text:
    A17A0408.
    A17A0409, A17A0410.
    AUTO-OWNERS INSURANCE COMPANY v. DOLAN et al. AIR MECHANIX, LLC v. DOLAN et al.; and vice versa.
    (803 SE2d 104)
   McFADDEN, Presiding Judge.

Michael and Shana Dolan filed a complaint against Air Mechanix, LLC, and others, asserting claims arising from the allegedly negligent installation of air conditioning ductwork in the Dolans’ house. Auto-Owners Insurance Company, which had issued a commercial general liability insurance policy to Air Mechanix, was permitted to intervene. The case was tried before a jury, which returned a verdict in favor of the Dolans. The special verdict form used by the jury included specific amounts awarded for different types of damages which totaled $1 million. But in filling out the line totaling those itemized amounts, the jury incorrectly wrote $1,000,000,000 instead of $1,000,000. The trial judge read the verdict in open court, including the amounts itemized for each type of damages, and the judge twice stated without objection that the total award was for $1 million. The trial court subsequently entered judgment on the verdict in the amount of $1 million. These appeals followed.

In Case No. A17A0408, Auto-Owners challenges the trial court’s denial of its motion in limine; however, Auto-Owners has failed to show that the trial court abused its discretion in denying the motion. Auto-Owners also claims that the trial court erred in submitting a special verdict form to the jury because it did not conform to the evidence and was confusing; but neither of these objections to the special verdict form was raised at trial.

In Case No. A17A0409, Air Mechanix contends that the weight of the evidence showed that its negligence did not cause the mold in the house; however, we do not reweigh the evidence, and there was some evidence showing causation. Air Mechanix also contends that the trial court erred in denying its motion for a directed verdict as to the Dolans’ personal injury claims; but the evidence did not demand such a verdict. Air Mechanix further claims that the trial court erred in denying its motion for a mistrial based on improper closing argument; however, any error was harmless. Finally, contrary to Air Mechanix’s arguments, there was sufficient evidence to support the Dolans’ claim for additional living expenses.

In Case No. A17A0410, the Dolans contend that the trial court erred in directing a verdict on their fraud, punitive damages, and attorney fees claims; however, the Dolans failed to prove all the elements for such claims. The Dolans further claim that the trial court erred in excluding any reference to Air Mechanix’s liability insurance carrier at trial; however, the Dolans have not shown an abuse of discretion or harm from the ruling. Finally, the Dolans claim that the special verdict form was confusing; but they raised no objections to the form at trial. Accordingly, we affirm the judgment entered on the verdict.

Case No. A17A0408

1. Motion in limine.

Auto-Owners asserts that the trial court erred in denying its motion in limine to prohibit evidence that the Dolans suffered bodily injury caused by anything other than exposure to mold because such evidence was barred by the doctrines of res judicata and collateral estoppel. The assertions are without merit.

As a preliminary matter, we note that these assertions of error raise a question of collateral estoppel, or issue preclusion, and not one of res judicata, or claim preclusion. The doctrine of res judicata prevents the re-litigation of all claims which have already been adjudicated, or which could have been adjudicated, between identical parties or their privies in identical causes of action. By contrast, the related doctrine of collateral estoppel precludes the re-adjudication of an issue that has previously been litigated and adjudicated on the merits in another action between the same parties or their privies. Like res judicata, collateral estoppel requires the identity of the parties or their privies in both actions. However, unlike res judicata, collateral estoppel does not require identity of the claim — so long as the issue was determined in the previous action and there is identity of the parties, that issue may not be re-litigated, even as part of a differen t claim.

Etowah Environmental Group v. Walsh, 333 Ga. App. 464, 469-470 (1) (774 SE2d 220) (2015) (citations and punctuation omitted; emphasis in original) (physical precedent only).

Here, Auto-Owners relies on this court’s prior opinion in Auto-Owners’ separate declaratory judgment action to argue that res judicata barred the Dolans from presenting evidence that their bodily injuries were caused by something other than mold. See Dolan v. Auto Owners Ins. Co., supra. However, that prior case involved Auto-Owners’ declaratory judgment claims concerning exclusions from coverage under the insurance policy it had issued to Air Mechanix; that case did not litigate the merits of the Dolans’ negligence and other claims in the instant case. See id. at 606 (2). Thus, because the prior and current cases did not litigate identical causes of action, the doctrine of res judicata does not apply or support the motion in limine.

With regard to collateral estoppel, the specific issue raised by Auto-Owners’ motion in limine in this case — whether the Dolans could introduce evidence of bodily injury caused by something other than mold — was not actually litigated and decided in that prior declaratory judgment action. Accordingly, the doctrine of collateral estoppel did not prevent the introduction of such evidence in this case, and the trial court therefore did not abuse its discretion in denying the motion in limine seeking to exclude such evidence. See Hankla v. Jackson, 305 Ga. App. 391, 392 (1) (699 SE2d 610) (2010) (this court reviews a trial court’s ruling on a motion in limine for abuse of discretion).

2. Special verdict form.

Auto-Owners contends that the trial court erred by submitting a special verdict form to the jury that did not conform to the evidence and that was confusing. However, Auto-Owners did not object to the verdict form used by the court on these grounds. Rather, the trial transcript shows that the day before the case was submitted to the jury, the parties presented proposed verdict forms, and counsel for Auto-Owners objected to the Dolans’ proposed form on the grounds that it was complicated and that there was no evidence of damages caused by anything other than mold in the house. The trial judge indicated that he would look at the parties’ proposed verdict forms, prepare the court’s own verdict form, and show it to the parties the following day

The next morning, the parties reviewed the court’s special verdict form, and Auto-Owners did not object to it as confusing or not conforming to the evidence. Rather, counsel for Auto-Owners stated that he appreciated the court reconfiguring the parties’ proposals “to take care of the problems with the mold and non-mold claims,” and that his only objection was to a blank for the jury to fill in for an award of universal damages. Auto-Owners’ counsel explained, “the only objection I would have is, to me, it seems like it’s suggesting to them that they should award some particular amount and it would be more slanted toward the [pjlaintiff than to the [djefense.” The court did not expressly rule on that specific objection and apparently did not change its verdict form. After closing arguments and the jury charge, the parties again reviewed the verdict form to be submitted to the jury and no further objections were raised. The jury subsequently returned its verdict using the special verdict form submitted by the court, and the verdict was published in open court. The parties did not ask that the jurors be polled, no objections were raised to the verdict, and the jury was excused.

“The form of a verdict and the submission of a special verdict are within the discretion of the trial court, and, absent an abuse of that discretion, the court’s choice will not be overturned.” R. C. Acres v. Cambridge Faire Props., 331 Ga. App. 762, 764 (1) (771 SE2d 444) (2015) (citation and punctuation omitted). In this case, if the trial court’s verdict form was confusing or did not conform to the evidence, Auto-Owners’ remedy was “to object to the form used [on such grounds]. In the absence of [such] specific and timely objection^], a party waives error relating to the manner in which questions [on a special verdict form] are submitted to the jury” Milum v. Banks, 283 Ga. App. 864, 870 (2) (642 SE2d 892) (2007) (citation and punctuation omitted). Consequently, Auto-Owners’ “assertion^] that the verdict form was [confusing and did not conform to the evidence] cannot be raised now, as [those assertions were] not raised at the time the form was presented to the jury.” Pirkle v. Turner, 281 Ga. 846, 848 (2) (642 SE2d 849) (2007). Accord Mitchell v. Southern General Ins. Co., 194 Ga.App. 218, 221-222 (8) (390 SE2d 79) (1990) (claim of error waived where objection to special verdict form made in trial court differed from assertion of error made on appeal).

Case No. A17A0409

3. Causation.

Air Mechanix claims that there was insufficient evidence that its negligent installation of the air conditioning ductwork caused the mold in the Dolans’ house. The claim is without merit.

In a negligence case,

questions of causation are normally for the jury. Nevertheless, there must be sufficient evidence to create a jury question on the issue of causation. Thus, the defendant will be entitled to judgment as a matter of law where the record is devoid of any evidence that the defendant’s negligence was a cause in fact of the plaintiff’s injury

Redmon v. Daniel, 335 Ga. App. 159, 166 (1) (779 SE2d 778) (2015) (citations and punctuation omitted). Here, Air Mechanix does not argue that the record is devoid of any evidence that its negligence was a cause in fact of the mold. Rather, Air Mechanix argues that the “great weight of the evidence presented at trial on this issue” showed another cause of the mold. Thus, Air Mechanix is effectively asking this court to reweigh the evidence presented at trial. However, “an appellate court can only review the evidence to determine if there is any evidence to support the verdict. This [cjourt does not reweigh the evidence, as the finder of fact, in this case the jury, is the final arbiter of the weight of the evidence and the credibility of witnesses.” Turner v. Trammel, 285 Ga. 847, 848 (684 SE2d 623) (2009) (citations and punctuation omitted). The Dolans have pointed to some evidence showing that the negligent acts of Air Mechanix caused the mold in the house. Accordingly, Air Mechanix has failed to show that it was entitled to judgment as a matter of law.

4. Directed verdict.

Air Mechanix contends that the trial court erred in denying its motion for a directed verdict on the Dolans’ claims for personal injury We disagree.

A directed verdict is proper only when there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demands a certain verdict. We review a trial court’s denial of a motion for directed verdict under the “any evidence” standard. Thus, so long as there is some evidence to support the jury’s verdict, it must be upheld on appeal.

Ga. Dermatologic Surgery Centers v. Pharis, 339 Ga. App. 764, 770 (4) (792 SE2d 747) (2016) (citations and punctuation omitted). As Air Mechanix acknowledged when it moved for a directed verdict, the Dolans’ personal injury claims consisted of both health problems and emotional distress arising from the alleged negligence. The trial court instructed the jury that bodily injury damages included these personal injury claims; the verdict form did not specifically break down the bodily injury damages awarded for such claims; and as Air Mechanix further acknowledged at trial, there was evidence, including expert medical testimony, establishing that the Dolans suffered emotional distress and adjustment disorders resulting from the situation with their house.

It is well settled that a strong presumption exists in favor of the validity of jury verdicts. The verdicts may be construed in the light of the pleadings, the issues made by the evidence and the charge. If possible a construction will be given which will uphold them. . . . Additionally, when a jury does not specify upon which count the verdict was rendered, the verdict will not be subject to attack if it was authorized by the evidence under any of the counts.

