author: Ellington, Chief Judge.

text:
    A12A1748.
    KEOGH v. BRYSON.
    (735 SE2d 293)
   Ellington, Chief Judge.

Dulsie Bryson, as administratrix of the estate of Richard Gingrich, sued Decían F. Keogh to set aside an allegedly fraudulent conveyance. The Superior Court of DeKalb County granted Bryson’s motion for summary judgment, and Keogh appeals this ruling. For reasons that follow, we reverse.

Before addressing the merits of the summary judgment action, we must address procedural issues, which preceded the trial court’s summary judgment order. The record shows that Bryson filed suit in March 2007, and Keogh filed a timely answer. Keogh’s first attorney withdrew from the case in December 2007, and shortly thereafter James Penland filed an entry of appearance. Discovery was reopened in June 2009 with Penland as counsel of record.

On December 31, 2009, the trial court apparently accepted and considered “confidential correspondence,” which it placed under seal. This correspondence is not in the appellate record. On June 22, 2010, the trial court entered an order striking Keogh’s defensive pleadings for failing to appear at a March 2009 peremptory calendar and failing to appear for trial on June 11, 2010. Although the order was prepared by Bryson’s attorney, it was not accompanied by any motion, and there is nothing in the record to show that the document was served on Penland.

In March 2011, Bryson filed a motion for default judgment. The motion was also not served on Penland. According to Bryson, default judgment was authorized because the court had struck Keogh’s answer. The trial court granted the motion and entered default judgment on March 23, 2011.

Shortly thereafter, Penland filed a motion to set aside the default judgment under OCGA § 9-ll-60(d), alleging that he had received no notice of any trial calendars. In support of this allegation, Penland attached a copy of the legal notices from the local newspaper, which erroneously identified Keogh as a pro se litigant.

While the motion to set aside remained pending, Bryson filed a motion for summary judgment. According to Bryson, who is Gingrich’s daughter, Keogh purchased property from her father in 2003. In connection with the purchase, Keogh executed a promissory note for the loan amount. Keogh also executed a security deed to secure the note, and the deed was recorded. After making only eight payments, Keogh obtained a document stating that the note had been satisfied and cancelling the security deed. Bryson contended that Gingrich’s signature on the document had been forged. In support of this contention, Bryson attached affidavits from herself, her sister, and Gingrich’s care giver who testified that Gingrich had crippling arthritis, which prevented him from signing legibly. All three opined that the signature on the document was not Gingrich’s.

The trial court granted Bryson’s motion, finding as a matter of law that Gingrich’s signature was a forgery. Although the trial court recognized that its grant of summary judgment rendered moot Keogh’s motion to set aside the default judgment, the court nonetheless found that Keogh was not entitled to notice of default judgment proceedings and thus presented no basis for setting aside the judgment. The court also found that Keogh failed to present competent evidence that he was not notified of the trial calendar because the newspaper which listed Keogh as a pro se litigant was hearsay. Finally, the court found that Keogh had failed to timely challenge its order striking his answer. Keogh appeals these rulings.

1. Keogh contends that the trial court erred in dismissing his defensive pleadings for failure to appear because he did not receive notice of the proceedings. We agree. Under Georgia law, the trial court is required to provide notice of its trial calendar. See OCGA § 9-11-40 (c); Taylor v. Chester, 207 Ga. App. 217, 218 (427 SE2d 582) (1993). This requirement is not met when a published trial calendar improperly omits the name of a party’s attorney. See Brown v. Citizens & Southern Nat. Bank, 245 Ga. 515, 518-519 (265 SE2d 791) (1980).

The trial court found that Keogh had not proven lack of notice because the newspaper copy of the trial court’s calendar was mere hearsay. Pretermitting whether it was hearsay, it put the trial court on notice that the trial calendar was inaccurate. And it is the trial court’s duty to notify parties of the trial calendar. Taylor v. Chester, 207 Ga. App. at 218. The trial court can thus take judicial notice of its own records to determine whether adequate notice was provided. See Brown v. Citizens & Southern Nat. Bank, 245 Ga. at 518. If no such notice was provided, Keogh was entitled to have the order set aside. See Taylor v. Chester, 207 Ga. App. at 218; cf. Tab Sales, Inc. v. D & D Distributors, 153 Ga. App. 779, 780 (1) (266 SE2d 558) (1980) (where no evidence was presented that party lacked notice of trial, presumption of regularity applied).

To the extent the trial court found that Keogh was not entitled to notice of the default judgment proceedings, we disagree. Under OCGA § 9-11-6 (d), motions and notices of a hearing must be served on an opposing party. “Where, as here, a party is represented by counsel, service shall be made by delivering a copy to the attorney or by mailing it to him at his last known address. OCGA § 9-11-5 (b). Compliance with the notice requirement is mandatory, not discretionary.” (Citation and punctuation omitted.) Randall v. Randall, 274 Ga. 107, 109 (2) (549 SE2d 384) (2001); cf. T. A. I. Computer v. CLN Enterprises, 237 Ga. App. 646, 648-649 (3) (516 SE2d 340) (1999) (if no answer filed, defendant waives notice of further proceedings).

Finally, we find no support for the trial court’s conclusion that Keogh’s delay in challenging the June 22, 2010 order striking his answer precludes him from challenging the subsequent entry of default judgment. Keogh had no right to directly appeal the trial court’s order, which was interlocutory. See American Med. Sec. Group v. Parker, 284 Ga. 102, 104-107 (4)-(8) (663 SE2d 697) (2008). Rather, Keogh was required to wait until final judgment was entered before he could appeal. See id.; OCGA § 5-6-34 (d). Here, Keogh had reason to believe that final judgment was forthcoming. Less than a week after the trial court struck Keogh’s answer, Bryson’s attorney told Keogh’s lawyer that he was preparing a motion for summary judgment. Apparently, it was Bryson who delayed seeking either entry of default judgment or summary judgment. Thus, we fail to see why Keogh should be penalized.

2. In a related claim of error, Keogh contends that the trial court erred in denying his motion to set aside the default judgment. Ordinarily, an appeal from an order denying a motion to set aside under OCGA § 9-11-60 (d) must be made by application for discretionary appeal. See OCGA § 5-6-35 (a) (8). Here, however, we also have a final order on summary judgment, which may be directly appealed. See OCGA §§ 9-11-56 (h); 5-6-34 (a) (1). Under OCGA § 5-6-34 (d), where a direct appeal is properly taken,

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. For purposes of review by the appellate court, one or more judgments, rulings, or orders by the trial court held to be erroneous on appeal shall not be deemed to have rendered all subsequent proceedings nugatory; but the appellate court shall in all cases review all judgments, rulings, or orders raised on appeal which may affect the proceedings below and which were rendered subsequent to the first judgment, ruling, or order held erroneous.

Therefore, in view of the valid direct appeal, we may review the trial court’s ruling on Keogh’s motion to set aside. And, for the reasons discussed in Division 1, we conclude that the trial court erred in denying the motion. See Taylor v. Chester, 207 Ga. App. at 218.

3. Keogh contends that the trial court erred in granting summary judgment. Again, we agree.

When reviewing a grant of a motion for summary judgment, we conduct a de novo review of the law and evidence, viewing the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the party opposing the motion. 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. To defeat a motion for summary judgment, the respondent does not have to present conclusive proof to rebut the movant’s evidence; if the respondent produces or points to any specific evidence, even slight, in the record giving rise to a triable issue of material fact, then summary judgment must be denied.

(Citations and punctuation omitted.) Lee v. SunTrust Bank, 314 Ga. App. 63 (722 SE2d 884) (2012).

Under OCGA § 24-7-6, in the absence of direct evidence regarding the execution of any document, proof of handwriting may be offered by witnesses familiar with the handwriting of the person who allegedly signed the document. This is not to say, however, that the proof is dispositive as a matter of law. See id. Whether a signature is valid is a factual issue that requires resolution by a jury. See id.; see also, e.g., Ham v. Ham, 257 Ga. App. 415, 417 (571 SE2d 441) (2002). Thus, under these circumstances, the trial court erred in granting summary judgment. See id.; Ly v. Jimmy Carter Commons, 286 Ga. 831, 833 (1) (691 SE2d 852) (2010) (“On summary judgment, a trial court is not authorized to resolve disputed issues of material fact. A trial court is authorized only to determine whether disputed issues of material fact remain. If, and only if, no disputed issue of material fact remains is the trial court authorized to grant summary judgment.”) (citation and punctuation omitted).

Judgment reversed.

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

Decided December 12, 2012

James W. Penland, for appellant.

Anderson, Walker & Reichert, Jeremy M. Attaway, Jonathan A. Alderman, for appellee.

       In a pending proceeding, judges are strictly limited in their ability to consider ex parte communications. See Code of Judicial Conduct Canon 3 (B) (7); USCRRule 4.1.

       Although the motion has what appears to be a certificate of service, a close reading of the certificate discloses only that the original complaint was served in 2007.

       In response, Keogh contended that the original security deed was cancelled in order to sell the property, but that a new security deed was executed to secure the promissory note with a different piece of property.

       This order was also prepared by Bryson’s attorney.

       The cases upon which the trial court relied in finding Keogh dilatory involved a trial court’s discretion to open a default judgment once it hadbeen entered. See Rogers v. Coronet Ins. Co., 206 Ga. App. 46, 48 (2) (424 SE2d 338) (1992); Cole v. Lucas, 201 Ga. App. 423, 424 (1) (411 SE2d 284) (1991); Capital Assoc. v. Keoho, 173 Ga. App. 627, 628 (327 SE2d 586) (1985). Here, the trial court penalized Keogh for delay prior to the entry of the default judgment.


source: Caselaw Access Project

license: Public Domain

text:
    A12A2113, A12A2114.
    DILLARD v. THE STATE (two cases).
    (735 SE2d 297)
   Ellington, Chief Judge.

