author: ANDREWS, Presiding Judge.

text:
    A15A0361.
    HELMS & GREENE, LLC v. WILLIS.
    (773 S.E.2d 491)
   ANDREWS, Presiding Judge.

Kirk Willis, an attorney and the former managing member of the Dallas, Texas office of Helms & Greene, LLC, filed an action against Helms & Greene in the trial court to recover incentive and bonus compensation he alleged he was owed following his departure from that law firm. Helms & Greene asserted counterclaims, including a counterclaim for breach of fiduciary duty. In an order granting in part and denying in part the parties’ cross-motions for summary judgment, the trial court, among other things, granted summary judgment in Willis’ favor on the breach of fiduciary duty counterclaim to the extent that it was based on Willis’ conduct in marketing his own professional corporation while still employed by Helms & Greene. Helms & Greene appeals, arguing that it did not need to prove that it suffered damage or that the marketing efforts were lucrative to Willis in order to pursue a breach of fiduciary duty claim based on those marketing efforts. Concluding that an available remedy for breach of fiduciary duty is recovery of compensation the principal paid to the agent during the time the agent breached a fiduciary duty, we reverse.

On appeal from a grant of summary judgment, we review the evidence de novo, viewing it in the light most favorable to the nonmovant, to determine whether a genuine issue of fact remains and whether the moving party is entitled to judgment as a matter of law. Summary judgment is proper only when no issue of material fact exists and the moving party is entitled to judgment as a matter of law.

(Footnotes omitted.) Crippen v. Outback Steakhouse Intl., 321 Ga. App. 167, 167-168 (741 SE2d 280) (2013). So viewed, the record shows that in June 2009, Willis entered into an Employment Agreement (the “Agreement”) with Helms & Greene under which Willis was to serve as the Managing Member of Helms & Greene’s Dallas office. Under the Agreement, Willis agreed to “perform . . . well and faithfully the duties and responsibilities ... assigned to [him],” to “devote all of [his] time, energy and skill during regular business hours to the performance of the duties of [his] employment,” and that, with certain exceptions, he would not engage, during normal business hours or otherwise, “in any other business or professional activity, whether or not such activity is pursued for gain, profit or other pecuniary advantage.” The Agreement provided that Willis would receive a base salary of $225,000. He was also entitled to certain incentive compensation. Specifically, Willis was to receive a bonus in the amount of 20 percent of attorney and paralegal fees Helms & Greene collected for work originated by Willis but performed in an office other than the Dallas office. Additionally, he was entitled to a bonus equal to 35 percent of the gross cumulative profit (as defined in the Agreement) generated by the Dallas office. The Agreement permitted either party to terminate it for any reason with 60 days prior written notice.

When Willis was hired, he had a number of valuable relationships with insurance industry clients. As Managing Member of the Dallas office of Helms & Greene, Willis was authorized to pursue new engagements from these clients, manage those relationships, and set billable rates for those clients’ matters. Willis was also authorized to pursue new business. According to Willis, he had “complete autonomy of the Dallas office.”

Willis testified that Helms & Greene paid him through a professional corporation he formed in 2000, Kirk Willis, P.C. The record includes evidence that Willis attempted to obtain new legal business through his P.C. while he was employed with Helms & Greene. The record shows that in May 2011, Willis, with assistance from his Helms & Greene secretary, submitted a letter of proposal for Kirk Willis, P.C. to provide legal services to the Texas A&M University System. The letter used the address of the Dallas office of Helms & Greene as the address of Kirk Willis, P.C. The letter identified Helms & Greene lawyers — including the firm’s Managing Member, Steve Greene — as the attorneys likely to work on matters for the university. Willis maintained that he pursued legal work from Texas A&M University and other government entities through Kirk Willis, P.C. because his P.C. was a minority-owned business with a historically underutilized business certification from the State of Texas. He believed that the certification would give the P.C. a competitive advantage. Willis, however, did not inquire whether anyone at Helms & Greene had experience representing colleges or universities or seek advice from anyone within Helms & Greene on how to submit a successful proposal for legal work for a university.

Willis later hired consultants to assist him in responding to requests for proposal but did not submit this expense to Helms & Greene for reimbursement. The consultants assisted in preparing a joint response to a request for proposal by the North Texas Tollway Authority (“NTTA”) on behalf of Kirk Willis, P.C. and another Dallas law firm. This response also included biographies of Helms & Greene’s attorneys and listed the Helms & Greene address as the address of Kirk Willis, P.C. While Willis maintained that the response was for Helms & Greene’s benefit, he did not tell Steve Greene about it. Also beginning in or around January 2012, Willis, with assistance of another consultant and support from his Helms & Greene secretary, attempted to obtain approval for Kirk Willis, P.C. to provide legal services for the General Services Administration (“GSA”).

One of Willis’ responsibilities at Helms & Greene was to lead a monthly conference call about his marketing efforts for the firm. Willis never disclosed in these calls that he was soliciting business from Texas A&M, the NTTA, or the GSA. The parties do not dispute that Willis’ efforts to obtain business from Texas A&M, the NTTA, and the GSA were unsuccessful.

Willis stated in an affidavit that as early as 2010 he became dissatisfied with Helms & Greene’s efforts to collect accounts receivable for the Dallas office and for his originations and that in late 2011 and early 2012, this became a “significant problem.” In April 2012, Willis received complaints from two clients regarding Helms & Greene’s failure to bill promptly, and one of the clients stated that it was withholding referrals for six months as a penalty. It is undisputed that Willis decided at some point that he was going to leave Helms & Greene. Willis maintains that he began making plans to leave in earnest in June 2012. Helms & Greene maintains that Willis began making plans at some point before April 1, 2012, when Willis ceased performing billable work for the firm. Willis submitted his formal written resignation to Steve Greene on August 1,2012 together with letters from a number of clients indicating that they wished to be represented by Willis’ new firm and requesting release of their files to Willis. Willis’ last day of employment with Helms & Greene was August 20, 2012. ****8 When Willis left Helms & Greene, he took many of the attorneys and staff from the Helms & Greene Dallas office with him to his new firm, the Willis Law Group.

In its order granting in part and denying in part each party’s motion for summary judgment as to Helms & Greene’s counterclaims, the trial court granted summary judgment in Willis’ favor on Helms & Greene’s breach of fiduciary duty counterclaim to the extent that counterclaim was based on Willis’ conduct in marketing Kirk Willis, P. C. while employed by Helms & Greene. The trial court stated that Willis breached his fiduciary duty by marketing Kirk Willis, PC. without Helms & Greene’s knowledge. It reasoned, however, that Willis was entitled to summary judgment because Helms & Greene could not show that it incurred damage or that Willis obtained any benefit through his unsuccessful marketing efforts.

1. In its sole enumeration of error, Helms & Greene argues that its claim based on Willis’ conduct in marketing Kirk Willis, PC. should have been allowed to proceed because, whether or not it incurred a loss or Willis received any benefit, it may seek to recover compensation it paid Willis during any period of disloyalty. Willis points out in his appellee’s brief that Helms & Greene raised this argument for the first time at the hearing on the parties’ cross-motions for summary judgment. Under these circumstances, however, “the pleadings are deemed amended to conform to the evidence presented,” and we may consider Helms & Greene’s argument. (Citation and punctuation omitted.) Mazur v. Food Giant, 183 Ga. App. 453, 454 (2) (359 SE2d 178) (1987); see also BTL COM Ltd., Co. v. Vachon, 278 Ga. App. 256, 259, n. 3 (628 SE2d 690) (2006).

2. This Court’s precedent establishes that an available remedy for an agent’s breach of fiduciary duty is recovery of compensation paid by the principal to the agent during the period of the agent’s malfeasance. This principle is rooted in OCGA § 10-6-31, which states: “An agent who shall have discharged his duty shall be entitled to his commission and all necessary expenses incurred about the business of his principal. If he shall have violated his engagement, he shall be entitled to no commission.” We cited this statute, among other authority, in Vinson v. E. W. Buschman Co., 172 Ga. App. 306 (323 SE2d 204) (1984), in concluding that “[i]t is well established in this state ... as well as in other jurisdictions, that [a] breach of fiduciary duty negates the unfaithful agent’s right to any compensation and renders him liable to his principal for his dealings with the latter’s property.” Id. at 309-310 (1). In Vinson, a district manager and another employee of a manufacturer’s district office formed a competing business and operated it for approximately eight years out of the manufacturer’s office and warehouse. We held that the trial court did not err in denying the district manager’s motion for directed verdict as to the manufacturer’s claim for recovery of all commissions paid and the overhead expense of the district office while the competing enterprise was in existence. Id.; see also Crippen, 321 Ga. App. at 173 (4) (acknowledging that breach of fiduciary duty negates unfaithful agent’s right to compensation). We also held in Vinson that the trial court did not err in instructing the jurors that if they found that the district manager or others were unfaithful agents, “then those among them who were unfaithful may not retain any compensation they received from [the manufacturer] during the period you find them to have been unfaithful to [the manufacturer].” Vinson, 172 Ga. App. at 310 (3).

In E. H. Crump Co. of Ga. v. Millar, 194 Ga. App. 687 (391 SE2d 775) (1990), an employee filed an action against his former employer and others asserting, among other claims, a breach of contract claim to recover compensation allegedly owed for fiscal year 1987. The defendants opposed the employee’s motion for partial summary judgment on the compensation claim, asserting that the employee had engaged in conduct in violation of his fiduciary duties as of August 4, 1987. We affirmed the trial court’s order granting partial summary judgment for the employee for compensation earned prior to the date the alleged breach of fiduciary duty began. Id. at 687-688 (2). Consistent with the jury instruction approved in Vinson, we clarified that a proper reading of OCGA § 10-6-31 is that an agent is entitled to compensation for periods of time in which the agent acts in a fiduciary manner and only forfeits compensation during the period of time in which he or she fails to act in a fiduciary manner. Id. Although we were addressing an employer’s claimed right to withhold compensation in Crump, the same durational limits apply when a principal seeks to recover compensation already paid. See KEG Technologies v. Laimer, 436 FSupp.2d 1364, 1378 (2006) (after determining that plaintiff was entitled to default judgment on breach of fiduciary duty claim against former employee, district court awarded plaintiff compensation and benefits paid to employee during period in which employee breached fiduciary duty).

