion countless times. Once upstairs, and at her mother’s request, J. S. demonstrated how she had been hurt, pulling down her underwear and rubbing her genitals in a circular fashion, which she had never done before. Additionally, J. S.’s mother observed that the vaginal area was red, whereas there had been nothing unusual about the area during J. S.’s earlier bath time.

The mother tried to keep J. S. upstairs but the child ran back downstairs, and the mother heard J. S. confront Ashmid by telling him that she had told her mother he had hurt her pee-pee and that he would not do it again. At this same time, the mother’s cousin arrived at the house on a previously scheduled errand. When the cousin arrived, J. S. immediately told her that Lako had “hurt her pee-pee,” and the cousin also heard J. S. confront Ashmid. The cousin then returned J. S. upstairs to her mother, and J. S. was again asked to demonstrate what Ashmid had done, to which she once more manipulated her genitals with her hand. Like J. S.’s mother, the cousin observed that the vaginal area was “red and raw.”

J. S.’s father returned home from work a short time later, having been informed of the situation by the mother, and he promptly confronted Ashmid, who denied the accusations. When the father asked J. S. what Ashmid had done, J. S. again rubbed her genitals in a circular fashion. J. S.’s father became very upset at that point, and Ashmid ran from the home.

Later that evening, J. S. was examined by a sexual assault nurse, to whom she indicated that her genitals had been touched. And because J. S. was uncomfortable at that time, only a limited examination was conducted, which revealed that J. S.’s vaginal area was swollen and red. Additionally, during the ensuing investigation, J. S. was interviewed by law enforcement officers and told them that she was touched on her genitals and made circular motions with her finger on an anatomical diagram on which she had previously identified body parts.

On the evening of the incident in question, Ashmid was eventually located by law enforcement, interviewed, and released. After a review of the evidence, a warrant was issued for Ashmid’s arrest and Ashmid was extradited from New York, where he had returned after his interview and release. A jury convicted Ashmid on one count of child molestation. This appeal follows.

At the outset, we note that on appeal of Ashmid’s criminal conviction, “we view the evidence in the light most favorable to the jury’s verdict, and [Ashmid] no longer enjoys a presumption of innocence.” And we neither “weigh the evidence nor assess witness credibility, which are tasks that fall within the exclusive province of the jury.” With these guiding principles in mind, we turn now to Ashmid’s enumerations of error.

1. First, Ashmid contends that the trial court improperly allowed the State to refresh the victim’s recollection with an anatomical picture of a naked female child after J. S. repeatedly answered that Ashmid hurt her on the leg, the arm, and nowhere else. We disagree that the trial court so erred.

Although Ashmid asserts that the State improperly refreshed J. S.’s memory, over objection, by asking the child to identify various body parts before again asking where Ashmid hurt her — resulting in a reply that Ashmid had hurt her “pee-pee” — the record reflects that the diagram was used not to refresh the child’s memory but as demonstrative evidence. The State questioned J. S. regarding where on her body Ashmid had hurt her, and J. S. indeed repeatedly responded that she had been hurt on her leg and arm and that Ashmid did not touch her anywhere else.

A bench conference ensued at the request of Ashmid’s counsel after the State showed him a diagram of what he described as “a naked body that has a very pronounced vaginal area that [the State] was going to take to the child.” The State responded as follows: “What [J. S.] refers to as a knee or a leg, as she said, if that’s the case, then... I’m going up there with this knowing what she said and ... trying to get it out to the jury. She may very well point to the leg. It’s a picture of the whole body. There’s nothing pronounced on it.”

The court decided that the State would be permitted to present the child with an unmarked copy and that Ashmid could use the document on cross-examination, determining that Ashmid’s arguments were “more with regard to credibility of the child than they are to admissibility of what the State was trying to do.” Thereafter, the State showed J. S. the picture and asked her to identify the body parts by name, the last being identified as the “pee-pee.” The State also asked J. S. to use a pen to point to where Ashmid hurt her, which J. S. did, again identifying “the pee-pee.” J. S. was then asked what Ashmid used “to hurt your pee-pee” and she responded that he had used his hand and then pointed to the hand on the diagram. The diagram was admitted into evidence over Ashmid’s objection.