Ledee v. Devoe, 250 Ga. App. 15, 21 (7) (549 SE2d 167) (2001) (citations and punctuation omitted). Because there was some evidence authorizing the verdict on the personal injury claims, the verdict is not subject to attack, and the court did not err in denying a directed verdict. See also Harrison v. Martin, 213 Ga. App. 337, 344 (1) (444 SE2d 618) (1994) (no error in denying directed verdict where verdict susceptible of construction which would uphold it under the evidence); Stratton Indus. v. Northwest Ga. Bank, 191 Ga. App. 683, 686 (2) (a) (382 SE2d 721) (1989) (alternative theories of recovery embraced by verdict).

5. Motion for mistrial.

Air Mechanix argues that the trial court erred in denying its motion for a mistrial after counsel for the Dolans made improper comments during closing arguments, telling the jury that a verdict for the plaintiffs would be “sending a message to Air Mechanix [that] this kind of conduct cannot go unanswered.” Counsel for Air Mechanix did not object contemporaneously to the comments but instead waited until after closing arguments had ended and the jury had returned to the jury room for deliberations, at which point he moved for a mistrial on the ground that asking the jury to send a message was tantamount to requesting punitive damages, which were not part of the case. The trial court did not rule on the motion, took the matter under advisement, allowed the jury to continue deliberations, received the verdict, dismissed the jury, and indicated that he still had the motion under advisement. Two weeks later, the trial court entered an order denying the motion for a mistrial.

Given the lack of a timely objection to the comments, “our appellate review of this issue is limited to whether the improper arguments in reasonable probability changed the result of the trial.” Young v. Griffin, 329 Ga. App. 413, 415 (2) (765 SE2d 625) (2014) (citation and punctuation omitted). Accord Stolte v. Fagan, 291 Ga. 477, 483 (2) (b) (731 SE2d 653) (2012). As the trial court found, the damages awarded by the jury were similar to what the Dolans had requested and itemized at trial, which did not include punitive damages. Based on the totality of the circumstances, the trial court was authorized to find that the allegedly improper comments during closing argument did not in reasonable probability change the result of the trial.

6. Additional living expenses.

Air Mechanix enumerates that the Dolans failed to sufficiently prove their claim for additional living expenses. “Where a party sues for damages, he has the burden of proof of showing the amount of loss in a manner in which the jury ... can calculate the amount of the loss with a reasonable degree of certainty. An allowance for damages cannot be based on guess work.” Tucker Nursing Center v. Mosby, 303 Ga. App. 80, 82 (1) (692 SE2d 727) (2010) (citations and punctuation omitted). Here, the Dolans sought additional living expenses incurred by having to leave their home for 77 months, and introduced testimony at trial showing that such expenses had averaged just over $3,500 per month. The jury awarded the Dolans $105,000, which was not based on guesswork but was well within the range of additional living expenses incurred as shown by the testimony. “A verdict will not be set aside as unsupported by the evidence when the amount of it is within the range covered by the testimony, though it may not correspond with the contentions of either party” Turner Broadcasting System v. McDavid, 303 Ga. App. 593, 609 (4) (693 SE2d 873) (2010) (citation and punctuation omitted). See also City of Atlanta v. WH Smith Airport Svcs., 290 Ga. App. 206, 210 (4) (659 SE2d 426) (2008) (jury verdict will not be disturbed on appeal where amount of verdict is within the range of testimony); Mortensen v. Fowler-Flemister Concrete, 252 Ga. App. 395, 397 (3) (555 SE2d 492) (2001) (“reviewing court will not interfere with a jury’s award of damages unless the amount is so small or so excessive that it justifies an inference of gross mistake or undue bias”).

Case No. A17A0410

7. Directed verdicts.

The Dolans contend that the trial court erred in granting directed verdicts against them on their claims for fraud, punitive damages, and attorney fees. We disagree.

(a) Fraud.

“To show fraud, a plaintiff must establish (1) false representation by defendant; (2) scienter or knowledge of the alleged falsehood; (3) intent to induce the plaintiff to act or refrain from acting; (4) justifiable reliance by the plaintiff; and (5) damage to the plaintiff.” Liberty Capital v. First Chatham Bank, 338 Ga. App. 48, 55 (2) (b) (789 SE2d 303) (2016) (citation and punctuation omitted). “If, however, evidence as to any of the elements of fraud is lacking, the fraud claim fails.” Lumpkin v. Deventer North America, 295 Ga. App. 312, 315 (1) (672 SE2d 405) (2008). In this case, there is no evidence of a false representation by Air Mechanix upon which the Dolans justifiably relied. The Dolans claim that Air Mechanix should have installed a rigid duct system instead of the flexible duct system that it installed. While there may be a conflict in the evidence as to what type of system should have been installed, the Dolans have pointed to no evidence showing that Air Mechanix misrepresented to them that it would install a rigid, rather than flexible, duct system. Thus, the evidence supports a negligence claim but does not support the contention of fraud. See Wilson v. Brighton Homes, 204 Ga. App. 677, 679-680 (3) (420 SE2d 360) (1992) (affirming directed verdict for defendant on fraud claim where no evidence defendant misrepresented facts to plaintiffs); Lively v. Garnick, 160 Ga. App. 591, 592-595 (1) (287 SE2d 553) (1981) (reversing denial of motion for judgment notwithstanding the verdict on fraud claim where evidence supported a finding of negligence but not fraud).

(b) Punitive damages.

The Dolans’ punitive damages claim was based on its fraud claim discussed above, and the Dolans acknowledge in their brief that once the trial court directed a verdict on their fraud claim, “the punitive damages [claim] necessarily failed as a matter of law.” Given our holding above that the trial court correctly directed a verdict as to the fraud claim, there remained no basis for the punitive damages claim. See Johnson v. Waddell, 193 Ga. App. 692 (1) (388 SE2d 723) (1989) (after directed verdict on fraud claim, no basis existed in case to support punitive damages claim). Accordingly, “the trial court did not err in directing a verdict for [Air Mechanix] on the issue[ ] of punitive . . . damages.” Wilson, supra at 680 (4).

(c) Attorney fees.

The Dolans soughtbadfaithattorneyfeesunderOCGA § 13-6-11. They argue that the trial court erred in directing a verdict on that claim because the same facts supporting their fraud claim would support a finding of bad faith. However, as found above, “the trial court properly granted [Air Mechanix’s] motion for directed verdict on [the Dolans’] fraud... claim[ ]. Accordingly, we find no error in the trial court’s decision to grant [Air Mechanix] a directed verdict on [the] claim[ ] for attorney fees[.]” Conner v. Hart, 252 Ga. App. 92, 97 (3) (555 SE2d 783) (2001). See also MARTA v. Mitchell, 289 Ga. App. 1, 4(659 SE2d 605) (2007) (mere negligence will not support an award of attorney fees based on bad faith).

8. Motion in limine.

The Dolans contend that the trial court erred in granting a motion in limine to disallow references to their interactions with Air Mechanix’s insurer, Auto-Owners. They claim that such evidence would have explained their conduct in refusing to allow Air Mechanix to replace its defective work and in moving out of their house. We find no reversible error.

“We review a trial court’s ruling on a motion in limine for abuse of discretion. A motion in limine is properly granted when there is no circumstance under which the evidence under scrutiny is likely to be admissible at trial." AgSouth Farm Credit v. Gowen Timber Co., 336 Ga. App. 581, 587 (2) (784 SE2d 913) (2016) (citation and punctuation omitted). In this case, we cannot say that the trial court abused its discretion in declining to allow the Dolans to make references to the defendant’s insurer for the purported reason of explaining conduct. “In an ordinary negligence case, not only is a liability insurance policy of a litigant not admissible in evidence, but disclosure to the jury of the mere existence of such contract is ground for a mistrial.” Central of Ga. R. Co. v. Wooten, 163 Ga. App. 622, 624 (2) (295 SE2d 369) (1982) (citation and punctuation omitted). Indeed, “evidence of insurance will rarely be admissible in a personal injury tort action such as this, even to counter a false impression created by other testimony This is because evidence of collateral benefits is readily subject to misuse by a jury” Kelley v. Purcell, 301 Ga. App. 88, 89-90 (686 SE2d 879) (2009) (citations and punctuation omitted). Moreover, even if we were to find an abuse of discretion in granting the motion in limine, the Dolans, who obtained a verdict of damages within the range requested, have not shown harm from the ruling. See generally Gurly v. Hinson, 194 Ga. App. 673 (1) (391 SE2d 483) (1990) (any error in trial court prohibiting plaintiff from asking defendant about an insurance claim form was harmless where question was relevant to liability and verdict was rendered for the plaintiff).

9. Special verdict form.

The Dolans enumerate as error that the special verdict form was confusing to the jury. However, they did not raise this, or any other, objection to the verdict form in the trial court. Consequently, they cannot raise such an assertion for the first time on appeal. See Pirkle, supra at 848 (2); Mitchell, supra at 203 (3).

Judgments affirmed.

Branch and Bethel, JJ., concur.

Decided June 28, 2017

Kendall Law Group, Michael C. Kendall; R. Stephen Sims, for Auto-Owners Insurance Company.

Southeast Law, Ashleigh R. Madison, for Dolan et al.

Barrow & Ballew, Walter W. Ballew III, for Air Mechanix, LLC.

       Shana Dolan is also referred to as Shana Jackson in the record. We use the name Shana Dolan in this opinion.

       The trial court granted summary judgment motions filed by the other defendants, Cotton States Mutual Insurance Company and Old Republic Home Protection Company, Inc., and those rulings were affirmed by this court in Dolan v. Air Mechanix, 329 Ga. App. XXV (Case No. A14A1066) (November 18, 2014) (unpublished).

       Auto-Owners also filed a separate declaratory judgment action seeking a determination as to certain exclusions of coverage under the policy. The trial court granted summary judgment to Auto-Owners, and that ruling was affirmed in part and reversed in part in Dolan v. Auto Owners Ins. Co., 333 Ga. App. 601 (773 SE2d 789) (2015).


source: Caselaw Access Project

author: Ray, Judge. DILLARD, Presiding Judge,

license: Public Domain

text:
    A17A0108.
    THE STATE v. DORSEY.
    (802 SE2d 61)
   Ray, Judge.

