author: MCFADDEN, Judge. DILLARD, Judge, McMlLLIAN, Judge,

text:
    A15A1085.
    SMITH et al. v. DANSON et al.
    (780 SE2d 481)
   MCFADDEN, Judge.

Dominique J. Smith, M.D., and her obstetrics and gynecology practice, Premier Women’s Healthcare, LLC (collectively, “Smith”), appeal from the trial court’s denial of Smith’s motion for summary judgment on Laura Woodley Danson’s complaint for medical malpractice. That claim arose out of a surgical procedure in which Danson was injured. Smith argues that Danson’s complaint was filed after expiration of the two-year statute of limitation for medical malpractice claims and that the trial court erred by holding otherwise.

It is undisputed that the claims arising out of the surgery itself, which Danson asserted in her original complaint, are time barred. But Danson has abandoned those claims. She now asserts only a claim for a subsequent misdiagnosis and takes the position that the injury she suffered during surgery was not the result of negligence but rather a known risk of the procedure. Because the claim she now asserts is a timely free-standing misdiagnosis claim, it is not time barred as a matter of law. Accordingly, we affirm.

Viewed in the light most favorable to Danson as the nonmovant, see, e.g., Torrance v. Morris Publishing Group, 281 Ga. App. 563, 566 (1) (636 SE2d 740) (2006), the record shows that on February 28, 2011, she underwent a laparoscopic complete hysterectomy performed by Smith. Upon waking from the procedure, Smith told Danson that her stomach was hard because the surgical team used “too much gas,” which we presume to mean gas injected into the abdomen to inflate the area during the laparoscopic procedure. Danson was discharged from the hospital a day or two later and was scheduled for her first post-operative appointment with Smith on March 16, 2011.

Although Danson initially felt “okay,” approximately three days after being discharged she noticed that she lacked an appetite. And when she tried to eat, she had the feeling of already being full. Danson also had pain “in [her] stomach,” which “was feeling a little hard.” Additionally, she noticed a burning sensation when she urinated. Notwithstanding these symptoms, Danson did not call Smith or any other doctor, attributing her ailments to just having had surgery.

At the first post-operative appointment on March 16, 2011, Smith removed Danson’s bandages, and Danson informed Smith that she was experiencing painful urination, that her stomach felt hard and hurt, and that she was having difficulty swallowing. Thereafter, Smith prescribed Danson an antibiotic to treat a probable bladder infection and attributed the other symptoms to using “too much gas” during the procedure. Before leaving Smith’s office, Danson scheduled a second post-operative appointment for April 6, 2011.

In the time between her first and second appointments, Danson’s symptoms worsened (although the painful urination ceased after taking the prescribed medication). Nevertheless, she did not call Smith or otherwise seek medical assistance during this time period. But at the second post-operative appointment with Smith, Danson discussed her bloated, hard stomach and her worsening pain and difficulty swallowing. Smith then performed an internal examination of Danson, during which she placed her hand on Danson’s stomach. After completing this examination and telling Danson that she was free to go, Danson asked Smith, “[W]hat are we going to do about the gas in my stomach?” In response, Smith asked Danson whether she had made any dietary changes and recommended trying probiotics to relieve symptoms of gas.

Danson tried probiotics and other over-the-counter remedies for gas relief for several weeks before seeking medical assistance elsewhere for her worsening symptoms, which eventually came to include vomiting. In the end, following examinations by multiple doctors other than Smith and a hospital stay, it was discovered that Danson had an obstruction of her kidney, which in turn caused urine to collect internally in her abdomen. According to Danson, when the obstruction was discovered, the diagnosing physician told her that she “had obstruction to [her] kidney . . . during surgery, which was caused during surgery, during the hysterectomy, and [Smith] had clamped down on [Danson’s] kidney.” Danson claimed that she was also told that Smith had “nicked” her bladder and “messed up.” Danson then underwent further surgical treatment to resolve her condition.

On March 14, 2013, Danson filed suit against Smith. In the factual allegations of her complaint, Danson claimed, among other things, that Smith, “[d]uring the surgery... placed surgical clapped, [sic] to move Plaintiff’s ... bladder out of the way so Defendant Smith could get to Plaintiff’s... uterus.” She then made a claim for “medical malpractice and negligence,” which she supported with allegations that Smith “failed to give informed consent of the risks of the procedure of hysterectomy”; “injured [Danson’s] right ureter during the hysterectomy procedure”; “failed to diagnose- [Danson’s] right ureter injury postoperatively”; and “failed to recognize [Danson’s] abdominal distention was due to development of ascites.”

Smith answered Danson’s complaint, raising the affirmative defense that Danson failed to comply with the two-year statute of limitation for medical malpractice claims, OCGA § 9-3-71 (a) (“Except as otherwise provided in this article, an action for medical malpractice shall be brought within two years after the date on which an injury or death arising from a negligent or wrongful act or omission occurred.”). She moved to dismiss and/or for summary judgment on the same basis.

In a response brief, Danson admitted that her complaint was filed outside of the two-year limitation period, but claimed for the first time that Smith had also committed fraud by “continuously telling [her] that what she was experiencing was merely gas.” Thus, Danson contended that the statute of limitation had been tolled by this alleged fraud. See OCGA § 9-3-96 (“If the defendant or those under whom he claims are guilty of a fraud by which the plaintiff has been debarred or deterred from bringing an action, the period of limitation shall run only from the time of the plaintiff’s discovery of the fraud.”).

In response to Smith’s limitation-period defense, Danson also filed an amended complaint that, in addition to the original claim for medical malpractice/negligence, added a claim for fraud and misrepresentation. She supported this claim with allegations that Smith “knew that the hardening of Plaintiff’s abdomen was not caused by gas but by something she did during the surgery” and “knew when she made said statements that they were false and made the same for the purpose of inducing Plaintiff to continue to take the medication for gas and think that her health issues were not related to anything... Smith had done during the surgery.” (Emphasis omitted.)

Smith answered Danson’s amended complaint, again raising the affirmative defense that Danson failed to comply with the two-year statute of limitation. Smith also responded to Danson’s brief in opposition to the motion for summary judgment, asserting that Danson’s new claim of fraud could not salvage the belatedly filed complaint because there was no evidence to support such a claim.

Danson then filed a second brief in response to Smith’s motion, contending that the statute of limitation began to run on March 16, 2011, when Smith failed to diagnose anything other than gas, so her complaint was not time barred. Danson clarified that she was “not seeking to recover damages for the injury of the bladder but the delay in diagnosis or the misdiagnosis of the bladder injury . . . .” She alternatively argued that Smith’s fraud had tolled the running of the limitation period when Danson “was defrauded by Dr. Smith in an effort to prevent [her] from uncovering the errors that Dr. Smith had made will [sic] performing the hysterectomy procedure.”

Danson also amended her complaint for a second time, removing from the medical malpractice/negligence claim the allegation that Smith failed to give informed consent. Danson continued to allege that Smith “injured [Danson’s] right ureter during the hysterectomy procedure.” She then alleged that Smith “either failed to diagnose [Danson’s] right ureter injury postoperatively or purposely misrepresented the cause of [Danson’s] complaints” and “either failed to recognize or purposely misrepresented [that Danson’s] abdominal distention was due to development of ascites.” Finally, Danson continued to maintain the prior allegations for her claim of fraud.

The trial court conducted a hearing on Smith’s motion. The hearing was not transcribed, and accordingly no transcript was transmitted to this court. Following the hearing, Danson took Smith’s deposition before both parties filed supplemental briefs on the motion. In Danson’s supplemental brief, she pointed to Smith’s deposition testimony to support her argument that she did not, in fact, assert a claim for medical malpractice related to the surgery because Smith’s testimony established that internal injuries, including to ureters, are a reasonable, possible complication in surgery.

After all of the foregoing transpired, the trial court ruled upon Smith’s motion, concluding that, because there was no evidence of fraud and the complaint had been filed outside of the two-year statute of limitation, the complaint should be dismissed. Danson then filed a motion for reconsideration, which the trial court granted in part. As to the claim for fraud, which Danson continued to maintain, the trial court denied the motion to reconsider and maintained the grant of summary judgment to Smith. But as to a claim for misdiagnosis occurring on March 16, 2011, the trial court granted the motion, determining that Danson made no claim for medical malpractice as it related to the injury allegedly sustained during surgery on February 28, 2011. In so ruling, the court noted that

Defendant Dr. Smith’s contention that the injury to the ureter was a known risk of surgery in the absence of negligence is agreed to. And her contention that there was no negligence in the course of the surgery is unrebutted. So in this case, the issue posed is whether a non-negligent injury may cause the statute of limitations period to run.

In making this partial reversal of the prior decision, the trial court issued a certificate of immediate review, and we granted Smith’s application for interlocutory appeal.

Smith contends on appeal that the trial court erred in granting Danson’s motion for reconsideration by concluding that the statute of limitation began to run on March 16,2011, as opposed to February 28, 2011. We disagree.

To begin with, in most cases of negligent treatment, the negligent treatment is the injury, and the statute of limitation begins to run at the time of treatment. McCord v. Lee, 286 Ga. 179, 180 (684 SE2d 658) (2009). In such cases, a subsequent misdiagnosis by the party that provided the negligent treatment is not a separate injury; and the limitation period for a claim arising from such a misdiagnosis runs from the date of the original injury. See Kaminer v. Canas, 282 Ga. 830, 835 (1) (653 SE2d 691) (2007) (physicians’ failure to rediagnose plaintiff’s condition was a failure to mitigate damages, not an act inflicting new harm); Smith v. Harris, 294 Ga. App. 333, 337-338 (2) (a) (670 SE2d 136) (2008). Cf. Amu v. Barnes, 283 Ga. 549 (662 SE2d 113) (2008) (explaining the new injury exception to this rule). But as to claims of free-standing misdiagnosis, the injury is the misdiagnosis, and, in most cases, the limitation period runs from the time of the misdiagnosis. McCord, 286 Ga. at 180.

