text:
    A14A0690.
    ABNEY v. THE STATE.
    (759 SE2d 618)
   BARNES, Presiding Judge.

Ronald Lynne Abney was indicted on three counts of obscene Internet contact with a child, and a jury found him guilty of all three counts. However, before sentencing, the trial court granted Abney’s general demurrer to Count 1 of the indictment and entered a judgment of conviction and sentence only on Counts 2 and 3. The trial court thereafter denied Abney’s motion for a new trial on Counts 2 and 3. On appeal, Abney contends that he is entitled to a new trial on Counts 2 and 3 of the indictment because the trial court erred in refusing to allow a defense expert to testify about the results of Abney’s pretrial psychosexual evaluation. Abney also contends that the trial court erred when it reserved ruling on his general demurrer to Count 1 of the indictment until after the jury found him guilty of all three counts. For the reasons discussed below, we discern no error and affirm.

“Following a criminal conviction, the defendant is no longer presumed innocent, and we view the evidence in the light most favorable to sustain the verdict.” Anthony v. State, 317 Ga. App. 807 (732 SE2d 845) (2012). So viewed, the evidence showed that in November 2010, an undercover officer with the Special Victims Unit of the Gwinnett County Police Department was investigating Internet crimes against children. The officer pursued these investigations by using a computer at police department headquarters to pose as an underage teenager in chat rooms on the Internet. The officer would wait for a user to broach the subject of sex or the sharing of explicit photographs or videos. The officer’s computer was programmed to record the written communications, photographs, or videos that were transmitted during conversations the officer had with such a user. Consequently, the written communications, photographs, and videos at issue in the present case were recorded.

On the afternoon of November 1, 2010, the officer logged onto an Internet chat room posing as a 13-year-old girl with the screen name “dixiechickiel3.” The chat room was a “regional chat room” for Atlanta. Although it was the policy of the chat room that all online users be at least 18 years old, the officer testified that in his experience the age policy was not policed by the Internet company associated with the chat room.

While posing as “dixiechickiel3,” the undercover officer was contacted via instant message by another website user, later identified as Abney, using the screen name “mike_oxardl0.” Abney identified himself as a 36-year-old male located in Georgia. The officer responded that he was a 13-year-old female located in Georgia who was “sitting here, waiting for mom to get home.”

Abney asked “dixiechickiel3” if she had any “pics to share.” The undercover officer then sent Abney photographs of a female colleague in the police department who had given the officer permission to use pictures that had been taken of her when she was 13 or 14 years old. Abney viewed the photographs and commented that “dixiechickiel3” was a “cutie.” He asked “dixiechickiel3” if she had a boyfriend or if her mom knew that she was logged into the chat room, and the officer answered in the negative to both questions and wrote that “[mom] would FREAK.”

Abney invited “dixiechickiel3” to view his webcam transmission. The undercover officer accepted the request, which allowed him to see and record the video transmitted from Abney’s computer as they wrote back and forth to each other. After Abney activated his web-cam, he asked “dixiechickiel3” whether she had ever been “naughty” online, and the officer responded, “im new on here.” Abney also asked “dixiechickiel3” if she had ever had sex, and the officer answered in the negative. Abney then engaged in a graphic conversation with the officer posing as “dixiechickiel3” about sex and masturbation while transmitting images from his webcam of his penis as he masturbated. During the interaction, Abney asked “dixiechickiel3” if she had “pics of [her] ass” or in a bikini, and the officer responded, “no sorry i don’t, mom got pissed and took away my phone ... [that] had my earner [a].” The officer ultimately broke off the interaction by claiming that “mom will be home in a few minutes.”

Following an investigation into the identity of “mike_oxardlO,” the undercover officer who had posed as “dixiechickiel3” along with other officers executed a search warrant at Abney’s house in Gwinnett County, where they discovered a computer with an online account under that user name. Abney was present during the search and agreed to speak with the undercover officer after being advised of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966). Abney admitted that he was “mike_oxardlO” and had interacted online with “dixiechickiel3” in a sexually explicit manner. But Abney claimed that he thought he had been engaging in “fantasy role play[ ]” with another adult user and never intended to interact with an actual underage female.

Based on his sexually explicit interaction with “dixiechickiel3,” Abney was indicted on three counts of obscene Internet contact with a child under OCGA § 16-12-100.2 (e) (l). The State alleged that in his online interactions with “dixiechickiel3,” Ahney had believed he was interacting with a 13-year-old girl and thus had acted with the requisite criminal intent under the statute.

Abney retained a psychologist who conducted a psychological and psychosexual evaluation of him. After conducting the evaluation, the psychologist issued a report in which he opined that “Mr. Abney’s test results and his self-report are not suggestive of any sexual deviance towards minors,” that “Mr. Abney does not appear to pose a risk of sexually offending in the future,” and that “there does not appear to be any need for any psychological interventions based upon [Mr. Abney’s] sexual history and overall psychosexual (or psychological) functioning.”

Before trial, Abney filed a motion in limine requesting that he be permitted to call the psychologist to testify as a defense witness in support of his claim that he had not acted with the intent to interact with an underage girl. Following a pretrial hearing on the issue in which Abney proffered the report prepared by the psychologist, the trial court denied the motion. The trial court noted, “I mean, that’s the issue for the jury, is whether or not at the time of the [I]nternet liaison,... [Abney] had the intent that the statute requires.” The trial court further noted that “an expert cannot come in, no matter how well-trained they are, and opine about what is the ultimate issue for a jury.”

At the ensuing jury trial, the undercover officer who had posed as “dixiechickie 13” testified regar ding his online interactions with Abney, the search of Abney’s house, and his interview with Abney. The State also introduced into evidence an audio recording of the officer’s interview of Abney, as well as transcripts of the online communications between Abney and “dixiechickie 13,” the photographs of the underage girl that the undercover officer had sent to Abney, and screen shots of the sexually explicit images transmitted from Abney’s webcam.

After the State rested, Abney argued that Count 1 of the indictment was subject to general demurrer on that ground that the substance of that count was legally insufficient to charge a crime under OCGA § 16-12-100.2 (e) (l). Abney also moved for a directed verdict of acquittal on all three counts, challenging the sufficiency of the evidence presentedby the State. The trial court denied the motion for a directed verdict on Counts 2 and 3, but reserved ruling on the general demurrer and motion for directed verdict on Count 1.

Abney then elected to testify in his own defense. Abney testified that he routinely engaged in “fantasy role plays” online and that he had believed that his sexually explicit interaction with “dixiechickiel3” had been nothing more than role playing between consenting adults. Abney claimed that he had always believed that the photographs of the underage female sent to him by the officer were “old” pictures of an adult user, and he testified that he never intended to interact with an underage female.

After the defense rested, the trial court again reserved ruling on Abney’s general demurrer and motion for a directed verdict of acquittal on Count 1 and allowed the case to go to the jury on all three counts. The jury subsequently returned a verdict finding Abney guilty of all three counts of obscene Internet contact with a child. Later, at the sentencing hearing, the trial court granted Abney’s general demurrer to Count 1 and entered a judgment of conviction and sentence only on Counts 2 and 3 of the indictment. Abney filed a motion for a new trial as to Counts 2 and 3, which the trial court denied, resulting in this appeal.

1. Abney contends that he is entitled to a new trial on Counts 2 and 3 because the trial court erred in excluding the testimony of the psychologist who conducted the psychological and psychosexual evaluation of him. According to Abney, the psychologist’s testimony about the evaluation should have been permitted because it would have supported his defense that he did not intend to have obscene Internet contact with an underage girl. We are unpersuaded.