After a hearing, the Superior Court of Murray County revoked portions of the probated sentences Joseph Dillard received on two separate burglary convictions. Pursuant to a granted application for discretionary appeal, Dillard appeals, contending that the trial court erred in admitting into evidence photographs from a Facebook profile that appeared to show him holding a shotgun and that the evidence was insufficient to revoke his probation. For the reasons that follow, we remand.

“A court may not revoke any part of any probated or suspended sentence unless the defendant admits the violation as alleged or unless the evidence produced at the revocation hearing establishes by a preponderance of the evidence the violation or violations alleged.” OCGA § 42-8-34.1 (b). Generally, “[t]his court will not interfere with a revocation unless there has been a manifest abuse of discretion on the part of the trial court.” (Citation omitted.) Gray v. State, 313 Ga. App. 470, 471 (722 SE2d 98) (2011). However, we review questions of law de novo. White v. State, 274 Ga. App. 805 (619 SE2d 333) (2005).

The record shows that in January 2012 an investigator with the Murray County Sheriffs Office saw photographs on the Facebook profile of “Joe Dirty Deedse” that appeared to depict Dillard, whom the investigator confirmed was then on probation, holding a shotgun. The investigator contacted Dillard’s probation officer and learned that the probation officer was in the process of trying to locate Dillard in order to have him arrested for violating the conditions of probation under his two burglary convictions, specifically, by failing to report to the probation officer as directed and by changing his residence without the probation officer’s permission. Based on interviews with Dillard’s friends and information obtained from the “Joe Dirty Deedse” Facebook profile, the investigator determined that Dillard might be found at the home of John Knipp. When the investigator and Dillard’s probation officer went to the Knipp residence, they found Dillard alone in a bedroom with a shotgun propped beside the door; the investigator arrested Dillard. The State then filed a petition for revocation of probation in each case, alleging that Dillard had violated the terms of his probation by committing the offense of possession of a firearm by a convicted felon, a violation of OCGA § 16-11-131 (b). At the combined hearing on the two revocation petitions, the investigator testified about the circumstances leading to Dillard’s arrest, and the trial court admitted the shotgun that was near him when he was arrested. In addition, the trial court admitted, over objection, the Facebook profile photographs that apparently depicted Dillard holding the same shotgun.

At the conclusion of the hearing, the prosecutor, without referring to any other basis for revoking Dillard’s probation, argued simply, “here he was in the same room with this weapon at the time of his arrest and he was a convicted felon. Case closed.” The trial court stated, “[t]he Court will find that he has violated his probation as alleged [in the petitions].” The written revocation orders, however, state only that the trial court found that Dillard violated the conditions of his probation in each case by his unauthorized change of residence and by his failure to report to his probation officer as directed.

It is well settled that

[d]ue process requires that a defendant be given written notice of the claimed violation of his probation prior to [a probation] revocation hearing. In addition, in order to revoke the probationary features of a sentence the defendant must have notice and opportunity to be heard, the notice being sufficient to inform him not only of the time and place of the hearing and the fact that revocation is sought, but the grounds upon which it is based. It may not be revoked where there is no evidence that the defendant violated its terms in the manner charged in the notice, even though there be evidence at the hearing that the defendant violated the terms of probation in some other manner as to which there was no notice given. Likewise, if a judgment is based upon an offense not charged in the petition for revocation, it must be reversed.

(Citations and punctuation omitted.) Kitchens v. State, 234 Ga. App. 785, 787-788 (2) (508 SE2d 176) (1998). In this case, the judgments as entered appear to have been based upon violations that were not charged in the State’s petitions for revocation of probation. Dillard’s claims of error on appeal, however, are premised on his understanding that the court’s final, written orders contained a “scrivener’s error” and that the court revoked his probation based upon a finding that he had possessed a firearm in violation of OCGA § 16-11-131 (b) as alleged in the State’s revocation petitions. Similarly, the State maintains that the court found by a preponderance of the evidence that Dillard violated the terms of his probation by the commission of the offense of possession of a firearm in violation of OCGA § 16-11-131 (b) and addresses his arguments on the merits. Given the discrepancies among the allegations of the petition, the trial court’s oral announcement of its decision, the parties’ understanding of the trial court’s ruling, and the written judgments, we cannot ascertain the true basis for the revocation of Dillard’s probation. Because this doubt thwarts our consideration of Dillard’s appellate arguments, we deem it appropriate to remand the instant cases to the trial court for clarification. See Brown v. State, 167 Ga. App. 473, 474 (306 SE2d 728) (1983) (Where a probation revocation petition alleged that the appellant had violated the terms of his probation by committing the offense of rape, where the trial court orally announced that it found that there was evidence that the appellant either committed rape or some other offense, and where the written order stated only that the appellant’s probation was being revoked for the reason “as set forth in [the] petition,” the actual basis for the revocation of appellant’s probation remained in doubt, necessitating a remand of the case for the entry of a written definitive statement as to the reasons why the appellant’s probation had been revoked.).

Decided December 12, 2012.

George B. Sparks, for appellant.

Herbert M. Poston, Jr., District Attorney, Barry S. Minter, Assistant District Attorney, for appellee.

Cases remanded.

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

       Except for their underlying criminal case numbers, the revocation orders are identical. Because the appeals concern identical issues and arise from a single revocation hearing, we consolidate them.


author: PHIPPS, Presiding Judge.

text:
    A12A1094.
    BELL et al. v. LIBERTY MUTUAL FIRE INSURANCE COMPANY.
    (734 SE2d 894)
   PHIPPS, Presiding Judge.

Ernest and Iris Bell appeal from a trial court order granting Liberty Mutual Fire Insurance Company’s motion for entry and approval of certain appraisal awards determined by an umpire and denying the Bells’ motion to set aside those same awards, which were for less than the limits of their homeowner’s insurance policy with Liberty Mutual. The Bells contend that the trial court should have set aside the awards because the forms of the awards were improper, and thus, there was irregularity, a palpable mistake of law, or fraud in the issuance of the awards. The Bells also contend that the trial court erred in not finding that they were entitled to the maximum amount of coverage set forth in their insurance policy pursuant to a particular statute, and in not finding that Liberty Mutual denied their claim in bad faith. Finding no error, we affirm.

After their home was damaged by fire on April 26,2008, the Bells submitted a claim to Liberty Mutual to recover the policy limits for the loss of their dwelling and personal property. Liberty Mutual disputed the amount of the claim. Pursuant to the terms of the policy, the matter was submitted to two appraisers and to an umpire, to determine the actual value and amount of loss.

While the appraisal process was ongoing, the Bells filed in superior court a complaint for damages, seeking, among other things, to be paid the policy limits of their fire insurance policy for the loss of their dwelling and loss of personal property. Liberty Mutual filed an answer and asserted defenses, denying liability and disputing the amount of the claim. Litigation was stayed pending the completion of the appraisal process.

In August 2010, the umpire issued awards for the loss of the dwelling and the loss of personal property in amounts less than the policy limits, and Liberty Mutual assented to the awards. The stay on the litigation was lifted. Liberty Mutual filed in the trial court a motion for entry and approval of the awards; the Bells filed a motion to set aside the awards for the loss of the dwelling and the loss of personal property. The trial court issued an order granting Liberty Mutual’s motion; denying the Bells’ motion; and ordering that the umpire’s awards constituted the appropriate measure of damages. From this order, the Bells appeal.

An appraisement award is the result of a contractual method of ascertaining the amount of loss, and it is binding on the parties as to the amount of loss unless the award is set aside. There exists a presumption in favor of the regularity and fairness of appraisement awards, and it is difficult to set them aside. While an award may be attacked for any reason that would void a contract, as well as for fraud in the arbitration or in either party in obtaining the award, for a palpable mistake of law or for deciding any matter by chance or lot, where there is no evidence of fraud, oppression, irregularity, or unfairness, other than on the disputed issue of value, and no other circumstances tending to raise the issue, a verdict in the amount of the award is demanded.

An appellate court will not interfere with the report of appraisers when the question of quantum of the judgment is the subject of review, to correct the amounts reported, except in case of gross error showing prejudice, corruption or plain mistake.

1. The Bells contend that the forms of the umpire’s awards were improper because the umpire failed to include in the awards a list of damage or loss to any specific articles of personal property or components of the house. They argue that because that was not done, there was irregularity, a palpable mistake of law, or fraud committed by the umpire in his entry of the awards.

(a) The Bells do not contest that the insurance policy between them and Liberty Mutual (“homeowner’s policy”) did not require such itemization. They assert that their policy must be construed so as to conform to the state standard fire policy. In that regard, the Bells argue that the standard policy applied to this case and required such itemization, and that the umpire’s failure to itemize in accordance with the standard policy rendered the forms of the awards improper and invalid due to irregularity, a palpable mistake of law, or fraud committed by the umpire in his entry of the awards.

The standard policy pertinently provides:

The appraisers shall then appraise the loss, stating separately actual cash value and loss to each item; and, failing to agree, shall submit their differences, only, to the umpire. An award in writing, so itemized, of [umpire and one appraiser] whenfiledwith [Liberty Mutual] shall determine the amount of actual cash value and loss.