Decided July 9, 2015 —-

Reconsideration denied July 23, 2015 —

Helms & Greene, Steven S. Greene, for appellant.

Hill, Kertscher & Wharton, Douglas R. Kertscher, for appellee.

In rejecting Helms & Greene’s theory of recovery, the trial court stated that the case authority Helms & Greene provided to the trial court after the summary judgment hearing to support its new argument established only that an employee may not retain earnings he or she receives by misappropriating an employer’s business. It is true that Helms & Greene’s post-hearing submission cited cases for the proposition that one measure of recovery for breach of fiduciary duty is the amount of gross revenues or profits the agent obtained as a result. E.g., Jennette v. Nat. Community Dev. Svcs., 239 Ga. App. 221, 223 (2) (520 SE2d 231) (1999) (principal entitled to recover from agent gross profits agent received by breaching his fiduciary duty and misrepresenting his affiliation with principal for his pecuniary gain). The trial court failed to acknowledge, however, that Helms & Greene also correctly cited Vinson, supra, and OCGA § 10-6-31 for the separate proposition that a breach of fiduciary duty negates an unfaithful agent’s right to compensation. The trial court erred in this regard and incorrectly relied on Helms & Greene’s failure to show that it incurred a loss or Willis obtained a benefit from Willis’ efforts to market Kirk Willis, P.C. when it granted summary judgment to Willis on Helms & Greene’s claim that Willis breached his fiduciary duty through such conduct.

Judgment reversed.

Miller and Branch, JJ., concur.

       Although the Agreement referred to Willis as a Managing Member, Willis never had an equity interest in Helms & Greene.

       It is also undisputed that Willis entered into a contingency fee contract through his P.C. to represent a client in a personal injury case and ultimately obtained a fee of $30,000 in connection with the representation. Willis did not inform Helms & Greene about the representation or share the fee with the firm.

       In a prior order, the trial court granted Willis’ motion for partial summary judgment on his claim to recover compensation under the Agreement, concluding that (1) the terms of the Agreement did not preclude Willis from recovering bonuses he earned at the firm even if the time for paying the bonuses was not triggered until after he left, and (2) a failure to comply with the 60-day notice provision would not defeat his claim. We affirmed the trial court’s decision under Court of Appeals Rule 36 in Helms & Greene v. Willis, 326 Ga. App. XXIII (March 18,2014) (unpublished).

       While the parties submitted other evidence below concerning inter alia Willis’ conduct and his communications with Helms & Greene prior to his departure, a discussion of that additional evidence is not necessary to this opinion.

       We note that both the Restatement (Second) of Agency and the Restatement (Third) of Agency recognize the principle that an agent is not entitled to compensation during periods of disloyal service in breach of fiduciary duties. See Restatement (Second) of Agency § 469 (1958) cmt. a. (“An agent who, without the acquiescence of his principal, acts for his own benefit.. . in antagonism to or in competition with the principal in a transaction is not entitled to compensation which otherwise would be due him because of the transaction. This is true even though the conduct of the agent does not harm the principal.”); Restatement (Third) of Agency § 8.01 (2006) cmt. d (2) (“An agent’s breach of fiduciary duty is a basis on which the agent may he required to forfeit commissions and other compensation paid or payable to the agent during the period of the agent’s disloyalty. The availability of forfeiture is not limited to its use as a defense to an agent’s claim for compensation.”).


source: Caselaw Access Project

author: McFADDEN, Judge.

license: Public Domain

text:
    A15A0447.
    MILLER et al. v. LOMAX et al.
    (773 S.E.2d 475)
   McFADDEN, Judge.

This appeal is from a dismissal under Georgia’s five-year rule. Lee Miller (individually and in her role as trustee of the Linda J. Miller Irrevocable Special Needs Trust) and Robert McCready Miller (individually and in his role as next friend of his minor son, Robert Jacob Miller) (collectively, “the plaintiffs”) brought this action against Robert R. Lomax (in his role as executor of the estate of Thomas Eugene Miller), Carolyn Baldwin Miller, and Ray’s Uptown Body Shop, Inc. (collectively, “the defendants”). The trial court dismissed the action finding that no written order had been taken in the case for a period of five years, and denied the plaintiffs’ motion for reconsideration of the dismissal. See OCGA §§ 9-2-60 (b); 9-11-41 (e). The plaintiffs argue that these rulings were error because the trial court had entered an order authorizing an attorney to withdraw during the five-year period, but the record shows that the order was void because it was entered in violation of a bankruptcy stay. Alternatively, the plaintiffs argue that a pending motion to recuse tolled the five-year period, but Georgia law does not support this argument. Accordingly, we find that the trial court did not err in dismissing the action under the five-year rule, and we affirm.

1. Five-year rule.

Georgia’s five-year rule is set out in two statutes, OCGA § 9-2-60 (b), which provides that “[a]ny action or other proceeding filed in any of the courts of this state in which no written order is taken for a period of five years shall automatically stand dismissed with costs to be taxed against the party plaintiff,” and OCGA § 9-11-41 (e), which contains similar language. Together, the two Code sections “provide for the automatic dismissal of any action filed in a Georgia court of record when ‘no written order is taken for a period of five years [.]’ ” Zepp v. Brannen, 283 Ga. 395, 396 (658 SE2d 567) (2008) (punctuation omitted; quoting OCGA § 9-2-60 (b)). The five-year rule “places upon a plaintiff who wishes to avoid an automatic dismissal of his case by operation of law a duty to obtain a written order of continuance or other written order at some time during a five [-] year period and to make sure the same is entered in the record.” Ogundele v. Camelot Club Condominium Assn., 268 Ga. App. 400, 402 (2) (602 SE2d 138) (2004) (citations and punctuation omitted). We review de novo the trial court’s application of the five-year rule to automatically dismiss this case. See Jinks v. Eastman Enterprises, 317 Ga. App. 489, 489-490 (731 SE2d 378) (2012), overruled in part on other grounds by O’Dell v. Mahoney, 324 Ga. App. 360, 369 (5) (750 SE2d 689) (2013).

2. Facts and procedural posture.

The record shows that, with the exception of the one withdrawal order disputed by the parties, no order was filed in this case between April 13,2004 and September 4,2012. During that time, the case was subject to two automatic bankruptcy stays, the first from April 12, 2005 to September 20, 2005 when one of the plaintiffs petitioned for bankruptcy, and the second from January 9, 2009 to November 4, 2009 when one of the defendants petitioned for bankruptcy. During the bankruptcy stays, the trial court was precluded from “commencing] or continuing]... a judicial... action or proceeding against the debtor[.]” 11 USC § 362 (a) (1).

Some activity occurred in the case in July 2008, in the period between the two bankruptcy stays. That month, the plaintiffs filed a motion to recuse all of the judges in the circuit on the ground that a probate judge in the circuit would be a fact witness in the case. The trial court did not rule on the motion to recuse. Also that month, one of the plaintiffs’ attorneys sought to withdraw from the case. The trial court took no action on that attorney’s request until November 12, 2008, when he signed an order authorizing the withdrawal. The withdrawal order was not filed with the clerk of court until January 21, 2009, during the pendency of the second bankruptcy stay. The order’s effect on the five-year period is the subject of dispute between the parties.

In February 2013, the defendants moved to dismiss the case on the ground that no order had been taken in the case for more than five years. The trial court orally granted the motion at a hearing, and the plaintiffs moved for reconsideration. On July 15, 2014, the trial court entered a written order dismissing the case and denying the motion for reconsideration.

On appeal, the plaintiffs challenge both the dismissal of their action and the denial of their motion for reconsideration. They argue that the five-year rule does not require the dismissal of their action for two reasons: because the withdrawal order filed during the second bankruptcy stay was a written order that was taken within the five-year period, and because their motion to recuse tolled the five-year period.

3. The effect of the withdrawal order.

The plaintiffs argue that the trial court erred in dismissing their action under the five-year rule because an order was taken within the applicable five-year period — namely, the order permitting counsel to withdraw from representation. We disagree. As detailed below, the withdrawal order was void because it was entered in violation of a bankruptcy stay.

Our Supreme Court has explained that there are three criteria that must be met for an order to prevent the automatic dismissal of an action under the five-year rule: the order “must be written, signed by the trial judge, and properly entered in the records of the trial court by filing it with the clerk.” Zepp, 283 Ga. at 396 (citations and punctuation omitted; emphasis supplied). Accordingly, “dismissal cannot be avoided even by obtaining a written order signed by the trial court until such order is duly entered in the record by filing it with the clerk.” Willis v. Columbus Med. Center, 306 Ga. App. 331, 332 (702 SE2d 673) (2010) (citation and punctuation omitted).

Before the withdrawal order was entered by filing with the clerk, however, the case became subject to an automatic bankruptcy stay under 11 USC § 362 (a) (1). “Any orders or judgments entered in violation of [an] automatic bankruptcy stay are void; they are deemed without effect and are rendered an absolute nullity.” Jinks, 317 Ga. App. at 491 (citation and punctuation omitted). See McKeen v. Fed. Deposit Ins. Corp., 274 Ga. 46, 48 (549 SE2d 104) (2001). Notwithstanding this principle, the plaintiffs make several arguments for why the withdrawal order should be given effect. We are not persuaded by those arguments.

(a) Ministerial act.

The plaintiffs’ primary argument is that the entry of the withdrawal order by filing it with the clerk was a ministerial act that did not violate the bankruptcy stay. See Roberts v. Commr. of Internal Revenue, 175 F3d 889, 897 (II) (B) (11th Cir. 1999) (“ministerial acts or automatic occurrences that entail no deliberation, discretion, or judicial involvement ... do not constitute continuations of ... a proceeding” such that they would be subject to a bankruptcy stay) (citations omitted). In support of their argument, the plaintiffs cite the holding of the United States Court of Appeals for the Second Circuit in Rexnord Holdings v. Bidermann, 21 F3d 522 (2d Cir. 1994), that “the simple and ‘ministerial’ act of the entry of a judgment by the court clerk” is not a “continuation of a judicial proceeding” in violation of a bankruptcy stay. Id. at 527 (2).