In this case, Danson initially alleged that her surgery was negligently performed but has now disavowed that claim. The trial court correctly found that disavowal effective, so that the statute of limitation began running at the time of the alleged misdiagnosis.

The dissent would hold that Danson never effectively disavowed her claim that Smith committed medical malpractice while performing the surgical procedure. This is so, the dissent reasons, because the alleged misdiagnosis is inextricably linked to the injury she claims to have sustained during surgery, both in how she pleaded the claim and as a matter of fact. Consequently, the dissent would hold, the statute of limitation began running at the time of the surgery.

We disagree. “A party may amend his pleading as a matter of course and without leave of court at any time before the entry of a pretrial order.” OCGA § 9-11-15 (a). As she had the right to do, Danson amended her complaint to remove her former claim that Smith committed malpractice during the surgery. It is irrelevant to our analysis that her amended complaint contradicts her initial complaint. Id. Indeed under some circumstances, when their understanding of the evidence changes, parties should reverse themselves.

The dissent characterizes Danson’s amendment as an attempt to “salvage her complaint.” To the extent that that characterization implies disapproval, we disagree. It is not our place, at least under these facts, to judge a party’s tactics.

As the dissent argues, Danson still alleges in her second amended complaint that Smith injured her during the surgical procedure. But this allegation does not mean that Smith alleged the injury amounted to malpractice. The fact that a plaintiff suffers an unintended injury, particularly one that is a known risk such as the injury here, does not amount to medical malpractice, absent a breach of the standard of care. See Zarate-Martinez v. Echemendia, 332 Ga. App. 381, 387-388 (3) (772 SE2d 826) (2015).

Danson’s intent to abandon the claim that Smith was negligent during the surgery is clear. In the amended brief Danson filed in opposition to the defendants’ motion to dismiss or for summary judgment, Danson expressly disavows that she is asserting malpractice for the surgical injury. Treating Danson’s pleadings with “considerable indulgence” as we must given that she is the nonmovant, Gentile v. Bower, 222 Ga. App. 736, 737 (477 SE2d 130) (1996), we conclude that Danson effectively amended her complaint to remove the claim that Smith committed medical malpractice during the surgery, despite her allegation that Smith injured her during surgery. See Smith v. Morris, Manning & Martin, 264 Ga. App. 24 (S89 SE2d 840) (2003) (physical precedent only on other grounds) (plaintiff properly amended complaint to remove claims of malpractice that would otherwise be barred for lack of malpractice affidavit and to substitute claims of intentional misconduct). See also Stith v. Hudson, 231 Ga. 520, 525 (2) (202 SE2d 392) (1973) (a party may amend the complaint by striking all of the original pleadings and asserting new claims).

Instead, Danson alleges as the first act of negligence that Smith failed to diagnose the cause of her symptoms. Because this was the first time Danson experienced an “injury... arising from a negligent or wrongful act or omission,” Danson had to bring her action for medical malpractice within two years of that date. OCGA § 9-3-71 (a). And since Danson filed her complaint within two years of this alleged failure to diagnose, it follows that her complaint is timely.

Judgment affirmed.

Barnes, P. J., Ellington, P. J., and Phipps, P. J., concur. Dillard and Ray, JJ., dissent. McMillian, J., concurs in the judgment only of the dissent.

DILLARD, Judge,

dissenting.

I respectfully dissent. The majority holds that Danson has abandoned her time-barred claim for medical malpractice related to the surgery performed on February 28,2011.1 disagree. And because Danson filed her complaint more than two years after the date that her complained-of injury occurred, her claims were time-barred as a matter of law. Thus, summary judgment should have been granted to Smith, and the trial court erred in granting Danson’s motion for reconsideration from its initial dismissal of the complaint.

The majority opinion correctly recites the allegations made in Danson’s initial pleadings, the arguments in Smith’s motion for summary judgment, and the various responses. Nevertheless, the majority is untroubled by the repeated contradictions within Dan-son’s pleadings and responses. Indeed, in Danson’s second brief in response to Smith’s motion for summary judgment, Danson contends that the statute of limitation began to run on March 16, 2011, when Smith failed to diagnose anything other than gas. But notwithstanding Danson’s supposed clarification that she was “not seeking to recover damages for the injury of the bladder but the delay in diagnosis or the misdiagnosis of the bladder injury . . . ,” she inexplicably admits, yet again, that the complaint was filed outside of the two-year statute of limitation period. And Danson then reprises her argument that Smith’s fraud tolled the running of the limitation period when she “was defrauded by Dr. Smith in an effort to prevent [her] from uncovering the errors that Dr. Smith had made will [sic] performing the hysterectomy procedure.”

Additionally, in Danson’s second amended complaint, in which she removes the allegation that Smith failed to give informed consent, she continues to allege in her medical-malpractice/negligence claim that Smith “injured [her] right ureter during the hysterectomy procedure.” Danson also alleges that Smith “either failed to diagnose [Danson’s] right ureter injury postoperatively or purposely misrepresented the cause of [Danson’s] complaints” and “either failed to recognize or purposely misrepresented [Danson’s] abdominal distention was due to development of ascites.” And, of course, in this complaint, Danson continues to maintain the prior allegations for her claim of fraud.

Then, following the untranscribed hearing on Smith’s motion, Danson took Smith’s deposition before both parties filed supplemental briefs on the motion. Smith’s supplemental brief represents that “[a]t the hearing, [Danson] argued that the deposition of Dr. Smith was needed in order to defend against the [mjotion, primarily, to prove fraud in order to avoid dismissal due to the filing after the expiration of the statute of limitation.” And Danson did not respond to or counter this assertion in her supplemental brief, which was filed over one week later.

Despite these rampant contradictions and repeated allegations of an injury sustained during surgery, the majority believes the trial court properly granted Danson’s motion for reconsideration by concluding that the statute of limitation began to run on March 16, 2011, as opposed to February 28, 2011.1 disagree.

To begin with, the purpose of a statute of limitation is “to limit the time period in which certain types of actions may be brought and thereby provide a date certain after which potential defendants can no longer be held liable for claims brought in such actions.” In this respect, a statute of limitation serves “the legitimate public policy goal of promoting justice and furthering the certainty of time limitations while preventing unfair surprise”; and prescribing these periods of limitation is, of course, “a legislative, not a judicial, function[.]”

OCGA § 9-3-71 contains the relevant limitation period for actions for medical malpractice, providing that such actions “shall be brought within two years after the date on which an injury or death arising from a negligent or wrongful act or omission occurred.” In Georgia an “action for medical malpractice” is any claim for damages that result from “the death of or injury to any person arising out of [ ]... [h] ealth, medical, dental, or surgical service, diagnosis, prescription, treatment, or care rendered by a person authorized by law to perform such services or by any person acting under the supervision and control of a lawfully authorized person . . . ”

In most cases of negligent treatment or misdiagnosis, “the statute of limitation for medical malpractice will begin running at the time of the treatment or misdiagnosis.” Thus, in cases of alleged negligent treatment, “the statute of limitation for medical malpractice will begin running at the time of the treatment,” which is “the time that the injury generally occurs ” But in cases of misdiagnosis, “the two-year statute of limitation[ ] and the five-year statute of repose begin to run simultaneously on the date that the doctor negligently failed to diagnose the condition and, thereby, injured the patient ” In sum, our Supreme Court has concluded that “[t]he true test to determine when the cause of action accrued is to ascertain the time when the plaintiff could first have maintained his action to a successful result.”

Here, Smith presented evidence that Danson’s medical-malpractice claim was time-barred when Danson filed suit for medical malpractice on March 14, 2013, and repeatedly supported her claim by asserting that, in addition to later failing to diagnose the error, Smith injured Danson during surgery on February 28, 2011. In response to Smith’s assertion that the claims were time-barred, Danson initially attempted to show that the statute of limitation had been tolled by fraud when she asserted that Smith knew she had injured Danson during surgery but concealed her error by continuously diagnosing Danson with gas. Then, Danson later attempted to salvage her complaint by contending that it did not contain an allegation of malpractice based upon an injury sustained during surgery but instead only made a claim for misdiagnosis. But notwithstanding this contention, Danson continued to maintain that Smith committed fraud, which tolled the statute of limitation. Thus, Dan-son’s argument on appeal, which the majority accepts, is belied by the allegations contained in every single one of her complaints and subsequent filings.

Indeed, under the Civil Practice Act, “any pleading which sets forth a claim for relief . . . shall contain [ ] . . . [a] short and plain statement of the claims showing that the pleader is entitled to relief. . . .” Additionally, all averments of a claim must be made in numbered paragraphs, “the contents of each of which shall be limited as far as practicable to a statement of a single set of circumstances.” And each claim that is “founded upon a separate transaction or occurrence . . . shall be stated in a separate count . . . whenever a separation facilitates the clear presentation of the matters set forth.” Here, in each of her three complaints, Danson asserts a claim for medical malpractice supported by averments that Smith injured Danson’s right ureter during the hysterectomy.

