text:
    A16A0259.
    COHEN et al. v. ROGERS.
    (789 SE2d 352)
   BARNES, Presiding Judge.

We granted this interlocutory appeal to consider whether the Cobb County trial court erred in granting the plaintiff’s motion to disqualify two of the defendant’s lawyers in this civil suit. The trial court based its disqualification order on several grounds, and the lawyers argue on appeal that the trial court abused its discretion. For the reasons that follow, we find no abuse of discretion in the trial court’s disqualification order and affirm.

Until the trial court disqualified them in June 2015, attorneys David Cohen and John Butters had represented Mye Brooke Brindle for three years in a complex series of lawsuits between Brindle and her former employer, Joseph Rogers, Jr. In September 2012, Rogers sued Brindle, his former housekeeper, in Cobb County, asking the court to take possession and enjoin the dissemination of a video recording Brindle had made of a sexual encounter between herself and Rogers without Rogers’ consent or knowledge (“Cobb 1”). The complaint also included counts alleging invasion of privacy and intentional infliction of emotional distress because of the recording, and a count alleging that Brindle was unjustly enriched by working fewer than the number of hours for which she had been paid. In addition to general damages, Rogers sought the disgorgement of any excess payments Brindle received, punitive damages, and attorney fees. Brindle answered and counterclaimed for battery, intentional infliction of emotional distress, and breach of mediation confidentiality, among other things, seeking general damages, punitive damages, and attorney fees.

The parties commenced discovery. Brindle objected to three interrogatories and several deposition questions on the basis that certain information sought about the decision to make the video recording was protected by the attorney-client privilege, and in February 2013, Rogers filed a motion to compel her to respond to discovery During a hearing on April 26, 2013, the trial court heard argument on several motions, including Rogers’ motion to compel, which it took under advisement. After further briefing, on May 16, 2013, the trial court issued an order directing Brindle to appear in court “to be examined by the Court under oath about the circumstances surrounding the video and audio recordings in this case,” so the court could determine whether the crime-fraud exception to the attorney-client privilege applied. That hearing took place on May 21, 2013, with Brindle’s lawyers present, and the trial court ordered that the transcript be sealed.

On June 14, 2013, the trial court granted Rogers’ motion to compel, finding Brindle’s attorney-client privilege was waived as to certain questions. Before making its ruling, the trial court viewed the impounded video and several audio recordings of Brindle and Rogers, and considered the testimony Brindle presented during the closed crime-fraud hearing and in deposition. The court reviewed the case law, under which the attorney-client privilege may be waived if a prima facie case is made that the communication was made to plan or further illegal or fraudulent activity, citing Rose v. Commercial Factors of Atlanta, 262 Ga. App. 528 (586 SE2d 41) (2003). The court then found that Brindle had violated OCGA § 16-11-62 by video-recording Rogers without his knowledge, and that a prima facie showing had been made that Brindle had been planning to make the video recording when she sought the advice of counsel, thus waiving her attorney-client privilege as to certain issues. The trial court ordered Brindle to respond to three specific interrogatories and allowed Rogers one hour to retake Brindle’s deposition to “ask only questions limited to 1) where and from whom the recording device was obtained; 2) under what circumstances the recording device was obtained; and 3) who else besides [Brindle] was involved in planning the video recording.” Four days later, on June 18, 2013, Rogers filed an emergency motion to disqualify Butters and Cohen as Brindle’s counsel and to stay all discovery not pertinent to the discovery allowed in the June 14, 2013 order.

On June 19, 2013, the trial court granted Brindle’s application for a certificate of immediate review of the discovery order and stayed all action in the case. In July 2013, this Court granted Brindle’s application for an interlocutory appeal. The case was docketed in this court in late November 2013.

In May 2014, while the proceedings in Cobb 1 were stayed during Brindle’s appeal of the trial court’s discovery order, Rogers filed a second suit in Cobb County against Cohen, Butters, and Hylton B. Dupree, Jr., who also represented Brindle, as well as the attorneys’ business entities and five unknown individuals and corporations (“Cobb 2”). Rogers sought damages for alleged torts related to the video recording and accused the attorneys of having committed criminal actions related to Brindle having recorded herself and Rogers, and related to the attorneys’ actions during the litigation in Cobb 1. Cobb 2 was assigned to the same trial judge as Cobb 1.

In July 2014, we affirmed the trial court’s discovery order in Cobb 1 in an unpublished opinion, finding no abuse of discretion. Brindle v. Rogers, 328 Ga. App. XXIV (Case No. A14A0676) (2014). Brindle then filed a petition for a writ of certiorari to the Supreme Court of Georgia in Cobb 1. The Supreme Court of Georgia denied Brindle’s petition for certiorari in February 2015, and Cobb 1 was returned to the trial court on March 13, 2015.

On March 31, 2015, the trial court lifted the stay it had imposed in Cobb 1 while the case was on appeal. On April 9, 2015, the defendants in both Cobb 1 and Cobb 2 (Brindle, Cohen, Butters, and Dupree) filed a joint motion to stay both proceedings. They argued that Georgia’s Anti-Strategic Lawsuit against Public Participation (anti-SLAPP) statute, OCGA § 9-11-11.1 (d), imposed an automatic stay on Cobb 2 until the court ruled on anti-SLAPP motions to dismiss. They further argued that the proceedings in Cobb 1 should be stayed until the trial court ruled on the motions to dismiss in Cobb 2 so the attorneys would not be required to act simultaneously as Brindle’s representative and as defendants.

On April 10, 2015, Brindle filed an “interim response to pending motions,” noting that her motions to stay in Cobb 1 and Cobb 2 were under consideration by the court, but apparently could not be ruled on immediately Brindle further stated that she was not ignoring the motions pending before the court, including the motion to disqualify, but that “the current procedural posture of the two cases has the Court requiring counsel to defend” Brindle while also defending themselves. Rogers replied, arguing that the only pending motion in Cobb 1 to which Brindle had not responded was his June 2013 motion to disqualify Brindle’s lawyers.

The trial court scheduled a status conference on May 19, 2015, and on May 18, 2015, Rogers filed a 181-page bench brief in Cobb 1 discussing his pending discovery motions and other issues. The trial court began the status conference hearing by noting that the parties had two cases ongoing at the same time, both of which had a number of pending motions, and offered to hear from the parties on any matters and to discuss issues related to limited discovery in Cobb 2.

Butters stated that he and Dupree were present in their dual capacities as defendants in Cobb 2 and as counsel for Brindle in Cobb 1 (Cohen was not at the hearing), and reiterated that the defendants had filed a joint motion to stay both cases. Butters asked the court to stay the proceedings in Cobb 1 until the defendant attorneys’ motion to dismiss under the anti-SLAPP statute had been resolved in Cobb 2. However, Rogers objected to staying Cobb 1, arguing that Brindle was in contempt for not responding to Rogers’ discovery within ten days as the trial court had previously directed in its June 2013 order granting Rogers’ motion to compel, a ruling affirmed on appeal. Rogers further argued that the attorneys’ conflict in representing Brindle in Cobb 1 was independent of their conflict as defendants in Cobb 2 and also argued the merits of his disqualification motion.

Butters as counsel for Brindle in Cobb 1 replied that Rogers’ motion to disqualify had not been calendared to be heard during the status conference and he was not prepared to argue it, but that Brindle stood ready to comply with the trial court’s two-year-old discovery order now that the court had lifted the stay. Butters pointed out that while the proceedings in Cobb 1 had been stayed, Rogers filed Cobb 2 against Brindle’s lawyers, and while the stay in Cobb 1 had been lifted, the proceedings in Cobb 2 were currently stayed until the trial court resolved the lawyers’ motions to dismiss under the anti-SLAPP statute. Brindle asked the court to also stay the discovery in Cobb 1 until the motion in Cobb 2 was decided.

Rogers responded that the trial court had lifted its stay in Cobb 1 on March 31, 2015. Therefore, he argued, as of the May 19, 2015 hearing, Brindle stood in contempt for failing to comply with the trial court’s now-active order from two years ago, which directed her to supplement her discovery responses within ten days.

Regarding Rogers’ contempt claim, the trial court observed during the hearing:

In fairness, we are sort of in unchartered [sic] waters [.] When I wrote that order I certainly didn’t know I was going to have a subsequently filed lawsuit where the lawyers were going to be on the other side of the v. there. So Ms. Brindle is in a situation because of the conflicts that you mentioned earlier. And so I don’t know. I’m going to have to do something on the conflict. I’m not going to hold Ms. Brindle in contempt for not responding within ten days because this is a little different.

The trial court told the hearing participants that it would give Brindle a new deadline, after it decided what to do regarding the disqualification motion, but agreed with Rogers that Cohen and Butters as counsel in Cobb 1 were “separate and distinct from the anti-SLAPP And they don’t live and die with my ruling on the anti-SLAPP suit. . . . [T]hey could be witnesses. They could be co-defendants. There are just lots of different issues there.”

The parties then discussed other issues before the court. The trial court concluded the hearing by stating that the matters would be under advisement, and scheduled a time for the parties to hold depositions in the court’s jury room for Cobb 2.