The rationale of Rexnord Holdings is not applicable here. The court in that case based its holding on a determination that the “judicial proceedings were concluded at the moment the judge directed entry of judgment,” even though the judgment had not yet been filed. Id. at 528 (2) (emphasis supplied). Georgia law, however, provides that “no judgment shall be effective for any purpose” until its entry, which occurs when it is filed with the clerk. OCGA § 9-11-58 (b) (emphasis supplied). This principle has been extended by implication to include orders of any kind. In re Smith, 211 Ga. App. 493, 495 (1) (439 SE2d 725) (1993).

Consequently, unlike in Rexnord Holdings, the trial court’s ruling on the withdrawal motion was not “concluded” until the order on that motion was filed with the clerk. Before its filing, the signed order “was without legal effect.” Andrew L. Parks, Inc. v. Suntrust Bank, 248 Ga. App. 846, 847 (545 SE2d 31) (2001). And by the time it was filed, the trial court in this case “lack[ed] the ability to exercise judicial power or discretion or otherwise proceed with the case” on account of the bankruptcy stay. Jinks, 317 Ga. App. at 491 (citations omitted). As a result, unlike the judgment in Rexnord Holdings that operated to “conclude” that proceeding even though it had not yet been filed, the signed withdrawal order in this case was a nullity because it was not filed at a time when the trial court had the ability to exercise judicial power in the case. See Andrew L. Parks, Inc., 248 Ga. App. at 847 (previously signed order was nullity because it was filed at a time when the trial court no longer had jurisdiction over the case); see also Gajaanan Investment v. Shahil & Sohail Corp., 323 Ga. App. 694, 696 (1) (747 SE2d 713) (2013) (bankruptcy stay suspends state court’s jurisdiction); Strauss Fuchs Organization v. LaFitte Investments, 177 Ga. App. 891, 893-894 (1) (341 SE2d 873) (1986) (analogizing effect of bankruptcy stay to state court’s loss of jurisdiction when case is removed to federal court). See generally Doe v. Fireman’s Fund Ins. Co., 843 NW2d 639, 643-644 (Neb. 2014) (rejecting argument that act of filing an order of default judgment was ministerial and not in violation of bankruptcy stay, where before stay trial court had made both oral ruling and docket entry of judgment, because characterization of filing as ministerial was inconsistent with applicable state law, which required filing for entry of judgment).

Nevertheless, the plaintiffs argue that we adopted the rationale of Rexnord Holdings when we cited that case for the proposition that “the reissuance of summons of process by the clerk constituted a ministerial act, which was not stayed [under the bankruptcy law].” Schafer v. Wachovia Bank of Ga., 248 Ga. App. 466, 467 (1) (a) (546 SE2d 846) (2001) (citations omitted), overruled in part on other grounds by O’Dell, 324 Ga. App. at 369 (5). Unlike the order on the withdrawal motion in this case, the reissuance of a summons is not an order and is not governed by the rule that filing is required for a judgment or order to be effective. Moreover, we have since clarified that the discussion of ministerial acts in Schafer was merely dicta and did not support an argument that “certain acts have validity even if entered during the bankruptcy stay.” Jinks, 317 Ga. App. at 491.

We are also unpersuaded by the plaintiffs’ reliance on Titelman v. Stedman, 277 Ga. 460 (591 SE2d 774) (2003), to characterize the act of entering the order as merely ministerial. Titelman involved the appropriate recourse when a trial court refused to sign any order or to provide any other written documentation of an oral ruling. Id. at 461-462.

The plaintiffs make a separate but related argument that the trial court’s very act of ruling on the withdrawal motion was ministerial because he was obligated to grant the motion. Again, we disagree. A trial court’s ruling on a motion to withdraw as counsel involves the exercise of discretion. See King v. Peeples, 328 Ga. App. 814, 818 (4) (762 SE2d 817) (2014) (ruling on attorney’s request to withdraw is reviewed on appeal for abuse of discretion). Uniform Superior Court Rule (USCR) 4.3 (1) provides that an attorney’s withdrawal request “will be granted unless in the judge’s discretion to do so would delay the trial or otherwise interrupt the orderly operation of the court or be manifestly unfair to the client.” (Emphasis supplied.) In fact, in their appellate reply brief the plaintiffs describe the trial court’s signing of the withdrawal order as an “exercise in judicial discretion.”

Nevertheless, the plaintiffs argue that in this case the trial court had no discretion but to permit the withdrawal because, shortly before the trial court signed the order, the attorney seeking withdrawal was elected to the superior court. It is true that a sitting superior court judge may not continue to practice law. See OCGA § 15-6-5; Ga. Code of Judicial Conduct Canon 5 F. And it is highly unlikely that any order by a trial court purporting to compel a sitting superior court judge to do so would be sustainable. But this case does not involve such an order. Instead, the trial court signed an order permitting the attorney to withdraw. This appeal merely concerns the implications, for the parties of this action, of the failure to enter that order before the imposition of the bankruptcy stay. The plaintiffs have pointed to no authority requiring us to view the trial court’s act of signing the withdrawal order as ministerial so as to exempt the subsequent entry of that order from the bankruptcy stay, and we decline to do so.

(b) Manifest injustice.

The plaintiffs argue that the withdrawal order must be given effect, despite its filing and entry during the bankruptcy stay, because to do otherwise would create a “manifest injustice” to the attorney who sought to withdraw by creating uncertainty about his status and the potential conflict between his role as counsel in this case versus his role as a superior court judge. But the possible difficulty posed to that attorney by the trial court’s failure to enter the withdrawal order before the imposition of the bankruptcy stay is not at issue in this case.

The only issue is whether the criteria were met for an order to be “taken” in the case, preventing the case’s automatic dismissal under the five-year rule. “Whatever the merits [of the underlying case], if for five years there is no written order signed by the trial judge and properly entered in the trial court’s records, the case is dismissed by operation of law.” Windsor v. City of Atlanta, 287 Ga. 334, 337 (695 SE2d 576) (2010). This is a “bright-line rule of enforcement” that furthers the five-year rule’s statutory dual purposes of “removing] from trial courts those cases whose continued pendency only clutter the dockets” and “protect [ing] litigants from dilatory counsel” by “adding certainty and objective consistency to the manner in which its provisions are applied.” Zepp, 283 Ga. at 396-397 (citations and punctuation omitted). Although the plaintiffs complain that the trial court should not have delayed entering the withdrawal order, the five-year rule “places upon a plaintiff who wishes to avoid an automatic dismissal of his case by operation of law a duty to obtain a written order of continuance or other written order at some time during a five[-]year period and to make sure the same is entered in the record.” Ogundele, 268 Ga. App. at 402 (2) (citations and punctuation omitted; emphasis supplied). Their failure to do so subjects their case to automatic dismissal. See Windsor, 287 Ga. at 337.

4. The effect of the recusal motion.

The plaintiffs argue that their July 2008 motion to recuse all of the circuit judges tolled the running of the five-year rule. They point to the requirement of USCR 25.3 that,

[w]hen a judge is presented with a motion to recuse, or disqualify, accompanied by an affidavit, the judge shall temporarily cease to act upon the merits of the matter and shall immediately determine the timeliness of the motion and the legal sufficiency of the affidavit, and make a determination, assuming any of the facts alleged in the affidavit to be true, whether recusal would be warranted.

While the plaintiffs acknowledge the lack of authority addressing the effect of a motion to recuse on the running of the five-year rule, they analogize the filing of such motion to the imposition of a bankruptcy stay.

The plain language of USCR 25.3 reveals the plaintiffs’ analogy to be flawed. As discussed above, a bankruptcy stay suspends the trial court’s jurisdiction. Gajaanan Investment, 323 Ga. App. at 696 (1). During the pendency of the bankruptcy stay, the trial court cannot “continu[e] . .. a judicial.. . action or proceeding against the debtor[.]” 11 USC § 362 (a) (1). Amotion to recuse, in contrast, does not suspend the trial court’s jurisdiction. It merely requires that the trial court temporarily cease to act upon the merits of the matter while it addresses the motion. USCR 25.3. The trial court was free to enter an order denying the motion to recuse or referring it to another judge. Id. Either such order, if written, signed, and entered within the five-year period in this case, would have served as an “order... taken” during the five-year period pursuant to OCGA § 9-2-60 (b). The plaintiffs’ filing of a motion to recuse did not relieve them of their duty to obtain an order within the five-year period so as to avoid the automatic dismissal of their action. See Ogundele, 268 Ga. App. at 402 (2).

Decided July 6, 2015 —

Reconsideration denied July 23, 2015

Hurt Stolz, Irwin W. Stolz, Jr.; James D. Patrick, Jr., for appellants.

Richard A. Childs; Jacob Beil; Robert R. Lomax, for appellees.

Ray Hendrix, pro se.

5. Motion for reconsideration.

Given that the trial court did not err in dismissing the action under the five-year rule, the trial court likewise did not err in denying the plaintiffs’ motion for reconsideration of that dismissal.

Judgment affirmed.

Ellington, P. J., and Dillard, J., concur.


author: BARNES, Presiding Judge.

text:
    A15A0764.
    PRYOR v. THE STATE.
    (776 S.E.2d 474)
   BARNES, Presiding Judge.

A jury convicted James Pryor of attempted armed robbery and possession of a firearm during the commission of a crime, and the trial court denied his motion for new trial. On appeal, he argues that he was denied his constitutional right to counsel because his trial counsel had an actual conflict of interest and that his counsel was ineffective for failing to object to certain testimony and evidence. For the reasons that follow, we affirm.

