author: Adams, Judge.

text:
    A12A0773.
    SPECTERA, INC. v. WILSON et al.
    (730 SE2d 699)
   Adams, Judge.

Spectera, Inc. appeals the trial court’s order holding that its independent eye care provider contract violates Georgia’s Patient Access to Eye Care Act, OCGA § 33-24-59.12 (the “Eye Care Act”), and granting injunctive relief to Steven M. Wilson, O.D.; Cynthia J. McMurray, O.D.; Jodie E. Summers, O.D.; and David Price, O.D. (collectively the “Wilson Group”).

Spectera is a foreign vision care insurer providing eye care benefits to Georgia residents. Spectera contracts with vision care providers in Georgia to provide eye care services to its plan members. Wilson is a licensed optometrist employed by Steven M. Wilson, O.D., P.C., doing business as Wilson Eye Center (“WEC”), which operates an eye care center in Lowndes County. McMurray, Summers, and Price are also licensed optometrists employed by WEC. Wilson, McMurray and Summers all qualified as members of Spectera’s panel of approved eye care providers (the “Panel”). Price applied to join the Panel, but he has not been accepted as an approved eye care provider.

Prior to this litigation, Wilson had maintained a participating provider contract with Spectera, and thus had been a member of its Panel, since 1986. Both Wilson and McMurray have a “legacy form” of participating provider contract called a “Patriot contract,” which allows them to prepare eyeglasses and eyeglass lenses for Spectera members in WEC’s own optical laboratory and to obtain “covered materials” (e.g., lenses, frames and contact lenses) from any source they choose, including from WEC’s own inventory. In late 2010, however, Spectera notified its legacy Patriot providers, including Wilson and McMurray, that it wished to “amend” those agreements, or as Spectera’s senior vice president Lori Archer termed it, “to recontract” with those providers, shifting them from the Patriot contract to an independent participating provider agreement (“IPP agreement”). Under the new IPP agreement, independent providers such as the Wilson Group would be required to obtain all covered materials from Spectera’s optical laboratory. In contrast, Spectera’s provider agreement with its retail chain providers, such as Wal-Mart, still allows those providers to obtain covered materials from any source, including their own optical laboratories (the “RCP agreement”). Wilson and McMurray never signed the new IPP agreement. And although Summers signed an IPP agreement with Spectera, WEC’s chief executive officer, Kristian M. Keesling, stated that Spectera treated Summers’s IPP agreement from its inception as a Patriot contract.

Wilson initiated suit against Spectera, asserting that the IPP Agreement violated several provisions of the Eye Care Act, and afterward, the insurer notified Wilson, McMurray, and Summers that it was terminating their provider agreements. But after Price also sued Spectera and Summers and McMurray filed a separate suit, the trial court consolidated all three actions and entered an interlocutory injunction, with Spectera’s consent, maintaining the status quo and preventing the termination of its current provider contracts with Wilson, McMurray and Summers pending resolution of the lawsuit. Several months later, however, Spectera moved to lift the injunction and asked permission to terminate its agreements with Wilson, McMurray and Summers and to notify the Wilson Group that “unconditionally, it will not contract with [any of them] in the future” under its current provider contract. The parties also filed cross-motions for summary judgment.

The trial court ultimately found that the IPP agreement violated several provisions of the Eye Care Act and granted the Wilson Group’s motion for summary judgment, while denying Spectera’s motions for summary judgment and to lift the interlocutory injunction. Instead, the trial court issued a permanent injunction precluding Spectera from enforcing the restrictions contained in the IPP agreement, not only with regard to the Wilson Group, but also with regard to “any other licensed eye care provider on [Spectera’s] provider panel” or those who had applied for admittance to the Panel. The trial court later modified its injunction by suspending it “as to eye care providers other than [the Wilson Group] pending a final determination on appeal.” Spectera appeals the trial court’s order on the merits and also its extension of the injunction to include third-party eye care providers not participating in this lawsuit.

On appeal from the grant or denial of a motion for summary judgment, we review the evidence de novo, and all reasonable conclusions and inferences drawn from the evidence are construed in the light most favorable to the nonmovant. Congress Street Properties v. Garibaldi’s, Inc., 314 Ga. App. 143, 145 (723 SE2d 463) (2012). “Summary judgment is proper if the record evidence, including affidavits, ‘show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’ ” (Footnote omitted.) Id. An appellate court’s review of the lower court’s statutory construction is also de novo. Kennedy Dev. Co. v. Camp, 290 Ga. 257, 258 (719 SE2d 442) (2011).

1. The Wilson Group asserts that the requirement in the IPP agreement that they obtain all covered materials from Spectera (the “Materials Requirement”), violated subsections (c) (2), (3), (5) and (6) of the Eye Care Act, especially when considered in conjunction with the RCP agreement, which does not contain the same requirement for retail chain providers. The trial court agreed. But Spectera argues that the trial court misinterpreted the Eye Care Act and erred in holding that the IPP agreement was in violation of its provisions.

Subsection (c) of the Eye Care Act sets out certain requirements for vision care insurers in this State and provides in pertinent part:

(c) A health care insurer providing a health benefit plan which includes eye care benefits shall:
(2) Not preclude a covered person who seeks eye care from obtaining such service directly from a provider on the health benefit plan provider panel who is licensed to provide eye care;
(3) Not promote or recommend any class of providers to the detriment of any other class of providers for the same eye care service;
(5) Allow each eye care provider on a health benefit plan provider panel, without discrimination between classes of eye care providers, to furnish covered eye care services to covered persons to the extent permitted by such provider’s licensure;
(6) Not require any eye care provider to hold hospital privileges or impose any other condition or restriction for initial admittance to a provider panel not necessary for the delivery of eye care upon such providers which would have the effect of excluding an individual eye care provider or class of eye care providers from participation on the health benefit plan ....

OCGA§ 33-24-59.12 (c).

The parties disagree as to the legislative intent behind and proper interpretation of these provisions. Although our consideration of the Eye Care Act presents a matter of first impression, our starting point, as with any legislation, is the language of the statute itself. Thus, “[w]e begin our analysis with the ‘golden rule’ of statutory construction, which requires us to follow the literal language of the statute unless it produces contradiction, absurdity or such an inconvenience as to insure that the legislature meant something else.” (Citation and punctuation omitted.) Telecom*USA v. Collins, 260 Ga. 362, 363 (393 SE2d 235) (1990). We are also guided by several other well-established canons of statutory instruction:

In all interpretations of statutes, the courts shall look diligently for the intention of the General Assembly. When the language of a statute is plain and unambiguous and not leading to an absurd result, it evidences the legislative intent which is not to be contravened. We also must endeavor to give each part of the statute meaning and avoid constructions that make some language mere surplusage or meaningless. Furthermore, a statute must be construed in relation to other statutes of which it is a part, and all statutes relating to the same subject-matter, briefly called statutes in pari materia, are construed together, and harmonized wherever possible, so as to ascertain the legislative intendment and give effect thereto.

(Citations and punctuation omitted.) Northeast Ga. Cancer Care v. Blue Cross and Blue Shield of Ga., 315 Ga. App. 521, 526 (1) (a) (726 SE2d 714) (2012). Accordingly, we apply these principles to the parties’ arguments regarding the application of the Eye Care Act in this case.

(a) Subsection (c) (2) — The Wilson Group contends that the Materials Requirement in the IPP agreement violates subsection (c) (2) of the Eye Care Act by preventing a covered person from obtaining eye care services “directly from a provider on the health benefit plan provider panel who is licensed to provide eye care.” (Emphasis supplied.) OCGA § 33-24-59.12 (c) (2).

The Wilson Group maintains its own optical laboratory where they prepare eyeglasses and eyeglass lenses for their patients, including Spectera plan members. They also sell contact lenses from their own inventory. Wilson contends that this practice allows the Wilson Group to control the timeliness and quality of the eye care they provide their patients and that the same level of care will not be possible if they are required to rely upon Spectera’s lab. Wilson bases this assertion on his prior experience with Spectera, before the implementation of the Patriot contract, when the insurer required its providers to accept eye care furnished by Spectera.

Under the IPP agreement, independent providers are entitled to provide “comprehensive eye examinations” and engage in the “professional and courteous dispensing and fitting of eyeglasses and/or contact lenses,” but when a laboratory is required to provide “services and products,” including presumably the preparation of eyeglasses and contact lenses, the provider would be required to use Spectera’s “optical materials fulfillment system.” As Spectera represented this arrangement in an unsuccessful attempt to remove this action to federal court, the materials must be purchased from Spectera’s optical laboratory, rather than the participating providers, and the providers no longer receive co-pays from the patients or payment from Spectera for such materials. Consequently, the patient effectively is required to purchase materials, including prepared eyeglasses and contact lenses, directly from Spectera.

Among the eye care services Georgia law allows optometrists to provide is the preparation and dispensing of eyeglasses and contact lenses. See OCGA § 43-30-1 (2) (A) (“The practice of optometry consists of... the correction of visual anomalies through the prescribing, employment, and use of lenses, prisms, frames, mountings, contact lenses,... and any other means or methods for the relief, correction, or remedy of any insufficiencies or abnormal conditions of the human visual organism . . . 1980 Op. Atty. Gen. 41 (recognizing that an optometrist “may prepare and dispense optical devices” as indeed such devices require the prescription of an optometrist or physician). Because the IPP agreement would prohibit Spectera’s insureds from obtaining at least some of these eye care services directly from the Wilson Group, we agree with the trial court that the Materials Requirement violates subsection (c) (2) with regard to independent optometrists. We make no finding, however, as to whether the enforcement of the IPP agreement would also violate subsection (c) (2) with regard to independent ophthalmologists or independent opticians as those issues are not before us.