Despite Ashmid’s contention that this incident amounted to an improper instance of refreshing a witness’s recollection, it is clear from the record that the diagram was instead used as relevant demonstrative evidence. And “[a]ny evidence is relevant which logically tends to prove or disprove a material fact which is at issue in the case, and every act or circumstance serving to elucidate or to throw light upon a material issue or issues is relevant.” Additionally, “the trial court has wide discretion in determining relevancy and materiality, and furthermore, where the relevancy or competency is doubtful, the evidence should be admitted, and its weight left to the determination of the jury.” Because J. S. was four years old when she testified at trial, her ability to properly identify body parts and indicate which parts were involved in the alleged molestation would be relevant to the jury’s determination of Ashmid’s guilt. Accordingly, the trial court did not abuse its discretion.

2. Next, Ashmid contends that the trial court improperly struck a potential juror for cause after he responded that he would require forensic evidence to convict in a case of child molestation. Ashmid argues that “[r] equiring proof is not bias for the purpose of striking for cause,” and that the potential juror did not express bias toward either side, instead indicating that he could be fair and impartial. We disagree that the court erred in striking the potential juror.

As we have previously held, “it shall be good cause of challenge that a juror has expressed an opinion as to which party ought to prevail or that he has a wish or desire as to which shall succeed.” And a potential juror must be excused for cause “if he or she holds an opinion so fixed and definite that he or she will be unable to set it aside and decide the case based on the evidence and the court’s charge on the evidence.” When a challenge has been made, “the trial court has a duty to hear the competent evidence respecting the challenge as shall be submitted by either party, the juror being a competent witness.” And when bias is shown, “the trial court must do more than rehabilitate the juror through the use of any talismanic question” because the court “is statutorily bound to conduct voir dire adequate to the situation____” Additionally, “trial courts have broad discretion to evaluate and rule upon a potential juror’s impartiality, based upon the ordinary general rules of human experience.” In this regard, “a trial court may only be reversed upon a finding of manifest abuse of that discretion.”

In the case sub judice, Ashmid takes issue with the court’s decision to strike a potential juror who, through his responses to questions asked of the panel as a whole, expressed that he was not completely impartial between the State and Ashmid; he could not put aside personal beliefs that differed from the law; and that either he or someone he knew had previously had a bad experience with law enforcement, a bad experience with the judicial system, and been accused of committing a serious criminal offense and treated unfairly by the justice system.

During individual questioning, the potential juror indicated that the younger the child, the harder it would be for him to believe the testimony to convict; that he would need hard evidence to convict with a three-year-old victim; that he would need forensic evidence before convicting someone of a crime; that he believed the court system was easily manipulated by politics; and that he probably could not be impartial between the State and defendant without forensic evidence. Then the potential juror also responded that he was capable of listening to and observing the evidence to make an assessment before voting.

Upon further inquiry, when asked specifically about the indication that he was biased, the potential juror responded, “Well, I just feel that a lot of times, you know, with the prosecution or, you know, the State, there’s a lot of politics involved, and I just don’t feel that all the time justice is always done.” And with regard to his need for forensic evidence, he then responded that “in a situation with something this serious, I would need to see something completely hard core and completely hard evidence.” He then said that he did not have any prejudice against the State but that he did not feel that, given his background and beliefs, he could be completely impartial. However, he then responded that he would be fair to both sides based on the evidence presented. The State moved to strike the potential juror for cause and the trial court granted the motion because it found “his answers to be very unclear.”

Although Ashmid argues on appeal that the trial court improperly struck the potential juror for cause, we disagree and reiterate that a trial judge “is the only person in a courtroom whose primary concern, indeed primary duty, is to ensure the selection of a fair and impartial jury.” Additionally, the determination of impartiality, “in which demeanor plays such an important part, is particularly within the province of the trial court, and absent a manifest abuse of this discretion, we cannot require a new trial.” As we have previously-held, “a trial judge should err on the side of caution by dismissing, rather than trying to rehabilitate, biased jurors.” Here, the relevant potential juror gave conflicting and confusing answers to questions regarding his ability to be impartial, indicating more than once that he could not be, and we cannot say that the trial court manifestly abused its discretion in dismissing this potential juror.

3. Finally, Ashmid argues that his trial counsel rendered ineffective assistance by (1) failing to obtain criminal histories for the State’s witnesses, (2) failing to object to impermissible testimony, (3) failing to properly object in the instance discussed in Division 1, supra, and (4) failing to properly object to J. S.’s removal from the courtroom to sit with an assistant district attorney during a bench conference. Each contention, which we will address in turn, is without merit.