1. “On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence.” (Citation omitted.) Reese v. State, 270 Ga. App. 522, 523 (607 SE2d 165) (2004). We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, a “rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

So viewed, the evidence shows that as three men were preparing to leave the parking lot of a club that had just closed at 4:00 a.m., Pryor, Derrick Brown, and Reginald Frails approached their car, with Pryor “leading the pack.” The first victim was already in the back seat, and the other two victims were standing on the driver’s side of the car. Pryor pulled out a handgun and asked the second victim to empty his pockets, and after the second victim protested that he had nothing, Pryor stuck his head into the car through the open driver’s door and told the first victim inside to empty his pockets. Pryor pointed his gun at the first victim inside the car, but when Pryor turned to look at Brown and Frails pushing up against the third victim outside the car, the first victim picked up his .48 caliber semi-automatic handgun from the floorboard and began firing at Pryor. Pryor dropped his weapon, a .38 caliber revolver, at the feet of the second victim, who picked it up and began firing at all three robbers, all of whom were running away when they were hit by either the .38 or the .48 caliber gun. An off-duty deputy sheriff working security at the club arrived on the scene almost immediately, cuffed the victims, and placed them in separate patrol cars.

Emergency medical technicians were called to the scene and Pryor, Frails, and Brown were taken to the hospital and the three victims were taken to the station. The lead investigator went to the hospital and talked to Brown, who had been shot in the knee and whose responses to questions were “elusive” and unclear. Frails, who had been shot in the buttocks, refused to talk to the investigator and left the hospital against medical advice while the investigator went to see if he could talk to Pryor. Pryor had been sedated, was unable to respond to the investigator, and appeared to have been shot in his neck or the top of his chest.

The investigator then interviewed the three victims at the station. He described them as “calm and collected” and “very precise.” The first victim, who had been seated in the car, had a valid carry permit for the semi-automatic .48 caliber handgun he shot at Pryor. The victims’ virtually identical statements coupled with evidence from the scene led the police to re-categorize the three men at the station from suspects to victims. Frails, who had been clutching two plastic bags containing twenty-two grams of cocaine when he arrived at the emergency room, was subsequently arrested at his last known address for possession with intent to distribute. Frails subsequently pled guilty to criminal attempt to commit armed robbery and possession of cocaine with intent to distribute.

None of the victims could identify Frails or Brown from a photographic lineup. The victims were not presented with a lineup containing Pryor’s photograph because the investigator did not have one available, but two of them identified Pryor at trial as the man with the handgun who attempted to rob them. Frails testified at trial that he did not remember much from that night because he was very drunk but did remember that Pryor had a .38 revolver. Frails also admitted having said at his plea hearing and sentencing that he had walked to the victims’ car with Pryor, that Pryor pulled his gun, that Frails and Pryor both told the victims to empty their pockets, that Pryor had leaned into the car, that shots were fired and that the three defendants ran away.

Although Pryor does not challenge the sufficiency of the evidence, we find that the evidence as summarized above was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that he was guilty of the crimes of which he was convicted. Jackson, 443 U. S. at 319 (III) (B).

2. Pryor argues that his trial attorney had an actual conflict of interest that denied him his constitutional right to counsel because his attorney worked in the same circuit public defender’s office as the attorney who represented Frails. Pryor further asserts that “[prejudice is presumed from . . . [this] conflict” and that he is therefore entitled to a new trial. We disagree that prejudice is presumed from this situation, and find no error in the trial court’s conclusion that Pryor “sweeps too broadly in his statement that there is a per se or automatic rule of disqualification by a public defender’s office representing multiple defendants.”

In July 2013, the Supreme Court of Georgia held that the standard for the imputation of conflicts of interest under Georgia Rule of Professional Conduct 1.10 (a) applies to the office of a circuit public defender the same way it does to a private law firm. In re Formal Advisory Opinion 10-1, 293 Ga. 397 (744 SE2d 798) (2013). Specifically, the court held that if

a single public defender in the circuit public defender’s office of a particular judicial circuit has an impermissible conflict of interest concerning the representation of co-defendants, then that conflict of interest is imputed to all of the public defenders working in the circuit public defender office of that particular judicial circuit.

Id. at 399 (1). The Supreme Court also expressly did not determine whether the representation of co-defendants by different lawyers employed by the same circuit public defender office was absolutely prohibited, but limited its approval of the Bar’s Proposed Rule only as to the question of conflict imputation. Id. at 398, n. 1. The court further observed that, while it had cited precedent addressing the constitutional guarantee of the assistance of counsel, it did not hold that the imputation of conflicts was compelled by the Constitution, only that Rule 1.10 was “a useful aid in the fulfillment of the constitutional guarantee of the right to effective assistance of counsel.” Id. at 401 (2), n. 4.

Generally, to prevail on an ineffective assistance of counsel claim, a defendant must show both that counsel rendered deficient performance and that the deficient performance prejudiced his defense. Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984). But a defendant need not show that his counsel’s deficient performance probably affected the outcome of his case under circumstances in which the likelihood is high that counsel’s inadequate performance undermined the reliability of the verdict. Mickens v. Taylor, 535 U. S. 162, 166-167 (II) (122 SCt 1237, 152 LE2d 291) (2002). Those circumstances include situations where the assistance of counsel was denied entirely or during a critical stage of the proceeding and when counsel had an “actual conflict.” Id. For Sixth Amendment purposes, an actual conflict of interest is one that adversely affects counsel’s performance. Id. at 172, n. 5. For example, automatic reversal results when, despite a timely objection, a trial court improperly requires defense counsel to continue representing multiple defendants in a single trial without determining that no conflict exists. Holloway v. Arkansas, 435 U. S. 475, 488-489 (III) (98 SCt 1173, 55 LE2d 426) (1978).

Pryor’s trial counsel was not representing multiple defendants with conflicting interests, however. Regardless of the ethical considerations of having lawyers in the same office work for clients with competing interests, “[bjreach of an ethical standard does not necessarily make out a denial of the Sixth Amendment guarantee of assistance of counsel.” (Citation and punctuation omitted.) Mickens, 535 U. S. at 176 (III).

The purpose of [the United States Supreme Court’s] Holloway[, 435 U. S. at 488-489] and [Cuyler v.] Sullivan[, 446 U. S. 335, 348-349 (IV) (B) (100 SCt 1708, 64 LE2d 333) (1980)] exceptions from the ordinary requirements of Strickland, however, is not to enforce the Canons of Legal Ethics, but to apply needed prophylaxis in situations where Strickland itself is evidently inadequate to assure vindication of the defendant’s Sixth Amendment right to counsel.

Id. And the mere “possibility of conflict is insufficient to impugn a criminal conviction.” Sullivan, 446 U. S. at 350 (IV) (C).

Instead,

[t]he defendant must show that an actual conflict exists, meaning that there is a substantial risk that the lawyer’s representation of him would be materially and adversely affected by the lawyer’s own interests or by the lawyer’s duties to another current client, a former client, or a third person.

(Citation and punctuation omitted.) Lytle v. State, 290 Ga. 177, 178 (2) (718 SE2d 296) (2011). “Whether a conflict of interest denied a defendant his right to effective counsel is a mixed question of law and fact, and we review the questions of law involved de novo.” (Citation and punctuation omitted.) Barrett v. State, 292 Ga. 160, 174 (3) (c) (2) (733 SE2d 304) (2012).

In State v. Abernathy, 289 Ga. 603, 604 (1) (715 SE2d 48) (2011), our Supreme Court reversed a trial court’s grant of a new trial when a defendant failed to show “actual harm” arising from the simultaneous representation of two co-defendants by two lawyers working in the same public defender’s office.

[T]he critical question is whether the conflict significantly affected the representation, not whether it affected the outcome of the underlying proceedings. That is precisely the difference between ineffective assistance of counsel claims generally, where prejudice must be shown, and ineffective assistance of counsel claims involving actual conflicts of interest, which require only a showing of a significant effect on the representation. A significant effect on the representation may be found, for example, where counsel is shown to have refrained from raising a potentially meritorious issue due to the conflict; where counsel negotiates a plea bargain for more than one defendant in a case conditioned on acceptance of the plea by all such defendants; or where one of the State’s witnesses was a current client of defense counsel in an unrelated criminal matter, thereby constraining counsel’s ability to cross-examine the witness.

(Citations and emphasis omitted.) Id. at 604-605 (1).

In Abernathy, 289 Ga. 603-604 (1), a public defender from the same office as Abernathy’s counsel briefly represented a man who was arrested with Abernathy, but withdrew after the man hired another lawyer. Charges against the man were subsequently dismissed, he ended up testifying for the State, and the trial court subsequently granted Abernathy’s motion for new trial on the ground of ineffective assistance due to a conflict of interest. Id. at 603 (1). The Supreme Court reversed. Assuming then that the rules for imputing conflicts within a single circuit public defender office operate the same way as the rules within a law firm (as we now know they do), the court held that the defendant must prove that an actual conflict existed and that it affected trial counsel’s performance. Id. at 604 (1). In that case, no evidence indicated that the conflict “colored counsel’s actions during the trial,” id. at 605 (1), especially considering that Abernathy’s lawyer did not even know about the other public defender’s brief past representation of the State’s witness.

Similarly, in Lytle, 290 Ga. at 178-179 (2), although public defenders from the same office represented two co-indictees and the same investigator worked on all three cases, no actual conflict arose because the attorneys did not share information with each other and the investigator only interviewed State’s witnesses to see what they knew.

Here, Pryor has not even argued that any conflict significantly affected his trial counsel’s representation of him. His trial counsel testified at the motion for new trial hearing that when he was representing Pryor, the circuit public defender’s office was very aware of the problems that could arise from having attorneys from the office represent co-defendants and was seeking direct guidance on the issue. It was “a big issue,” with lawsuits being filed and constant discussion and review on how to handle the issue. Although they were all under the same roof, pursuant to office policy the attorneys made “every effort to separate representation” by maintaining individual offices, locking their doors to bar access to their files, and being “very, very careful.” As the State notes in its appellate brief, trial counsel “did not pull any punches” in his cross-examination of Frails, addressing his drug dealing, his relationship as cousin to defendant Brown, who Frails testified did not have a gun, his maximum possible sentence of more than sixty-five years versus his actual sentence of six years to serve followed by six on probation, and his belief that his testimony would buy him leniency. In fact, the trial court admonished counsel not to point at Frails during the cross-examination. “Simply put, [Pryor] has not shown in this case how his attorney’s conflict caused divided loyalties or compromised his attorney’s representation of him.” (Citation and punctuation omitted.) Abernathy, 289 Ga. at 605 (1).