Spectera asserts, however, that the legislature’s intent in enacting subsection (c) (2) was to give patients the right to seek eye care directly from a provider without requiring a physician’s referral; thus, it argues that the provision was not intended to regulate where an independent provider procures its covered materials. But the language of the statute contains no such limitation, and Spectera provides no support for this argument other than a newspaper article indicating that the proposed Eye Care Act would require insurers to allow patients to seek eye care without a physician referral. Even acknowledging that the Act may have had the effect of eliminating any requirement for physician referrals, the newspaper article does not and cannot speak to the legislature’s intent in passing the law. See City of Atlanta v. Wright, 119 Ga. 207, 215 (1) (45 SE 994) (1903) (“In arriving at the legislative intent in the passage of a law, this court will not consider an assertion in the brief of counsel as to what a newspaper said that a lawyer, however eminent, said the law meant at the time it was passed.”). Rather, we are guided by the statute itself, which contains no language limiting subsection (c) (2) to such a purpose, and which in fact, makes no mention of physician referrals.

In contrast, in other health care legislation when the General Assembly intended to eliminate the requirement for physician referrals, it has expressly done so. See, e.g., OCGA §§ 33-24-56 (c) (“No health benefit policy . . . shall require as a condition to the coverage of dermatological services that an enrollee, subscriber, or insured first obtain a referral from a primary care physician. . . .”); 33-24-59 (c) (“No health benefit policy . . . shall require as a condition to the coverage of services of an obstetrician or gynecologist . . . that an enrollee, subscriber, or insured first obtain a referral from another physician. . . .”). Even if the elimination of a physician referral requirement was an intended effect of the Eye Care Act, we cannot assume from the provision’s language that it was the sole intent. The legislature knew how to draft a statute with the specific aim of eliminating the requirement of a physician referral when it chose to do so, and we must presume that the legislature’s failure to specifically address physician referrals or otherwise limit the language under subsection (c) (2) was “a matter of considered choice.” (Citations and punctuation omitted.) Deutsche Bank Nat. Trust Co. v. JP Morgan Chase Bank, 307 Ga. App. 307, 311 (1) (b) (704 SE2d 823) (2010). See also Dan River, Inc. v. Shinall, 186 Ga. App. 572, 573-574 (367 SE2d 846) (1988) (if intent of legislature was to limit purpose of statute, the legislature presumably would have expressed that intent in language similar to that employed in other statutes).

Accordingly, we affirm the trial court’s grant of the Wilson Group’s motion for summary judgment and its denial of Spectera’s motion for summary judgment as to subsection (c) (2).

(b) Subsections (c) (3) and (c) (5) — The Wilson Group argues that the Materials Requirement also amounts to a discriminatory practice that serves to promote chain providers to the detriment of independent providers in violation of subsection (c) (3) and (c) (5) of the Act. OCGA § 33-24-59.12 (c) (3), (5).

While subsection (c) (3) expressly prohibits the promotion of “any class of providers” over another and subsection (c) (5) requires that insurers allow providers, “without discrimination between classes of eye care providers,” to furnish eye care services to the extent permitted by the provider’s licensure, the Eye Care Act fails to provide any definition for the phrase “class of providers” or the phrase “classes of eye care providers” as used in the statute. The Wilson Group argues that independent providers represent a class separate from retail chain providers. But Spectera argues that these provisions are referring to the three levels of eye care providers under Georgia’s licensure laws — ophthalmologists, optometrists, and opticians.

In the absence of a definition, we fall back upon the standard canon of statutory construction providing that

[i]n all interpretations of statutes, the ordinary signification shall be applied to all words, except words of art or words connected with a particular trade or subject matter, which shall have the signification attached to them by experts in such trade or with reference to such subject matter.

OCGA § 1-3-1 (b). Spectera has not pointed us to any authority establishing that “class of providers” or “classes of eye care providers” is a term of art within the health care industry strictly defined as a distinction based upon licensure. Nor do these provisions expressly limit the classes of providers to ophthalmologists, optometrists and opticians. Subsection (c) (3) makes reference to “any class of providers” without limitation. (Emphasis supplied.) Although subsection (c) (5) requires an insurer to allow eye care providers, “without discrimination between classes of eye care providers, to furnish covered eye care services... to the extent permitted by such provider’s licensure,” we conclude that the reference to licensure in that language refers to the form of eye care services that a particular provider is authorized to provide, and does not modify or refer to “classes of eye care providers.” OCGA § 33-24-59.12 (c) (5). Notably, when the statute seeks to reference optometrists and ophthalmologists, it does so expressly. Subsection (c) (7), for example, makes specific reference to “optometrists and ophthalmologists,” requiring that both be included on an insurer’s provider panel “in a manner that ensures plan enrollees timely access and geographic access.” OCGA § 33-24-59.12 (c) (7).

“In the absence of words of limitation, words in a statute should be given their ordinary and everyday meaning.” (Citations and punctuation omitted.) Risser v. City of Thomasville, 248 Ga. 866 (286 SE2d 727) (1982). See also Flott v. Southeast Permanente Med. Group, 288 Ga. App. 730, 732 (1) (655 SE2d 242) (2007) (“It is a fundamental rule of statutory construction that where the language of a statute is plain and unambiguous, the terms used therein should be given their common and ordinary meaning.”) (citations and punctuation omitted). Thus we apply the ordinary signification to the words of the statute and interpret the word “class” to mean “a group . . . sharing common attributes” or a “group . . . containing members regarded as having certain attributes or traits in common; a kind or category.” Applying this meaning, we conclude that “class of providers” as used in the Act is not based merely on licensure, but is broad enough to encompass a class of independent providers, or a class of independent optometrists, as well as a class of retail chain providers or retail chain optometrists.

(i) The Wilson Group thus argues that the Materials Requirement violates subsection (c) (3) of the Act because it has the effect of promoting the retail chain provider class to the detriment of the independent provider class by allowing the retail chain providers more control and by allowing them to provide timelier service to Spectera members. But we find that the word “promote” as used in subsection (c) (3) is capable of more than one meaning even under common and ordinary usage. On the one hand, it can mean “to contribute to the growth or prosperity of, [to] further” as the Wilson Group apparently interprets it. On the other hand, it can also mean “to present... for buyer acceptance through advertising, publicity, or discounting” or “to attempt to sell or popularize by advertising or publicity.”

These definitions cannot be easily reconciled for our purposes, and thus

[m]erely compiling a number of possible dictionary definitions, . . . does not end our task, for statutes are to be construed in accordance with their real intent and meaning and not so strictly as to defeat the legislative purpose. Therefore, we must read OCGA § [33-24-59.12 (c) (3)] according to its natural and most obvious import of the language without resorting to subtle and forced constructions for the purpose of either limiting or extending its operation.

(Citations omitted.) In the Interest of T. H., 258 Ga. App. 416, 420 (574 SE2d 461) (2002). And “the meaning of a statutory clause depends upon the intention with which it is used as manifested by its context and considered with reference to the subject matter to which it relates. [Cit.] In this sense, we note that [‘promote’] is coupled with [‘recommend’] in the Code section.” Id. And the next subsection of the statute requires that all providers on its provider panel be included on any publicly accessible list of participating providers for a particular plan. OCGA § 33-24-59.12 (c) (4). Given this context, we conclude that “promote” as used in subsection (c) (3) means to present one class of providers for acceptance by Spectera’s covered members over another class through advertising or other means, rather than to further or advance one class over another by giving one class a commercial advantage over the other.

The Wilson Group has not pointed us to any evidence that through the IPP agreement, Spectera would present its retail chain providers for acceptance by its members over its independent chain providers. No evidence exists, therefore, that Spectera has violated subsection (c) (3) of the Eye Care Act. Accordingly, we reverse the trial court’s order granting the Wilson Group’s motion for summary judgment and injunctive relief as to subsection (c) (3) and further reverse the trial court’s denial of Spectera’s motion for summary judgment as to that subsection.

(ii) The Wilson Group also argues that the Materials Requirement in the IPP agreement violates subsection (c) (5) of the Eye Care Act. That provision mandates that an insurer allow each eye care provider on its panel “to furnish covered eye care services to covered persons to the extent permitted by such provider’s licensure,” without discrimination between classes of eye care providers. As discussed in Division 1 (a) above, the IPP agreement would not allow independent optometrists to provide eye care services to the extent permitted by their licensure. Optometrists are allowed under Georgia law to both prepare and dispense eyeglasses and contact lenses, but under the IPP agreement, independent optometrists are required to obtain prepared eyeglasses and lenses from Spectera to dispense to Spectera members. But optometrists employed by retail chains are allowed to both prepare and dispense these materials. Thus, we agree with the trial court that the evidence supports a finding that the IPP agreement violates subsection (c) (5) with regard to independent optometrists. We make no finding, however, as to whether the enforcement of the IPP agreement would also violate subsection (c) (5) with regard to independent ophthalmologists or independent opticians as those issues are not before us.

Accordingly, we affirm the trial court’s grant of the Wilson Group’s motion for summary judgment and its denial of Spectera’s motion for summary judgment with regard to subsection (c) (5).

(c) Subsection (c) (6) — Subsection (c) (6) prohibits insurers from imposing any restriction for initial admittance to a provider panel, if the condition or restriction is “not necessary for the delivery of eye care.” OCGA § 33-24-59.12 (c) (6). Price contends that Spectera violated subsection (c) (6) of the Eye Care Act by excluding him from becoming a participating provider on the Panel solely because he refused to sign the IPP agreement containing the Materials Requirement. Spectera counters that no violation occurred because the Materials Requirement did not impose a disqualifying condition for Panel membership. We are unpersuaded by Spectera’s contention.