It is well established that “an expert may not offer an opinion on an ultimate issue of fact—including the issue of the defendant’s guilt — where the jury is capable of making that determination without expert assistance.” (Emphasis omitted.) Thomas v. State, 318 Ga. App. 849, 854 (4) (a) (734 SE2d 823) (2012). See Harris v. State, 283 Ga. App. 374, 379 (3) (641 SE2d 619) (2007). Furthermore, a trial court has broad discretion in deciding whether to admit or exclude the testimony of an expert. See Burgess v. State, 292 Ga. 821, 822 (2) (742 SE2d 464) (2013).

The trial court did not abuse its discretion by excluding the expert testimony of the psychologist retained by the defense. We have repeatedly held that opinion testimony from an expert who administered psychological testing to the defendant regarding whether the defendant exhibited signs of sexual deviance or abnormality or met the profile of a child or adolescent sex abuser is not admissible in Georgia. See Hudson v. State, 218 Ga. App. 671, 674-675 (4) (462 SE2d 775) (1995); Gilstrap v. State, 215 Ga. App. 180 (1) (450 SE2d 436) (1994); Lewis v. State, 212 Ga. App. 310, 311 (2) (441 SE2d 851) (1994); Collar v. State, 206 Ga. App. 448, 448-449 (2) (426 SE2d 43) (1994); Jennette v. State, 197 Ga. App. 580, 581-583 (3) (398 SE2d 734) (1990). As we have explained, this type of opinion testimony goes to the credibility of the defendant and his capability of performing the acts of which he was accused, and such matters are not beyond the ken of the jurors and thus do not necessitate expert testimony. See id. Accordingly, in light of this precedent, we conclude that the trial court acted within its discretion in excluding the testimony of the psychologist retained by the defense.

2. Abney next contends that the trial court erred by failing to grant his general demurrer to Count 1 before the jury began its deliberations and found him guilty of all three counts. According to Abney, the trial court, by waiting until sentencing to grant the general demurrer on Count 1, caused the jury to have to discuss that count and thus “tainted” its deliberations on the remaining two proper counts. Again, we are unpersuaded.

We have held that a trial court may reserve ruling on a motion for a directed verdict of acquittal until after the jury returns its verdict and is dispersed, see State v. Seignious, 197 Ga. App. 766, 767 (399 SE2d 559) (1990), and we discern no reason why the same rule should not apply to a general demurrer. Moreover, even if the trial court had erred in its decision to reserve ruling on the demurrer, the burden is on Abney to show harm as well as error. See Humphreys v. State, 287 Ga. 63, 78 (8) (a) (694 SE2d 316) (2010). At the hearing on the motion for new trial, Abney conceded that evidence pertaining to Count 1 of the indictment would have been admissible at trial as part of the res gestae, even if the trial court had quashed that count before trial. Because the jury would have heard the same evidence irrespective of when the trial court ruled on the general demurrer, Abney cannot show harm and thus has failed to establish a basis for reversal. See Ballentine v. State, 194 Ga. App. 560, 562 (4) (390 SE2d 887) (1990).

Judgment affirmed.

Boggs and Branch, JJ., concur.

Decided June 11, 2014.

Brimberry, Kaplan & Brimberry, Mark D. Brimberry, for appellant.

Daniel J. Porter, District Attorney, Courtney R. Spicer, Wesley C. Ross, Assistant District Attorneys, for appellee.

       OCGA § 16-12-100.2 (e) (1) (2010), in effect at the time of the alleged crimes, provided:
      A person commits the offense of obscene Internet contact with a child if he or she has contact with someone he or she knows to be a child or with someone he or she believes to be a child via a computer on-line service or Internet service, including but not limited to a local bulletin board service, Internet chat room, e-mail, or on-line messaging service, and the contact involves any matter containing explicit verbal descriptions or narrative accounts of sexually explicit nudity, sexual conduct, sexual excitement, or sadomasochistic abuse that is intended to arouse or satisfy the sexual desire of either the child or the person, provided that no conviction shall be had for a violation of this subsection on the unsupported testimony of a child.
      Minor revisions were made to subsection (e) (1) in 2013. See Ga. L. 2013, p. 663, § 3/HB 156.

       “[A] general demurrer, in which a defendant contends that the charging instrument fails altogether to charge him with a crime, may be raised at any time before the trial court.” (Citation omitted.) Bryant v. State, 320 Ga. App. 838, 841 (3) (740 SE2d 772) (2013).

       Because the present case was tried in June 2012, the new Georgia Evidence Code does not apply to any of the evidentiary issues addressed in this case. See Ga. L. 2011, p. 99, § 101 (“This Act shall become effective on January 1, 2013, and shall apply to any motion made or hearing or trial commenced on or after such date.”).


source: Caselaw Access Project

author: Ray, Judge.

license: Public Domain

text:
    A14A0028.
    PRESTON v. THE STATE.
    (760 SE2d 176)
   Ray, Judge.

We granted Desmond Preston’s application for interlocutory review of the trial court’s order denying his out-of-time motion to file pre-trial motions. Preston contends that he should be allowed to file untimely pre-trial motions because he was not represented by counsel at arraignment and did not give a valid waiver of counsel. Because we find that the denial of his motion was not in error, we affirm.

Preston was charged with possession of marijuana, less than an ounce (OCGA § 16-13-30 (j) (1)), and driving under the influence (OCGA § 40-6-391 (a) (2)). On February 6, 2013, Preston appeared pro se for his arraignment before the trial court. He signed an “Appearance, Plea and Waiver” form, in which he pled not guilty and indicated that he wished to apply for the services of a public defender. Preston was disqualified from receiving assistance of appointed counsel for financial reasons. Preston also signed a document titled “Arraignment Instructions,” which further advised him of his rights and the importance of having an attorney. Preston told the trial court that he intended to hire an attorney, but did not have one at the arraignment. During Preston’s arraignment, the trial court informed him that he had ten days to file any motions in his case or else his right to file pre-trial motions would be waived, and that he “really need[ed] to get a lawyer hired in the next ten days” because “DUI[s] and drug cases are the kinds of cases that lawyers like to file motions in.” The trial court further entered an order granting him ten days after arraignment in which to file pre-trial motions.

Preston was arraigned on February 6, 2013, but his attorney did not make an entry of appearance until April 16, 2013, long after the ten-day period in which to file pre-trial motions had expired. Preston even appeared pro se at his first trial calendar on March 12,2013, and the trial court continued his case to a later calendar so that he could procure counsel for trial. On April 16, 2013, Preston’s counsel filed a notice of appearance, along with a motion to suppress, motion for discovery, motion for a jury trial (which Preston had previously waived at his arraignment), and a motion to allow out-of-time filing of motions. The trial court continued the case to May 7, 2013, for a hearing on Preston’s motion to allow motions and his motion for a jury trial. At the hearing, Preston provided no explanation as to why he was unable to hire counsel to file pre-trial motions within the ten-day window. The trial court granted the motion for trial by jury, but denied Preston’s out-of-time motion to file pre-trial motions, citing its prior notice to Preston of the ten-day limit in which to file motions after arraignment. The trial court issued a certificate of immediate review, and this appeal ensued.