Accordingly, we find no merit in this enumeration of error.

3. Pryor contends that the trial court erred in failing to find his counsel ineffective for failing to object to the investigator’s testimony that the victims were acting in self-defense when they shot Pryor and his co-defendants or for failing to object to the admission of pants gathered at the scene that had bullet holes in the buttocks.

To prevail on his claim of ineffective assistance of counsel, [Pryor] must show counsel’s performance was deficient and that the deficient performance prejudiced him to the point that a reasonable probability exists that, but for counsel’s errors, the outcome of the trial would have been different.

(Citation and punctuation omitted.) Patterson v. State, 327 Ga. App. 695, 697 (3) (761 SE2d 101) (2014).

(a) “It is well established that credibility of a witness is a matter for the jury, and a witness’s credibility may not be bolstered by the opinion of another witness as to whether the witness is telling the truth.” (Punctuation and footnote omitted.) Strickland v. State, 311 Ga. App. 400, 403 (a) (715 SE2d 798) (2011). But “the testimony at issue must be reviewed in the context in which it was given.” Branesky v. State, 262 Ga. App. 33, 36 (3) (a) (584 SE2d 669) (2003). And while an officer rarely needs to explain his conduct during the course of an investigation, an explanation may be admissible if a defendant “at trial raises questions and concerns about police conduct in the case.” (Citation omitted.) Reeves v. State, 288 Ga. 545, 547 (3) (705 SE2d 159) (2011).

Considered in context, the investigator’s testimony that after completing the interviews and reviewing the evidence from the scene, the three men initially taken into custody were no longer suspects because “the events they described were self-defense defending their selves in a forceable felony” explained the investigator’s conduct in pursuing charges against the three men who were shot rather than the shooters. As the State observes, the facts of this case raise questions about the motivations and conduct of the police, who initially arrested the three men who were subsequently cast as victims after the officers arrived on the scene to find three men lying on the ground with bullet wounds.

Decided May 19, 2015 —

Reconsideration denied July 23, 2015 —

Harvey S. Wasserman, for appellant.

Ashley Wright, District Attorney, Joshua B. Smith, Falin R. Syms, Assistant District Attorneys, for appellee.

Pryor’s trial counsel intimated throughout the trial that the men who did the shooting should have been charged with crimes, rather than the men who had been shot. For example, he thoroughly cross-examined the second victim, who picked up Pryor’s gun and fired at the three robbers, asking whether he had argued with anyone that night, why he had gotten his companion’s firearm out when they arrived at the car after they left the club, whether he just kept firing the gun until it was empty, and whether he had been arrested initially “after shooting at people and being arrested and you said they tried to rob you.” Pryor’s counsel asked the officer who secured the scene to identify the victim whom the officer had seen firing a weapon, and asked whether that man had been “firing at an individual who was actually running away from him.”

Trial counsel’s questions about why the victims who were initially arrested were not ultimately charged placed the investigator’s conduct in issue and the investigator’s testimony tended to explain his conduct. See Griffin v. State, 292 Ga. 321, 323 (5) (737 SE2d 682) (2013). Because the testimony was admissible, Pryor’s trial counsel was not ineffective for failing to object to it.

(b) Pryor also claims that his trial counsel was ineffective for failing to object to the admission of pants gathered from the scene that had bullet holes in the buttocks and .38 bullets in the pocket. The evidence showed that Pryor was shot in the chest or neck, and Pryor argues that the bullet-ridden pants were not his and should have been excluded from evidence.

Whether the pants belonged to Pryor or not goes to the weight of the evidence, not its admissibility, and an objection would have been futile. Davis v. State, 272 Ga. 327, 330 (4) (528 SE2d 800) (2000). As the failure to pursue a futile objection does not amount to ineffective assistance, Ventura v. State, 284 Ga. 215, 218 (4) (663 SE2d 149) (2008), the trial court did not err in denying Pryor’s motion for new trial on this ground.

Judgment affirmed.

Ray and McMillian, JJ., concur.

       While the opinions in Lytle and Abernathy were issued after the Supreme Court of Georgia granted the petition for discretionary review of the Bar’s advisory opinion but before its final ruling in July 2013, nothing in the final ruling requires a different analysis.


author: Miller, Judge.

text:
    A15A0229.
    DIXON v. KRAUSE et al.
    (773 S.E.2d 40)
   Miller, Judge.

Daniel Dixon filed suit against Justin Wayne Krause, a police officer with the Greenville Police Department, in his individual and official capacities, and the City of Greenville (the “City”), raising state and federal claims for malicious prosecution and seeking attorney fees. The trial court granted summary judgment to Krause and the City, finding that the totality of the circumstances established probable cause to support the arrest, imprisonment, and prosecution of Dixon and, as a result, Dixon’s claims failed as a matter of law. Dixon appeals, contending that the trial court erred in granting summary judgment because there were questions of fact as to whether probable cause existed to prosecute him on several offenses. We agree and reverse.

On appeal from the grant of a motion for summary judgment, we conduct a de novo review of the law and evidence, viewing the evidence in the light most favorable to the nonmovant, to determine whether a genuine issue of material fact exists and whether the moving party was entitled to judgment as a matter of law.

(Footnote omitted.) McKissick v. S.O.A., Inc., 299 Ga. App. 772 (684 SE2d 24) (2009).

Construed in the light most favorable to Dixon, as the nonmovant, the evidence shows that at approximately 1:00 a.m. on July 16, 2009, Krause, the sole officer on duty, was patrolling the area of Terrell Street in the City, located in Meriwether County. While patrolling, Krause observed a red motorcycle approaching. The motorcycle stopped at the intersection of Hill and Terrell Streets and remained there for about two minutes. As the motorcycle drove past him, Krause observed that the motorcycle’s tag was displayed not on the rear of the bike as required, but on the side. Krause also observed that the driver was wearing a shirt and jeans and had a full helmet with a visor. Based on his observations of the driver’s eyes and nose, Krause believed that the driver was black. Krause turned around and pursued the motorcycle to initiate a traffic stop.

When Krause activated his patrol lights, the motorcycle accelerated and headed toward Troup County. Krause then contacted dispatch and advised that he was in pursuit of a black male on a red motorcycle. Krause later reiterated to dispatch that the suspect was a black male and that he had gotten a good look at the driver of the motorcycle. During the chase, the motorcyclist drove at a rate in excess of 100 mph and passed another vehicle in a no-passing zone.

Soon after entering Troup County, Krause lost sight of the motorcycle. While Krause was searching the area, he encountered Troup County Deputy Sheriff Rick White, who had been notified through Troup County 911 radio traffic that officers were in pursuit of a black driver on a motorcycle coming into Troup County. The police officers waited near an elementary school at the intersection of Mountville Road and State Highway 109. While waiting, Krause and WRite heard radio traffic that the LaGrange police were chasing a motorcycle, and a few minutes later, Krause and White heard a motorcycle approaching from the LaGrange area at a high rate of speed. Both Krause and White anticipated that the motorcycle would be the same motorcycle that Krause had previously been chasing because a motorcycle involved in another police chase was heading in their direction and motorcycle chases are very rare.

Around the same time, Dixon was heading home after leaving his friend’s house located about a mile away from the intersection of Mountville Road and Highway 109. Dixon had been at his friend’s house from approximately 11:00 p.m. on July 15 to 1:30 a.m. on July 16, and did not go anywhere else during this time. Dixon, a white male, was wearing a light blue shirt, jeans and a black-and-white helmet.

Dixon’s motorcycle stopped at the intersection where Krause and White were waiting, and turned right. At that point, Krause observed that Dixon’s motorcycle had its registration tag displayed on its side. Krause then activated his patrol lights to initiate a traffic stop because of the tag placement, the color of Dixon’s bike (silver, black, and red), and the fact that Dixon was wearing a helmet with characteristics that matched the first motorcycle he had been chasing. Dixon proceeded to drive a short distance down the road and stopped when he saw Krause’s patrol lights. Krause then pulled in front of the motorcycle, ordered Dixon to turn off his motorcycle and get on the ground, and placed Dixon in handcuffs.

During the stop, Krause and White both noticed the smell of alcohol on Dixon. Krause asked Dixon for consent to an alcohol breath test, and Dixon refused. Dixon was then arrested.

While Dixon was in the patrol car, a LaGrange police officer came to the scene to identify whether Dixon was the individual the LaGrange police had been chasing. The LaGrange police officer looked at Dixon’s motorcycle and concluded that Dixon was not the motorcyclist he had been chasing because Dixon’s motorcycle was silver in color and the motorcycle that he chased was red.

After transporting Dixon to jail, Krause secured an arrest warrant. Krause could not recall whether he informed the magistrate judge that he had originally identified the motorcycle driver as a black male. In preparing the arrest report, Krause identified the subject (Dixon) as a white male, and made no reference tó having previously identified the suspect as a black male. Krause subsequently discussed the incident with the City’s chief of police, but again failed to mention that he had initially identified the suspect as a black male. Additionally, Krause failed to gather and submit audio and video tapes of the incident when he prepared the case file to be forwarded to the prosecutor in preparation for an indictment, as was the normal practice. Given the ease in which an arresting officer can gather and submit recordings to the prosecutor, the chief of police could not explain why Krause failed to do so in this case.

When the prosecutor presented the case to the grand jury, he called Krause as the only witness, and the prosecutor was unaware that Krause had initially identified the suspect as a black male. Dixon was subsequently indicted by a grand jury on charges of fleeing or attempting to elude a police officer (OCGA § 40-6-395 (b) (5) (A)) (Count 1), DUI (OCGA § 40-6-391) (Count 2), reckless driving (OCGA § 40-6-390) (Count 3), driving without a license (OCGA § 40-5-20 (a)) (Count 4), improper passing (OCGA § 40-6-46) (Count 5), failure to maintain lane (OCGA § 40-6-48) (Count 6), and improper display of license plates (OCGA § 40-2-41) (Count 7).

