author: Adams, Judge.

text:
    A11A1057.
    DEEN v. POUNDS.
    (718 SE2d 68)
   Adams, Judge.

Plaintiff/appellee Gladys Pounds brought this medical malpractice action against Roy Wendell Deen, M.D., and others contending that Dr. Deen committed various acts of negligence in prescribing her Reglan, and that because of his negligence she developed irreversible tardive dyskinesia, a neurological disorder that results in involuntary and uncontrollable movements of various parts of the body including the tongue, face, and limbs. Dr. Deen answered and subsequently filed a motion for summary judgment, contending that Ms. Pounds’ claims were barred by the applicable statutes of limitation and repose. The trial court denied the motion, but granted Dr. Deen a certificate of immediate review. We granted his application for interlocutory appeal, and this appeal followed.

The record shows that Ms. Pounds filed her complaint on April 11, 2007. In her complaint she stated that Dr. Deen first prescribed her metoclopramide, under the brand name of Reglan, in April 2001 for the treatment of gastroesophageal reflux disease (GERD) and treated her with daily doses of the drug for several years; however, during the course of the litigation it was discovered that Dr. Deen actually first prescribed Reglan to Ms. Pounds in June 2000. As to her specific claims of medical negligence, Ms. Pounds alleged that Dr. Deen breached the standard of care by failing to warn her of the potential risks associated with taking Reglan, including the risk of involuntary movement disorders, and by prescribing the medication for several years without considering lowering the dose, discontinuing the drug or switching to a medication with a lower risk of involuntary movement disorders. Further, Ms. Pounds’ expert opined that Dr. Deen failed to adequately assess her condition to determine if she needed to take Reglan for her GERD and failed to monitor her after she started taking the drug to determine if she needed to continue taking the medication. And one expert testified that Dr. Deen was professionally negligent because he failed to recognize certain symptoms that may have led to an earlier diagnosis of tardive dyskinesia.

Ms. Pounds also stated in her complaint that in August 2004 she developed a gait disturbance and a mouth tremor, which were described as early clinical warning signs of tardive dyskinesia, and Dr. Deen referred her to a neurologist, Dr. Miquel Zialcita, for a neurological consult. Dr. Zialcita diagnosed Ms. Pounds with Parkinson’s disease in August 2004. Ms. Pounds’ complaint further stated that in December 2004 she developed symptoms described by Dr. Deen as “extrapyramidal side effects” in addition to her parkin-sonism. In May 2005, Ms. Pounds was diagnosed by Dr. Stewart Factor, another neurologist, with both parkinsonism and tardive dyskinesia, and he discontinued her use of Reglan, which he believed to be the causative agent in her development of these disorders.

As required by Georgia law in medical malpractice cases, OCGA § 9-11-9.1, Ms. Pounds filed the affidavit of her expert, Dr. Alan Jacobs, with her complaint. Based upon his review of the records maintained by Dr. Deen, Dr. Zialcita and Dr. Factor, Dr. Jacobs opined that the gait disturbance Ms. Pounds developed in 2004 was a clinical sign of parkinsonism, but he described the “extrapyramidal side effects” Dr. Deen observed in February 2005 as “consistent with tardive dyskinesia in addition to signs of her reported diagnosis of Parkinson’s disease.” Additionally, another expert witness, Dr. Franesa Hall, testified that although she could not pinpoint or give an opinion as to exactly when Ms. Pounds’ tardive dyskinesia was present and manifested itself through symptoms, it was her opinion that it was at least present by 2004 when Dr. Deen referred her to Dr. Zialcita, and that it was possible she began displaying more subtle symptoms which should have been investigated as early as October 2000.

Ms. Pounds testified by way of videotaped deposition. Ms. Pounds had moved in with Dawn Pounds, her niece’s daughter, in July 2001, after she started feeling that things inside of her were not “right” and she felt it would be unsafe to drive or to continue babysitting. Although Ms. Pounds suffered from memory loss and could not pinpoint the dates and details of when she first began developing symptoms of tardive dyskinesia, Dawn testified that when Ms. Pounds first moved in with her she was not acting normally and she was afraid and scared to be alone. Dawn testified that Ms. Pounds began having involuntary movements of her tongue, hands and feet after she moved in with her, and although she could not pinpoint the precise date, these involuntary movements started within approximately six months of when Ms. Pounds moved in with her. Dawn testified that other involuntary behaviors also appeared, like humming, grunting, or burping and that when some things would seem to improve, others would get worse.

Dawn testified that they talked to Dr. Deen about these movements “every time they would go in” and that “lots” of the movements were obvious during these visits, including finger movements, toe tapping and tongue thrusting. She testified that by the time Dr. Deen referred Ms. Pounds to Dr. Zialcita in August 2004, the movements were “bad” including moving her hands and feet, tapping and stomping and rocking back and forth. Dawn testified that when Ms. Pounds saw Dr. Factor in May 2005, she was “doing her movements” and he immediately diagnosed her with tardive dyskinesia.

Although Dawn was identified as the person most familiar with Ms. Pounds’ symptoms and medical care, other relatives also testified that Ms. Pounds began experiencing anxiety and fearfulness prior to moving in with Dawn, and that within a “short time” after that she started experiencing involuntary movements, including tongue thrusting, humming, movements of her limbs, burping, stomping and/or tapping and rocking. Testimony was also presented that the involuntary movements Pounds was experiencing then were the same symptoms she was experiencing when she went to see Dr. Factor.

Dr. Deen’s records reflected that Ms. Pounds started complaining of anxiety and a “funny” feeling within several months of starting to take Reglan. In the ensuing months, the medical notes reflect that Ms. Pounds was nervous, jittery, restless and depressed, and Dr. Deen prescribed various anti-anxiety and anti-depressant medications, and he eventually referred her to a psychiatrist.

In July to August 2004, Dr. Deen noted that Pounds was losing weight, was confused, had memory loss and had developed a gait disturbance. And he testified that by that time “there were certainly some neurological things going on, abnormalities, movement,” he had not particularly noticed before. He ordered various tests, and it was also at this point that he referred her to Dr. Zialcita, who, as stated above, diagnosed her with Parkinson’s disease, but did not attribute the Parkinson’s symptoms to Ms. Pounds’ treatment with Reglan.

Ms. Pounds continued to see both Dr. Deen and Dr. Zialcita, and her last visit to Dr. Deen was in February 2005. He testified that it was at this last visit that he first noticed the tongue and mouth movements, and if he had noticed them sooner he would have recognized it as tardive dyskinesia, but by that time she had been diagnosed by Dr. Zialcita with Parkinson’s so he relied on that diagnosis. He also agreed that the movement problems he witnessed on her videotaped deposition somewhat reminded him of the problems she was having when he referred her to Dr. Zialcita. Dr. Deen testified that at the time he prescribed Reglan to Ms. Pounds he did not know that a potential side effect of taking Reglan was the development of tardive dyskinesia, and did not become aware of that possible side effect until he read the letter from Dr. Factor diagnosing Ms. Pounds with parkinsonism and tardive dyskinesia and identifying Reglan as the causative agent.

In addition to the above diagnosis, Dr. Factor noted in his records that he considered Ms. Pounds to be one of the worst cases of tardive dyskinesia he had seen. And although he testified that he could not pinpoint the exact date of onset of the disease, he noted in his records that she had the disorder for several years, and he testified that he believed she had developed the disorder by the time Dr. Zialcita saw her in August 2004, and that “it was clearly missed on several occasions.” Dr. Factor also opined in his deposition that Ms. Pounds “probably” had developed symptoms of tardive dyskinesia three years prior to when he saw her in May 2005, and that her symptoms had been getting worse within the year before he diagnosed her. He testified in his deposition that with treatment her symptoms had improved, although the underlying neurological damage was not reversed by the treatment.

1. We turn first to Dr. Deen’s contention that the claims asserted here are barred by the applicable statute of limitation. Under OCGA § 9-3-71 (a), a medical malpractice action must be brought within two years after the date on which an injury or death arising from an alleged negligent or wrongful act or omission occurred. Thus, although the complaint in this case, which was filed in April 2007, was filed within two years of when the diagnosis of drug-induced tardive dyskinesia was made in May 2005, that date is not the relevant date here. First, with respect to Ms. Pounds’ claims that Dr. Deen was negligent in prescribing Reglan, the relevant date is when Ms. Pounds developed drug-induced tardive dyskinesia, as that was the injury. Although based on the above evidence it is clear that the precise date Ms. Pounds developed the disorder would be difficult, if not impossible, to pinpoint, the record shows that Ms. Pounds may have begun experiencing overt symptoms of the disorder within approximately six months after she moved in with Dawn Pounds, placing that date somewhere around January 2002.

Moreover, even discounting these symptoms as being manifestations of her drug-induced parkinsonism instead of drug-induced tardive dyskinesia, Dr. Factor and plaintiff s own experts opined that the symptoms of tardive dyskinesia were present by the time she was referred to Dr. Zialcita in July or August of 2004, and Dr. Deen himself testified that during the last time he saw Ms. Pounds in February 2005, he detected some of the involuntary movements associated with tardive dyskinesia, although he apparently continued to attribute them to Parkinson’s disease based on the diagnosis of Dr. Zialcita. Thus, using any of these dates as the starting point, the complaint was clearly filed two years after the injury occurred here, and the trial court erred by failing to find that these claims were time barred.

Second, Ms. Pounds has alleged that Dr. Deen was negligent because he failed to recognize symptoms of the disorder earlier, and thus failed to diagnose the disease when it became manifest and failed to discontinue the drug at that time. However, we find these claims also are time barred.