The parties agree that the Eye Care Act does not guarantee admittance to a provider panel because an insurer may exclude an applicant based upon a condition or restriction necessary to the delivery of eye care. But the evidence demonstrates no reason for Price’s exclusion from the Panel other than his failure to sign the IPP agreement and his affiliation with WEC at a time when one of its members had sued Spectera over the agreement. Spectera argues that Price’s failure to sign the IPP agreement is not a condition, but merely a failure to complete the application process. But this argument only underscores that agreeing to the Materials Requirement is a condition precedent to membership on Spectera’s Panel. Because signing the IPP agreement containing the Materials Requirement cannot be considered a condition necessary for the provision of eye care and because we have held that the Materials Requirement violates at least two provisions of the Eye Care Act, Price established his claim that Spectera unlawfully utilized an improper condition to exclude him from his initial admittance to the Panel in violation of subsection (c) (6). Accordingly, we affirm the trial court’s grant of summary judgment to Price and its denial of summary judgment to Spectera as to subsection (c) (6).

2. Spectera also contends that the scope of the trial court’s injunctions is overly broad in that the injunctions prevent Spectera from enforcing its IPP agreement as to any independent vision care provider on its Panel, even though this case was not brought as a class action and the other providers were not parties to the lawsuit.

OCGA § 9-11-65 (d) provides that an injunction “is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them” with proper notice. But Spectera is a party to this lawsuit and is the only party enjoined in this case and thus the only party bound by the injunction. And because the injunction is based upon an explicit finding that the IPP agreement violates subsections (c) (2) and (c) (5) of the Eye Care Act as to independent optometrists and violates subsection (c) (6) to the extent that optometrist applicants are denied membership on the sole basis of their refusal to sign the unlawful agreement, any attempt by Spectera to enforce the agreement as to any optometrist currently on, or applying to become a member of, its Panel would violate Georgia law. We conclude, therefore, that the trial court could properly enjoin Spectera as a party to this lawsuit from further violations of the law even with regard to nonparty optometrists. Cf. Cawthon v. Douglas County, 248 Ga. 760, 764 (2) (286 SE2d 30) (1982) (affirming injunctive relief to prevent defendant from further violations of county zoning ordinance because other remedies at law “would not be as practical and as efficient to the ends of justice and its prompt administration as the remedy in equity”) (citation and punctuation omitted).

Decided July 16, 2012

Batch & Bingham, MalissaKaufold-Wiggins, Michael J. Bowers, for appellant.

Elliott, Blackburn, Barnes & Gooding, Walter G. Elliott II, for appellees.

Aubrey T. Villines, Jr., Jeffrey R. Filipovits, amici curiae.

Nevertheless, given our holdings in Division 1 above, we reverse the remaining injunctions to the extent that they prohibit the enforcement of the IPP agreement as to independent providers other than optometrists on the Spectera Panel or to applicants other than optometrists seeking admission to the Spectera Panel, as no ruling could be issued as to such providers on the record in this case.

Judgment affirmed in part and reversed in part.

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

       In the Statement of Facts contained in its Appellant’s Brief, Spectera repeatedly cites to briefs it filed below as support for its factual assertions. We take this opportunity to remind counsel that briefs are not evidence and do not supply record support for facts asserted on appeal. See Tahamtan v. Sawnee Elec. Membership Corp., 228 Ga. App. 485, 485-486 (491 SE2d 918) (1997) (“[F]actual assertions contained in the parties’ briefs to the lower court are not evidence.”) (Citations and punctuation omitted.). And it is not the job of this Court to cull the record on a party’s behalf to find such evidentiary support. Walter v. Mitchell, 294 Ga. App. 689, 691 (2), n. 13 (669 SE2d 706) (2008).

       Spectera asserts that the new IPP agreement is intended as a cost savings measure to curb the growth of premiums for its plan members.

       Wilson filed the initial action against Spectera on November 30, 2010. Price filed suit on March 8, 2011, and McMurray and Summers filed suit on March 18, 2011.

       The Eye Care Act provides that any person adversely affected by an insurer’s violation of the Act “may bring an action in a court of competent jurisdiction for injunctive relief against such insurer and, upon prevailing, in addition to any injunctive relief that maybe granted, shall recover from such insurer damages of not more than $100.00 and attorney’s fees and costs.” OCGA § 33-24-59.12 (e). Here, the trial court also granted each member of the Wilson Group damages in the maximum amount of $100 and attorney fees in an amount to be determined.

       See Wilson v. Spectera, 2011 WL 1002694, *2 (M.D. Ga. 2011).

       Ophthalmologists, like other physicians in Georgia, are licensed by the Georgia Composite State Board of Medical Examiners. OCGA §§ 43-34-21, 43-34-35; Ga. Comp. R. & Regs, r. 360-2-.02. Optometrists are licensed by the Georgia State Board of Examiners in Optometry. OCGA §§ 43-30-1, 43-30-7; Ga. Comp.R. & Regs.r. 430-2-.01, while opticians are licensed by the Georgia State Board of Dispensing Opticians. OCGA §§ 43-29-1, 43-29-10; Ga. Comp. R. & Regs. r. 420-2-.01.

       Although Spectera points to similar statutes enacted in Tennessee and Utah, which define “class of providers” on the basis of license or certification, those statutes expressly define the phrase “class of providers” as distinguishing between licensures or professions. The Tennessee law specifically prohibits discrimination “as to any provider within a class of providers” “solely on the basis of the license or certification” and defines “class of providers” to mean “optometrists, ophthalmologists, podiatrists and chiropractors.” Tenn. Code Ann. § 56-32-129 (a), (b). The Utah law prohibits insurers from “unfairly discriminat[ing] between classes of health care providers,” and defines “class of health care providers” as “all health care providers licensed or licensed and certified by the state within the same professional, trade, occupational, or facility licensure or licensure and certification category____” Utah Code Ann. § 31A-22-617 (2) (a), (e). In contrast, OCGA § 33-24-59.12 neither defines nor purports to limit the term “class of providers” to a classification based upon licensure or certification.

       Merriam-Webster Online (11th. Ed. 2012), http://www.memam-webster.com/dictionary/class.

       The American Heritage Dictionary of the English Language (5th Ed. 2011), http:// ahdictionary.com/word/search.html?q=class.

       Merriam Webster Online, http://www.merriam-webster.com/dictionary/promote; American Heritage Dictionary, http://ahdictionary.com/word/search.html?q=promote.

       Merriam Webster Online, supra.

       American Heritage Dictionary, supra.


source: Caselaw Access Project

author: Andrews, Judge.

license: Public Domain

text:
    A12A0329.
    HAYES et al. v. CRAWFORD.
    (730 SE2d 26)
   Andrews, Judge.

Plaintiffs Krystle Hayes and Kevin Henson brought this wrongful death action against defendants including Luther Sisson and Terry Crawford after a truck Sisson was driving crossed the center-line and struck plaintiffs’ father’s vehicle, killing him. Sisson later pled guilty to charges arising from the accident including vehicular homicide in the second degree, following too closely, and failure to maintain lane. Plaintiffs obtained the trial court’s permission to dismiss Sisson and his insurer from the case. This appeal arises from the trial court’s grant of summary judgment to Crawford, who was driving a truck in front of Sisson and who stopped that truck successfully behind a car waiting to make a left turn off the highway on which all four vehicles were traveling at the time of the accident. In six related assertions of error, plaintiffs argue that questions of fact remain as to whether Crawford was negligent and whether that negligence was a proximate cause of the accident. We agree and reverse.

On appeal from a grant of a motion for summary judgment, we review the evidence de novo to determine whether a genuine issue of fact remains and whether the moving party is entitled to judgment as a matter of law. Rubin v. Cello Corp., 235 Ga. App. 250 (510 SE2d 541) (1998). As it determines whether a genuine issue of material fact remains, a court is bound to “view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant.” (Citation and punctuation omitted.) Cowart v. Widener, 287 Ga. 622, 624 (1) (697 SE2d 779) (2010).

So viewed, the evidence showed that on the morning of December 29, 2008, Crawford was driving his bobtail tractor southbound on Highway 61 in Paulding County. Approximately 100 feet directly behind Crawford was Sisson, who was driving his own bobtail tractor. Crawford knew that Sisson was following him because they had spoken on the C.B. radio to one another a few minutes earlier. Crawford and Sisson were proceeding down a section of Highway 61 that was hilly but straight. The morning was dry, sunny, and clear, with no visibility problems. Both men had traveled the highway before in their tractors.

The two drivers approached an intersection where the cross-street traffic was controlled by stop signs. Although they had to crest a hill before coming to the intersection, an eyewitness to the accident who had experience driving over the hill testified that the intersection could be seen by a driver proceeding southbound before cresting the hill — that is, from approximately 500 feet away. According to the same eyewitness, there were no obstructions that day which would have impeded a driver proceeding southbound from seeing a car stopped on the highway at the intersection waiting to turn onto the cross street. Additionally, the Georgia State Highway Patrol trooper who investigated the accident, who had investigated around 180 accidents before the present one, and who was familiar with the intersection, testified that a driver cresting the hill who was traveling within the speed limit would have sufficient time and distance to make a safe stop if the driver realized that a vehicle was stopped at the intersection.

As Crawford and Sisson approached the intersection, a passenger car in front of them was stopped there with its left turn signal blinking, waiting to turn onto the cross street. After cresting the hill, Crawford suddenly slammed on his brakes to avoid striking the stopped car. Crawford’s brakes locked, smoke rose from his tires, and his tractor began to skid on the roadway. He ultimately was able to stop his tractor within three feet of the stopped car without striking it. To avoid colliding with Crawford, Sisson slammed on the brakes of his tractor. When Sisson’s brakes locked up, his tractor began to skid, and he veered over the centerline of Highway 61 into the northbound lane of traffic. Sisson then struck a flatbed wrecker driven by the plaintiffs’ father, Jack Henson, causing him to sustain severe injuries that led to his death.