Just before trial, the prosecutor received the recorded dispatch calls in which Krause stated that the suspect was a black male. The prosecutor then nolle prossed all charges against Dixon, because Krause had withheld the fact that he had identified the suspect as a black male in the radio calls to dispatch, and the prosecutor did not believe he could obtain a conviction since the original suspect and Dixon were not the same race. The prosecuting attorney explained that he relies upon the information provided by the arresting officer in pursuing an indictment, including the officer’s description of a suspect, and that Krause should have supplied that information.

After dismissal of the criminal charges, Dixon filed suit against Krause and the City, raising state and federal malicious prosecution claims based on the lack of probable cause to indict him on Counts 1, 3,5 and 6 of the indictment. Dixon appeals from the grant of summary judgment to Krause and the City.

Dixon contends that in granting summary judgment to Krause on the state and federal malicious prosecution claims, the trial court erred in concluding as a matter of law that there was probable cause to indict him on charges related to the initial high-speed chase originating in the City — fleeing, reckless driving, improper passing, and failure to maintain lane. We agree that questions of material fact remain as to this issue.

On a motion for summary judgment the burden of establishing the non-existence of any genuine issue of fact is upon the moving party and all doubts are to be resolved against the movant. The movant has that burden even as to issues upon which the opposing party would have the trial burden.

(Citation omitted.) Sawgrass Builders v. Key, 212 Ga. App. 138 (1) (441 SE2d 99) (1994). A defendant is entitled to summary judgment only if the defendant establishes that the plaintiff is unable to prove at least one essential element of his case. See Diaz v. Wild Adventures, 289 Ga. App. 889, 892 (658 SE2d 362) (2008).

In order to prevail on a claim for malicious prosecution, a plaintiff must show the following: (1) a criminal prosecution; (2) instigated without probable cause; (3) with malice; (4) pursuant to a valid warrant, accusation, or summons; (5) that terminated in the plaintiff’s favor; and (6) caused the plaintiff damage.

(Punctuation and footnote omitted.) McNeely v. Home Depot, 275 Ga. App. 480, 482 (621 SE2d 473) (2005); see also OCGA § 51-7-40. Where a federal claim for malicious prosecution is alleged, as is the case here, state law supplies the essential elements. See Uboh v. Reno, 141 F3d 1000, 1004 (II) (11th Cir. 1998).

The gravamen of the complaint for malicious prosecution is the absence of probable cause on the part of the person instituting the prosecution. Probable cause is absent when the circumstances are such as to satisfy a reasonable person that the accuser had no ground for proceeding but his desire to injure the accused. The determination is dependent upon whether the facts as they appeared at the time of instituting the prosecution were such as to lead a person of ordinary caution to entertain a belief that the accused was guilty of the offense charged.

(Citations and punctuation omitted.) Jones v. Warner, 301 Ga. App. 39, 42 (2) (686 SE2d 835) (2009).

Generally, a jury decides whether probable cause exists, and the trial court determines the issue only when the material facts are undisputed. See, e.g., K-Mart Corp. v. Coker, 261 Ga. 745, 746 (1) (410 SE2d 425) (1991); Ye v. Kroger Co., 252 Ga. App. 712, 713 (1) (556 SE2d 879) (2001). See also OCGA § 51-7-43 (“Lack of probable cause shall be a question for the jury, under the direction of the court.”).

Here, Krause and the City failed to establish that they were entitled to summary judgment as a matter of law because there are questions of material fact regarding whether Krause had probable cause to believe that Dixon committed the offenses related to the initial chase. Viewing the evidence in Dixon’s favor, as we must, the evidence shows that Dixon was not the individual involved in the original motorcycle chase starting in the City. Notably, Dixon deposed that he was at a friend’s house at the time Krause first reported that he was in pursuit of a red motorcycle. Indeed, Dixon was at the friend’s house for several hours prior to being stopped by Krause. Additionally, Krause made multiple reports to dispatch that he was in pursuit of a black male, he reported that he had gotten a good look at the driver of the motorcycle, and Officer White heard reports through 911 radio traffic that Krause was in pursuit of a black motorcyclist. It is undisputed that Dixon is a white male.

Krause points to the circumstances of his identification, such as the fact that he only briefly got a glimpse of the initial motorcyclist in dimly-lit conditions, to show that it was reasonable that he made a misidentification of the initial motorcyclist, and he argues that any error on his part was not fatal to a probable cause analysis. To adopt Krause’s argument, we would have to view the evidence in his favor, which we are not permitted to do. When viewed in Dixon’s favor, the evidence shows that Krause unequivocally stated that he got a good look at the suspect. Nevertheless, the circumstances of Krause’s identification must be considered and resolved by the jury, as the finder of fact, not by the trial court or this Court. See Wimberly v. State, 233 Ga. 386, 387 (3) (211 SE2d 281) (1974) (“Identity is a question for the [trier] of fact, and where a witness identifies a defendant... the credibility of the witness making such identification is not to be decided by [a] court.”) (citations and punctuation omitted).

Krause further argues that he had a reasonable belief that Dixon was the motorcyclist whom he previously chased, but his claim can be disputed by the evidence. In particular, Krause argues that he had probable cause because Dixon was driving a red motorcycle just like the motorcycle he chased, he lost the first motorcycle in the area where he encountered Dixon, and he overhead dispatch reports that the LaGrange police were chasing the same motorcycle he had chased. The evidence shows, however, that Dixon was not the individual involved in the high-speed chase in LaGrange, because a LaGrange police officer confirmed that the motorcycle he chased was red in color, while Dixon’s was silver. Although there is some evidence that Dixon’s motorcycle also had some red paint, it is a question of fact to be resolved by a jury as to whether Dixon’s motorcycle would be classified as red, as Krause described the first motorcycle, or silver, as suggested by the LaGrange police officer.

Finally, the “reasonableness” of Krause’s belief that Dixon was the initial motorcyclist is belied by the fact that, in readying the case for prosecution, he failed to set forth a full, fair and complete statement of the facts. As discussed above, Krause failed to tell his supervisor, the chief of police, the prosecutor, or the grand jury, that he had initially identified the suspect as a black male. Moreover, the evidence supports an inference that Krause deliberately withheld this information from the prosecutor, because his statements identifying the “black male” were recorded, these recorded statements were readily accessible, and there was no apparent reason why Krause failed to provide these recordings to the prosecutor. Given Krause’s concealment of facts, a jury could conclude that his belief that probable cause existed was not “honest” or “reasonable.” See Willis v. Brassell, 220 Ga. App. 348, 353 (4) (469 SE2d 733) (1996) (probable cause cannot exist if defendant failed to make a fair, full, and complete statement of the facts as they existed, or if he concealed facts); see also Holmes v. Achor Center, Inc., 249 Ga. App. 184, 192 (2) (b) (547 SE2d 332) (2001) (where material issues can be eliminated only by making credibility judgments, the movant has not met his burden to be entitled to summary judgment).

Given these questions of material fact, the trial court was not permitted to decide the issue of probable cause, and we reverse the trial court’s grant of summary judgment on the malicious prosecution claims. Since we conclude that the malicious prosecution claims survive, the trial court erred in granting summary judgment on Dixon’s derivative claim for attorney fees. See Racette v. Bank of America, 318 Ga. App. 171, 181 (6) (733 SE2d 457) (2012).

Judgment reversed.

Andrews, P. J., and Branch, J., concur.

Decided June 12, 2015 —

Reconsideration denied July 24, 2015

G. Brian Spears, Brian D. Lockerbie, for appellant.

Freeman, Mathis & Gary, Dana K. Maine, Brian R. Dempsey, Mark A. Begnaud, Wayne S. Melnick; Sumner & Meeker, Theodore P. Meeker III; E. Alan Miller, for appellees.

       Dixon also raised claims of wrongful arrest and false imprisonment, and the trial court granted summary judgment on these counts. On appeal, Dixon challenges only the grant of summary judgment on the malicious prosecution claims.

       In this case, there is no dispute that Krause had probable cause to arrest Dixon for DUI (Count 2), driving without a license (Count 4), and improper display of license plates (Count 7). However, since these offenses arose from a separate transaction —■ the stop of Dixon — the probable cause to arrest Dixon for Counts 2,4, and 7 would not preclude a malicious prosecution claim as to Counts 1, 3, 5, and 6. See Remeneski v. Klinakis, 222 Ga. App. 12, 15 (1) (473 SE2d 223) (1996) (holding that a finding of probable cause as to one related offense arising from the same transaction is a binding determination that there was probable cause for all related charges arising from the same transaction or occurrence).


author: McFadden, Judge.

text:
    A15A0345.
    WONG et al. v. CHAPPELL et al.
    (773 S.E.2d 496)
   McFadden, Judge.

Ruth Oleana Wong died after undergoing a cryoablation of the endometrium, a procedure to destroy a thin layer of the lining of her uterus through freezing. After her death, her husband, Kwee Wong, filed this medical malpractice action. He appeals the defense verdict in favor of doctors Mary L. Chappell, Kimberly A. Huffman, and Terry V. Kelley, and their practice, OB-GYN Associates, P.A.

Wong argues that the trial court erred by refusing to charge the jury on simple negligence. Because at least some of Wong’s allegations call into question only the execution of administrative, clerical tasks and not the exercise of professional skill and judgment, we agree and therefore reverse and remand. Since we are remanding, we address Wong’s arguments that are likely to recur on retrial. Wong argues that the trial court erred by refusing to instruct the jury on the unauthorized practice of medicine and negligence per se. We agree because Wong presented some evidence that an unlicensed medical assistant engaged in acts that required a medical license. However, we reject Wong’s argument that the trial court erred by refusing to instruct the jury that the printed material from the manufacturer of the cryoablation device —■ the “package insert” and user’s manual — established the standard of care for the use of the device. Although the printed material is relevant, expert testimony is required to establish the standard of care. We reject Wong’s argument that the trial court erred by admitting a resource guide published after Mrs. Wong’s procedure because he has not shown that the trial court abused her discretion. We do not address Wong’s argument that the trial court erred in directing a verdict on his punitive damages claim because the resolution of that claim on retrial will depend on the evidence introduced. Nor do we address his argument that the trial court erred in allowing defense counsel to strike a juror for cause after the parties had begun exercising their peremptory challenges because any such error is unlikely to recur on retrial.