The law is well established that in most misdiagnosis cases, the injury begins immediately upon the misdiagnosis; the misdiagnosis itself is the injury and not the subsequent discovery of the proper diagnosis. Thus, the fact that the patient did not know the medical cause of her suffering does not affect the applicability of OCGA § 9-3-71 (a). “The true test to determine when the cause of action accrued is to ascertain the time when the plaintiff could first have maintained his action to a successful result.” [And our Supreme Court] has rejected [the] argument that after an initial misdiagnosis, a doctor’s continued failure to recognize the patient’s problem constitutes a continuing tort. In addition, there is no evidence in the record to support [Ms. Pounds] contention that [Dr. Deen] committed a separate act of negligence by continuing to prescribe [Reglan], [Dr. Deen’s] alleged failure to correct any previous negligence does not constitute additional acts of negligence. And, even if such an action does constitute a new and separate act of professional negligence by [Dr. Deen], the “statute of limitations on a medical malpractice claim [does not] commence [ ] upon the occurrence of a negligent act or omission on the part of the physician. It begins on the date of the patient’s injury.”

Goodman v. Satilla Health Svcs., 290 Ga. App. 6, 8-9 (658 SE2d 792) (2008). See also McCord v. Lee, 286 Ga. 179, 180 (684 SE2d 658) (2009); Kaminer v. Canas, 282 Ga. 830, 831-832 (1) (653 SE2d 691) (2007).

Here, as stated above, construing the evidence in Ms. Pounds’ favor, the evidence shows that even though she had probably developed the disorder much earlier, by the time she last saw Dr. Deen in February 2005 she was clearly exhibiting signs of the disorder that even he testified he might have recognized as tardive dyskinesia if he had not been relying on Dr. Zialcita’s diagnosis. However, because her complaint was filed more than two years from this date, these claims were also barred by the statute of limitation.

Although Ms. Pounds cites case law concerning the calculation of the statute of limitation in cases involving misdiagnosis that result in a subsequent, separate injury, there is no evidence here that Ms. Pounds suffered a “new” injury, as that term has been defined by our appellate courts. McCord, 286 Ga. at 181 (definition of new injury); Amu v. Barnes, 283 Ga. 549, 551-553 (662 SE2d 113) (2008). Rather, this case is similar to Kaminer v. Canas, 282 Ga. 830, in which our Supreme Court held that the plaintiff s

preexisting injury was not transformed into a new injury simply because his underlying AIDS condition remained untreated notwithstanding the increase in his symptoms. . . . Where, as here, the patient’s symptoms of his untreated condition worsen over time, for statute of limitation(s) purposes, the injury occurred at the time of the alleged misdiagnosis.

(Citations and punctuation omitted.) Id. at 833-834. Thus, while the alleged subsequent negligent acts may have led to a worsening of Ms. Pounds’ symptoms, these acts did not lead to a new and more deleterious condition. Compare Cleaveland v. Gannon, 284 Ga. 376, 377 (1) (667 SE2d 366) (2008) (reconciling holdings in Amu v. Barnes, 283 Ga. 553, in which the new injury exception was applied, and Kaminer, in which that theory was rejected).

2. Dr. Deen also moved for summary judgment based on the running of the statute of repose.

Under Georgia law, an action for medical malpractice must be brought within five years from the date on which the negligent or wrongful act or omission occurred. OCGA § 9-3-71 (b). Unlike cases involving the medical malpractice statute of limitation, see OCGA § 9-3-71 (a), [the] focus [in cases involving the statute of repose] is on the date or dates on which appellant [ ] may have committed acts of professional negligence. The test for determining when OCGA § 9-3-71 (b)’s period of repose begins is based on the determination of when the negligent act causing the injury occurred.

Schramm v. Lyon, 285 Ga. 72, 73 (1) (673 SE2d 241) (2009). Moreover, a complaint may allege more than one act of professional negligence resulting in a new injury, and these separate acts are subject to separate periods of repose. Id.

As stated above, Ms. Pounds contended Dr. Deen committed several allegedly separate acts of professional negligence including failing to warn her of the risks of developing Reglan-induced involuntary movement disorders, failing to adequately assess whether she needed to take the drug for GERD, failing to consider whether another medication that did not have the risk of causing movement disorders should be prescribed instead, failing to adequately assess the appropriate dose, failing to recognize or diagnose that she had developed drug-induced tardive dyskinesia, and failing to discontinue Reglan once she exhibited signs of the disorder. To the extent these involve separate acts of medical negligence, they must be separately analyzed for purposes of determining the starting date to calculate the statute of repose. Id.

As to Ms. Pounds’ claims of negligence arising from the prescription of the drug, which are, in essence, claims that Dr. Deen was negligent because he failed to appreciate and inform her of the risk of developing drug-induced tardive dyskinesia, we find that the statute of repose commenced to run on the date that Dr. Deen first prescribed Reglan, which the pharmacy records show occurred on June 2000, although Pounds stated in her complaint that the drug was first prescribed to her in April 2001. However, even accepting this later date, the five-year statute of repose had clearly run on this claim prior to the time Ms. Pounds filed suit in April 2007. Moreover, we agree with Dr. Deen that Ms. Pounds’ argument that he committed multiple acts of negligence because a new, separate and distinct course of treatment was initiated each time he changed the dose or wrote a new prescription, is simply an attempt to resurrect the continuous treatment doctrine, or a variation thereof, and such attempts have been “resoundingly rejected” in this state. Goodman v. Satilla Health Svcs., 290 Ga. App. at 7, and footnote cites. Likewise, his failure to warn Ms. Pounds of the dangers of developing an irreversible movement disorder while taking Reglan constituted a “single persistent negligent act,” Schramm, 285 Ga. at 74 (2), and thus his failure to warn Ms. Pounds at subsequent visits or when he wrote new prescriptions for the drug did not constitute new independent acts of negligence so as to trigger a new period of repose. Id. at 75 (3) (cautioning that the opinion in that case should not be read as imposing a continuing duty to warn patients of risks from an existing condition at each subsequent visit). Thus, these alleged acts of negligence were clearly barred by both the statute of repose as well as the statute of limitation.

Decided October 21, 2011.

Martin Snow, John C. Edwards, Richard A. Epps, Jr., for appellant.

Childers, Schlueter & Smith, C. Andrew Childers, for appellee.

However, as analyzed above, Dr. Deen’s alleged negligence in failing to recognize the signs of tardive dyskinesia and change Ms. Pounds’ treatment accordingly, which are in essence claims of misdiagnosis and negligent treatment, did not occur until Dr. Deen failed to detect that Ms. Pounds was exhibiting possible symptoms of tardive dyskinesia. Although as stated above, the evidence is unclear about when Dr. Deen should have become aware of these symptoms, the evidence shows that these symptoms were probably present at least by the summer of 2004 and at the latest by February 2005, although testimony was presented that Ms. Pounds and her niece had been observing and informing Dr. Deen about these symptoms since January 2002. In any event, construing the evidence in Ms. Pounds’ favor, it is not clear that these claims were barred by the statute of repose. However, as stated above, these claims were barred by the statute of limitation, and thus for the reasons stated in Division 1, the trial court erred by denying Dr. Deen’s motion for summary judgment on these claims also.

Judgment reversed.

Barnes, P. J., and Blackwell, J., concur.

       Included here are the acts of failing to adequately assess her GERD to ascertain if she needed treatment with Reglan, failing to consider other treatment options that carried less risk of the development of involuntary movement disorders and failing to warn of the possible side effect of developing tardive dyskinesia.

       This contention is seemingly at odds with Ms. Pounds’ statement in her appellate brief that “[n]one of Ther] physicians - including [Dr. Deen] - ever observed or noted any symptoms consistent with Tardive Dyskinesia . . . until Dr. Factor did so on May 10, 2005 . . . .”


source: Caselaw Access Project

author: Doyle, Judge.

license: Public Domain

text:
    A11A1324.
    JONES et al. v. UNIFIED GOVERNMENT OF ATHENS-CLARKE COUNTY.
    (718 SE2d 74)
   Doyle, Judge.

Robert Manlove and William Hoffman filed suit against the Unified Government of Athens-Clarke County, Georgia (“the County”), and the trial court dismissed the case. The plaintiffs and their attorney, Charles A. Jones, Jr., appeal the trial court’s failure to recuse and the imposition of attorney fees and costs against them pursuant to OCGA § 9-15-14 (b). We affirm, for the reasons that follow.

The record shows that the plaintiffs filed an action for declaratory judgment on January 24, 2008, challenging the constitutionality of a county noise ordinance. On February 19, 2008, the plaintiffs filed a motion to recuse the trial court, and the assigned judge transferred the matter to another judge, who denied the motion on March 21, 2008.

On March 19, 2008, the County filed a motion to dismiss on the basis that the plaintiffs lacked standing. On March 27, 2008, the County filed a motion for protective order and to stay discovery pending resolution of its motion to dismiss. In addition, the County argued that some of the discovery requests were objectionable and oppressive, including the plaintiffs’ deposition subpoena to County Commissioner David Lynn. The trial court granted the motion for protective order on April 1, 2008, and awarded attorney fees and costs to the County, with the amount to be determined following the ruling on the motion to dismiss.

On July 11, 2008, the trial court granted the County’s motion to dismiss the lawsuit, holding that the plaintiffs lacked standing. In the order, the trial court noted that “[djismissal of the claims also renders further orders on Defendant’s Motion for a Protective Order and to Stay Discovery unnecessary.” The plaintiffs filed a notice of appeal to the Supreme Court on July 14, 2008. Thereafter, on July 25, 2008, the plaintiffs filed a motion to strike the protective order, and on July 31, 2008, the County filed a motion for attorney fees and costs pursuant to the July 11 protective order.

On June 15, 2009, the Supreme Court affirmed the trial court’s dismissal of the case, holding that the plaintiffs lacked standing to pursue their claims. The County subsequently filed a motion for attorney fees and costs pursuant to OCGA § 9-15-14 (b) on August 25, 2008. Following a hearing, the trial court granted the motion on August 26, 2010, and ordered Jones to pay the County $9,145 in fees and costs.

1. The plaintiffs and Jones argue that the trial court erred by failing to recuse from this case. There is no merit to this enumeration.

