author: Branch, Judge.

text:
    A13A0814.
    REID v. METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY.
    (746 SE2d 779)
   Branch, Judge.

Michael Reid appeals from a decision of the Fulton County Superior Court denying his request for recovery of statutory penalties owed by his employer, the Metropolitan Atlanta Rapid Transit Authority (“MARTA”), as a result of MARTA’s failure to pay Reid his workers’ compensation benefits in a timely fashion. In denying Reid’s claim, the court below found that Reid was seeking to recover additional workers’ compensation benefits, resulting from a change in condition. The court therefore concluded that Reid’s claim was barred by the two-year statute of limitation found in OCGA § 34-9-104 (b). For the reasons explained below, we disagree with the analysis and conclusion contained in the superior court’s order, and we therefore reverse that order.

The parties stipulated to the relevant facts, and those facts are therefore undisputed. Accordingly, because this case involves both the application of the law to undisputed facts and the interpretation of the workers’ compensation statute, we apply a de novo standard of review. See R.R. Donnelley v. Ogletree, 312 Ga. App. 475, 475-476 (718 SE2d 825) (2011); Trax-Fax, Inc. v. Hobba, 277 Ga. App. 464, 464 (627 SE2d 90) (2006).

The stipulated facts show that Reid suffered an injury while working at his job with MARTA in October 1999 and he thereafter filed a claim for benefits with the State Board of Workers’ Compensation. MARTA did not controvert Reid’s claim, but instead began paying him temporary total disability (“TTD”) benefits around the end of October 1999. MARTA made a total of 32 payments of TTD benefits to Reid between October 1999 and June 2002; of those payments, 12 were untimely or late under the terms of the workers’ compensation statute. Reid returned to work on June 10, 2002, at which time the payment of his TTD benefits was suspended.

In or about May 2010, Reid’s attorney sent a letter to MARTA requesting that it pay the statutory penalty due on the 12 late TTD payments made to Reid. MARTA declined this request, asserting that Reid’s demand for payment was barred by the applicable statute of limitation. Reid then filed a hearing request with the State Board seeking an order requiring MARTA to pay him the statutory penalties owed him. A hearing was held before an Administrative Law Judge (“ALJ”), who subsequently denied Reid’s request, finding that the claim for payment of the wrongfully withheld statutory penalties constituted a “change in condition” under OCGA § 34-9-104, and that the claim was therefore barred under that statute’s two-year limitation period. Both the decision and the rationale of the ALJ were subsequently affirmed by the Appellate Division of the State Board. Reid appealed this ruling to the Fulton County Superior Court, which affirmed the decision of the Appellate Division. Reid then filed an application for a discretionary appeal, which this Court granted. This appeal followed.

The superior court found that Reid’s claim for the statutory penalties resulted from a “change in condition,” as that term is definedinOCGA § 34-9-104, and that the claim is therefore barred by that statute’s two-year limitation period. Specifically, the court found that the payment of workers’ compensation benefits by an employer constitutes a “condition,” and that when an employee seeks to recover benefits that were owed but never paid, the employee is seeking “additional” benefits as a result of a change in condition. We disagree, at least insofar as the superior court applied this rationale to a claim for statutory penalties that were owed to, but wrongfully withheld from, the employee. Rather, we find that neither an employer’s violation of the statutory provision governing the time when workers’ compensation payments are due, nor the employer’s subsequent failure to pay the penalties incurred as a result of these violations, nor an application by the employee to recover those unpaid penalties constitutes a change in the condition of the employee. Accordingly, claims seeking to recover such accrued but unpaid penalties are not subject to the limitation period found in OCGA § 34-9-104.

We begin our analysis with OCGA § 34-9-221, which governs both when workers’ compensation payments are due and what penalties are imposed for an employer’s failure to make timely payments. That statute provides, in relevant part:

(a) Income benefits shall be paid periodically, promptly, and directly to the person entitled thereto, without an award, except where liability is controverted by the employer. . . .
(b) The first payment of income benefits shall become due on the twenty-first day after the employer has knowledge of the injury or death, on which day all income benefits then due shall be paid. Thereafter, income benefits shall be due and payable in weekly installments; ...
(e) If any income benefits payable without an award are not paid when due, there shall be added to the accrued income benefits an amount equal to 15 percent thereof, which shall be paid at the same time as, but in addition to, the accrued income benefits ....

OCGA § 34-9-221 (emphasis supplied).

Here, MARTA has acknowledged that 12 of the 32 payments it owed Reid as a result of his injury were untimely under OCGA § 34-9-221 (b). Thus, the 12 untimely payment checks which MARTA sent to Reid were required by statute to include a 15% penalty; by MARTA’s own admission, however, the checks did not include this statutorily-mandated penalty. MARTA argues, and the trial court found, that MARTA is relieved of its obligation to pay these penalties because, even though it was MARTA that violated the law, Reid did not raise this issue within the two-year limitation period set forth in OCGA § 34-9-104 (b).We disagree.

The statute relied upon by both MARTA and the tribunals below is OCGA § 34-9-104 (b). That statute is captioned “Modification of award or order contained in prior decision in event of change in condition” and it provides, in relevant part:

... [A]ny party may apply under this Code section for another decision because of a change in condition ending, decreasing, increasing, or authorizing the recovery of income benefits awarded or ordered in the prior final decision, provided that the prior decision of the board was not based on a settlement; and provided, further, that at the time of application not more than two years have elapsed since the date the last payment of income benefits . . . was actually made ....

OCGA § 34-9-104 (b) (emphasis supplied). We find that this statute is inapplicable to the current case for two reasons.

First, the statute defines “change in condition” as “a change in the wage-earning capacity, physical condition, or status of an employee . .. which change must have occurred after the date on which the wage-earning capacity, physical condition, or status of the employee.. .was last established by award or otherwise.” OCGA § 34-9-104 (a) (1) (emphasis supplied). Thus, by its terms, this statute applies to changes that occur subsequent to the original claim but which nevertheless result from the same accident that resulted in that claim. See, e.g., Evergreen Packaging v. Prather, 318 Ga. App. 440, 443 (734 SE2d 209) (2012); Jones County Bd. of Ed. v. Patterson, 255 Ga. App. 166, 168 (564 SE2d 777) (2002). And in applying this language, we have held that a change in condition is shown by evidence of a change in the actual physical condition of the employee (for better or worse). Id. See also Automatic Sprinkler Corp. of America v. Rucker, 87 Ga. App. 375, 381 (73 SE2d 609) (1952) (the term “change in condition” has a broad meaning and “includes any change in the physical condition of the claimant subsequent to the entering of the award which stems or results from the accident in question”). Where the change is for the worse, the employee must also be able to prove that the changed condition nevertheless resulted from the original injury. Hartford Ins. Group v. Stewart, 147 Ga.App. 733, 734 (250 SE2d 184) (1978). Additionally, we have found that a change in condition can include “solely an economic change in condition occasioned by the employee’s inability to work or to continue to work for the same or any other employer, which inability is proximately caused by the accidental injury.” Glisson v. Rooms To Go, 270 Ga.App. 689, 691 (1) (608 SE2d 50) (2004) (citation and punctuation omitted). In this case, Reid is not seeking to recover the statutory late-payment penalties because his physical or economic condition has changed. Rather, he is seeking these penalties because, as a matter of law, they constitute part of the compensation owed him as a result of his initial (and as best we can tell, his only) claim. See Cartersville Ready Mix Co. v. Hamby, 224 Ga. App. 116, 118 (479 SE2d 767) (1996) (“the term ‘compensation’ encompasses all of the accrued income benefits, including penalties provided for any late payment”) (citation and punctuation omitted).

Second, under the clear and unambiguous language of OCGA § 34-9-104 (b), a “change in condition” award cannot be based upon an initial claim for income benefits, and must be one which seeks the modification of a prior decision regarding income benefits or a prior calculation of those benefits. Reid’s claim is based, however, upon his initial claim for benefits, and it does not seek a modification of the prior calculation of the amount he was owed. Instead, Reid is seeking payment of amounts owed him as part of his initial (and only) claim for benefits. See Cartersville Ready Mix, supra.

Given that Reid is not seeking to recover additional benefits as a result of a change in his physical or economic condition, we are constrained to find that the applicable statute of limitation is the one set forth in OCGA § 34-9-82. That statute provides simply that a claim for workers’ compensation benefits must be filed within one year of the date of the accident or injury that gives rise to the claim. OCGA § 34-9-82 (a). It is undisputed that Reid filed the claim that resulted in the payment of his disability benefits within this statute of limitation. And given this fact, we must conclude that any benefits that previously accrued to Reid as a direct result of his timely-filed claim are not time-barred. In other words, under the statute’s current language, provided the initial claim for benefits is filed in a timely fashion, an employer is precluded from asserting the statute of limitation as a defense to any subsequent attempt by an employee to recover payment of compensation which accrued and is owed him as a matter of law, but which was wrongfully withheld by the employer.

We recognize that applying the statute according to its terms can lead to results that some may view as absurd. In this case, for example, Reid is seeking to recover the statutory penalties at issue more than ten years after those payments were wrongfully withheld by MARTA. But any absurdity in this result stems from a hole in the workers’ compensation statute, namely its failure to address the time frame in which statutory penalties or other compensation owed by the employer as a matter of law must be pursued by the employee. It is for the legislature, however, rather than this Court, to remedy any deficiencies in the statutory scheme. And we do more harm than good when we give plain statutory language a tortured reading simply to avoid what we in the judiciary may perceive as an undesirable, unfair, or absurd result.