At the outset, we note that “the proper standard to be employed in determining enumerations concerning ineffective assistance of counsel, whether based upon a claim of right arising under federal or state law, is the two-pronged test announced in Strickland v. Washington.” In this regard, “[f]irst, appellant must show that counsel’s performance was deficient; second, he is required to show that he was prejudiced by counsel’s deficient performance.” And “[t]here is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance, and that any challenged action by trial counsel might be considered sound trial strategy.” With the second prong, “the question is whether there exists a reasonable probability that, but for his counsel’s errors, the jury would have had a reasonable doubt regarding appellant’s guilt, that is, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Finally, the trial court’s finding that the defendant was afforded effective assistance of counsel “must be upheld unless clearly erroneous.” With these guiding principles in mind, we will address Ashmid’s specific contentions.

(a) First, Ashmid argues that his trial counsel was ineffective in failing to obtain criminal histories on the State’s witnesses prior to trial.

The record reflects that trial counsel requested by motion that the State furnish the defense with criminal histories for the State’s witnesses. But because the State was not required to furnish the defense with such information, the motion was denied. Ashmid now contends on appeal that because his trial counsel neither sought the information himself pursuant to OCGA § 35-3-34 nor sought a continuance (resulting in waiver of the issue), his trial counsel was ineffective.

Even if Ashmid’s trial counsel was ineffective in either regard, Ashmid has failed to satisfy the second prong of Strickland in that there has been no showing in the record that any State witness even had a criminal history to discover. Thus, because Ashmid has not shown prejudice, this enumeration is without merit.

(b) Ashmid contends that his trial counsel rendered ineffective assistance by failing to object when J. S.’s mother’s cousin testified regarding the confrontation between J. S .’s father and Ashmid, which she listened to from the other side of a door. Ashmid contends that this evidence did not qualify under the child hearsay exception and was offered in violation of Georgia’s eavesdropping law. But this enumeration of error is also without merit.

At the motion-for-new-trial hearing, Ashmid’s trial counsel testified that he did not view the testimony as particularly prejudicial based on the trial strategy, which was that Ashmid did not molest J. S. and had repeatedly denied doing so. Thus, no objection was made because the theory was that “Ashmid didn’t do it, and that’s why we allowed most things that he said to come in without objection, because he repeatedly held to the fact that he didn’t do it.”

As previously noted, “[t]here is a strong presumption that trial counsel provided effective representation, and we will not find ineffectiveness if trial counsel’s strategy and trial tactics were reasonable at the time.” Additionally, Ashmid cannot prove “that there is a reasonable probability that the trial result would have been different if not for the deficient performance.” The testimony of the mother’s cousin was cumulative of the testimony by J. S.’s father, who was a participant in the relevant conversation, and “(t)he failure to object to evidence which is merely cumulative of other admissible evidence does not amount to ineffective assistance of counsel.”

(c) Ashmid further contends that his trial counsel was ineffective for failing to provide a “proper specific objection” to the situation discussed in Division 1, supra- — specifically, by failing to object on the grounds that it amounted to an improper refreshing of the witness’s recollection. But because we have determined that the trial court properly allowed the questioning and admitted the diagram as relevant demonstrative evidence, this enumeration of error is without merit.

(d) Finally, Ashmid argues that his trial counsel rendered ineffective assistance by failing to properly object to J. S. sitting outside the courtroom with an assistant district attorney while the trial court conducted the bench conference that ensued during the events discussed in Division 1, supra.

The record reflects that after Ashmid’s counsel requested a bench conference, the trial court asked that J. S. be removed from the courtroom during the conversation. But Ashmid’s counsel objected to sending the child outside with the assistant district attorney out of concern that the child would be coached. Ultimately, the issue was resolved by sending J. S. outside of the courtroom with the assistant district attorney and a bailiff, who could report to the court whether any conversation occurred regarding testimony. Upon return, no such report was made to the court. But on appeal, Ashmid contends that his counsel “should have objected to any further testimony after the child said that the defendant did not hurt her anywhere other than the leg and the arm.”