The trial court, in granting Danson’s motion for reconsideration and denying summary judgment to Smith on the claim for medical malpractice, appears to have concluded that Danson’s complaint did not assert a claim for malpractice based upon anything that occurred during the surgery. And, of course, the majority reaches this same conclusion. For its part, the trial court’s order noted that Danson’s expert-affidavit did not “state that the injury to the ureter was negligent” and that Smith’s “contention that there was no negligence in the course of the surgery is unrebutted.” But these are different considerations from whether or not Danson, in her complaint, asserted a claim of medical malpractice for an injury allegedly sustained during the surgery. Nevertheless, the majority maintains that “[t]he fact that a plaintiff suffers an unintended injury, particularly one that is a known risk such as the injury here, does not amount to medical malpractice, absent a breach of the standard of care.” (Maj. op. at 870.) But a review of Danson’s expert-affidavit, which largely tracked the exact language of the complaint, shows that the affiant opined, inter alia, that Smith “injured [Danson’s] right ureter during the hysterectomy procedure on February 28,2011” and then “failed to diagnose [Danson’s] right ureter injury post operatively.”

In conclusion, it is manifestly evident from a review of each of Danson’s complaints that she made (and continued to make) a claim for medical malpractice based upon allegations that Smith injured her during the February 28, 2011 surgery. Thus, the statute of limitation had already expired when she filed her initial complaint on March 14, 2013 — two years and eleven days after the date that she sustained the injury. Danson’s assertion of a claim for medical malpractice based upon a failure to diagnose the injury she received during the surgery could not salvage her complaint. Indeed, her claim as to an alleged misdiagnosis is inextricably linked to the injury she claims to have sustained during surgery — both in terms of how she singularly pleaded the claim and as a matter of fact. And as our Supreme Court has explained, “the statute of limitations on a medical malpractice claim . . . begins on the date of the patient’s injury.”

Decided November 20, 2015.

Carlock, Copeland & Stair, Wayne D. McGrew III, Heather H. Miller, for appellants.

Bonner & Penn, Nikki G. Bonner, for appellees.

Accordingly, for all of the foregoing reasons, I would reverse the trial court’s grant of Danson’s motion for reconsideration and direct the court to grant summary judgment in favor of Smith.

I am authorized to state that Judge Ray joins in this dissent and Judge McMillian concurs in the judgment only of this dissent.

McMlLLIAN, Judge,

concurring in the judgment only of the dissent.

Although I agree with the result reached by Judge Dillard in his dissenting opinion, I cannot agree with all that is said and thus concur in the judgment only to that opinion. See Court of Appeals Rule 33 (a).

       Danson’s husband also made a claim for loss of consortium. Neither the parties on appeal nor the trial court’s order discuss his claim.

       Danson originally sued other medical professionals with regard to the care she received in the weeks between her last visit with Smith and her eventual diagnosis, but these defendants were either dismissed by consent or are not parties to this appeal.

       Emphasis supplied.

       Emphasis supplied.

        U.S. Fid. & Guar. Co. v. Rome Concrete Pipe Co., Inc., 256 Ga. 661, 663 (353 SE2d 15) (1987); see also Young v. Williams, 274 Ga. 845, 847-48 (560 SE2d 690) (2002).

        Martin v. Herrington Mill, Inc., 316 Ga. App. 696, 701 (730 SE2d 164) (2012) (punctuation omitted); accord Walker v. Brannan, 243 Ga. App. 235, 239 (533 SE2d 129) (2000).

        Young, 274 Ga. at 848; see also Kaminer v. Canas, 282 Ga. 830, 838 (4) (653 SE2d 691) (2007) (“We find OCGA § 9-3-71 (a) to be an extremely harsh limitation in application because it has the effect, in many cases,... of cutting off rights before there is any knowledge of injury. Nonetheless, the legislature has the power, within constitutional limitations, to make such provisions.” (punctuation omitted)).

       OCGA § 9-3-71 (a).

       OCGA § 9-11-8 (a) (1) (A).

        McCord v. Lee, 286 Ga. 179, 180 (684 SE2d 658) (2009).

        Beamon v. Mahadevan, 329 Ga. App. 685, 687 (1) (766 SE2d 98) (2014) (punctuation omitted) (quoting McCord, 286 Ga. at 180).

        Id. (punctuation omitted) (quoting McCord, 286 Ga. at 180).

        Kaminer, 282 Ga. at 832 (1); see also id. at 831-32 (1) (holding that in cases of misdiagnosis, “the injury begins immediately upon the misdiagnosis due to pain, suffering, or economic loss sustained by the patient from the time of the misdiagnosis until the medical problem is properly diagnosed and treated” and that “[tjhe misdiagnosis itself is the injury and not the subsequent discovery of the proper diagnosis” (punctuation omitted)); Frankel v. Clark, 213 Ga. App. 222, 223 (444 SE2d 147) (1994).

        Kaminer, 282 Ga. at 833 (1) (punctuation omitted); accord Beamon, 329 Ga. App. at 687 (1).

       OCGA § 9-11-8 (a) (2) (A).

       OCGA § 9-11-10 (b).

        Id. (emphasis supplied).

        Cf. Johnson v. Jones, 327 Ga. App. 371, 375-76 (2) (759 SE2d 252) (2014) (holding that trial court properly found that claim was time-barred when the gravamen of claim for breach of fiduciary duties was an alleged failure to correctly read an ultrasound and reach proper diagnosis, and accordingly, the claim “amounted to a claim of negligence that went to the propriety of [the defendant’s] medical skill and judgment”).

        See OCGA § 9-11-9.1 (a) (“In any action for damages alleging professional malpractice . . . the plaintiff shall be required to file with the complaint an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.”).

        See OCGA § 9-11-9.1 (e) (“If a plaintiff files an affidavit which is allegedly defective, and the defendant to whom it pertains alleges, with specificity, by motion to dismiss filed on or before the close of discovery, that said affidavit is defective, the plaintiff’s complaint shall be subject to dismissal for failure to state a claim____”); OCGA § 9-11-56 (c) (“The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law; but nothing in this Code section shall be construed as denying to any party the right to trial by jury where there are substantial issues of fact to be determined. A summary judgment may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damage.”).

        See OCGA § 9-3-71 (a) (“[A]n action for medical malpractice shall be brought within two years after the date on which an injury or death arising from a negligent or wrongful act or omission occurred.”).

        See OCGA § 9-11-10 (b) (providing that “[e]ach claim founded upon a separate transaction or occurrence and each defense other than denials shall be stated in a separate count or defense whenever a separation facilitates the clear presentation of the matters set forth”).

        Cf. Deen v. Pounds, 312 Ga. App. 207, 211 (1) (718 SE2d 68) (2011) (holding that there was “no evidence in the record to support [appellant’s] contention that [the doctor] committed a separate act of negligence by continuing to prescribe Reglan” and that “[the doctor’s] alleged failure to correct any previous negligence does not constitute additional acts of negligence” (punctuation omitted)); Goodman v. Satilla Health Servs., 290 Ga. App. 6, 8 (658 SE2d 792) (2008) (holding that there was “no evidence in the record to support [appellant’s] contention that [the doctor] committed a separate act of negligence by continuing to prescribe Coumadin” and that “[the doctor’s] alleged failure to correct any previous negligence does not constitute additional acts of negligence”).

        Kaminer, 282 Ga. at 834 (1) (citation omitted) (emphasis supplied); see also Young, 274 Ga. at 847-48 (“While Georgia had such a medical malpractice statute of limitation from 1976-1985, the period of limitation under the current statute begins with the occurrence of an injury, not the performance of a negligent act.”). Cf. Lyon v. Schramm, 291 Ga. App. 48, 49 (661 SE2d 178) (2008) (“[U]nlike the statute of limitation, the [medical malpractice] statute of repose begins to run when an act of negligence is committed.”), affirmed by Schramm v. Lyon, 285 Ga. 72 (673 SE2d 241) (2009).

       The judgment line “concurring in the judgment only of the dissent” first appeared in orneases in 1980 and has been used occasionally since that time. See Ellis v. Dalton, 194 Ga. App. 114 (389 SE2d 797) (1989); Harvey Freeman & Sons, Inc. v. Stanley, 189 Ga. App. 256 (375 SE2d 261) (1988); Travillian v. Ga. Farm Bureau Mut. Ins. Co., 182 Ga. App. 241 (355 SE2d 677) (1987); Howard v. Superior Contractors, 180 Ga. App. 68 (348 SE2d 563) (1986); Menchio v. Rymer, 179 Ga. App. 852 (348 SE2d 76) (1986); Johnson v. Amerson, 179 Ga. App. 75 (345 SE2d 94) (1986); Taylor v. Greiner, 156 Ga. App. 663 (275 SE2d 737) (1980).


source: Caselaw Access Project

author: BARNES, Presiding Judge.

license: Public Domain

text:
    A15A1098.
    WARD v. SMITH.
    (780 SE2d 702)
   BARNES, Presiding Judge.

Darrin Ward appeals from the temporary order of the trial court that, among other things, domesticated an Indiana custody order, modified custody of his son, and held him in contempt of an earlier order to return his child to Georgia. Ward contends multiple errors on appeal, and following our review, we affirm the trial court’s order.

Ward and Cheryl Smith were divorced in 2006 while living in Indiana and had one son together, P. W. The Indiana court entered an order of relocation on June 24, 2008, which permitted Smith to relocate with P. W. to Camden County, Georgia. Per the order, Ward was granted visitation rights, including every Labor Day weekend. When Ward did not return P. W. to Georgia after his 2014 Labor Day visit, Smith filed a “Petition for Enforcement of Custody Determination” in the Superior Court of Camden County to, among other things, enforce the Indiana order and return P. W. to Georgia pursuant to its terms, modify visitation, find Ward in contempt, and domesticate the Indiana order.