Crawford later testified that he had seen the car in front of him in the intersection with its left turn signal blinking before slamming on his brakes. According to Crawford, he had assumed that the car was moving and had failed to realize that the car had come to a complete stop because he did not see any brake lights. Crawford agreed that if he had not erroneously assumed that the car was moving, he could have brought his tractor to a “more gentle, controlled stop.” Crawford also admitted that he saw the car in the intersection with its left turn signal blinking approximately 30 seconds before arriving with his tractor at the intersection, and from a distance of up to 300 feet from the intersection.

Crawford denied that he had been inattentive, denied talking on his cell phone or having any other distractions at the time the collision occurred, and claimed that he had started gradually applying his brakes in response to the car in the intersection before ultimately having to slam on his brakes to avoid a collision with the car. By contrast, Sisson testified that Crawford admitted at the scene that he had been on his cell phone talking to his brother at the time of the accident. Sisson further testified that Crawford suddenly slammed on his brakes without first gradually slowing down and that Sisson did not see any brake lights activated on Crawford’s tractor before Crawford slammed on his brakes.

With all reasonable inferences drawn in plaintiffs’ favor, this evidence was sufficient to create a genuine issue of material fact on the questions whether Crawford acted negligently and whether his negligence was a concurring proximate cause of the collision that resulted in Henson’s death.

“All drivers using the highways are held to the exercise of due care.” (Citation and punctuation omitted.) Moore v. Pitt-DesMoines, Inc., 245 Ga. App. 676, 678 (538 SE2d 155) (2000). Every driver is “under a duty to keep a proper lookout for potential hazards. A driver has no right to assume that the road ahead of him is clear of traffic, and it is his duty to maintain a diligent outlook ahead.” (Citations and punctuation omitted.) Brown v. Shiver, 183 Ga. App. 207, 208 (1) (358 SE2d 862) (1987). Specifically, and as Crawford concedes in his brief on appeal, a driver “must exercise ordinary care not to stop, slow up, nor swerve from his course without adequate warning to following vehicles of his intention.” (Citation and punctuation omitted.) Moore, 245 Ga. App. at 678; see also OCGA § 40-6-123 (c); Gillem v. MARTA, 160 Ga. App. 393, 394 (2) (287 SE2d 264) (1981); Hay v. Carter, 94 Ga. App. 382, 384 (94 SE2d 755) (1956).

With respect to proximate cause, Georgia law is clear that

[t]he proximate cause of an injury may be two separate and distinct acts of negligence acting concurrently[,] and the person injured may recover from either or both of the persons responsible. The mere fact that the plaintiffs injuries would not have been sustained had only one of the acts of negligence occurred will not of itself operate to limit the other act as constituting the proximate cause.

(Citation and punctuation omitted.) Vann v. Finley, 313 Ga. App. 153, 163 (2) (721 SE2d 156) (2011). Thus we have held that a jury could find that a motorist who came to a complete stop on a highway without warning was a proximate cause of the collision between the two vehicles following the motorist. Harrison v. Jenkins, 235 Ga. App. 665, 666-670 (1) (510 SE2d 345) (1998). We noted in Harrison that because “[i] t is foreseeable that following drivers could become involved in an accident because of the unexpected need to stop and because the following drivers may be driving negligently,” an improperly stopped motorist could be held liable for the accident between those drivers. Id. at 670 (1). See also State Farm v. Nelson, 296 Ga. App. 47, 48 (1) (673 SE2d 588) (2009) (rejecting argument that a “nonstriking vehicle” cannot be held liable for a motor vehicle accident under Georgia law); Piller v. Hanger Cab Co., 115 Ga. App. 260, 264 (2) (154 SE2d 420) (1967) (motorist who suddenly slammed on his brakes without warning was “at least a concurring proximate cause” of plaintiffs injuries resulting from a subsequent collision).

When these tort principles regarding negligence and proximate cause are applied here, it is clear that Crawford was not entitled to summary judgment. As set out above, there was some evidence that Crawford had a sufficiently clear view of the car stopped in the intersection and that he had more than sufficient time (30 seconds) and distance (approximately 300-500 feet) to stop his tractor safely, had he been sufficiently attentive to the roadway in front of him. There was also some evidence that Crawford erroneously assumed that the car in the intersection was still moving, and, as a result, when he finally realized the car was stopped, slammed on his brakes suddenly, causing the tractor following him to swerve into the opposite lane of travel and strike Henson’s vehicle. A jury hearing this evidence could find that Crawford failed to keep a proper lookout as he proceeded down Highway 61, made an unnecessarily sudden stop without warning as he approached the cross street, and was a concurring proximate cause of the collision that killed Henson.

We note that this record would support a jury’s determination that Sisson’s negligence was the sole proximate cause of the accident. This was the conclusion reached by the investigating state trooper, for example, who did not cite Crawford for any violation of traffic laws. However,

[qjuestions of negligence and diligence and of cause and proximate cause and whose negligence constituted the proximate cause of the plaintiff’s injuries are, except in plain, palpable and indisputable cases, solely for the jury, and the courts will decline to decide such questions unless reasonable minds cannot differ as to the conclusions to be reached.

(Citations and punctuation omitted.) Stern v. Wyatt, 140 Ga. App. 704, 704-705 (1) (231 SE2d 519) (1976). Specifically, and even though Sisson pled guilty to following Crawford too closely, that plea established only a prima facie case of Sisson’s negligence, rebutted here for purposes of Crawford’s summary judgment motion by evidence of Crawford’s own negligence. See Butgereit v. Enviro-Tech Environmental Svcs., 262 Ga. App. 754, 755-756 (1) (586 SE2d 430) (2003) (reversing denial of plaintiffs’ motion for directed verdict when defendant failed to rebut prima facie showing of negligence established by his guilty plea for following too closely); Peacock v. Strickland, 198 Ga. App. 406, 407 (1) (401 SE2d 601) (1991) (Even when defendant’s guilty plea for failing to yield established his negligence, “[t]he issue of liability was correctly submitted to the factfinder.”).

Because reasonable minds could differ on the questions whether Crawford was negligent and whether his negligence was the proximate cause of the accident at issue, the trial court erred when it granted summary judgment in this case.

Judgment reversed.

Barnes, P. J., and Boggs, J., concur.

Decided June 27, 2012

Reconsideration denied July 17, 2012

Steel &Moss, JohnD. Steel, Stephen M. Ozcomert, for appellants.

Lewis, Brisbois, Bisgaard & Smith, Edward T. McAfee, RachelR. Krause, for appellee.

       A “bobtail” tractor is one that does not have a trailer attached to it.


author: Blackwell, Judge.

text:
    A12A0137.
    HAMPTON ISLAND, LLC v. HAOP, LLC et al.
    (731 SE2d 71)
   Blackwell, Judge.

Several years ago, Hampton Island, LLC contracted to purchase some land in Liberty County, but it failed to follow through and close the transaction. The sellers sued, and the court below entered a decree of specific performance, enjoining Hampton Island to fulfill its contractual obligation to buy the land for $1,050,000. In Hampton Island v. HAOP (‘Hampton Island I”), 306 Ga. App. 542 (702 SE2d 770) (2010), we affirmed the entry of that decree, but we anticipated that Hampton Island still might not comply with the decree, and so we noted that Hughes v. Great Southern Midway, 265 Ga. 94 (454 SE2d 130) (1995), identifies a remedy for the failure to comply with such a decree. Hampton Island I, 306 Ga. App. at 548 (4), n. 7. As we anticipated, that is exactly what happened.

Following our decision in Hampton Island I, Hampton Island notified the sellers that it would not comply with the decree, and the sellers then filed a motion for contempt. The court below found that Hampton Island was in contempt of the decree, and it converted the decree of specific performance into a judgment against Hampton Island for money damages, the remedy identified in Hughes. Hampton Island now appeals from that judgment, contending that its failure to comply with the decree was a result of its limited financial resources and was not, therefore, wilful and that the conversion of the decree into a judgment for damages was improper in any event. Finding no error, we affirm.

1. About wilfulness, Hampton Island says that its failure to comply with the decree of specific performance was not wilful because it just did not have enough money to do so. Indeed, this Court has said that limited financial resources sometimes may be a defense to contempt, but only when it is proved that the person to be held in contempt has exhausted all of the resources and assets available to him, has made a diligent and good faith effort to comply with the court order that is the basis for the contempt, and nevertheless is without sufficient means to comply. Cross v. Ivester, 315 Ga. App. 760 (728 SE2d 299) (2012). The person to be held in contempt bears the burden of proving these things. See id.

To show that it did not have the financial resources to specifically perform its contractual obligation to purchase the land, Hampton Island submitted two affidavits, in which its president asserted that, other than money lent to it by banks for other specified purposes, Hampton Island did not have enough money to fulfill the order for specific performance. But Hampton Islaijd presented no business records — balance sheets, lists of assets, or detailed financial data — to back up these assertions, and it failed to show that it was without the means to at least make a partial payment to the sellers. In Hamilton Capital Group v. Equifax Credit Information Services, 266 Ga. App. 1, 4 (2) (596 SE2d 656) (2004), we said that such conclusory affidavits — the affidavit in that case said that the party to be held in contempt “lacks the ability to pay the amount claimed” ■— are insufficient to carry the burden to show an inability to comply. Id. Considering the insufficiency of the affidavits and that Hampton Island apparently is not in bankruptcy, owns numerous properties, and continues to operate as a business, the evidence, we think, is sufficient to sustain the finding of wilful contempt.