OCGA § 17-7-110 provides that “[a]ll pretrial motions, including demurrers and special pleas, shall be filed within ten days after the date of arraignment, unless the time for filing is extended by the court.” In the instant case, Preston argues that the trial court erred in denying his motion to allow motions because he was arraigned without the benefit of counsel or a valid waiver of counsel. We disagree.

Citing to Ledford v. State, 247 Ga. App. 885 (545 SE2d 396) (2001), Preston argues that a defendant’s right to counsel extends to arraignment proceedings and that he did not knowingly waive his right to counsel. In Ledford, this Court held that a defendant’s right to counsel attaches

at the pleading stage of the criminal process and clearly extends to arraignment. Arraignment is a critical stage in a criminal prosecution in this state not only because the defendant must enter a plea, but also because USCR 31.1 mandates that pre-trial motions be filed at or before arraignment. A defendant who lacks a lawyer at arraignment may not be aware of or capable of meeting USCR 31.1’s deadline, and . . . risks forfeiting the right to file important pre-trial motions.

(Footnotes omitted.) Id. at 886. In Ledford, this Court held that the trial court abused its discretion in ruling that a defendant waived her right to counsel when she appeared at arraignment pro se and the trial court did not ask defendant “why she was appearing pro se, whether she wanted a lawyer, or whether she could afford one.” Id. at 887. Further, “no one informed [the defendant] that by entering a plea at arraignment she was waiving her right to file pre-trial motions [and] [t]his was especially critical in her case because she unknowingly waived the right to file a motion to suppress.” (Footnote omitted.) Id. at 887.

Ledford is distinguishable from the present case, however. After Ledford, USCR 31.1 was amended to provide that “[a]ll motions, demurrers, and special pleas shall be made and filed at or before the time set by law unless time therefor is extended by the judge in writing prior to trial.” Further, our legislature passed OCGA § 17-7-110 in 2003, amending former USCR 31.1’s deadline by granting defendants a period often days after arraignment in which to file motions. These changes mean that defendants no longer waive their right to file pre-trial motions by being arraigned prior to obtaining counsel. Thus, unlike the defendant in Ledford, Preston did not waive his right to file pre-trial motions simply by appearing for arraignment pro se. Further, unlike the defendant in Ledford, who was not asked at arraignment why she was appearing pro se, whether she wanted a lawyer, or whether she could afford one, Preston informed the trial court that he intended to hire counsel. He was also repeatedly told by the trial court of the importance of obtaining an attorney and of the ten-day deadline in which to file pre-trial motions or else his right to do so would be waived. Preston also signed documents which stated that he “fully understood the Judge’s instructions and what my rights are.” He also signed documents advising him of his rights and the importance of having an attorney.

Further, the trial court noted that Preston did not use reasonable diligence to obtain counsel prior to his arraignment. For a non-indigent defendant, such as Preston, “the constitutional right to counsel only entitles him to be defended by counsel of his own selection whenever he is able and willing to employ an attorney and uses reasonable diligence to obtain his services.” (Citation and punctuation omitted; emphasis in original.) Burnett v. State, 182 Ga. App. 539, 540 (1) (356 SE2d 231) (1987). See also Callaway v. State, 197 Ga. App. 606, 607-608 (398 SE2d 856) (1990). Here, the trial court implied at the hearing on Preston’s out-of-time motion to file pre-trial motions that Preston had not exercised reasonable diligence in obtaining counsel prior to his arraignment because he had “approximately eight months after the time of his arrest [in which to hire an attorney to represent him at arraignment], which I think is more than a reasonable period of time for most folks to inquire into and ... make arrangements for a lawyer, if they’re predisposed to do that.” Whether a defendant “has exercised reasonable diligence in procuring counsel is a factual question, and the grant or denial of a request for continuance on grounds of absence of retained counsel is a decision within the sound discretion of the trial judge, reversible only for an abuse of that discretion.” (Citation and punctuation omitted.) Hatcher v. State, 320 Ga. App. 366, 372 (739 SE2d 805) (2013).

Decided June 12, 2014

Scott P. Semrau, for appellant.

Matthew C. Krull, Solicitor-General, Monique Hooper, Assistant Solicitor-General, for appellee.

“When a defendant files an untimely pre-trial motion, the trial court may dismiss the motion or entertain a request by the defendant to accept the late filing.” (Citations omitted.) Taylor v. State, 326 Ga. App. 27, 30 (2) (755 SE2d 839) (2014). Since Preston didnotfile timely pre-trial motions, it was within the trial court’s discretion to refuse to consider them. Id.

Judgment affirmed.

Andrews, P. J., and McFadden, J., concur.


author: BARNES, Presiding Judge.

text:
    A14A0261.
    NISBET et al. v. DAVIS.
    (760 SE2d 179)
   BARNES, Presiding Judge.

Johnny J. Davis, as the surviving spouse of Brenda Davis, sued Dr. Rachel Nisbet and Gwinnett Pulmonary Group, P.C. for wrongful death, contending that the defendants failed to properly diagnose and treat Mrs. Davis for a bowel perforation at the Gwinnett Medical Center. Moving for summary judgment, the defendants argued that the plaintiff’s claim arose out of the provision of “emergency medical care in a hospital emergency department” under Georgia’s emergency medical care statute, OCGA § 51-1-29.5. Consequently, the defendants argued that the plaintiff was required to meet the heightened evidentiary burden of that statute and show by clear and convincing evidence that Dr. Nisbet was grossly negligent in her care and treatment of Mrs. Davis. According to the defendants, the plaintiff failed to make such a showing.

The trial court denied summary judgment to the defendants, finding that OCGA § 51-1-29.5 did not apply because Mrs. Davis was not “in a hospital emergency department” when she was under the care of Dr. Nisbet. However, the trial court granted a certificate of immediate review to the defendants, and we granted their application for interlocutory appeal. This appeal followed in which we must determine whether the trial court erred in denying the defendants’ motion for summary judgment under OCGA § 51-1-29.5.

For the reasons discussed below, we conclude that the trial court erred in determining that OCGA § 51-1-29.5 did not apply in this case. Nevertheless, we affirm the trial court’s denial of summary judgment to the defendants because a question of fact exists as to whether the plaintiff demonstrated by clear and convincing evidence that Dr. Nisbet was grossly negligent.

Summary judgment is appropriate only if the pleadings and evidence “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” OCGA § 9-11-56 (c). On appeal from the denial of summary judgment, our review is de novo, and we construe the evidence and all reasonable inferences drawn from it in the light most favorable to the nonmoving party. Bank of North Ga. v. Windermere Dev., 316 Ga. App. 33, 34 (728 SE2d 714) (2012). “Moreover, we will affirm a trial court’s denial of a motion for summary judgment if it is right for any reason.” Lowry v. Cochran, 305 Ga. App. 240, 241 (699 SE2d 325) (2010).

Construed in favor of the plaintiff, the evidence showed that on the morning of September 10,2009, Mrs. Davis, who was 64 years old, underwent laparoscopic surgery at DeKalb Medical Center to address an ovarian cyst and pelvic pain. The surgical procedure was performed under general anesthesia and included the removal of Mrs. Davis’s right ovary and fallopian tube, as well as the lysis of adhesions found on her abdominal wall. During the course of the laparoscopic procedure, the surgeon inadvertently perforated Mrs. Davis’s bowel twice. However, neither the surgeon nor the other medical personnel discovered the perforation, and Mrs. Davis was discharged from the hospital around noon.