The next pleading in the appellate record subsequent to the hearing on May 19, 2015, is the trial court’s June 5, 2015 order granting Rogers’ motion to disqualify Cohen and Butters from serving as Brindle’s counsel in Cobb 1. The trial court found that Cohen and Butters were necessary witnesses in Cobb 1 and necessary witnesses and defendants in Cobb 2; that their testimony was relevant to questions about the video recording device and to whom besides Brindle had planned the recording; and that their testimony could contradict Brindle’s testimony during the crime-fraud hearing. The trial court also found that Cohen and Butters had a conflict of interest in representing Brindle because the court could foresee a situation where Brindle, Cohen, and Butters were pointing fingers at each other about the planning of the video. The court found a “substantial probability” that competing interests might hinder the attorneys’ independent professional judgment, rendering the conflict unwaivable. Finally, the trial court found that, due to the circumstances, the conflict was not waivable under Georgia Rules of Professional Conduct, Rule 1.7 (c).

The trial court subsequently granted Brindle’s application for a certificate of immediate review, staying all actions in Cobb 1 pursuant to the disqualification order. This court granted Brindle’s application for an interlocutory appeal on July 21, 2015, Brindle filed a notice of appeal, and the case was docketed in this court on October 5, 2015.

Cohen and Butters argue on appeal that the trial court abused its discretion in granting Rogers’ motion to disqualify them as counsel in Cobb 1, enumerating five errors. Rogers responds that under the law of the case rule, the factual issue of whether the video recording was a criminal violation has been decided already in this Court’s unpublished opinion affirming the trial court’s discovery order finding that the attorney-client privilege was waived. He further argues that Cohen and Butters waived any arguments that were not raised and ruled on in the trial court, and that they conceded the merits of the motion to disqualify by failing to file a responsive brief.

1. First, the trial court’s interim discovery order in Cobb 1 did not adjudicate dispositively the question of whether Brindle violated a criminal statute by making the video recording of herself and Rogers. The trial court made an interim discovery ruling granting Rogers’ motion to compel discovery responses and finding that Brindle could not claim the attorney-client privilege with regard to the limited, specific areas outlined previously. In that June 2013 order, the trial court specifically held that “the crime-fraud exception does not require proof of the existence of a crime or fraud to overcome the claim that communication is privileged,” but only that a prima facie case be made that the exception applied. The court further explicitly stated that it was not determining “whether or not [Brindle] has committed a crime beyond a reasonable doubt or whether the State could disprove any defenses she may assert” in the future, made “no findings as to Cohen’s and Butter’s involvement” in making the recording, and decided only that “discovery may be had on that issue.”

The crime-fraud exception does not require proof of the existence of a crime or fraud to overcome the claim that a communication is privileged. Rather, its applicability depends upon whether a prima facie case has been made that the communication was made in furtherance of an illegal or fraudulent activity.

Rose, 262 Ga. App. at 529. See St. Simons Waterfront v. Hunter, Maclean, Exley & Dunn, 293 Ga. 419, 427 (4) (746 SE2d 98) (2013). (“[T]o the extent there is an allegation that in-house counsel has been employed by firm attorneys in an effort to defraud rather than merely defend against a client, the [attorney-client] privilege maybe waived.”) (emphasis supplied). “Prima facie evidence is that which, on its face, is good and sufficient to establish a given fact, though it can ultimately be rebutted or contradicted.” Rose, 262 Ga. App. at 529-530.

“Aprima facie presumption casts upon the person against whom it is applied the duty of going forward with his evidence on the particular point to which the presumption relates.” (Emphasis in original.) Western & Atlantic Railroad v. Henderson, 279 U. S. 639, 642 (49 SCt 445, 73 LE 884) (1929). “The law defines the nature and amount of the evidence which it deems sufficient to establish a prima facie case, and to throw the burden of proof on the other party; and if no opposing evidence is offered, the jury are bound to find in favor of the presumption.” (Citation and punctuation omitted.) Alabama Great Southern R. Co. v. Hamby, 56 Ga. App. 215, 219 (192 SE 467) (1937) (Stephens, P. J., concurring specially). “In case of a legal presumption, the law does the reasoning and draws the inference.... [S]uch a presumption is only prima facie true and may be rebutted[.]” Goode v. Tuggle, 52 Ga. App. 510, 513 (183 SE 850) (1936).

Here, the trial court’s factual finding made in support of the June 2013 discovery order, which was affirmed by this court, was not a final, binding, evidentiary determination of a dispositive issue. “[L]ike any other legal presumption, it may be rebutted by the facts of the case.” Rawson v. Davis, 36 Ga. 511, 515 (1867).

Only prima facie evidence was required for the trial court to permit limited discovery because of an exception to the attorney-client privilege. It was that discovery ruling that this court affirmed in the unpublished opinion issued in Brindle, 328 Ga. App. XXIV (Case No. A14A0676). That affirmance rendered the trial court’s findings about the video recording Brindle took of the sexual encounter between herself and her employer Rogers the law of the case as to whether the attorney-client privilege could be pierced during discovery, and nothing more. The trial court’s factual finding made in support of this interim discovery order does not and cannot translate into a final, binding, evidentiary determination of a dispositive issue.

Furthermore, while the “law of the case rule” used to apply to any rulings in a case, it has been formally abolished as to trial court rulings, although appellate rulings remain binding in all subsequent proceedings, OCGA § 9-11-60 (h); Continental Corp. v. Dept. of Transp., 185 Ga. App. 792, 793 (1) (366 SE2d 160) (1988), unless the eviden-tiary posture of the case changes. May v. Macioce, 200 Ga. App. 542, 544 (2) (409 SE2d 45) (1991).

[T]he phrase, “law of the case,” as applied to the effect of previous orders on the later action of the court rendering them in the same case, merely expresses the practice of courts generally to refuse to reopen what has been decided. Thus, if subsequent to an appellate decision, the evidentiary posture of the case changes in the trial court, the law of the case rule does not limit or negate the effect that such change would otherwise mandate.

(Citation and punctuation omitted.) Modern Roofing & Metal Works v. Owen, 174 Ga. App. 875, 875-876 (1) (332 SE2d 14) (1985). “Aninter-locutory judgment of a trial judge . . . , affirmed by this court, is not res judicata unless it was based solely upon a question of law. If based upon law and evidence, it is not binding at the final trial unless the proof is then substantially the same as at the interlocutory hearing.” Collins v. Carr, 116 Ga. 39 (1) (42 SE 373) (1902) (syllabus by the Court).

The “evidentiary posture” exception remains well-recognized in the one post-CPA civil context where the law of the case doctrine still strictly applies, notwithstanding the unqualified language of OCGA § 9-11-60 (h) that “any ruling by the Supreme Court or the Court of Appeals in a case shall be binding in all subsequent proceedings in that case in the lower court.” See, e.g., IH Riverdale, LLC v. McChesney Capital Partners, LLC, 292 Ga. App. 841, 843 (666 SE2d 8) (2008) (“An exception exists where the evidentiary posture of the case changes in the trial court after the appellate court decision.”).

Moon v. State, 287 Ga. 304, 309 (2) (696 SE2d 55) (2010) (Nahmias, J„ concurring specially) (contrasting civil rule with rule in criminal cases, where a trial court’s inherent power to revoke interlocutory rulings ceases when the term ends). While Rogers argues that no additional evidence was taken after this court’s previous opinion affirming the trial court’s discovery ruling and the trial court’s later disqualification ruling, the evidentiary posture changes “when a new issue not previously addressed by an appellate court is properly raised.” Lowman v. Advanced Drainage System, 228 Ga. App. 182, 183-184 (491 SE2d 427) (1997).

Disqualification is an issue different from discovery, with different standards. In contrast to the prima facie finding necessary to compel discovery in the face of an attorney-client privilege, there must be proof of an actual impropriety to disqualify an attorney from representing a client. See Blumenfeld v. Borenstein, 247 Ga. 406, 408 (276 SE2d 607) (1981) (reversing disqualification based solely on marital status, holding, “The mere fact that the public may perceive some conduct as improper is, without some actual impropriety, insufficient justification for interference with a client’s right to counsel of choice.”).

2. As to the disqualification order on appeal in this case, Butters and Cohen argue that the trial court erred in disqualifying them because Rogers lacked standing to seek their disqualification; because they were not necessary witnesses; because no current actual conflict exists; because Brindle has waived any potential conflict; andbecause the automatic stay provisions of the anti-SLAPP statute applicable in Cobb 2 should have also applied to stay the proceedings in Cobb 1. While Brindle argues the trial court gave her no opportunity to respond to the disqualification motion after it lifted the stay on March 31, 2015, and before the court issued the disqualification order on June 9, 2015, we disagree. Instead of replying to the motion, Brindle chose instead to rely on her April 9, 2015 motion to stay. One of the arguments Brindle made in her motion to stay was that her lawyers were stymied by prohibitions against their acting as both counsel in this case and as defendants in Cobb 2. The trial court resolved this conflict between the lawyers’ status as counsel and their status as defendants by granting the motion to disqualify them as counsel in this case, and we cannot fault the court for choosing the order of determination.

Rogers also argues that by failing to file a direct response to the motion to disqualify, Cohen and Butters conceded the merits of his motion. We disagree that the absence of a response constitutes such a complete concession to the merits of Rogers’ motion for disqualification. That Brindle disputed the motion to disqualify is apparent from reviewing the record, including Brindle’s motion to stay the proceedings, her interim response to the pending motion to disqualify seeking the court’s guidance on how to proceed, and the transcript of the May 2015 status conference. Were it otherwise, we would simply decide that the issue had been decided by default.