On September 11, 2014, the same day that Smith filed her petition for enforcement, the trial court entered an order for “an expedited hearing on the issue of enforcement” which required Ward to appear at a September 25, 2014 show-cause hearing and return P. W. to the jurisdiction of the court so that Smith could take physical custody of the child. Through local counsel, on September 24, Ward filed a limited response in which he contested the jurisdiction because the Indiana court had made the initial custody determination and retained continuing jurisdiction over the matter. He further notified the court that he had filed a petition for emergency modification of custody in Indiana on September 5,2014, and that a hearing had been set for October 30, 2014. Ward also requested that the court stay the proceeding until it “communicate [d] with the Indiana Court as to the most appropriate forum.” Ward did not attend the scheduled hearing on September 25 or produce the child, but his attorney appeared and again raised the issue of jurisdiction. The hearing was not transcribed.

On September 30, 2014, the trial court held a telephone conference with the Indiana court, after which the Indiana court surrendered all jurisdiction to the Georgia court. The Indiana court noted that it had not granted Ward an ex parte order of custody and had “not authorized Mr. Ward to retain the child.” The Indiana court further noted, in reference to the Georgia court’s September 11 order, that because the Georgia court had previously “entered an ex parte order... to enforce the parenting time, we’ll defer that to you... [and] our sheriff would provide full faith and credit to your order.”

The trial court subsequently entered an order on October 6,2014, nunc pro tunc to September 30, 2014, in which, after noting that Indiana had surrendered jurisdiction to Georgia, the court determined that Georgia was the home state of P. W. and that “jurisdiction now lies in the Superior Court of Camden County.” The trial court set another hearing for October 7, 2014 on Smith’s petition for enforcement of custody determination. The Indiana court’s order surrendering jurisdiction and vacating the hearing pending in that state was also attached to the October 6 order. Ward returned the child to Georgia on October 6, 2014, and filed an answer and counterclaim seeking custody of P. W.

Following the October 7 hearing, the trial court entered an order domesticating the 2008 Indiana custody order, continuing joint legal custody with both parents and primary physical custody with Smith, finding Ward in contempt of the September 11 order because of Ward’s “interference with lawful custody of [P. W] by his willful refusal to return the . . . child to the jurisdiction of the Court as so ordered.” It also awarded Smith expenses of litigation incurred during the course of the proceedings. Ward filed a motion for reconsideration, essentially asserting that the trial court did not have jurisdiction to find him in contempt of the September 11 order, and also that the litigation expenses award was unduly financially burdensome. After a hearing on the motion, the trial court entered an amended order permitting Ward to pay the legal expenses in monthly installments, but denying his motion for reconsideration regarding the contempt finding. Ward appeals from that order.

1. Ward contends that he was not given proper mandatory notice of registration in accordance with OCGA § 19-9-85 of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). He asserts that before the 2008 Indiana custody order could be enforced by the Georgia court, pursuant to OCGA § 19-9-85, the custody order had to be registered and he had to be given a 20-day notice of the registration. We do not agree.

The enforcement remedies under the UCCJEA are cumulative, see OCGA § 19-9-83 (b), and enforcement via registration or domestication of a child custody determination pursuant to OCGA § 19-9-85 is only one of the available remedies. Although Smith included a request to domesticate the Indiana determination of custody in her petition, she filed a petition for enforcement of the Indiana child custody determination under OCGA § 19-9-83 and OCGA § 19-9-88. OCGA § 19-9-88 provides for an expedited hearing to enforce a custody determination and requires the court to “issue an order directing the respondent to appear in person with or without the child at a hearing,” and that “/tjhe hearing must be held on the next judicial day after service of the order unless that date is impossible.” (Emphasis supplied.) OCGA § 19-9-88 (d). The trial court did not address the domestication of the Indiana order in the September 11 order, and, in fact, the Indiana order was not domesticated until after the Indiana court relinquished jurisdiction.

Even if, as Ward asserts, Smith’s enforcement petition could be construed as a petition to domesticate the Indiana visitation order, OCGA § 19-9-85 provides that upon service of notice, Ward be provided “with an opportunity to contest the registration in accordance with this Code section,” and “[a] hearing to contest the validity of the registered determination must be requested within 20 days after service of notice.” (Emphasis supplied.) OCGA § 19-9-85 (b) (2), (c) (2). Ward was served with notice of the petition on September 17, 2014, and on September 24, 2014, through the filing of a limited response, and again at the October 7 hearing on the petition, Ward challenged the Georgia court’s jurisdiction over the enforcement of the Indiana order. As noted previously, the trial court did not domesticate the Indiana order until October 7,2014, and thus Ward was given the opportunity to contest the domestication pursuant to OCGA § 19-9-85.

Thus, this enumeration fails.

2. In related enumerations of error, Ward contends that the trial court erred in finding him in contempt of the September 11 and October 6 orders. He contends that the Georgia court did not have authority to enforce the Indiana order until the Indiana order was domesticated on October 7, 2014, and that the September 11 order was void because Indiana still had jurisdiction at that time. We do not agree.

We first note that while Ward argues that he was also found in contempt of the trial court’s October 6 order, the trial court’s finding of contempt appears to relate only to a wilful violation of the direction in the September 11 order that Ward return the child to Georgia. The trial court found that Ward was

in willful contempt of the Court Order of September 11, 2014, due to his interference with lawful custody of the minor child P. W, by his willful refusal to return the minor child to the jurisdiction of the Court as so ordered. [Ward] willfully failed to adhere to the order of this court to return the child once it was determined on September 30, 201 [4] that the State of Georgia had jurisdiction in his matter. [Ward] did not return the child until October 6, 2014.

Generally, subject-matter jurisdiction for purposes of modifying a foreign custody decree cannot be conferred unless the foreign judgment has been domesticated. Pearson v. Pearson, 263 Ga. 400, 401 (435 SE2d 40) (1993).

OCGA § 19-9-63 provides that, except as allowed by the temporary emergency jurisdiction provision of the UCCJEA, a Georgia court may not modify a child-custody determination made by a court in another state unless a court of this state has jurisdiction to make an initial determination under paragraph (1) or (2) of subsection (a) of Code Section 19-9-61 and the court of the other state determines it no longer has exclusive, continuing jurisdiction under Code Section 19-9-62 or that a court of this state would be a more convenient forum under Code Section 19-9-67; or a court of this state or a court of the other state determines that neither the child nor the child’s parents or any person acting as a parent presently resides in the other state.

(Punctuation and footnotes omitted.) Delgado v. Combs, 314 Ga. App. 419, 426 (1) (724 SE2d 436) (2012). And “ ‘[a] judgment rendered by a court without jurisdiction of the subject matter is absolutely void.’ ” Crotty v. Crotty, 219 Ga. App. 408 (465 SE2d 517) (1995).

The issue in this case, however, is not the modification of the Indiana custody dispute, but its enforcement via a contempt citation. Under Part 3 of the UCCJEA, in relation to jurisdiction and enforcement of foreign decrees, “[a] court of this state which does not have jurisdiction to modify a child custody determination may issue a temporary order enforcing,” among other things, “[a] visitation schedule made by a court of another state.” OCGA § 19-9-84 (a) (1). Further, OCGA § 19-9-83 provides that Georgia courts “shall recognize and enforce a child custody determination of a court of another state if the latter court exercised jurisdiction in substantial conformity with this article” and “may utilize any remedy available under other laws of this state to enforce a child custody determination made by a court of another state.”

With regard to a nonresident parent, OCGA § 19-9-70 (b) provides:

If a party to a child custody proceeding whose presence is desired by the court is outside this state, the court may order that a notice given pursuant to Code Section 19-9-47 include a statement directing the party to appear in person with or without the child and informing the party that failure to appear may result in a decision adverse to the party.

(Emphasis supplied.)

Regarding temporary orders such as the September 11 order seeking to enforce the visitation provisions of the Indiana child custody determination, the UCCJEA provides:

If a proceeding for enforcement under this part is commenced in a court of this state and the court determines that a proceeding to modify the determination is pending in a court of another state having jurisdiction to modify the determination under Part 2 of this article, the enforcing court shall immediately communicate with the modifying court. The proceeding for enforcement continues unless the enforcing court, after consultation with the modifying court, stays or dismisses the proceeding.

OCGA § 19-9-87.

Thus, contrary to Ward’s assertion, under the UCCJEA, an order for the enforcement of a visitation agreement in a foreign custody determination is not void because of the originating court’s continued jurisdiction. Applying the principles to this case, the September 11 order was in effect before the Indiana Court surrendered jurisdiction to the Georgia court, and, as the Indiana court noted, the Georgia court’s September 11 order is entitled to “full faith and credit.” When Ward did not bring the child back to Georgia as directed by the September 11 order, the Georgia court was authorized to use its contempt powers to enforce the order. “Every court has power to compel obedience to its judgments, orders, and processes.” Gaston v. Shunk Plow Co., 161 Ga. 287, 298 (130 SE 580) (1925). See OCGA § 19-9-83 (a).

Accordingly, the trial court did not err in finding Ward in contempt of the September 11, 2014 order.