For the reasons set forth above, the order of the court below is reversed.

Decided July 16, 2013

Reconsideration denied July 29, 2013

Todd K. Maziar, for appellant.

Frank T. Putney, Jr., for appellee.

Judgment reversed.

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

       Reid’s claim with the State Board of Workers’ Compensation, however remained pending — i.e., it was not closed.

       Reid was injured on October 25,1999. MARTA has stipulated that the payment due Reid for the week of October 26, 1999 was issued on November 26, 1999; the payment due Reid for the week of November 2,1999 was issued on November 19,1999; the payment due Reid for the week of November 8,1999 was issued on November 19,1999; the payment due Reidfor the week of November 15,1999 was issued on November 26,1999; the payment due Reid for the week of November 22, 1999 was issued on December 3, 1999; the payment due Reid for the week of January 31,2000 was issued on February 7,2000; the payment due Reid for the week of March 13, 2000 was issued on March 24, 2000; the payment due Reid for the period of September 1 through September 3, 2000 was issued on September 15, 2000; the payment due Reid for the week of September 4, 2000 was issued on September 15, 2000; the payment due Reid for the week of September 12, 2000 was issued on September 28, 2000; the payment due Reid for the week of September 17, 2000 was issued on September 28, 2000; and the payment due Reid for the week of May 20, 2002 was issued on June 14, 2002.

       We emphasize that the only limitation periods set forth in the workers’ compensation statute are the general statute of limitation set forth in OCGA § 34-9-82 and the statute of limitation applicable to claims seeking a modification of a prior award, based on a change in condition of the employee (OCGA § 34-9-104 (b)).

       We note that other states have found that the equitable doctrine of laches can apply in the workers’ compensation setting. See Sacco v. Mast Advertising/Publishing, 896 N.Y.S.2d 524, 527 (N.Y. A.D. 3 Dept., 2010) (“[1] aches may be applied in the context of a workers’compensation case where there is a failure to assert a right for an unreasonable and unexplained length of time, accompanied by other circumstances causing prejudice to an adverse party”) (citation and punctuation omitted); Daugherty v. Cherry Hospital/N.C. Dept. of Health and Human Svcs., 670 SE2d 915, 919 (N.C. App., 2009) (“we hold that the equitable law of laches applies in workers’ compensation proceedings as in all other cases”); Richey v. Dickinson, 598 SE2d 307, 309 (S.C. App., 2004) (“[t]his court has recognized the applicability of the doctrine of laches in a workers’ compensation claim”); Mitchell v. W.C.A.B. (Devereux Foundation), 796 A2d 1015, 1017-1018 (Pa. Cmwlth., 2002) (“the doctrine of laches is available in administrative proceedings where no time limitation is applicable, where the complaining party failed to exercise due diligence in instituting an action, and where there is prejudice to the other party”). But see Homeland Ins. Co./Oklahoma Property and Cas. Guar. Fund v. Rankin, 848 P2d 587, 589 (I) (Okla. App., 1993) (“The doctrine of laches is peculiar to courts of equity. An action for workers’ compensation benefits is a special statutory proceeding, and does not fall within equitable jurisdiction. Therefore, the doctrine of laches does not apply to a claim for workers’ compensation.”) (citations omitted). As best we can tell, however, that question has not been decided in Georgia. Moreover, neither party has raised that issue, and neither has addressed the question of whether, if applicable, that doctrine would bar Reid’s claims. Accordingly, we decline to address the question of whether the doctrine of laches should apply in the context of a workers’ compensation claim and, if so, whether that doctrine would bar the recovery sought in this case.


source: Caselaw Access Project

author: Phipps, Chief Judge.

license: Public Domain

text:
    A13A0114.
    SEASON ALL FLOWER SHOP, INC. v. RORIE et al.
    (746 SE2d 634)
   Phipps, Chief Judge.

We granted an application for interlocutory appeal to review the trial court’s denial of a motion for summary judgment filed by Season All Flower Shop, Inc. d/b/a Pristine Chapel Lakeside in this rainy day slip-and-fall action brought by Vera Rorie and her husband Leroy Rorie. The Rories asserted that Vera Rorie was injured when she slipped and fell on the floor while walking in the foyer of the Pristine Chapel. They alleged that Pristine Chapel knew of a hazardous condition on the floor but breached its duty of care to Vera Rorie. After discovery, Pristine Chapel moved for summary judgment. The trial court denied the motion and granted a certificate of immediate review. Because the evidence did not demonstrate that Pristine Chapel exposed Vera Rorie to any unreasonable risk of harm, and Pristine Chapel was entitled to judgment as a matter of law, we reverse.

“A de novo standard of review applies to an appeal from a grant or denial of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.”

To prevail [at summary judgment], the moving party must demonstrate that there are no genuine issues of any material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, support 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 plaintiff’s case.

Construed to support the Rories, the evidence showed that the Rories were invited to a wedding at the Pristine Chapel on January 30, 2010, at 3:00 or 4:00 p.m. Leroy Rorie had a prior engagement, so Vera Rorie drove to the Pristine Chapel alone. Vera Rorie, who was deposed, described the weather conditions that day: “it was raining, sleeting, and snowing.” She wore a dress, an overcoat, and pump-style shoes with a two-inch heel.

After Vera Rorie arrived at the Pristine Chapel, she sat in her vehicle for “maybe 15 minutes.” Vera Rorie affirmed that it was still raining, sleeting, and snowing as she walked inside the building, using an umbrella, and that the ground was wet. She described what next occurred, as follows:

So when I arrived at the chapel, there was a line in front of the door to get into the wedding. And I got in that line. And when I arrived inside the foyer, there was a round table. And that table had been placed in front of the doors so that when you walked into the chapel, the guests would sign the guestbook. And so I stood in that line and signed the guest-book and then I proceeded to go into the chapel. So I walked around the table from where I was standing. I then moved to my left to walk around the table. And as I got around to the side of the table, one of the ushers asked if I was there for the bride or the groom. And I said I was there for the groom. And then he directed me to the right door to go in on that side. And so I started to walk to the right door and slipped and fell.

She testified, “they purposely put the table there so you would have to sign in and you get directed either to the bride’s side or the groom’s side.” Vera Rorie further testified that there were no floor mats or caution signs in the area in which she fell, and that after she fell she remained on the floor — close to the guest book table, where she fell — until paramedics arrived.

Vera Rorie testified that the distance from the entrance door of the building to the guest book table was approximately two feet, and that she had traversed that distance without sliding. When asked whether she felt anything slippery as she walked from the guest book table to the usher, Vera Rorie testified, “I did not slide until I fell.” Vera Rorie testified that when she fell, she still had on her overcoat. She surmised that she had left her umbrella near the guest book table because she was not holding it when she fell; she was certain, however, that she did not leave the umbrella outside the building before she entered.

Vera Rorie was not in the first group of guests to arrive at the wedding. She testified that when she arrived, approximately 30 minutes before the wedding was scheduled to begin, “there were [already] people in the chapel sitting,” and that there were bridesmaids and groomsmen in the foyer. Vera Rorie recognized that other people had entered the building from outside, where it was wet, before she entered the building. She further testified that “there were guests coming in [the foyer] before me and after me, and they were going through the same process of going to the one door or the other,” and that “[absolutely nothing” obstructed her view of the floor after the usher had directed her to the right-side door of the chapel. As to what made her slip and fall, the following colloquy is relevant:

Q. What caused to you [sic] slip and fall on the floor?
A. What caused me to slip and fall on the floor?
Q. Yes.
A. I don’t know how to answer that. A slippery floor.
Q. What made the floor slippery?
A. The moisture from the rain, sleet, and snow.
Q. And you’re sure that you slipped in some moisture?
A. I am positive I slipped in moisture.
Q. And how are you positive of that?
A. My clothes were wet. When they got me up off the floor, my clothes were soaking wet.
Q. So are you saying that there was like a puddle of water on the floor?
A. No, I am not. I am saying that when they got me up off the floor, my clothes were wet. The way that I know that, when they started to take me out to the ambulance, it was so cold outside. They had taken my coat off, and the wet clothes just dinged to me. I realized that my velour part of my dress was wet, very wet. And I had on a coat so I could not have gotten any wetness coming inside. I had on a coat. I was covered. So the moisture or the wetness that was in my dress came from being on the floor.
Q. Where was the moisture on the floor that you slipped in? [Attorney representing the Rories]: Object to form. You can answer, if you understand the question.
By [Attorney representing Pristine Chapel]:
Q. Where in the room was it?
A. I don’t know how to answer the question that says where is the moisture. I’m sorry. I don’t know how to answer that question.
Q. You said that you slipped on some moisture that was on the floor, right; is that correct?
A. Yes.
Q. Where was that moisture in the lobby?
A. I don’t know how to answer that.
Q. In relation to other things in the room, doorways, tables, where was the moisture that you slipped on?
A. Sir, I don’t know how to answer that. The way I know there was moisture there was my clothes were wet. And, you know, I had slipped, I fell, and my clothes were wet.

Vera Rorie testified that the moisture on the floor was not visible to the “naked eye.” And other than saying there was moisture on the floor, she was unable to provide any further description of the moisture that she claimed caused her to fall. As to the lighting conditions, she testified that it was daytime and that the foyer was “well lit.”