Just as “[t]here is no such thing as a default summary judgment,” Smith v. Atlantic Mut. Cos., 283 Ga. App. 349, 351 (1) (641 SE2d 586) (2007) (citation and punctuation omitted), there is no such thing as a default attorney disqualification. Motions for summary judgment are not automatically granted if the other side fails to respond, because such a motion “should not be granted unless it affirmatively appears from the pleadings and evidence that the party so moving is entitled to prevail.” (Punctuation and footnote omitted.) Houghton v. Sacor Financial, 337 Ga. App. 254, 259 (1) (b) (ii) (786 SE2d 903) (2016). See also Hall v. Massally, 329 Ga. App. 136, 138 (1) (764 SE2d 161) (2014) (“The failure of a nonmoving party to file responsive material... does not automatically entitle the moving party to judgment for there is no such thing as a default summary judgment. To affirm a grant of summary judgment, it must affirmatively appear from the record that no question of material fact exists and the moving party is entitled to judgment as a matter of law.”) (citations and punctuation omitted). We see no reason for applying a different rule in the context of a motion to disqualify filed by an opposing party.

We will therefore apply the proper standard of review in this case and consider whether the trial court abused its discretion in granting Rogers’ motion to disqualify Cohen and Butters from representing Brindle in light of the evidence of record, rather than hold that the issue was correctly decided by default.

3. The proper standard for appellate review of a trial court’s grant of a motion to disqualify a party’s attorney is abuse of discretion. Cardinal Robotics v. Moody, 287 Ga. 18, 22 (694 SE2d 346) (2010). We approach these motions “with caution due to the consequences that could result if the motion is granted, such as the inevitable delay of the proceedings and the unique hardship on the client including the loss of time, money, choice of counsel, and specialized knowledge of the disqualified attorney.” Hodge v. URFA-Sexton, 295 Ga. 136, 138 (1) (758 SE2d 314) (2014). “In other words, lawyers are not fungible[.]” Lewis v. State, 312 Ga. App. 275, 280 (1), n. 8 (718 SE2d 112) (2011).

Because opposing counsel may employ a motion to disqualify to delay the proceedings or disrupt a case, “we view disqualification as an extraordinary remedy that should be granted sparingly” Hodge, 295 Ga. at 139 (1). See Reece v. United Home Care of N. Atlanta, 2014 U. S. Dist. LEXIS 61196 at *5 (N.D. Ga. May 2, 2014) (“Motions to dismiss brought by opposing counsel are automatically viewed with circumspection.”). Further, there must be an actual impropriety, not simply the appearance of impropriety, to warrant disqualification. Blumenfeld, 247 Ga. at 408.

Opposing counsel may raise the disqualification issue if “the conflict is such as clearly to call into question the fair or efficient administration of justice,” although such an objection “should be viewed with caution for it can be misused as a technique of harassment.” (Citation and punctuation omitted.) Bernocchi v. Forcucci, 279 Ga. 460, 463 (2) (614 SE2d 775) (2005). See Comment 15 to Georgia Rules of Professional Conduct (“Rule”) 1.7. To have standing to move for an opposing lawyer’s disqualification, a lawyer must substantiate “a violation of the rules which is sufficiently severe to call in question the fair and efficient administration of justice.” Bernocchi, 279 Ga. at 463 (2) (vacating disqualification order because trial court applied the wrong standard to determine if counsel had a conflict of interest in simultaneously representing individual and two corporations).

Rogers argued that this court’s affirmance of the trial court’s interim discovery order translates into a final determination that Brindle’s act of making the recording constituted a felony in violation of OCGA § 16-11-62 (2) and requires the disqualification of Cohen and Butters under Rule 8.4 (a) (2) (“It shall be a violation of the Georgia Rules of Professional Conduct for a lawyer to ... be convicted of a felony”). As previously explained in Division 1, however, the trial court’s factual finding that an exception applied to the attorney-client privilege was not an ultimate determination of the legality of the video or whether a crime was committed.

Additionally, that discovery finding and this court’s affirmance of it do not determine the outcome of Rogers’ motion to disqualify Brindle’s attorneys from this case. The argument that the discovery ruling controls the motion to disqualify mistakenly conflates the issues of privilege waiver and disqualification, much as the trial court and this court did in Hunter, Maclean, Exley & Dunn v. St. Simons Waterfront, 317 Ga. App. 1 (730 SE2d 608) (2012), which was vacated by our Supreme Court in St. Simons Waterfront, 293 Ga. 419.

The trial court in St. Simons held that, while a law firm’s communications with outside counsel were protected from discovery by the attorney-client privilege, that privilege did not apply to the firm’s communications with its in-house counsel due to a conflict of interest that had developed between the firm and the client that subsequently sued for legal malpractice. 293 Ga. at 420-421. This court vacated and remanded for further consideration after analyzing the privilege issue by examining the nature of the communications, the structure of the firm’s in-house counsel position, and the extent to which the client gave informed consent, consonant with the Rules of Professional Conduct, to the firm’s defensive measures. Id. at 421.

In vacating our opinion, the Supreme Court “restructure[d] this framework to fit within the parameters of Georgia’s general law on privilege and work product and to remove the Rules of Professional Conduct from the analysis,” which are separate issues. St. Simons Waterfront, 293 Ga. at 421. In explaining that the attorney-client privilege issue is separate from any professional conduct issues, the Supreme Court noted:

In promulgating our Rules of Professional Conduct, the State Bar has stated bluntly that the Rules “are not intended to govern or affect judicial application of either the attorney-client or work product privilege.” Ga. Rules of Professional Conduct, Preamble, ¶ 19. As further noted in the Preamble, [“]the purpose of the Rules can be subverted when they are invoked by opposing parties as procedural weapons. The fact that a Rule is a just basis for a lawyer’s self-assessment, or for sanctioning a lawyer under the administration of a disciplinary authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the Rule. Accordingly, nothing in the Rules should be deemed to augment any substantive legal duty of lawyers or the extra-disciplinary consequences of violating such a duty.[”] Id. at ¶ 18.

(Emphasis omitted.) Id. at 425. The Supreme Court concluded that any conflict of interest between the firm and the client arising out of a Rules violation did not necessarily abrogate “the protections afforded to privileged communications and attorney work product.” Id. at 420. Instead, the privileges and exceptions to privilege that apply to “every other variation of the attorney-client relationship” apply also to the relationship between a law firm’s in-house attorney and the law firm. Id. at 419.

Accordingly, whether an exception to the attorney-client privilege applies does not determine as a matter of law whether a lawyer has a conflict of interest requiring disqualification.

4. The trial court found that Cohen and Butters were disqualified from representing Brindle for two reasons, first because they were “necessary witnesses,” and second because they had a conflict of interest in representing Brindle in Cobb 1 while also defending against Rogers’ complaint against them in Cobb 2. In its order, the court observed that Cohen told the court during a hearing in April 2013 that he sent Brindle to see an expert, as the parties addressed whether the identity of the person or persons from whom Brindle obtained the video recording equipment was discoverable. That testimony could contradict Brindle’s testimony, the trial court said, because “Ms. Brindle had testified at the crime-fraud hearing that Mr. Cohen and Mr. Butters both attended the meeting with the expert.” The court further held that the lawyers had a conflict of interest, because it could

foresee a situation, regarding the planning and making of the video, where Ms. Brindle, Mr. Cohen and Mr. Butters are pointing fingers at each other as to who advised who to make the video recording. Additionally, it may [be] in Ms. Brindle’s best interest to end this litigation entirely while her counsel may believe it is best to continue on for their own personal reasons.

The trial court added the following footnote: “This Court’s court reporter has received a phone call from the Fulton County District Attorney’s Office, requesting the transcript of the [c]rime-[f]raud hearing.”

(a) Necessary witnesses. Rule 3.7 (a) provides that “[a] lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness” with some exceptions. The party moving for disqualification of a lawyer under Rule 3.7 has the burden of showing that the lawyer “is likely to be a necessary witness” by demonstrating that the lawyer’s testimony is relevant to disputed, material questions of fact and that there is no other evidence available to prove those facts. Clough v. Richelo, 274 Ga. App. 129, 132 (1) (616 SE2d 888) (2005).

Considering the circumstances in which a party’s lawyers are expected to be necessary witnesses, our Supreme Court has said:

[T]here is “conflict inherent in counsel’s dual role as advocate and witness,” and for an attorney to act as both witness and advocate is a circumstance to be avoided. Rather, “[t]he practice of trial attorneys testifying is not approved by the courts except where made necessary by the circumstances of the case.” McLaughlin v. Payne, 295 Ga. 609, 611 (761 SE2d 289) (2014) (citations omitted). See also Mobley v. State, 265 Ga. 292, 299 (18) (b) (455 SE2d 61) (1995) (holding that, when counsel also serve as witnesses, they “are forced into ethical conflicts, their credibility is improperly placed in issue, and advocacy roles are impaired”); Castell v. Kemp, 254 Ga. 556, 557 (331 SE2d 528) (1985) (noting that a lawyer who serves as both witness and advocate “ ‘becomes more easily impeachable for interest and thus may be a less effective witness’ ” and “ ‘is in the unseemly and ineffective position of arguing his [or her] own credibility’ ” (citation omitted)); 81 AmJur2d § 220 (2015).