3. Contrary to Ward’s contention, the trial court did not err in awarding attorney fees pursuant to OCGA § 19-9-92. The trial court ordered Ward to

pay [Smith] the total sum of $5,480.00 within ninety (90) days as envisioned by . . . OCGA § 19-9-92 “Awarding of Expenses” such that are necessary and reasonable expenses incurred by or on behalf of the party . . . including costs, communication expenses, attorney’s fees, investigative fees, expenses for witnesses, and travel expenses (if any) during the course of the proceedings.

The trial court later amended the order upon Ward’s motion for reconsideration so that, rather than pay a lump sum of $5,480 in attorney fees, Ward was permitted to pay $300 per month until the fees were paid in full or modified by the court.

OCGA § 19-9-90 provides that upon finding that the petitioner is entitled to immediate physical custody of the child, “[t]he court shall award the fees, costs, and expenses authorized under Code Section 19-9-92 and may grant additional relief, including a request for the assistance of law enforcement officials, and set a further hearing to determine whether additional relief is appropriate.” OCGA § 19-9-90 (a) and (b). OCGA § 19-9-92 specifies that

the court shall award the prevailing party, including a state, necessary and reasonable expenses incurred by or on behalf of the party, including costs, communication expenses, attorney’s fees, investigative fees, expenses for witnesses, travel expenses, and child care during the course of the proceedings, unless the party from whom fees or expenses are sought establishes that the award would be clearly inappropriate.

OCGA § 19-9-92 (a). This court has held that “OCGA § 19-9-92 applies only to the prevailing party in an enforcement proceeding.” Delgado, 314 Ga. App. at 431-432.

Here, although Ward argues that the trial court did not have jurisdiction to enforce the Indiana order because it was not registered and the proceeding was not an enforcement proceeding as contemplated by OCGA § 19-9-92, Smith’s petition was brought primarily under OCGA §§ 19-9-83 and 19-9-88 to enforce the visitation provisions of an existing Indiana custody determination. That she also requested modification and domestication of the custody determination does not change the result. Thus, this enumeration fails.

4. Ward also contends that the trial court violated his due process rights by failing to provide him with notice that the October 7, 2014, hearing was a contempt proceeding. In Smith’s complaint, she requested that the trial court find Ward in contempt for not abiding by the Indiana visitation agreement. The trial court’s September 11 order indicated that a hearing would be held to “show cause why [Smith’s] prayers should not be granted.” At the October 7 hearing on the petition, it was again indicated that Smith was asking for the court to “hold Ward in contempt.” And on the second day of the hearing, the trial court explained to counsel that, “because your client violated my court order, he did not provide any evidence that a lawyer told him it was okay to do that. So you argue for your client’s contempt and I’ll determine what kind of sanctions I’m going to take against your client for that.” Ward did not object to the trial court’s ruling, nor did he argue to the trial court that he had no notice that the court would hold contempt proceedings. Further, Ward did not argue lack of notice in his motion for reconsideration, but argued instead that the trial court did not have personal jurisdiction over him for contempt purposes when it issued its show cause order on September 11.

Decided November 20, 2015.

Garnett Harrison, Jacqueline N. Fortier, for appellant.

Miles P. Hendrix, Frances W. Dyal, for appellee.

“[Because] this is a court for the correction of errors, we will not consider any issues raised on appeal that were not raised and preserved in the trial court.” Brown v. State, 246 Ga. App. 517, 521 (5) (541 SE2d 112) (2000). This argument has been waived on appeal because Ward failed to assert it below.

5. Ward last maintains that the trial court erred in finding him in contempt and requiring him to pay a $500 fine because he did not “act willfully contrary” to the trial court’s September 11 order. He again argues that the Indiana court had exclusive jurisdiction when the Georgia court issued its September 11 order, but this argument was decided adversely to him in Division 2.

Regarding whether his actions were wilful, “a trial court has broad discretion to determine if a party is in contempt of its order, and the exercise of that discretion will not be reversed on appeal unless grossly abused.” (Citation omitted.) Hunter v. Hunter, 289 Ga. 9, 11 (4) (709 SE2d 263) (2011). Given Ward’s failure to return the child to Georgia per the visitation provisions in the custody determination as directed by the court, we discern no abuse of discretion under the facts of this case.

Judgment affirmed.

Ray and McMillian, JJ., concur in judgment only.

       OCGA § 19-9-40 et seq.

       OCGA § 19-9-85 provides, in pertinent part, that when registering a foreign custody determination, the trial court must“[s]erve notice upon the persons named... and provide them with an opportunity to contest the registration in accordance with this Code section. ... A hearing to contest the validity of the registered determination must be requested within 20 days after service of notice.” OCGA § 19-9-85 (b) (2), (c) (2).

       OCGA § 19-9-83 provides:
      (a) A court of this state shall recognize and enforce a child custody determination of a court of another state if the latter court exercised jurisdiction in substantial conformity with this article or the determination was made under factual circumstances meeting the jurisdictional standards of this article and the determination has not been modified in accordance with this article.
      (b) A court of this state may utilize any remedy available under other laws of this state to enforce a child custody determination made by a court of another state.
      The remedies provided in this part are cumulative and do not affect the availability of other remedies to enforce a child custody determination.

       The person seeking to challenge the registration of an order under OCGA § 19-9-85 must show, among other things, that the issuing court did not have subject matter jurisdiction when it rendered the custody determination.

       The parties do not dispute that the Georgia court had jurisdiction over the custody of P. W. when its order and amended orders modifying custody were filed on October 16, 2014 and November 17, 2014.

       To the extent that Ward is challenging the Georgia court’s jurisdiction over his person, the defense of lack of personal jurisdiction must be raised before or at the time of pleading, and failure to raise the defense in the answer or by motion filed before or simultaneously with the answer constitutes a waiver of the defense. Whitley v. Hsu, 260 Ga. 539 (397 SE2d 694) (1990). Ward did not challenge the court’s jurisdiction over his person in any of his responsive pleadings. Consequently, the trial court had both subject-matter and personal jurisdiction.

       At the hearing on Ward’s motion for reconsideration, Ward’s attorney testified that following the conversation between the Indiana and Georgia courts on September 30, 2014, after which the Indiana court surrendered jurisdiction, he and Smith’s attorney had agreed that P. W. could be returned the week of the October 7 hearing. However, he conceded that the attorneys did not have the authority to enter into a consensual agreement, without informing the court, that usurped the court’s September 11 order directing Ward to return the child to Georgia.


author: Branch, Judge.

text:
    A15A1176.
    THE HIGBEE COMPANY et al. v. SOLOMON.
    (780 SE2d 490)
   Branch, Judge.

The Higbee Company and its co-defendants appeal a punitive damages judgment entered against them following a jury verdict for plaintiff Damien Solomon in this false imprisonment and malicious prosecution case. The appellants contend that punitive damages were not allowed under OCGA § 51-12-6 because Solomon’s entire injury was to his peace, happiness, or feelings. We agree with the trial court that the appellants waived this challenge, and we affirm.

Solomon was arrested and charged with shoplifting two pairs of jeans from a Dillard’s department store. The charges were eventually nolle prossed for insufficient evidence. Solomon brought a complaint for malicious prosecution, false imprisonment, and punitive damages against The Higbee Company, which owned the Dillard’s store; Securitas Security Services, USA, Inc., which provided security for the store; and two employees of Dillard’s. For convenience, we will refer to the defendants/appellants collectively as “Dillard’s.”

The case proceeded to a bifurcated trial, with the first part focusing on the issues of liability, compensatory damages, and whether the conduct of Dillard’s warranted an award of punitive damages. At the close of the evidence, Dillard’s sought a directed verdict as to Solomon’s claim for punitive damages on the ground that there was insufficient evidence from which the jury could conclude that Dillard’s had acted in bad faith. Notably, Dillard’s did not argue that punitive damages were categorically unavailable as a matter of law. The trial court denied the motion, finding that “ultimately it is going to be up to a jury to decide.”

Following a charge conference, the court instructed the jury on compensatory damages, as follows:

Damages are given as pay or compensation for injury done. When one party is required to pay damages to another, the law seeks to ensure that the damages awarded are fair to both parties. If you believe from a preponderance of the evidence that the Plaintiff is entitled to recover, you should award to the Plaintiff such sums as you believe are reasonable and just in this case. In a tort action in which the entire injury pertains to the peace, happiness, or feelings of the Plaintiff, no measure of damages may be prescribed except the enlightened conscience of impartial jurors. In determining the amount of such damage you would consider all of the facts and circumstances of this case, as disclosed by the evidence, and fix a sum as you think would be reasonable, fair and just.

The court further charged the jury that punitive damages may be warranted in a tort action if the plaintiff proved by clear and convincing evidence that the defendants’ actions showed, among other things, wilful misconduct. Dillard’s did not object to the jury charge on punitive damages.

The jury was given a two-part verdict form. The first part required it either to find for Dillard’s, or to “find for the Plaintiff, and against the Defendant^], and find that Plaintiff has suffered damages in the amount of $_.” The second part, labeled “Punitive Damages,” asked:

Do you, the Jury find by clear and convincing evidence that the Defendants’ conduct showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care that would raise the presumption of conscious indifference to consequences, so that punitive damages should be awarded?

The verdict form did not ask the jury to determine the amount of punitive damages, if any, at that point. Dillard’s agreed to the form.