On February 19, 2008, the plaintiffs filed a motion to recuse the trial court pursuant to Canon 3 (E) (1) (c) of the Code of Judicial Conduct on the basis that the assigned trial judge was married to the County municipal judge “who adjudicates . . . alleged violations of the (noise) ordinance under challenge here.” On February 27, 2008, the assigned judge transferred the matter to another judge, who denied the motion on March 21, 2008, concluding that the motion was untimely, and that Canon 3 (E) (1) (c) did not apply because the municipal judge was not a party.

Pretermitting whether the February 2008 motion to recuse was timely or had merit, the plaintiffs waived appellate review of the order denying their motion to recuse by failing to enumerate it as error in their appeal to the Supreme Court regarding the dismissal of this case. “A judgment is conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.” The plaintiffs could have raised the denial of their motion to recuse in their appeal to the Supreme Court, but elected not to do so, and their failure to do so precludes them from challenging the recusal order now.

Propst v. Morgan, relied upon by the plaintiffs, does not require a different result. In that case, Morgan filed a motion to recuse, which the trial court denied, and Morgan did not seek an interlocutory appeal. Morgan then appealed the trial court’s subsequent dismissal of the appeal in his case under OCGA § 5-6-48 (c). On appeal, this Court held that the motion to recuse was timely filed and sufficient to require transfer to another judge for a decision, and we vacated the trial court’s judgment and remanded the case for further proceedings. The Supreme Court affirmed, noting the line of cases holding that “if a party files a motion to recuse a trial judge and the motion is denied, but it is later determined that the judge should have been disqualified to act in the case, all proceedings after the filing of the motion to recuse are invalid and of no effect.” The Court concluded that because

[a] trial judge’s dismissal of an appeal under OCGA § 5-6-48 (c) requires a significant exercise of discretion based on findings of fact[,] ... in those rare cases in which an appeal is dismissed under OCGA § 5-6-48 (c) by a trial judge who previously denied a recusal motion, an appellate court should consider the merits of the recusal motion before considering the merits of the trial judge’s dismissal ruling.

The instant case is factually distinguishable. In Propst, Morgan appealed the recusal motion at the same time he appealed the dismissal. In the instant case, the plaintiffs appealed the dismissal order and elected not to challenge the recusal order in that appeal. Thus, they have waived their right to challenge the recusal order in this subsequent appeal.

2. In several enumerations of error, Jones challenges the attorney fee award to the County entered pursuant to OCGA § 9-15-14 (b), which authorizes a trial court to

assess reasonable and necessary attorney’s fees and expenses of litigation in any civil action in any court of record if, upon the motion of any party or the court itself, it finds that an attorney or party brought or defended an action, or any part thereof, that lacked substantial justification or that the action, or any part thereof, was interposed for delay or harassment, or if it finds that an attorney or party unnecessarily expanded the proceeding by other improper conduct, including, but not limited to, abuses of discovery procedures available under Chapter 11 of this title, the “Georgia Civil Practice Act.” As used in this Code section, “lacked substantial justification” means substantially frivolous, substantially groundless, or substantially vexatious.

“OCGA § 9-15-14 (b) is discretionary!,] and the standard of review is abuse of discretion.”

(a) Jones argues that the trial court abused its discretion by verbally announcing its decision to impose fees against Jones before allowing him to cross-examine the witnesses against him. But because Jones elected not to include a transcript of the attorney fee motion hearing, this claim of error fails.

The portion of the transcript designated by the County, which begins with the trial court’s ruling, reflects that the trial court orally announced its factual findings and decision to award fees to the County pursuant to OCGA § 9-15-14 (b), and then the Court asked the parties whether “the [trial court had] overlooked anything in announcing its decision.” Jones responded that, “For us[,] we will just object to not being permitted to cross-examine the affiants, the attorneys in this case.” The trial court then stated:

Okay. Well, have at it. The [cjourt has not written a ruling now, so have it [sic] please. I didn’t hear any further suggestion of — but if you want to take it on — take them, I’ll be glad to hear for it and reconsider any ruling that the [c]ourt has announced that is called — based on any evidence you bring forward.

Jones proceeded to cross-examine Amy Gellins, one of the attorneys for the County; the record does not include a recordation of the cross-examination. In its subsequent order granting the County’s request for attorney fees and costs, the trial court stated that following Jones’s objection at the hearing, “Jones cross-examined Ms. Gellins, but elected not to cross-examine Mr. Berryman. Mr. Jones brought forward no evidence through cross-examination which would alter the [c]ourt’s findings and rulings.”

Clearly, Jones had the right to cross-examine the County’s witnesses, and the trial court erred to the extent that it failed to permit him to do so before announcing its verbal ruling. Nevertheless, Jones has not demonstrated that he was harmed by this action. The record indicates that once Jones objected, the trial court allowed him to cross-examine the witness(es), and it considered the evidence adduced therein and concluded that it did not alter the court’s findings. Jones’s omission from the appellate record of the transcript of the specifics of his cross-examination of Gellins necessarily precludes a finding of harm. “Because harm as well as error must be shown to warrant reversal, this enumeration is without merit.”

(b) Jones contends that “[t]he trial court abused its discretion by issuing sanctions under OCGA § 9-15-14 because this case is not frivolous litigation.” This enumeration is without merit.

Jones’s failure to include the transcript of the motion hearing on appeal is fatal to this claim.

It is the duty of the appellant to include in the record those items which will enable the appellate court to perform an objective review of the evidence and proceedings. Thus, to the extent that evidence was presented at the attorney fees hearing beyond what can be gleaned from the [remaining evidence in the record], it is not available for us to consider. Where the transcript is necessary[,] and appellant omits it from the record on appeal the appellate court must assume the judgment below was correct and affirm.

In its order granting the County’s motion for attorney fees and expenses, the trial court concluded that “Jones has acted without substantial justificationf ] and with the intent to harass or unnecessarily expand the proceedings,” specifically identifying several instances of sanctionable conduct on the part of Jones, including “a pattern of technical violations,” improper accusations against counsel for the County, harassing discovery conduct, and filing a motion that lacked substantial justification. In the absence of any evidence in the record to contradict these findings, we find no abuse of discretion in the trial court’s decision to impose sanctions pursuant to OCGA § 9-15-14 (b).

We are unpersuaded by Jones’s argument that “[s]ound public policy dictates a reversal in this case because to do otherwise would chill future civil rights litigation.” The trial court did not award fees and expenses based upon a finding that the claims lacked substantial justification, but instead that Jones’s conduct during the litigation was sanctionable. For the same reason, Jones’s argument that “[t]he trial court abused its discretion by issuing sanctions under OCGA § 9-15-14 because this case is not frivolous litigation” fails.

(c) Jones also challenges the amount of attorney fees and expenses awarded to the County, arguing that the trial court erred by basing the fee award on a higher hourly rate than the County actually incurred, resulting in an improper windfall to the County. Given the record on appeal, this argument presents no basis for reversal.

In his affidavit filed in support of the County’s motion for attorney fees and expenses, Berryman testified that the County “spends approximately $85[ ] per hour for my services consisting of salary, varied benefits[,] and administrative costs. . . .” Berryman further stated, however, that “[t]his rate falls far below the range of rates that I have been paid when I engaged in private practice,” which was between $180 and $250 per hour, a range of rates that he opined is reasonable “for an attorney of my education, experience, and background.” Similarly, Gellins testified that the County “spends approximately $40[ ] per hour for my services consisting of salary, varied benefits, and administrative costs. ...” She too stated that “[t]his rate falls far below the range of rates that I have been awarded and/or paid for my successful representation of civil rights clients (between 1993 and 2002, @ $150-$250/hour).” In the order granting the attorney fee motion, the trial court concluded that “the rate[s] of $250 per hour for Mr. Berryman and $225 per hour for Ms. Gellins are reasonable and usual rates for attorneys of similar skill and experience in this area,” and the trial court based its award on these rates.

OCGA § 9-15-14 (b) authorizes an award of “reasonable and necessary attorney’s fees and expenses.” “In order to recover attorney fees, a prevailing party must prove both their actual cost and their reasonableness. . . .” It is well-settled “that a party’s attorney himself is competent to testify as to his opinion on reasonable fees.”

In this case, the County attorneys were salaried employees, and they were not paid an hourly rate for their time. Thus, their fee structure is difficult to quantify with any precision. Nevertheless, in their affidavits, the attorneys attempted to calculate their hourly rates, taking into account salary, benefits, and administrative costs. Because their estimated hourly rate for their work for the County fell “far below” the rates they were previously paid when engaged in private practice, both attorneys listed a higher rate, which they stated was reasonable in their opinion for attorneys of their education, background and experience. And given the lack of a transcript, we are not aware of any evidence to controvert the attorneys’ opinions that their rates were reasonable. After considering the evidence, the trial court concluded that $250 per hour was a reasonable rate for Berryman based on his ‘ ‘years of experience and practice, particularly in the field of government and litigation” and that $225 per hour was a reasonable rate for Gellins based upon her 25 years of active practice, including “significant litigation experience.”

The rates employed by the trial court are “within the range of the evidence adduced,” and the award “is not on its face manifestly unreasonable.” Given the facts of this case, we decline to interfere with the trial court’s broad discretion in awarding $9,145 as the County’s “reasonable and necessary attorney’s fees and expenses of litigation” incurred as a result of Jones’s sanctionable conduct under OCGA § 9-15-14 (b).

Decided October 21, 2011

Charles A. Jones, Jr., for appellants.

William C. Berryman, Jr., Amy S. Gellins, for appellee.

Judgment affirmed.

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

       The Supreme Court affirmed the dismissal in Manlove v. Unified Govt. of Athens-Clarke County, 285 Ga. 637 (680 SE2d 405) (2009).

       In the motion, the County stated that the plaintiffs served Lynn with a deposition subpoena for March 24, 2008, and although plaintiffs’ counsel had agreed to “continue” the deposition, he fully intended to move forward with it in the future.

       The trial court also directed the County to submit any motion for attorney fees along with supporting affidavits within 20 days.