Martin v. State, 298 Ga. 259, 270-271 (2) (b) (779 SE2d 342) (2015).

The trial court found that the lawyers were necessary witnesses because “their testimony is relevant to where and from whom the recording device used to record Mr. Rogers’ and Ms. Brindle’s sexual encounter was obtained, under what circumstances the video recording device was obtained and who else was involved in the planning of the recording.” Brindle argues that other parties could establish these facts, and that therefore her lawyers were not “necessary,” and further, the prohibition against serving dual roles only applies to the actual trial rather than pre-trial proceedings. Pretermitting whether the trial court abused its discretion in finding the lawyers were necessary witnesses, however, the trial court did not abuse its discretion in disqualifying Cohen and Butters as Brindle’s attorneys due to a conflict of interest.

(b) Conflict of interest. Rule 1.7 (a) provides: “A lawyer shall not represent or continue to represent a client if there is a significant risk that the lawyer’s own interests . . . will materially and adversely affect the representation of the client[.]” Here, the trial court found that “it is difficult for this Court to see how Mr. Cohen and Mr. Butters do not have competing interests with their client, Ms. Brindle,” and found a “substantial probability that these competing interests would most likely hinder their independent professional judgment on pursuing courses of action in Ms. Brin die’s case.” Comment 2 to Rule 1.7, which the trial court cited, explains:

Loyalty to a client is impaired when a lawyer cannot consider, recommend or carry out an appropriate course of action for the client because of the lawyer’s other competing responsibilities or interests. The conflict in effect forecloses alternatives that would otherwise be available to the client. Paragraph (a) addresses such situations. A possible conflict does not itself preclude the representation. The critical questions are the likelihood that a conflict will eventuate and, if it does, whether it will materially interfere with the lawyer’s independent professional judgment in considering alternatives or foreclose courses of action that reasonably should be pursued on behalf of the client. Consideration should be given to whether the client wishes to accommodate the other interest involved.

Many of the comments to Rule 1.7 address conflicts arising from a lawyer’s representation of clients, former clients, opposing parties, or co-defendants. This case involves none of those considerations, but rather a claim that the attorneys helped their client perform an improper act. Comment 11 to Rule 1.7 is instructive in that regard:

Conflicts of interest in contexts other than litigation sometimes may be difficult to assess. Relevant factors in determining whether there is potential for material and adverse effect include the duration and extent of the lawyer’s relationship with the client or clients involved, the functions being performed by the lawyer, the likelihood that actual conflict will arise and the likely prejudice to the client from the conflict if it does arise.

Rule 1.7, Cmt. 11.

The rules of disqualification of an attorney will not be mechanically applied; rather, we should look to the facts peculiar to each case in balancing the need to ensure ethical conduct on the part of lawyers appearing before the court and other social interests, which include the litigant’s right to freely chosen counsel.

Decided July 14, 2016

Dupree & Kimbrough, Hylton B. Dupree, Jr.; Bondurant Mixson & Elmore, Michael B. Terry, Alison B. Prout, Patrick C. Fagan, John E. Floyd, Tiana S. Mykkeltvedt, for appellants.

Moore, Ingram, Johnson & Steele, Robert D. Ingram, Jeffrey A. Daxe, David P. Conley, for appellee.

Stoddard v. Bd. of Tax Assessors, 173 Ga. App. 467, 468 (1) (326 SE2d 827) (1985).

Considering the circumstances surrounding this litigation, we find that the trial court did not abuse its discretion in disqualifying Butters and Cohen from representing Brindle.

Judgment affirmed.

Boggs and Mercier, JJ., concur.

       In the same opinion, we vacated an attorney fee award to Rogers in a separate case from Fulton County involving the same parties and remanded that case to the Fulton County trial court for further proceedings. Cohen v. Rogers (Case No. A14A0201) and Brindle v. Rogers (Case No. A14A0202). The Fulton County case is not at issue in the present appeal.

       In February 2016, Rogers filed a notice of appeal from the trial court’s order in Cobb 2 granting Dupree’s motion to dismiss with prejudice Rogers’ complaint against him, and Cohen, Butters, and Dupree filed notices of cross-appeal. Those related appeals were docketed in this court on May 16, 2016, but briefing was not due to be completed before this appeal had to be decided under this Court’s two-term rule.

       Nor are a Fulton County trial court’s findings in a related case involving a claim for attorney fees under OCGA § 9-15-14 dispositive of any issues in this case. This court vacated the Fulton County trial court’s initial order in Case Nos. A14A0201 and A14A0202 in the same unpublished opinion in which we affirmed the discovery order in this case, and remanded it for further proceedings. The appeal of the Fulton County trial court’s revised fee order was docketed in this court on June 6, 2016, Case No. A16A1858.

       While an evidentiary hearing is not always required before counsel can be disqualified, in some cases one may be necessary “to allow the parties to submit evidence in support of their positions before the trial court determines whether disqualification is appropriate.” Befekadu v. Addis Intl. Money Transfer, 332 Ga. App. 103, 108 (1) (c) (772 SE2d 785) (2015). Neither party sought a hearing on this issue.

       Under some circumstances, a client may waive a conflict in writing, Rule 1.7 (b), but we do not address that issue because Brindle’s written waiver was filed after the trial court ruled in June 2015.


source: Caselaw Access Project

author: McMlLLIAN, Judge.

license: Public Domain

text:
    A16A0595.
    ANDERSON v. THE STATE.
    (789 SE2d 363)
   McMlLLIAN, Judge.

Marcus Anderson appeals the denial of his motion for new trial following his conviction for trafficking in cocaine. On appeal, Anderson asserts that the trial court erred by (1) quashing his subpoena of a defense witness; (2) excluding a defense witness’ prior statement; (3) excluding impeachment evidence regarding a State witness; and (4) refusing to overturn his conviction due to the State’s failure to disclose his co-defendant’s plea deal. Anderson also challenges the sufficiency of the evidence. For the reasons that follow, we find no error and affirm.

Viewed in the light most favorable to the jury’s verdict, the record shows that on the evening of August 11, 2008, Anderson borrowed a Silver Chevrolet Impala from a friend of his girlfriend, Tawnya Anderson, to meet Tawnya’s sister in Byron, approximately two hours from where they lived in Moultrie. Anderson sat in the front passenger seat while Tawnya drove. On their way back home from Byron, Tawnya was pulled over by Sergeant Clay Chambers of the Houston County Sheriff’s Office after he observed a tinted tag cover blocking his ability to read the vehicle’s license plate.

Chambers approached the passenger side of the vehicle and asked Tawnya for her driver’s license. At that point, he noticed that Anderson started moving around and acting abnormally, such as “raising his hands above his head” and “raising his shirt and pulling up his pants.” Chambers told Anderson to relax and asked Tawnya to step to the rear of the vehicle so he could explain to her that the tinted license plate cover was a violation of Georgia law. Tawnya told him that they had gone to Byron to return her niece to her sister. Chambers then asked Tawnya for her insurance information, which she returned to the vehicle to retrieve. As she was looking for the insurance information, Chambers saw Anderson “moving all around in the vehicle, lifting up his legs, trying to show [him] different things inside the vehicle.” Chambers believed Anderson “appeared very, very nervous.” Anderson told Chambers they were returning from Byron where they had met Tawnya’s sister at a McDonald’s to get a small Hannah Montana toy, which Chambers saw lying on the back seat of the vehicle. Although he again asked Anderson whether there was any other reason for their trip to Byron, Anderson never mentioned returning Tawnya’s niece. And only when Chambers confronted Tawnya about the differences in their stories did Tawnya say something about a toy

Based on what he observed, including Anderson’s nervousness, Chambers asked Tawnya for her consent to search the vehicle, which she granted. Sergeant Wayne Mitchell arrived to provide backup and saw Anderson manipulating a white plastic bag before he removed him from the vehicle. During his search, Chambers located a purse that was against the center console, and when he unzipped the purse, he found a clear plastic bag containing a white powder substance, which field-tested positive for cocaine. Chambers also located a white plastic shopping bag on Anderson’s seat that he had not seen while Anderson was seated in the vehicle. Anderson and Tawnya were both placed under arrest and subsequently charged with one count of trafficking cocaine.

Anderson’s trial commenced in J anuary 2013. Tawnya was called by the State to testify. She stated that when Anderson arrived home on the night in question, he asked if she would ride with him to Byron to pick up a doll from her sister to give to her grandchild. Tawnya agreed and started to get inside Anderson’s car in the driveway, but he told her they were going to take her friend’s car instead and asked her to drive. When they eventually met her sister at McDonald’s, she stayed in the car while Anderson got out and retrieved a light-colored bag from her sister. Tawnya testified that as soon as the police pulled her over on the way home, Anderson started “hollering, I can’t go to prison for 30 years. I can’t go to prison for 30 years.” Anderson then told her to lie about why they went to Byron. And after the police found the cocaine, she realized her sister must have given the drugs to Anderson in the bag. She denied seeing the drugs in her purse when she reached in to get her driver’s license for Chambers. After they were both arrested and placed in the police car, Anderson whispered to her to tell the police that the drugs did not belong to him.