It is somewhat unclear whether Ashmid takes issue with the failure to make an “asked and answered” objection, with the procedure of allowing J. S. to sit outside with the assistant district attorney and bailiff, or both. Nevertheless, we discern no ineffective assistance of counsel. First, when questioned about why he did not make an “asked and answered” objection, Ashmid’s trial counsel testified that he thought that a bench conference was the better course of action at that point. We once more reiterate that “[t]here is a strong presumption that trial counsel provided effective representation, and we will not find ineffectiveness if trial counsel’s strategy and trial tactics were reasonable at the time.” Additionally, as to J. S. sitting outside the courtroom with an assistant district attorney and bailiff, there being no indication in the record that J. S. was coached during that period, Ashmid cannot show that he was harmed by any failure to object to this procedure.

Decided July 2, 2012.

William H. Kitchens, Jr., for appellant.

Daniel J. Porter, District Attorney, Wiliam C. Akins, Assistant District Attorney, for appellee.

Accordingly, for all the foregoing reasons, we affirm Ashmid’s conviction.

Judgment affirmed.

Doyle, P. J., and Andrews, J., concur.

        See, e.g., DeLong v. State, 310 Ga. App. 518, 518 (714 SE2d 98) (2011).

       A more extensive examination was performed the following day by another nurse, but she observed no acute trauma or swelling.

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

        DeLong, 310 Ga. App. at 519-20.

        Id. at 520 (punctuation omitted).

        See OCGA § 24-9-69 (“A witness may refresh and assist his memory by the use of any written instrument or memorandum, provided he shall finally speak from his recollection thus refreshed or shall be willing to swear positively from the paper.”).

        See Pittman v. State, 178 Ga. App. 693, 693-94(2) (344 SE2d 511) (1986) (holding that trial court did not abuse its discretion by admitting into evidence diagram on which child, at trial, indicated which body parts were involved in act of molestation).

       The diagram was identical to that used by law enforcement during J. S.’s interview, during which she identified body parts by name, and the marked version was tendered into evidence later.

        See Pittman, 178 Ga. App. at 693 (2).

        Id. (punctuation omitted).

        Id. (punctuation omitted).

        Id. at 693-94 (2) (“[Because] the evidence tending to show whether appellant sought to have the victim place any part of her body in contact with his was relevant to a determination whether appellant was guilty of child molestation, the trial court did not abuse its discretion in allowing the diagram as tendered into evidence.”); see also Jackson v. State, 251 Ga. App. 171, 172 (554 SE2d 202) (2001) (victim indicated on a diagram at trial where defendant had touched her vaginal area); Siharath v. State, 246 Ga. App. 736, 737 (541 SE2d 71) (2000) (victim indicated on a diagram at trial where defendant had touched her and the body parts he used to touch her).

        Harper v. Barge Air Conditioning, Inc., 313 Ga. App. 474, 475 (1) (722 SE2d 84) (2011) (punctuation omitted); see also OCGA§ 15-12-134.

        Wood v. B & S Enters., Inc., 314 Ga. App. 128, 133 (4) (723 SE2d 443) (2012).

        Harper, 313 Ga. App. at 475 (1) (punctuation omitted).

        Bennett v. Mullally, 263 Ga. App. 215, 217-18 (1) (587 SE2d 385) (2003) (physical precedent only) (punctuation omitted).

        Wood, 314 Ga. App. at 133 (4) (punctuation omitted).

        Id. (punctuation omitted); see also Harper, 313 Ga. App. at 475-76 (1) (“[B]eeause trial courts are vested with broad discretion in evaluating and ruling upon a potential juror’s impartiality, we will only reverse when there has been a ‘manifest abuse’ of the trial court’s discretion.”).

       Harper, 313 Ga. App. at 475-76 (1) (punctuation omitted).

        Ivey v. State, 258 Ga. App. 587, 594 (2) (574 SE2d 663) (2002).

        Mulvey v. State, 250 Ga. App. 345, 348 (3) (551 SE2d 761) (2001) (punctuation omitted).

        See id. (“The juror’s testimony that she was biased in favor of one of the parties on account of her personal experiences justified a challenge for cause. The trial court did not abuse its discretion in doing so.” (citations omitted)).

        Ross v. State, 231 Ga. App. 793, 795 (1) (499 SE2d 642) (1998) (citation omitted); see also Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

        Ross, 231 Ga. App. at 795 (1).