2. About the propriety of converting the decree of specific performance into a judgment for money damages, that is precisely the remedy for contempt that the Supreme Court approved in Hughes. The facts oí Hughes are much like those presented here, inasmuch as Hughes agreed to purchase real estate but did not perform, the trial court ordered specific performance but Hughes did not comply, and upon a contempt motion, the court awarded a money judgment in the principal amount plus interest. Hughes, 265 Ga. at 95-96. As the Supreme Court explained in that case, “[t]o the extent this order did not alter the amount Hughes was obligated to pay under [the earlier specific performance] order, it was not an impermissible modification of a final judgment, but became necessary only because Hughes refused to obey the first decree.” Id. at 96 (2) (citation and punctuation omitted). Similarly, in the present case, because the trial court ordered the amount that was already due under the order granting summary judgment, the modification was not impermissible. For these reasons, we affirm the judgment below.

Decided July 2, 2012

Reconsideration denied July 18, 2012

Hunter, Maclean, Exley & Dunn, Christopher W. Phillips, Schiff Hardin, Samuel Almon, James R. Fletcher II, for appellant.

Weiner, Shearouse, Weitz, Greenberg & Shawe, William G. Glass, for appellees.

Judgment affirmed.

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

       The judgment is for $1,050,000, the amount of the contractual purchase price. In its judgment, the court ordered that the sellers convey title to the land to Hampton Island upon satisfaction of the judgment.

       On appeal, Hampton Island also claims that the decree was not certain and definite enough to form the basis for a finding of contempt and that the court below did not give Hampton Island sufficient notice of the contempt hearing. These claims of error are, however, completely without merit and do not warrant much discussion. As to the definiteness of the decree, Hampton Island said nothing about that in its response to the motion for contempt or at the hearing. It has failed, therefore, to preserve that issue for appellate review. Old Stone Co. v. Hughes, 284 Ga. 259, 260 (2) (663 SE2d 687) (2008). About notice of the hearing, Hampton Island was served with the motion for contempt and rule nisi more than a month before the hearing. And in any event, Hampton Island responded in writing to the motion for contempt, appeared at the hearing to argue its case, never complained about the notice it had received, and never asked for a continuance. That issue too is not properly preserved for appellate review.

       We also note that, although the affidavits attest that Hampton Island has repeatedly and unsuccessfully tried to get loans from various sources in recent years, the affidavits show that at least one bank agreed to loan money to Hampton Island to close the purchase of the land at issue, but the bank was closed before that loan materialized. Moreover, the affidavits attest in conclusory fashion that “no known lender is willing” to make a “customary commercial loan secured solely by [that land],” but, other than the banks that subsequently were closed, the affidavits name only one lender that Hampton Island approached for purposes of inquiring about such a “customary commercial loan.”


text:
    A12A0551.
    THE STATE v. STEWART.
    (729 SE2d 478)
   Blackwell, Judge.

In April 2010, a Dawson County deputy sheriff stopped Noah Stewart, who was driving his motorcycle on State Route 400, for driving too fast. When the deputy discovered that Stewart had a suspended license, the deputy arrested him, and Stewart subsequently was charged with driving while his license was suspended and three other misdemeanor traffic offenses. Stewart eventually pled guilty to these traffic offenses, but before he did, he attempted to convince the prosecuting attorney that, at the time of the stop, he was lawfully operating his motorcycle under a limited driving permit, which apparently allowed him to drive when he was engaged in the business of his employer. To this end, Stewart allegedly caused a letter to be written and sent to the prosecuting attorney in September or October 2010, which purports to be written by an officer of “CSF Invest” and represents that Stewart is employed by “CSF Invest” as a “real estate research and assessment assistant.” In addition, Stewart allegedly gave a statement to an investigator for the prosecuting attorney in October 2010, in which Stewart represented that he was employed with “CSF Investments” as a real property evaluator. The State contends that these representations are false, and it indicted Stewart for making a false statement and tampering with evidence, all in an effort to obstruct his prosecution for the traffic offenses.

Stewart entered his plea of guilty to the traffic offenses, however, before the indictment for the obstruction charges was returned. Based on this sequence of events, Stewart filed a plea in bar with respect to the obstruction indictment. In his plea in bar, Stewart argued that his prosecution on the obstruction charges was barred by OCGA § 16-1-7 (b), which, generally speaking, forbids the separate prosecution of crimes “arising from the same conduct,” so long as the prosecuting attorney knew of all the crimes when the first prosecution was commenced, and so long as all the crimes are within the jurisdiction of the same court. Stewart reasoned that the traffic charges to which he had already pled guilty and the crimes that he allegedly committed months later in an effort to obstruct the prosecution of the traffic charges were crimes “arising from the same conduct.” The court below accepted these arguments and granted the plea in bar. The State appeals, contending that the traffic charges and obstruction charges do not arise from the same conduct. We agree and reverse the judgment below.

As we have said before, crimes “arising from the same conduct,” as that phrase is used in OCGA § 16-1-7 (b), are those that arise from the same transaction or continuing course of conduct. Dean v. State, 309 Ga. App. 459, 460 (711 SE2d 42) (2011) (several traffic offenses, all committed on the same date and without a “break in the action,” arose from the same conduct). See also Nicely v. State, 305 Ga. App. 387, 389 (1) (699 SE2d 774) (2010) (drug possession and traffic offenses arose from the same conduct where accused was charged with driving while his license was'suspended and, at the same time, having drugs in his car and on his person). When a court considers whether two crimes arise from the same conduct, it should consider, among other things, whether one crime could be proven without evidence that the accused committed the other. Boutwell v. State, 311 Ga. App. 501, 503 (716 SE2d 569) (2011) (“And the courts also consider whether evidence of the other offenses could be presented without permitting evidence of the first offense or vice versa.”) (citation and punctuation omitted). See also Morgan v. State, 220 Ga. App. 198, 199 (469 SE2d 340) (1996) (same); Teal v. State, 203 Ga. App. 440, 443 (2) (b) (417 SE2d 666) (1992) (same). Acourt also should consider whether the crimes occurred on the same date, at the same time, and in the same place, and whether the crimes had the same object and involved the same circumstances and parties. Morgan, 220 Ga. App. at 199 (“In determining whether two offenses arise from the same conduct or transaction, Georgia courts have considered whether the two crimes involve the same parties, circumstances, locations, and times.”) (citations and punctuation omitted). See also Boutwell, 311 Ga. App. at 503 (“Boutwell was charged in the superior court accusation with taking a different item of a different value from the victim on a different day than the items listed in the state court accusation.”); Syas v. State, 273 Ga. App. 161, 164 (2) (614 SE2d 803) (2005) (crimes that “occurred three days apart, took place at different locations [,] and involved different victims” did not arise from the same conduct); Summers v. State, 263 Ga. App. 338, 340 (587 SE2d 768) (2003) (“Our courts have found . . . that multiple counts of burglary or theft by receiving did not arise from the same conduct, even when the stolen property was recovered together in the course of a single arrest, where the defendant burgled several different residences at separate times.”) (citation omitted).

Here, the court below erred, we think, when it concluded that the traffic offenses to which Stewart pled guilty and the obstruction crimes for which he subsequently was indicted arose from the same conduct. To prosecute the obstruction crimes, although it might be necessary to prove that Stewart had been charged with traffic offenses, it would not be necessary to prove that he actually committed those traffic offenses. Indeed, to prove that Stewart unlawfully made a false statement to the investigator, the State would be required to prove that Stewart “knowingly and willfully... [made] a false, fictitious, or fraudulent statement or representation ... in any matter within the jurisdiction of any department or agency of state government or of the government of any county, city, or other political subdivision of this state.” OCGA § 16-10-20. That a prosecution of the traffic charges was pending — whether or not Stewart was guilty of those charges — is enough to show that the prosecution was a “matter within the jurisdiction” of the office of the prosecuting attorney. And to prove that Stewart tampered with evidence by creating and causing the letter to be delivered to the prosecuting attorney, the State would be required to prove that Stewart knowingly made false evidence “with the intent ... to obstruct the prosecution ... of any person.” OCGA § 16-10-94 (a). Again, that Stewart intended to obstruct a pending prosecution — regardless of whether the prosecution had any merit — is enough to show the requisite intent to tamper with evidence. Accordingly, proof that Stewart committed the traffic offenses would not be necessary to prove the obstruction charges. And of course, proof that Stewart made a false statement or tampered with evidence would not be necessary at all to prove that he committed the traffic offenses.

Moreover, the traffic offenses and the alleged crimes of obstruction occurred on different dates, in different places, and involve different circumstances and parties. The traffic offenses were committed in April 2010, and the obstruction crimes allegedly were committed more than five months later. The traffic offenses were committed upon State Route 400 in Dawson County, whereas the alleged obstruction crimes occurred at the office of the prosecuting attorney and elsewhere. And the traffic offenses involve only Stewart and a deputy. From what we can gather from the record, however, the obstruction charges involve Stewart, his lawyer, Edward Kelly, the prosecuting attorney, and the investigator. For all these reasons, we conclude that the court below erred when it granted the plea in bar. Accordingly, we reverse the judgment below.

Decided June 22, 2012

Reconsideration denied July 18, 2012.

Lee Darragh, District Attorney, Nathan A. Kratzert, Assistant District Attorney, for appellant.

Myers & Stroberg, Roland H. Stroberg, Mason Bahr, William P. Mason, for appellee.

Judgment reversed.

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

       OCGA § 40-5-121 (a).

       Stewart also was charged with unlawfully operating a vehicle without a properly displayed license plate, OCGA § 40-2-41, operating a motorcycle without a valid motorcycle license, OCGA § 40-5-20 (a), and operating a vehicle in excess of the posted speed limit, OCGA § 40-6-181 et seq.