In the early afternoon of September 11, 2009, Mrs. Davis felt unwell and became short of breath. Mrs. Davis and her husband attempted to return to DeKalb Medical Center, but they diverted to Gwinnett Medical Center, which was closer to their home, because Mrs. Davis felt like she could not breathe at all.

Mrs. Davis and her husband arrived at the Gwinnett Medical Center emergency department at around 4:00 p.m. Following her arrival at the emergency department, Mrs. Davis complained of difficulty breathing. She had very low blood pressure, to the point where a triage nurse was unable to read her blood pressure using two separate machines. According to an assessment sheet filled out by a different nurse, Mrs. Davis had labored breathing and was “moaning [with] every breath.” In light of her symptoms and appearance, Mrs. Davis’s acuity level was assessed by the triage nurse as “emergent.” One of the plaintiff’s medical experts later opined that when Mrs. Davis arrived at the emergency department, she was already suffering from septic shock from the bowel perforation and needed immediate surgery to save her life.

At 4:40 p.m., Dr. Keith Buchanan, an emergency department physician, examined Mrs. Davis. Mrs. Davis told Dr. Buchanan about her recent surgery and informed him that she was having difficulty breathing and that her abdomen felt “tight.” After conducting a physical examination, Dr. Buchanan developed a differential diagnosis of pulmonary embolism, aspiration pneumonia, or intraabdominal bleeding. He ordered a chest x-ray, abdominal ultrasound, and laboratory cultures.

At 5:49 p.m., Mrs. Davis began vomiting a green substance while waiting in the emergency department. Subsequently, at 7:45 p.m., an emergency department nurse noted on her assessment sheet that Mrs. Davis’s abdomen was “firm and distended” and was “tender to touch.” The nurse informed Dr. Buchanan, who paged Dr. Rachel Nisbet at 7:45 p.m. and asked her to come to the emergency department to evaluate Mrs. Davis because of her “critical status.”

Dr. Nisbet is a physician with the Gwinnett Pulmonary Group and is board certified in internal medicine, pulmonology, and critical care. The Gwinnett Pulmonary Group manages patients in the Intensive Care Unit (“ICU”) at Gwinnett Medical Center, although its physicians also serve as consultants in the emergency department and often evaluate critically ill patients there before they are admitted to the ICU. Dr. Nisbet was the on-call physician for the Gwinnett Pulmonary Group starting at 5:00 p.m. on Friday, September 11 until 7:00 a.m. on Saturday, September 12.

Dr. Nisbet first saw Mrs. Davis in the emergency department at 8:51 p.m., according to medical records produced by the hospital. Dr. Nisbet spoke with the nurses and Dr. Buchanan, evaluated the x-ray and ultrasound results, and spoke with Mrs. Davis and her husband about her medical history, including her recent surgery. Mrs. Davis was able to communicate to Dr. Nisbet that she was unable to breathe, that she was scared, and that her post-operative abdominal pain was slightly worse than the previous day. Dr. Nisbet conducted a physical exam and noted in her progress notes that Mrs. Davis’s abdomen was “[d]istended with tenderness in both the left and right lower quadrant her incision site.” She also noted that Mrs. Davis had diminished breath sounds, a blood pressure of only “80/42,” and tachycardia (an elevated heart rate). Mrs. Davis’s blood work further indicated that she was in acute renal failure.

Following her examination of Mrs. Davis, Dr. Nisbet ordered that she be admitted into the ICU under her care at approximately 9:00 p.m. Based on her physical exam and review of the tests ordered by Dr. Buchanan, Dr. Nisbet concluded that Mrs. Davis was in septic shock caused by aspiration pneumonia in light of her recent surgery. She decided not to order an abdominal CT scan because she believed that Mrs. Davis’s condition was too precarious to permit moving her to the radiology department to obtain the scan. Despite the temporal connection between Mrs. Davis’s surgery and the onset of her symptoms and the inability to obtain a CT scan, Dr. Nisbet chose not to order a surgical consult to rule out whether Mrs. Davis had a bowel perforation or other complication causing her sepsis that would require emergency surgery to correct.

Although Mrs. Davis was unstable and her life-threatening condition was deteriorating, Dr. Nisbet went home after her initial examination of Mrs. Davis. Mrs. Davis was the only patient that Dr. Nisbet had to treat during the rest of her on-call shift.

Mrs. Davis remained in the emergency department for the next several hours, despite the order entered by Dr. Nisbet to have her admitted to the ICU. While Dr. Nisbet believed that Mrs. Davis needed to be transferred immediately to the ICU, she did not follow up with the ICU to facilitate the transfer and was unaware of the delay.

Around midnight, when Mrs. Davis was still in the emergency department, another physician called Dr. Nisbet and informed her that he had been unsuccessful at placing a central line in Mrs. Davis and was still having to rely on two peripheral IV lines already in place. Although Dr. Nisbet could have placed the central line herself, she decided “that it was okay for now and that [she] would consult vascular surgery for placement of a central line.” However, Dr. Nisbet remained at home and chose not to consult vascular surgery at that time.

At 12:26 a.m., Dr. Nisbet was notified by an emergency department nurse that Mrs. Davis’s heart rate was in the 150s and that she had decreased urinary output. Dr. Nisbet changed her medications over the phone but did not return to the hospital.

Shortly after 1:00 a.m., Mrs. Davis was transported to the ICU. On the way to the ICU, one of Mrs. Davis’s peripheral IV lines came out. Mrs. Davis’s remaining peripheral IV line infiltrated a few hours later. Dr. Nisbet was informed and ordered another medication over the phone to counteract the infiltration.

Dr. Nisbet returned to the hospital at 4:00 a.m. to place the central line herself and reevaluate Mrs. Davis. Upon conducting an abdominal exam on Mrs. Davis, Dr. Nisbet became concerned that Mrs. Davis was suffering from an “acute” or “surgical” abdomen, meaning an acute intra-abdominal condition that can be caused by, among other things, bleeding or perforation, and that usually requires surgical intervention. Around 6:00 a.m., Dr. Nisbet wrote orders for a surgical consult to evaluate Mrs. Davis’s abdomen.

Around 6:30 a.m., Dr. William McGann, another physician with the Gwinnett Pulmonary Group, arrived at Gwinnett Medical Center to take over as the on-call physician for Dr. Nisbet. After examining Mrs. Davis, Dr. McGann wrote in his progress note that she was unresponsive, that her abdomen was distended and firm, and that there was “obvious peritoneal sign.” Dr. McGann concluded that Mrs. Davis needed emergency laparoscopic surgery and contacted the surgeon for the consultation.

Dr. Nisbet left the hospital a little after 6:30 a.m. The surgeon arrived and examined Mrs. Davis. He noted that she was in “obvious acute abdomen septic shock.” A progress note from the ICU at 7:00 a.m. states that Mrs. Davis’s abdomen was large, rigid, and distended, that greenish pus was seeping from her umbilicus area, and that she had no detectable blood pressure. The surgeon immediately took Mrs. Davis back for emergency laparoscopic surgery.

During the surgery, the surgeon discovered that Mrs. Davis had a perforated bowel and gangrene of the abdominal wall. Mrs. Davis’ condition continued to deteriorate after the surgery, and she died at 10:42 p.m.