One of the owners of the Pristine Chapel deposed that her staff had followed the company’s rainy day procedures and laid down mats appropriately and put out caution signs in the foyer that day. The owner did not attend the wedding, however. Her testimony was purportedly based on photographs of the wedding which depicted mats on the floor and a caution sign in the foyer; but the referenced photographs were not introduced as exhibits during the owner’s deposition. During Vera Rorie’s deposition, she was unable to authenticate pictures of the wedding, purportedly showing a mat and a caution sign on the floor of the foyer.

In denying Pristine Chapel’s motion for summary judgment, the trial court concluded that there remained a genuine issue of material fact “as [to] [w]hether or not there was an ‘unusual accumulation’ of water on the floor upon which (Vera Rorie] slipped and fell, in an area inside the location that a reasonable person would not expect water to accumulate.” The trial court found:

[Vera Rorie] testified in her deposition . . . that she walked into Defendant’s premises about 10 steps, signed a guest book on a table specifically set up for guests, turned, and fell. She did not see a puddle of water, but her skirt was soaking wet after she was put into the ambulance after the fall. There is therefore, at least circumstantial evidence that there was an “unusual accumulation” of water in the area where [Vera Rorie] fell.

The trial court also concluded that a genuine issue of material fact remained as to Pristine Chapel’s “knowledge of a hazard, or [Pristine Chapel]’s actions to inspect and prevent an unusual accumulation of water.”

1. Pristine Chapel contends that the trial court erred in denying its motion for summary judgment because there was no evidence that Vera Rorie slipped and fell in an area where there had been an unusual accumulation of water. We agree.

“Although an owner or occupier of land has a statutory duty to keep its approaches and premises in a reasonably safe condition for invitees ... an owner or occupier of land is not an insurer of the safety of its invitees.”

In premises liability cases, proof of a fall, without more, does not give rise to liability on the part of a proprietor, because the true basis of a proprietor’s liability for personal injury to an invitee is the proprietor’s superior knowledge of a condition that may expose the invitee to an unreasonable risk of harm.
[I]n order to recover for injuries sustained in a slip-and-fall action, an invitee must prove (1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier.

‘Whether a hazardous condition exists is the threshold question in a slip and fall case.”

“Where the plaintiff cannot show the existence of a hazardous condition, she cannot prove the cause of her injuries and there can be no recovery because an essential element of negligence cannot be proven.” “Guesses or speculation which raises merely a conjecture or possibility is not sufficient to create even an inference of fact for consideration on summary judgment.”

To create a question of fact as to the existence of a hazardous condition, a plaintiff cannot rely upon speculation and she must prove more than the existence of a slick or wet floor____ Rather, the plaintiff must produce evidence of what foreign substance, condition, or hazard caused her to slip and fall.
Store proprietors are not liable to patrons who slip and fall on floors made wet by rain conditions unless there has been an unusual accumulation of water and the proprietor has failed to follow reasonable inspection and cleaning procedures. ... It is a matter of common knowledge that some water would normally be present at a place where shoppers continually pass in and out during rainy weather. Furthermore, it is not the duty of persons in control of such buildings to keep a large force of moppers to mop up the rain as fast as it falls or blows in, or is carried in by wet feet or clothing or umbrellas.

The Rories have not shown that the moisture in which Vera Rorie claims she fell was a hazardous condition that exposed her to an unreasonable risk of harm. Vera Rorie claimed that she fell on moisture from inclement weather, but the evidence showed that she did not see what caused her to fall because, by her own admission, the moisture was not visible. Indeed, her testimony was that after she fell, the wetness of her clothes led her to believe she had fallen due to moisture on the floor. But “[t]o create a question of fact as to the existence of a hazardous condition, a plaintiff cannot rely upon speculation and she must prove more than the existence of a slick or wet floor.” “It is a matter of common knowledge that some water would normally be present at a place where [patrons] continually pass in and out during rainy weather.” Thus, even assuming that water from the inclement weather was on the floor in the area where Vera Rorie fell, “it does not prove in any measure how or why [she] slipped.” The Rories did not present a genuine issue of material fact as to the existence of a hazardous condition, i.e., an unusual accumulation of water in the area where Vera Rorie fell.

Other than inferring that there was moisture on the floor in the area where she fell, Vera Rorie was unable to provide any description of the moisture that she claims caused her to fall. She did, however, decline to state that there was a puddle of water on the floor. Moreover, Vera Rorie conceded that when she fell she was still wearing her overcoat which she had worn in the inclement weather, and that she remained on the floor, near the table on which she believed she had left her umbrella (which she had used in the inclement weather), until paramedics arrived.

Here, [Pristine Chapel] has shown that there is no evidence sufficient to create an issue of material fact as to the existence of a hazardous condition on its premises, and therefore there is no evidence on which the jury could find [Pristine Chapel] liable. It follows that the trial court erred in denying [Pristine Chapel’s] motion for summary judgment [on this basis].

The Rories assert that the fall occurred several feet inside the lobby and “away from the threshold of the door” to the entrance of the building, in an area where Vera Rorie would not expect to find water accumulation. This court has held: “The risk of harm imposed by some accumulation of water on the floor of business premises during rainy days is not unusual or unreasonable in itself, but is one to which all who go out on a rainy day may be exposed and which all may expect or anticipate.” We recognize, however, that this concept “cannot properly be applied to a portion of an interior space where an invitee has no reason to expect water to accumulate on the floor.” But “in rainy day slip-and-fall cases plaintiffs are charged with equal knowledge that water is apt to be found in any area frequented by people coming in from the rain outside,” and not just at the “threshold” of an entrance door, as the Rories contend.

Vera Rorie conceded that it was raining, sleeting, and snowing that day when she and other guests entered the building; that the guest book table in the foyer was intentionally positioned so that guests entering the building from the inclement weather outside would have to sign in and be directed either to the bride’s side or the groom’s side to enter the chapel; that guests had entered the building before her; and that while she was in the foyer, other guests were being directed to either door ahead of her. Therefore, the evidence showed that Vera Rorie fell in the foyer where guests entering the building from the inclement weather continually passed in order to attend the wedding, and that this area was not one in which Vera Rorie had no reason to expect water to accumulate on the floor. Accordingly, the trial court erred in denying Pristine Chapel’s motion for summary judgment on the basis that there remained genuine issues of material fact as to whether Vera Rorie slipped and fell in an area in which a reasonable person would not expect water to accumulate.

Decided July 15, 2013

Reconsideration denied July 30, 2013

Downey & Cleveland, Sean L. Hynes, Andrew A. Curtright, for appellant.

M. Khurram Baig, for appellees.

2. Pristine Chapel contends that because there was no unusual accumulation of water, the trial court erred by considering whether Pristine Chapel had actual or constructive knowledge of an alleged hazard. Because of our conclusion in Division l, we need not reach this issue.

Judgment reversed.

Ellington, P. J., and Branch, J., concur.

       Leroy Rorie asserted a claim for loss of consortium.

        El Ranchero Mexican Restaurant v. Hiner, 316 Ga. App. 115, 116, n. 1 (728 SE2d 761) (2012) (punctuation omitted).

         Glynn-Brunswick Mem. Hosp. Auth. v. Benton, 303 Ga. App. 305 (693 SE2d 566) (2010).

       Id. at 307 (citation, punctuation and footnote omitted).

        Drew v. Istar Financial, 291 Ga. App. 323, 324-325 (661 SE2d 686) (2008).

        Robinson v. Kroger Co., 268 Ga. 735, 748-749 (2) (b) (493 SE2d 403) (1997).

        Drew, supra at 325 (1) (footnote omitted).

        Glynn-Brunswick Mem. Hosp. Auth., supra at 307 (citation, punctuation and footnote omitted).

        Mansell v. Starr Enterprises/Texaco, 256 Ga. App. 257, 259 (568 SE2d 145) (2002) (citations and punctuation omitted).

        Glynn-Brunswick Mem. Hosp. Auth., supra (citations and punctuation omitted).

        Walker v. Sears Roebuck & Co., 278 Ga. App. 677, 680 (2) (629 SE2d 561) (2006) (citations, punctuation and footnotes omitted; emphasis supplied).

        Glynn-Brunswick Mem. Hosp. Auth., supra (punctuation omitted); see Veazey v. F. W. Woolworth Co., 191 Ga. App. 601, 602 (382 SE2d 411) (1989); Moore v. Teague, 255 Ga. App. 220, 222 (564 SE2d 817) (2002) (affirming grant of summary judgment to defendant where plaintiff assumed she slipped on wet floor, but testified that she did not know if floor was actually wet);
        Brown v. Amerson, 220 Ga. App. 318, 320 (469 SE2d 723) (1996) (plaintiff’s deposition testimony that she slipped on a combination of moisture from misty conditions and oil from cars previously parked there was pure speculation, supported only by her statement that she had knowledge that when there was moisture in the air and on the pavement that oil from parking lots and asphalt rise straight to the top).

        Walker, supra.

        Veazey, supra (punctuation omitted).

        Walker, supra.