Nakia Dorsey was indicted with two counts of false imprisonment, two counts of sexual battery, and one count of simple battery arising from incidents that took place during his employment as a sheriff’s deputy. The State appeals from the trial court’s order granting Dorsey’s plea in bar and motion to dismiss each count of the indictment. On appeal, the State argues that the trial court erred in finding that the three misdemeanor counts — two counts of sexual battery and one count of simple battery — were barred by the statute of limitation. The State also argues that the trial court erred in granting Dorsey’s motion to dismiss the two counts of false imprisonment because the State allegedly failed to comply with OCGA §§ 17-7-52 and 45-11-4. For the following reasons, we affirm the trial court’s dismissal of the three misdemeanor counts and reverse the trial court’s dismissal of the false imprisonment counts.

The State alleges that Dorsey committed crimes against two women on two separate dates. The indictment alleges that Dorsey committed false imprisonment against one woman on October 3, 2011, and that Dorsey committed false imprisonment, two counts of sexual battery, and one count of simple battery against another woman on May 30, 2012. Dorsey filed a plea in bar and motions to dismiss the indictment.

At the hearing on these motions, the State made the following proffer: On the dates of the incidents, Dorsey was employed as a deputy with the Fulton County Sheriff’s Department and was assigned to the court services division. On October 3, 2011, Dorsey was working in a courtroom when he confiscated a cell phone from a female defendant in a court proceeding. The woman was not in the custody of the State. He later escorted the victim to an office adjacent to the courtroom where he held her against her will, grabbed her breasts and buttocks, placed her hand on his penis and exposed his penis to her. On May 30, 2012, Dorsey was assigned to a courtroom when he confiscated a cell phone from another female defendant in a court proceeding. She was also not in the State’s custody. He later took the victim to another courtroom on the fifth floor of the courthouse, where he held her against her will while he touched her breasts and buttocks, put his mouth on her breasts, and exposed his penis to her. The women immediately made outcries to other deputies. The October 2011 incident was handled internally, but the May 2012 incident was reported to the police.

The trial court granted Dorsey’s motion to dismiss the misdemeanor charges and granted his plea in bar. The State appeals from that order.

1. The State argues that the trial court erred when it granted Dorsey’s plea in bar as to the three misdemeanor counts on the grounds that the indictment was filed one day late. We disagree.

The appellate standard of review for a plea in bar asserting a statute of limitation defense is a de novo review of the issues of law. As this ruling involves a mixed question of fact and law, we accept the trial court’s findings on disputed facts and witness credibility unless they are clearly erroneous, but independently apply the law to the facts.

(Citation and punctuation omitted.) Royal v. State, 314 Ga. App. 20, 21 (1) (723 SE2d 118) (2012). The State bears the burden of proving that a crime occurred within the statute of limitation. State v. Boykin , 320 Ga. App. 9, 10 (1) (739 SE2d 16) (2013).

The State’s indictment was filed on May 30, 2014, exactly two years after the incidents that took place on May 30, 2012. The trial court granted Dorsey’s plea in bar, reasoning that the date of the offense is counted in the computation of the limitation period and, thus, that the indictment had been filed a day after the expiration of the statute of limitation.

OCGA § 17-3-1 (e) provides that the “[p]rosecution for misdemeanors shall be commenced within two years after the commission of the crime.” The two-year period in which a misdemeanor must be prosecuted runs from the date the offense is committed until the date the original accusation is filed. Prindle v. State, 240 Ga. App. 461, 461 (1) (523 SE2d 44) (1999). See also Boykin, supra at 10 (1) (“In criminal cases, the period of limitation runs from the commission of the offense to the date of the indictment”) (citation and punctuation omitted).

Dorsey cites McLendon v. State, 14 Ga. App. 274 (80 SE 692) (1914), for the assertion that the State’s indictment was filed a day late. In McLendon, this Court noted that two lines of cases had developed: in one, “[w]here days are to be computed,” the time computation statute applied and “only the first or last day counted,” but in the other, where the computation is of months or years, “the right is lost unless invoked on or before the day last preceding the day of the month or year corresponding to the day upon which the right accrued.” Id. at 274-275. As the misdemeanor statute of limitation was measured in years, and not days, McLendon held that an accusation filed on the second anniversary of the alleged crime was one day late. Id.

The State argues that McLendon has been superseded by statute. In 1985, the General Assembly amended OCGA § 1-3-1, which governs the construction of statutes. OCGA § 1-3-1 (d) (3) provides, in pertinent part:

Computation of time. Except as otherwise provided by time period computations specifically applying to other laws, when a period of time measured in days, weeks, months, years, or other measurements of time except hours is prescribed for the exercise of any privilege or the discharge of any duty, the first day shall not be counted but the last day shall be counted; and, if the last day falls on Saturday or Sunday, the party having such privilege or duty shall have through the following Monday to exercise the privilege or to discharge the duty. When the last day prescribed for such action falls on a public and legal holiday..., the party having the privilege or duty shall have through the next business day to exercise the privilege or to discharge the duty. . . .

(Emphasis supplied.) However, OCGA § 1-3-1 (d) (3) does not apply to the statute of limitation in criminal prosecutions. In McLendon, supra, this Court specifically held that a criminal “prosecution is not the ‘exercise of any privilege’ or the ‘discharge of any duty’by a person claiming a right, and certainly in criminal prosecutions Sundays are not to be excluded in the calculation oftime.” McLendon, supra. When interpreting the meaning of a statute,

we must presume that the General Assembly had full knowledge of the existing state of the law and enacted the statute with reference to it. We construe statutes in connection and in harmony with the existing law, and as a part of a general and uniform system of jurisprudence, and their meaning and effect is to be determined in connection, not only with the common law and the constitution, but also with reference to other statutes and the decisions of the courts.

(Citations and punctuation omitted.) Chase v. State, 285 Ga. 693, 695-696 (2) (681 SE2d 116) (2009). See also Barbush v. Oiler, 158 Ga. App. 625, 625 (281 SE2d 359) (1981) (“Statutes are to be construed in connection and in harmony with existing law”) (citation and punctuation omitted).

Since we assume that the General Assembly had knowledge of the holding in McLendon, supra, it is clear that by specifically noting that OCGA § 1-3-1 (d) (3) applies only to the “exercise of any privilege or the discharge of any duty[,]” the General Assembly excluded criminal prosecutions from the calculation of the statute of limitation in that statute. Criminal defendants have the right to be prosecuted in a timely manner, and it is clear that the General Assembly did not grant the State additional time in which to seek such a prosecution if the statute of limitation falls on a weekend or a legal holiday. Accordingly, we find that the trial court did not err in concluding that the State’s prosecution of the three misdemeanor charges was barred by the statute of limitation.

2. Dorsey moved to quash the indictment on the ground that he had not been permitted to be present and to make a sworn statement when the case was presented to the grand jury “Peace officers are afforded these rights under OCGA §§ 17-7-52 and 45-11-4 if charged with a crime which is alleged to have occurred while in the performance of their official duties.” (Punctuation omitted.) Gober v. State, 203 Ga.App. 5, 5 (1) (416 SE2d 292) (1992), overruled in part on other grounds, Dudley v. State, 273 Ga. 466, 468, n. 4 (542 SE2d 99) (2001). The trial court granted the motion, finding that Dorsey was performing his official duties because he was on duty in the courthouse and in uniform at the time of the alleged crimes. The State alleges that this finding was in error. Under precedent to which we are bound, we agree and reverse this holding by the trial court.

OCGA § 17-7-52 (a) “was intended to afford to police officers the same procedural protection afforded to other public officials as to accusations arising from the performance or non-performance of their official duties.” (Citations and punctuation omitted.) Worthy v. State, 307 Ga.App. 297, 304(3) (704 SE2d 808) (2010). OCGA § 45-11-4 is “narrowly drawn and relate[s] only to misconduct in public office.” (Citation and punctuation omitted.) Id.

In Gober, supra, this Court held that a Georgia State Patrol officer who took a driver into custody for DUI was not acting in the performance of his official duties when, instead of taking her to jail, he drove her to a secluded place and exchanged sex for a promise not to arrest her. Accordingly, the trial court’s denial of the defendant’s motion to quash the indictment for failure to comply with OCGA §§ 17-7-52 and 45-11-4 was not in error. Id. at 5-6 (1).

Decided June 14, 2017

Reconsideration denied June 29, 2017

Paul L. Howard, Jr., District Attorney, Paige Reese Whitaker, Kevin C. Armstrong, Assistant District Attorneys, for appellant.

Villani Law Firm, Ralph J. Villani, for appellee.

In the instant case, Dorsey did not testify at the hearing on the motion to quash the indictment, but the State acknowledged that he was a certified peace officer and that the alleged offenses occurred during his working hours. However, Dorsey stepped aside from the performance of his official duties when he allegedly engaged in acts of restraining women against their will, groping their breasts and buttocks, and exposing his genitalia. See State v. Galloway, 270 Ga. App. 184, 185 (606 SE2d 273) (2004) (police officer who took women into custody and forced them to engage in sexual intercourse was not doing so in the performance of his official duties); Wiggins v. State, 280 Ga. 268, 269-270 (1) (626 SE2d 118) (2006) (police officer was not acting in the course of his official duties when he threatened a minor with arrest if she did not have sex with him).

Judgment affirmed in part and reversed in part.

Self, J., concurs. Dillard, P. J., concurs fully in Division 1 and concurs in judgment only in Division 2.

DILLARD, Presiding Judge,

concurring fully in Division 1 and concurring in judgment only in Division 2.

I concur fully in Division 1 and concur in judgment only in Division 2 because I do not agree with all that is said in that division of the majority opinion. As a result, Division 2 of the majority opinion decides only the issues presented in that division and may not be cited as binding precedent. See Court of Appeals Rule 33 (a).

       Under the rationale and analysis put forth by the State, it might have more than two years to file an indictment under OCGA § 1-3-1 if that date falls on a Saturday. If the following Monday were also a holiday, it could even receive two or more extra days to file an indictment. We do not agree that this is permitted by OCGA § 1-3-1.


author: McMlLLIAN, Judge.

text:
    A17A0114.
    KOLB v. NORTHSIDE HOSPITAL.
    (802 SE2d 413)
   McMlLLIAN, Judge.