        Id. (punctuation omitted); see also Welbon v. State, 278 Ga. 312, 313 (2) (602 SE2d 610) (2004) (“There is a strong presumption that trial counsel provided effective representation, and we will not find ineffectiveness if trial counsel’s strategy and trial tactics were reasonable at the time.” (footnotes omitted)).

        Ross, 231 Ga. App. at 795 (1) (punctuation omitted).

        Id. (punctuation omitted); see also Johnson v. State, 266 Ga. 380, 383 (2) (467 SE2d 542) (1996) (“Our standard of review of a trial court’s determination with respect to effectiveness of counsel is whether its findings are clearly erroneous.”).

        See OCGA§ 17-16-8 (a) (“The prosecuting attorney, not later than ten days before trial, and the defendant’s attorney, within ten days after compliance by the prosecuting attorney but no later than five days prior to trial, or as otherwise ordered by the court, shall furnish to the opposing counsel as an officer of the court, in confidence, the names, current locations, dates of birth, and telephone numbers of that party’s witnesses, unless for good cause the judge allows an exception to this requirement, in which event the counsel shall be afforded an opportunity to interview such witnesses prior to the witnesses being called to testify.”); see also State v. Dickerson, 273 Ga. 408, 410 (1) (542 SE2d 487) (2001).

       OCGA § 35-3-34 (a) (2) provides that the Georgia Bureau of Investigation shall he authorized to “[m] ake criminal history records of the defendant or witnesses in a criminal action available to counsel for the defendant upon receipt of a written request from the defendant’s counsel” under certain conditions.

        See Dickerson, 273 Ga. at 411 (2) ("Had [the defendant] requested and obtained a continuance until such time as he received a response from the GCIC [after the State failed to timely provide reciprocal discovery], any potential prejudice could have been cured. Under the circumstances, . . . [the defendant] waived the right to assert error on appeal by his failure to seek a continuance.”).

        See Wilson v. State, 291 Ga. App. 69, 74 (4) (a) (661 SE2d 221) (2008) (“Absent a proffer of the necessary evidence, [the defendant] has not demonstrated how counsel’s failure to except to the ruling prejudiced the outcome of the trial. Thus, this claim of ineffective assistance fails.” (footnote omitted)).

        Id.; see also Brown v. State, 293 Ga. App. 633, 637 (1) (d) (i) (667 SE2d 899) (2008) (holding that defendant failed to establish prejudice resulting from counsel’s failure to object to an allegedly improper statement).

        See OCGA § 24-3-16 (“A statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another ... is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.”).

        See OCGA § 16-11-62 (1) (“It shall be unlawful for [a]ny person in a clandestine manner intentionally to overhear, transmit, or record or attempt to overhear, transmit, or record the private conversation of another which shall originate in any private place . . . .”); OCGA § 16-11-67 (“No evidence obtained in a manner which violates any of the provisions of this part shall be admissible in any court of this state except to prove violations of this part.”).

        Welbon, 278 Ga. at 313 (2); see also Gray v. State, 291 Ga. App. 573, 579 (2) (662 SE2d 339) (2008) (“The decision of whether to interpose certain objections is a matter of trial strategy and tactics. Trial tactics and strategy, no matter how mistaken in hindsight, are almost never adequate grounds for finding trial counsel ineffective unless they are so patently unreasonable that no competent attorney would have chosen them.” (footnote and punctuation omitted)).

        Breedlove v. State, 291 Ga. 249, 251 (3) (728 SE2d 643) (2012) (punctuation omitted).

        Henry v. State, 316 Ga. App. 132 (2) (729 SE2d 429) (2012).

        See Matiatos v. State, 301 Ga. App. 573, 575-76 (2) (a) (688 SE2d 385) (2009) (“The failure to make a fruitless objection does not constitute ineffective assistance of counsel.”).

        Welbon, 278 Ga. at 313 (2); see also Gray, 291 Ga. App. at 579 (2) (“The decision of whether to interpose certain objections is a matter of trial strategy and tactics. Trial tactics and strategy, no matter how mistaken in hindsight, are almost never adequate grounds for finding trial counsel ineffective unless they are so patently unreasonable that no competent attorney would have chosen them.” (footnote and punctuation omitted)).