The plaintiff, Mrs. Davis’s surviving husband, commenced this wrongful death action against Dr. Nisbet and the Gwinnett Pulmonary Group. In the complaint, the plaintiff alleged that Mrs. Davis died as a result of Dr. Nisbet’s failure to obtain a surgical consult after initially evaluating Mrs. Davis in the emergency department on September 11,2009. According to the plaintiff and his medical expert, given the inability to obtain an abdominal CT scan, Dr. Nisbet should not have ruled out abdominal surgical complications as a basis for Mrs. Davis’s septic shock without first obtaining the consultation of a surgeon, who would have been more experienced with the signs and symptoms associated with a surgical abdomen. The plaintiff further alleged that if a surgery consult had been obtained on September 11 shortly after Dr. Nisbet examined Mrs. Davis, her perforated bowel would have been discovered in time to save her life.

Following discovery, the defendants moved for summary judgment. They contended that the uncontroverted evidence showed that the case was governed by Georgia’s emergency medical care statute, OCGA § 51-1-29.5, because the plaintiff’s cause of action against Dr. Nisbet arose “out of the provision of emergency medical care in a hospital emergency department.” OCGA § 51-1-29.5 (c). Consequently, the defendants argued that the higher evidentiary burden imposed by that statute applied, requiring the plaintiff to prove by clear and convincing evidence that Dr. Nisbet committed gross negligence in her care and treatment of Mrs. Davis. According to the defendants, the plaintiff did not show by clear and convincing evidence that Dr. Nisbet was grossly negligent, which necessitated the grant of summary judgment in their favor.

The trial court denied the defendants’ motion for summary judgment, concluding that OCGA § 51-1-29.5 did not apply to Dr. Nisbet’s care of Mrs. Davis. Construing OCGA § 51-1-29.5 (c), the trial court concluded that application of the statute was dependent on the department of the physician responsible for the patient’s care, not the physical location of the patient in the hospital. The trial court found that Dr. Nisbet was a physician in the critical care department of the hospital, not the emergency department, and that Mrs. Davis thus became a patient of the critical care department when Dr. Nisbet took over her care and wrote orders to transfer her to the ICU. As such, the trial court found that Dr. Nisbet’s treatment of Mrs. Davis was not “in a hospital emergency department” for purposes of OCGA § 51-1-29.5 (c), even though Mrs. Davis continued to be “temporarily housed” there for several hours after she was transferred to Dr. Nisbet’s care. The trial court thus concluded that the higher evidentiary burden imposed by OCGA § 51-1-29.5 did not apply. The trial court then went on to find that there were genuine issues of material fact regarding whether Dr. Nisbet had committed ordinary negligence in her evaluation and treatment of Mrs. Davis on September 11, precluding the grant of summary judgment to the defendants.

1. The defendants contend that the trial court erred in concluding that OCGA § 51-1-29.5 (c) does not apply in this case. We agree.

Georgia’s emergency medical care statute, OCGA § 51-1-29.5, provides in relevant part:

In an action involving a health care liability claim arising out of the provision of emergency medical care in a hospital emergency department or obstetrical unit or in a surgical suite immediately following the evaluation or treatment of a patient in a hospital emergency department, no physician or health care provider shall be held liable unless it is proven by clear and convincing evidence that the physician or health care provider’s actions showed gross negligence.

OCGA § 51-1-29.5 (c). Based on this statutory language, there are three conditions which must be present for the emergency medical care statute to apply: (a) the lawsuit must involve a “health care liability claim”; (b) the claim must arise out of the provision of “emergency medical care”; and (c) the care must have been provided to the patient “in a hospital emergency department or obstetrical unit or in a surgical suite immediately following the evaluation or treatment of a patient in a hospital emergency department.” Id.

(a) “Health Care Liability Claim.” The plaintiff does not dispute that his lawsuit involves a “health care liability claim.” See OCGA § 51-1-29.5 (a) (9) (“ ‘Health care liability claim’means a cause of action against a health care provider or physician for treatment, lack of treatment, or other claimed departure from accepted standards of medical care, health care, or safety or professional or administrative services directly related to health care, which departure from standards proximately results in injury to or death of a claimant.”).

(b) “Emergency Medical Care.” The uncontroverted evidence also shows that the plaintiff’s claim against Dr. Nisbet arose out of the provision of “emergency medical care.” That term is defined by the emergency medical care statute as:

bona fide emergency services provided after the onset of a medical or traumatic condition manifesting itself by acute symptoms of sufficient severity, including severe pain, such that the absence of immediate medical attention could reasonably be expected to result in placing the patient’s health in serious jeopardy, serious impairment to bodily functions, or serious dysfunction of any bodily organ or part. The term does not include medical care or treatment that occurs after the patient is stabilized and is capable of receiving medical treatment as a nonemergency patient or care that is unrelated to the original medical emergency.

OCGA § 51-1-29.5 (a) (5).

Here, the evidence showed that Mrs. Davis arrived in the emergency department suffering from septic shock and that her blood work showed acute renal failure. Mrs. Davis was triaged as an “emergent” patient, and Dr. Buchanan requested that Dr. Nisbet evaluate her in the emergency department due to her “critical status.” Indeed, the plaintiff’s expert physician opined that when Mrs. Davis arrived at the emergency department, she was in septic shock from the bowel perforation and needed immediate surgery to save her life. Nor is there any evidence that Mrs. Davis’s medical condition ever stabilized so as to render her capable of receiving medical treatment as a nonemergency patient; rather, the undisputed evidence shows that her medical condition continued to deteriorate throughout her stay in the emergency department.

Under these circumstances, the evidence showed without dispute that Mrs. Davis had an emergency medical condition at the time that Dr. Nisbet diagnosed and treated her on September 11. Hence, the diagnosis and treatment provided to Mrs. Davis by Dr. Nisbet, although alleged to be deficient, constituted “emergency medical care” as defined by OCGA § 51-1-29.5 (a) (5). See Abdel-Samed v. Dailey, 294 Ga. 758, 761-762 (1) (755 SE2d 805) (2014) (defendants’ care and treatment of patient who needed emergency surgery, where plaintiff alleged that defendants failed to properly transfer patient to a surgeon, constituted “emergency medical care”); Quinney v. Phoebe Putney Memorial Hosp., 325 Ga. App. 112,115-117 (1) (751 SE2d 874) (2013) (defendants’ care of patient whose health was in serious jeopardy, where plaintiff alleged that defendants failed to properly diagnose and treat the patient’s condition, constituted “emergency medical care”). Compare Howland v. Wadsworth, 324 Ga. App. 175, 180-181 (2) (749 SE2d 762) (2013) (evidence was in conflict as to whether patient “was relatively stable at all times and [whether] her condition had improved while she was in the emergency room” when defendants treated her, such that a jury had to decide whether the care received by patient was “emergency medical care”).

(c) “Hospital Emergency Department.” Given that the first two prongs of the test are satisfied, the applicability of the emergency medical care statute in this case turns on whether the care provided to Mrs. Davis by Dr. Nisbet on September 11 was “in a hospital emergency department” under OCGA § 51-1-29.5 (c). It is undisputed that Mrs. Davis was physically located in the ER when Dr. Nisbet treated her on September 11. Nevertheless, the trial court found the statutory phrase “in a hospital emergency department” to be “ambiguous as to whether the patient’s location within the hospital supersedes the physician’s department.” The trial court further found that the undisputed evidence showed that although Mrs. Davis was physically in the emergency department when Dr. Nisbet initially examined her, Dr. Nisbet was a physician in the critical care department and wrote orders after examining Mrs. Davis to admit her to the ICU under her care. For this reason, the trial court found that Dr. Nisbet was not acting “under the umbrella” of the emergency department and that her care of Mrs. Davis was not “in a hospital emergency department” for purposes of OCGA § 51-1-29.5 (c).