Susan Kolb, M.D., appeals the trial court’s grant of summary judgment to Northside Hospital (“Northside”) on her claims for breach of contract, negligence, tortious interference with business and contractual relations, and attorney fees arising out of the suspension of her medical staff privileges at the hospital. At issue in this appeal is whether the federal Health Care Quality Improvement Act of 1986 (the “HCQIA”), 42 USC § 11101 et seq., bars Dr. Kolb’s recovery of money damages against Northside. Because we find that HCQIA immunity applies as a matter of law, we affirm the trial court’s grant of summary judgment in favor of Northside.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant.

(Citation omitted.) Elder v. Hayes, 337 Ga. App. 826, 827 (788 SE2d 915) (2016).

So viewed, the evidence shows that Dr. Kolb is a plastic surgeon licensed to practice in the State of Georgia. She became a member of the medical staff at Northside on January 1, 1992. In late October 2007, Dr. Wayne L. Ambroze, who was vice chairman of the Medical Executive Committee (the “MEC”) and vice chief of staff at Northside, notified Dr. Kolb in a telephone call that her privileges to practice at the hospital were being summarily suspended. Dr. Ambroze, along with Dr. Diane Wisebram, the chairman of the MEC, made the decision to suspend Dr. Kolb’s privileges after receiving reports from various Northside staff members about Dr. Kolb.

On November 1,2007, Drs. Wisebram and Ambroze sent Dr. Kolb a letter formally notifying her of her suspension and asserting that it was based on a “reasonable suspicion of impairment,” arising from reports of statements that Dr. Kolb had made (the “Suspension Letter”). The letter stated that before Dr. Kolb’s privileges could be reinstated, Northside required that she submit to a medical and psychiatric evaluation, with the results furnished to the hospital, and further informed her that under the hospital’s “Medical Staff By-laws” (the “Bylaws”), she was entitled to a fair hearing on her suspension.

Dr. Kolb opted for a fair hearing, in lieu of the medical and psychiatric evaluations, and it was scheduled for January 7,2008. An outside attorney was engaged to serve as the hearing officer, and four physicians not previously involved in the decision to suspend Dr. Kolb were appointed as members of the Fair Hearing Committee (FHC). At Dr. Kolb’s request, the committee members were subjected to a number of voir dire questions submitted by her counsel, and she raised no objection to their service. Both Dr. Kolb and the MEC were represented by counsel at the hearing, which spanned two evenings and included over eight hours of evidence and argument on January 7 and February 5, 2008.

The FHC issued a written report in late February 2008 concluding that the MEC “presented sufficient evidence to convince the Fair Hearing Committee, by a preponderance of the evidence, that its action in imposing summary suspension of Dr. Kolb’s clinical privileges was based in fact and was not arbitrary, unreasonable or capricious.” The FHC also found that “it could not, in good faith, make any recommendation that Dr. Kolb be allowed to continue to practice at Northside Hospital without an appropriate evaluation and intervention.” Nevertheless, the FHC stated that “with a thorough long-term independent evaluation and compliance with any recommended treatment and monitoring, [it] felt there might be a limited opportunity for Dr. Kolb to demonstrate her ability to practice at Northside Hospital in the future” and listed recommended steps for her to follow to seek reinstatement.

Dr. Kolb appealed the FHC’s decision to an Appellate Review Committee, comprised of three members of Northside’s Board of Directors (the “Appellate Committee”). At Dr. Kolb’s request, no oral argument was held before that committee. In its written decision in May 2008, the Appellate Committee unanimously found that the FHC’s decision regarding the suspension of Dr. Kolb “was justified and was not arbitrary, unreasonable, or capricious.” However, the Appellate Committee recommended certain modifications to the FHC’s recommended steps for Dr. Kolb to follow before seeking reinstatement of her privileges at Northside. Nothing in the record shows that Dr. Kolb followed the recommendations of either the Fair Hearing or the Appellate Committees.

Over four years later, Dr. Kolb initiated this action, and she now appeals the trial court’s grant of summary judgment on her claims, arguing that the trial court applied an incorrect standard of review by failing to view the facts in the light most favorable to her and instead giving undue deference to the hospital’s decision, thus depriving her of a meaningful review of the record. She also argues that under the proper standard of review, a jury could find that Northside was not entitled to immunity from damages under the HCQIA.

1. As an initial matter, we note that “HCQIA immunity is a question of law for the court to decide and may be resolved whenever the record in a particular case becomes sufficiently developed.” (Citation and punctuation omitted.) Taylor v. Kennestone Hosp., Inc., 266 Ga. App. 14, 14 (596 SE2d 179) (2004). See also Bryan v. James E. Holmes Regional Med. Center, 33 F3d 1318, 1332 (III) (A) (11th Cir. 1994). Here, the parties agree that the HCQIA governs the peer review decision resulting in Dr. Kolb’s suspension, although they dispute whether Northside complied with the statute in conducting that review. See 42 USC § 11151 (9) (defining “professional review action”). The HCQIA provides immunity from monetary damages for professional review actions taken

(1) in the reasonable belief that the action was in furtherance of quality health care,
(2) after a reasonable effort to obtain the facts of the matter,
(3) after adequate notice and hearing procedures are afforded to the physician involved or after such other procedures as are fair to the physician under the circumstances, and
(4) in the reasonable belief that the action was warranted by the facts known after such reasonable effort to obtain facts and after meeting the requirement of paragraph (3).

42 USC § 11112 (a). See also 42 USC § 11111 (a) (1) (providing that professional review actions meeting the requirements of § 11112 (a) insulate, inter alia, the professional review body, its members, and staff from liability for money damages under federal or state law for claims arising out of their actions, with certain limited exceptions not applicable here).

Under 42 USC § 11112 (a), professional review actions are presumed to have met these statutory requirements, and the burden is on the opposing party to rebut that presumption by a preponderance of the evidence. Therefore, “the presumption language in [the] HCQIA means that the plaintiff bears the burden of proving that the peer review process was not reasonable.” (Emphasis in original.) Bryan, 33 F3d at 1333 (III) (A).

2. Dr. Kolb first argues that the trial court erred in giving great deference to Northside’s decision to suspend her privileges instead of construing the evidence in her favor on summary judgment.

This Court has held that in reviewing the issue of immunity under the HCQIAon summary judgment, a “trial court is required to determine, viewing the facts in the light most favorable to the plaintiff, whether a reasonable jury could conclude that the plaintiff has shown by a preponderance of the evidence that the peer review activities did not meet the standards set forth in the Act.” (Citation and punctuation omitted; emphasis in original.) Patton v. St. Francis Hosp., 260 Ga. App. 202, 205 (1) (b) (581 SE2d 551) (2003). See also Davenport v. Northeast Ga. Med. Center, 247 Ga. App. 179, 180 (542 SE2d 525) (2000); Bryan, 333 F3d at 1333-34 (III) (A). However, this Court also has held that the HCQIA “grants broad discretion to hospitals with regard to staff privileges decisions, and our role on review of such actions is not to substitute our judgment for that of the hospital’s governing board or to reweigh the evidence regarding the termination of medical staff privileges.” (Citation and punctuation omitted.) Patton, 260 Ga. App. at 207-08 (1) (c) (iv). See also Univ. Health Svcs., Inc. v. Long, 274 Ga. 829, 829 (561 SE2d 77) (2002). This Court, on occasion, has expressed this standard as giving “deference” to a hospital’s review decision. See Burrowes v. Northside Hosp., 294 Ga. App. 472, 476 (2) (671 SE2d 176) (2008).

Here, the trial court found that no genuine issues of material fact existed and recited the standards that “its role was not to substitute its judgment regarding a physician’s competency for the medical judgment of the hospital” and that it was required to give “great deference to the hospital’s medical decision and that of the governing body of the hospital.” Although the trial court did not expressly recite the requirement that the evidence must be construed in the light most favorable to Dr. Kolb, we find no indication that the trial court failed to do so. See Patton, 260 Ga. App. at 205 (1) (b). But pretermit - ting whether the trial court properly construed the evidence, our review of the trial court’s order on appeal is de novo, and we apply the standard set forth in Patton in our review of the evidence.

3. Dr. Kolb also contends that the trial court erred in granting summary judgment to Northside because, viewing the evidence in the proper light, a reasonable jury could conclude by a preponderance of the evidence that Northside failed to comply with the HCQIA by (1) admitting that Dr. Kolb’s care of her patients was not at issue; (2) failing to follow its own Bylaws; (3) suspending Dr. Kolb without conducting an investigation; and (4) improperly focusing on her religion.

(a) The first requirement for immunity under the HCQIA is that Northside’s action be taken in the reasonable belief that it “was in the furtherance of quality health care.” 42 USC § 11112 (a) (1). Dr. Kolb contends that Northside did not meet this requirement because her suspension was not based on issues involving her patient care.

“A professional review action is taken in the reasonable belief that it is in furtherance of quality health care if on the evidence then before them, the reviewers would reasonably have concluded that their action would restrict incompetent behavior or would protect patients.” (Citation and punctuation omitted.) Patton, 260 Ga. App. at 206(1) (c) (i). “The Act does not require that the professional review result in an actual improvement of the quality of health care. Our focus is on the reasonableness of the peer reviewers’ belief that they were furthering the quality of health care.” (Citations and punctuation omitted.) Patrick v. Floyd Med. Center, 255 Ga. App. 435, 440 (3) (a) (i) (565 SE2d 491) (2002).

(i) In summarily suspending Dr. Kolb’s medical privileges, North-side cited a reasonable suspicion of impairment based on reports that she had made statements indicating that she carried a gun because there was a bounty on her head; the DeKalb County police had recommended that she carry a weapon after multiple assassination attempts against her; the government may be after her because she had removed a microchip implanted in a patient in the federal witness protection program; she is the reincarnation of Lizzie Borden; the military wanted to hire her “to conduct ‘remote viewing’[] through out-of-body experiences”; and she uses her psychic powers to help people find things.