After deliberating, the jury returned a verdict for Solomon and awarded him $250,000 in compensatory damages. In addition, the jury checked the “yes” box in answer to the question of whether punitive damages should be awarded. The court then excused the jury to discuss with counsel the procedure for the punitive damages phase of the trial. Toward the end of the discussion, counsel for Dillard’s stated: “Inasmuch as the entire damages award to Plaintiff was to his peace and happiness, . . . any award of punitive damages is duplicative and . . . [t]he jury can no longer consider punitives in this case.” Solomon’s attorney conceded that “[t]here are no lost wages or medical bills,” but argued that punitive damages were nevertheless available. The trial court elected to proceed with the second phase of the trial and consider Dillard’s objection later. The jury then heard evidence and argument about the financial circumstances of Dillard’s, after which it returned a punitive damages verdict in the amount of $350,000. Dillard’s orally renewed its objection to the award of punitive damages, but the court reserved ruling.

Dillard’s subsequently filed a written motion for new trial and for j.n.o.v., reiterating its argument that punitive damages were unavailable as a matter of law because Solomon’s entire injury was to his peace, happiness, or feelings. The trial court denied the motion, ruling that although this assessment of Solomon’s injury “may be correct,” Dillard’s had waived its argument by not objecting to the first verdict form and not making the argument until after the jury had already returned a verdict finding that Solomon should be awarded punitive damages. This timely appeal followed.

Dillard’s contends that the trial court erred by denying its motion for j.n.o.v. or new trial because punitive damages were not available here as a matter of law. Dillard’s relies upon OCGA § 51-12-6, which provides:

In a tort action in which the entire injury is to the peace, happiness, or feelings of the plaintiff, no measure of damages can be prescribed except the enlightened consciences of impartial jurors. In such an action, punitive damages under Code Section 51-12-5 or Code Section 51-12-5.1 shall not be awarded.

Thus, where the only injury is to a plaintiff’s peace, happiness, or feelings, punitive damages are not allowed, and evidence of the defendant’s worldly circumstances is not admissible. Holland v. Caviness, 292 Ga. 332, 337 (737 SE2d 669) (2013). Assuming without deciding that Solomon’s entire injury was to his peace, happiness, or feelings, we agree with the trial court that Dillard’s waived its objection to the availability of punitive damages.

“In order to preserve a point of error for the consideration of an appellate court, counsel must take exception to the alleged error at the earliest possible opportunity in the progress of the case by a proper objection made a part of the record.” Womack v. Johnson, 328 Ga. App. 543, 544-545 (1) (762 SE2d 428) (2014) (citation and punctuation omitted; emphasis in original). An objection to a jury charge must be asserted before the jury returns its verdict, or else it is waived. Vaughn v. Protective Ins. Co., 243 Ga. App. 79, 81 (1) (532 SE2d 159) (2000); see also Milum v. Banks, 283 Ga. App. 864, 869 (1) (642 SE2d 892) (2007) (party could not complain on appeal about an issue being submitted to the jury where he did not timely “object to the issue going to the jury”). With respect to the verdict form, “[i]n the absence of a specific and timely objection, a party waives error relating to the manner in which questions are submitted to the jury.” Milum, 283 Ga. App. at 870 (2) (citation and punctuation omitted).

Although Dillard’s moved for a directed verdict on punitive damages at the close of the evidence, the basis for its motion was that there was insufficient evidence that it had acted in bad faith, not that punitive damages were unavailable as a matter of law because Solomon’s entire injury was to his peace, happiness, or feelings. Dillard’s did not object to the proposed punitive damages charge either before or after the trial court gave it. It did not object beforehand to the bifurcated trial procedure required in punitive damages cases. SeeOCGA § 51-12-5.1 (d). And it did not object to the proposed verdict form providing for an award of punitive damages. Instead, Dillard’s waited until after the jury had returned a verdict finding that Solomon should receive punitive damages to protest that such damages were not available. This belated protest was, in essence, a motion for judgment notwithstanding the jury’s verdict that punitive damages were warranted — a motion Dillard’s orally renewed after the jury’s verdict on the amount of punitive damages and eventually submitted in written form.

But a motion for j.n.o.v. must be based on grounds previously raised in a motion for directed verdict. James E. Warren, M.D., P.C. v. Weber & Warren Anesthesia Svcs., 272 Ga. App. 232, 234 (1) (612 SE2d 17) (2005). As noted, Dillard’s did not seek a directed verdict on the ground that punitive damages were unavailable as a matter of law because Solomon’s entire injury was to his peace, happiness, or feelings. Accordingly, it was foreclosed from raising that argument in its subsequent oral and written motions for j.n.o.v., and we cannot consider the argument on appeal. Southern Land Title v. North Ga. Title, 270 Ga. App. 4, 7 (2) (606 SE2d 43) (2004); see also Little v. Chesser, 256 Ga. App. 228, 231-233 (3) (568 SE2d 54) (2002) (defendant waived right to challenge punitive damages award — despite plaintiff’s prior stipulation that such damages were not available — by failing to raise it until after jury returned verdict of punitive damages).

Dillard’s argues that there was no waiver here for several reasons. First, it maintains that Solomon’s punitive damages award constituted a double recovery, and “a claim that a verdict was an impermissible double recovery as a matter of law” cannot be waived. City of Roswell v. Bolton, 271 Ga. App. 1, 8 (5) (608 SE2d 659) (2004) (citations omitted); but see Wolf Camera v. Royter, 253 Ga. App. 254, 260 (2) (558 SE2d 797) (2002) (rejecting defendant’s argument that jury charge on punitive damages in malicious prosecution case led to double recovery because “a defendant cannot complain of a decision to which his conduct contributed”) (citations omitted). This “double recovery” argument assumes that OCGA § 51-12-6 damages forinjury to the plaintiff’s peace, happiness, or feelings are a form of punitive damages. That was true under the former version of the statute, which permitted the jury to consider “the worldly circumstances of the parties” and “the amount of bad faith in the transaction.” Westview Cemetery v. Blanchard, 234 Ga. 540, 544 (2) (B) (216 SE2d 776) (1975) (citations and punctuation omitted). But the current version of OCGA § 51-12-6 does not permit the jury to consider such evidence; thus, the damages awarded thereunder are not punitive in nature. Pampattiwar v. Hinson, 326 Ga. App. 163, 171-173 (3) (756 SE2d 246) (2014). It follows that the jury award in this case did not constitute a double recovery.

Second, Dillard’s contends for the first time in its appellate reply brief that its alternative pleading of its written j.n.o.v. motion as a motion for new trial defeats any waiver argument because “[t]he propriety of a new trial is not dependent on the same grounds being previously raised in a motion for directed verdict.” “[T]his Court will not consider arguments raised for the first time in a reply brief.” Barron v. Wells Fargo Bank, 332 Ga. App. 180, 187 (4) (769 SE2d 830) (2015) (citations omitted). In any event, the contention lacks merit. While arguments concerning the sufficiency of the evidence may be raised in a motion for new trial, and subsequently on appeal, even if the movant did not first seek a directed verdict on that ground, see Aldworth Co. v. England, 281 Ga. 197, 198-201 (2) (637 SE2d 198) (2006), Dillard’s does not ask us to review the sufficiency of the evidence; it asks us to answer the legal question of whether Solomon was categorically foreclosed from an award of punitive damages. Dillard’s could not avoid the requirement of making a timely objection simply by labeling its motion as one for new trial. See Bryan v. Brown Childs Realty Co., 252 Ga. App. 502, 506-507 (2) (556 SE2d 554) (2001) (legal argument in motion for new trial was waived by party’s failure to make contemporaneous objection).

Finally, Dillard’s asserts that the trial court was bound by its prior concession that Dillard’s had preserved its argument that the issue of punitive damages should not have been submitted to the jury. When Dillard’s orally renewed its request for j.n.o.v. after the jury returned its second verdict fixing the amount of punitive damages, the following exchange occurred:

THE COURT: [Tjhat is probably something that needs to be briefed.
[DEFENSE COUNSEL]: Yes, Judge.

Decided November 20, 2015

Webb, Zschunke, Neary & Dikeman, Andrei V. Ionescu; Marvin A. Devlin, for appellants.

James H. Potts II, Anthony M. McGee, for appellee.

THE COURT: And if there is law that says I’m wrong, then I will certainly consider it. I’m not going to grant the motion 9/fc this time
[DEFENSE'COUNSEL]: We reserve the ruling.
THE COURT: You reserved it, preserved it, whatever else you need to do, and you can file whatever ... post-judgment motions that you deem appropriate.

We decline to rule that this passing comment by the trial court, made in the context of her observation that briefing was needed, constituted a final, binding ruling as to whether Dillard’s had waived its argument.

Because Dillard’s waived the argument that it raises on appeal, we affirm the award of punitive damages in this case.

Judgment affirmed.

Andrews, P. J., concurs. Miller, J., concurs in judgment only.

       Solomon initially named Dillard’s as the defendant but later substituted The Higbee Company as the correct party.

       Dillard’s also sought a directed verdict as to Solomon’s underlying claims, but those claims are not at issue in this appeal.

       Although Solomon’s requests to charge were not included in the record, it appears that he asked for the punitive damages charge. There was no discussion of that charge during the charge conference and no indication that Dillard’s contested it then.

       The pre-1987 version of OCGA § 51-12-6 stated:
      In a tort action in which the entire injury is to the peace, happiness, or feelings of the plaintiff, no measure of damages can be prescribed except the enlightened consciences of impartial jurors. In such a case, the worldly circumstances of the parties, the amount of bad faith in the transaction, and all the attendant facts should be weighed; and the verdict of the jury should not be disturbed unless the court suspects bias or prejudice from its excess or its inadequacy.
      See Pampattiwar, 326 Ga. App. at 172 (3) (citation omitted; emphasis in original).


author: Ellington, Presiding Judge. Dillard, Judge,

text:
    A15A1342.
    TYNER v. THE STATE.
    (780 SE2d 494)
   Ellington, Presiding Judge.