       See Manlove, 285 Ga. at 638-639.

       The trial court specified that the attorney fees and costs were imposed against Jones, not the plaintiffs. Thus, only Jones has standing to appeal that ruling.

       Canon 3 (E) (1) (c) of the Code of Judicial Conduct states:
      Judges shall disqualify themselves in any proceeding in which their impartiality might reasonably be questioned, including but not limited to instances where: . . . the judge or the judge’s spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person or any other member of the judge’s family residing in the judge’s household ... (i) is a party to the proceeding, or an officer, director, or trustee of a party; (ii) is acting as a lawyer in the proceeding; (iii) is known by the judge to have a more than de minimis interest that could be substantially affected by the proceeding; (iv) is to the judge’s knowledge likely to be a material witness in the proceeding.
      (Footnotes omitted.)

       See Franklin v. Gude, 259 Ga. App. 521, 523 (578 SE2d 170) (2003).

       (Punctuation omitted.) Id. See OCGA § 9-12-40.

       See OCGA § 5-6-34 (d).
      Where an appeal is taken under any provision of subsection (a), (b), or (c) of this Code section, all judgments, rulings, or orders rendered in the case which are raised on appeal and which may affect the proceedings below shall be reviewed and determined by the appellate court, without regard to the appealability of the judgment, ruling, or order standing alone and without regard to whether the judgment, ruling, or order appealed from was final or was appealable by some other express provision of law contained in this Code section, or elsewhere. For purposes of review by the appellate court, one or more judgments, rulings, or orders by the trial court held to be erroneous on appeal shall not be deemed to have rendered all subsequent proceedings nugatory; but the appellate court shall in all cases review all judgments, rulings, or orders raised on appeal which may affect the proceedings below and which were rendered subsequent to the first judgment, ruling, or order held erroneous.
      Id. (emphasis supplied); OCGA § 5-6-34 (a) (1) (“Appeals may be taken to the Supreme Court and the Court of Appeals from the following judgments and rulings of the superior courts: . . . [a]ll final judgments, that is to say, where the case is no longer pending in the court below, except as provided in Code Section 5-6-35.”).

       See Franklin, 259 Ga. App. at 523.

       288 Ga. 862 (708 SE2d 291) (2011).

       See id. at 862.

       See id. at 863; Morgan v. Propst, 301 Ga. App. 402 (688 SE2d 357) (2009).

       (Punctuation omitted.) 288 Ga. at 864.

       Id.

       We further note that Jones never filed a motion to recuse the trial court on his own behalf, and therefore, any attempt to personally challenge on appeal the trial court’s failure to recuse is without merit. See Brown v. State, 302 Ga. App. 641, 646 (4) (692 SE2d 9) (2010).

        Haggard v. Board of Regents of Univ. System of Ga., 257 Ga. 524, 527 (4) (a) (360 SE2d 566) (1987). See Rescigno v. Vesali, 306 Ga. App. 610, 616 (4) (703 SE2d 65) (2010).

       Jones’s amended notice of appeal states that the trial court clerk “will please omit everything from the record on appeal except the [n)otice of [a]ppeal[ ] and this Tajmended [n]otice of [alppeal. A [r]ecord [alppendix will be prepared under Court of Appeals Rule 17. Transcripts will not be included for the record on appeal.” (emphasis in original).

       The trial court based its award on fees incurred by the County for the work of both Gellins and a second attorney, William C. Berryman, Jr.

       See Santora v. American Combustion, Inc., 225 Ga. App. 771, 775 (3) (485 SE2d 34) (1997) (A party “has the right to cross-examine each witness on the amount and reasonableness of the fees and costs requested.”); Mitcham v. Blalock, 214 Ga. App. 29, 32-33 (2) (447 SE2d 83) (1994) (same).

       The lack of a transcript makes it unclear what attempts, if any, Jones made to cross-examine the County’s witnesses before the trial court’s ruling.

       (Punctuation omitted.) Thomas v. Brown, 308 Ga. App. 514, 516 (2) (707 SE2d 900) (2011).

       (Citation and punctuation omitted.) Trotter v. Summerour, 273 Ga. App. 263, 266, n. 2 (614 SE2d 887) (2005).

       See Doe v. HGI Realty, Inc., 254 Ga. App. 181, 184 (561 SE2d 450) (2002) (“[T]rial judges have broad discretion in controlling discovery, including imposition of sanctions, and appellate courts will not reverse a trial court’s decision on such matters unless there has been a clear abuse of discretion.”) (punctuation omitted).

       Both attorneys filed exhibits to their affidavits detailing the time spent on various motions, and the trial court made specific award allocations based on fees and expenses incurred in responding to Jones’s individual sanctionable actions. Jones does not challenge the trial court’s findings regarding the amount of time expended by the attorneys.

        Johnston v. Correale, 285 Ga. App. 870, 871 (1) (648 SE2d 180) (2007).

        Walther v. Multicraft Constr. Co., 205 Ga. App. 815, 817 (3) (423 SE2d 725) (1992).

       Salaried attorneys employed by public entities, including government, and various legal aid organizations likely face similar challenges when attempting to quantify an hourly rate for purposes of determining an attorney fee award. For the same reason, calculation of attorney fee awards to clients with a contingency fee agreement with their attorney is also more complicated. Thus, in such cases, the trial court may “consider the contingent fee agreement and the amount it would have generated as evidence of usual and customary fees in determining both the reasonableness and the amount of an award of attorney fees” or it may “determine the amount of the award of attorney fees on the basis of hourly rates.” Southern Cellular Telecom v. Banks, 209 Ga. App. 401, 403 (1) (433 SE2d 606) (1993).

        Contract Harvesters v. Clark, 211 Ga. App. 297, 299 (3) (439 SE2d 30) (1993).

       See Greer v. Davis, 244 Ga. App. 317, 320-321 (3) (534 SE2d 853) (2000) (stating that “[t]he trial court’s determination as to what fees are reasonable and necessary must be sustained unless the trial court abused its discretion” and affirming an award of attorney fees because “ [t]he trial court heard testimony from plaintiffs counsel; defense counsel was given an opportunity to cross-examine on the amount of the fees; and plaintiffs counsel submitted an extremely detailed accounting of each charge”); Contract Harvesters, 211 Ga. App. at 300 (3) (“The award of $1,500 as reasonable attorney fees incurred ... is within the range of the evidence adduced and is not on its face manifestly unreasonable. An award of attorney fees and expenses of litigation made under OCGA § 9-15-14 (b) is discretionary and the standard of review is abuse of discretion. Under this standard, the record supports the superior court’s award.”) (citation and punctuation omitted).


text:
    A11A1438.
    DONALD v. THE STATE.
    (718 SE2d 81)
   Doyle, Judge.

Marquet Sherman Donald was charged with one count of burglary, three counts of armed robbery, three counts of aggravated assault, four counts of possession of a firearm during the commission of a crime, three counts of false imprisonment, two counts of aggravated assault on a police officer, and one count of theft by taking. A Clayton County jury found him not guilty of the two counts of aggravated assault on a police officer, not guilty of one count of aggravated assault, and guilty of the remaining charges. Donald appeals following the denial of his motion for new trial, arguing that (1) the evidence was insufficient to support his conviction beyond a reasonable doubt; (2) the trial court erred by admitting hearsay evidence; (3) the trial court erred by admitting identification evidence for which there was no foundation; and (4) he received ineffective assistance of counsel. We affirm, for reasons that follow.

When reviewing a challenge to the sufficiency of the evidence, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The jury, not this Court, resolves conflicts in the testimony, weighs the evidence, and draws reasonable inferences from basic facts to ultimate facts. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.

So viewed, the record shows that on July 3, 2008, Sherada Thompson, Justin Jones, and Cheryl Alphabet were working the night shift at a fast food restaurant in Clayton County and preparing to close for the night. At approximately 1:30 a.m., Jones exited the restaurant through the rear emergency door, dumped out a bucket of mop water, and went back inside the restaurant without fully latching the door. Thompson heard “a big bang” coming from the back of the restaurant, and when she and Jones went to investigate the sound, they found Alphabet lying on the floor. Standing in the rear of the restaurant was a man wearing a black ski mask, gloves, and sunglasses and holding a gun. The man forced Jones into the restaurant’s office and closed the door. Using his cell phone, Jones quickly called his brother, Allen, and told him that the restaurant was being robbed.

Meanwhile, the gunman ordered Thompson and Alphabet to the front of the restaurant, where he ordered Alphabet to retrieve money from the cash registers and put it into trash bags. Next, the gunman forced Thompson and Alphabet into the walk-in cooler and forced Jones into the freezer. After another five or ten minutes, the gunman transferred Thompson and then Alphabet from the cooler into the freezer with Jones, demanding the women’s cell phones and commenting that Alphabet had a new phone. The gunman then pointed his weapon at Alphabet’s face and demanded the keys to her red Pontiac Sunfire, which was parked outside the restaurant, after which he forced her to exit the freezer. After a few minutes, Thompson heard “tussling and ruffling around,” and Jones heard a slam, Alphabet scream, and then a gunshot. Ten to fifteen minutes later, Thompson and Jones exited the freezer, by which time the police had already arrived.

Meanwhile, when Jones’s brothers, Allen and Edward, received the call from Jones regarding the robbery, they sped to the restaurant, which was a short distance from their location. While en route, they called 911 and advised the police about the robbery. When they arrived, they observed a man behind the restaurant sitting in a car with a door open. The brothers asked the man where Jones and Alphabet were, and he responded that the restaurant was closed. When the brothers told the man that Jones had called and reported the robbery, he said, “[H]old on for a minute, the store is closed, they’ll be out in short, they’ll be out shortly.” As Edward jumped out of the car and approached him, the man “reach[ed] for something, like he was going to pull something out.” Before he was able to retrieve the item, police arrived on the scene, and the man sped away in his car.