The term “item” is not defined in the standard policy. And the parties have not cited, nor have we discovered, any Georgia authority interpreting the requirement to itemize. The Bells assert that because the standard policy specifies that an insured must “furnish a complete inventory of destroyed, damaged and undamaged personal property, showing in detail quantities, costs, actual cash value and amount of loss claimed,” 7then “[n]o lesser burden can possibly be placed on the umpire.” But we are not convinced that the language of the standard policy in Georgia requires that the umpire itemize as the Bells describe. The pertinent language in the standard policy concerning what the umpire must do simply does not explicitly place such a duty on the umpire as it does on the insured; nor does the policy between the Bells and Liberty Mutual require such itemization.

To support their position, the Bells rely on Kacha v. Allstate Ins. Co., but that case is distinguishable. There, the judge instructed the homeowners (whose house had been damaged by heat and smoke in a wildfire) and the company that insured the home to agree as to a form for the award, and the parties agreed that the award would include a listing of specific items, e.g., kitchen cabinets, flooring, garage cabinets, carpet, and interior walls. Liberty Mutual, however, relies upon cases from multiple jurisdictions, interpreting in its favor clauses similar to the one at issue in this case. In those cases, the courts held that the term “item” in the appraisal provisions referred to the “items” listed on the faces of the policies, rather than to all the constituent elements of damage giving rise to the total loss. For instance, in Commercial Union Ins. Co. v. Ryals, the appraisal panel looked to the “Coverage” provision of the policy and determined that since there was only one item referred to — “Building(s)” — an itemized account of the components which made up the damaged building was unnecessary; it was proper for the appraisers to compute the loss to the building as one item.*

Here, the umpire entered three awards — for additional living expenses, for personal property, and for real property. As to the personal property and real property awards, the umpire stated separately the actual cost value, the total depreciation, and the replacement cost value. Indeed, in the “Coverage” section of the homeowner’s policy, personal property and real property (dwelling) were items for which coverage was provided.

Competent parties are free to choose and insert whatever provisions they desire in a contract, unless prohibited by statute or public policy. . . . Yet a contract of insurance should follow the cardinal rule of construction so as to carry out the true intention of the parties, and their rights are to be determined by the terms of the contract. Its language should receive a reasonable construction and not be extended beyond what is fairly within its plain terms .... It is the function of an appellate court to construe the contract as written, and we will not, by construction, create a liability not assumed by the insurer, nor delete a coverage contracted for, and we are not authorized to make a new contract for the parties, or one different from that plainly intended.

In the absence of an explicit provision in the standard policy directing the umpire to perform the same itemization as the insured is directed to perform under the standard policy, we see no error in the trial court’s failure to impose upon the umpire a duty for which the parties had not specifically contracted.

(b) The Bells’ contention that there was irregularity, palpable mistake of law, or fraud committed by the umpire in his issuance of the awards is based on their claim that the forms of the umpire’s awards were improper. Based on our holding in Division 1 (a), that contention is moot.

2. The Bells contend that the trial court erred in not finding that, pursuant to OCGA § 33-32-5, they were entitled to the maximum amount of coverage set forth in their policy because their home was wholly destroyed.

OCGA § 33-32-5 pertinently provides:

(a) Whenever any policy of insurance is issued to a natural person or persons insuring a specifically described one or two family residential building or structure located in this state against loss by fire and the building or structure is wholly destroyed by fire without fraudulent or criminal fault on the part of the insured or one acting in his behalf, the amount of insurance set forth in the policy relative to the building or structure shall be taken conclusively to be the value of the property. . . .
(b) Subsection (a) of this Code section shall not apply where:
(1) The building or structure is not wholly destroyed by fire[.] . . .

In their appellate brief, the Bells assert that “unquestionably, [their] house has now been wholly destroyed as a result of the fire, as a result of Liberty Mutual’s refusal and failure to timely pay their claims and the Bells’ inability to rebuild or protect the property ruins.” The umpire, however, determined that the house was not wholly destroyed during the fire. But the trial court did not rule on this issue, and therefore nothing is presented for our review.

3. The Bells contend that the trial court erred in not finding that Liberty Mutual denied their claim in bad faith, pursuant to OCGA § 33-4-6. The Bells assert that the record shows that Liberty Mutual chose to omit a “statutorily and contractually required provision in its homeowner’s insurance policy, to the detriment and unfair prejudice of the holders of its policy,” and that “[a]n award of bad faith damages and penalties by a jury would be authorized.”

To support a cause of action under OCGA § 33-4-6, the insured bears the burden of proving that the refusal to pay the claim was made in bad faith. A defense going far enough to show reasonable and probable cause for making it, would vindicate the good faith of the company as effectually as would a complete defense to the action. Penalties for bad faith [and attorney fees] are not authorized where the insurance company has any reasonable ground to contest the claim and where there is a disputed question of fact.

Decided November 30, 2012

Reconsideration denied December 13, 2012.

Carletta E. Sims, Simon Weinstein, for appellants.

Isenberg & Hewitt, Brent J. Kaplan, Hilary A. Wayne, for appellee.

The trial court did not rule on this issue, and therefore nothing is presented for our review.

In any event, the Bells fail to state the particular statutory or contractual provision they contend Liberty Mutual intentionally omitted from the homeowner’s policy. To the extent that they are referring to the provision in the standard policy that called for an award to be itemized, based on our holding in Division 1 (a), we discern no detriment or unfair prejudice to the Bells because the homeowner’s policy did not include that provision.

Judgment affirmed.

Ellington, C. J., and Dillard, J., concur.

       The umpire also issued an award for additional living expenses. The Bells do not dispute the award for additional expenses, which, according to the policy, covered the necessary increase in living expenses they incurred so that their household could maintain its normal standard of living.

        Southern Gen. Ins. Co. v. Kent, 187 Ga. App. 496, 497 (1) (370 SE2d 663) (1988) (citations omitted); see Pacific Nat. Fire Ins. Co. v. Beavers, 87 Ga. App. 294, 298-301 (4) (73 SE2d 765) (1952).

        Dept. of Transp. v. Driggers, 150 Ga. App. 270, 274 (257 SE2d 294) (1979).

       See OCGA § 33-32-1 (a); Ga. Comp. R. & Regs. r. 120-2-19-.01.

       Ga. Comp. R. & Regs. r. 120-2-19-.01.

       See Ga. Comp. R. & Regs. r. 120-2-19-.01.

       140 Cal. App. 4th 1023 (45 Cal. Rptr. 3d 92) (2006).

       Id. at 1027-1028.

        Mitchell v. Aetna Cas. & Surety Co., 579 F2d 342, 351 (5th Cir. 1978); Arkin Distributing Co. v. American Ins. Co., 85 Mich. App. 359, 363-364 (271 NW2d 430) (1978); Commercial Union Ins. Co. v. Ryals, 355 S2d 684, 686-687 (Ala. 1978); Phoenix Assurance Co. v. Singer, 331 F2d 10, 12 (8th Cir. 1964).

       Supra.

       Id.

        Donaldson v. Pilot Life Ins. Co., 177 Ga. App. 748, 749 (341 SE2d 279) (1986) (citation and punctuation omitted).

       See id.

       Supra.

       See Willingham v. Willingham, 261 Ga. 674, 675 (2) (410 SE2d 98) (1991).

        Rice v. State Farm Fire &c. Co., 208 Ga. App. 166, 169 (1) (430 SE2d 75) (1993) (citation and punctuation omitted).

        Willingham, supra.


author: McFADDEN, Judge.

text:
    A12A1114.
    NEWMAN v. JOHNSON.
    (733 SE2d 520)
   McFADDEN, Judge.

Brenda Johnson filed a complaint against Jimmy Burnsed, Bryan County Commission Chairman, and Derrell Newman, Bryan County Director of Public Works, seeking to recover damages for injuries allegedly suffered when she tripped and fell on a step near the entrance of a county-owned building. The complaint claims that the step violated two building codes, the Life Safety Code and the Americans with Disabilities Act (ADA). Burnsed and Newman filed a joint motion for summary judgment, asserting defenses of sovereign immunity for Burnsed and official immunity for Newman. The trial court granted summary judgment to Chairman Burnsed, but denied summary judgment to Director Newman, finding that there is a genuine issue of material fact as to whether he breached the duty to inspect the building for compliance with the ADA. Newman appeals, and we reverse because Johnson was not within the class of persons protected by the ADA, and remand to the trial court for consideration of the claims under the Life Safety Code.

1. Americans with Disabilities Act.

[0]n appeal from the denial or grant of summary judgment, the appellate court is to conduct a de novo review of the evidence to determine whether there exists a genuine issue of material fact, and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

(Citation and punctuation omitted.) Weller v. Blake, 315 Ga. App. 214, 215 (726 SE2d 698) (2012). Viewed in that light, the evidence shows that on the morning of March 13, 2007, 67-year-old Johnson was walking toward the entrance of the Department of Family and Children Services, located in a building owned by Bryan County. At the point where the sidewalk abutted the porch of the building, there was approximately a three-inch step. Johnson’s foot hit the step, and she fell, landing on her hands and head.

In its summary judgment order, the trial court found that the Bryan County buildings are subject to compliance with the ADA, that Newman had a ministerial duty to inspect buildings for compliance with the ADA, and that there is a genuine issue of material fact as to whether Newman violated this duty.

As to the ADA, OCGA § 51-1-6 provides for recovery of damages upon breach of a legal duty and specifies that the requirement under the law to perform or refrain from doing an act must be for the benefit of the injured person. To recover on a claim of breach of statutory duty, the person claiming the breach must be within the class for whose benefit the statute was enacted.