       See generally OCGA § 40-5-64.

       OCGA § 16-10-20.

       OCGA § 16-10-94 (a).

       Stewart entered his plea of guilty to the traffic offenses on December 13, 2010, and the indictment for the obstruction charges was returned on January 6, 2011.

       The remedy for a violation of the rule against separate prosecutions does not appear in OCGA § 16-1-7. But accordingto OCGA § 16-1-8 03) (1), “[a] prosecution is barred if the accused was formerly prosecuted for a different crime... if such former prosecution... [r]esulted in... a conviction... and the subsequent prosecution... is for a crime with which the accused should have been charged on the former prosecution.”

       The State does not dispute that the prosecuting attorney had knowledge of the obstruction crimes at the time Stewart entered his plea of guilty to the traffic charges, and it does not dispute that the same court — the Superior Court of Dawson County — properly had jurisdiction of these crimes.

       There is some indication in the record that Stewart may have caused his lawyer to transmit the letter to the prosecuting attorney and that his lawyer and prosecuting attorney arranged the meeting at which Stewart allegedly made a false statement to the investigator. We note, however, that there is no allegation the defense lawyer knowingly abetted any obstruction or otherwise did anything wrong.

       According to the indictment, Kelly made the “CSF Invest” letter that Stewart caused to be sent to the prosecuting attorney, and Kelly also made a false statement to the investigator. Kelly was indicted for making a false statement, forgery in the first degree, and tampering with evidence.

       Although Stewart apparently told the deputy at the time of the traffic stop that he was “going to look at some investment property” — a statement consistent with his later allegedly false representations about his employment with “CSF Invest” — that statement alone is not enough to warrant a finding that the traffic offenses and obstruction crimes arise from the same conduct. Most important, Stewart was not charged in the obstruction indictment with making a false statement to the deputy at the scene of the traffic stop. The obstruction indictment concerns only those representations that Stewart made much later, in the context of a formal prosecution of the traffic offenses.


author: Mikell, Presiding Judge.

text:
    A12A0703.
    POSTELL v. HANKLA et al.
    (728 SE2d 886)
   Mikell, Presiding Judge.

In the first appearance of this medical malpractice case before this Court, we summarized the underlying facts as follows:

Zamarion Everett sustained a permanent brachial plexus injury during his birth in 2003. His mother, Anita Jackson [Postell], filed the instant medical malpractice action, individually and as next friend of Everett, against Certified Nurse Midwife Vickie Hankla, who attended the birth, and Hankla’s employer, Southern OB-GYN Associates, P.C. (collectively “Hankla”). [Postell] argued that Hankla breached the standard of care during delivery when she applied lateral traction with enough force to cause Zamarion’s injury during her attempts to deliver him during an obstetrical complication known as shoulder dystocia, which occurs when an infant’s shoulders become lodged in the mother’s pelvis after delivery of the head.

On remand, the case was tried before a jury, which found for the defense. The trial court entered judgment on the jury’s verdict, and Postell appeals, contending that the trial court erred in denying her motion to exclude the testimony of Hankla’s expert witness, Dr. Sandra Brickman, and in restricting her cross-examination of Hank-la’s expert witness, Dr. Thomas Moseley, as to his financial interest in the outcome of the trial. We conclude that Brickman, a medical doctor, was not qualified under OCGA § 24-9-67.1 (c) (2) (D) to testify as to the standard of care of Hankla, a nurse midwife. Because the erroneous admission of Brickman’s testimony as to Hankla’s standard of care was not harmless, we reverse the judgment and remand for a new trial.

“The issue of the admissibility or exclusion of expert testimony rests in the broad discretion of the court, and consequently, the trial court’s ruling thereon cannot be reversed absent an abuse of discretion.”

1. Postell argues that Brickman was not qualified to testify as an expert witness' in a medical malpractice action against a nurse midwife because Brickman had not supervised, taught, or instructed nurse midwives during three of the five years preceding Zamarion’s birth, and therefore Brickman did not satisfy the requirements set forth in OCGA § 24-9-67.1 (c) (2) (D). Hankla does not contend that Brickman supervised, taught, or instructed nurse midwives during the requisite period; instead, Hankla argues that because Brickman met the “active practice” requirement found in OCGA § 24-9-67.1 (c) (2) (A), she did not need to meet the further requirements of subparagraph (D). This argument, however, is not supported by the language of the statute or by prior rulings of this Court.

OCGA § 24-9-67.1 (c) provides, in pertinent part:

[I]n professional malpractice actions, the opinions of an expert, who is otherwise qualified as to the acceptable standard of conduct of the professional whose conduct is at issue, shall be admissible only if, at the time the act or omission is alleged to have occurred, such expert:
(1) Was licensed by an appropriate regulatory agency... at such time; and
(2) In the case of a medical malpractice action, had actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given as the result of having been regularly engaged in:
(A) The active practice of such area of specialty of his or her profession for at least three of the last five years ... ;or
(B) The teaching of his or her profession for at least three of the last five years . . . ; and
(C) Except as provided in subparagraph (D) of this paragraph: (i) [i]s a member of the same profession ...; and
(D) Notwithstanding any other provision of this Code section, an expert who is a physician and, as a result of having, during at least three of the last five years immediately preceding the time the act or omission is alleged to have occurred, supervised, taught, or instructed . . . nurse midwives, . . . has knowledge of the standard of care of that health care provider under the circumstances at issue shall be competent to testify as to the standard of that health care provider. However, a . . . nurse midwife . . . shall not be competent to testify as to the standard of care of a physician.

As this Court has explained previously, the word “or” connecting subparagraphs (2) (A) and (2) (B), followed by the word “and” connecting subparagraphs (2) (B) and (2) (C), means that “a medical expert must show either ‘active practice’ or ‘teaching’ for ‘at least three of the last five years,’but that whichever of these may be the case, the expert must also be ‘a member of the same profession’ as the person whose performance he is evaluating.” If the expert is not a member of the same profession, then the expert must qualify under subparagraph (D) in order to testify against the defendant provider. Hankla’s expert, Brickman, a medical doctor, is not in the same profession as Hankla, a nurse midwife. Therefore, unless Brickman qualified under subparagraph (D), she was not competent to testify as to Hankla’s standard of care.

Subparagraph (D) of OCGA § 24-9-67.1 (c) (2) allows a medical doctor to testify as to the standard of care of a nurse midwife where the doctor has knowledge of the nurse midwife’s standard of care as the result of having “supervised, taught, or instructed” nurse midwives during the requisite time period. The record reflects, and Hankla makes no contrary contention, that Brickman did not supervise, teach, or instruct nurse midwives during at least three of the last five years immediately preceding Zamarion’s birth on August 18, 2003, the time the negligence is alleged to have occurred. Brickman completed her residency in June 2000 and began the private practice of medicine in July or August of that year. She testified that she had not supervised or worked with nurse midwives since leaving her residency and entering private practice, that is, from August 2000 until after Zamarion’s birth in August 2003. Because she had not supervised, taught, or instructed midwives during the three years prior to Zamarion’s birth, Brickman did not meet the requirements set forth in subparagraph (D) and therefore was not qualified to testify as to the standard of care of a nurse midwife. In ruling otherwise, the trial court abused its discretion.

Moreover, we cannot deem this error harmless, and Hankla does not contend otherwise. Brickman testified that, in her opinion, based upon a reasonable degree of medical certainty, Hankla complied with the standard of care. The jury heard two other witnesses for the defense give their opinion that Hankla complied with the standard of care: Dr. Moseley, president of defendant Southern OB-GYN Associates; and defendant Vickie Hankla herself. But Brickman’s was the only expert testimony offered by defendants from a witness who was neither a defendant nor employed by a defendant. We conclude that Brickman’s disinterested testimony as to Hankla’s compliance with the standard of care was material, and the erroneous admission of her testimony constituted reversible error.

2. Postell contends that the trial court erred in prohibiting her from questioning Moseley, one of Hankla’s experts, as to his bias due to his financial interest in the outcome of the litigation. Although litigants are entitled to conduct a “thorough and sifting” cross-examination of opposing witnesses, “[c]ontrol of the nature and scope of cross-examination of a witness is a matter within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of that discretion.” We find no abuse of discretion here.

Postell asserts in her brief that the trial court prohibited her from eliciting evidence as to whether Moseley was a shareholder of defendant Southern OB-GYN. This assertion is not supported by the record. Postell was allowed to establish on cross-examination that Moseley was a shareholder in the defendant firm; that he had been a shareholder in the firm for over 30 years; and that he earned his livelihood from the defendant firm.

What Postell was not allowed to do was inquire into the amount of money Moseley derived from the practice and whether a plaintiff’s verdict in this case would “come out of his pocket” because of Southern OB-GYN’s limited insurance coverage. “[A]s a general principle, the jury is entitled to consider a witness’s financial interest in a case. However, it is also settled law that evidence of a litigant’s insurance is generally inadmissible.” Moreover, “the general rule is that evidence of the wealth or worldly circumstances of a party litigant is never admissible, except in those cases where position or wealth is necessarily involved.” The trial court did not abuse its discretion in imposing this limitation on Postell’s cross-examination of Moseley.

Judgment reversed and case remanded.

Miller and Blackwell, JJ., concur.

Decided June 19, 2012

Reconsideration denied July 18, 2012

Laura M. Shamp, for appellant.

Coleman Talley, Wade H. Coleman, Gregory T Talley, Alphonso A. Howell IV, Huff, Powell & Bailey, R. Page Powell, Jr., for appellees.