When Officer John Ivey arrived at the restaurant, he saw a red Pontiac Sunfire accelerate and exit the parking lot. Ivey saw Allen, Edward, and the other occupants of their car yelling and pointing at the Pontiac, saying “that was the guy.” Police entered the restaurant and found Alphabet, who was struggling for breath and bleeding from gunshot wounds to her head and arm.

Meanwhile, Sergeant John Stephens pursued the Pontiac behind a grocery store, where he observed the driver jump out of the car while it was in motion; the driver had a bag in his hand, which he dropped when the car door knocked him down. The suspect eluded Stephens and ran toward the woods, where he then ran directly in front of Officer Matt Whitton’s patrol car. Whitton chased after him on foot until the suspect dropped to the ground in a ditch below the officer. Whitton identified himself as a police officer, advised the suspect that he was under arrest, drew his gun, and approached the suspect. The suspect then grabbed the barrel of the officer’s gun, and with Whitton’s finger on the trigger, the gun discharged, hitting the officer in the arm. As the two men continued to fight, the suspect attempted to manually chamber another round, but was unsuccessful. Whitton was finally able to wrestle the gun from the suspect, who ran off, and Whitton called for assistance from his patrol car.

Additional police responded to the scene, and a K-9 unit began searching for the suspect. The K-9 dog quickly located a cell phone, a tactical flashlight, and two shirts — a dark one and a lighter one — which appeared to have been removed simultaneously, and another white shirt, which was covered with blood. Police also recovered a white plastic trash bag containing money and a pink bandana behind the grocery store, and they found a gun and gloves in the car abandoned by the suspect. After Donald turned himself in later that day, police took swabs of the “vast amount of dried blood” found on his chest, neck, and fingernails, which blood the crime lab later determined matched Whitton’s DNA.

At trial, Thompson testified that during the robbery she told Alphabet that she thought Donald was the perpetrator, based on the shape of his head, which she described as “distinct,” the shape of his eyes, his voice, and the fact that he knew that Alphabet had a new cell phone. Donald had previously worked with Thompson at the restaurant, but was fired after an altercation with a co-worker approximately five days before the robbery; after his termination, Donald told Thompson that he was mad and that he was “trying to do something to [the general manager because] ... he just felt the grounds of him getting fired wasn’t right [sic].” Thompson also identified Donald at trial as the assailant.

During his testimony, Jones identified Donald as the perpetrator based on Donald’s build and his “little funny shape[d] head, a little egg head.” Jones’s brothers, Allen and Edward, identified Donald from a photographic lineup and at trial as the man they encountered outside the restaurant. Finally, Whitton identified Donald in a photographic lineup and at trial as the man he chased and with whom he struggled.

Donald’s girlfriend, Heather Shaw, testified that Donald was with her at her house around midnight on the night of the robbery; her house is located within walking distance of the restaurant. Donald left her house and returned the next morning wearing only pants and no shirt. Shaw testified that Donald told her that he shot Alphabet, “but he didn’t mean to do it.” Ricky Gousha, Donald’s friend from high school, testified that Donald called him at 7:00 the morning after the robbery and asked him to say that Donald was at his house the night of the robbery, but Gousha refused.

At trial, Donald testified that he was fired from the restaurant after he got into an altercation with a male co-worker, during which he pushed the co-worker and Alphabet, who was also working at the time. Donald admitted that he was “angry” following his termination, but denied that he plotted revenge or retaliation. Donald denied committing the robbery, suggesting instead that he “was set up” by another fired employee. Donald testified that his own blood was on his chest and hands when he turned himself in, stating that his girlfriend hit him on his chest and hands the night of the robbery with “a rugged stick” after she became jealous. When asked to explain why the blood matched Whitton’s DNA, Donald replied, “that’s a phony.” Finally, Donald admitted that the gun the police recovered from the red Pontiac after the robbery looked like a gun that he owned, but explained that he had been storing his gun in a storage shed at the restaurant.

The jury found Donald not guilty of the two counts of aggravated assault against Whitton, not guilty of one count of aggravated assault against Jones, and guilty of the remaining charges. Donald’s subsequent motion for new trial was denied, and this appeal followed.

1. Donald argues that the evidence was insufficient to support his convictions. We disagree.

The evidence, including the testimony of Jones, Thompson, Jones’s brothers, Shaw, Whitton, and the other police officers, as well as items recovered from the path of Donald’s flight from police was sufficient to support his convictions. Donald’s challenge to the sufficiency of the evidence is without merit.

2. Donald contends that the trial court erred by permitting Ivey to testify, over objection, that Thompson told him she believed Donald was the perpetrator, arguing that Ivey’s testimony constituted inadmissible hearsay intended to bolster Thompson’s testimony.

Our Supreme Court has explained that

unless a witness’s veracity has affirmatively been placed in issue, the witness’s prior consistent statement is pure hearsay evidence, which cannot be admitted merely to corroborate the witness, or to bolster the witness’s credibility in the eyes of the jury. . . . [A] witness’s veracity is placed in issue so as to permit the introduction of a prior consistent statement only if affirmative charges of recent fabrication, improper influence, or improper motive are raised during cross examination.

Here, the trial court overruled Donald’s objection “because there were attacks ... on credibility and so forth. ...” Our review of the record indicates that Donald successfully attacked inconsistencies between Thompson’s trial testimony and her written statement regarding whether the assailant initially forced her into the cooler or the freezer. Pretermitting whether this constituted an affirmative claim by Donald of “recent fabrication, improper influence, or improper motive in his cross-examination of [Thompson],” Donald has failed to establish that Ivey’s testimony contributed to the verdict. During direct examination, Thompson testified that during the robbery she told Alphabet she thought the assailant was Donald, and she also identified him at trial. And, given the other evidence of Donald’s guilt, including his admission to Shaw that he shot Alphabet, the testimony of Jones’s brothers and Whitton, and Whitton’s blood found on Donald the following day, “[i]t is clear . . . that any improper bolstering of [Thompson’s] testimony by the officer’s hearsay testimony had no real effect on [Donald’s] convictions, and so the error was harmless.”

3. Donald argues that the trial court erred by admitting Thompson’s identification of Donald because it was speculative and without foundation, pointing out that the assailant’s face was completely covered with a ski mask. This argument is without merit.

Thompson, who had worked previously with Donald, testified that she identified him based on the shape of his head, his voice, and his comment that Alphabet’s cell phone appeared to be new. This evidence was sufficient to support Thompson’s identification.

4. Finally, Donald argues that he received ineffective assistance of counsel.

In evaluating a claim of ineffective assistance of counsel, we apply the two-prong test set forth in Strickland v. Washington, [Donald] must show that counsel’s performance was deficient and that, but for that deficient performance, there is a reasonable probability that the outcome of his trial would have been different. In evaluating the first prong of this test, a strong presumption exists that counsel’s conduct falls within the broad range of professional conduct. On appellate review of the trial court’s ruling, we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.

(a) Donald contends that his trial counsel rendered ineffective assistance by eliciting testimony from Thompson during cross-examination that Donald had been fired and was angry.

At the motion for new trial, trial counsel testified that he thought the State would introduce evidence regarding Donald’s termination, and “I didn’t want the jury to think I was . . . holding back. And we were going to deal with the fact that he had been fired or terminated, but that that didn’t factor into this whole situation. . . . We were just going to get it out in the open. I didn’t want [the prosecutor] to be the first one to . . . mention it.”

[DJecisions regarding whether and how to conduct cross-examinations and what evidence to introduce are matters of trial strategy and tactics and are within the exclusive province of counsel after consultation with the client. Indeed, such tactical decisions provide no grounds for reversal unless they are so patently unreasonable that no competent attorney would have chosen them.

Trial counsel’s strategy was reasonable and did not constitute ineffective assistance of counsel.

(b) Donald also maintains that trial counsel was ineffective by asking Jones during cross-examination if he could identify the perpetrator in court because Jones had not done so on direct examination. At the motion for new trial hearing, trial counsel testified that he asked the question because he sometimes asked witnesses to make in-court identifications “hoping they’ll say no, I can’t. And then I use that in my closing argument that they didn’t identify. And then if they say . . . yeah[,] I could always say, well, you didn’t identify him at the scene, did you. You were never shown a photo I.D.” “Trial counsel’s strategic decision was reasonable, and such a strategic decision is not grounds for finding ineffective assistance.”

(c) Donald also argues that trial counsel rendered ineffective assistance by failing to file any pretrial motions regarding identification. Donald, however, does not specify the motions he contends trial counsel should have filed, and he has failed to demonstrate that the result of the trial would have been different if such motions had been filed. Thus, Donald has failed to establish prejudice resulting from the failure to file pretrial motions regarding identification.

(d) Next, Donald contends that trial counsel was ineffective for failing to object to evidence that Donald had been fired from the restaurant for violating a no-violence policy, arguing that such evidence constituted inadmissible bad character evidence. We disagree.

The testimony was relevant to the issue of Donald’s motive for his actions — to show that he was angry that he had been fired and was seeking revenge against the general manager of the restaurant. “The State is permitted to present evidence of a defendant’s possible motive for committing a crime, and such relevant evidence is not rendered inadmissible because it may incidentally place the defendant’s character into evidence.” Thus, this enumeration presents no basis for reversal.

(e) Donald further contends that trial counsel rendered ineffective assistance by failing to object to testimony from Alphabet’s sister regarding Alphabet’s medical condition, arguing that her testimony constituted inadmissible hearsay. Although Donald raised this issue in his supplemental motion for new trial, he expressly withdrew it at the hearing. Therefore, he has waived this argument.

(f) Finally, Donald argues that trial counsel rendered ineffective assistance by failing to prepare him for cross-examination. Specifically, Donald points to the fact that he “had no answer as to why [a] weapon was found in the vehicle [he was driving].”

At the motion for new trial, trial counsel testified that he met with Donald at the jail and spoke with him on the phone multiple times before trial. He further testified that he discussed with Donald both before and during the trial whether Donald should testify in his own behalf. Donald did not testify at the motion for new trial hearing.