(Citations and punctuation omitted.) Manley v. Gwinnett Place Assocs., 216 Ga. App. 379, 381 (2) (454 SE2d 577) (1995), overruled in part on other grounds, Flournoy v. Hosp. Auth. of Houston County, 232 Ga. App. 791 (504 SE2d 198) (1998). “[T]he plaintiff must show at trial that the [ADA was] intended to protect the class of persons from certain risk of injury and that she came within the ambit of the act, protecting her from the prohibited acts or omissions of the defendant. [Cit.]” Val D’Aosta Co. v. Cross, 241 Ga. App. 583, 585 (526 SE2d 580) (1999).

In this case, although Johnson asserted a claim based on an alleged violation of the ADA, she has made no claim that she is disabled and has failed to point to any evidence showing that she was within the class of disabled persons for whose benefit the ADA was enacted. Indeed, at the summary judgment hearing, her attorney stated in his place that she was not disabled. The attorney told the court, “I don’t think [Johnson] would fit the definition of a person that was disabled. And I’m not going to blow any smoke with that—I don’t think she would have. But I think she would have been entitled to whatever protection is afforded by the Life Safety Code.”

It is clear that Johnson “was not in the class of persons for whose benefit the Americans With Disabilities Act was enacted, since she was not disabled.” Manley, supra. Because she was not in the statute’s protected clqss, she is not entitled to recover for the alleged acts or omissions that failed to comply with the ADA. Accordingly, the trial court erred in denying summary judgment to Newman on this claim. See Odem v. Pace Academy, 235 Ga. App. 648, 657 (3) (510 SE2d 326) (1998) (claim for alleged breach of statutory duty cannot survive summary judgment because plaintiff not within class of protected persons); Brantley v. Custom Sprinkler Systems, 218 Ga. App. 431, 432 (1) (461 SE2d 592) (1995) (summary judgment affirmed where plaintiff claiming OSHA regulation violation not a person intended to be benefitted by such regulation).

2. Life Safety Code.

Although the parties have addressed issues concerning the alleged violations of the Life Safety Code, we are not in a position to review those issues “because the court below did not address [them] in its order denying [Newman’s] motion for summary judgment.” Strength v. Lovett, 311 Ga. App. 35, 44 (2) (b) (714 SE2d 723) (2011).

When this Court reviews a decision of a trial court on a motion for summary judgment, it sits as a court for the correction of errors of law. An error of law has as its basis a specific ruling made by the trial court. There having been no rulings by the trial court on the issues [regarding the Life Safety Code], there are no rulings to review for legal error.

(Citations and punctuation omitted.) Williams v. United Community Bank, 313 Ga. App. 706, 707-708 (722 SE2d 440) (2012). Accordingly, on remand the trial court should consider the Life Safety Code claims.

Decided October 26, 2012

Reconsideration denied December 13, 2012

Brown, Readdick, Bumgartner, Carter, Strickland & Watkins, Richard K. Strickland, Steven G. Blackerby, for appellant.

Duffy & Feemster, Dwight T. Feemster, for appellee.

Judgment reversed and case remanded.

Barnes, P. J., and Adams, J., concur.


text:
    A12A1218.
    HENDLEY et al. v. EVANS et al.
    (734 SE2d 548)
   McFADDEN, Judge.

Joan and John Hendley sued Glenn Evans, M.D., andhis employer, Valdosta Medical Clinic, RC. (the defendants), for medical malpractice. The Hendleys contend that Joan Hendley suffered a vessel collapse during a medical procedure performed by Dr. Evans. They contend that Joan Hendley sustained brain damage and other physical injuries as a result of acts and omissions of Dr. Evans and of hospital personnel who were working under Dr. Evans’s supervision at the time of the collapse. A jury returned a defense verdict, upon which the trial court entered judgment. The Hendleys appeal.

The Hendleys argue that the trial court erred in failing to give any of several jury charges they requested on the issue of Dr. Evans’s potential vicarious liability for the acts and omissions of hospital personnel. We agree that the trial court was required to charge on this theory of recovery, and accordingly we reverse.

We find no merit, however, in the Hendleys’ arguments that the trial court erred in failing to give other requested charges on evidentiary presumptions and circumstantial evidence or in giving Dr. Evans’s requested charge on accepted risk. Finally, in light of our disposition and given the impending change to Georgia’s evidence rules, we do not address the Hendleys’ claim that the court erred in excluding as hearsay certain witness testimony that they argued was subject to the res gestae exception.

1. Facts and proceedings below.

The trial evidence showed that on November 9, 2005, a doctor in Dr. Evans’s practice performed a diagnostic heart catheterization procedure on Mrs. Hendley at a hospital. During the catheterization procedure, that doctor decided that Mrs. Hendley also should undergo an angioplasty procedure to insert stents into some of her blood vessels.

Dr. Evans performed the angioplasty procedure. During that procedure, Mrs. Hendley’s blood pressure dropped and one of her bloodvessels collapsed. Dr. Evans then called a “Code Blue.” Hospital personnel in the operating room performed CPR on Mrs. Hendley and, after multiple attempts, intubated her. During the Code, however, Mrs. Hendley’s oxygen saturation dropped to a dangerous level. The Hendleys presented evidence that she sustained some brain damage from lack of oxygen following the vascular collapse.

Mrs. Hendley remained intubated for several weeks after the Code due to complications, and after several unsuccessful attempts at extubation she underwent a tracheotomy. The doctor who performed the tracheotomy found damaged tissue and scarring in her esophagus. The Hendleys presented evidence that this scarring was a complication of the multiple intubation attempts and prolonged intubation. After continued complications and additional surgeries, Mrs. Hendley’s voice box was removed and she is now permanently dependent on a tracheostomy.

2. Jury charges.

The Hendleys argue that the trial court erred in denying their requests for jury charges on the following issues: the borrowed servant doctrine, respondeat superior, agency, imputed negligence, evidentiary presumptions arising from a party’s failure to produce evidence or witness testimony, and circumstantial evidence. They also argue that the trial court erred in giving the defendants’ requested charge on accepted risk.

“A charge on a given subject is justified if there is even slight evidence from which a jury could infer a conclusion regarding that subject.” (Citations and punctuation omitted.) Gates v. Navy, 274 Ga. App. 180, 183 (4) (617 SE2d 163) (2005). Atrial court may deny a specific request to charge if any portion of the request is inapt or incorrect, because a request to charge must be “correct, legal, apt, even perfect, and precisely adjusted to some principle involved in the case.” (Citation omitted.) Lifestyle Family, L.P. v. Lawyers Title Ins. Corp., 256 Ga. App. 305, 311 (3) (568 SE2d 171) (2002). Nevertheless, “[a] trial court must instruct a jury on the law as to every controlling, material, substantial and vital issue in the case. The failure to charge on a properly asserted and legally cognizable theory of recovery, whether requested or not, or attention be called to it or not, is harmful as a matter of law.” (Citations and punctuation omitted.) Duffield v. Chui, 314 Ga. App. 214, 214-215 (723 SE2d 506) (2012). Accord Tempo Mgmt. v. Lewis, 210 Ga. App. 390, 391 (1) (436 SE2d 98) (1993).

(a) The trial court erred in failing to charge the jury on Dr. Evans’s potential vicarious liability for the negligence of hospital personnel.

Concerning the issue of Dr. Evans’s vicarious liability, the Hendleys sought that the jury be charged on the borrowed servant doctrine or, alternatively, be given the pattern charges on respondeat superior, agency and imputed negligence. The trial court, however, declined to give any of these requested charges, and its final charge did not instruct the jury on the issue of Dr. Evans’s possible vicarious liability.

As detailed below, the trial court did not err in declining to give the specific charge that the Hendleys requested on the borrowed servant doctrine, because it was not a fully accurate statement of the law. The Hendleys, however, presented some evidence from which a jury could find Dr. Evans vicariously liable for the negligent acts and omissions of hospital personnel, and the trial court was required to instruct the jury on this theory of the Hendleys’ case. The court’s failure to give any instruction on vicarious liability was reversible error.

(i) A doctor may be found liable under the theory of respondeat superior for the negligent acts of his employees. See Packer v. Gill, 193 Ga. App. 388, 390 (4) (388 SE2d 338) (1989). “[T]he traditional definition of ‘employee’... has for at least a century contained within its purview borrowed servants.” Summerlin v. Ga. Pines Community Svc. Bd., 286 Ga. 593, 595 (2) (690 SE2d 401) (2010). “Ordinarily, when one lends his servant to another for a particular employment, the servant will be dealt with as a servant of the person to whom he is lent, although he remains the general servant of the person who lent him.” (Citations omitted.) Merry Bros. Brick & Tile Co. v. Jackson, 120 Ga. App. 716, 719 (171 SE2d 924) (1969); see Summerlin, 286 Ga. at 594 (2) (“borrowed servants are employees of the borrowing employer”) (citations omitted).

Accordingly, the borrowed servant doctrine “is applied in the context of the tort doctrine of respondeat superior.” Summerlin, 286 Ga. at 596 (2); see Staffing Resources v. Nash, 218 Ga. App. 525 (1) (462 SE2d 401) (1995). It is a means of transferring the vicarious liability for an employee’s negligence from a lending employer to a borrowing employer. See Hoffman v. Wells, 260 Ga. 588, 590 (2) (397 SE2d 696) (1990) (discussing borrowed servant doctrine as effecting a transfer of vicarious liability); Ross v. Chatham County Hosp. Auth., 258 Ga. 234 (367 SE2d 793) (1988) (same).

The requirements for the borrowed servant doctrine to apply are well settled in this state[.] In order for an employee to be a borrowed employee, the evidence must show that (1) the special master had complete control and direction of the servant for the occasion; (2) the general master had no such control, and (3) the special master had the exclusive right to discharge the servant. Six Flags Over Ga. v. Hill, 247 Ga. 375, 377 (1) (276 SE2d 572) (1981).