        See Wilson, 291 Ga. App. at 74 (4) (a) (“Absent a proffer of the necessary evidence, [the defendant] has not demonstrated how counsel’s failure to except to the ruling prejudiced the outcome of the trial. Thus, this claim of ineffective assistance fails.” (footnote omitted)).


author: Adams, Judge.

text:
    A12A0040.
    JACKSON v. IRVIN.
    (730 SE2d 48)
   Adams, Judge.

Nichelle M. Jackson, pursuant to our grant of her discretionary application, appeals the trial court’s order providing for the legitimation, custody, and support of her minor child by the father, Corvey Irvin. Jackson claims that the trial court erred (i) in deviating from the presumptive amount of child support to account for Irvin’s other child, (ii) in relying on facts not in evidence, (iii) in using the wrong standard in determining child support, (iv) in failing to require that Irvin maintain health insurance for the child, and (v) in awarding inadequate attorney fees. In light of the evidence, which showed little more than the existence of the other child, we agree with Jackson that the trial court erred in applying a nonspecific deviation from the presumptive amount of child support to account for Irvin’s support obligations to the subsequent child. We find no merit in Jackson’s other claims of error and so affirm the remainder of the judgment.

Jackson and Irvin are the parents of a four-year-old child. Irvin was attending college when the child was born, and he did not make any child support payments until he signed a contract to play NFL football in 2009. Jackson filed a petition for determination of paternity in October 2009, and Irvin filed a counterclaim for legitimation of the child.

Jackson and Irvin agreed to temporary child support payments of $3,500, and they appeared for the final hearing on the case in April 2011, at which the only issue in dispute was child support. The evidence showed that Irvin had signed a contract to play NFL football in 2011 for $405,000, although, as of the hearing, a lockout was ongoing and, according to Irvin, the “old collective bargaining agreement is gone.” At the time of the hearing, Jackson was attending a vocational school with the intent of becoming a medical assistant.

Irvin testified that several months before the hearing he became the father of a child by a woman other than Jackson. According to Irvin, he was not under a court order to provide support for that child. He also testified to the name of the child, the child’s date of birth, and the name of the mother. There was no evidence that the other child was living with Irvin or of the financial or employment status of the mother of the other child.

1. Jackson claims that the trial court erred in establishing support for her child by deviating from the presumptive amount of child support on account of a subsequent child who was not being supported by Irvin, was not living with Irvin, and for whom no preexisting order was in place. Under the circumstances of this case, we agree.

“The guidelines for computing the amount of child support are found in OCGA § 19-6-15 and must be considered by any court setting child support.” (Citation and punctuation omitted.) Stowell v. Hugue-nard, 288 Ga. 628 (706 SE2d 419) (2011). “The child support guidelines . . . shall apply as a rebuttable presumption in all legal proceedings involving the child support responsibility of a parent.” OCGA § 19-6-15 (c) (1). The presumptive amount of child support is rebuttable, but “deviations subtracted from or increased to the presumptive amount of child support are applied... if supported by the required findings of fact and application of the best interest of the child standard [and] shall be entered on the Child Support Schedule E — Deviations.” OCGA § 19-6-15 (b) (8).

Where a deviation is determined to apply and the factfinder deviates from the presumptive amount of child support, the order must explain the reasons for the deviation, provide the amount of child support that would have been required if no deviation had been applied, and state how application of the presumptive amount of child support would be unjust or inappropriate and how the best interest of the children for whom support is being determined will be served by the deviation. OCGA § 19-6-15 (c) (2) (E) and (i) (1) (B). In addition, the order must include a finding that states how the court’s or jury’s application of the child support guidelines would be unjust or inappropriate considering the relative ability of each parent to provide support. OCGA § 19-6-15 (c) (2) (E) (iii).

Turner v. Turner, 285 Ga. 866, 867 (1) (684 SE2d 596) (2009). We “review any findings based on disputed facts or witness credibility under the clearly erroneous standard and... the decision to deviate, or not to deviate, from the presumptive amount of child support under the abuse of discretion standard.” (Footnote omitted.) Hamlin v. Ramey, 291 Ga. App. 222, 225 (1) (661 SE2d 593) (2008).