The trial court’s interpretation and application of the emergency medical care statute was erroneous. “On appeal, we review the lower court’s interpretation of a statute de novo, as statutory interpretation is a question of law.” Hill v. First Atlanta Bank, 323 Ga. App. 731, 732 (747 SE2d 892) (2013). “In all interpretations of statutes, the courts shall look diligently for the intention of the General Assembly,” and “[t]he legislative intent is determined from a consideration of the entire statute.” (Citations and punctuation omitted.) Bonds v. Nesbitt, 322 Ga. App. 852, 854-855 (1) (747 SE2d 40) (2013). See OCGA § 1-3-1 (a). “When the language of a statute is plain and unambiguous and not leading to an absurd result, it evidences the legislative intent which is not to be contravened.” Dept. of Transp. v. Evans, 269 Ga. 400, 401 (499 SE2d 321) (1998).

Here, the emergency medical care statute applies to claims arising out of the provision of emergency medical care “in a hospital emergency department.” (Emphasis supplied.) OCGA § 51-1-29.5 (c). “In the absence of words of limitation, words in a statute should be given their ordinary and everyday meaning.” (Citations and punctuation omitted.) Six Flags Over Ga. II, LP v. Kull, 276 Ga. 210, 211 (576 SE2d 880) (2003). By its ordinary and everyday meaning, care provided “in a hospital emergency department” is care provided to a patient in a particular location in a hospital. And, in common parlance, the terms “emergency department” and “emergency room” are used interchangeably to refer to that part of the hospital to which a patient rushes in an emergency. Thus, contrary to the trial court’s conclusion, the phrase “in a hospital emergency department” refers to the physical location within the hospital where the patient arrives for emergency medical care, commonly referred to as the “emergency room.”

The General Assembly’s use of the phrase “in a hospital emergency department” to mean the physical location in which a patient is treated is further reflected by its inclusion in the statute of two other locations within which a patient may be treated for an emergency. Specifically, the emergency medical care statute applies to care “in a hospital emergency department or obstetrical unit or in a surgical suite immediately following the evaluation or treatment of a patient in a hospital emergency department.” OCGA § 51-1-29.5 (c). A phrase found in a statute “must be gauged by the words surrounding it.” Anderson v. Southeastern Fidelity Ins. Co., 251 Ga. 556 (307 SE2d 499) (1983) (“Words, like people, are judged by the company they keep.”). The reference to two other physical locations within the hospital in the same sentence of the statute further buttresses our conclusion that the phrase “in a hospital emergency department” refers to a physical location within the hospital.

In reaching a different result, the trial court emphasized that Dr. Nisbet was a physician in the critical care department rather than the emergency department of the hospital. But the emergency medical care statute makes no distinction among the specialties of the physicians to whom it applies. Rather, the statute broadly defines “physician” as “an individual licensed to practice medicine in this state, a professional association organized by an individual physician or group of physicians, or a partnership or limited liability partnership formed by a group of physicians.” OCGA § 51-1-29.5 (a) (17). If the General Assembly had intended to distinguish between physicians within different departments, it could have easily done so by narrowly defining the medical providers to whom the statute applies. Instead, the emergency medical care statute was drafted to cover any physician providing emergency medical care to a patient located in the emergency room.

In the present case, the uncontroverted evidence shows that Dr. Nisbet was providing care and treatment to Mrs. Davis while she was physically located in the hospital emergency department on September 11. Accordingly, the emergency medical care statute applies as a matter of law. It follows that the heightened evidentiary burden of OCGA § 51-1-29.5 (c) applies to the plaintiff’s claim against Dr. Nisbet, and the trial court erred in concluding otherwise.

2. Even though the trial court erred in concluding that Georgia’s emergency medical care statute had no application in this case, we will affirm the trial court if right for any reason. Lowry, 305 Ga. App. at 241. Thus, we must determine whether there exists a question of fact under the heightened evidentiary burden imposed upon the plaintiff by OCGA § 51-1-29.5 (c).

Under the heightened burden imposed by OCGA § 51-1-29.5 (c), the plaintiff would have the burden at trial of proving by clear and convincing evidence that Dr. Nisbet was grossly negligent in her evaluation and treatment of Mrs. Davis in the emergency department on September 11. “Gross negligence” is defined as

the absence of even slight diligence, and slight diligence is that degree of care which every man of common sense, however inattentive he may be, exercises under the same or similar circumstances. In other words, gross negligence is equivalent to the failure to exercise even a slight degree of care, or lack of the diligence that even careless men are accustomed to exercise.

(Citation and punctuation omitted.) Quinney, 325 Ga. App. at 117 (2). See Gliemmo v. Cousineau, 287 Ga. 7, 12-13 (4) (694 SE2d 75) (2010). When this definition is applied in the context of the emergency medical statute,

liability would be authorized where the evidence, including admissible expert testimony, would permit a jury to find by clear and convincing evidence that the defendants caused harm by grossly deviating from the applicable medical standard of care. [And], [a] s a general rule, when facts alleged as constituting gross negligence are such that there is room for difference of opinion between reasonable people as to whether or not negligence can be inferred, and if so whether in degree the negligence amounts to gross negligence, the right to draw the inference is within the exclusive province of the jury.

(Citations and punctuation omitted.) Abdel-Samed, 294 Ga. at 765 (3).

Construed in favor of the plaintiff, the evidence showed that when Dr. Nisbet evaluated Mrs. Davis in the emergency room around 8:51 p.m., Mrs. Davis was in septic shock with acute renal failure after having had laparoscopic surgery where the surgeon entered through her abdomen cavity the previous day. Her blood pressure was low, her heart rate was elevated, and she was having extreme difficulty breathing. Mrs. Davis had vomited after arriving at the emergency department, and a nurse’s recent assessment note stated that Mrs. Davis’s abdomen was “firm and distended” and was “tender to touch.” Dr. Nisbet herself noted that Mrs. Davis’s abdomen was “[djistended with tenderness in both the left and right lower quadrant [of] her incision site.” Nevertheless, despite the short lapse of time between Mrs. Davis’s laparoscopic surgery and her septic shock and the inability to obtain an abdominal CT scan, Dr. Nisbet concluded that the cause of the sepsis was aspiration pneumonia, chose not to consult a surgeon with expertise in recognizing the condition of surgical abdomen to rule out the possibility of a bowel perforation or other surgical complication, and went home. Dr. Nisbet then waited approximately seven hours before conducting another abdominal exam, despite receiving phone calls from the emergency department during the course of the night reflecting the deteriorating condition and critical status of Mrs. Davis.

The plaintiff presented expert testimony that Dr. Nisbet’s failure to obtain a surgical consult or to reexamine Mrs. Davis’s abdomen in a timely manner violated the applicable standard of care. According to the plaintiff’s expert, Dr. Nisbet did not take appropriate steps to rule out the possibility of a bowel perforation or other surgical complication, even though the “first thought[ ]” of a competent doctor “would be something obviously happened at the time of the surgery” if the patient arrives at the hospital shortly after the surgery with a “catastrophic illness.” The plaintiff’s expert further testified that this case was a “no-brainer” in light of Mrs. Davis’s symptoms in close temporal connection with her surgery, and that the diagnosis in this context should have been “surgical abdomen until proven otherwise.” Additionally, the plaintiff’s expert testified that Dr. Nisbet’s conclusive diagnosis of aspiration pneumonia “made no sense,” particularly because septic shock caused by aspiration pneumonia is “fairly rare.” The plaintiff’s expert also testified that to exclude the possibility of an abdominal surgical complication, Dr. Nisbet should have ordered a surgical consult after first examining Mrs. Davis, given that a CT scan of her abdomen could not be obtained in light of her unstable condition, and should have reexamined Mrs. Davis’ abdomen several times over the course of the night to detect any changes. In the opinion of the plaintiff’s expert, Dr. Nisbet’s decision instead to go home in light of the critical status of Mrs. Davis was simply “unconscionable.”