        Glynn-Brunswick Mem. Hosp. Auth., supra at 308 (citations, punctuation and footnotes omitted) (trial court erred in denying hospital’s motion for summary judgment where it was raining lightly the morning that plaintiff traveled through lobby to enter building; plaintiff testified that as she walked back through lobby to exit building, she slipped because floor was extremely slick, but admitted that she saw nothing on the floor and did not feel anything wet and that her clothes were not wet; security guard testified that inspection of the area shortly before plaintiff’s fall revealed no hazardous condition). See Hayward v. The Kroger Co., 317 Ga. App. 795, 798-800 (3) (a), (b) (733 SE2d 7) (2012) (affirming grant of summary judgment to grocery store in rainy day slip-and-fall case; pretermitting whether grocery store owner was negligent in failing to follow its rainy day procedures satisfactorily, the evidence failed to show that there was an unusual accumulation of water at the particular spot where plaintiff fell notwithstanding rains which preceded the fall; although plaintiff testified that after she fell she noticed that her coat was soaking wet, her testimony as to the condition of the floor was merely that it was “damp”); Drew, supra at 325 (1), 327 (2) (grant of summary judgment to building owner affirmed where plaintiff presented no evidence that water puddle caused by rainwater which plaintiff did not see prior to stepping in it and slipping and falling was, for a rainy day, an unusual accumulation of water at entrance to lobby of building where she worked; plaintiff presented no evidence of the puddle’s size or of its depth); Walker, supra (grant of summary judgment to retailer in slip-and-fall case affirmed where plaintiff failed to prove existence of a hazard; while plaintiff testified that after she fell she noticed water on the floor in the area where she had slipped, she could not testify, even generally, as to amount of the water that was on the floor and thus whether it was an amount that could have been considered an unusual or unreasonable accumulation beyond that encountered on a typical rainy day; store employees who inspected floor testified they did not see any water or wet spots); Smith v. Toys “R” Us, 233 Ga. App. 188-189, 191 (1) (504 SE2d 31) (1998) (grant of summary judgment to premises owners reversed where plaintiff described what she slipped in as a one-inch deep puddle of water which splashed as she stepped in it and fell; based, in part, on plaintiff’s description of the amount of water plaintiff claimed was present, a jury would have been authorized to infer that water had been allowed to collect on the floor over an unreasonable length of time, and thus, find that premises owner had constructive or imputed knowledge of the hazard). See generally Emory Univ. v. Smith, 260 Ga. App. 900, 902 (581 SE2d 405) (2003) (reversing denial of hospital’s motion for summary judgment; plaintiff who slipped and fell on hospital premises failed to present evidence that surface of flooring was hazardous or contributed to her fall).

        Walker, supra (citations, punctuation and footnote omitted).

        Dickerson v. Guest Svcs. Co., 282 Ga. 771, 772 (653 SE2d 699) (2007).

        Hayward, supra at 800 (3) (b) (citation and punctuation omitted; emphasis supplied); Mansell, supra at 258-259.

       See Hayward, supra at 795-796 (affirming grant of summary judgment to grocery store owner where patron fell in area between first and second sets of double doors before entering shopping area); Mansell, supra (affirming grant of summary judgment to gas station owner where patron fell inside convenience store while he proceeded down an aisle to the restroom). Compare Dickerson, supra at 773 (reversing grant of summary judgment to amusement park; no determination as a matter of law could be made that a reasonable person would have anticipated that indoor area near stairs which were not in line with entrance door might get wet on a rainy day; moreover, persons wishing to enter particular area of premises could do so through another entrance).

       Supra.

       See Hayward, supra at 800 (3) (b) (“store proprietors are not liable to patrons who slip and fall on floors made wet by rain conditions unless there has been an unusual accumulation of water and the proprietor has failed to follow reasonable inspection and cleaning procedures”) (citation and punctuation omitted; emphasis in original); Drew, supra at 326 (2) (“Aproprietor’s constructive knowledge of... a hazard can be shown either by evidence that an employee of the proprietor was in the immediate area of the hazard and could have seen and removed it, or by evidence that the proprietor failed to exercise reasonable care in inspecting the premises.”).


text:
    A13A0189.
    HUNTER v. EMORY-ADVENTIST, INC. et al.
    (746 SE2d 734)
   Branch, Judge.

In this medical malpractice action, the defendant hospital obtained summary judgment on the grounds that it did not employ the treating physician and that it was protected from vicarious liability because, in compliance with Georgia law, it posted a notice in a public area of the hospital to the effect that some or all of the health care professionals performing services at the hospital were independent contractors. On appeal, the plaintiff contends an issue of fact remains as to whether the notice was located in a public area of the hospital. The plaintiff also appeals the denial of her motion to add the treating physician’s true employer as a defendant. For the reasons stated below, we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. 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. Home Builders Assn. of Savannah v. Chatham County, 276 Ga. 243, 245 (1) (577 SE2d 564) (2003).

Construed in favor of the plaintiff, the material facts relevant to this appeal are that on December 31, 2005, Charles Hunter was admitted to Emory-Adventist, Inc. d/b/a Emory-Adventist Hospital (“EAH”), “with a previous cardiac history and symptoms of chest pain, shortness of breath, and urinary difficulties” and he was eventually assigned to be treated by Dr. Michaele Brown, the attending physician at EAH emergency room. Emory-Adventist v. Hunter, 301 Ga. App. 215 (687 SE2d 267) (2009). It is undisputed that during Hunter’s entire course of treatment, Brown was employed by Cobb Medical Associates, LLC (“Cobb Medical”), and not EAH. At the time of Hunter’s hospitalization, the hospital had a notice posted in a hallway stating:

NOTICE
Some or all of the health care professionals performing services in this hospital are independent contractors and are not hospital agents or employees. Independent contractors are responsible for their own actions and the hospital shall not be liable for the acts or omissions of any such independent contractors.

It is alleged that Brown failed to properly treat Hunter for his heart condition and that, as a consequence, he died of a heart attack on January 2, 2006.

On December 31, 2007, almost two years after Hunter’s death, Laura Hunter, the decedent’s widow, filed suit against, among others, Brown and EAH. In its answer, EAH asserted that it was not a proper party to the suit. On April 2, 2008, Brown served Hunter with responses to discovery requests, which stated that Brown was employed by Cobb Medical at the time of Hunter’s treatment. In November 2010 (two-and-a-half years later), EAH moved for summary judgment on the grounds that it was not Brown’s employer and that any theory of apparent agency was inapplicable because the notice referenced above was posted in accordance with Georgia law. In April 2011, three years after Brown revealed her actual employer, Hunter moved to add Cobb Medical as a defendant. On July 25,2011, the trial court held a hearing on both motions, following which the trial court granted EAH’s motion for summary judgment and denied Hunter’s motion to add Cobb Medical as a defendant. This appeal ensued.

1. OCGA § 51-2-5.1 (b), (c) provides that in the absence of actual agency or an employment relationship between the hospital and the health care professional, hospitals are not liable in tort for the acts or omissions of health care professionals working in the hospital if the hospital has posted a notice “in the form and manner described herein.” The statute provides that the notice must

(1) Be posted conspicuously in the hospital lobby or a public area of the hospital; (2) Contain print at least one inch high; and (3) Provide language substantially similar to the following:
“Some or all of the health care professionals performing services in this hospital are independent contractors and are not hospital agents or employees. Independent contractors are responsible for their own actions and the hospital shall not be liable for the acts or omissions of any such independent contractors.”

OCGA § 51-2-5.1 (c). The statute does not define “public area.” The adjective “public” has been defined as “[o]pen or available for all to use, share, or enjoy.” Black’s Law Dictionary (9th ed. 2009).

Hunter contends that Brown was the apparent agent of EAH and that the trial court erred by granting summary judgment in favor of EAH because there is an issue of fact regarding apparent agency and whether the OCGA § 51-2-5.1 notice was “posted conspicuously in a public area of the hospital.”

EAH introduced an affidavit by David Ferguson, the EAH construction supervisor who personally affixed the notice to a wall, in which Ferguson avers that the notice contained the proper wording, that the print was at least one inch high, and that the notice was posted on “a wall in a conspicuous public area in EAH.” Ferguson deposed that the notice was placed “outside of the trauma room as you walk into the [emergency room].”

Hunter countered with the affidavit of her attorney, Joseph H. King, Jr. King averred that the relevant notice was not in a public area of EAH and that it was “not visible from any public area of the hospital.” But the remainder of King’s affidavit shows that he had no basis for drawing these conclusions.

King averred that he went to EAH with a videographer in order to photograph the relevant signage; that upon arrival, he was “prevented from proceeding further by hospital attendants who politely asked [him] and [his] videographer to wait for defense counsel in the waiting room area of the lobby”; and that the relevant notice “was in an area which [he] was able to view only because [he] was being escorted by [EAH’s] attorney.” But none of these facts constitute a basis for concluding which areas of EAH were public areas.

King then averred that defense counsel led him to “areas of the hospital not normally accessible to the public” where he was permitted to take photographs and video. Yet King failed to explain or define what areas of EAH were “accessible to the public” or what he meant by “normally accessible to the public”; he also failed to provide any facts regarding the areas of the hospital, such as signage that indicated where the public was allowed or statements by hospital personnel that would support a conclusion about what portions of EAH were “public areas.” King averred that defense counsel eventually required King to delete some video and some photographs “because those showed non-public areas, and the hospital administrator had concerns regarding privacy issues.” Yet King attached photographs of the relevant notice hanging conspicuously on a wall in a hall of EAH; in other words, he was allowed to keep photographs of the relevant notice. It follows from King’s statement that the photographs of the notice were not taken in nonpublic areas of EAH. Finally, at the hearing, King argued that the hallway in which the notice was posted was open to emergency room patients but not the public in general. His affidavit, however, contains no factual support for this distinction.