(Punctuation omitted.) Tim’s Crane & Rigging v. Gibson, 278 Ga. 796, 797 (604 SE2d 763) (2004). The three prongs of this test “focus on the occasion when the injury occurred rather than the work relationship in general.” (Punctuation omitted.) Stephens v. Oates, 189 Ga. App. 6, 7 (1) (374 SE2d 821) (1988); see Berry v. Davis Feed & Seed, 237 Ga. App. 768, 770 (516 SE2d 812) (1999) (as to the third prong, “the temporary employer’s exclusive power to discharge must relate only to the temporary assignment”) (citation and punctuation omitted).

A number of Georgia cases have explored the parameters of this basis for imputing liability in the context of a hospital operating room. In Miller v. Atkins, 142 Ga. App. 618 (236 SE2d 838) (1977), and its progeny we explained that “where a hospital yields control of its employees to a surgeon in the operating room, and the surgeon exercises immediate personal supervision over those employees, then he becomes their master, and their negligence during the course of the master-servant relationship will be imputable to him.” (Emphasis supplied.) Id. at 619. Accord McClure v. Clayton County Hosp. Auth., 176 Ga. App. 414, 418 (3) (336 SE2d 268) (1985); Swindell v. St. Joseph’s Hosp., 161 Ga. App. 290, 291 (1) (291 SE2d 1) (1982). Our Supreme Court, in Ross, 258 Ga. 234, reaffirmed this principle regarding the transfer of vicarious liability for the negligence of hospital employees from the hospital to an operating room doctor pursuant to the borrowed servant doctrine. Id. at 234-235 (1). The Court held in Ross that a hospital seeking to defend a medical malpractice claim based upon the negligent acts of its employees during a surgical procedure performed in a hospital operating room must show three things: (1) that the hospital yielded control of its employees who were assisting in the surgical procedure; (2) that the employees were under the immediate supervision of the surgeon; and (3) that the tasks performed by the employees involved professional skill and judgment. Id. at 235 (1).

The defendants contend that Ross stands for the proposition that the borrowed servant doctrine may only be used defensively by a party seeking to transfer vicarious liability to another party. They assert in their appellate brief that neither Ross nor the other Georgia cases addressing the borrowed servant doctrine in the hospital context “permit a medical malpractice plaintiff to assert the [b]orrowed [s]ervant [djoctrine as an affirmative theory of recovery.” (Emphasis in original.) Essentially, the defendants argue that a plaintiff injured by the negligent acts of hospital personnel while they were working as borrowed servants of an operating room doctor has no affirmative cause of action against the doctor under respondeat superior, but instead must sue the hospital so that the hospital can assert the borrowed servant doctrine as a defense. Only when the hospital is then removed from the case, under the defendants’ theory, may the plaintiff proceed against the hospital personnel’s temporary employer, the doctor.

We disagree with the defendants’ depiction of the function of the borrowed servant doctrine. To say that a plaintiff has no affirmative cause of action against a negligent actor’s employer is contrary to the doctrine of respondeat superior, under which employers may be vicariously liable for their employees’ negligence. Outside of the operating room context, we have held that an employer could be vicariously liable on a plaintiff’s claim based on the negligence of a borrowed servant. See Coe v. Carroll & Carroll, Inc., 308 Ga. App. 777, 778-782 (1) (709 SE2d 324) (2011) (finding summary judgment not appropriate in personal injury action against allegedly borrowing master of negligent servant, where questions of fact existed as to whether requirements for application of borrowed servant doctrine had been met). Neither Ross nor any of the other cases cited by the parties hold that a different rule should apply to exclude borrowed servants from this basic principle of respondeat superior in the operating room context. The fact that the borrowed servant doctrine was used defensively in Ross and other cases by hospitals or other institutions (and thus was discussed in those cases in terms reflecting that defensive use) is merely a function of the procedural posture of those cases, not support for the deviation from settled principles of respondeat superior proposed by the defendants.

Moreover, the position advocated by the defendants would result in unnecessary lawsuits being filed against hospitals or other similarly-situated institutions in cases where the undisputed facts showed those institutions had no liability. The defendants’ own appellate brief illustrates this undesirable result. The defendants contend that a plaintiff is not entitled to jury charges on the doctrines of respondeat superior, agency, or imputed liability because “[t]he [b]orrowed [s]ervant [d]octrine provides the only avenue in Georgia through which liability for the alleged negligent act of a hospital employee [can] be imputed to an independent physician.” (Emphasis supplied.) But the defendants also contend that a plaintiff is not entitled to a jury charge on the borrowed servant doctrine unless the plaintiff sues the hospital as well as the doctor. As a result, under the defendants’ view, the only way that a plaintiff injured by the negligence of hospital personnel working as the borrowed servants of an operating room doctor can seek recovery against that doctor is to sue the hospital, even if, under the borrowed servant doctrine, the undisputed evidence showed that the hospital had no liability whatsoever.

We have found no Georgia authority that requires the outcome proposed by the defendants — forcing medical malpractice plaintiffs to sue hospitals merely to preserve their causes of action against doctors. Given the lack of authority demanding this outcome, we decline to read into Georgia’s doctrine of respondeat superior an exception for borrowed servants that would impose such a requirement upon medical malpractice plaintiffs.

(ii) But the specific charge requested by the Hendleys on the borrowed servant doctrine was not a fully accurate statement of the law. Their requested charge stated: “Once a doctor enters the operating room and takes charge of the proceedings then the doctor becomes the master of all of the operating room personnel and their negligence during the course of the master-servant relationship will be imputable to the doctor.” This charge did not comport with the requirements for a transfer of liability under the borrowed servant doctrine as articulated by our Supreme Court in Ross, which included the additional requirement that the tasks performed by the borrowed servants involve professional skill and judgment. See Ross, 258 Ga. at 235 (1). Accordingly, the trial court did not err in declining to give this specific charge.

(iii) Nevertheless, the court was required to instruct the jury on the law as to every controlling, material, substantial and vital issue in the case, whether or not a proper charge was requested. Duffield, 314 Ga. App. at 214-215. As explained below, Dr. Evans’s vicarious liability for the negligence of hospital personnel was such an issue in this case. Accordingly, the trial court erred in failing to instruct in some manner on this issue — whether by modifying the Hendleys’ requested charge on the borrowed servant doctrine, by giving one of the other instructions requested by the Hendleys on the principles of respondeat superior, agency or imputed negligence, or by devising its own charge on the issue. Id.

The trial evidence justified a charge on the issue of Dr. Evans’s vicarious liability for the negligence of hospital personnel regarding the ventilation of Mrs. Hendley during the Code Blue. The Hendleys presented some evidence from which a jury could infer that the hospital employees in the operating room at the time of the Code Blue breached the standard of care in their treatment of Mrs. Hendley by not providing her with proper ventilation (which the parties refer to as being “masked and bagged”) prior to her being intubated. The Hendleys’ expert witness testified that it appeared from the records that “there was nobody in the room attending to [Mrs. Hendley’s] respondatory status,” and that this constituted a deviation from the standard of care.

And there was some evidence from which a jury could find the requirements for a transfer of any liability for these hospital employees’ acts and omissions from the hospital to Dr. Evans. Although the defendants argue that there was no evidence that the hospital had completely yielded control over the operating room personnel to Dr. Evans, Dr. Evans himself agreed at trial that, when he entered the operating room to perform the angioplasty procedure, he “took control of [the] surgical suite” and that, as the operating physician, he gave direct orders to the four other people in the room. He also testified that, during the Code Blue, he delegated tasks to the other people in the operating room. The defendants’ expert witnesses also agreed that Dr. Evans directed the actions of the others during the Code Blue. The defendants do not argue that the actions of the operating room personnel pertaining to the ventilation and resuscitation of Mrs. Hendley during the Code Blue were not actions requiring professional skill or judgment.

We agree with the defendants, however, that there was not trial evidence to support the Hendleys’ other argument, that Dr. Evans was vicariously liable in regard to an air bubble that may have entered Mrs. Hendley’s circulatory system at some point during one of her procedures. The Hendleys have pointed to no evidence in the record tying the suspected air bubble to any act or omission of a hospital employee during the time when Dr. Evans was in the operating room to perform the angioplasty procedure or during the subsequent Code Blue. See generally Doctors Hosp. of Augusta v. Bonner, 195 Ga. App. 152, 164 (8) (392 SE2d 897) (1990) (borrowed servant doctrine did not apply where doctor alleged to be borrowing employer was not present in operating room when acts of negligence by certified registered nurse anesthetist occurred). Instead, the evidence pertaining to the suspected air bubble suggested that, if such an air bubble occurred at all, it was introduced through the use of equipment during the earlier catheterization procedure, before Dr. Evans entered the operating room.

In summary, there was evidence supporting the Hendleys’ theory that Dr. Evans should be held vicariously liable, under the principle of respondeat superior, for negligence of hospital personnel pertaining to the ventilation of Mrs. Hendley during the Code Blue. Accordingly, vicarious liability was a properly asserted and legally cognizable theory of the Hendleys’ recovery. Because the trial court failed to charge on this theory of recovery, we must reverse. See Duffield, 314 Ga. App. at 214-216; see also Miller, 142 Ga. App. at 619 (reversing judgment on jury verdict where trial court failed to charge jury on vicarious liability based on borrowed servant doctrine). It will be for the trial court on retrial to determine the specific charge to give the jury on this issue, consistent with the evidence presented on retrial and the requirements set forth in Ross, supra, 258 Ga. 234.

(b) The trial court did not err in failing to charge the jury on evidentiary presumptions.