A video recording of the traffic stop was also played for the jury, and a forensic chemist from the Georgia Bureau of Investigation testified that the substance found in the clear plastic bag was determined to be cocaine with a purity of 47.9 percent and a net weight of 201.62 grams. The jury found Anderson guilty on one count of trafficking cocaine. Anderson timely filed a motion for new trial, and following a hearing, the trial court denied his motion. This appeal followed.

1. In his first enumeration of error, Anderson asserts that the trial court erred in quashing his subpoena of Vicki Anderson, Tawnya’s sister. We disagree. Anderson subpoenaed Vicki to testify on his behalf because, in a statement made to his investigator in 2012, Vicki denied bringing any drugs with her to McDonald’s that night. Vicki appeared at trial with her attorney, who notified the trial court that, because his client feared her testimony would place her in jeopardy of incriminating herself, she wished to invoke her Fifth Amendment privilege. The trial court separately asked Vicki if she wished to assert her Fifth Amendment right, and Vicki responded, “Correct.” Anderson nonetheless argued that he should be entitled to call her as a witness to suggest that she and Tawnya “concocted a story to try to protect both of them.” The trial court found that in order to answer Anderson’s questions, Vicki would face the risk of self-incrimination, and thus ruled that he would not be able to call her as a witness.

On appeal, Anderson argues that the trial court’s refusal to allow him to call Vicki as a witness for this reason violated his Sixth Amendment right to call witnesses in his defense. However, a criminal defendant’s Sixth Amendment “right to present a defense is not absolute. The right may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.” (Citation and punctuation omitted.) Terry v. State, 308 Ga. App. 424, 426-27 (707 SE2d 623) (2011). And it is well settled that

if it appears that a witness intends to claim the privilege against self-incrimination as to essentially all questions, the court may, in its discretion, refuse to allow him to take the stand. Neither side has the right to benefit from any inferences the jury may draw simply from the witness’ assertion of the privilege either alone or in conjunction with questions that have been put to him. One reason for this rule is that reliable inferences do not ordinarily follow from a witness’ invocation of the Fifth Amendment.

(Citation and punctuation omitted.) Billings v. State, 21 & Ga. 833, 834 (2) (607 SE2d 595) (2005). We do not find that the trial court abused its discretion in refusing to allow Vicki to take the stand. Accordingly, this enumeration of error fails.

2. Although Anderson enumerates as error the trial court’s exclusion of Vicki’s out-of-court, unsworn statement to his investigator, he has failed to support that enumeration with argument or citation to authority, and thus this enumeration is deemed abandoned. See Court of Appeals Rule 25 (c) (2); Anderson v. State, 335 Ga. App. 78, 80 (3) (778 SE2d 826) (2015).

3. Anderson also asserts that the trial court erred in denying his attempt to impeach Mitchell with evidence of prior bad acts. Anderson argued during a pretrial hearing that he should be permitted to introduce evidence that in 2009, former deputy Mitchell had been charged with providing funds and information to a probationer with an outstanding warrant and subsequently pled guilty to misdemeanor obstruction under the First Offender Act. The record reveals that Mitchell’s adjudication of guilt was later discharged under the First Offender Act. Following the hearing, the trial court entered an order denying Anderson’s request, explaining that he is not permitted to introduce evidence of a first offender adjudication and that the underlying facts were not in “any way relevant or admissible.”

Under Georgia law, “[bjecause first offender status is not considered an adjudication of guilt, a first offender plea cannot be used to impeach a witness on general credibility grounds.” Rivers v. State, 296 Ga. 396, 401 (5) (768 SE2d 486) (2015). See also Clark v. State, 335 Ga. App. 747, 747-48 (1) (782 SE2d 828) (2016) (physical precedent only); OCGA § 24-6-609 (c) (new Evidence Code provision likewise mandating that evidence of first offender adjudication shall not be used to impeach any witness). Moreover, based on the record before us, we find no abuse of discretion in the trial court’s exclusion of the impeachment evidence, which was not pertinent to the traffic stop or Mitchell’s subsequent investigation. See Rivers, 296 Ga. at 401 (5).

4. In his fourth enumeration of error, Anderson asserts that he is entitled to a new trial because the State failed to disclose a plea deal promised to Tawnya. Anderson essentially argues that, despite Tawnya’s express testimony — both on direct and cross-examination — that she was not promised anything by the State in exchange for her testimony at trial, “there clearly was a pre-trial understanding that the State would reduce” the charge against Tawnya. This enumeration wholly fails.

In order to show reversible error on this ground, a criminal defendant must show

that the State possessed evidence of the deal; that the defendant did not possess the evidence nor could he obtain it himself with any reasonable diligence; that the State suppressed evidence of the deal; and that, had the evidence of the deal been disclosed to the defendant, there existed a reasonable probability that the result at trial would have been different,.

(Citations omitted.) Ford v. State, 273 Ga. App. 290, 291 (614 SE2d 907) (2005). Here, the only testimony the trial court had to rely on was Tawnya’s trial testimony denying that there was a deal, as she did not testify at the motion for new trial hearing. Thus, we cannot say that the trial court erred in concluding that Anderson failed to meet his burden. Id. at 292.

5. In his final two enumerations of error, Anderson challenges the sufficiency of the evidence. Anderson first argues that his mere presence and spatial proximity to the drugs was insufficient to sustain his conviction. However, the evidence showed that Anderson was more than merely present near the cocaine. Tawnya testified that it was Anderson’s idea to drive to Byron that night, approximately two hours away, to pick up a small toy He got out of the car and retrieved a light-colored plastic bag. When the police pulled them over, he yelled that he could not go to prison and told Tawnya to lie to the police. The police observed Anderson’s extreme nervousness and his differing story as to their whereabouts that evening. The police also observed him manipulating a white plastic bag before they located over 200 grams of cocaine within his reach in the vehicle. And Tawnya testified that she realized her sister must have given the drugs to Anderson and that he must have put them in her purse while she was standing at the back of the vehicle.

Moreover,

[i]t is not necessary that a defendant have actual and exclusive possession of the contraband; possession may be joint and constructive. A person who, though not in actual possession, knowingly has both the power and intention at a given time to exercise dominion or control over a thing is then in constructive possession of it, and if two or more persons shared constructive possession of a thing, possession is joint. So long as there is slight evidence of access, power, and intention to exercise control or dominion over the contraband, the question of fact regarding joint constructive possession remains within the domain of the trier of fact.

(Citations and punctuation omitted.) Garcia-Maldonado v. State, 324 Ga. App. 518, 520 (751 SE2d 149) (2013).

While Anderson argues vehemently that the evidence more strongly indicates Tawnya’s guilt, in reviewing the sufficiency of the evidence, we do not “weigh the evidence or determine witness credibility Any conflict or inconsistencies in the evidence are for the jury to resolve.” (Citation omitted.) Ferguson v. State, 335 Ga. App. 862, 863 (1) (783 SE2d 380) (2016). And, “[a]s long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case [we] must uphold the jury’s verdict.” (Citation omitted.) Id. And whether the circumstances are sufficient to exclude every reasonable hypothesis is a question for the jury, and “that finding will not be disturbed unless the verdict of guilt is insupportable as a matter of law.” (Citation omitted.) Wright v. State, 302 Ga. App. 332, 333 (690 SE2d 654) (2010).

And finally, Anderson argues that the State failed to prove that he knowingly possessed a trafficking weight of cocaine. At the time of the offense committed here, former OCGA § 16-13-31 (a) (1) provided, in relevant part:

Any person who knowingly sells, manufactures, delivers, or brings into this state or who is knowingly in possession of 28 grams or more of cocaine or of any mixture with a purity of 10 percent or more of cocaine, as described in Schedule II, in violation of this article commits the felony offense of trafficking in cocaine [.]

In determining whether a defendant had the requisite knowledge, a jury is authorized to consider “the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted. Indeed, both knowledge and possession may be proved, like any other fact, by circumstantial evidence.” (Citation omitted.) Summerville v. State, 332 Ga. App. 617, 619 (1) (774 SE2d 190) (2015).

And here, the evidence notably shows that Anderson made a four-hour round trip drive at night for a brief stop before police found over 200 grams of cocaine, which is more than seven times the amount required to constitute trafficking. Upon being stopped by the police, Anderson immediately expressed to Tawnya that he could not go to prison for 30 years, which supported his knowledge of the seriousness of the possible charges. Thus, we conclude that the jury was authorized to find Anderson was knowingly in possession of the trafficking weight of cocaine found in the vehicle driven by his girlfriend at his direction. See Summerville, 332 Ga. App. at 620 (1) (evidence of short turnaround time on round-trip travel is consistent with drug trafficking and, coupled with an amount of drugs more than twice the requisite trafficking weight, was sufficient to show defendant’s knowledge of drug quantity). See also Brown v. State, 334 Ga. App. 674, 678 (780 SE2d 372) (2015) (in light of totality of evidence, including defendant’s behavior at the scene and fact that amount of drugs was over 15 times the threshold trafficking amount, trier of fact could infer defendant’s knowledge that he possessed 28 grams or more) (physical precedent only). Compare Childs v. State, 330 Ga. App. 727, 730-31 (1) (769 SE2d 147) (2015) (evidence insufficient where quantity was just in excess of 28 grams and there was no other evidence indicating defendant had knowledge of its weight).

Decided July 14, 2016.

A. James Rockefeller, for appellant.

George H. Hartwig III, District Attorney, Marie R. Banks, Kirby H. Wincey, Jr., Assistant District Attorneys, for appellee.