In the absence of a proffer showing how further preparation would have changed [Donald’s] testimony such that it would have affected the outcome of the case, [Donald] cannot meet his burden of making an affirmative showing that specifically demonstrates how counsel’s failure would have affected the outcome of his case. As [Donald] has not made such a proffer, his claim that trial counsel was ineffective because he inadequately prepared [Donald] to testify at trial also fails.

Decided October 21, 2011.

Brandon Lewis, for appellant.

Tracy Graham-Law son, District Attorney, Billy J. Dixon, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       (Citation and punctuation omitted.) Dockery v. State, 309 Ga. App. 584, 585 (711 SE2d 100) (2011). See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        See Jackson, 443 U. S. at 319 (III) (B); Johnson v. State, 305 Ga. App. 838, 840 (1) (700 SE2d 726) (2010); OCGA §§ 16-7-1 (a) (burglary); 16-8-41 (a) (armed robbery); 16-5-21 (a) (1), (2) (aggravated assault); 16-11-106 (b) (possession of a firearm during the commission of a crime); 16-5-41 (a) (false imprisonment); and 16-8-2 (theft by taking).

       (Citation and punctuation omitted; emphasis in original.) Johnson v. State, 289 Ga. 498, 501-502 (4) (713 SE2d 376) (2011).

       Id. at 502 (4).

       Id. See also Character v. State, 285 Ga. 112, 120 (6) (674 SE2d 280) (2009) (error in admitting prior consistent statement in absence of affirmative charges of improper motive, improper influence, or recent fabrication was harmless); Blackmon v. State, 272 Ga. 858, 859 (2) (536 SE2d 148) (2000) (even assuming that trial court erroneously admitted a witness’s prior consistent statement, the admission was harmless because evidence of guilt was overwhelming).

       See Johnson v. State, 293 Ga. App. 728, 729 (1) (667 SE2d 637) (2008) (victim’s voice identification of masked armed robber by the victim sufficient); Whitehead v. State, 232 Ga. App. 140-141 (1) (499 SE2d 922) (1998) (victims’ testimony that they recognized the assailant, whose face was covered by a ski mask, as a former employee based on his voice, physical attributes, and phrasing was sufficient to support conviction for armed robbery and aggravated assault); Stirrat v. State, 226 Ga. App. 350, 351 (1) (486 SE2d 640) (1997) (voice, body motion, and physical build of masked assailant provided sufficient basis for identification and conviction).

       466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

       (Punctuation and footnotes omitted.) Greenwood v. State, 309 Ga. App. 893, 894 (1) (714 SE2d 602) (2011).

       (Punctuation and footnotes omitted.) Buis v. State, 309 Ga. App. 644, 647-648 (710 SE2d 850) (2011).

       See Bell v. State, 302 Ga. App. 359, 361 (691 SE2d 259) (2010).

       (Punctuation omitted.) Cobb u. State, 309 Ga. App. 70, 77 (4) (b) (709 SE2d 9) (2011).

       See id. at 78 (4) (c); Pringle v. State, 281 Ga. App. 230, 234 (2) (a) (635 SE2d 843) (2006).

        King v. State, 275 Ga. 463, 465 (2) (569 SE2d 518) (2002).

         Specifically, Donald points to testimony from Alphabet’s sister describing a photograph of Alphabet in the hospital and stating that Alphabet was unconscious for 14 days, was in the hospital from July to November, and was intubated.

       See Vincent v. State, 276 Ga. App. 415, 417 (3) (623 SE2d 255) (2005) (“[T]his enumeration was expressly abandoned at the hearing on [defendant’s] motion for a new trial, and it is therefore not preserved for review on appeal.”).

       Counsel could not, however, “specifically remember addressing about the weapon . . . at th[at] point [in] time.”

       (Punctuation and footnote omitted.) Thomas v. State, 285 Ga. App. 290, 293-294 (2) (645 SE2d 713) (2007).


text:
    A11A1472.
    JONES et al. v. FAYETTE FAMILY DENTAL CARE, INC. et al.
    (718 SE2d 88)
   Doyle, Judge.

Laura Jones and her husband John brought this action in the State Court of Fayette County against Dr. Rick Verdin and Fayette Family Dental Care, Inc. (“the Practice”), for intentional infliction of emotional distress (“IIED”) and for loss of consortium. Following a hearing, the trial court granted the motion for summary judgment filed by Verdin and the Practice, and the Joneses appeal. For the reasons explained below, we affirm.

“Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. We review the grant of summary judgment de novo, construing the evidence in favor of the nonmovant.”

Viewed in favor of the Joneses, the record shows the following. In September 2007, Laura was employed by the Practice as a dental assistant, working for Dr. Verdin. According to Laura, on September 5, 2007, she walked out of an x-ray processing room and into a hallway, where she saw Verdin with his pants lowered. Verdin was holding his penis in his hand and was masturbating. Laura saw Verdin in profile for about five seconds before she turned and left; she does not know whether Verdin saw her or not. Before Laura left, Jennifer Spivey, another dental assistant who worked for the Practice, entered the hallway from the opposite direction and also saw Verdin masturbating. As he did so, he was looking at Spivey.

Instead of immediately leaving the office after the incident, Laura assisted Verdin in treating a patient. At lunchtime, Laura and Spivey met with the office manager about the incident and resigned their employment. The two then reported the incident to the police. Although Verdin denies masturbating in the hallway that day, he entered a plea of nolo contendere to two counts of public indecency in connection with the incident.

As to Laura’s claim for IIED, the Joneses allege that Verdin’s actions directly injured Laura by humiliating, embarrassing, frightening, and outraging her, and they also claim that Verdin’s actions resulted in John’s loss of consortium. They alleged that the Practice is derivatively liable for Verdin’s conduct under the theories of respondeat superior, ratification, and negligent hiring, retention, and supervision. In support of Laura’s IIED claim, she testified that “it’s just something I couldn’t get out of my head. I was shocked.” Nevertheless, she confirmed that she did not seek treatment from any type of doctor or counselor after the incident and suffered no physical ailments other than lack of desire for sexual intercourse with her husband for about a year following the incident.

The trial court found that a lack of evidence precluded Laura’s direct claim against Verdin. And, the direct claim having failed, it followed that John’s derivative claim and their claims against the Practice also failed. Specifically, the trial court found the conduct was not extreme and outrageous, and Laura’s distress did not rise to the level that no reasonable person could endure it.

To survive summary judgment on a claim for IIED, “In the absence of any physical impact to her person, a plaintiff seeking to recover for emotional distress must show[, in addition to the above four elements,] that the conduct in question was directed at her.”

a plaintiff must show all four of the following elements: (1) The conduct must be intentional or reckless; (2) The conduct must be extreme and outrageous; (3) There must be a causal connection between the wrongful conduct and the emotional distress; and (4) The emotional distress must be severe.

Conduct that is sufficiently extreme and outrageous is that which is “so serious as to naturally give rise to such intense feelings of humiliation, embarrassment, fright or extreme outrage as to cause severe emotional distress.” It is not enough to show that the defendant

acted with an intent which is tortious or even criminal, or that he . . . intended to inflict emotional distress, or even that his conduct [was] characterized by malice, or a degree of aggravation that would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.

“[T]he existence of a special relationship in which one person has control over another, as in [an] employer-employee relationship, may produce a character of outrageousness that might otherwise not exist.” “Regardless of the existence of such relationship, however, it must be emphasized that major outrage in the language or conduct complained of is essential to the tort.” “Whether reasonable persons could find the conduct reaches [the required] level is a question of law for the court.”

We cannot say as a matter of law that the asserted act of exposure and masturbating in a public hallway of a dentist’s office where anyone could and did happen upon the person so engaged is not extreme and outrageous behavior. Nevertheless, it is unnecessary to decide this issue; the Joneses’ claims fail because Laura has not demonstrated that she has suffered severe emotional distress.

Emotional distress includes all highly unpleasant mental reactions such as fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, worry, and nausea. It is only where it is extreme that liability arises. The law intervenes only where the distress inflicted is so severe that no reasonable person could be expected to endure it.

“Whether severe emotional distress can be found, based on the evidence presented, is a question for the court to decide.”

Laura testified that she was “shocked” and “upset for awhile,” but she suffered no physical ailments other than decreased sexual desire for approximately one year following the incident. It is undisputed that after the incident Laura sought no treatment from any type of doctor, psychiatrist, psychologist, or counselor. According to John, Laura exhibited stress associated with their financial circumstances, stopped showing affection toward him, experienced “bursts of anger,” and “wasn’t the same person, just — not the outgoing person, not the social person that she used to be.” While the frustration associated with feeling forced to quit one’s job arising out of an incident such as the present one is understandable, under the facts presented here, Laura’s distress does not rise to the level of severity necessary to sustain a claim for IIED.

Decided October 21, 2011.

Adam P Taylor, for appellants.

Elarbee, Thompson, Sapp & Wilson, Justin B. Connell, Douglas J. Miller, Larry J. Overman II, for appellees.

Because John’s claim for loss of consortium depends on the viability of Laura’s IIED claim against Verdin, his claim against Verdin also fails. Likewise, the Joneses’ claims for vicarious liability against the practice, which were based on Verdin’s allegedly tortious conduct, also fail.

Judgment affirmed.

Miller, P. J., concurs. Ellington, C. J., concurs in judgment only.

       (Citation and punctuation omitted.) Tackett v. Ga. Dept. of Corrections, 304 Ga. App. 310 (696 SE2d 359) (2010).

       Since 1993, except for short period of time in the late 1990s, Verdin has operated a solo dental practice.

       According to Laura, the incident took place at approximately 11:30 a.m.

       John testified that while he observed Laura’s decreased interest in sex and that she rejected his requests for sex approximately eight to ten times over the course of the year after the incident, the couple did engage in sexual relations as often as three to four times a month by March 2008.

       The trial court declined to decide the issue whether Verdin’s conduct was “directed” at Laura. Because of our holding set forth herein, we also need not reach this question.