1. Facts.

Mary Chappell, an obstetrician-gynecologist, performed a cryoablation on Ruth Oleana Wong on October 4, 2010. Chappell performed the procedure in her office.

A few days after the procedure, Mrs. Wong began experiencing increased pain, which radiated along her flank to her back. On October 13, Mrs. Wong called Chappell’s office. She spoke to Lauren Gephart, an unlicensed medical assistant. She told Gephart that she was experiencing pain radiating from her flank and back, bleeding, and changes in her bowel movement. Gephart thought that Mrs. Wong might have a urinary tract infection, so Gephart asked her whether she had any of the typical symptoms. Gephart did not talk to any doctor, nurse practitioner, or physician’s assistant about the back and flank pain or the bleeding because she did not think Mrs. Wong’s complaints were sufficiently serious, although she may have made a comment to Chappell in passing about Mrs. Wong’s question about her bowel movement. Gephart told Mrs. Wong that her symptoms could be normal and advised her to take 800 milligrams of Ibuprofen; Gephart had been instructed by the doctors that she should advise patients to take 800 milligrams of Ibuprofen every eight hours as needed for any sort of abdominal or back pain. Gephart was not authorized to make medical diagnoses or to give medical advice, she testified, but one of the doctors in the practice, defendant Kelley, testified that the medical assistants were authorized to give medical advice that had been “supervised, taught, trained,” by the physicians in the office. Huffman, another doctor-defendant, testified that Gephart should have asked Mrs. Wong the intensity, duration, and severity of her pain, and should have notified Chappell if the pain was severe. Huffman testified that medical assistants “are allowed to give clinically relevant information as instructed by their supervising physician.”

On October 17, Mrs. Wong went to the emergency room and was admitted to the intensive care unit. In the early morning of October 18, Huffman, who was the on-call doctor for OB-GYN Associates, saw Mrs. Wong. Later that day, Mrs. Wong underwent exploratory laparoscopic surgery. Although another physician performed the laparoscopy, defendants Chappell and Kelley were in the operating room; Chappell had asked Kelley to be available to assist should Mrs. Wong need a hysterectomy. Mrs. Wong’s uterus was “very boggy,” with a “dark, mottled” appearance. Chappell and Kelley believed that the cryoablation could have caused Mrs. Wong’s uterus to look that way. Chappell decided not to remove Mrs. Wong’s uterus, and Kelley concurred in the decision because he thought that Mrs. Wong would not survive a hysterectomy.

Eleven days after she was admitted to the hospital, Mrs. Wong died. More than two months after the cryoablation procedure — and after Mrs. Wong had died — Mrs. Wong’s written antibiotic prescription was found at the OB-GYN Associates office. Chappell had written on the slip, “Found December 8, 2010, at front desk.”

Wong filed this action individually and as executor of Mrs. Wong’s estate. He alleged that Chappell perforated the wall of Mrs. Wong’s uterus during the cryoablation, eventually leading to sepsis and necrosis; that when Mrs. Wong called OB-GYN Associates about the resulting pain, Gephart failed to handle the call appropriately; that when she consulted at the hospital, Huffman failed to give Mrs. Wong care; and that Chappell and Kelley observed Mrs. Wong’s necrotic, ischemic uterus during the exploratory laparoscopic surgery, but failed to perform a hysterectomy. Wong sought damages for Chappell’s, Huffman’s, and Kelley’s professional negligence and for OB-GYN Associates’ vicarious liability for Gephart’s and the front desk staff’s negligence.

After a 16-day trial, the jury returned a defense verdict. Wong filed this appeal.

2. Refusal to charge the jury on ordinary negligence and instead charging that professional negligence applied to all claims.

Wong argues that the trial court erred by denying his request to charge the jury on ordinary negligence and instead instructing the jury that the medical malpractice standard of care applied to all of Wong’s claims. We agree.

Among his other allegations, Wong alleged that the defendants were vicariously liable for the following acts of negligence:

The front desk staff’s failure to ensure that Mrs. Wong took her antibiotic prescription with her after the procedure, failure to notice that the prescription was left at the front desk for more than two months, and failure to notify Mrs. Wong or Chappell that Mrs. Wong did not get the antibiotic;
The staff’s failure to implement proper procedures for handling prescription slips and failure to maintain the front desk in an organized manner so that the slip would not be lost;
Medical assistant Lauren Gephart’s failure to properly note Mrs. Wong’s complaint of flank pain, failure to determine the severity, intensity and duration of her pain and continued bleeding, and failure to relay to a physician Mrs. Wong’s complaints; and
The failure to properly train Gephart regarding her phone triage duties.

In support of his allegations regarding the prescription slip, Wong presented evidence that Mrs. Wong’s written antibiotic prescription was found more than two months after the procedure — and after Mrs. Wong had died — and that Chappell had written on the slip, “Found December 8, 2010, at front desk.” In support of his allegations regarding Gephart’s handling of Mrs. Wong’s telephone call, he presented the following evidence: Gephart’s testimony that although Mrs. Wong complained of flank pain, which can originate in the pelvis, Gephart did not note flank pain on Mrs. Wong’s chart because Gephart did not normally use that word and she categorized such pain as “all in the same area.” Gephart did not recall asking Mrs. Wong how long she had had the pain, whether the pain was sharp or dull, constant or intermittent, its severity on a scale from one to ten, or whether her abdomen was soft and distended. Mrs. Wong reported bleeding, but Gephart did not write down the details. Gephart did not report Mrs. Wong’s telephone call to any doctor, nurse, or physician’s assistant. Gephart was not really concerned about Mrs. Wong’s telephone call. Gephart had been trained by two other medical assistants.

“Claims of allegedly negligent administrative acts which do not require professional knowledge or skill assert ordinary negligence.” Peterson v. Columbus Med. Center Foundation, 243 Ga. App. 749, 754 (2) (533 SE2d 749) (2000). In spite of Wong’s allegations and the evidence he presented in support of them, the trial court refused to give the requested ordinary-negligence charge, reasoning that expert testimony was required to prove causation. But that is not the standard. This is the standard: only where the allegations of negligence against the professional involve the exercise of professional skill and judgment within the professional’s area of expertise does the claim sound in professional negligence. Stafford-Fox v. Jenkins, 282 Ga. App. 667, 671 (2) (639 SE2d 610) (2006). Contrary to the trial court’s rationale, simply because expert evidence is required to prove causation does not mean that a case involves professional malpractice. See Cowart v. Widener, 287 Ga. 622, 627 (2) (a) (697 SE2d 779) (2010) (“even in simple negligence cases, plaintiffs must come forward with expert evidence . . . where ‘medical questions’ relating to causation are involved”); Ronald L. Carlson, Julian A. Cook III, and Michael Scott Carlson, Trial Handbook for Ga. Lawyers § 24:21 (3d ed.) (“While expert evidence is usually not required to prove causation in a simple negligence case, expert evidence maybe required where a medical question involving specialized medical knowledge is needed in establishing causation, a causal link between a defendant’s conduct and a plaintiff’s injury.”).

The trial court erred by concluding that because expert testimony was required to prove causation, all of Wong’s allegations asserted claims of professional negligence. The allegations of negligence by the front desk staff, although asserted against professionals — the obstetrician-gynecologist defendants — do not involve the exercise of professional skill and judgment within the area of expertise of an obstetrician-gynecologist. Similarly, Wong’s allegations that Gephart did not document Mrs. Wong’s complaint accurately and did not relay her complaint to a doctor do not involve the exercise of professional skill and judgment within the area of expertise of an obstetrician-gynecologist. Finally, Wong’s allegation that the defendants failed to adequately train Gephart, an unlicensed medical assistant, to handle patient calls, does not involve the exercise of professional skill and judgment within their area of expertise. The permissible scope of a medical assistant’s duties is set out in OCGA § 43-34-44, which allows medical assistants to perform certain medical tasks, and the corresponding administrative rule, Ga. Comp. R. & Regs. r. 360-3-.05. The permissible activities set out in those provisions are fully comprehensible by a layperson. Therefore any training that medical assistants are authorized to receive must likewise be fully comprehensible by a layperson, and such training does not involve the exercise of professional skill and judgment. Accordingly, these are claims of ordinary negligence. Gen. Hosp. of Humana v. Bentley, 184 Ga. App. 489, 491 (361 SE2d 718) (1987).

We observe that in addition to the allegations about Gephart’s failure to document Mrs. Wong’s complaint accurately and failure to relay the call to Chappell, Wong alleges that some of Gephart’s actions amounted to the unlicensed practice of medicine. As discussed in Division 3, infra, this is a question for the jury. Should the jury determine that some of Gephart’s actions amounted to the unlicensed practice of medicine, then those actions would be held to the standard of care and skill of a medical professional. Andrews v. Lofton, 80 Ga. App. 723, 729 (2) (57 SE2d 338) (1950).

Because some of Wong’s claims alleged ordinary negligence, the trial court erred by refusing to give Wong’s requested jury charge on ordinary negligence. See Taylor v. State, 272 Ga. 744, 745 (1) (534 SE2d 67) (2000) (“It is error to refuse to give a charge . . . where the request is a correct statement of law that is pertinent and material to an issue in the case and not substantially covered by the charge actually given.”) (citation and punctuation omitted). And the court exacerbated that error by instructing the jury that the professional negligence standard applied to all of Wong’s claims. ‘When an error in the charge of the court is shown to exist, it is presumed to be prejudicial and harmful, and this court will so hold unless it appears from the entire record that the error is harmless.” Graham v. Fallick, 322 Ga. App. 525, 528-529 (745 SE2d 747) (2013) (citation and punctuation omitted). It does not appear from the record that these errors were harmless. Accordingly we reverse the judgment entered on the jury’s defense verdict and remand this case for proceedings not inconsistent with this opinion.