In short, King’s affidavit is insufficient to create an issue of fact regarding whether the relevant notice was posted in a public area of EAH.

[CJonclusory allegations by way of an affidavit, unsupported by specific allegations of fact, will not be sufficient to avoid summary judgment. . . . [Affidavits containing mere legal conclusions and allegations present no issues of fact on a motion for summary judgment. An affidavit in contravention of a motion for summary judgment must state more than mere conclusions; it must state specific adverse facts.

(Citations and punctuation omitted.) Swanson v. Lockheed Aircraft Corp., 181 Ga. App. 876, 879-880 (1) (b) (354 SE2d 204) (1987). King’s affidavit fails to provide a basis for his conclusion that the notice was not posted in a public area. Thus, Hunter has failed to present any evidence to counter the testimony of the construction supervisor of EAH that the notice was posted conspicuously in a public area of the hospital. Because Hunter’s only argument that the trial court erred by granting summary judgment lacks merit, we affirm the trial court’s grant of summary judgment in favor of EAH.

2. Hunter also argues that OCGA § 51-2-5.1 (b) is unconstitutional, but we do not have jurisdiction to consider this claim because the trial court never ruled on the constitutional claim that Hunter raises on appeal. Hunter initially brought the present appeal before the Supreme Court of Georgia because she sought to challenge the constitutionality of OCGA § 51-2-5.1 (b). The Supreme Courtreviewed the record and concluded that it did not have jurisdiction to consider the constitutional issue because the trial court never ruled on that issue below. See Nathans v. Diamond, 282 Ga. 804 (654 SE2d 121) (2007). The Supreme Court therefore transferred the case to this Court. The jurisdictional ruling of the Supreme Court controls in this Court as well. See Baum v. Moore, 230 Ga. App. 255, 256 (496 SE2d 307) (1998). See also Bain v. State, 258 Ga. App. 440, 445-446 (3) (574 SE2d 590) (2002) (unless the trial court specifically rules upon the constitutional issue, there is nothing for this Court to review).

3. Finally, Hunter contends the trial court erred by denying her motion to add Cobb Medical as a party. The trial court held that because the statute of limitation had expired on Hunter’s action well before Hunter moved to add Cobb Medical as a party and because Hunter did not show that Cobb Medical received actual notice of the suit prior to the expiration of the statute of limitation, a claim against Cobb Medical would not relate back to the date of the original pleading. The court further held that even if Cobb Medical had received sufficient notice of the action, Hunter’s failure to add Cobb Medical “within the statute of limitations constitutes laches.” Accordingly, the trial court denied Hunter’s motion to add Cobb Medical. On appeal, Hunter challenges both of the grounds upon which the trial court relied in support of its ruling.

It is undisputed that the applicable statute of limitation on Hunter’s claim of medical malpractice expired days after Hunter filed suit and that Hunter sought to add Cobb Medical as a party over three years later. In order to add a new party defendant after the running of the statute of limitation, a party must show three factors:

(1) That the amendment adding the new defendant arise [s] out of the same facts as the original complaint; (2) That the new defendant had sufficient notice of the action; and (3) That the new defendant knew or should have known that, but for a mistake concerning his identity as a proper party, the action would have been brought against him.

(Citation omitted.) Robinson v. Piggly Wiggly, 193 Ga. App. 675, 676 (388 SE2d 754) (1989). See also OCGA § 9-11-15 (c). This Court has held that OCGA § 9-11-15 (c) “should be liberally construed to effect its purpose of ameliorating the impact of the statute of limitation.” (Citation and punctuation omitted.) Herndon v. Heard, 262 Ga. App. 334, 337 (1) (585 SE2d637) (2003). Also, “[t]he addition of a new party defendant by an amendment to the complaint requires the exercise of discretion by the trial court.” (Citation omitted.) Fontaine v. Home Depot, 250 Ga. App. 123 (550 SE2d 691) (2001).

The parties do not dispute the first factor — that the proposed claims against Cobb Medical arise out of the same facts as the original complaint.

As for the second factor, OCGA § 9-11-15 (c) provides the plaintiff must show that

. . . within the period provided by law for commencing the action against him[,] the party to be brought in by amendment . . . has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits [.]

This Court has held that “[b]y the plain wording of the statute, the required notice is notice of the institution of the action (i.e., notice of the lawsuit itself) and not merely notice of the incidents giving rise to such action.” Harrison v. Golden, 219 Ga. App. 772, 773 (466 SE2d 890) (1995).

Hunter has no direct evidence to show that Cobb Medical received notice of the institution of the action before the expiration of the limitation period. Hunter contends, however, that Cobb Medical had sufficient notice to satisfy OCGA § 9-11-15 (c) because Brown, EAH, and Cobb Medical are all covered by the same self-insurance program for professional and general liability insurance operated by the Adventist Health System Liability Trust (“AHSLT”). Hunter argues that, therefore, notice to Brown and EAH provided Cobb Medical with notice of the institution of the malpractice action.

Hunter’s argument begins with the contention that Brown and EAH were provided actual notice of the suit prior to the expiration of the statute of limitation; the appellees dispute that assertion. Hunter asserts that the defendants were served by overnight delivery either the day after suit was filed or the next business day in accordance with OCGA § 9-11-4 (d), which provides a procedure for obtaining waiver of service. But Hunter has not provided any citation to the record to support that assertion, and our own review of the record reveals no such support.

But even if Brown and EAH had actual notice of the suit prior to expiration of the statute of limitation, and even if Brown, EAH and Cobb Medical were insured by the same carrier, we find no support in the law for the proposition that notice to an insured of the institution of litigation constitutes notice to another party insured by the same carrier. Compare McNeil v. McCollum, 276 Ga. App. 882, 887 (1) (625 SE2d 10) (2005) (potential defendant and its carrier had notice of the institution of the action prior to the expiration of the statute of limitation where plaintiff sent letters to potential defendant and its insurance carrier with notice that a complaint would be amended to add them to a suit as defendants). The case law cited by Hunter is distinguishable. Parks v. Hyundai Motor America, 258 Ga. App. 876, 882 (575 SE2d 673) (2002) (notice was sufficient to second corporation under OCGA § 9-11-15 (c) because “history of lawsuits against both... entities and the fact that [the proposed party was] the sole shareholder of [the named party] provide strong evidence of notice”); Fontaine, supra at 126 (1) (“when the original defendant and the defendant which plaintiff proposes to add by amendment are intertwined corporations which both have received notice of an action before the expiration of the statute of limitation, the prejudice that might otherwise exist is negated”); Tanner’s Rome v. Ingram, 236 Ga. App. 275 (511 SE2d 617) (1999) (plaintiff filed suit against sister corporation of true defendant with the same registered agent; both had notice of lawsuit before expiration of limitation period; and true defendant admitted that it knew or should have known the action should have been brought against it); Ford v. Olympia Skate Center, 213 Ga. App. 600, 601-602 (1) (445 SE2d 362) (1994) (substitution of correct defendant complied with OCGA § 9-11-15 (c); original complaint was served on personal secretary of president of both correct and incorrect corporate entity and the two entities were closely intertwined, in that they shared the same president, stockholders, bookkeeper, and accountant); Rich’s, Inc. v. Snyder, 134 Ga. App. 889, 892 (1) (216 SE2d 648) (1975) (addition of correct corporate entity complied with OCGA § 9-11-15 (c) where secretary of both corporations was served with the complaint within statute of limitation and the correct corporate entity was the sole stockholder of the incorrect corporate entity).

In sum, the trial court did not abuse its discretion by concluding that Hunter failed to satisfy the requirements of OCGA § 9-11-15 (c) because she failed to show that Cobb Medical had notice of the institution of the lawsuit prior to the expiration of the statute of limitation. Hunter’s remaining arguments are therefore moot.

Judgment affirmed.

Phipps, C. J., and Ellington, P. J., concur in judgment only.

Decided July 16, 2013

Reconsideration denied July 30, 2013.

Joseph H. King, Jr., for appellant.

Balch & Bingham, Natalie C. Beasman, James D. Meadows, for appellees.

       This is the second appearance of this case in this Court. See Emory-Adventist v. Hunter, 301 Ga. App. 215 (687 SE2d 267) (2009).

       Mrs. Hunter also sued Dr. Paul Monte and The Emory Clinic, Inc. None of the issues on appeal involve these parties.

       A complying notice is sufficient “even if the patient or the patient’s personal representative did not see or read such notice for any reason, including hut not limited to medical condition or language proficiency.” OCGA § 51-2-5.1 (e).

         The statute of limitation for an action for medical malpractice is two years from the injury. OCGA § 9-3-71 (a).

       OCGA § 9-11-15 (c) provides:
      Whenever the claim or defense asserted in the amended pleading arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back to the date of the original pleadings if the foregoing provisions are satisfied, and if within the period provided by law for commencing the action against him the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.

       We note that this issue revolves specifically around notice requirements and, as such, is distinguishable from whether a plaintiff who served a defendant after the statute of limitation has expired was diligent such that the late service relates back to the date of filing. See Allen v. Kahn, 231 Ga. App. 438 (499 SE2d 164) (1998).