Furthermore, one of the defense experts conceded that ordering a surgical consult would have simply been a matter of making a phone call. Another defense expert conceded that it is “not hard at all” to obtain a surgical consult and that would have been very easy for Dr. Nisbet to have gotten one in this case. And, there was evidence from which a jury could infer that if Dr. Nisbet had timely obtained a surgical consult, emergency surgery would have been performed much earlier on Mrs. Davis, as evidenced by the fact that when a surgeon finally saw Mrs. Davis, he immediately recognized that she was suffering from “obvious acute abdomen septic shock.”

The defendants, however, argue that a jury could not find gross negligence because Dr. Nisbet exercised at least slight diligence in caring for Mrs. Davis. The defendants note that Dr. Nisbet evaluated a chest x-ray, ultrasound, and lab work before coming to her diagnosis of aspiration pneumonia, and they assert that Dr. Nisbet performed a thorough abdominal examination of Mrs. Davis, which did not reveal two of the “classic” signs of a surgical abdomen, rebound tenderness and guarding. As such, the defendants contend that Dr. Nisbet’s diagnosis of aspiration pneumonia and treatment based on that diagnosis did not constitute a gross deviation from the applicable standard of care.

But the defendants’ assertions in this regard did not go unrebutted. The plaintiff’s expert testified that the tests relied upon by Dr. Nisbet were not the proper diagnostic measures for ruling out an abdominal surgical complication, which required a CT scan or surgical consult. The plaintiff’s expert, in fact, opined that the type of ultrasound performed on Mrs. Davis and relied upon by Dr. Nisbet was simply a “worthless test” in this specific context, and that the chest x-ray, which was performed on Mrs. Davis while she was in a supine rather than upright position, was not the “right exam” for Dr. Nisbet to rely on to rule out an abdominal surgical complication.

As to the issue of rebound tenderness and guarding, the plaintiff’s expert testified that these two signs are not always present in patients in the emergency room context because of the medications being administered to them that affect their mental status. Moreover, the plaintiff presented evidence calling into question the thoroughness of Dr. Nisbet’s abdominal examination of Mrs. Davis on September 11. In this regard, the plaintiff’s expert testified that the nursing notes from the emergency department reflected that Mrs. Davis had signs of a surgical abdomen that were missed by Dr. Nisbet. Indeed, a nurse’s assessment note written before Dr. Nisbet’s examination stated that Mrs. Davis’s abdomen was “firm and distended” and was “tender to touch.” Thus, in light of the medical records and the plaintiff’s expert testimony, a jury could choose not to credit Dr. Nisbet’s testimony about the thoroughness of her abdominal exam of Mrs. Davis and instead conclude that she missed signs of a surgical abdomen that were present.

For these combined reasons, we cannot say as a matter of law that a reasonable jury would be unable to find by clear and convincing evidence that Dr. Nisbet grossly deviated from the standard of care in her care and treatment of Mrs. Davis. See Abdel-Samed, 294 Ga. at 765-766 (3); Johnson v. Omondi, 294 Ga. 74, 76-79 (751 SE2d 288) (2013); Quinney, 325 Ga. App. at 117-120 (2). Accordingly, although the emergency medical care statute applies as a matter of law to the plaintiff’s claim, the plaintiff has shown facts sufficient to raise a jury-question regarding whether Dr. Nisbet committed gross negligence. The trial court therefore committed no error in denying summary judgment to the defendants.

Decided June 12, 2014

Owen, Gleaton, Egan, Jones & Sweeney, RolfeM. Martin, Melissa R Reading, for appellants.

Pope & Howard, J. Marcus Pope, for appellee.

Judgment affirmed.

Boggs and Branch, JJ., concur.

       Mr. Davis also sued the obstetrician/gynecologist who performed the original laparoscopic surgery on Mrs. Davis and his physician group. Mr. Davis’s claims against the obstetrician/ gynecologist and his physician group are not before us in this appeal.

       We note that the plaintiff in his complaint alleged medical malpractice by Dr. Nisbet based only on her care and treatment of Mrs. Davis while she was physically in the emergency department on September 11, before she was transported to the ICU in the early morning hours of September 12.

       In light of our decision in Division 1 (c) regarding the plain meaning of the phrase “in a hospital emergency department,” we need not consider the defendants’ claim that the trial court erred in considering testimony from the plaintiff’s expert regarding the meaning of that phrase.

       A patient has “rebound tenderness” if she reacts in pain when the physician lets go after pushing in on her belly. A patient exhibits “guarding” behavior if she attempts to push away the physician’s hand or move out of the way when the physician tries to examine her abdomen.

       This case is distinguishable from Pottinger v. Smith, 293 Ga. App. 626 (667 SE2d 659) (2008), where summary judgment was properly granted to the physician. In Pottinger, the uncontroverted evidence showed that the physician ordered the proper diagnostic test appropriate to the symptoms of the patient and then relied upon the services of another professional to evaluate the results of the test when determining the course of treatment. Under those specific circumstances, a reasonable jury could not find that the physician grossly deviated from the standard of care. See Johnson, 294 Ga. at 79 (discussing Pottinger); Quinney, 325 Ga. App. at 120 (2) (same). In contrast, the plaintiff presented evidence in this case that Dr. Nisbet failed to order the proper diagnostic measure (a surgical consult) appropriate to the circumstances and symptoms of Mrs. Davis.


text:
    A14A0517.
    In the Interest of M. M. M. T., a child.
    (760 SE2d 188)
   BARNES, Presiding Judge.

Following the grant of her discretionary application, the mother of then 23-month-old M. M. M. T. appeals the trial court’s order terminating her parental rights.* She contends that the evidence was insufficient to support the termination. Upon finding that the full appellate record, including the transcript of the termination hearing that was not included with the application, supports the order of the court below, we conclude that the application for discretionary appeal was improvidently granted and dismiss the appeal.

On appeal from a termination order, we view the evidence in the light most favorable to the appellee and determine whether any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost. We do not weigh the evidence or determine the credibility of the witnesses but defer to the trial court’s factfinding and affirm unless the evidence fails to satisfy the appellate standard of review.

(Punctuation and footnotes omitted.) In the Interest of H. F. G., 281 Ga. App. 22, 23 (635 SE2d 338) (2006).

So viewed, the evidence demonstrates that after M. M. M. T. was born on August 11, 2011 with Xanax in her system, the Bartow County Department of Family and Children Services (“DFACS”) opened a case on the mother. Instead of removing the child, DFACS initially developed a safety plan with the maternal great-grandmother so that the mother could obtain substance abuse, parenting, and mental health services. But on February 22,2012, when the child was approximately six months old, the trial court issued a shelter care order placing custody of the child with DFACS based on allegations that the mother’s continued substance abuse prohibited her from properly supervising the child. Apparently, the child had been left in a swing overnight and was taken to the hospital when she fell out of the swing and suffered a contusion.