       (Citations and punctuation omitted.) United Parcel Svc. v. Moore, 238 Ga. App. 376, 377 (519 SE2d 15) (1999). See also Jones v. Warner, 301 Ga. App. 39, 43 (3) (686 SE2d 835) (2009) (“The law intervenes only where the distress inflicted is so severe that no reasonable person could be expected to endure it.”) (punctuation omitted).

        Norton v. Holcomb, 299 Ga. App. 207, 210 (1) (682 SE2d 336) (2009) citing Ryckeley v. Callaway, 261 Ga. 828, 829 (412 SE2d 826) (1992).

       (Punctuation omitted; emphasis in original.) United Parcel Svc., 238 Ga. App. at 377. See also Norfolk Southern RR. Co. v. Spence, 210 Ga. App. 284, 285 (435 SE2d 680) (1993).

       (Punctuation omitted.) Johnson v. Allen, 272 Ga. App. 861, 865 (2) (613 SE2d 657) (2005).

       (Citation omitted.) Bridges v. Winn-Dixie Atlanta, 176 Ga. App. 227, 230 (1) (335 SE2d 445) (1985).

       (Punctuation omitted.) Wilcher v. Confederate Packaging, 287 Ga. App. 451, 453 (2) (651 SE2d 790) (2007).

        United Parcel Svc., 238 Ga. App. at 377.

       See Trimble v. Circuit City Stores, 220 Ga. App. 498, 499 (469 SE2d 776) (1996) (“The existence of a special relationship between the actor and victim, such as that of employer to employee, may make otherwise non-egregious conduct outrageous.”) (emphasis supplied); Mangrum v. Republic Indus., 260 FSupp.2d 1229, 1256 (III) (D) (N.D. Ga. 2003) (noting that supervisor’s alleged exposure of his penis to an employee arguably constituted conduct extreme and outrageous enough to meet the Georgia standard for an IIED claim, though claim denied on other grounds); Youngblood v. TCIM Svcs., No. 10-CV-0378-CVE-PJC (N.D. Okla. July 26, 2011) (finding an employee’s allegation that her supervisor repeatedly exposed his genitals to her sufficient “to state the extreme and outrageous conduct element of a claim of HIED]”). Compare MARTA v. Mosley, 280 Ga. App. 486, 491 (3) (634 SE2d 466) (2006) (physical precedent only) (plaintiff failed to set out a prima facie case on the element of outrageousness based on evidence that her work supervisor pulled her toward him, so that her backside was compressed against the front of his body, rubbed his hand along her side between her waist and underarm, squeezed her waist, moaned and then smiled; the defendant’s conduct was an isolated instance that lasted two seconds, occurred in public and in the presence of other employees, and was not physically threatening); Hendrix v. Phillips, 207 Ga. App. 394, 394-395 (428 SE2d 91) (1993) (plaintiff failed to set out a prima facie case on the element of outrageousness based on evidence that her co-worker showed her a hole in the crotch of his pants and asked her if she would like to staple it closed and made other sexually offensive remarks and gestures).

       (Punctuation omitted; emphasis in original.) Jones, 301 Ga. App. at 42-43 (3) (anxiety, nervousness, sleeplessness, and irritability for one month following incident, coupled with failure to seek medical or psychiatric treatment for these symptoms, insufficient to show severe emotional distress). See also Abdul-Malik v. AirTran Airways, 297 Ga. App. 852, 858 (1) (678 SE2d 555) (2009) (sleeplessness and weight gain insufficient to establish severe emotional distress because plaintiff failed to seek professional help).

        Abdul-Malik, 297 Ga. App. at 858 (1).

       See, e.g., PN Express, Inc. v. Zegel, 304 Ga. App. 672, 680 (5) (697 SE2d 226) (2010); Everett v. Goodloe, 268 Ga. App. 536, 546 (2) (c) (602 SE2d 284) (2004) (physical precedent only); Hosp. Auth. of Calhoun County v. Walker, 224 Ga. App. 163, 164 (2) (480 SE2d 849) (1996).


author: Andrews, Judge.

text:
    A11A1516.
    In re ESTATE OF OPAL MAE TAPLEY.
    (718 SE2d 92)
   Andrews, Judge.

This is the second appeal from a bench trial on an estate’s claim that its executor stole a truck from it. Defendant Shirley Meeks, the erstwhile executor, argues that the trial court erred when it granted the estate of Opal Mae Tapley partial summary judgment, when it denied Meeks’s request for a jury trial, and when it awarded the estate damages and attorney fees in the amount of $96,433.73. We hold that the trial court erred when it altered the award of compensatory damages after Meeks’s unsuccessful first appeal and when it awarded the estate fees expended in a previous will contest. We therefore affirm the judgment in part, reverse it in part, and remand for further proceedings as to fees.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.” (Citations omitted.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). As to the bench trial on damages, however, we will not set aside the trial court’s findings

unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. OCGA § 9-11-52 (a). The clearly erroneous test is the same as the any evidence rule. Thus, an appellate court will not disturb fact findings of a trial court if there is any evidence to sustain them.

(Citation omitted.) Chesser v. Chesser, 284 Ga. App. 381 (643 SE2d 764) (2007).

So viewed, the record shows that Opal Mae Tapley’s husband predeceased her, leaving her all his possessions, including a 2003 pickup truck. Tapley herself died in June 2006, after which Shirley Meeks submitted a will to probate in Carroll County under which she was both executor and sole beneficiary. In November 2007, the probate court set the will aside on the ground that Tapley had lacked the capacity to make it. The probate court also appointed Lawrence Shadix as temporary administrator of Tapley’s estate. After a jury trial, the Carroll County trial court also set aside the will.

Meeks testified in the probate proceedings that the truck had disappeared after Mr. Tapley moved into a nursing home. Post-hearing investigations found, however, that Meeks’s son-in-law had sold the truck to a Tennessee man. In April 2008, the estate filed this action against Meeks in Carroll County Superior Court, alleging that she had converted the truck. The parties agreed to transfer the case to Paulding County because Meeks was a resident there. Meeks later pled guilty to two counts of theft by taking, false report of a crime, and perjury concerning the truck as well as some furniture owned by the estate.

On July 12, 2010, the Paulding County trial court granted the estate partial summary judgment as to Meeks’s liability for appropriating the truck and furniture. Citing OCGA § 53-6-2, the trial court also awarded double the value of the converted truck ($12,500) for a total of $25,000 in compensatory damages. On July 19, Meeks moved for reconsideration. On August 12, Meeks appealed the partial grant to this Court, which later dismissed the appeal as untimely.

In the meantime, but after the filing of Meeks’s notice of appeal, the trial court granted her motion for reconsideration as to damages and scheduled a bench trial for September 30. On that morning, Meeks demanded a jury trial, which was refused. After hearing evidence as to damages, the trial court awarded the estate double the value of $12,000, or a total of $24,000, for the conversion of the truck; an additional $12,000 in compensatory damages “for the conversion, fraud, and other wrongs perpetrated” on the estate; $48,433.73 in attorney fees; and $12,000 in punitive damages. Meeks’s motion for new trial was denied.

1. In two assertions of error, Meeks contests the trial court’s holding that she was liable for $25,000 in damages, later adjusted to $24,000, arising from the conversion of the truck.

As the Supreme Court of Georgia has recently reaffirmed, “a party is not entitled to a second appeal from a single order.” Houston County v. Harrell, 287 Ga. 162, 163 (695 SE2d 29) (2010). Here, Meeks’s first direct appeal from the trial court’s partial grant of summary judgment ‘ ‘was dismissed, . . . with the usual consequence that the rulings of the lower court, by operation of law, stood as if affirmed.” (Citation and punctuation omitted.) Id. at 164. “[Ujpon return of the remittitur to the trial court after the first direct appeal, the only action which that court had authority or power to take was to make the judgment of the Court of Appeals the judgment of the trial court.” (Citation and punctuation omitted.) Id.

When the trial court ordered a bench trial as to damages and, on the basis of them, purported to award another amount of damages arising from Meeks’s conversion of the truck, it did so without jurisdiction over the subject matter. In re Estate of Zeigler, 259 Ga. App. 807, 808 (1) (578 SE2d 519) (2003) (trial court lacked jurisdiction to vacate an order because the filing of a notice of appeal served as supersedeas as to the subject matter of that judgment). The portion of its second order reducing the amount of compensatory damages concerning the conversion of the truck was therefore void at the time it was entered. Id. It follows that Meeks cannot now assert any error concerning the grant of summary judgment as to liability and the value of the truck in the amount of $25,000. Houston County, 287 Ga. at 163 (affirming a grant of partial summary judgment when the nonmovant’s first direct appeal concerning it was dismissed as untimely).

2. Meeks also argues that the trial court erred when it granted an additional $12,000 in damages for fraud and conversion. We agree.

A plaintiff seeking damages for the conversion of personal property “may recover a sum in the amount of the highest value which he is able to prove existed between the time of the conversion and the trial.” OCGA § 44-12-152. “In an action for fraud, the measure of damages is the actual loss sustained, and the question of damages cannot be left to speculation, conjecture and guesswork.” (Punctuation omitted.) First Southern Bank v. C & F Svcs., 290 Ga. App. 305, 307-308 (2) (659 SE2d 707) (2008).

Although the trial court’s first order noted that Meeks was liable for conversion of the furniture, the record shows that at the bench trial, the value of the converted furniture was given as “no more than $200.00,” with no value at all assigned to a never-recovered lawn mower. There being no basis in the record for the trial court’s award of $12,000 in compensatory damages in addition to those awarded in its first order, we reverse that portion of the judgment. First Southern Bank, 290 Ga. App. at 308 (2) (reversing award of damages for fraud where plaintiff “alleged and proved only economic harm in an amount substantially less than [the factfinder’s] award”); Kimball v. Perrier, 229 Ga. App. 30, 33-34 (1) (492 SE2d 913) (1997) (without evidence showing the extent of plaintiff s actual loss as to fraud, the trial court erred in denying defendants’ motion for judgment notwithstanding the verdict); Fulton Nat. Bank &c. v. Marshall, 245 Ga. 745 (267 SE2d 225) (1980) (on request, a trial court must charge the jury as to the economic measure of damages for conversion).