        Tanner’s Rome v. Ingram, 236 Ga. App. 275, 276 (511 SE2d 617) (1999).

       Hunter does not argue that notice to Brown of institution of litigation constitutes notice to Cobb Medical of the same merely because Brown is an employee of Cobb Medical.


author: MCMILLIAN, Judge.

text:
    A13A0253.
    JANASIK v. THE STATE.
    (746 SE2d 208)
   MCMILLIAN, Judge.

Andrew Michael Janasik appeals the trial court’s denial of his motion for new trial after a jury convicted him of driving under the influence (less safe) (OCGA § 40-6-391 (a) (1)), failure to maintain lane (OCGA § 40-6-48), and a violation of Georgia’s safety belt law (OCGA § 40-8-76.1 (b)).

Viewed in the light most favorable to the verdict, the evidence at trial showed that on the night of November 15, 2007, Georgia State Trooper Stacey Collins was working in his marked police vehicle when he encountered Janasik at the intersection of Piedmont and Peachtree Roads in Fulton County. The first thing Collins noticed was that Janasik was not wearing his seat belt. When the traffic light changed to green, Janasik pulled through the intersection, and Collins observed him weave across the yellow line into another lane, move back into his original lane, and then shortly after, change lanes into the other lane. Collins initiated a traffic stop based upon the failure to maintain lane and the seat belt violation. As the officer approached Janasik’s car, he immediately noticed “the strong odor of alcoholic beverage” coming from inside the vehicle. Collins also observed that Janasik’s eyes were bloodshot and watery, and his speech was slurred. When Collins asked if Janasik had anything to drink that night, he first replied “nothing,” then he said “one” drink at dinner, and then he said “half,” finally conceding that he had consumed “half a beer.” As Janasik exited the car, he used the door to brace himself, and he was unsteady on his feet as he walked.

Collins offered to perform field sobriety evaluations, and the first test he administered was the horizontal gaze nystagmus (“HGN”) test. Janasik exhibited six out of the six clues for impairment on that test. Collins then asked Janasik to perform the walk-and-turn test. Janasik initially agreed, but after he was unable to maintain the required stance, he told Collins that he could not perform the test because he had a swollen ankle. Janasik explained that he had hurt his ankle playing tennis, basketball and soccer. Janasik also cited his ankle as a reason for not performing the one-leg stand test. Collins suggested that he perform the test by standing on his noninjured leg, but Janasik told him that it hurt his ankle too much to lift it in the air. Collins observed no outward indication of pain, however, when Janasik shifted on his feet several times that night. Janasik also refused to submit to the preliminary breath test. At that point, Collins placed Janasik under arrest based upon his opinion that Janasik was a less safe driver due to his consumption of alcohol. Collins then read Janasik the implied consent notice, and Janasik refused Collins’ request to submit to a breath test.

The State also introduced evidence of a prior similar transaction. Officer Douglas LaCompt of the Georgia State Patrol testified that approximately nine months earlier, on the evening of February 25, 2007, he saw Janasik driving northbound on Roswell Road in Fulton County when he observed him cross the double-yellow line twice, change lanes without using his signal and then cross the white fog line on the right side of the road. LaCompt initiated a traffic stop, and the first thing he detected was a strong odor of alcoholic beverage coming from Janasik’s car. When LaCompt asked Janasik for his driver’s license, he handed the officer a credit card with dolphins on it. LaCompt observed that Janasik was unsteady on his feet after he exited the vehicle, and he had slurred speech and bloodshot eyes. LaCompt asked Janasik if he would submit to the field sobriety tests, but he refused. He did not, however, indicate that he could not perform the tests due to any injury. LaCompt then placed Janasik under arrest and read him the implied consent notice; Janasik subsequently refused to submit to the officer’s request for a breath test. A jury later convicted Janasik of DUI based upon the February incident.

1. Janasik first asserts that the trial court erred in admitting the similar transaction evidence without first weighing the danger of unfair prejudice. He argues that this error was compounded by the prosecution’s improper “propensity” arguments stemming from this evidence. We review the trial court’s decision whether to admit the similar transaction evidence for an abuse of discretion. See Reed v. State, 291 Ga. 10, 13-14 (3) (727 SE2d 112) (2012).

Prior to trial, the State filed a notice of its intent to present the February 2007 similar transaction evidence for purposes of “identity, motive, scheme, bent of mind, course of conduct, and/or absence of accident,” and Janasik filed a motion in opposition to the State’s notice. Following a hearing, which apparently was not transcribed, the trial court denied the motion. In its order, filed December 10, 2010, the trial court cited Janasik’s

very thorough Brief, outlining the peculiarity of Georgia law, which permits the utilization of prior incidents, commonly referred to as “similars” in DUI trials. Although the material was prepared in a scholarly fashion, this Court is constrained to follow the precedent of the Georgia Supreme Court which authorizes utilization of prior convictions, because of the “similarity” of the incidents. Perhaps enactment of the revised rules of evidence in the upcoming legislative session will no longer permit this bent of mind analysis, but short of that occurrence, this Court must DENYDefendant’s motions, and permit utilization of similar occurrences.

Janasik’s trial took place in October 2011, and thus was subject to Georgia’s evidentiary rules as they existed prior to January 1, 2013, when Georgia’s new evidentiary code went into effect. See Ga. L. 2011, p. 99, § 1. Accordingly, at the time of the trial court’s finding in this case, “course of conduct and bent of mind [were] appropriate purposes for which similar transaction evidence [could] be introduced.” (Citations and punctuation omitted.) Newton v. State, 313 Ga. App. 889, 891-892 (1) (a) (723 SE2d 95) (2012). See also Henderson v. State, 303 Ga. App. 527, 529 (1) (693 SE2d 896) (2010); Wade v. State, 295 Ga. App. 45, 48 (670 SE2d 864) (2008) (“[W]e are not authorized to depart from the precedent of the Supreme Court of Georgia authorizing the bent of mind rationale for admitting similar transaction evidence . . . .”) (citations omitted).

And in the absence of a transcript of the similar transaction hearing, we must presume that the State made the requisite showings for the introduction of this evidence and that, after hearing the evidence, the trial court correctly exercised its discretion in denying Janasik’s motion. Guild v. State, 234 Ga. App. 862, 866 (4), n. 2 (508 SE2d 231) (1998) (appellate court will presume the correctness of similar transaction proceedings and resultant findings in the absence of a transcript). Thus, we must presume that the trial court properly weighed the issue of prejudice in reaching its decision. Certainly, Janasik’s brief thoroughly addressed the issue, and the trial court obviously read and considered his brief. And, contrary to Janasik’s argument, the trial court’s proper and accurate acknowledgment that it was bound by Supreme Court of Georgia precedent regarding the rationale for the introduction of such evidence does not undercut that presumption. Moreover, given the striking similarity between the two offenses and the fact that they occurred a mere nine months apart, we cannot say that the similar transaction evidence was inadmissible under the law as it existed at the time of Janasik’s trial. See, e.g., Moody v. State, 273 Ga. App. 670, 671-672 (2) (615 SE2d 803) (2005).

Further, Janasik waived any argument of error in connection with the prosecution’s “propensity” argument based on the similar transaction evidence by failing to object to that argument at trial. Shaw v. State, 265 Ga. App. 451, 452 (2) (594 SE2d 393) (2004).

2. Janasik also asserts that his trial counsel was ineffective in failing to seek a limiting instruction from the Court at the time it admitted the similar transaction evidence.

Janasik’s trial counsel gave his opening argument immediately prior to the introduction of the similar transaction evidence, during which he told the jury that the judge was going to give them “some instructions about how you are allowed to consider LaCompt’s evidence, because that’s what’s called ‘similar transaction evidence’that Georgia allows in.” He then asked the jury to “listen to the evidence in this case. Not the one in February, which is what the State is putting [LaCompt] up first for, so you could hear that first.” But he apparently did not request that the trial court give limiting instructions at that time. Nevertheless, at defense counsel’s request, the trial court gave the jury a limiting instruction prior to closing argument, in which the court directed the jury that such evidence could only “be considered for the limited purpose of showing, if it does, the state of mind. For example, the knowledge or intent of the Defendant in the crimes that’s charged in the case that’s now in trial.” And the trial court included a similar instruction in its general charge to the jury.

In considering Janasik’s argument,

we apply the two-prong test for determining the validity of a claim of ineffectiveness of counsel established in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), which asks whether counsel’s performance was deficient and, if so, whether this deficiency prejudiced the defense; that is, whether there is a reasonable probability that the outcome of the proceedings would have been different, but for counsel’s deficiency. If the defendant cannot satisfy either of the two prongs of the Strickland test, his ineffective assistance claim fails.

Williams v. State, 319 Ga. App. 888, 889 (739 SE2d 4) (2013).

Although Janasik’s trial counsel testified at the hearing on his motion for new trial, Janasik’s motion attorney did not ask him about his failure to request contemporaneous limiting instructions. By failing to question him on the issue, “[Janasik] has not overcome the presumption that his trial counsel acted within the range of reasonable, professional conduct.” (Citation and punctuation omitted.) Allen v. State, 299 Ga. App. 201, 204 (1) (b) (683 SE2d 343) (2009). See also Ellis v. State, 292 Ga. 276, 287 (4) (e) (736 SE2d 412) (2013).