A Muscogee County jury found Paul Tyner guilty beyond a reasonable doubt of two counts of rape, OCGA § 16-6-1 (a) (1); two counts of aggravated sodomy, OCGA § 16-6-2 (a) (2); and two counts of burglary, OCGA § 16-7-1. Following the denial of his motion for a new trial, Tyner appeals, contending, inter alia, that he was deprived of his right to counsel at trial. For the reasons explained below, we reverse.

Pertinently to Tyner’s claims of error, the record shows the following. Tyner’s appointed counsel represented him during pretrial proceedings and appeared for him at trial. After the State presented its case-in-chief, Tyner elected to testify in his defense. Both sides rested, and the court then conducted a charge conference. After the State presented its closing argument, Tyner’s counsel advised the court, outside the presence of the jury, that Tyner had decided at that point to defend himself.

The court advised Tyner that the remaining stages of the case were the defense’s closing argument, which would be “the important stage that would entail some active representation on [his] behalf”; the charge of the court to the jury as to the law, when he would have a right to “note any technical objections that [he felt] might exist in it”; and the jury’s deliberations. The court told Tyner that his attorney was prepared to complete the trial, and that he had the right to have his attorney do so, but that he also had the right to represent himself. The court then asked, “What is your election?” Tyner replied, “I would like to do it.” The court asked Tyner’s attorney to remain at the defense table to advise Tyner if requested. Before proceeding, the trial court advised Tyner that he would be bound by the same rules as would apply to counsel. The court emphasized specifically that, during closing argument, Tyner would be limited to discussing the evidence adduced at trial and any logical inferences supported by the evidence and that he could not go outside of the evidence produced at trial.

Tyner immediately ran afoul of the court’s instructions. He started to discuss a Supreme Court holding, and the judge interrupted and advised Tyner that he would instruct the jury regarding the applicable law. The judge again instructed him to confine his argument to “the evidence produced during this trial and the logical deductions.” Tyner next argued to the jury that, at the outset of the investigation, he had been willing “to do anything that [the State] would ask [of him. He] was supposed to have taken a lie detector test.” The State objected, adding that Tyner had applied to take a lie detector test but had withdrawn the application the week before the trial. The court commented that there had been no evidence of a polygraph and reiterated that Tyner was limited in his argument to the evidence produced during the trial and the logical deductions from the evidence.

Tyner continued his argument, complaining that his defense counsel failed to call witnesses he wanted. The judge interrupted, saying:

Now, Mr. Tyner, I’m not going to allow you to sit up there and embarrass the lawyer over there, who the Court knows is a very fine lawyer and very conscientious. I caution you once again, confine your argument to the evidence produced during this trial — none of this [about any defense witnesses] was produced in evidence — and logical deductions from that evidence. . . . [T]here are certain boundaries that you cannot go beyond. So, argue the evidence that was produced during this trial and the logical deductions.

Tyner resumed and quickly drew another objection, when he started talking about what had happened at a pretrial hearing the previous week. The court did not expressly rule on the objection but instructed Tyner again to confine his argument to the evidence and logical deductions. The judge added, “I was present at that hearing [the previous week], . . . Regardless of what did or didn’t happen last Friday, you must argue what happened during this trial this week. So, confine your argument to that.”

Frustrated, Tyner said to the court,

I keep making these mistakes. I will just let him ... Is it okay that the lawyer just go on and argue, because I don’t quite understand where you are coming from. It would be all right with me if the lawyer... would just take over from here, because ... I keep making these mistakes.

The court denied Tyner’s request to allow his defense counsel to resume his representation of him. The court said, “the defense is entitled to [only] one argument.... I can’t let you toy with the court; you get up and say you want to make the argument and then you say you want your lawyer to make the argument.” The court stated:

[Y]ou can continue your argument. The court will correct the mistakes [you make], and I will be [more] tolerant with you than I would with your lawyer in [the case].... Any mistake[s] you make, the court will correct them. I just must keep cautioning you that the argument must be confined to evidence introduced during the trial and logical deductions. You can’t go into other evidence and testimony and so forth that might or might not have been admissible, because the jury didn’t hear it.

As Tyner continued his argument, he repeatedly drew objections from the State and admonitions from the court for improper argument.

After the jury found Tyner guilty of all charges, the trial court immediately held the sentencing hearing. Tyner offered no evidence or argument in regard to sentencing. Expressing regret that the Supreme Court of the United States had “made a mistake when [it] abolished the death penalty” for rape cases, which caused the Georgia General Assembly to amend the Code, the trial court sentenced Tyner to the maximum period of imprisonment for each offense, with the sentences as to charges relating to one victim to run concurrently and the sentences as to the second victim to run consecutively.

1. Tyner contends that the trial court erred in requiring him, after he wished to withdraw his waiver of counsel, to proceed pro se during the remainder of closing argument and during reception of the verdict and sentencing.

It is well settled that

[c]riminal defendants are guaranteed the rights to both counsel and self-representation under the federal and state Constitutions. ... If a defendant makes an unequivocal assertion of his right to represent himself prior to trial, the request should be followed by a Faretta\] hearing to ensure that the defendant knowingly and intelligently waives the right to counsel and understands the disadvantages of self-representation.

(Citations and punctuation omitted.) Thomas v. State, 331 Ga. App. 641, 657-658 (7) (771 SE2d 255) (2015). Although “[a] defendant cannot frivolously change his mind in midstream” by asserting his right to self-representation in the middle of his trial, a trial court may allow a defendant to assume self-representation midstream if it finds that the waiver of the right to counsel is knowing and voluntary. (Citation and punctuation omitted.) Preston v. State, 257 Ga. 42, 44-45 (3) (354 SE2d 135) (1987). See also Thaxton v. State, 260 Ga. 141, 142 (2) (390 SE2d 841) (1990) (accord).

Assuming a defendant’s waiver of his right to counsel is proper, that right, once waived, is no longer absolute. Wilkerson v. State, 286 Ga. 201, 204 (2) (b) (686 SE2d 648) (2009).

The right to counsel, however, does not evaporate following a valid waiver, and a defendant may make a post-waiver request for counsel if, for example, he discovers he is overwhelmed by the trial process. Whether to grant or deny a defendant’s post-waiver request for counsel is within the broad discretion of the trial court. In considering a post-waiver request for counsel, a trial court may consider, among other things, the timing of the request. As the trial date draws nearer, the trial court can and should consider the practical concerns of managing its docket and the impact that a request may have on its general responsibilities for the prudent administration of justice. The possibility of a disruption of trial proceedings may be diminished, however, if a defendant has had standby counsel and requests that the standby counsel represent him. If an examination of the record reveals that a trial court has abused its discretion in denying a post-waiver request for counsel during trial, it is a structural Sixth Amendment violation, and is not subject to a harmless error analysis on direct appeal.

(Citations and punctuation omitted.) Id.

Pretermitting whether the trial court properly acceded to Tyner’s desire to waive his right to counsel just after the State’s closing argument, the record shows that he very quickly discovered that he was overwhelmed by the demands of self-representation, and he asserted a post-waiver request for counsel within minutes of being allowed to represent himself. The record does not show that the request had any impact on the trial court’s ability to manage its docket or on its general responsibilities for the prudent administration of justice. Nor does the record show any significant disruption of the trial, given that only a few minutes had passed and that counsel had an argument prepared and was standing by and ready to proceed. The record does not show that the trial court weighed the negligible cost of granting Tyner’s request to withdraw his waiver of his right to counsel against any identified benefit of denying his request, other than preventing him from “toy [ing] with the court.” We conclude that, under the circumstances, the trial court’s insistence that Tyner continue pro se was unjustified, given that closing argument, receiving the verdict, and sentencing are critical stages of the trial. Because our examination of the record reveals that the trial court abused its discretion in denying Tyner’s post-waiver request for counsel during trial, it is a structural Sixth Amendment violation that requires reversal. United States v. Gonzalez-Lopez, 548 U. S. 140, 148-150 (III) (126 SCt 2557, 165 LE2d 409) (2006); Wilkerson v. State, 286 Ga. at 204 (2) (b); Thomas v. State, 331 Ga. App. at 658 (7).

We must reject the State’s argument that, “[e]ven where a court’s decision to allow a defendant to act pro-se is found to be in error, it can be harmless error when it is unlikely that appellant’s convictions were attributable to his decision to represent himself [,]” citing McCook v. State, 178 Ga. App. 276 (342 SE2d 757) (1986). Pretermitting whether Tyner’s convictions were attributable to his decision to represent himself, we are precluded from engaging in a harmless-error analysis' as proposed by the State when, as in this case, we are presented with a structural error. Thomas v. State, 331 Ga. App. at 641. Tyner’s convictions must be reversed.

2. In light of our holding in Division 1, supra, Tyner’s remaining claim of error is moot.

Judgment reversed.

Barnes, P. J., Phipps, P. J., McFadden and McMillian, JJ., concur. Dillard and Ray, JJ., dissent.

Dillard, Judge,

dissenting.

Following his convictions on two counts each of rape, aggravated sodomy, and burglary, Paul Tyner appeals, arguing that the trial court erred in allowing him to waive his right to counsel and proceed pro se just prior to closing argument, denying his subsequent request to withdraw his waiver of counsel, and in improperly expressing its opinion on the evidence. Pretermitting his initial argument, the majority agrees that the trial court should have allowed Tyner to withdraw his waiver of counsel and, therefore, reverses his convictions. However, I disagree that the trial court abused its discretion in denying Tyner’s request to withdraw his waiver of counsel. Accordingly, I respectfully dissent.