The Hendleys requested that the trial court give the following two pattern charges on evidentiary presumptions:

When a party has evidence that rejects (or disproves) a claim or charge made against the party and he/she fails to produce it, or having more certain and satisfactory evidence, relies on that which is of a weaker and inferior nature, a presumption arises that the charge or claim is well founded. This presumption may be rebutted, however.

Suggested Pattern Jury Instructions, Vol. I: Civil Cases § 02.160 (2010).

If a party fails to produce an available witness, the jury shall determine whether such a failure warrants the inference that the witness, if produced, would have testified to facts prejudicial to the party failing to produce the witness.

Suggested Pattern Jury Instructions, Vol. I: Civil Cases § 02.161 (2010). The charges derive from OCGA § 24-4-22, which provides:

If a party has evidence in his power and within his reach by which he may repel a claim or charge against him but omits to produce it, or if he has more certain and satisfactory evidence in his power but relies on that which is of a weaker and inferior nature, a presumption arises that the charge or claim against him is well founded; but this presumption may be rebutted.

Comparable provisions to this Code section have been included in the revision to Georgia’s Evidence Code, which goes into effect on January 1, 2013. See OCGA § 24-14-22.

(i) The Hendleys argue that pattern charge § 02.160 should have been given because the defendants failed to produce evidence regarding whether Mrs. Hendley was ventilated, through the method the parties refer to as being “masked and bagged,” before being intubated. But the principle set forth in OCGA § 24-4-22 applies only in cases where it is shown that a party has withheld evidence within the party’s power and control, and an instruction on that principle should be given only in “exceptional cases.” (Citation omitted.) AT Systems Southeast v. Carnes, 272 Ga. App. 671, 674 (3) (a) (613 SE2d 150) (2005). See also Cotton States Fertilizer Co. v. Childs, 179 Ga. 23, 31 (174 SE 708) (1934). Compare Eddie Parker Interests v. Booth, 160 Ga. App. 15, 16-17 (285 SE2d 753) (1981) (applying presumption against party which admitted that relevant, unproduced evidence “most likely” was in its files). Here, the evidence included medical records regarding the treatment of Mrs. Hendley during the Code, and the defendants introduced testimonial evidence that the notations in those records were consistent with her receiving ventilation as part of cardiopulmonary resuscitation efforts. The Hendleys have pointed to nothing showing that the defendants withheld other medical records or any other evidence on this issue that was within their power and control. Under these circumstances, the trial court did not err in declining to give the requested charge.

(ii) The Hendleys argue that pattern charge § 02.161 should have been given because the defendants did not produce testimony from Dr. Evans, doctors who were partners in the Valdosta Medical Clinic, or any other witness to rebut the medical records that the Hendleys contend showed that Mrs. Hendley was not “masked and bagged.” The requested charge was inapplicable to Dr. Evans, because the evidentiary presumption does not apply to the decision of a party defendant not to testify, see Maloy v. Dixon, 127 Ga. App. 151, 154-155 (2) (a) (193 SE2d 19) (1972), and because, in any event, Dr. Evans did testify (albeit on cross-examination during the Hendleys’ case-in-chief). Pretermitting whether the rule regarding a party defendant also would apply to the other doctors who are partners of defendant Valdosta Medical Clinic, the Hendleys have pointed to nothing in the record demonstrating that any of those doctors who did not testify had any personal knowledge relevant to the issues in this case. (One of Dr. Evans’s partners in the Valdosta Medical Clinic did testify — the doctor who performed the initial diagnostic catheterization procedure on Mrs. Hendley.) Finally, as stated above, the defendants did present witness testimony rebutting the Hendleys’ interpretation of the medical records. Under these circumstances, the trial court did not err in declining to give the requested charge.

(c) The trial court did not err in failing to give the jury the Hendleys’ requested charge on circumstantial evidence.

The Hendleys argue that the trial court erred in declining to give the following charge: “I charge you that circumstantial as well as direct evidence may be used to prove negligence.” The trial court, however, did charge the jury that “[bjoth direct and circumstantial evidence may be used to prove the facts upon which any expert relies in formulating his opinion that negligence occurred.” And the trial court charged the jury on the definitions of circumstantial evidence and direct evidence and instructed the jury that “[t]he comparative weight of circumstantial and direct evidence on any given issue is a question of fact for you to decide.” Because the charges given by the trial court covered the principle addressed by the Hendleys’ requested charge, we find no error in the court’s decision not to give the requested charge. See Ga. Dept. of Transp. v. Miller, 300 Ga. App. 857, 865 (4) (b) (686 SE2d 455) (2009).

(d) The trial court did not err in charging the jury on accepted risk.

The Hendleys argue that the trial court erred in giving the following jury charge:

I charge you that in the event a plaintiff develops a certain condition or an event occurs which is recognized to be an accepted risk or known complication of medical treatment, that on its own is not proof of negligence. It is for you to determine whether such condition is a medically accepted risk, known complication of plaintiffs’ medical treatment, or negligence.

The first sentence of the challenged charge is a correct statement of law. Barham v. Levy, 228 Ga. App. 594, 595 (1) (492 SE2d 325) (1997). Although the Hendleys contend that the second sentence of the charge was confusing, we agree with the defendants that, when viewed in the context of the charge as a whole, which included instructions on the “law concerning an allegation of professional negligence and, in particular,... the standards of care and what must have been established in order to hold Dr. [Evans] liable,” id., the trial court did not err in giving the charge.

3. Hearsay evidence.

The Hendleys also argue that the trial court erred in excluding as hearsay testimony from a person who was working in the operating room at the time of the Code Blue. They proffered that this witness would testify that she heard another person in the room — whom she could not identify — mention a “possible air embolus” during the Code. The Hendleys argue that this testimony should have been allowed under the res gestae exception to the hearsay rule. We decline to review the trial court’s decision on this issue, because as of January 1, 2013, Georgia’s evidence rules will change and any opinion we might make on the admissibility of the evidence on retrial under the new evidence rules would be advisory. See generally Huff v. Harpagon Co., 286 Ga. 809, 811 (2) (692 SE2d 336) (2010) (“Georgia appellate courts are not authorized to render advisory opinions as to potential error”) (citations and punctuation omitted).

Decided November 21, 2012

Reconsideration denied December 13, 2012

Berrien L. Sutton, Brent J. Savage, Brent J. Savage, Jr., for appellants.

Coleman Talley, Wade H. Coleman, Gregory T. Talley, Alphonso A. Howell TV, for appellees.

Judgment reversed.

Barnes, P. J., and Adams, J., concur.


author: Ray, Judge.

text:
    A12A1231.
    TOBIAS v. THE STATE.
    (735 SE2d 113)
   Ray, Judge.

Following a jury trial, Nancy Rawlins Tobias was convicted of homicide by vehicle in the second degree, failure to yield right of way, and driving with an expired tag. After a hearing, the trial court denied Tobias’ motion for new trial. Tobias appeals, contending that the trial court erred in denying: (1) her motion to suppress statements; (2) her motion to sever; (3) her motion for mistrial based on error in administering the jurors’ oath; and (4) her motion for mistrial based on a juror’s question in open court. Tobias also contends that the trial court erred in failing to take testimony at sentencing regarding her ability to pay restitution. Finding no error, we affirm.

On appeal from a criminal conviction, the evidence must be construed in a light most favorable to the verdict, and [Tobias] no longer enjoys a presumption of innocence. In evaluating the sufficiency of the evidence to support a conviction, we do not weigh the evidence or determine witness credibility, but only determine whether a rational trier of fact could have found the defendant guilty of the charged offenses beyond a reasonable doubt.

So viewed, the evidence shows that, on April 28,2009, Tobias was driving a Toyota Tacoma truck northbound along Highway 75 in Towns County. As she was attempting to make a left turn onto Highway 180, she turned in front of a motorcycle that was traveling southbound on Highway 75. The motorcycle and its driver, James Beaman, collided with the passenger side of the truck. Beaman died at the scene from the injuries he sustained in the collision.

Shortly after the accident, Tobias was escorted by emergency medical personnel to a nearby house to be treated for shock. Tobias remained in the residence until law enforcement had an opportunity to speak with her regarding details of the accident. Approximately one hour after the accident, Corporal Jonathon Barrett with the Georgia State Patrol arrived on the scene as the lead investigator and began speaking with other law enforcement and medical personnel who were present. Corporal Barrett testified that the roadway evidence was “pretty overwhelming” and that “it was a fairly easy crash to see what happened.” He further testified that his initial investigation indicated that the driver of the truck was “going to be at fault for turning left in front of the motorcycle.” Corporal Barrett spent approximately 45 minutes investigating the accident.

Corporal Barrett then entered the residence where Tobias was receiving treatment and began asking her what happened in the crash. He did not physically place her under arrest or tell her that she would be arrested at that time. Tobias told Corporal Barrett that she was traveling northbound on Highway 75 and was turning left onto Highway 180 when the crash occurred. Corporal Barrett then advised Tobias that there was no insurance on the vehicle and that the tag was expired and asked her if she was aware of those facts, and she indicated that she was. After speaking with Tobias, Corporal Barrett told her that she would be charged and advised what the charges would be, then placed her under arrest and advised her of her rights under Miranda v. Arizona,

1. With regard to the denial of her motion to suppress, Tobias claims that the trial court erred in finding that she was not in custody at the time she made the statements to Corporal Barrett prior to being advised of her Miranda rights. Specifically, Tobias contends that she had been detained by law enforcement for approximately two hours after the accident and then questioned in an isolated and police-dominated atmosphere. Under these circumstances, she contends that a reasonable person would not have felt free to leave during questioning and would not have believed that her detention during the investigation was only temporary.