At the fair hearing, Dr. Wisebram, the MEC chairman, testified about a conversation she had with Dr. Kolb shortly before the suspension on an unrelated matter. She said that during that conversation, Dr. Kolb volunteered that she carried a gun because there had been three assassination attempts on her life. The MEC also presented testimony from other hospital personnel regarding interactions they had with Dr. Kolb, which they had reported to various authorities at Northside. These reports included testimony that Dr. Kolb had stated that a manufacturer of silicone was trying to kill her and the FBI might be after her; she carries a gun because there is a bounty on her head (and in October 2007, she appeared to have her gun in the area outside the operating room); the military wanted to hire her to do remote viewing; the government may be after her because she removed a microchip from a federal witness; and a silicone manufacturer and/or the government was out to get her and had possibly hired a hit man. Karen Parham, the operations coordinator at a Northside facility, testified that in October 2007, some of her staff reported that they were nervous about working with Dr. Kolb because she “kind of frightened them a little bit” when she made such statements. Parham obtained written reports from these individuals and forwarded them to Northside’s risk management department. Another witness testified that Dr. Kolb’s statement about her gun made her very concerned about her own safety

Dr. Ambroze testified that the main concern behind Dr. Kolb’s suspension was the issue of the gun, explaining,

[M]y responsibility as part of the medical staff leadership is to protect staff and patients. And to me, if . . . you’re delusional and you have a gun on campus, we’ve got a problem. And, on the other hand, if there are assassins after you and you’re aware of this and you feel you need a gun to protect yourself, then our staff and patients are still in danger of being caught in the crossfire. ... So either way, I just could not see . . . avoiding the suspension.

Dr. Wisebram confirmed that the main concern behind the suspension involved Dr. Kolb’s possession of the gun and the statements from the staff. She explained,

We were concerned about if, indeed, she did have assassination attempts against her life, somebody is going to come in this hospital and shoot her. And we’re going to have a shoot-out in front of our hospital while somebody is trying to assassinate her and, you know, assuming that the assassination attempts could be real, is somebody going to come in this hospital and open fire on her, take out some of your nurses and our patients.

Although Dr. Kolb denied making some of the statements and presented evidence to explain other statements and her reasons for carrying the gun, she testified that she had reason to believe that there had been several attempts on her life, and although she did not report them to police, she admitted that she told Dr. Wisebram about them.

We find that this and other evidence presented by Dr. Kolb, including testimony from a psychiatrist she hired to perform an evaluation for the hearing, were insufficient to overcome the presumption that the MEC acted in the reasonable belief that her suspension was in furtherance of quality health care. See Davenport, 247 Ga.App. at 185 (1) (a) (revocation of medical staff privileges made in the reasonable belief that it was in furtherance of quality health care, where numerous complaints were submitted regarding the doctor’s call coverage, compliance with hospital rules and policies, and interaction with nursing personnel).

(ii) Dr. Kolb further asserts that Northside improperly focused on her religious and spiritual beliefs instead of patient care in suspending her privileges. In support of this argument, she cites the testimony of three MEC witnesses, who testified that Dr. Kolb sometimes read the auras of patients and staff, she believed in clairvoyance and psychic powers, and she sometimes practiced Reiki with her patients. One of these witnesses said that a gesture Dr. Kolb performed with her hand over a patient was “eerie” and a fourth witness said that her comments about remote viewing made the witness feel uncomfortable. Although a number of witnesses cited Dr. Kolb’s spiritual practices, the record demonstrated that such matters were not the primary basis for her suspension. As Dr. Wisebram stated, “We weren’t as concerned about healing powers or psychic powers. We were concerned about a gun.” The Suspension Letter itself made this point, stating that

Medical Staff leadership has determined that the statements noted above, in particular the repeated statements about multiple assassination attempts and statements that you are carrying a handgun, constitute such a direct and immediate threat, which requires that action be taken immediately to protect the life, health and/or welfare of North-side’s patients and staff....

Dr. Kolb has introduced no competent evidence that any bias against her religious and spiritual beliefs was a deciding factor in the review process. “In any event claims of bias are irrelevant to the reasonableness standards of 42 USC § 11112 (a) of the Act,” because Georgia “[has] adopted an objective standard of reasonableness in this context.” (Citation and punctuation omitted.) Patrick, 255 Ga. App. at 440-41 (3) (a) (i).

Therefore, even construing the evidence in Dr. Kolb’s favor, we find that Dr. Kolb failed to demonstrate that a reasonable jury could conclude that she has shown by a preponderance of the evidence the MEC’s decision to suspend her was not based on a reasonable belief that it was furthering the quality of health care at the hospital.

(b) Dr. Kolb additionally argues that Northside failed to follow the procedures outlined in its Bylaws for interventions for impaired providers, and thus, the MEC’s decision was per se unreasonable.

The Suspension Letter stated that the Northside impaired provider committee had determined

there are sufficient specific, contemporaneous physical, behavioral or performance indicators consistent with substance abuse or other psychiatric or medical conditions to support the reasonable suspicion of impairment which may affect your clinical judgment or may otherwise constitute a direct and immediate threat to the health, welfare and safety of patients or others in the hospital.

Citing § 8.4 of the Bylaws governing summary suspensions, the Suspension Letter states that “a [p]ractitioner who is . . . suffering from an impairment may be summarily suspended . . . based on conduct which constitutes a direct and immediate threat to the physical or mental health, welfare, and safety of patients, other Practitioners, or Hospital personnel.” And as quoted above, the letter stated that the MEC had determined that Dr. Kolb’s statements regarding assassination attempts and her gun constituted such a direct and immediate threat.

Although Dr. Kolb argues that Northside failed to abide by the procedures outlined in the Impaired Provider Policy under § 8.5 of the Bylaws, Northside asserts that those procedures were not applicable to her summary suspension under § 8.4. However, pretermitting whether Northside violated its own Bylaws, “[t]he HCQIA does not require that hearing procedures satisfy a hospital’s bylaws in order for immunity to apply.” Taylor, 266 Ga. App. at 20 (2). See also Meyers v. Logan Mem. Hosp., 82 FSupp.2d 707, 715 (W.D. Ky. 2000) (“[T]here is no statutory requirement set forth in the HCQIA that a peer review proceeding must be conducted in accordance with a hospital’s own specific internal bylaws or procedures.”) (citations and punctuation omitted). In fact, “HCQIA immunity extends to claims arising out of alleged bylaws violations that occur in the course of peer review.” Taylor, 266 Ga. App. at 21 (3). See Patton, 260 Ga. App. at 202. Accordingly, this ground provides no basis for reversal.

Decided June 29, 2017

Buckley Beal, Andrew M. Beal, Nicholas P. Smith, Amy B. Cheng, for appellant.

(c) Dr. Kolb further contends that Northside is not entitled to HCQIA immunity because it suspended her without conducting any investigation. One factor required to qualify for immunity is that the peer review action be taken “after a reasonable effort to obtain the facts of the matter.” 42 USC § 11112 (a) (2). “The determinative inquiry on this issue is whether or not the totality of the process leading up to the board’s decision evidenced a reasonable effort to obtain the facts of the matter.” Patton, 260 Ga. App. at 207 (1) (c) (ii). See Davenport, 247 Ga. App. at 185 (1) (b).

Here, the evidence showed that Northside’s leadership became concerned about reports from various staff members concerning Dr. Kolb’s statements regarding threats to her life that had resulted in her carrying a gun. Dr. Kolb herself voluntarily repeated some of these statements in a conversation with Dr. Wisebram before the summary suspension. Although following the suspension, the MEC collected witness statements addressing the issues involving Dr. Kolb, the committee’s postsuspension efforts to continue documenting the staff’s complaints does not make its presuspension efforts unreasonable, particularly in this case, since Dr. Kolb herself admitted the primary allegations before the suspension. We find, therefore, that Dr. Kolb failed to point to evidence in the record sufficient to permit a jury to find that she has overcome, by a preponderance of the evidence, the presumption that the hospital summarily suspended her clinical privileges only “after a reasonable effort to obtain the facts of the matter.” 42 USC § 11112 (a) (2). See Patton, 260 Ga. App. at 207 (1) (c) (ii); Davenport, 247 Ga. App. at 185 (1) (b).

Accordingly, we affirm the trial court’s grant of summary judgment.

Judgment affirmed.

Barnes, P J., and Mercier, J., concur.

Baker & Hostetler, James C. Rawls, S. Derek Bauer, Ian K. Byrnside; McKenna Long & Aldridge, Darrell J. Solomon, for appel-lee.

       Additional facts will be recited as necessary to address Dr. Kolb’s arguments.

       We note that Georgia also has an immunity provision, which is not at issue in this appeal. Under that provision,
      No professional health care provider nor any individual who serves as a member or employee of a professional health care provider or review organization nor any individual who furnishes counsel or services to a professional health care provider or review organization shall be held, by reason of the performance of peer review activities, to have violated any criminal law or to be civilly liable under any law unless he was motivated by malice toward any person affected by such activity.
      OCGA § 31-7-132 (a).

       As one court has explained, the statutory presumption relieves defendant peer review participants of their initial burden on summary judgment of providing evidentiary support for their contention that they are entitled to immunity, and the plaintiff’s “burden is no different than that of the nonmovant who must demonstrate the existence of a genuine issue as to any material fact on all of the elements of the claim alleged once a movant for summary judgment files a properly supported motion.” (Citations omitted.) Singh v. Blue Cross/Blue Shield of Mass., Inc., 308 F3d 25, 32-33 (II) (B) (1st Cir. 2002).

       Although Dr. Kolb argues that such deference should apply only in situations where a physician’s privileges are suspended based on his professional competency, we find no legal basis for such a limitation. See, e.g., Davenport, 247 Ga. App. at 186 (1) (a) (refusing to substitute court’s opinion for that of hospital governing board or to reweigh the evidence where hospital revocation of staff privileges was based on issues that “were not primarily medical in terms of specific patient care issues”); see also Robbins v. Ong, 452 FSupp. 110, 115 (S.D. Ga. 1978) (applying deference where doctor’s competence was not at issue, but instead the failure to renew his hospital privileges was based on “turmoil and disruption” he brought to the hospital).

       Dr. Kolb explained at the hearing that remote viewing “is where you go into a darkened room” and after being given coordinates, “you go into a state of meditation and go there and then you describe what you see and you actually draw a picture of it.” She stated that this procedure is used by the military, the United Nations, the FBI, and the CIA“[t]o determine where things are and where people are and what’s going on.”


author: Bethel, Judge.

text:
    A17A0251.
    PHILLIPS et al. v. OWNERS INSURANCE COMPANY.
    (802 SE2d 420)
   Bethel, Judge.