3. Meeks first requested a jury trial on the morning of the bench trial as to damages, though she had already appealed the trial court’s first finding as to damages and had answered the complaint more than two years before. The trial court did not err when it denied Meeks’s belated request. Collins v. Jones, 197 Ga. App. 839, 840 (1) (399 SE2d 546) (1990) (request for jury trial filed on the date of a bench trial was interposed for purposes of delay and was untimely).

4. Meeks also argues that the trial court erred when, over Meeks’s objection, it awarded the estate attorney fees expended in the course of the appeal to Carroll County Superior Court concerning the will. We agree.

Although this Court has authorized the recovery of attorney fees expended in an underlying action “as real damages incurred as the result of defendants’ malfeasance or misfeasance,” Marcoux v. Fields, 195 Ga. App. 573, 574 (394 SE2d 361) (1990), the question of fees under OCGA § 13-6-11 is for “the jury,” which has been held to mean the factfinder in the particular case. See Covington Square Assoc. v. Ingles Markets, 287 Ga. 445, 447-448 (696 SE2d 649) (2010). It is also true that a party cannot recover fees under authority of OCGA § 13-6-11 to the extent that the fees are expended in a prior legal proceeding. Easley v. Clement, 259 Ga. 107, 107-108 (376 SE2d 860) (1989) (plaintiff may recover under OCGA § 13-6-11 “only [those] attorney fees and expenses . . . incurred in prosecuting the second action”).

Decided October 24, 2011.

Roger L. Curry, for appellant.

Tisinger Vance, Charles D. Mechlin, Jr., for appellee.

This record, which includes the Carroll County Superior Court jury’s verdict setting aside the will, shows that the issue of fees was never placed before that jury, and that the judgment entered on the verdict was also silent on the matter. We therefore reverse the award of fees to the extent that it included those expended in the course of the Carroll County will contest. Covington Square, 287 Ga. at 448 (reversing trial court’s grant of fees under OCGA § 13-6-11 where it was not the trier of fact on the underlying matter).

In sum, (a) the trial court’s initial award to the estate of $25,000 in compensatory damages is affirmed with direction that it be re-entered as part of a final judgment; (b) the trial court’s award of an additional $12,000 in compensatory damages is reversed; (c) its award of attorney fees is reversed as to those fees expended in the Carroll County will contest; and (d) the remaining portion of the fee award is vacated, and the case remanded to the trial court to determine the remaining portion of fees expended in this action.

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

Phipps, P. J., and McFadden, J, concur.

       OCGA § 53-6-2 provides that a person who converts the personalty of a decedent “shall be deemed an executor de son tort and as such shall be liable to the creditors and heirs or beneficiaries of the estate for double the value of the property so possessed and converted.” (Emphasis supplied.)


author: McFadden, Judge.

text:
    A11A1702.
    DAVIS v. CITIMORTGAGE, INC.
    (718 SE2d 95)
   McFadden, Judge.

LaShunda Davis appeals the grant of a writ of possession to CitiMortgage, Inc. We affirm because Davis’s claims are barred by the resolution of her prior appeals in the matter.

After Davis defaulted on her mortgage, CitiMortgage foreclosed on the property securing the note. It filed a dispossessory action alleging that Davis was a tenant at sufferance and seeking possession. In Davis v. CitiMortgage, 309 Ga. App. 385 (710 SE2d 577) (2011), we affirmed the grant of a writ of possession to CitiMortgage.

After Davis filed her first notice of appeal, but before we ruled, CitiMortgage filed a motion to compel Davis to pay rent into the court registry pending her appeal. In an unpublished opinion, Davis v. CitiMortgage, 310 Ga. App. XXIII (Case No. A11A1359, decided June 30, 2011), we dismissed Davis’s appeal from the trial court’s order requiring her to pay rent into the registry of the court. We held that Davis’s notice of appeal was untimely and that the issue was moot, given that we had affirmed the grant of the writ of possession.

In the meantime, when Davis failed to pay rent into the registry of the court, the trial court entered the order granting a writ of possession that Davis now appeals. Although the record does not reflect that the court conducted a hearing before granting the writ of possession at issue, Davis argues that, because he did not file a notice of appearance, the trial court erred in allowing attorney Robert Shurtz to represent CitiMortgage at the hearing on the motion to compel payment of rent into court. She raised claims challenging Shurtz’s representation of CitiMortgage in both of her earlier appeals. She also argues that the trial court should have dismissed CitiMortgage’s motion to compel payment of rent as untimely or waived, a claim she also raised in Case No. A11A1359.

To the extent that Davis challenges the order compelling payment of rent into court and the proceedings related to that order, her claims are barred. Because Davis failed to file a timely appeal of the order compelling payment of rent into the court registry, as we held in our order dismissing Case No. A11A1359, the order compelling payment of rent into court is res judicata. See Lewis v. Carscallen, 274 Ga. App. 711, 713 (1) (618 SE2d 618) (2005). Consequently, any portion of this appeal challenging the trial court’s order compelling payment into the court registry fails. Similarly, to the extent Davis challenges the proceedings related to the original grant of a writ of possession to CitiMortgage, the issues are barred by res judicata since we previously affirmed the writ of possession. Davis, 309 Ga. App. 385.

Davis asserts no errors relating directly to the writ of possession from which she filed a notice of appeal. We therefore affirm the judgment of the trial court. Moreover, we find no reasonable basis on which Davis could have anticipated reversal of the trial court’s judgment. We observe that her brief in this case is identical to the brief she filed in Case No. A11A1359. Although we have exercised our discretion not to subject Davis to a frivolous appeal penalty pursuant to Rule 15 (b) of this court, we warn her that she may be subject to such penalty should she file a similarly frivolous appeal in this case in the future. See Leone v. Green Tree Servicing, 311 Ga. App. 702, 706 (6) (716 SE2d 720) (2011).

Judgment affirmed.

Phipps, P. J., and Andrews, J., concur.

Decided October 26, 2011.

LaShunda Davis, pro se.

McCurdy & Candler, Sidney A. Gelernter, for appellee.


text:
    A11A1732.
    ROSSER v. THE STATE.
    (718 SE2d 310)
   McFadden, Judge.

Jonathan Micah Rosser appeals his conviction for failing to comply with the requirements of the state sexual offender registry law. He also appeals his sentence, contending that he should have been sentenced to two years’ probation, not ten years. Because, as the state concedes, the record does not reflect that Rosser knowingly waived his right to a jury trial, we vacate the conviction and remand the case for further proceedings. We find no merit in Rosser’s challenge to his sentence because the sentence complies with the law in effect at the time of the commission of the offense.

After conducting a bench trial, the trial court found Rosser guilty and announced that it would sentence him to two years on probation and ordered him to pay a $1,000 fine. When the court entered the judgment of conviction, however, it sentenced Rosser to ten years on probation.

1. The version of OCGA § 42-1-12 (n) (3) in effect at the time of the commission of the offense, December 8, 2006, imposed a sentencing range of ten to thirty years. The statute was amended, effective May 20, 2010, to prescribe a sentencing range of one to thirty years. Ga. L. 2010, p. 168, § 11. Rosser argues that because his conviction and sentence were not final when the statute was amended, he should be given the benefit of the favorable change under the “pipeline rule.” Under that rule, “a new rule of criminal procedure . . . will be applied to all cases then on direct review or not yet final.” Taylor v. State, 262 Ga. 584, 586 (3) (422 SE2d 430) (1992). But

[fit has long been the law in this [s]tate that, in general, a crime is to be construed and punished according to the provisions of the law existing at the time of its commission. Making a lesser penalty applicable to offenses committed prior to the enactment of the legislation creating the lesser penalty is contrary to the judicial interpretation of the laws of this [s]tate under which the penalty for a criminal offense relates only to those offenses committed when and after such legislation becomes effective.

Decided October 26, 2011.

Wystan B. Getz, for appellant.

(Citations and punctuation omitted.) Widner v. State, 280 Ga. 675, 677 (2) (631 SE2d 675) (2006). Because at the time Rosser committed the offense the law prescribed a sentencing range of ten to thirty years, the trial court did not err in sentencing Rosser to ten years on probation.

2. Rosser argues that the trial court erred in conducting a bench trial without first ensuring that he knowingly, intelligently, and voluntarily waived his right to a jury trial. As the state concedes, the record is silent on the issue.

When the purported waiver of this right is questioned, the [s]tate bears the burden of showing the waiver was made both intelligently and knowingly, either (1) by showing on the record that the defendant was cognizant of the right being waived; or (2) by filling a silent or incomplete record through the use of extrinsic evidence which affirmatively shows that the waiver was knowingly and voluntarily made.

(Citation and punctuation omitted.) Payne v. State, 217 Ga. App. 386, 387 (460 SE2d 297) (1995). The record’s silence prevents the state from meeting its burden of demonstrating a knowing and voluntary waiver. Jackson v. State, 253 Ga. App. 559, 560 (560 SE2d 62) (2002). Therefore,

because the record in this case does not adequately demonstrate whether [Rosser] made a knowing and intelligent waiver of his right to a jury trial, the conviction is hereby vacated, and the case is remanded to the trial court for an evidentiary hearing on this issue. Lawal v. State, 201 Ga. App. 797, 798 (2) (412 SE2d 864) (1991). In the event the trial court determines from the evidence adduced at this hearing that [Rosser] did make such a waiver and that he personally participated in the decision, then the conviction and sentence may be reinstated, and [Rosser] will be entitled to file a new appeal directed to this issue. [Cits.]

Id. at 562.

Judgment vacated and case remanded with direction.

Phipps, P.J., and Andrews, J., concur.

Daniel J. Porter, District Attorney, Teresa B. Klein, Assistant District Attorney, for appellee.