Judgment affirmed.

Miller, P. J., and McFadden, J., concur.

        Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

       For the sake of clarity only, we will refer to Tawnya Anderson as “Tawnya.”

       The stop occurred on 1-75 in Houston County, Georgia. Anderson is not contesting the validity of the traffic stop on appeal.

       Tawnya eventually entered a guilty plea to this charge and is not a party to this appeal.

       Again, for the sake of clarity, we will refer to Vicki Anderson as “Vicki.'

       Anderson also argues that the State should have offered Vicki transactional immunity and that the trial court should have found that the State’s refusal to do so denied him a fair trial. However, our Supreme Court has held that “Georgia law does not authorize a trial court to grant use immunity to a witness at the.request of a defendant.” Brown v. State, 295 Ga. 804, 811 (5) (b) (764 SE2d 376) (2014).

       We also reject Anderson’s claim that Vicki did not have “reasonable cause to apprehend danger from a direct answer” because Georgia’s statute of limitation for any drug-related offense had already run. As noted by the trial court, the statute of limitation for a federal drug charge had not run at that time. See 18 USC § 3282 (a).

       Anderson also asserts that the trial court failed to apply the correct standard of review in sitting as the “13th juror” for his motion for new trial. This assertion is directly contradicted by the trial court’s order, reciting the correct standard.

       We note that the trial court instructed the jury on, inter alia, mere presence, association with other persons involved in a crime versus participating as a party to a crime, actual versus constructive possession, and sole versus joint possession.

       In 2013, the General Assembly deleted “knowingly” throughout OCGA § 16-13-31, and the amended statute became effective on July 1, 2013. See Ga. L. 2013, p. 222, §§ 4, 21.


author: ANDREWS, Presiding Judge.

text:
    A16A1600.
    GRAHAM et al. v. WELLSTAR HEALTH SYSTEM, INC. et al.
    (789 SE2d 369)
   ANDREWS, Presiding Judge.

This appeal is from the grant of partial summary judgment in an action arising out of the death of Justin Graham due to liver failure following his arrest for DUI. The operative facts of the case are fully set forth in a previous appeal and will not be reiterated here. See Graham v. Cobb County, 316 Ga. App. 738 (730 SE2d 439) (2012).

Subsequent to that earlier appeal, Graham’s family (hereinafter Graham) filed a third amendment to the complaint withdrawing all remaining claims and instead asserting the following claims: (1) simple negligence as to Dr. Clarence Hendrix as chief medical officer at the Cobb County Adult Detention Infirmary, and as to David Howell as Administrator for WellStar Health System; (2) professional negligence as to Dr. Hendrix; (3) simple negligence as to WellStar under the doctrine of respondeat superior based on the acts of Dr. Hendrix and David Howell; (4) negligence per se as to WellStar; (5) wrongful death as to all defendants; and (6) pain and suffering as to all defendants.

On February 16, 2015, as clarified on reconsideration on February 23, 2015, the trial court granted summary judgment for the defendants on the negligence and wrongful death claims asserted against WellStar and Howell. This appeal followed.

1. Negligence per se. Graham contends that by contracting with the Cobb County Sheriff’s Office to provide medical care for jail detainees, WellStar owed a duty under OCGA §§ 42-5-2 (a), 42-4-4 (a) (2), and 42-4-32 (d) to provide needed medical care for detainees and breached that duty in its mismanagement of Graham’s care. However, as noted by the trial court in its order on February 23, 2015, Graham never pleaded any application and violation of OCGA § 42-4-4 (a) (2) or § 42-4-32 (d) against WellStar in the third amended complaint. The amended complaint did assert a per se violation of OCGA § 42-5-2 (a), but to the extent that statute applied to WellStar by virtue of its contract with the Cobb County Sheriff’s Office, it created an obligation to provide detainees with access to medical care, but did not address the issue of proper medical care. Epps v. Gwinnett County, 231 Ga. App. 664, 670 (8) (499 SE2d 657) (1998). As it is undisputed Graham was provided access to medical care, the trial court did not err in concluding OCGA § 42-5-2 (a) provides no basis for a negligence per se claim against WellStar.

2. Ordinary negligence or professional negligence. The trial court found Graham’s ordinary negligence claims actually were claims for professional negligence and granted summary judgment for the defendants on the basis the expert affidavits filed in the case were insufficient to support any such claims. Graham contends the trial court erred in classifying the claims against WellStar and Howell as professional negligence, but even so, the expert affidavits specifically incorporated in the third amended complaint sufficiently stated specific examples of duty and alleged breach that support claims for professional negligence.

“Whether a complaint alleges ordinary negligence or professional malpractice is a question of law for the court, regardless of how the plaintiff categorizes it.” (Citation and punctuation omitted.) Grady Gen. Hosp. v. King, 288 Ga. App. 101, 102 (653 SE2d 367) (2007). Accord Burke v. Paul, 289 Ga. App. 826, 828 (658 SE2d 430) (2008). The court must look at the substance of the action, and if the alleged negligence required exercising professional skill and judgment to comply with a standard of conduct, the action will involve professional negligence. Piedmont Hosp. v. D. M., 335 Ga. App. 442, 445 (2) (779 SE2d 36) (2015); Burke v. Paul, supra at 828.

The gravamen of the complaint in this case was that the defendants failed to recognize the severity of Graham’s condition, failed to monitor his condition, and failed to take appropriate measures to try to forestall the progressive liver failure. In short, the complaint alleges the defendants, through their inattention, neglected Graham to the point of irreversible liver failure and death. We find the trial court properly determined the complaint stated claims for professional negligence instead of ordinary negligence. However, the trial court erred in concluding the expert affidavits on file were insufficient to support those professional negligence claims.

The expert affidavits in the record were originally submitted in support of the professional negligence asserted against Dr. Hendrix and various members of the nursing staff, but the affidavits also contain multiple averments pertaining to the standard of care applicable to WellStar and the administrator Howell. Dr. Robert Kauf-mann identified a standard of care requiring supervision of healthcare personnel and policies and procedures that ensure timely review of a patient’s care. Based on his review of Graham’s treatment records, Dr. Kaufmann opined that was not done, and specifically faulted the administrator for the failure to actively monitor the medical care being provided in the facility. Other specific violations of an applicable standard of care included the nursing staff’s failure to monitor Graham’s input and output; failure to monitor changes in Graham’s abdomen for any ascites buildup; failure to document administration of IV fluids; failure to communicate abnormal lab values to the physician; and failure to document sufficient data for two Code Blue reports.

Dr. Mark Griffis averred the same standards of care and failures of the nursing staff and the administrator iterated by Dr. Kaufmann. Dr. Griffis emphasized the standard of care of conscientiously supervising healthcare providers, monitoring the patient’s care and condition, and intervening when necessary, and noted the breach of that standard in Graham’s case.

Based on his review of the records of Graham’s treatment, Patrick Washington, a registered nurse, listed multiple deficiencies of the nursing staff: the failure to procure Graham’s transfer to the hospital following two Code Blue incidents; failure to report lab results or follow-up lab results with the physician on a timely basis; failure to report to the management elevated lab results and vital sign levels that indicated the need for immediate intervention; failure to report the continuous elevation of pulse rates; failure to report alert levels of bilirubin and nonresolving jaundice for days; failure to record the patient’s input and output; failure to request the physician timely to attend to Graham as his condition worsened; and failure to document adequately Graham’s status for multiple days.

These affidavits set forth “at least one negligent act or omission claimed to exist and the factual basis for each such claim,” OCGA § 9-11-9.1 (a) (3), and thus the trial court should not have granted summary judgment for the defendants on the professional negligence claims asserted against WellStar and the administrator Howell.

3. Wrongful death claims. In the order entered on February 23, 2015, the trial court found that as Graham’s negligence claims against WellStar and Howell failed, so, too, must the wrongful death claims asserted against those two defendants. In light of our decision that the trial court erred in granting summary judgment for WellStar and Howell on those negligence claims, the trial court likewise erred in similarly disposing of the wrongful death claims.

Decided July 14, 2016.

Austin Law Group, Laura E. Austin, for appellants.

Downey & Cleveland, W. Curtis Anderson, for appellees.

Judgment affirmed in part an d reversed in part.

Doyle, C. J., and Ray, J., concur.


author: Peterson, Judge.

text:
    A16A0023.
    THE STATE v. WOOD.
    (790 SE2d 84)
   Peterson, Judge.

The State appeals from the trial court’s grant of defendant Johann Michael Wood’s motion to dismiss the indictment on constitutional speedy trial grounds, arguing that the trial court erred in considering Wood’s constitutional speedy trial motion without Wood having joined the issue or subjected himself to the court’s jurisdiction, without Wood being present in court, and in failing to accord any weight to the trial delay caused by Wood’s own actions. We vacate the trial court’s order and remand to the trial court because the trial court made a factual error regarding a reason for the pre-trial delay that must be reconsidered.