Kenneth Phillips (“Phillips”) and Cathy Phillips brought suit against Owners Insurance Company (“Owners”) alleging third-party spoliation of evidence, breach of contract, promissory estoppel, and negligence. This appeal follows the trial court’s order granting Owners’ motion for summary judgment with respect to Phillips’ claim alleging third-party spoliation of evidence. Although Phillips asks us to recognize an independent tort of negligent third-party spoliation of evidence under Georgia law, we decline to do so and therefore affirm the trial court’s grant of summary judgment.

Because this case arises from a decision on Owners’ summary judgment motion, we view the facts in a light most favorable to Phillips as the nonmoving party Lau’s Corp. v. Haskins, 261 Ga. 491, 491 (405 SE2d 474) (1991). So viewed, on May 11, 2013, Phillips was involved in an automobile accident in which his vehicle flipped following a tire blowout. He sustained severe injuries and required extensive medical treatment. Phillips held an automobile insurance policy with Owners at the time, and Owners became aware of the accident and Phillips’ injuries a few days later. Because of the severity of the property damage, the vehicle was deemed to be a total loss.

Phillips’ vehicle was stored at a garage in Swainsboro, Georgia. In a May 17, 2013, letter from Phillips’ attorney, Owners was notified that Phillips was investigating the cause of the accident and that the vehicle needed to be held for that purpose. An adjuster from Owners later contacted Phillips’ attorney and asked if the vehicle could be moved to a different garage in Savannah in order to reduce storage costs. During a May 31, 2013, phone conversation, a paralegal for Phillips’ attorney again spoke with Owners’ adjuster to discuss storage of the vehicle and preservation of the tires for inspection as part of a potential products liability suit. During this conversation, they agreed that Owners would store the vehicle at the Savannah lot and would notify Phillips’ attorney before moving it. Later that day, Phillips’ attorney faxed a letter to the adjuster confirming the parties’ understanding from the telephone call regarding the vehicle’s storage location and Owners’ agreement to notify Phillips’ attorney before making any “change in the agreed upon storage location of Mr. Phillips’ vehicle.” Owners’ adjuster received this fax and placed it in Phillips’ claim file. The vehicle was moved to the Savannah facility, and the adjuster placed a “seller hold” on the vehicle.

Meanwhile, on or around May 20, 2013, in exchange for Phillips’ agreement to execute a power of attorney and transfer the vehicle’s title to Owners, Owners offered to settle Phillips’ property damage claim arising from the accident. The parties agreed to this settlement on or about June 12, 2013, and the paperwork settling the property damage claim was prepared the next day. Phillips signed title to the vehicle over to Owners a week later.

The vehicle remained at the Savannah facility under Owners’ seller hold for nearly a year and a half. In mid-October 2014, the owner of the storage lot indicated to Owners’ adjuster that Owners would begin incurring additional storage charges. After receiving that notification, Owners released the seller hold, and the vehicle (including the tires) was sold a few days later. Owners did not notify Phillips or his attorney that the vehicle had been sold.

In December 2014, Phillips’ attorney communicated a demand for damages to the tire manufacturer. In response to a request from the tire manufacturer, Phillips’ attorney contacted Owners’ adjuster in February 2015 to procure the damaged tire from Phillips’ vehicle. This was apparently the first communication between Phillips (through his attorney) and Owners regarding the vehicle since the title to the vehicle was transferred to Owners, and it was the first time Phillips’ attorney became aware that the vehicle had been sold.

Phillips later brought suit against the tire manufacturer, and the parties reached a settlement on the claim for a portion of Phillips’ medical expenses from the accident. Claiming that the sale of the car foreclosed Phillips’ opportunity to recover his full damages from the tire manufacturer, Phillips brought suit against Owners alleging third-party spoliation of evidence, breach of contract, promissory estoppel, and negligence. Owners moved for summary judgment on each claim. The trial court granted that motion with respect to the claim of third-party spoliation of evidence, but denied it with respect to Phillips’ remaining claims. This appeal followed.

In his brief, Phillips correctly points out that only the nonbinding decision in Owens v. American Refuse Systems, 244 Ga. App. 780, 781 (2) (536 SE2d 782) (2000) (physical precedent only) explicitly declines to recognize an independent cause of action for third-party spoliation of evidence. Pointing to a statement in this Court’s decision in Sharpnack v. Hoffinger Industries, 231 Ga. App. 829, 830 (499 SE2d 363) (1998) and noting further developments in the law since Owens was decided, he suggests that the facts of this case call for a “fresh look at the issue.”

While a number of states have recognized causes of action for third-party spoliation of evidence (including many in the years since Owens was decided), neither a statute nor any ruling of the Supreme Court of Georgia has established third-party negligent spoliation of evidence as an independent tort in this state. Likewise, dicta in Gardner v. Blackston, 185 Ga. App. 754, 755 (1) (365 SE2d 545) (1988) (physical precedent only) suggests that spoliation of evidence is not recognized as an independent cause of action in Georgia, even as a remedy between parties to underlying litigation.

In addition to his spoliation claim, Phillips also brought claims against Owners for breach of contract, promissory estoppel, and negligence, all based generally on the same underlying conduct. Despite the fact that Owners’ motion for summary judgment was denied on Phillips’ other claims, Phillips argues that he will be left without an adequate remedy for the injuries he suffered in the accident if a cause of action for third-party spoliation against Owners is not available to him. The facts of this case do not support that argument because Phillips has other potential avenues of recovering from Owners under existing law.

As we discussed in Owens, even without a cause of action for third-party spoliation of evidence,

[a] vigilant litigant already has traditional means of securing evidence available. Those means include, for example, a court order directing preservation, along with remedies for a violation of that order, or a contractual agreement with the property owner.

Owens, 244 Ga. App. at 781 (2). As Owens suggests, each mechanism for securing evidence held or owned by a third party is paired with a means of enforcement (court sanction or damages for breach of contract) through which a plaintiff in Phillips’ position could recover from a third party if the evidence is not preserved.

In this case, Phillips fails to show how a court order directing Owners to preserve the evidence would have been inadequate. Nothing in the record suggests that Phillips attempted to secure a court order regarding the evidence, and he makes no argument that he would have been unable to do so or that enforcement of a court order against Owners would have been inadequate to remedy his injuries.

Phillips also fails to show how a contract remedy (or a remedy fashioned through the related equitable doctrine of promissory estop-pel) is inadequate. The record shows that, in anticipation of potential litigation, Phillips made efforts to preserve the evidence at issue by receiving Owners’ promise to hold the wrecked vehicle and its tires and to consult with his attorney before moving or disposing of the vehicle. Phillips, of course, bears the burden of proving that these actions formed a contract between the parties supported by consideration (or, alternatively that he relied upon this promise to his detriment). Whether he can carry that burden is not at issue here, but the facts of this case do not highlight any unique barrier to securing evidence in anticipation of litigation by either entering into a contract with the owner of such evidence or obtaining a promise to preserve such evidence.

Phillips argues that, because evidence lost or destroyed by a third party may have only speculative value in the underlying litigation, plaintiffs in his situation have considerable difficulty proving actual damages in a breach of contract suit. He suggests that a tort claim for negligent spoliation would somehow avoid these difficulties and be more viable relative to contract claims. We disagree.

We acknowledge that the value of lost or destroyed evidence in an underlying suit may be difficult to prove and that the calculation of damages or sanctions arising from the unavailability of such evidence will be subject to significant dispute between the parties. However, this would be the case regardless of whether a duty to preserve the evidence arose from a court order, contract, promise, or the law of tort. Were we to recognize this cause of action, as in all torts, the calculation of damages would be an essential feature of any claim attempting to hold a third party accountable for spoliation of evidence. Accordingly, proving damages in a claim for third-party spoliation of evidence would be fraught with many of the same valuation problems that litigants are likely to confront in other types of actions involving spoliation of evidence, whether the theory of recovery is breach of contract, promissory estoppel, or enforcement of a judicial order. We thus find this argument unavailing.

As we find this Court’s reasoning in Owens to be sound, and as the facts of this case do not suggest that the creation of new duties in tort is necessary to fill a gap in the remedies provided by judicial process, the law of contract, or the equitable doctrine of promissory estoppel, we affirm Owens and join a number of other states in declining to recognize an independent cause of action for third-party negligent spoliation of evidence.

Decided June 29, 2017.

The Sullivan Law Firm, Patrick B. Sullivan, for appellants.

Wallace Miller III, Trey Ennis, for appellee.

We note that Phillips also sued Owners for the same conduct under traditional principles of negligence. However, because Owners did not move for summary judgment on Phillips’ negligence claim, we are precluded from considering whether such a claim is cognizable on the facts before us. Therefore, in affirming the trial court’s grant of summary judgment on Phillips’ claim for third-party spoliation of evidence, we expressly do not address whether the conduct at issue here is actionable under traditional negligence principles.

Judgment affirmed.

McFadden, P. J., and Branch, J., concur.

       Because we construe the facts in the light most favorable to Phillips, for purposes of this case, both we and the trial court have assumed that the accident occurred as the result of a tire blowout, as alleged by Phillips. We take notice of the fact that no judgment has been entered, nor any liability assessed, against any tire manufacturer in regard to this accident and that Phillips has settled his claims against the manufacturer of the tires that were on his vehicle at the time of the accident.

       Owners also brought an appeal with regard to the trial court’s denial of summary judgment on Phillips’ claims for breach of contract and promissory estoppel. The trial court did not make a ruling on Phillips’ negligence claim, noting that Owners’ motion for summary judgment did not specifically ask the court to rule on that claim. We affirmed the trial court’s denial of summary judgment on those claims in Case No. A17A0252.

       In Sharpnack, we did not reach the question of whether to recognize an independent tort of spoliation as, in that case, the plaintiff’s underlying claims for negligence and products liability were negated by an assumption of risk defense. Sharpnack, 231 Ga. App. at 830. Notably, in Sharpnack, the spoliation claim was made between parties to an underlying lawsuit, not as between a plaintiff and a third party in possession of evidence relevant to the underlying claim. Id. at 829.