The issue of whether a person is in custody for Miranda purposes is a “mixed question of law and fact, and the trial court’s determination will not be disturbed unless it is clearly erroneous.”

A person is considered to be in custody and Miranda warnings are required when a person is (1) formally arrested or (2) restrained to the degree associated with a formal arrest. Unless a reasonable person in the suspect’s situation would perceive that [she] was in custody, Miranda warnings are not necessary. Thus, the relative inquiry is how a reasonable person in [Tobias’] position would perceive [her] situation.

In other words, the proper inquiry focuses upon “the objective circumstances attending the particular interrogation at issue, and not upon the subjective views of either the person being interrogated or the interrogating officer.”

The trial court conducted a Jackson-Denno hearing prior to trial. The testimony presented several inconsistencies regarding the circumstances surrounding the questioning. Corporal Barrett testified that Tobias had been “detained” at the scene “just like any driver in any crash is detained and they have an obligation to stay and report to law enforcement what happened in the crash.” However, another officer, Deputy Mike Davis, testified that Tobias was free to leave during this investigation. Tobias testified that, after she was escorted by medical personnel to a nearby residence to be treated for shock, she was told by a law enforcement officer that “a State Patrolman was on his way to the scene and that he would determine the course of action from there.” Tobias further testified that she felt like she was not free to leave the scene, even though she had not been told that she could not do so. Corporal Barrett testified that Tobias was not under arrest at the time he questioned her about the details of the accident, but he acknowledged that he had already determined that Tobias was going to be arrested. Corporal Barrett further testified that Deputy Davis was the only other law enforcement officer present when he spoke to Tobias. However, Tobias testified that there were three uniformed officers with Corporal Barrett when she was questioned. At the conclusion of the hearing, the trial court found that Tobias was not in custody at the time she gave her statements to Corporal Barrett prior to being advised of her Miranda rights.

In reviewing a trial court’s ruling denying a motion to suppress, the following three principles apply: First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support them. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment. Because there was testimonial evidence in this case, we do not apply a de novo standard of review.

Furthermore, a trial judge at a motion to suppress hearing is under no obligation to believe a witness, even in the absence of contradictory testimony. The trial judge “may accept part of a witness’ testimony and reject another part.”*

Viewed in a light most favorable to the trial court’s judgment, the evidence shows that Tobias had been escorted to a nearby residence by emergency medical personnel, not law enforcement, to receive treatment for shock after the accident. Moreover, as Tobias was involved in a motor vehicle collision involving a fatality, she was legally obligated to remain at the scene to provide details of the accident to the investigating officer. It is well settled that a police officer has the right to detain an individual involved in an automobile accident to conduct an investigation into the circumstances surrounding the accident, and such detention does not normally trigger the protections of Miranda. The record shows that it took Corporal Barrett approximately one hour to arrive at the accident scene, during which time Tobias received medical treatment for symptoms of shock. After arriving on the scene, Corporal Barrett spent approximately 45 minutes investigating the accident before speaking with Tobias. This Court has identified no particular length of time in which a temporary detention must be considered “unreasonable.” Under the circumstances presented in this case, we cannot say that the time period between the accident and Tobias’ questioning was an unreasonable detention.

Further, Tobias was not isolated in a police-dominated atmosphere while she remained in the residence. She was accompanied by her mother and her aunt, who were also present during her interview with the police. Furthermore, the fact that “all of Towns County” was present at the accident scene did not constitute a “police-dominated” atmosphere during her questioning. The record shows that Tobias was not outside at the accident scene with the law enforcement and emergency response personnel, she had been taken inside a nearby residence to be treated for shock, where she remained with her mother and her aunt until Corporal Barrett had an opportunity to speak with her.

There was no evidence that Tobias had been placed under formal arrest or restrained to the degree associated with a formal arrest at the time she gave her statements to Corporal Barrett. Although the record indicates that Corporal Barrett intended to arrest her on charges stemming from the accident, there is no evidence in the record that Tobias had actually been informed that she was going to be placed under arrest until after Corporal Barrett had questioned her about the accident. We have held that “a custodial situation does not arise even if an officer believes he has probable cause to arrest a defendant, where the officer takes no overt step to communicate that belief.”

Under the totality of the circumstances here, the trial court was authorized to conclude that Tobias was not in custody when she was questioned because a reasonable person would not have felt that she was under a formal arrest, but would have understood that she could not simply leave the scene of such a serious accident before speaking with the police.

2. Tobias next contends that the trial court erred in denying her motion to sever the charge of driving with an expired tag from the remaining charges of homicide by vehicle and failure to yield right of way at trial. We disagree.

[W]here the joinder [of offenses] is based upon the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan, severance lies within the sound discretion of the trial judge since the facts in each case are likely to be unique. A trial court does not abuse its discretion in denying a severance of counts where evidence of one charge would be admissible in the trial of another.

“Acts and circumstances forming a part ... of the main transaction are admissible as res gestae, and . . . [e]very aspect of the criminal transaction relevant to the crime charged may be presented at trial, even if the defendant’s character is incidentally placed in issue.” Here, the offense of driving with an expired tag was connected to and a part of the immediate circumstances of the vehicle collision at issue in this case and was, therefore, admissible.

Where a joinder of offenses is based upon a series of acts involved in a single transaction, severance lies within the sound discretion of the trial court, who must consider “whether in view of the number of offenses charged and the complexity of the evidence to be offered, the triers of fact will be able to distinguish the evidence and apply the law intelligently to each offense.” Tobias, however, makes no argument as to whether the failure to sever prevented or hindered the jury from distinguishing the evidence or intelligently applying the law to each offense. Furthermore, Tobias stipulated at trial that she was operating her vehicle with an expired tag at the time of the accident. Accordingly, we find that the trial court did not abuse its discretion in denying the motion.

3. Tobias contends that the trial court erred in denying her motion for mistrial after the court clerk, during the administration of the jurors’ oath, mistakenly included the withdrawn charge of no proof of insurance while reading the list of charges contained in the indictment. Tobias contends that the reference to the no proof of insurance charge was prejudicial. This argument lacks merit.

This is not a case where there has been a complete failure to administer the mandatory oath to the jury, which would require the conviction to be set aside. Here, Tobias alleges that the clerk made an error in reciting the withdrawn charge to the jury during the oath. While there appear to be no cases directly on point, we have previously held that a trial court did not abuse its discretion in giving a curative instruction instead of granting a motion for mistrial when the trial court, while swearing in the jury, inadvertently mentioned a second indictment against the defendant charging him with another offense that was to be tried separately. When a defendant’s character has been impermissibly placed in issue in this manner, the decision to give a curative instruction rather than grant a mistrial lies within the sound discretion of the trial court.

Here, the trial court gave a curative instruction to the jury, as crafted and requested by defense counsel, immediately following the administration of the jurors’ oath. In its curative instruction, the trial court stated that “language from the indictment has been read to you by the Clerk of Court regarding no proof of insurance. That charge has been dismissed by the State and is not for your consideration in this case.” Further, Tobias cannot prove that such a reference harmed her defense, as the record indicates that the trial court was going to allow the State to elicit testimony from Corporal Barrett that he determined, during his routine investigation of the accident, that Tobias did not have insurance on the vehicle.

Because Tobias has failed to demonstrate any harm arising from the clerk’s reference to the no proof of insurance charge during the oath, we find that the trial court did not abuse its discretion in denying her motion for mistrial on this basis.

4. Tobias also contends that the trial court erred in denying her motion for mistrial when a juror asked the trial judge an oral question in open court. Tobias argues that the juror’s question indicated that there may have been jury deliberation in the case prior to the close of evidence. We disagree.

At trial, the State called an expert on vehicle collision reconstruction to testify regarding his investigation of the accident scene. On direct examination, the witness testified that the length of the motorcycle’s skid mark was 34.72 feet and that, based on his assessment of the accident scene, the motorcycle was not exceeding the posted speed limit at the time of the crash. On cross-examination, the witness acknowledged that his written investigative report indicated that there was a distance of 65 feet from the beginning of the motorcycle’s skid mark to the point of the motorcycle’s impact with Tobias’ truck. At the request of defense counsel, the jury was taken outside for the demonstrative purpose of showing a distance of 65 feet. Thereafter, the jury was returned to the courtroom for further proceedings. After the State had rested its case and prior to dismissing the jury for the day, the bailiff informed the trial court of a jury question. Prior to addressing the question, the trial court reminded the jury of the proper time to begin deliberations. The trial court then called upon the juror who had the question, whereupon the juror stated that “[t]he question was about the 35 feet and 65 feet. [The expert] said there was 34 feet so why did we measure off 65 feet?” In response, the trial court explained that it could not answer questions of that nature and stated that the attorneys may attempt to clear that up in their closing arguments. The jury was then excused for the day.

At the conclusion of the charge conference, Tobias moved for a mistrial on the basis that the question posed by the juror indicated the possibility of improper jury deliberations. Although the trial court expressed some concern that the question was not presented to the court in written form, and that the trial court responded to the question without consulting counsel, the trial court found that the juror’s question did not demonstrate any premature jury deliberations and denied the motion for mistrial.

“Juror misconduct does not always necessitate a mistrial, and the trial judge’s decision as to the grant or denial of a mistrial in such cases will not be reversed absent an abuse of discretion.” In determining whether the trial court abused its discretion in denying the motion for mistrial based on a juror’s statement, we consider the circumstances of the case, “includ[ing] the nature of the statement, the other evidence in the case, and the action taken by the court and counsel concerning the impropriety.”