        Hankla v. Jackson (“Hankla I”), 305 Ga. App. 391, 392 (699 SE2d 610) (2010) (interlocutory appeal of trial court’s order denying defendants’ motion to exclude testimony of plaintiff’s medical experts; order affirmed in part and reversed in part, and case remanded).

       “The brachial plexus is a bundle of nerves at the base of the neck that control arm and hand movement.” Id. at 391, n. 1.

       “Lateral traction is the force applied to the infant’s head and neck when a provider moves the head to one side or another with the ear moving toward the shoulder.” Id. at 391, n. 2.

       Id. at 391-392.

       Postell filed the original complaint under the name Anita Jackson. She later changed her name hy marriage, and she filed this appeal as Anita Jackson Postell.

       (Punctuation omitted.) Anderson v. Mountain Mgmt. Svcs., 306 Ga. App. 412, 413 (702 SE2d 462) (2010), citing Cotten v. Phillips, 280 Ga. App. 280, 283 (633 SE2d 655) (2006).

       (Emphasis supplied.)

       (Emphasis in original.) Smith v. Harris, 294 Ga. App. 333, 336-337 (1) (670 SE2d 136) (2008) (trial court abused its discretion in allowing pharmacist to testify concerning defendant medical doctor’s violations of physician’s standard of care). Accord Hankla I, supra at 396 (2) (a) (trial court erred by allowing biomechanical engineer expert to comment, even indirectly, on whether defendant nurse midwife’s actions breached standard of care). See also Ball v. Jones, 301 Ga. App. 340, 343 (687 SE2d 625) (2009) (nurse was not qualified under OCGA § 24-9-67.1 to give expert affidavit regarding standard of care of physical therapist).

       See OCGA §§ 9-11-9.1 (g) (11), (12) (medical doctors are in separate profession from nurses); 24-9-67.1 (c) (2) (D).

       See Anderson,supraat417(2)(physician expert was not qualified under OCGA § 24-9-67.1 (c) (2) (D) to testify as to a nurse’s standard of care, absent proof that he had supervised, taught, or instructed nurses during relevant time period).

       Cf. Griffin v. Bankston, 302 Ga. App. 647, 652 (1) (b) (691 SE2d 229) (2009) (testimony of disinterested witness, a treating physician rather than a hired expert, “may have carried particular weight with the jury’; thus, erroneous limitation on cross-examination of witness was reversible error).

       See generally Dept. of Transp. v. Petkas, 189 Ga. App. 633, 641 (9) (377 SE2d 166) (1988) (whole court) (“If the jury was allowed to find facts based upon evidence which was erroneously admitted . . ., the judgment entered on that verdict must be reversed”).

       See OCGA § 24-9-64 (“The right of a thorough and sifting cross-examination shall belong to every party as to the witnesses called against him”).

       (Punctuation and footnote omitted.) Hamilton v. Shumpert, 299 Ga. App. 137, 141 (2) (682 SE2d 159) (2009).

       (Citations omitted.) Chambers v. Gwinnett Community Hosp., 253 Ga. App. 25, 26 (1) (557 SE2d 412) (2001) (whole court) (introducing evidence of defendant’s insurance coverage might motivate jury to award inflated damages), citing OCGA § 24-4-4 (in determining where the preponderance of evidence lies, the jury may consider all the facts and circumstances of the case, including the witnesses’ “interest or want of interest”). Accord Goins v. Glisson, 163 Ga. App. 290, 292 (1) (292 SE2d 917) (1982) (“The fact of insurance should never be admitted,... except and to the extent that it is germane to the issues in the case and necessary for their resolution”) (citation omitted).

       (Citations and punctuation omitted.) First Fed. Sav. &c. v. Jones, 173 Ga. App. 356, 357 (2) (b) (326 SE2d 554) (1985). Accord Bailey v. Edmundson, 280 Ga. 528, 534 (6) (630 SE2d 396) (2006).


author: Miller, Judge.

text:
    A12A0933.
    SHEPPARD v. McCRANEY et al.
    (730 SE2d 721)
   Miller, Judge.

In this dispute involving grandparent visitation rights, appellant Darryl E. Sheppard contends that the trial court erred in failing to grant his request for visitation with his minor grandson, and erred in failing to make specific findings of fact in deciding the visitation issue. Since the trial court failed to rule upon the visitation issue under OCGA § 19-7-3 (c), we remand this case with direction.

The undisputed facts reflect that the child, C. T., was born to the mother, Ashton Sheppard, and the father, Wayne Tisdale, in November 2005. Both parents had unresolved problems with drug abuse, probation violations, and incarcerations. In July 2007, the paternal grandparents were awarded temporary guardianship of the child, and assumed responsibility for the child’s care. Sheppard, the maternal grandfather, claimed that although he had participated as the child’s caregiver and had formed a strong familial bond with the child, he was being denied visitation with the child.

Sheppard filed a verified petition against the mother and the paternal grandparents, seeking custody of the child and, alternatively, grandparent visitation with the child. At the hearing conducted on the matter, Sheppard expressly abandoned his custody request, electing instead to pursue his request for grandparent visitation. The mother and paternal grandmother testified and obj ected to Sheppard’s visitation request. Following the hearing, the trial court entered an order dismissing Sheppard’s custody request. The trial court’s order did not address Sheppard’s request for visitation.

Sheppard’s request for grandparent visitation is governed by OCGA § 19-7-3, commonly referred to as the “Grandparent Visitation Statute.” See Luke v. Luke, 280 Ga. App. 607 (634 SE2d 439) (2006). In accordance with the statute, a grandparent may file an original action for visitation rights to a minor child when the parents are separated and the child is not living with both of the parents. See OCGA § 19-7-3 (b). The statute “was enacted to provide a mechanism for courts to grant a grandparent visitation rights with his or her minor grandchild, where, as here, a child’s parent objects.” (Punctuation and footnote omitted.) Luke, supra, 280 Ga. App. at 611 (3). In this regard, “[t]he statute codified a standard for the trial courts to utilize in balancing the wishes of an alienated grandparent, the rights of the parents, and the interests of the child.” (Citation and punctuation omitted.) Perrin v. Stansell, 243 Ga. App. 475, 476-477 (1) (a) (533 SE2d 458) (2000). The standard, set forth in OCGA § 19-7-3 (c), provided that

[u]pon the [grandparent’s] filing of an original action ... the court may grant any grandparent of the child reasonable visitation rights if the court finds the health or welfare of the child would be harmed unless such visitation is granted, and if the best interests of the child would be served by such visitation. The court shall make specific written findings of fact in support of its rulings.

(Punctuation omitted.) Due process requires that evidence supporting grandparent visitation meet the clear and convincing standard of proof. See Luke, supra, 280 Ga. App. at 609 (1).

In this case, Sheppard filed his request for grandparent visitation against the child’s mother, as well as the paternal grandparents who had temporary guardianship of the child. Notably, the mother appeared at the hearing and objected to Sheppard’s request. To resolve the matter, the trial court was required to apply OCGA § 19-7-3 (c) and determine whether Sheppard had presented clear and convincing evidence that the health or welfare of the child would be harmed unless visitation was granted, and whether the child’s best interests would be served by allowing such visitation. See Cates v. Jamison, 301 Ga. App. 441, 441-442 (687 SE2d 675) (2009); Luke, supra, 280 Ga. App. at 609-610 (1). The trial court, however, failed to issue a ruling as to the visitation issue in this case. Consequently, we must remand the case to the trial court for the entry of an order, with specific written findings of fact, that rules upon the visitation issue in accordance with the standard set forth in OCGA § 19-7-3 (c). See Cates, supra, 301 Ga. App. at 442; Rainey v. Lange, 261 Ga. App. 491, 491-492 (1) (583 SE2d 163) (2003).

Decided July 18, 2012.

Margrett A. Skinner, for appellant.

Carr Downey, Gerald M. Carr, for appellees.

Judgment vacated in part and case remanded.

Mikell, P. J., and Blackwell, J., concur.

       The child’s father was incarcerated at the time of the proceedings and did not appear at the hearing.

       This appeal does not involve the propriety of the trial court’s decision on the custody issue, which Sheppard abandoned at the hearing. Rather, Sheppard’s appellate claims focus upon his alternative request for grandparent visitation.

       The award of temporary guardianship and custody of the child to the paternal grandparents did not terminate the natural parents’ rights or confer permanent guardianship or custody. See Hill v. Loren, 187 Ga. App. 71, 72-73 (1) (369 SE2d 260) (1988) (parental rights are not relinquished by an agreement granting temporary custody or guardianship); Hays v. Jeng, 184 Ga. App. 157, 158-159 (360 SE2d 913) (1987) (temporary guardianship maybe dissolved and does not amount to a permanent relinquishment of parental rights). As such, the mother was a proper party to Sheppard’s action and her objection to his request for visitation was pertinent to the claim under OCGA § 19-7-3.


text:
    A12A1338.
    PARKER v. THE STATE.
    (730 SE2d 717)
   Miller, Judge.

Following a bench trial, Robert Parker, Jr., was convicted of possession of marijuana (OCGA § 16-13-2 (b)) and driving on the wrong side of the road (OCGA § 40-6-40 (a)). Parker filed a motion for new trial, which the trial court denied. Parker appeals, contending that the trial court erred in denying his motion to suppress, and that the evidence was insufficient to sustain his convictions. For the reasons that follow, we discern no error and affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict and the defendant no longer enjoys a presumption of innocence. We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

(Citation omitted.) Mullis v. State, 292 Ga. App. 218 (664 SE2d 271) (2008).