       These decisions have come with a variety of permutations, often (but not always) including a required showing of intent to destroy evidence on the part of the third-party defendant, the defendant’s knowledge of potential or ongoing litigation for which the evidence is relevant, and some showing of the plaintiff’s probability of success on the merits in the underlying litigation had the lost evidence been available. Only four states — Florida, Indiana, Montana, and West Virginia — appear to permit claims against third parties for negligent spoliation evidence. See Townsend v. Conshor, Inc., 832 S2d 166, 167 (Fla. Dist. Ct.App. 2002) (recognizing cause of action for third-party spoliation in Florida); Thompson ex rel. Thompson v. Owensby, 704 NE2d 134, 139-140 (Ind. Ct. App. 1998) (recognizing claim for third-party spoliation of evidence in Indiana); Oliver v. Stimson Lumber Co., 993 P2d 11, 19 (Mont. 1999) (recognizing torts of intentional and negligent spoliation of evidence against third parties in Montana); Hannah v. Heeter, 584 SE2d 560, 568 (W.Va. 2003) (recognizing torts of negligent and intentional spoliation of evidence against third parties in West Virginia). The remaining states that recognize claims for third-party spoliation of evidence appear to require intent or wilfulness on the part of the spoliator. See Hibbits v. Sides, 34 P3d 327, 329 (Alaska 2001) (recognizing cause of action for third-party spoliation in Alaska and requiring a showing of intent to interfere with underlying litigation); Coleman v. Eddy Potash, Inc., 905 P2d 185, 189 (N.M. 1995),vacated on other grounds, Delgado v. Phelps Dodge Chino, Inc., 34 P3d 1148 (N.M. 2001) (recognizing tort of intentional spoliation of evidence in New Mexico); and Smith v. Howard Johnson Co., Inc., 615 NE2d 1037, 1038 (Ohio 1993) (recognizing tort of wilful spoliation of evidence against third parties in Ohio).

       We note that this Court’s decision in Lustre-Diaz v. Etheridge, 309 Ga. App. 104, 106 (709 SE2d 309) (2011) recognized that sanctions for spoliation may be assessed against a litigant based on the conduct of a third party. However, such sanctions are limited to situations in which the third party is acting as an agent or contractual privy of a party to an underlying lawsuit when it destroys or fails to preserve the evidence at issue. Id. In this case, Phillips makes no allegation that Owners had privity of contract or an agency relationship with the tire manufacturer. Moreover, the remedy assessed by the court in Lustre-Diaz was a litigation sanction; it did not arise as part of a separate cause of action. Id. at 106-107. Thus, Lustre-Diaz, is inapposite to our analysis.

       See Goddard v. City of Albany, 285 Ga. 882, 886 (684 SE2d 635) (2009) (party asserting promissory estoppel claim bears the burden of proving all elements of the claim, including detrimental reliance); Adamson Co. v. Owens-Illinois Dev. Corp., 168 Ga. App. 654, 657 (309 SE2d 913) (1983) (plaintiff bears the burden of proving all elements of a breach of contract, including damages).

       See, e.g., LaRaia v. Superior Court, 722 P2d 286, 290 (Ariz. 1986) (declining to recognize independent claim for spoliation of evidence in Arizona); Forbes v. County of San Bernardino, 123 Cal. Rptr. 2d 721, 726-727 (Cal. Ct. App. 2002) (precluding cause of action for negligent spoliation of evidence by third parties in California); Reynolds v. Bordelon, 172 S3d 589, 594 (La. 2015) (holding that Louisiana does not recognize tort claim for third-party negligent spoliation of evidence); Fletcher v. Dorchester Mut. Ins. Co., 773 NE2d 420, 422 (Mass. 2002) (declining to recognize tort action for third-party spoliation of evidence in Massachusetts); Richardson v. Sara Lee Corp., 847 S2d 821, 824 (Miss. 2003) (declining to recognize tort for negligent spoliation of evidence by third parties in Mississippi); and Met-Life Auto & Home v. Joe Basil Chevrolet, Inc., 807 NE2d 865, 868 (N.Y. 2004) (declining to recognize cause of action for third-party negligent spoliation of evidence in New York).

       A number of states have expressly declined to recognize a separate tort claim for spoliation of evidence but have recognized that such claims may be stated under traditional principles of negligence. See, e.g., Smith v. Atkinson, 771 S2d 429, 432 (Ala. 2000) (recognizing cause of action for destruction of evidence by third party in Alabama under traditional negligence principles); Dardeen v. Kuehling, 821 NE2d 227, 231 (Ill. 2004) (declining to recognize spoliation of evidence as an independent tort in Illinois but permitting spoliation claims under existing negligence principles); Timber Tech Engineered Bldg. Prods. v. The Home Ins. Co., 55 P3d 952, 954-955 (Nev. 2002) (noting that a negligence claim for spoliation may exist in Nevada where evidence shows defendant owed a duty to plaintiff to preserve evidence); and Elias v. Lancaster Gen. Hosp., 710 A2d 65, 68 (Pa. Super. Ct. 1998) (spoliation of evidence not recognized as a separate cause of action in Pennsylvania). We express no opinion as to whether the laws of the State of Georgia recognize such a claim.


author: Reese, Judge. Miller, Presiding Judge,

text:
    A17A0418.
    A17A0419.
    MARTIN v. LEDBETTER et al. COLSTON v. LEDBETTER et al.
    (802 SE2d 432)
   Reese, Judge.

In these companion cases, James Martin and David Colston appeal from the trial court’s denial of summary judgment to them on a personal injury complaint filed by the Appellees, David and Lauren Ledbetter. In their complaint, the Appellees alleged that the Appellants negligently conducted inspections of work that had been performed on their water heater’s gas exhaust ventilation system (hereinafter, “exhaust vent”) and that, as a result of such negligence, their children had been exposed to high levels of carbon monoxide. On appeal from the court’s order, the Appellants contend that the trial court erred in denying their motions for summary judgment, arguing, inter alia, that there was no evidence to show that they had a legal duty to inspect the exhaust vent. For the reasons that follow, infra, we reverse.

Viewed in the light most favorable to the Appellees, as non-movants, the record shows the following facts. Throughout the relevant time period, the Appellants, Martin and Colston, were employed by the Rome-Floyd Building Inspection Department (“Department”); Martin was an Assistant Building Official, and Colston was employed as a Building Inspector. According to Martin’s affidavit, the ordinances and codes of Floyd County and the City of Rome required that all home renovation projects be pre-authorized by a permit issued by the Department. Once completed, the permitted renovations had to pass an inspection by an inspector employed by the Department.

In 2009, the Appellees contracted with Helbing Builders, Inc. (“Helbing”), for renovations to the structural, electrical, mechanical, and plumbing components of their home. Helbing applied for a building permit from the Department. The permit application stated Helbing’s intention to “remodel” the Appellees’ home, but did not specify what work Helbing was going to perform. Helbing hired a subcontractor, Crider Plumbing Company (“Crider”), to perform the plumbing work for the renovation, and Crider obtained a “plumbing” permit from the Department. Among the work Crider performed on the Appellees’ house was the installation of an exhaust vent for the water heater. Crider installed the exhaust vent so that it ran from the water heater in the basement to an opening a few feet below the second floor window of the bedroom of one of the Appellees’ children.

On January 27, 2010, Colston conducted a final inspection of the Appellees’ home renovation. Although portions of the renovation failed the inspection, those portions did not include the water heater or its exhaust vent. The next day, Martin conducted a second final inspection of the items that had failed Colston’s inspection.

In their affidavits, both Appellants averred that they did not inspect the water heater or its exhaust vent because the Department had not issued a permit authorizing any work on those items. Further, neither the Appellees nor their renovation contractors ever requested the Appellants to inspect the water heater or its exhaust vent.

In August 2013, a representative of the Atlanta Gas Light Company notified the Appellees that their exhaust vent had been installed improperly and had to be moved. The Appellees immediately sought a medical opinion as to whether their children might have been exposed to harmful levels of carbon monoxide due to the improper placement of the exhaust vent. Based upon the results, the Appellees filed negligence claims against the renovation companies, Helbing and Crider. They also filed negligence claims against the Appellants, Martin and Colston, in their individual capacities, asserting that they had breached their ministerial duty to properly inspect the exhaust vent.

The Appellants filed separate, but almost identical, motions for summary judgment, asserting that the Appellees had failed to show that they had a duty to perform a ministerial act, i.e., to inspect the exhaust vent, and, therefore, the negligence claims were barred by official immunity The Appellants also argued that the Appellees’ claims were barred by the applicable statutes of limitation and that the Appellees were unable to prove an essential element of their claims. The trial court granted the motions in part, ruling that the Appellees’ claims for property damage were barred by the applicable statute of limitation. The trial court denied summary judgment on the remaining claims, ruling that the evidence of record presented disputed issues of fact that required resolution by a jury. This Court granted the Appellants’ applications for interlocutory review, and these direct appeals followed.

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.[] A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of a plaintiff’s case. If there is no evidence sufficient to create a genuine issue as to any essential element of a plaintiff’s claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial. A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the party moving for summary judgment may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.

Thus, the Appellants in the instant case would be entitled to summary judgment if they could show that there is an absence of evidence to prove any essential element of the Appellees’ negligence claim. With these guiding principles in mind, we turn now to the Appellants’ specific claims of error.

1. The Appellants contend that the trial court erred in denying their motions for summary judgment on the Appellees’ negligence claims, arguing that the Appellees failed to present any evidence that showed the Appellants had a legal duty to perform a ministerial act, i.e., inspect the exhaust vent. We agree.

It is axiomatic that, “[t]o state a cause of action for negligence, a plaintiff must establish the following essential elements: (1) a legal duty; (2) a breach of this duty; (3) an injury; and (4) a causal connection between the breach and the injury.” Moreover,

[t]he threshold issue in any cause of action for negligence is whether, and to what extent, the defendant owes the plaintiff a duty of care. Whether a duty exists upon which liability can be based is a question of law. In the absence of a legally cognizable duty, there can be no fault or negligence.

In this case, the undisputed evidence shows that the home inspections that Martin and Colston performed on behalf of the Department were governed by the Department’s practices and procedures. In an affidavit, Martin averred that, “[although] the Department is responsible for home inspections, it is only authorized and required to inspect projects for which a permit has been issued [by the Department].” The affidavit explained that, “[w]ithout the issuance of a permit, the Department cannot otherwise be aware of what specific aspects of a home construction project require inspection.”