The evidence in the record reveals the following facts. Sometime in 2006, Wood allegedly inserted his fingers into the victim’s vagina and touched her breasts. The victim, a member of Wood’s extended family, was less than 16 years old at the time. Wood became aware that the victim made allegations to her family regarding his conduct, and he allegedly made a statement to one of his sisters that he was considering being chemically castrated. Wood’s and the victim’s families also discussed how to resolve the matter among themselves. The victim’s mother allegedly told Wood she was not planning on making a police report, yet Wood’s father and brother testified that the victim’s mother’s boyfriend made threats against Wood’s life. Wood claims to have left the country to live with his mother, who was a resident of the Netherlands, on January 9, 2007. Warrants were issued for Wood’s arrest on these charges on February 12, 2007, but they were never executed. On January 5, 2009, Wood was indicted on three counts of child molestation and three counts of aggravated sexual battery. His arraignment was set for January 27, 2009. Notice of the arraignment was mailed to his last known address in Georgia. When Wood did not appear for arraignment, a bench warrant was issued. At the request of the State, the case was dead docketed in March 2010 on the basis that Wood was a fugitive.

On September 9,2013, Wood was re-indicted on the same charges contained in the 2009 indictment. An arrest warrant was subsequently issued based on the re-indictment.

Counsel for Wood entered an appearance on October 28,2013. On March 23, 2015, new counsel for Wood entered an appearance and filed a motion to dismiss the indictment for violation of Wood’s constitutional right to a speedy trial. Wood’s prior counsel speculated in correspondence with counsel for the State that he was being replaced as counsel because he had refused to file a motion demanding a speedy trial.

In his motion to dismiss on constitutional speedy trial grounds, Wood stated that the United States government executed an extradition request to Finland on October 22, 2013, although the request is not part of the record before us. Wood claimed that his arrest and detention in Finland in September 2013 was the first time he became aware of the charges against him. Wood also represented that he was released on bond in April 2014, he fought extradition efforts, and has since been subject to a travel ban, meaning he is generally unable to leave Finland outside of agreeing to extradition to the United States.

The State did not file any response to Wood’s motion to dismiss. The trial court held a hearing on Wood’s motion and subsequently granted it in a thoughtful and comprehensive 32-page opinion. The State filed a motion for reconsideration and for a stay pending appeal, which the trial court denied for lack of jurisdiction without considering the merits, and this appeal followed.

1. Before addressing the merits of the State’s enumerations of errors, we must first address the State’s reference to evidence submitted with its motion for reconsideration following the grant of Wood’s motion to dismiss, which the State argues shows that the trial court abused its discretion in granting that motion. Specifically, the State introduced affidavits and other supporting documentation accompanying the request to extradite Wood that the parties mistakenly believed were already in the record. This evidence shows among other things that, contrary to testimony at the motion to dismiss hearing, Wood had contacted family members to inquire about the status of criminal charges against him. The State argues that this evidence may

shed light on whether the Trial Court’s discretion was abused in reaching its decision to dismiss the indictment, particularly given its criticism of the State for its failure to present any evidence, rebut any testimony, or cite any legal authority to show that [Wood’s] right to a speedy trial has not been violated.

The State also attached an affidavit, dated after the hearing on Wood’s motion to dismiss, from a trial attorney in the United States Department of Justice that provided detailed information about the extradition process.

To the extent the State relies upon any of the evidence submitted with its motion for reconsideration, that evidence is not properly before us. A party “cannot rely on evidence presented after trial to show that the trial court erred in [making] a decision the court had to make based on the evidence it had at that time.” Teasley v. State, 293 Ga. 758, 763 (3) (b) (749 SE2d 710) (2013) (emphasis in original). Thus, in considering the State’s arguments on appeal, we are limited to the evidence submitted to the trial court when it ruled on Wood’s motion.

2. The State argues that the trial court erred in considering Wood’s constitutional speedy trial claims because he had not entered a plea or otherwise subjected himself to the court’s jurisdiction. We disagree.

The Sixth Amendment to the United States Constitution guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial[.]” U.S. Const. Amend. VI. The Georgia Constitution also guarantees criminal defendants the right to a speedy trial, Ga. Const., Art. I, Sec. I, Para. XI (a), and “[t]he speedy trial right enshrined in the Georgia Constitution is coextensive with the federal guarantee.” Ruffin v. State, 284 Ga. 52, 54 (2) (663 SE2d 189) (2008) (footnote omitted). Constitutional speedy trial claims are analyzed under the framework set forth in the United States Supreme Court’s decisions in Barker v. Wingo, 407 U.S. 514 (92 S. Ct. 2182, 33 LE2d 101) (1972) and Doggett v. United States, 505 U.S. 647 (112 S. Ct. 2686, 120 LE2d 520) (1992). A threshold determination in evaluating an alleged denial of the constitutional right to a speedy trial is whether the accused has been subjected to a delay that is presumptively prejudicial. Jones v. State, 296 Ga. 561, 570 (7) (769 SE2d 307) (2015). If it is, the court is to apply a balancing test of the Barker factors: “length of delay, reason for the delay, the defendant’s assertion of the right, and prejudice to the defendant.” Jones, 296 Ga. at 569-70 (7). In reviewing a trial court’s consideration of whether a delay in bringing an accused to trial amounts to a denial of his right to a speedy trial, “we must accept the factual findings of the trial court unless they are clearly erroneous, and we must accept the ultimate conclusion of the trial court unless it amounts to an abuse of discretion!)]” State v. Buckner, 292 Ga. 390, 391 (738 SE2d 65) (2013) (citation omitted).

It is well settled that the constitutional right to a speedy trial attaches either at the time of the defendant’s arrest or when formal charges are brought, whichever occurs earlier. See United States v. Marion, 404 U.S. 307, 321 (92 S. Ct. 455, 30 LE2d 468) (1971); Haisman v. State, 242 Ga. 896, 897 (252 SE2d 397) (1979). Wood’s constitutional right to a speedy trial arose on the date of the first indictment in January 2009.

The State essentially argues that Wood could not assert his constitutional speedy trial right in absentia. The State acknowledges that a defendant can waive his presence for court hearings, but contends a defendant may do so only after presenting himself in court. However, a defendant may waive formal arraignment, including through his conduct. See Ferrell v. State, 149 Ga. App. 405, 406 (3) (254 SE2d 404) (1979).

Here, even though Wood has not been properly arraigned, his filing of a motion to dismiss on speedy trial grounds constituted waiver of the arraignment. See id. (the demand for trial and the filing of a motion to suppress constituted waiver by conduct). Moreover, we have stated that “a defendant is not procedurally barred from raising a constitutional speedy trial claim at any time up to the point of trial, [although] a defendant’s failure to assert his claim in a timely manner can be weighed heavily against him as part of the Barker analysis.” Disharoon v. State, 288 Ga. App. 1, 4 (1) (c) (652 SE2d 902) (2007) (citation and punctuation omitted). The State’s arguments do not present a compelling reason to preclude Wood from asserting his constitutional speedy trial claim.

The State first argues that, because Wood had the right to be present at all critical stages of a criminal prosecution, he had an obligation to appear in court before the trial court could consider his motion to dismiss. See Fair v. State, 288 Ga. 244, 260 (3) (702 SE2d 420) (2010) (providing that under both the Georgia and the federal Constitutions, a criminal defendant has the “right to be present at all critical stages of his trial”) (citation omitted). “However, the right to be present belongs to the defendant, and he is free to relinquish it if he so chooses.” Hampton v. State, 282 Ga. 490, 492 (2) (a) (651 SE2d 698) (2007); see also Pennie v. State, 271 Ga. 419, 421 (2) (520 SE2d 448) (1999) (“[A] defendant may personally waive his right to be present at a stage in the trial, or counsel may waive this right for the defendant.”). The State points to no legal authority providing that it can require a defendant’s attendance at a hearing.

The State further argues that under In re Kashamu, 769 F.3d 490, 494 (7th Cir. 2014), Wood waived his right to assert his speedy trial rights by making himself unavailable to the court system after becoming aware of the criminal charges. Here, the trial court concluded that Wood had no knowledge of the pending criminal charges until 2013, and there is no evidence in the record to the contrary. The State argues that this factual determination was wrong, and it relies on OCGA § 17-7-90 and Chiasson v. State, 250 Ga. App. 63 (549 SE2d 503) (2001), for support of the premise that Wood had notice of the criminal charges when the State mailed the notice of the first arraignment to his Georgia address in January 2009. But OCGA § 17-7-90 governs the issuance and execution of bench warrants, and Chiasson held only that a bench warrant sent to the defendant’s last known address and returned undeliverable met the requirements of the statute. 250 Ga. App. at 65 (5). Contrary to the State’s reading of the case, Chiasson does not hold that a defendant has notice of the arraignment when it is sent to an address at which he no longer resides.

Here, Wood left Georgia for New Hampshire in 2006 and left the United States in 2007. There were no charges pending at the time of his departure, so Wood was under no obligation to apprise the court of a change of address. Thus, the 2009 notice sent to a prior address is not proof that Wood had notice of the indictment, and the remaining evidence supports the trial court’s conclusion that Wood was first apprised of the pending charges in 2013.