So viewed, the evidence shows that a Suwanee Police Department officer observed Parker drive his vehicle across a double yellow line, travel in the opposite lane to bypass other vehicles, and access the left turn lane. After Parker completed the left turn, the officer initiated a traffic stop. Upon approaching the stopped vehicle, the officer smelled the odor of unburnt marijuana coming from inside the vehicle. The officer asked Parker to step out of the vehicle and whether there was any marijuana in the vehicle. Parker initially stated that there was none, but upon further questioning, admitted that there was a small quantity of marijuana inside the vehicle. Although Parker did not want to tell the officer where the marijuana was located, he offered to retrieve the drugs for the officer. The officer denied the request, and Parker became agitated and stepped toward his vehicle. The officer told Parker that he was going to search the vehicle, and handcuffed Parker for the officer’s safety. As the officer was entering the vehicle, Parker informed him that the marijuana was in the center console. Upon searching the center console, the office found a ziplock baggie containing 0.2 grams of marijuana, as well as a metal pipe. Parker was then arrested and charged with possession of marijuana and driving on the wrong side of the road.

Testimony at trial established that, although Parker owned the vehicle in question, his son, his nephews, and other family members were the primary drivers of the vehicle in question, and that Parker had only driven it because his own vehicle was being repaired on the day he was pulled over. Parker’s nephew testified that he and his brother had smoked marijuana in the vehicle. Parker was aware of the boys’ drug use and assumed that they, along with his son, had smoked marijuana in the vehicle. Parker also denied crossing the double yellow line or driving into the opposite lane of traffic. Following the presentation of evidence, the trial court found Parker guilty of the charged offenses.

1. Parker contends that the trial court erred in denying his motion to suppress. We disagree.

In ruling on a motion to suppress, the trial court sits as the trier of fact, and the court’s findings are analogous to a jury verdict and will not be disturbed when the record contains any evidence to support those findings. When reviewing a trial court’s ruling on a motion to suppress, the evidence must be construed most favorably toward the court’s findings unless those findings are clearly erroneous. Further, in reviewing the denial of a motion to suppress, we consider all the evidence of record, including evidence introduced at trial.

(Citation omitted.) Herring v. State, 279 Ga. App. 162 (630 SE2d 776) (2006).

(a) Parker argues that the officer lacked a reasonable suspicion to conduct the traffic stop. His claim is without merit.

An officer may conduct a brief investigative stop of a vehicle if the stop is justified by specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. A court must consider whether, under the totality of the circumstances, the police officer had a particularized and objective basis for suspecting the particular person stopped of criminal activity. However, the stop of a vehicle is also authorized merely if the officer observed a traffic offense.

(Citation omitted.) Dunbar v. State, 283 Ga. App. 872, 874 (1) (643 SE2d 292) (2007). Under OCGA § 40-6-40, vehicles are required to be driven on the right side of the road. See Przyjemski v. State, 290 Ga. App. 22, 23 (658 SE2d 807) (2008).

Here, the officer testified that he saw Parker cross the solid double yellow line and then drive on the wrong side of the road. To the extent Parker relies on the fact that there was no oncoming traffic when he crossed the double yellow line, it is of no consequence. “As driving on the wrong side of the road is itself a traffic offense, see OCGA § 40-6-40, the officer had reasonable articulable suspicion that a traffic offense had occurred.” Dunbar, supra, 283 Ga. App. at 874 (1). Therefore, the trial court did not err in finding that the officer was authorized to perform the traffic stop.

(b) Parker next argues that the officer impermissibly expanded the scope and duration of the stop by questioning him about drugs and then searching his vehicle. Again, his claim is without merit.

An officer who stops a motorist for a routine traffic violation is absolutely permitted to expand the detention into unrelated offenses. The officer may question the motorist about anything and may ask for consent to search, as long as the questioning does not unreasonably prolong the detention.

(Citation and punctuation omitted.) Arnold v. State, 315 Ga. App. 798, 800 (1) (728 SE2d 317) (2012).

Here, the officer asked Parker about the marijuana after he smelled the odor of marijuana emanating from his vehicle and during the time that he was questioning Parker about his driver’s license. Since the officer asked Parker about the marijuana around the same time he was verifying Parker’s license, it cannot be said that the officer unreasonably prolonged the detention. Cf. Arnold, supra, 315 Ga. App. at 800; see also Wilson v. State, 306 Ga. App. 286, 288-289 (2) (a) (702 SE2d 2) (2010) (stop not unreasonably prolonged while officer verifies a driver’s license and completes necessary work associated with issuance of citation). Accordingly, the trial court did not err in denying Parker’s motion to suppress.

2. Parker contends that the evidence was insufficient to sustain his convictions. We disagree.

(a) Possession of Marijuana. Any person who possesses one ounce or less of marijuana is guilty of misdemeanor possession. OCGA § 16-13-2 (b).

Under Georgia law, the driver and owner of an automobile, in the absence of any circumstances to the contrary, is presumed to have possession and control of contraband found in the automobile, but this presumption is rebuttable by evidence of equal access. And in this context, evidence showing that a person or persons other than the owner or driver of the automobile had equal access to contraband found in the automobile may or will, depending upon the strength of the evidence, overcome the presumption that the contraband was in the exclusive possession of the owner or driver.

(Punctuation and footnotes omitted.) Johnson v. State, 268 Ga. App. 808, 809-810 (602 SE2d 840) (2004). Whether the evidence of equal access was sufficient to rebut the presumption of possession is a question properly left to the factfinder. See, e.g., id. at 810, n. 5; Turner v. State, 277 Ga. App. 205, 207 (1) (626 SE2d 176) (2006).

Here, as the owner and occasional driver of the vehicle, Parker was presumed to have exclusive possession and control of the 0.2 grams of marijuana found therein. See Turner, supra, 277 Ga. App. at 206 (1); Nix v. State, 312 Ga. App. 43, 44 (1) (717 SE2d 550) (2011). Notably, Parker had knowledge that there was marijuana inside the vehicle and, moreover, knew the exact location in the vehicle where the marijuana was located. Based upon this evidence, the trial court, as the factfinder, was authorized to reject the testimony that the marijuana belonged to Parker’s nephew, and conclude that the presumption of Parker’s possession of marijuana had not been rebutted. See Nix, supra, 312 Ga. App. at 44 (1); Davis v. State, 272 Ga. App. 33, 34 (611 SE2d 710) (2005). Consequently, the evidence was sufficient to authorize Parker’s conviction for possession of marijuana.

(b) Driving on the wrong side of the road.

Section 40-6-40 of the Georgia Code requires that vehicles be driven on the right side of the road, except under certain specified instances such as when a car is passing another vehicle, but OCGA § 40-6-46 (a) authorizes the Department of Transportation to determine those portions of the roadway where passing or driving to the left side of the roadway would be especially hazardous, and indicate those portions with a solid line or a solid double line. Passing is prohibited on those designated portions. OCGA § 40-6-46 (b). Both statutes, however, acknowledge an exception where an obstruction exists: [w]hen read together, OCGA §§ 40-6-46 (c) and 40-6-40 (a) (2) provide that there is no violation of the no-passing zone statute when an obstruction exists making it necessary to drive to the left of the center of the highway, provided that any person so doing shall yield the right of way to all vehicles traveling in the proper direction upon the unobstructed portion of the highway within such distance as to constitute an immediate hazard. A vehicle does not have to be stationary to create such an obstruction. Rather, a motor vehicle may be an obstruction when it is operated on a public road in a manner which could not be generally or reasonably anticipated, taking into account all of the circumstances and conditions present at such time and place, and thereby hinders or impedes the proper travel on such road.

(Citations and punctuation omitted.) Przyjemski, supra, 290 Ga. App. at 23.

As discussed in Division 1 (a) above, the evidence shows that Parker crossed the solid double line and drove on the wrong side of the road, in violation of OCGA § 40-6-40 (a). While Parker argues that he was permitted to cross the double yellow line and drive on the wrong side of the road due to an obstruction caused by traffic congestion, the issue of whether an obstruction existed was a question of fact properly left to the factfinder to resolve. See Pryzyjemski, supra, 290 Ga. App. at 23; Parker v. State, 276 Ga. App. 9, 11 (622 SE2d 403) (2005). There was no evidence that the traffic congestion encountered at the scene was anything not generally or reasonably anticipated. Therefore, the trial court was authorized to find that there was not an obstruction permitting Parker to drive on the wrong side of the road, and find him guilty of violating OCGA § 40-6-40 (a). See Parker, supra, 276 Ga. App. at 11; Smith v. State, 237 Ga. App. 77, 79-80 (2) (514 SE2d 710) (1999).

Decided July 18, 2012

G. Richard Stepp, for appellant.

Rosanna M. Szabo, Solicitor-General, Atinuke O. Fawole, Assistant Solicitor-General, for appellee.

Judgment affirmed.

Mikell, P. J., and Blackwell, J., concur.

       Parker also contends that the trial court improperly denied his motion for new trial on the grounds that the verdict was contrary to the evidence and the principles of justice and equity, and decidedly against the weight of the evidence. Of course, such arguments “may only be made to a trial court in a motion for new trial, not to an appellate court on appeal. We do not have the discretion to grant a new trial on these grounds.” (Citations and punctuation omitted.) Lewis v. State, 304 Ga. App. 831, 833 (1) (698 SE2d 365) (2010). “The grant or denial of a motion for new trial is a matter within the sound discretion of the trial court and will not he disturbed if there is any evidence to authorize it.” (Footnote omitted.) Taylor v. State, 259 Ga. App. 457, 460 (2) (576 SE2d 916) (2003); see also Souder v. State, 301 Ga. App. 348, 352 (3) (687 SE2d 594) (2009) (“A trial judge’s denial of a motion for new trial on evidentiary grounds will be reversed on appeal only if there is no evidence to support the verdict.”) (citations and punctuation omitted).