Martin restated these specific facts in his “Statement of Material Facts To Which There Is No Genuine Issue To Be Tried.” In its response, the Appellees stated affirmatively that they did not dispute those facts. In so doing, the Appellees effectively conceded that the Appellants had no duty to inspect the work that had been performed on the exhaust vent unless the Department had issued a permit that specifically authorized such work. In fact, in their appellate brief, the Appellees made the following unambiguous concession:

If the permits issued by the Department in connection with the renovation of Appellees’ home covered the work performed on the water heater ventilation, then Appellant^] [had] a ministerial duty to inspect the ventilation.... If the permits did not authorize work on the gas exhaust vent, the Appellants] simply had no ministerial duty to inspect the vent.

It necessarily follows that, in order to prove an essential element of their negligence claim, i.e., that the Appellants had a legal duty to inspect the work on the exhaust vent, the Appellees were required to show that such work was specifically authorized by a permit issued by the Department.

The Appellees failed to meet that threshold burden. Although they attempted to obtain a copy of the permits obtained by Helbing and Crider by filing an “Open Records Request” with the Department, the Department only provided two documents: Helbing’s application for a permit to “remodel” the Appellees’ home, and a “City of Rome Application Profile” showing that the Department had issued a “plumbing” permit in August 2009. Neither document showed that the Department had issued a permit that authorized work on the Appellees’ exhaust vent. Having failed to obtain a copy of such permit through their Open Records Request, the Appellees appear to have abandoned any further efforts to obtain a copy through other means. For example, there is no evidence that the Appellees took any action to compel the Department to comply with the Open Records Request and provide the “remodel” and “plumbing” permits; that they obtained a subpoena to compel the Department, their renovation company (Helbing), the plumbing company (Crider), or the Appellants to produce the permits; or that they served the Department, Helbing, Crider, or the Appellants with a request to produce the permits. And, pretermitting whether an affidavit or deposition testimony of either Helbing or Crider would have been competent, admissible evidence to show that the permits they obtained specifically authorized their work on the exhaust vent, the Appellants failed to produce such evidence.

Thus, the Appellants have shown that the Appellees failed to present “evidence sufficient to create a jury issue on at least one essential element of [the Appellees’] case,” i.e., that the Appellants had a duty to inspect the exhaust vent. It follows that the Appellees’ negligence claim “tumbles like a house of cards” and “[a] 11 of the other disputes of fact are rendered immaterial.”

Consequently, we conclude that the trial court erred in denying the Appellants’ motions for summary judgment. On remittitur, the court is directed to enter an order granting summary judgment to the Appellants on the Appellees’ complaint.

2. The Appellants also argue that the Appellees’ claims were barred by official immunity and/or the applicable statute of limitation. In addition, the Appellants contend that the Appellees failed to present competent evidence of causation. Given our decision in Division 1, supra, these remaining issues are moot.

Judgment reversed.

Doyle, C. J., concurs. Miller, P. J., concurs specially.

Miller, Presiding Judge,

concurring specially.

I agree with the majority opinion’s bottom line that the trial court erred in denying Martin and Colston’s motions for summary judgment. I must write separately, however, to clarify the legal basis upon which I would rely to reverse this case. Since plaintiffs have failed to establish that the misplaced exhaust vent was the cause of the carbon monoxide exposure the children experienced, I would respectfully reverse.

The majority finds that plaintiffs failed to establish duty as an element of their prima facie case, but this is an issue not raised by the parties nor ruled on by the trial court in its order. Part of our review on appeal is to determine the scope of the issues properly before this Court, and we should not address issues that were not advanced by the parties or ruled on by the trial court. See Safe Shield Workwear v. Shubee, Inc., 296 Ga. App. 498, 500 (2) (675 SE2d 249) (2009) (this Court is for “the correction of errors of law committed in the trial court”) (citation omitted); Lowery v. Atlanta Heart Assoc., 266 Ga. App. 402, 404-405 (2) (597 SE2d 494) (2004) (citing City of Gainesville v. Dodd, 275 Ga. 834 (573 SE2d 369) (2002)) (“Although under the ‘right for any reason’ rule this court will affirm the correct ruling of a trial court on grounds not addressed below, we do not apply a ‘wrong for any reason’rule to reverse incorrect rulings on issues not raised or ruled upon in the trial court.”). For these reasons, I would decide the appeal on the element of causation, as it was raised and ruled upon by the trial court.

As the majority correctly notes, “[t]o recover for injuries caused by another’s negligence, a plaintiff must show four elements: a duty, . . . breach of that duty, causation and damages.” (Citation omitted.) Webb v. Day, 273 Ga. App. 491, 494 (3) (615 SE2d 570) (2005).

On the issue of the fact of causation, as on other issues essential to the cause of action for negligence, the plaintiff, in general, has the burden of proof. The plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to grant summary judgment for the defendant.

(Citation and footnote omitted.) Mitchell v. Austin, 261 Ga. App. 585, 587 (583 SE2d 249) (2003).

Here, plaintiffs have failed to introduce any evidence that the improperly placed exhaust vent was a source of carbon monoxide, let alone the source that caused injury to the children. Plaintiffs attempt to establish this causal link through the testimony of the children’s pediatrician. But his opinion is insufficient to link the children’s exposure to carbon monoxide to the improperly placed exhaust vent. The only basis for identifying the exhaust vent as the source of the carbon monoxide release is through pure speculation and conjecture, and this cannot save plaintiffs from summary judgment. See Mitchell, supra, 261 Ga. App. at 587.

Decided June 29, 2017.

Womack, Gottlieb & Rodham, Ronald R. Womack, Steven M. Rodham, for appellants.

H. L. Cromartie III, Matthew W. Hurst, K. Drew Parrish-Bennett, for appellees.

Plaintiffs raised the issue of causation below, and the trial court erred when it ruled that the issue of causation was properly for the jury Consequently, I would reverse the trial court’s denial of Martin and Colston’s summary judgment motions on this ground.

       The complaint also asserted a claim for damage to property. The trial court granted summary judgment on the claim to the Appellants, however, and the Appellees have not appealed that ruling.

       The Appellees filed their complaint on their own behalf and as the parents and natural guardians of their three minor children.

       The Appellees also named as defendants the companies that performed the renovations, Helbing Builders, Inc., and Crider Plumbing Company. The Appellees subsequently settled their claims against these companies and dismissed the claims with prejudice.

       See R & R Insulation Svcs. v. Royal Indemnity Co., 307 Ga. App. 419, 420 (705 SE2d 223) (2010).

      OCGA § 9-11-56 (c).

        R & R Insulation Svcs., 307 Ga. App. at 420 (punctuation and footnote omitted).

       See id.

       The Appellants raised this argument in the context of their general contention that they were entitled to summary judgment based on official immunity. See Gilbert v. Richardson, 264 Ga. 744, 752 (6) (452 SE2d 476) (1994) (“The doctrine of official immunity... provides that while a public officer or employee may be personally liable for his negligent ministerial acts, he may not be held liable for his discretionary acts unless such acts are wilful, wanton, or outside the scope of his authority.”) (citations omitted); see also Grammens v. Dollar, 287 Ga. 618, 620 (697 SE2d 775) (2010) (“Where there is an established policy requiring an official to take specified action in a specified situation, the policy creates a ministerial duty on the part of the official to perform the specified task.”) (citations omitted); Common Cause/Ga. v. City of Atlanta, 279 Ga. 480, 482 (2) (614 SE2d 761) (2005) (“A ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty.”) (citation and punctuation omitted).

        R & R Insulation Svcs., 307 Ga. App. at 426 (2) (punctuation and footnote omitted).

        Ford Motor Co. v. Reese, 300 Ga. App. 82, 84 (1) (a) (684 SE2d 279) (2009) (citations and punctuation omitted). Accord DaimlerChrysler Motors Co. v. Clemente, 294 Ga. App. 38, 47 (2) (668 SE2d 737) (2008).

       See R & R Insulation Svcs., 307 Ga. App. at 426 (2); Ford Motor Co., 300 Ga. App. at 84 (1) (a); DaimlerChrysler Motors Co., 294 Ga. App. at 47 (2).

       See generally Howell v. Willis, 317 Ga.App. 199, 203(729 SE2d 643) (2012) (“[I]n the case of an inspection!,] the specific act from which liability arises is not an inspector’s appearance at a particular site to conduct an inspection. [Instead,] liability must arise from the acts the inspector was required to perform during the inspections.”) (citation and punctuation omitted).

       See OCGA § 50-18-70 et seq.

       See OCGA § 9-11-26 (general provisions governing scope and methods of discovery).

       See OCGA §§ 50-18-73 (enforcement provisions); 50-18-74 (penalties for noncompliance with Open Records Request).

       See OCGA § 24-13-23 (subpoena for production of documents).

       See OCGA §§ 9-11-34 (request for production of documents); 24-13-27 (notice to produce). We note that there is no evidence in the record that, when the Appellees filed their negligence claims in 2015, the Appellants had possession, custody, or control over permits that had been issued by the Department in 2009. See OCGA § 9-11-34 (a) (1).

       SeeOCGA §§ 24-10-1002 (“To prove the contents of a writing, recording, or photograph, the original writing, recording, or photograph shall be required.”); 24-10-1003 (duplicates of the writing may also be admissible); 24-10-1004 (admissibility of other evidence of the contents of a writing); 24-10-1005 (proving the contents of public records); 24-10-1007 (the contents of a writing may be proved by the testimony or deposition of the party against whom offered or by that party’s written admission).

       See OCGA § 9-11-56 (c).

        R & R Insulation Svcs., 307 Ga. App. at 420 (punctuation omitted).

       See DaimlerChrysler Motors Co., 294 Ga. App. at 49-50 (2) (b) (Because there was no evidence that the defendant owed a legal duty to the plaintiff, the trial court erred in denying the defendant’s motion for summary judgment on the plaintiff’s negligence claim.); see also Kordares v. Gwinnett County, 220 Ga.App. 848, 851 (470 SE2d 479) (1996) (holding that county bridge inspectors could not be held personally liable for failing to perform a subsurface inspection, because the plaintiffs had failed to present evidence of any policy or procedure that required such an inspection, and it was undisputed that no one had instructed the employees to conduct such an inspection).

       See generally footnote 8, supra.

       The trial court did analyze the issue of duty, but it did so in the context of analyzing defendants’ burden to establish the affirmative defense of official immunity, not in the context of determining whether plaintiffs met their burden to establish their prima facie case. These are two separate inquiries.