Moreover, Janasik has failed to demonstrate that his defense was prejudiced by counsel’s omission where the jury was twice instructed on the limited purposes for which it could consider the similar transaction evidence. See Smith v. State, 270 Ga. 68, 70 (3) (508 SE2d 145) (1998) (counsel not ineffective in failing to request limiting instruction contemporaneously with similar transaction testimony where he requested such instruction as part of court’s general charge); Sims v. State, 317 Ga. App. 420, 422-423 (1) (731 SE2d 105) (2012); Copeland v. State, 276 Ga. App. 834, 838 (2) (b) (625 SE2d 100) (2005) (no prejudice shown where counsel failed to request contemporaneous limiting instruction).

Accordingly, Janasik failed to demonstrate that the trial court committed error in denying his motion for new trial on this ground.

3. Janasik next contends that the trial court erred in failing to dismiss Juror No. 2 for cause.

“We review a trial court’s decision to strike a juror for cause under an abuse of discretion standard.” (Citation omitted.) McCoy v. State, 285 Ga. App. 246, 248 (2) (645 SE2d 728) (2007).

A prospective juror should be dismissed when he or she has formed an opinion on the guilt or innocence of the accused which is so fixed and definite that the juror will be unable to set the opinion aside and decide the case based upon the evidence or the court’s charge upon the evidence.

(Citation and punctuation omitted.) Id.

In response to the State’s question, Juror No. 2 indicated that he did not think a person should drink and drive. Janasik’s trial counsel then examined the juror, as follows:

Q: So, in this case if a person says, I did have a drink, that would be too much for you to say anything other than . . . guilty; is that correct?
A: Can you ask that again?
Q: If the person tells the officer, I did have a drink earlier, that would be enough for you that you’d just say “guilty”?
A: No.
Q: When I asked the question earlier you said you had something to drink before and later drove home; is that correct?
A: Yes.
Q: Were you sober or too impaired to drive?
A: I would call myself, “Sober.”
Q: If you had been pulled over and still smelled of alcohol, is that enough to arrest you for DUI? Handcuff you? Take you in?
A: I would have to rely on what the officer thinks of it.
Q: So just based on the fact that you smelled of alcohol and the officer said, I’m taking you in, you feel that you are guilty just from being arrested.
A: Sure, yeah.

In its order denying Janasik’s motion for new trial, the trial court stated that it considered the entirety of the juror’s responses,

and frankly he sounded somewhat confused by some of the questions posed to him. At one point he responded he didn’t think someone should drink and drive, but he then said he had done this in the past. He also said he would rely on the officer’s testimony, but he never said that would be all he would rely on.

The court concluded that despite the inconsistencies in the juror’s responses, his testimony did not rise to the level of establishing that his opinions were so fixed and/or so definite that he would not consider the evidence. We agree.

As the trial court correctly noted, defense counsel’s questions were somewhat confusing. Although the juror indicated that he did not think drinking and driving was a good idea, he conceded that he had done so himself and he believed himself to be sober at the time. And although he stated that he personally would feel he was guilty if he were arrested for drinking and driving, he never indicated that the same would apply to the defendant in this case or that he would not judge the defendant on all the evidence presented. For example, Juror No. 2 agreed with prosecutor’s statement that alcohol affects different people differently and some people have a better tolerance for alcohol, making it difficult to determine whether they are under the influence. And he did not raise his hand when the trial court explained that they were looking for jurors who were impartial between the State and the defendant and asked whether he had any bias or prejudice in favor of one side or the other. Juror No. 2 did not respond positively when defense counsel asked whether anyone believed that the State should pass a blanket law prohibiting any drinking and driving. Nor did he respond positively to the question of whether anyone felt that evidence of a prior DUI meant that the person was guilty of DUI seven months later or to the question of whether anyone would be unable to decide the present case on its own merits in light of an earlier incident.

Under these circumstances, we cannot say that the juror’s testimony demonstrated that his opinions were so fixed or definite that he would not be able to decide the case on the evidence presented or that the trial court abused its discretion in refusing to strike the juror for cause. See Hornsby v. State, 296 Ga. App. 483, 484-485 (2) (675 SE2d 502) (2009) (trial court did not abuse discretion in failing to strike jurors who knew officers involved, but otherwise gave no indication that they could not be impartial); Kelly v. State, 242 Ga. App. 30, 32 (2) (528 SE2d 812) (2000) (in DUI case, trial court not required to strike juror who showed great antipathy toward people who drink and drive, but otherwise indicated that she could be fair and impartial).

4. Janasik also contends that when his expert witness, Dr. Citron, failed to appear and testify at trial, the trial court erred by refusing to grant a continuance, by failing to exercise its power to compel the witness’s appearance and testimony, and by denying Janasik’s request for a mistrial. He argues, alternatively, that his trial counsel was ineffective in failing to present the expert’s testimony after promising the jury that he would do so. We find no merit to these arguments.

The record indicates that Janasik’s counsel informed the trial court at around 5:00 p.m. on the first day of trial that his expert witness would not be available to testify the following day because he was scheduled to speak at an out-of-town seminar. The trial court agreed to try to accommodate the defense by allowing the witness to testify electronically if the defense attorney could meet the trial court’s requirements for connectivity and a picture that the court felt “was adequate for the jury to assess his testimony.” Janasik’s trial counsel later testified that, at that point, he released Dr. Citron from his subpoena with the understanding that he would be available to give his testimony electronically.

The next morning defense counsel reported that the electronic set-up had been tested and it “worked great.” Nevertheless, he indicated that they were still testing it because some problems existed with the wireless connection. At the hearing on the motion for new trial, however, the evidence indicated that the equipment was working properly, but the defense could not locate Dr. Citron. The trial court agreed to wait until after hearing several defense motions and holding the charge conference before ruling on the admissibility of the expert’s electronic testimony. After these proceedings, which the trial court’s order reflects took approximately another hour, the defense was still indicating that it was continuing to have technical problems, and the trial court announced that the defense had five minutes to resolve the issues or they would proceed to closing argument. At 10:15 a.m., the trial judge announced that because Dr. Citron was not available, she was asking the defense to rest, assuming defense counsel had no other witnesses. Janasik’s counsel objected, indicating that they could not win without Dr. Citron’s testimony. The trial judge replied that she could have accommodated Dr. Citron the previous day had she received timely notice of his schedule.

The trial court then directed the parties to present their closing arguments, but after the jury began deliberations, the court allowed the defense attorney to put his objections on the record. Janasik’s attorney indicated that his technician arrived at 7:45 a.m. to attempt to set up the equipment, but they had some difficulty getting into the building and they continued to have technical issues. He also indicated, however, that they were never actually able to contact Dr. Citron that morning. Janasik’s counsel suggested that the trial court could have continued the proceedings, compelled Dr. Citron’s presence, or that it could grant a mistrial. The trial court never specifically addressed the defense’s first two alternatives, but the court stated that no justification existed for a mistrial in light of counsel’s failure to raise the issue earlier, depriving the court of the opportunity to make accommodations.

(a) We review a trial court’s decision whether to grant or deny a motion for continuance for an abuse of discretion. OCGA § 17-8-22; Hartley v. State, 283 Ga. App. 388, 389 (1) (641 SE2d 607) (2007). And in order to obtain a continuance based upon a witness’s absence, a defendant is required under OCGA § 17-8-25 to demonstrate

(1) that the witness is absent; (2) that he has been subpoenaed; (3) that he does not reside more than 100 miles from the place of trial; (4) that his testimony is material; (5) that the witness is not absent by permission of the movant; (6) that the movant expects to be able to procure the testimony of the witness at the next term of court; (7) that the continuance is not requested for purposes of delay and, (8) the facts expected to be proved by the absent witness must be stated.

(Citation and punctuation omitted.) Bailey v. State, 309 Ga. App. 473, 474 (710 SE2d 656) (2011). Each of these requirements “must be met before an appellate court may review the exercise of the trial court’s discretion in denying a motion for continuance based upon the absence of a witness.” (Citation omitted.) Krirat v. State, 286 Ga. App. 650, 657 (3) (649 SE2d 786) (2007). Furthermore, the trial court’s “discretion is not abused unless all of the requisites of OCGA § 17-8-25 are shown and the trial court still denied a continuance.” (Citation and punctuation omitted.) Anthony v. State, 276 Ga. App. 107, 109 (2) (622 SE2d 450) (2005).

Janasik failed to make all of the required showings. Although Janasik’s trial counsel represented at trial and testified at the motion hearing that Dr. Citron was under subpoena, we note that no evidence of this subpoena exists in the record on appeal. The trial court also found no evidence of such a subpoena. In any event, Janasik’s counsel conceded at the motion hearing that he released Dr. Citron from his subpoena after the first day of trial. Moreover, Janasik failed to establish Dr. Citron’s place of residency or his availability by the next term of court. And although Janasik’s counsel indicated that they could not win the case without his testimony and they had built their entire defense around him, he failed to provide the trial court with the facts he expected Dr. Citron’s testimony to prove. He stated only that Dr. Citron’s testimony “wrapped up the testimony of [the defense’s other expert] and the video as well as Trooper Collins as well as the medical records that we procured for purposes of him to review [that] predated — this incident,” without providing the court any indication of the content of his testimony. Accordingly, Janasik failed to establish for the trial court that Dr. Citron’s testimony was material. Under these circumstances, we cannot say that the trial court abused its discretion in denying the motion for continuance. Bailey, 309 Ga. App. at 474-475.