Here, the facts showed that the juror had a question regarding the use of demonstrative evidence. The substance of the juror’s question, standing alone, does not indicate that an improper discussion had taken place among the jurors. Furthermore a trial court is not required to question the jurors whenever there is a bare allegation of misconduct. “In order to upset a jury verdict because of juror misconduct, the jurors’ statements must be so prejudicial that the verdict must be deemed inherently lacking in due process. There must be a reasonable probability that the misconduct contributed to the conviction.”

We cannot conclude that the juror’s question to the trial court demonstrated improper jury deliberations, nor can we conclude that the question in open court was so prejudicial as to deny due process to Tobias. Further, given the evidence introduced against Tobias at trial, we find no reasonable probability that the alleged misconduct contributed to the guilty verdict in this case. Tobias made no effort to have the trial court question the jury as to whether they actually engaged in premature deliberations. Thus, there was no evidence before the trial court that the juror discussed the question with, or presented any extrajudicial information to, any of the other jurors. Nor does it appear that Tobias presented any such evidence at the hearing on her new trial motion. The juror’s question was neutral as to the parties involved, and the mere fact that the juror asked this question does not show that any juror had expressed an opinion as to Tobias’ guilt or tried to persuade other jurors as to any issue or testimony. Moreover, the trial court reminded the jurors of the proper time to begin deliberations before addressing the question in open court. Under these circumstances, we find that the trial court did not abuse its discretion.

5. In her final enumeration of error, Tobias contends that the trial court erred at sentencing by ordering restitution without considering Tobias’ ability to pay. Finding no error, we affirm.

On appeal from an order of restitution, we review the record to determine whether a restitution award was supported by a preponderance of the evidence.

“OCGA § 17-14-7 (b) requires the trial court to hold a hearing to determine restitution ‘if the parties have not agreed on the amount of restitution prior to sentencing.’ In determining the nature and amount of restitution, the trial court is required to take into account the factors listed in OCGA § 17-14-10 (a).”Those factors include, among others, the offender’s financial resources, financial obligations, and income.

At the sentencing hearing, the trial court heard from Beaman’s widow and her friend concerning the effect that the accident had on the family. The State then gave its sentence recommendation to the trial court, which included a requirement that Tobias pay $4,595 to the widow to cover the costs of funeral expenses. In response, defense counsel acknowledged that restitution should be paid to the widow, but requested that the trial court consider a reduced fine and twelve months’ probation as opposed to incarceration in order to allow Tobias to pay the restitution. Defense counsel further stated that Tobias had decided, upon the advice of counsel, not to make a statement to the family during sentencing because she intended to file a motion for new trial. However, Tobias presented no evidence as to her financial circumstances or ability to pay. The trial court then sentenced Tobias to twelve months, with the first eight months to be served in confinement, fines totaling $600, restitution to the widow in the amount of $4,595, and eighty hours of community service.

In ordering restitution, it is not sufficient for the trial judge to consider only the amount of damages. Rather, under OCGA § 17-14-10, a trial court must also consider other factors, including the defendant’s present financial resources, her earnings and other income, and any financial obligations she might have. It is the defendant’s burden to prove these factors by a preponderance of the evidence during the restitution hearing, and the defendant may forego presenting such evidence. In this case, Tobias presented no such evidence, and accordingly, she did not shoulder her burden of proof. Although the trial court did not make findings on the record as to Tobias’ financial situation, we have held that “it is unnecessary to require the ordering authority to make a finding on each factor.” On appeal from a restitution award, this Court has the duty of “reviewing [the] transcript to determine whether each party has met. . . her specified burden and [determine] whether a restitution award was supported by the preponderance of the evidence.” We find no error.

Decided November 30, 2012

Reconsideration denied December 13, 2012.

NickiN. Vaughan, H. Bradford Morris, Jr., William D. Hoffer, for appellant.

W. Jeffrey Langley, District Attorney, Christopher M. Foss, Assistant District Attorney, for appellee.

Judgment affirmed.

Miller, P. J., and Branch, J., concur.

       OCGA § 40-6-393 (o).

       OCGA § 40-6-71.

       OCGA § 40-2-8.

       (Citation omitted.) Nelson v. State, 317 Ga. App. 527 (731 SE2d 770) (2012).

       384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).

       (Citation and punctuation omitted.) DiMauro v. State, 310 Ga. App. 526, 528 (1) (714 SE2d 105) (2011).

       (Citations and punctuation omitted.) State v. Folsom, 285 Ga. 11, 12-13(1) (673 SE2d 210) (2009).

       (Citation omitted.) Crawford, v. State, 288 Ga. 425, 426 (2) (a) (704 SE2d 772) (2011).

        Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964).

       (Punctuation and footnote omitted.) White v. State, 319 Ga. App. 540 (732 SE2d 107) (2012).

       (Citation and punctuation omitted.) State v. Lynch, 286 Ga. 98, 101 (1) (686 SE2d 244) (2009).

       OCGA § 40-6-270 (a). See generally Ayres v. State, 259 Ga. App. 290, 292 (1) (576 SE2d 597) (2003).

        Gilmore v. State, 242 Ga. App. 470, 471 (2) (530 SE2d 221) (2000); Gunn v. State, 236 Ga. App. 901, 902 (1) (514 SE2d 77) (1999); Morrissette v. State, 229 Ga. App. 420, 422 (1) (a) (494 SE2d 8) (1997).

       See Harper v. State, 243 Ga. App. 705, 706 (1) (534 SE2d 157) (2000) (where evidence showed that the length of time from the traffic stop to the arrival of the investigating officer was approximately one hour, the temporary detention of defendant pending completion of the investigation was not unreasonable. Although the defendant was not free to leave the scene, he was allowed to walk around.). Accord Aldridge v. State, 237 Ga. App. 209, 213 (3) (515 SE2d 397) (1999) (a wait of 45 to 50 minutes from the time of the traffic stop to the commencement of the investigation did not convert the investigation into a custodial situation).

       See Sosniak v. State, 287 Ga. 279, 280-282 (1) (A) (1) (695 SE2d 604) (2010) (defendant was not deemed to be in custody for Miranda purposes where defendant was handcuffed, placed in patrol car, and taken to sheriff’s office for questioning. The defendant’s handcuffs were removed upon his arrival at the sheriff’s office, he was not physically restrained or told that he was not free to leave, and he consented to informal questioning).

       See generally Morrissette, supra at 422 (1) (a) (where police officer testified that he strongly suspected that the defendant was intoxicated and, therefore, could have arrested him before administering field sobriety tests, his temporary detention of the defendant for further on-the-scene investigation of the automobile accident did not render the defendant “in custody” for Miranda purposes).

        State v. Pierce, 266 Ga. App. 233, 235 (1) (596 SE2d 725) (2004).

       See generally Evans v. State, 234 Ga. App. 337, 338 (1) (506 SE2d 681) (1998) (defendant who was asked to remain on scene during officer’s investigation of vehicle accident involving injuries was not deemed to be in custody during subsequent field sobriety tests).

       Tobias had been charged by indictment with one count of homicide by vehicle in the second degree, one count of failure to yield right of way, one count of no proof of insurance, and one count of driving with an expired tag. Prior to trial, the State announced that it would not be going forward on the charge of no proof of insurance, but would be proceeding on the remaining three counts.

       (Citations and punctuation omitted.) Carruth v. State, 290 Ga. 342, 346 (4) (721 SE2d 80) (2012).

       (Citations and punctuation omitted.) Moore v. State, 242 Ga. App. 208, 211-212 (3) (529 SE2d 210) (2000).

       (Citation and punctuation omitted.) Abernathy v. State, 191 Ga. App. 350, 350 (1) (381 SE2d 537) (1989).

       OCGA § 15-12-139.

       The exact words that the clerk used are not in the record, as the jurors’ oath was not transcribed.

        Spencer v. State, 281 Ga. 533, 534 (640 SE2d 267) (2007).

        Hubbard v. State, 210 Ga. App. 141, 144-145 (3) (435 SE2d 709) (1993).

       Id. at 145 (3).

       The record does not indicate whether the question was presented on behalf of the entire jury or the individual juror who asked the question of the court.

       (Citation omitted.) Lawrence v. State, 289 Ga. App. 163, 165 (1) (657 SE2d 250) (2008).

       (Citation and punctuation omitted.) Cooke v. State, 230 Ga. App. 326, 327 (496 SE2d 337) (1998).

       See Ellis v. State, 164 Ga. App. 366, 370 (9) (296 SE2d 726) (1982) (where a juror, prior to the close of evidence, submitted a handwritten note to the trial judge requesting a clarification of the evidence, the contents of the note itself did not indicate that the jury had improperly discussed the case).

        Merritt v. State, 248 Ga. App. 709, 711 (1) (548 SE2d 427) (2001).

       (Punctuation and footnotes omitted.) Id.

        Lawrence, supra at 166 (1).

        Overby v. State, 315 Ga. App. 735, 736 (728 SE2d 278) (2012).

        Cameron v. State, 295 Ga. App. 670, 671 (2) (673 SE2d 59) (2009).

       OCGA § 17-14-10 (a) (l)-(3).

       OCGA § 17-14-10 (a); Slater v. State, 209 Ga. App. 723, 725 (4) (434 SE2d 547) (1993); McCart v. State, 289 Ga. App. 830, 832 (1) (658 SE2d 465) (2008) (The trial court is not required to make a finding on the record as to each factor. Further, “[a]n appellate court is capable of reviewing a transcript to determine whether each party has met his or her specified burden.”).

       See McCart, supra.

       Id.

       Id.; accord Turner v. State, 312 Ga. App. 799, 804 (2) (720 SE2d 264) (2012).

        McCart, supra.