In this matter, after the State presented its closing argument, Tyner’s counsel advised the trial court that Tyner now wanted to proceed pro se for the remainder of the trial. The court then explained what the remainder of the trial would entail and that Tyner, indeed, had the right to represent himself. Thereafter, the court asked Tyner how he wanted to proceed, and Tyner chose to proceed pro se. The court then instructed defense counsel to remain and advise Tyner if he so requested. And subsequently, the court informed Tyner that during closing argument, he would be bound by the same rules applicable to counsel and limited to discussing evidence adduced at trial and any inferences supported by such evidence.

But, as the majority notes, almost immediately, Tyner violated the court’s instructions and began discussing a Supreme Court holding and evidence outside of the trial record. The State objected, and the trial court reminded Tyner to confine his argument to “the evidence produced during this trial and the logical deductions.” Upon resuming his argument, Tyner began discussing his defense counsel’s alleged deficiencies but was instructed by the court to cease from doing so. After attempting to continue his argument and again drawing an objection from the State, and yet another admonishment from the court that he limit his argument to matters in evidence, Tyner acknowledged his mistakes and asked the court if defense counsel could resume his representation of him. But the court denied his request, stating “the defense is entitled to one argument____I can’t let you toy with the court; you get up and say you want to make the argument and then you say you want your lawyer to make the argument.” Consequently, Tyner continued his closing argument, which drew multiple objections from the State and rebukes from the trial court. And at the trial’s conclusion, the jury found Tyner guilty of all charges.

Tyner now argues, and the majority agrees, that the trial court erred in denying his post-waiver request for counsel. However, I do not agree that the court’s ruling in this regard constituted an abuse of discretion.

Once a defendant properly waives his Sixth Amendment right to counsel, “that right is no longer absolute.” But the right to counsel does not evaporate following a valid waiver, and a defendant “may make a post-waiver request for counsel if, for example, he discovers he is overwhelmed by the trial process.” Importantly, whether to grant or deny a defendant’s post-waiver request for counsel is “within the broad discretion of the trial court.” Furthermore, in considering a post-waiver request for counsel, a trial court “may consider, among other things, the timing of the request.” And as the trial date draws nearer, the trial court “can and should consider the practical concerns of managing its docket and the impact that a request may have on its general responsibilities for the prudent administration of justice.”

Decided November 20, 2015.

James C. Bonner, Jr., for appellant.

Julia F. Slater, District Attorney, Robert B. Bickerstaff II, Assistant District Attorney, for appellee.

Here, although Tyner’s post-waiver request for his counsel to resume representing him was unlikely to cause significant disruption of the trial, this Court has previously held that a trial court’s refusal to countenance this type of hybrid representation does not constitute an abuse of discretion. Thus, because Tyner had already begun his closing argument, regardless of its efficacy, the trial court did not abuse its discretion by refusing to allow Tyner to withdraw his prior waiver of counsel.

For all of the foregoing reasons, I respectfully dissent.

I am authorized to state that Judge Ray joins in this dissent.

       The offenses occurred on July 25, 1981. Tyner was tried on September 22 and 23, 1981. Nearly 35 years later, the trial court determined that Tyner had been deprived of the right to counsel on appeal and, on February 13, 2014, granted him leave to file an out-of-time appeal.

       See Faretta v. California, 422 U. S. 806, 835 (V) (95 SCt 2525, 45 LE2d 562) (1975) (“Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that he knows what he is doing and his choice is made with eyes open.”) (citation and punctuation omitted); see also Danenberg v. State, 291 Ga. 439, 440 (2) (729 SE2d 315) (2012) (“The pre-trial unequivocal declaration of a defendant that he wishes to represent himself must be followed by a hearing at which it is determined that the defendant knowingly and intelligently waives the traditional benefits associated with the right to counsel”) (citation and punctuation omitted); Clarke v. Zant, 247 Ga. 194, 195-196 (275 SE2d 49) (1981) (accord).

       In order to determine whether a defendant’s decision to waive the right to counsel is knowing and voluntary, “a trial judge must investigate as long and as thoroughly as the circumstances of the case before him demand.” (Citation and punctuation omitted.) Kirkland v. State, 202 Ga. App. 356, 357 (1) (414 SE2d 502) (1991). “When determining whether there has been an informed and intelligent waiver of such a right, each case must he determined upon its own peculiar facts and circumstance.” (Citations and punctuation omitted.) Rutledge v. State, 224 Ga. App. 666, 669 (3) (482 SE2d 403) (1997). To facilitate appellate review, the trial court should make an express finding on the record that the defendant has validly chosen to proceed pro se and should ensure that the record reflects that the defendant’s choice was made after the defendant was made aware of his right to counsel and the dangers of proceeding without counsel. Clarke v. Zant, 247 Ga. at 197.

       See United States v. Gonzalez-Lopez, 548 U. S. 140, 148-150 (III) (126 SCt 2557, 165 LE2d 409) (2006) (Some “constitutional error[s are deemed] ‘structural defects.’ These defy analysis by harmless-error standards because they affect the framework within which the trial proceeds, and are not simply an error in the trial process itself.... [E]rroneous deprivation of the right to counsel of choice, with consequences that are necessarily unquantifiable and indeterminate, unquestionably qualifies as structural error[.] ... In light of [the] myriad aspects of representation, the erroneous denial of counsel bears directly on the framework within which the trial proceeds____It is impossible to know what different choices the rejected counsel would have made, and then to quantify the impact of those different choices on the outcome of the proceedings____Harmless-error analysis in such a context would be a speculative inquiry into what might have occurred in an alternate universe” and is not permitted.) (citations and punctuation omitted); see also Thomas v. State, 331 Ga. App. at 658 (7) (Deprivation of the right to self-representation is structural error, i.e., error that requires automatic reversal.).

       We disagree with the dissent that Tyner was seeking a hybrid form of representation. See, e.g., Horne v. State, 318 Ga. App. 484, 496 (8) (733 SE2d 487) (2012) (“The Sixth Amendment right does not afford the defendant the hybrid right to simultaneously represent himself and be represented by counsel. A pro se motion filed by a convicted defendant while represented by counsel is unauthorized and without effect.”) (citation and punctuation omitted). Tyner was represented by counsel, waived his right to counsel and began acting pro se, and, after a few minutes of self-representation, asked to withdraw his waiver of his right to counsel and return to being represented.

       [A defendant’s] right to counsel attaches once judicial proceedings have been initiated against him[,] and the accused is entitled to the representation of an attorney at all critical stages thereafter through an initial appeal. A critical stage in a criminal prosecution is one in which a defendant’s rights may be lost, defenses waived, privileges claimed or waived, or one in which the outcome of the case is substantially affected in some other way.
      (Citations and punctuation omitted.) Adams v. State, 199 Ga. App. 541, 543 (2) (405 SE2d 537) (1991). See Gilreath v. State, 247 Ga. 814, 824 (3) (279 SE2d 650) (1981) (argument of counsel and receiving the verdict are critical stages of a criminal trial); Armstrong v. State, 298 Ga. App. 855, 861 (2) (681 SE2d 662) (2009) (imposing sentence is a critical stage of a criminal trial).

       We note that our opinion in McCook v. State has no precedential value as one member of the three-judge panel concurred in the judgment only. 178 Ga. App. at 278. See Court of Appeals Rule 33 (a); Williams v. State, 329 Ga. App. 650, 653, n. 1 (766 SE2d 82) (2014). At any rate,
        McCook v. State would not be controlling in this case, as it did not involve a defendant’s post-waiver request for counsel during trial. 178 Ga. App. at 277. Rather, in that case, after the defendant asserted his right to self-representation and represented himself throughout the trial, he raised the issue whether the trial court erred in failing to determine his waiver of the right to counsel was intelligent and competent only on appeal. Accordingly, this case presents no basis for overruling or disapproving McCook v. State. In our review, our decisions that followed McCook v. State on this point likewise do not involve a denial of a defendant’s post-waiver request for counsel during trial. See Rutledge v. State, 224 Ga. App. at 670-671 (3) (finding no error in allowing defendant to represent himself and stating, in obiter dictum, that any such error would have been harmless; no post-waiver request for counsel); Kitchens v. State, 198 Ga. App. 284, 285 (1) (401 SE2d 552) (1991) (same). See also Lazenby v. State, 181 Ga. App. 854, 854-855 (1) (354 SE2d 196) (1987) (the court allowed the defendant to consult with counsel during the portion of the trial when he represented himself and then tacitly granted a post-waiver request for counsel by allowing the defendant to have his attorney conduct the defense, the cross-examination of rebuttal testimony, and the closing argument portion of the case).

        Wilkerson v. State, 286 Ga. 201, 204 (2) (b) (686 SE2d 648) (2009).

        Id.

        Id.

        Id.

        Id. (punctuation omitted).

        See Davis v. State, 304 Ga. App. 355, 362 (3) (696 SE2d 381) (2010) (holding that trial court’s refusal to allow defendant’s standby counsel to take over the cross-examination of a witness already begun by defendant acting pro se did not constitute an abuse of discretion); see generally Schwindler v. State, 254 Ga. App. 579, 588 (9) (563 SE2d 154) (2002) (noting that a defendant has no right to hybrid representation of acting pro se and having appointed counsel).

        See id.