And, pretermitting whether a defendant’s failure to secure the attendance of his own witness after releasing him from a subpoena could ever provide a basis for a mistrial, for the same reasons we cannot say that the trial court abused its discretion in denying the motion for mistrial in this case. See Eskew v. State, 309 Ga. App. 44, 47 (3) (709 SE2d 893) (2011) (trial court’s denial of a motion for mistrial reviewed for abuse of discretion). Additionally, we find that the trial court lacked authority to compel Dr. Citron’s attendance once Janasik’s counsel had released him from his subpoena. See generally Schramm v. State, 286 Ga. App. 156, 158 (2) (648 SE2d 392) (2007) (trial court cannot compel witness in absence of subpoena).

(b) Janasik’s claim of ineffective assistance of counsel on this ground similarly fails. Pretermitting whether the failure by Janasik’s trial counsel to secure Dr. Citron’s testimony constitutes deficient performance, we find that Janasik cannot meet his burden to show that he was prejudiced by such failure in the absence of the requisite proof of what Dr. Citron’s testimony would have been.

To prove the prejudice prong of Strickland on a claim that trial counsel failed to call a witness, a defendant must show the witness’s expected testimony by presenting either live testimony of the witness, an affidavit from the witness, or a legally recognized substitute for the uncalled witness’s testimony; a proffer by counsel is insufficient.

(Citations and punctuation omitted.) Benjamin v. State, 322 Ga. App. 8, 11 (1) (b) (743 SE2d 566) (2013). Although at the hearing on the motion for new trial, Janasik’s trial counsel described what he expected Dr. Citron’s testimony to be, Dr. Citron did not testify at the motion hearing, and Janasik failed to produce an affidavit or any other legally recognized substitute for his testimony. Accordingly, Janasik failed to establish his claim of ineffective assistance of counsel on this ground. See Kendrick v. State, 290 Ga. 873, 877 (4) (725 SE2d 296) (2012) (“If an appellant fails to meet his burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong.”) (citations omitted).

Judgment affirmed.

Andrews, P. J., and Dillard, J., concur.

Decided July 9, 2013

Reconsideration denied July 30, 2013

Ashleigh B. Merchant, for appellant.

Carmen D. Smith, Solicitor-General, R. Leon Benham, David M. Ginsburg, Assistant Solicitors-General, for appellee.

        Jackson v. Virginia, 443 U.S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

       We note that the trial court’s order indicates that it was around 4:15 p.m.

       Janasik’s brief indicates that the notice of appeal asked the trial court clerk “ ‘not to omit anything from the record on appeal,’ ” but the clerk nevertheless omitted the return of service on Dr. Citron’s subpoena. However, the notice of appeal actually informed the clerk that court notices and correspondence between the Court and the parties could be omitted. Janasik’s appellate counsel further represents in the brief that she asked the clerk to supplement the record with the return of subpoena, but the appellate record has never been so supplemented. And Janasik’s appellate counsel never filed a motion in this Court seeking to supplement the record. As appellant, Janasik bore the burden of ensuring that the appellate record was complete. Rowell v. State, 312 Ga. App. 559, 561 (1) (718 SE2d 890) (2011).

       We note that Dr. Citron apparently testified at the hearing on the motion to suppress, but that motion was considered at the same hearing addressing the similar transaction evidence, which, as noted above, was not transcribed.

       Janasik asserts that the trial court never ruled on this claim, hut “[although the trial court did not make explicit findings on this issue, implicit in the trial court’s denial of the amended motion for new trial is a finding that [Janasik] was not denied the effective assistance of counsel.” Maddox v. State, 218 Ga. App. 320, 322 (2) (461 SE2d 286) (1995).


text:
    A13A0335.
    GILCHRIST v. GILCHRIST.
    (747 SE2d 75)
   MCMILLIAN, Judge.

Appellant Addrenna Gilchrist and Appellee DeJuan Gilchrist were divorced on June 17, 2008. The divorce decree incorporated by-reference a parenting plan. Under that plan, the parties share joint legal custody, with Addrenna named as primary physical custodian, while DeJuan is allowed visitation, including every other weekend. On July 2, 2012, Addrenna, acting pro se, filed an “Amended Motion to Modify Parenting Plan,” seeking to increase DeJuan’s visitation schedule to two days per week (and thereby decrease her time with her child). The trial court heard the motion on September 5,2012, and denied it by written order the next day, finding that

Father is working as a firefighter and has a constantly changing schedule. While Father expressed that he does want more time with the parties’ minor child, his current schedule does not allow it. Father did not consent to the adjustment that Mother asked for and the court is unaware of any precedent that requires Father to increase his visitation days when he cannot even conform to the current parenting plan due to his work schedule.

Addrenna now appeals the denial of her motion to modify the parenting plan.

1. Although Addrenna’s notice of appeal designates a record consisting of the appellate records from three prior appeals before the Supreme Court of Georgia, plus the original parenting plan, her amended motion to modify the parenting plan, and the order denying her motion to modify the parenting plan, the notice of appeal also recites that no transcript of the proceedings will be filed as the argument on appeal is “one of law.” And no transcript from the September 5, 2012 hearing has been filed.

It is well settled that in the absence of a transcript or stipulation of evidence pursuant to OCGA § 5-6-41 (g), we must presume that the evidence supports the trial court’s factual findings and affirm. Jones v. Smith, 280 Ga. 872, 872 (1) (632 SE2d 663) (2006). See also Hadden v. Hadden, 283 Ga. 424, 424 (1) (659 SE2d 353) (2008) (“Although the record discloses some evidence that was placed before the trial court, in the absence of transcripts that would detail what was presented in the hearings, this Court assumes that the evidence adduced therein was sufficient to support the trial court’s findings.”) (citation omitted); Trotter v. Ayres, 315 Ga. App. 7, 10 (3) (726 SE2d 424) (2012) (where sufficiency of the evidence is raised in a custody issue and no transcript from evidentiary hearing or statutory substitute is filed, it must be presumed that the trial court’s ruling was correct).

Addrenna’s contention that the trial court was required to adopt her modified parenting plan in light of DeJuan’s failure to file a competing parenting plan is without merit. Although OCGA § 19-9-1 (a) provides that where the custody of any child is at issue between the parents, each parent shall prepare a parenting plan or the parties may jointly submit a parenting plan, the failure by one party to file a parenting plan does not compel adoption of the plan submitted by the opposing party. Moore v. Moore-McKinney, 297 Ga. App. 703, 710 (3) (678 SE2d 152) (2009). As with the other issues arising from the denial of the motion to amend the parenting plan, due to the absence of a transcript, the record on appeal contains no evidence supporting Addrenna’s contention that the trial court abused its discretion in refusing to accept her proposed amended parenting plan. Accordingly, we find no error in the trial court’s denial of the motion to amend the parenting plan.

2. Addrenna’s remaining contentions share a common defect. Relying on OCGA § 5-6-34 (d), Addrenna seeks review of multiple orders contested in three previous appeals to our Supreme Court, which records Addrenna designated for inclusion in the present appellate record. OCGA § 5-6-34 (d) provides, in part:

Where an appeal is taken under any provision of subsection (a), (b), or (c) of this Code section, all judgments, rulings, or orders rendered in the case which are raised on appeal and which may affect the proceedings below shall be reviewed and determined by the appellate court, without regard to the appealability of the judgment, ruling, or order standing alone and without regard to whether the judgment, ruling, or order appealed from was final or was appealable by some other express provision of law contained in this Code section, or elsewhere. . . .

Decided July 15, 2013

Reconsideration denied July 30, 2013

Addrenna Gilchrist, pro se.

DeJuan Gilchrist, pro se.

Nonetheless, Addrenna’s claims are equally subject to another fundamental principle — that a litigant does not get a second (or in this case, third or fourth) chance to appeal the same order. See OCGA § 9-11-60 (h) (“any ruling by the Supreme Court or the Court of Appeals in a case shall be binding in all subsequent proceedings in that case in the lower court and in the Supreme Court or Court of Appeals as the case maybe”); Sherman v. Atlanta Independent School System, 293. Ga. 268 (744 SE2d26) (2013); Houston County v. Harrell, 287 Ga. 162 (695 SE2d 29) (2010). See also Paradise v. State, 321 Ga. App. 371 (740 SE2d 238) (2013) (even where previous appeal did not reach the merits of claim, a dismissal provides binding law of the case); Adams v. State, 316 Ga. App. 161, 162 (1), n. 5 (728 SE2d 711) (2012) (appellant precluded from relitigating issue decided on prior appeal); Rice v. Lost Mountain Homeowners Assn., Inc., 288 Ga. App. 714, 714 (1), n. 4 (655 SE2d 214) (2007) (final order affirmed by appellate court constitutes law of the case). Therefore, regardless of whether Addrenna’s prior appeals resulted in adverse decisions or were dismissed with no ruling on the merits, she has had the single appeal allowed and may not use procedural maneuvers to contrive further appeals.

Because Addrenna may not relitigate the same issues that were raised in the prior appeals before the Supreme Court of Georgia, we find that these enumerations of error present no issue for decision in this appeal.

Judgment affirmed.

Andrews, P. J., and Dillard, J., concur.

       All of these previous appeals relate to the 2008 divorce and proceedings after the divorce.