We are thus faced with the State’s assertion that Wood gave up his constitutional speedy trial rights based on language in Kashamu that “[o]nce [a defendant is] warned [of criminal charges], it’s his choice whether to face the judicial music in the United States or forgo any speedy trial right based on time he spends out of the reach of our court system.” 769 F.3d at 494. We do not read Kashamu as setting forth a new principle under the Barker framework that we are required to follow that a defendant always gives up his right to assert a speedy trial claim if he is out of the reach of the country First, Kashamu is only persuasive, and not binding, authority See Gresham v. Harris, 329 Ga. App. 465, 467 (765 SE2d 400) (2014) (“[W]e are not bound by decisions of other states or federal courts except the United States Supreme Court.”). Second, the persuasiveness of the language in Kashamu that the State relies upon to support the proposition that Wood gave up his speedy trial right is diminished because it is dicta. Before making this statement, the Seventh Circuit Court of Appeals had already concluded that the defendant had no rights under the United States Constitution because he was living abroad and not a United States citizen. Kashamu, 769 F.3d at 492. But even if the relied-upon statements were central to the Seventh Circuit’s holding, the statements did not establish a new rule of law under the Barker framework. Rather, in reading the statements in context, they support the Seventh Circuit’s conclusion that the defendant was not entitled to mandamus relief because his speedy trial rights were not violated. The statements in question merely emphasize the fact that the more the defendant’s actions contribute to the pre-trial delay, and thus the more the second Barker factor would be weighed against him, the more difficult, it will be for him to prove that he was denied his right to a speedy trial. Thus, we decline to follow the State’s suggestion to conclude that Wood was precluded from even asserting a constitutional right on the basis of being out of the reach of the court system.

The State’s other arguments to the effect that Wood could not assert his speedy trial rights are similarly flawed or have been waived. The State argues that because it could have elected not to indict Wood until he was arrested, as the statute of limitation period would have been tolled for any period in which Wood was out of the state, it should not be prohibited from trying him now simply because it did indict him. But regardless of whether the State could have waited, it did not. The State cannot rewrite the record now nor can it avoid its constitutional duty to give Wood a speedy trial.

The State lastly argues that Wood is precluded from asserting this right under the fugitive disentitlement doctrine. The State, however, did not raise this argument below, and we will not consider it on appeal in the first instance. See Crawford v. State, 267 Ga. 543, 545 (6) (480 SE2d 573) (1997); Holland v. State, 232 Ga. App. 284, 285 (2) (501 SE2d 829) (1998).

3. The State also argues that the trial court abused its discretion in considering Wood’s constitutional speedy trial motion because a standing court order provided that the failure to attend a hearing on a motion shall constitute a waiver of that motion. In full, that provision of the standing order states:

Defendants and counsel who do not have motions to be argued on the date set for motions shall not be required to attend. A failure to attend without notice of conflict or permission of the Court shall constitute a waiver of motions, including any motions that are pending on the date of the motions hearing.

“A trial court has broad discretion in determining whether its orders have been complied with and its determination will not be overturned on appeal in the absence of an abuse of discretion.” Hamilton v. Hamilton, 292 Ga. 81, 82 (1) (734 SE2d 355) (2012). At the hearing on Wood’s motion, the State generally raised this argument, although it did not specifically point the court’s attention to its standing order, and concurrently made its arguments regarding waiver and joinder. The court rejected all of the State’s procedural arguments, based, in part, on the fact that Wood is subject to a travel ban. Given that Wood’s counsel appeared on his behalf to argue the motion, we find no abuse of discretion in the trial court’s rejection of the State’s argument.

4. In its final enumeration of error, the State argues that the trial court erred in failing to assign any weight to the trial delay caused by Wood’s own actions. The State argues that the trial court erred by concluding that there was no evidence that the State was seeking to extradite Wood, and erred in failing to recognize that delays in extraditing Wood were the result of Wood’s challenge to those proceedings and due to federal, not state, actions.

During the hearing, both parties operated on a mistaken assumption that the clerk’s file contained all of the necessary records regarding the pending extradition proceedings. The trial court took judicial notice of the clerk’s entire file. The trial court realized some time later that the file did not contain such records, and concluded therefore that there was no evidence of any extradition proceedings. Accordingly, the trial court also concluded that the State had provided no evidence supporting its argument regarding the delay since the 2013 indictment, and weighed that time period against the State.

The trial court erred when it concluded that there was no evidence of efforts to extradite Wood without considering the representations made by Wood, through counsel. In his motion to dismiss on speedy trial grounds, Wood specifically acknowledged that the United States government executed an extradition request to Finland. It has been recognized that a defendant in a criminal proceeding may make judicial admissions in his pleadings, motions, and briefs, and that such admissions bind the defendant. Bannister v. State, 202 Ga. App. 762, 766 (1) (b) (415 SE2d 912) (1992); see also Froelich v. State, 210 Ga. App. 647, 648 at n. 1 (437 SE2d 358) (1993). Wood’s admission that the federal government filed an extradition request is binding on him for purposes of resolving his motion to dismiss. Id.

Given the trial court’s factual error in concluding that there was no evidence that the government sought to extradite Wood, we must vacate and remand. When a trial court considering a constitutional speedy trial claim clearly errs in a material factual finding, the court’s exercise of discretion in applying the Barker balancing test “can be affirmed only if the appellate court can conclude that, had the trial court used the correct facts and legal analysis, it would have no discretion to reach a different, judgment.” State v. Pickett, 288 Ga. 674, 679 (2) (d) (706 SE2d 561) (2011). The trial court weighed the reason for the delay after the re-indictment because it mistakenly believed there was no evidence that any effort had been made to extradite Wood. Had the trial court correctly considered the evidence before it, it is possible that it would have weighed the second Barker factor differently Accordingly, we vacate and remand for the trial court to reconsider the evidence and conduct a new Barker analysis. On remand, the trial court may also consider whether counsel’s statements at the hearing are admissible and binding on Wood. Alternatively, it may also permit the parties to supplement the record with other evidence regarding the extradition proceedings that no party actually disputes have occurred, including evidence that both parties had mistakenly assumed was in the clerk’s file.

Decided June 30, 2016

Reconsideration denied July 15, 2016

Brian M. Rickman, District Attorney, J. Edward Staples, Jr., Assistant District Attorney, for appellant.

The Merchant Law Firm, Ashleigh B. Merchant, for appellee.

Judgment vacated and case remanded with direction.

Phipps, P. J., and Dillard, J., concur.

On Motion for Reconsideration.

On motion for reconsideration, Wood argues that defense counsel’s statements during argument at the motion hearing could not have been used against him and, as a result, a remand is unnecessary Wood ignores the fact that we are vacating the trial court’s order because, when it concluded that there was “no evidence that the State is seeking to extradite [Wood],” it overlooked his admission made in his motion to dismiss that an extradition request had been filed. In his motion for reconsideration, Wood makes no argument challenging our conclusion that his statement in his motion was binding on him. Therefore, contrary to Wood’s argument, the trial court did not consider all the relevant evidence.

Wood also argues that we erred in stating that the evidence of the extradition proceedings was inadvertently omitted, and suggests that the State deliberately withheld that information for strategic reasons. This argument is not supported by the record.

Motion for reconsideration denied.

       The trial court entered its order of dismissal at 4:20 p.m. on June 30, 2015, the last day of the court’s term. OCGA § 15-6-3(25)(A). The State filed its motion for reconsideration in the next term on July 7,2015, and the trial court concluded that it lacked authority because the case was no longer before it.

       It is the State’s responsibility to ensure that any evidence it intends to rely upon is properly submitted to the trial court for consideration, though the trial court has discretion to request that the parties supplement the record prior to entering its order where it appears the evidence was inadvertently omitted, and where both parties refer to it.

       The State also argues the trial court erred in ignoring evidence that Wood left the country because he feared the possibility of being criminally charged for his actions. But we need not reach this argument because of our holding here.

       In addition to the statements in the motion to dismiss, defense counsel made further statements showing that the government had initiated an extradition request. Specifically, Wood’s counsel acknowledged that the State “put in their extradition request [in] September of 2013.” Wood’s counsel also acknowledged that the extradition request included “extensive affidavits [,] and that the second extradition request attached the new indictment and other materials, and that “[a]ll of that was part of their application for extradition.” Wood’s counsel argued that the first indictment “would not have rendered [Wood] extraditable. But the second one did.” Wood’s counsel went on to argue that although she could not compel the presence of Wood’s extradition attorney, Wood “was litigating in Finland against that extradition when the new indictment came down, and that significantly changed the extradition concern over there.” “Generally, a statement by defense counsel made in the presence of the defendant relating to the defendant’s conduct is considered a statement by the defendant himself if the defendant does not repudiate counsel’s authority to make the statement.” Flading v. State, 327 Ga. App. 346, 350 (1) (759 SE2d 67) (2014) (citation omitted). And an admission by a defense attorney is admissible where it is shown that the statement was authorized by the defendant. See Johnson v. State, 231 Ga. App. 823, 824(2) (499 SE2d 145) (1998). The trial court did not analyze whether counsel’s statement could be considered as a statement by Wood himself, and we cannot make a determination in the first instance. See State v. Holler, 224 Ga. App. 66, 69 (1) (479 SE2d 780) (1996) (admission of evidence is within the discretion of the trial court). We note that under OCGA § 24-8-801(d)(2)(D), a party may use a statement by the opponent party’s agent as an admission by the opponent, and federal case law, which is relevant in interpreting the new Evidence Code, has held that the federal counterpart to this statute allows statements by an attorney tobe admissible against a defendant in criminal cases. See United States v. Harris, 914 F.2d 927, 931 (7th Cir. 1990); United States v. Margiotta, 662 F.2d 131, 142 (2d Cir. 1981).