Here, the trial court calculated the presumptive amount of monthly child support payable by Irvin as $2,756.94. The trial court then applied a nonspecific deviation by subtracting $907 from Irvin’s support obligation to arrive at a final child support amount of $1,850. The trial court explained in “Child Support Schedule E” that the presumptive amount would be unjust or inappropriate because, among other things, “the presumptive amount fails to take into account the fact that father has a subsequent child that he is legally obligated to support” and that “[t]he court is making a non-specific deviation for those support obligations.” The trial court further found that the deviation would serve the best interest of the child for whom support was being determined because “the deviation would allow the father to pay all of his obligations and continue to have sufficient funds to visit with the child and would allow the child ample support to care for his basic needs.”

Unlike prior law, the current version of OCGA § 19-6-15 does not contemplate a specific variance of a child support award based on a party’s support obligations to another household. OCGA § 19-6-15 (i) (3) does allow for nonspecific “[deviations from the presumptive amount of child support... in addition to those established under this subsection when the court or the jury finds it is in the best interest of the child.” Nevertheless, there is no evidence to support the trial court’s conclusion that a reduction in Irvin’s presumptive child support obligation was in the child’s best interest in that the deviation would “allow the father to pay all of his obligations” and to have sufficient funds to visit with the child. The record fails to show that Irvin was paying any support for the subsequent child, and the extent of the obligation Irvin might ultimately incur thereby — and Irvin’s ability to “pay all of his obligations,” as expressed by the trial court — was a matter of speculation. Further, the evidence relevant to the subsequent child showed little more than his mere existence and did not shed light on the pertinent issues of whether the presumptive amount of child support was unjust or inappropriate, OCGA § 19-6-15 (i) (1) (B) (iii) (I), and whether a deviation therefrom was in “[t]he best interest of the child for whom support is being determined.” (Emphasis supplied.) OCGA § 19-6-15 (i) (1) (B) (iii) (II). Accordingly, we conclude that the trial court abused its discretion in relying on Irvin’s support obligations to his subsequent child to deviate from the presumptive amount of child support in this case.

Irvin points out that the trial court did not rely solely on Irvin’s other child in applying the child support guidelines. In explaining why the presumptive amount of child support was unjust or inappropriate, the trial court noted in Schedule E that the presumptive amount did not take into account the agent commissions and fees associated with Irvin’s income and, further, that the “father is presently unemployed but is likely to be employed again in the near future.” Nevertheless, given the trial court’s ruling, we can only conclude that some portion of the deviation was attributable to Irvin’s support obligations to the subsequent child. Accordingly, we reverse the final judgment in part and remand for proceedings consistent with this opinion.

2. (a) We find no merit in Jackson’s other claims of error. First, she argues that the trial court considered facts not in evidence by “outlining the woes of being an NFL football player.” While we agree that some of the trial court’s findings cannot be precisely supported by the record, the evidence supports the trial court’s material conclusions as to the limited nature of Irvin’s NFL career and the ongoing work stoppage. For instance, Irvin testified that his job was “fragile,” and that “right now there’s no football.” More importantly, Jackson fails to show how she was harmed. We find no reversible error. See generally Dupree v. Dupree, 287 Ga. 319, 323 (6) (695 SE2d 628) (2010) (a party must show both error and harm to prevail).

(b) Second, Jackson contends that the trial court erred by limiting its decision to award support based solely on Irvin’s income, thereby using the wrong standard. She then argues that the trial court should have considered Irvin’s allegedly extravagant spending habits and the disparity in income between the parents. But the trial court’s order shows that it considered and applied the appropriate Georgia child support guidelines and did not, in fact, determine support based solely on Irvin’s income. See OCGA§ 19-6-15. Jackson does not show that the trial court used the “wrong standard” in reaching its decision, and we find no error on that account.

(c) Third, Jackson contends that the trial court erred in failing to require Irvin to pay for health insurance if not employed by the NFL. She goes on to argue that Irvin should be required to maintain health insurance for the child wherever he is employed. Jackson fails to support her argument by citation to authority, nor presents any ground for this court to conclude that the trial court abused its discretion in determining the scope of Irvin’s obligation to provide insurance. See generally OCGA § 19-7-24 (both parents are responsible for maintenance, protection, and education of children born out of wedlock); Galvin v. Galvin, 288 Ga. 125, 128 (4) (702 SE2d 155) (2010) (assignment of parental responsibility for children’s health insurance coverage is within the discretion of the trial court).