3. Failure to charge the jury on the illegal practice of medicine and negligence per se.

Wong argues that the trial court erred by failing to instruct the jury on the unauthorized practice of medicine and negligence per se, as he requested. We agree.

In essence, Wong contends that Gephart, the unlicensed medical assistant, was not authorized to assess the severity of Mrs. Wong’s symptoms and to instruct her to take Ibuprofen, that doing so violated OCGA § 43-34-22, the statute prohibiting the practice of medicine without a license, and that violation of this statute amounted to negligence per se. The defendants counter that Gephart’s interactions with Mrs. Wong were permitted under OCGA § 43-34-44, which allows medical assistants to perform certain medical tasks, and the corresponding administrative rule, Ga. Comp. R. & Regs. r. 360-3-.05.

The statute, part of the Medical Practice Act of the State of Georgia, provides in pertinent part:

Nothing in this article shall be construed to prohibit the performance by medical assistants of medical tasks, including subcutaneous and intramuscular injections; obtaining vital signs; administering nebulizer treatments; or other tasks approved by the board pursuant to rule, if under the supervision by a physician in his or her office. . . .

OCGA § 43-34-44. The rule provides in pertinent part:

It shall be grounds for disciplinary action by the Board if a physician aids or abets another person in misrepresenting his/her credentials or engaging in unlicensed practice. Engaging in unlicensed practice includes delegation by a physician of professional responsibilities to a person who is not authorized to provide such services. A physician may delegate the performance of certain medical tasks to an unlicensed person with appropriate supervision as provided herein.
(a) Medical Assistants: 1. For purposes of this rule, a medical assistant is an unlicensed person employed by the physician to whom he or she delegates certain medical tasks, (i) A physician may delegate to a medical assistant the following medical tasks: subcutaneous and intramuscular injections; obtaining vital signs; administering nebulizer treatments; or removing sutures and changing dressings____ (iv) Nothing in this rule prohibits the performance of tasks by medical assistants that would not otherwise require a license.

Ga. Comp. R. & Regs. r. 360-3-.05 (1).

Reading the statute and the rule together, it is clear that medical assistants may perform certain specified medical tasks as well as tasks that do not require a medical license. The question, then, is whether Gephart’s interaction with Mrs. Wong involved a task that required a license. With some exceptions not pertinent here, OCGA § 43-34-22 (a) requires any person who “suggest[s], recommend[s], or prescribe^] any form of treatment for the palliation, relief, or cure of any physical or mental ailment of any person” to have a medical license. Wong’s expert testified that only a physician can handle complaints of post-operative pain, that medical assistants should not give treatment advice, and that Gephart should not have told Mrs. Wong that her symptoms were normal or instructed her to take Ibuprofen. In their appellate brief, the defendants even state that “Gephart’s alleged negligent acts required her to exercise independent medical judgment to decide ... what to advise Ms. Wong to do.” Whether it was appropriate for Gephart to perform these medical tasks is a question for the jury. Cf. Cardio TVP Surgical Assocs. v. Gillis, 272 Ga. 404, 406 (1) (528 SE2d 785) (2000) (because physician assistants, unlike medical assistants, are so heavily regulated by the Composite State Board of Medical Examiners, only the Board can determine whether it is appropriate for a physician assistant to perform a specific procedure). And if the jury should find that Gephart performed tasks that required a license, she would have engaged in the unlicensed practice of medicine. Such a finding would support Wong’s requested charges. Brown v. Belinfante, 252 Ga. App. 856, 861 (1) (557 SE2d 399) (2001).

4. Package inserts and user manuals do not, alone, establish the standard of care.

Wong argues that the “package inserts,” the documentation included with the freezing tool used to perform the cryoablation, established the standard of care and the trial court should have so instructed the jury. Similarly, he argues that Chappell’s failure to follow the user manual included in this documentation amounted to simple negligence.

We hold that the package inserts are relevant to but do not conclusively establish the standard of care. “A person professing to practice surgery or the administering of medicine for compensation must bring to the exercise of his profession a reasonable degree of care and skill. Any injury resulting from a want of such care and skill shall be a tort for which a recovery may be had.” OCGA § 51-1-27.

Such standard of care is that which, under similar conditions and like circumstances, is ordinarily employed by the medical profession generally.... Excepting in a few extreme circumstances, the question of compliance with the required standards must be presented through expert testimony.

Kenney v. Piedmont Hosp., 136 Ga. App. 660, 664 (3) (222 SE2d 162) (1975). “[T]he appropriate medical standard is the province of the medical expert,” Morrison v. Koornick, 201 Ga. App. 367, 370 (2) (411 SE2d 105) (1991), although documentary evidence can be relevant to the issue. See Byrd v. Med. Center of Central Ga., 258 Ga. App. 286, 287-290 (1) (574 SE2d 326) (2002) (service manual used by hospital’s surgical department was relevant to establish medical malpractice standard of care).

To allow the package inserts alone to establish a physician’s standard of care would be inconsistent with OCGA § 51-1-27 and our case law because it would permit the manufacturer, rather than the medical profession, to establish the standard of care. See Luckie v. Piggly-Wiggly Southern, 173 Ga. App. 177, 178 (1) (325 SE2d 844) (1984) (violation of privately-established rule does not, alone, show negligence). Additionally, without expert assistance, a jury may not easily understand user manuals, which are written for the medical profession, not the general public. Nor has Wong presented any evidence that the manufacturer intended to establish the standard of care when it prepared the materials. Moreover, the materials cannot be cross-examined. For these reasons, we conclude that although relevant, the package inserts alone do not establish the standard of care.

Wong also argues that the failure to follow the package inserts was simple negligence that did not require expert testimony. We disagree. As detailed in Division 2, supra, “[w]hether an action alleges professional malpractice or simple negligence depends on whether the professional’s alleged negligence required the exercise of professional judgment and skill.” Peterson, supra, 243 Ga. App. at 754 (2) (citation omitted). In any particular case, adhering to the manufacturer’s recommendations and warnings may or may not have been within the standard of care when the alleged negligent act occurred. Wong’s allegations of negligence in Chappell’s use of the cryoablation tool challenge her professional judgment and skill and thus assert professional negligence.

The cases Wong cites for the proposition that failure to follow the written directions is simple negligence are distinguishable. In Peterson, supra, 243 Ga. App. at 755 (2), the defendant had successfully moved to dismiss the plaintiff’s complaint for failure to file an OCGA § 9-11-9.1 affidavit. We reversed as to one count of the complaint because at that preliminary stage of the proceedings, we took the plaintiff’s allegations as true, and it was at least arguable that she had asserted a claim of simple negligence for which an OCGA § 9-11-9.1 affidavit was not needed. In Sood v. Smeigh, 259 Ga. App. 490 (578 SE2d 158) (2003), which is physical precedent only, we held that the defendant’s act of assembling a prosthetic patella required only compliance with the manufacturer’s instructions, not the exercise of professional discretion, so the plaintiff’s action sounded in simple negligence. In Lamb v. Candler Gen. Hosp., 262 Ga. 70, 71 (1) (413 SE2d 720) (1992), our Supreme Court held that “the failure to replace disposable parts in the instrument involved in [that] case, as required for its safe performance, create [d] an issue of simple negligence by hospital employees” because, unlike here, professional skill and judgment were not involved. In Dent v. Memorial Hosp., 270 Ga. 316 (509 SE2d 908) (1998), our Supreme Court held that the plaintiffs’ allegations concerning the nursing staff’s failure to activate the alarm on a sleep apnea monitor — as the physician had instructed — asserted simple negligence because such acts did not involve the exercise of professional judgment.

5. Admission of May 2011 resource guide.

Wong argues that the trial court erred by admitting a “resource guide” that was not in effect at the time of Mrs. Wong’s procedure. He argues that the admission of this document, which approved ten-minute freezes versus the earlier recommended, four-to-six minute freezes, allowed the defendants to argue that a ten-minute freeze was the standard of care.

We agree with Wong that the applicable standard of care is the standard of care at the time of the alleged negligent act. McDaniel v. Hendrix, 260 Ga. 857, 859 (1) (401 SE2d 260) (1991) (relevant standard of care is the standard of care employed by medical profession under similar conditions and like circumstances). But the trial court could have found that the later-published resource guide was relevant to the standard of care at the time of Mrs. Wong’s procedure, because it demonstrated the manufacturer’s revision of its guidelines to reflect the practice in the medical community or information available at that earlier time.

Decided July 13, 2015 —

Reconsideration denied July 27, 2015 —

David N. Schaeffer, for appellants.

Weathington Smith, Paul E. Weathington, Heather C. McGrotty, for appellees.

“ ‘[R]elevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” OCGA § 24-4-401. “[T]he admission of evidence is within the sound discretion of the trial court and appellate courts will not interfere absent abuse of that discretion. . . . [N]o matter how slight the probative value, our law favors admission of relevant evidence.” City of Atlanta v. Bennett, 322 Ga. App. 726, 727-728 (1) (746 SE2d 198) (2013) (citations and punctuation omitted). See also OCGA § 24-4-402 (generally, “[a]ll relevant evidence shall be admissible. . . .”). Wong has not shown that the trial court abused her discretion in admitting this evidence.

6. Remaining enumerations of error.

Given our reversal of the defense verdict, we do not address Wong’s argument that the trial court erred in granting the defendants’ motion for a directed verdict on his punitive damages claim. Whether the trial court again grants that motion will depend on the evidence presented at the retrial. Nor do we address Wong’s argument that the trial court erred in allowing defense counsel to strike a juror for cause after the parties had begun exercising their peremptory challenges, because any such error is unlikely to recur.

Judgment reversed and case remanded.

Ellington, P. J., concurs. Dillard, J., concurs in judgment only.