(d) Lastly, Jackson contends that the trial court erred in failing to award her adequate attorney fees. At the final hearing, Jackson’s attorneys asked for an award of approximately $20,000 in attorney fees. The trial court, recognizing that it had previously awarded Jackson $5,000 in fees during the pendency of the action, and “[gjiven the testimony elicited at trial, the Court’s own evaluation of the complexities of the case and all other factors in the case,” awarded an additional $5,000 in fees under authority of OCGA § 19-7-50. This statute, which allows for fees in cases involving paternity, provides that “[t]he court may order reasonable fees of counsel, experts, and the child’s guardian ad litem and other costs of the action and pretrial proceedings, including blood and other tests, to be paid by the parties in proportions and at times determined by the court.” Id. See Chariot v. Goldwire, 310 Ga. App. 463, 465 (3) (713 SE2d 667) (2011).

Decided July 3, 2012.

Divida Gude, Celeste F. Brewer, for appellant.

Mark J. Issa, Jonathon J. Majeske, for appellee.

Jackson did not raise this claim of error in her application for discretionary appeal, and we cannot consider it. See Rogers v. Barnett, 237 Ga. App. 301, 303 (6) (514 SE2d 443) (1999); Williams v. Aetna Cas. &c. Co., 182 Ga. App. 684, 686 (3) (356 SE2d 690) (1987); Parham v. Lanier Collection Agency &c., 178 Ga. App. 84, 86 (2) (341 SE2d 889) (1986). Moreover, assuming that Jackson’s claim of error was otherwise reviewable, in light of the trial court’s findings and the extremely broad authority vested in it by OCGA § 19-7-50, we can discern no basis for concluding that the trial court abused its discretion by, as Jackson asserts, failing to award “adequate” attorney fees.

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

Barnes, P. J., and McFadden, J., concur.

       Compare OCGA § 19-6-15 (c) (6) (2004): “The trier of fact shall vary the final award of child support, up or down, . . . upon a written finding that the presence of one or more of the following special circumstances makes the presumptive amount of support either excessive or inadequate:... (6) A party’s other support obligations to another household.” The current law contemplates adjustments to a parent’s monthly gross income based on preexisting support orders with respect to other children, OCGA § 19-6-15 (b) (2) (B), as well as a “[tjheoretical child support order for qualified children, if allowed by the court,” OCGA § 19-6-15 (b) (2) (C), neither of which applies here.

       Although not strictly controlling here, we also find persuasive authority decided under prior versions of OCGA § 19-6-15. See, e.g., Betty v. Betty, 274 Ga. 194, 195 (1) (552 SE2d 846) (2001) (fact of additional child for whom father was the legal custodian, but who lived with child’s mother and for whom the father paid no support, shed no light on essential question of whether a support obligation to that child rendered the presumptive amount of support excessive); Hoodenpyl v. Reason, 268 Ga. 10, 11 (2) (485 SE2d 750) (1997) (“[t]he mere fact of additional children . . . will not justify a reduction in the guideline range”).

       In challenging the trial court’s child support ruling, Jackson also argues that the trial court erred in failing to allow for a high income deviation. See OCGA § 19-6-15 (i) (2) (A). “[P] arents are considered to he high-income parents if their combined adjusted income exceeds $30,000.00 per month.” Id. In such case, the “court... may consider upward deviation to attain an appropriate award of child support for high-income parents which is consistent with the best interest of the child.” Id. Here, the combined adjusted income of the parents exceeded $30,000 per month by $1,261.50, which amount was duly entered on the child support worksheet. The worksheet provides that this amount is automatically displayed “for the court/jury to consider,” hut there is no “automatic” deviation based on high income, as Jackson infers. Thus, it appears that the trial court considered the appropriate information but exercised its discretion not to provide for a high income deviation. Jackson’s argument shows no error.

       The trial court, after noting that health insurance would be available to Irvin through his employer if he returns to work as an NFL athlete, ordered that Irvin maintain health insurance for the child “as long as the same is available through his employer,” but that he was not required to maintain coverage through COBRA or a similar plan in the event Irvin was no longer employed. The parenting plan, which is incorporated into the judgment, also provides that “[hjealth insurance for the children is available at a reasonable cost to Defendant through his employer. As long as health insurance remains available to such parent at a reasonable cost, such parent shall maintain such insurance on all the children.”