In the 72-hour hearing order filed on February 23, 2012, the trial court found probable cause that M. M. M. T. was deprived because of the mother’s inability to independently care for the child, and issues related to her substance abuse were reserved for later adjudication. Following a hearing on DFACS’ deprivation hearing, on March 8, 2012, the trial court entered an order finding clear and convincing evidence that M. M. M. T. was deprived because of the mother’s substance abuse, inadequate housing, unstable income, lack of proper supervision, and uncontrolled diagnosis of a fainting disorder — syncope. M. M. M. T. was placed in the temporary custody of DFACS. The mother was ordered to, among other things, become and remain drug free, submit to drug screens, complete a substance abuse evaluation and follow the recommendations, be assessed for family drug court treatment and complete the program if accepted, obtain safe and stable housing, obtain stable income, complete parenting class, and seek treatment for her fainting disorder. A final disposition order on the deprivation petition was entered on April 19, 2012, and a supplemental order incorporating DFACS’ case plan was entered on May 29, 2012. The plan’s goals were the same goals set forth in the March 2012 deprivation order, with the additional requirements that the mother provide child support, and cooperate with DFACS and any other agencies providing services. Following a judicial citizen panel review, on December 7, 2012, the trial court entered an order finding that M. M. M. T. was still at risk for harm until the mother addressed and resolved her substance abuse issue, and demonstrated that she could meet the needs of the child as ordered in the case plan. The permanency plan was changed from reunification to reunification concurrent with adoption.

On February 18,2013, the trial court entered an order extending the previous deprivation order. Prior to entering the order, the trial court conducted another hearing at which the mother was present and apparently testified. Following testimony showing, among other things, that she had been arrested for DUI twice, was without stable housing or income, and had not paid child support, the trial court found that there continued to be insufficient compliance with the mother’s case plan. The trial court found that the child remained deprived and continued custody with DFACS, and further noted that the permanency plan was now adoption given DFACS’ impending petition for termination of the mother’s parental rights.

DFACS filed a motion for termination of the mother’s parental rights on March 19, 2013, and the hearing was held on June 6 and 11, 2013. At the hearing, evidence showed, among other things, that, based on her psychological evaluation, the mother would be unable to permanently care for M. M. M. T. without a strong support system, and needed to be monitored for substance abuse and obtain psychological treatment. The mother was also unemployed, did not have safe and stable housing for herself or M. M. M. T., had not successfully completed substance abuse treatment, and had not obtained any treatment for her fainting disorder. Further, the mother did not consent to enter family drug treatment court, and had not paid child support as ordered.

While the evidence showed that the mother had successfully maintained her visitation with M. M. M. T. and had bonded with her, it also demonstrated that the mother continued to show little progress toward being independent despite encouragement from service providers to get public housing and a job to show that she could care for M. M. M. T. The DFACS caseworker testified that the child was having tantrums and pulling her own hair, behavioral issues which could be indicators of the emotional and behavioral problems associated with the lack of permanency in her life.

Based on these findings, as well as others demonstrating the mother’s failure to comply with her case plan, and upon concluding that M. M. M. T. was deprived, that the lack of proper parental care and control by the mother is the cause of her deprivation, that the conditions and causes of the deprivation are likely to continue, and that the continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child, the juvenile court terminated the mother’s parental rights. Although the court acknowledged the bond the mother has with the child, it concluded that the mother’s unwillingness to make the necessary changes to parent the child had prolonged the child’s stay in foster care when she needs permanence and stability.

While the record does show the mother’s slight efforts to comply with some aspects of the case plan, what weight to give that evidence was a question for the trier of fact. Likewise, judging the credibility of her good intentions was a task for the juvenile court. Moreover, the juvenile court was authorized to consider the mother’s past conduct in determining whether the causes of deprivation were likely to continue. And the decision as to [a] child[’s] future must rest on more than positive promises which are contrary to negative past fact. Given this record, we conclude that the juvenile court was authorized to terminate the mother’s parental rights. In accordance with Court of Appeals rules, we granted the mother’s application for discretionary review without the benefit of the full appellate record, including the transcript of the termination hearing; however, because the record supports the order of the court below, we conclude that the application for discretionary appeal was improvidently granted. Accordingly, the order granting the mother’s application is vacated, and her appeal is hereby dismissed.

(Punctuation and footnotes omitted.) In the Interest of A. M. B., 324 Ga. App. 394, 395-396 (750 SE2d 709) (2013).

Appeal dismissed.

Boggs and Branch, JJ., concur.

Decided June 12, 2014.

Richard A. Hull, for appellant.

Samuel S. Olens, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Calandra A. Harps, Lorie A. Moss, Assistant Attorneys General, Anna M. Johnson, for appellee.

       The father, whose parental rights were also terminated, is not a party to this appeal.

       The termination hearing transcript is the only transcript included with the record.

       As we have explained:
      Georgia law provides for a two-step process that must he followed in determining whether to terminate parental rights. OCGA § 15-11-94 (a) requires that the trial court first determine whether there is present clear and convincing evidence of parental misconduct or inability. Parental misconduct or inability is determined under the four criteria set forth in OCGA § 15-11-94 (b) (4) (A) (i)-(iv). Those four factors are: (1) the child is deprived; (2) the lack of proper parental care and control by the parent whose rights are being terminated is the cause of the deprivation; (3) the cause of the deprivation is likely to continue; and (4) continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the child. If these four factors are shown to exist by clear and convincing evidence, then the court must also determine whether termination of parental rights is in the best interest of the child, after considering the physical, mental, emotional, and moral condition and needs of the child, including the need for a secure and stable home.
      (Punctuation omitted.) In the Interest of K. D. E., 288 Ga. App. 520, 523 (654 SE2d 651) (2007). In 2013, the General Assembly adopted a new Juvenile Code to replace Chapter 11 of Title 15 of the Georgia Code. Ga. L. 2013, p. 294, § 1-1. The new Juvenile Code became effective on January 1, 2014, and does not apply to this case but to all juvenile proceedings commenced on and after January 1, 2014. Ga. L. 2013, p. 294, § 5-1.


author: ANDREWS, Presiding Judge.

text:
    A14A0584.
    ADAMS et al. v. DeWITT et al.
    (760 SE2d 191)
   ANDREWS, Presiding Judge.

This appeal arises out of an action for negligent misrepresentation Anthony D. Adams, Sr. and North Beach, LLC (“North Beach”) commenced against F. Andrew DeWitt and his real estate appraisal firm, Cook & DeWitt, Inc. The trial court granted the defendants’ motion for summary judgment, and Adams and North Beach now appeal, arguing that the trial court erred in concluding that the defendants did not owe them a duty of care and that they could not establish reasonable reliance on a misrepresentation of fact. We agree with the trial court that the defendants did not owe Adams and North Beach a duty of care under the circumstances, and we therefore affirm.

In an appeal from the grant of a motion for summary judgment, we review the law and evidence de novo. Aubain-Gray v. Hobby Lobby Stores, 323 Ga. App. 672 (747 SE2d 684) (2013). A motion for summary judgment should be granted when the evidence, construed in the nonmovant’s favor, shows that no genuine issue of material fact remains and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c); Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

So viewed, the evidence shows that in 2008, a loan officer at First National Bank (“FNB”) contacted Adams’s son, Steve Adams, and asked him if Adams would be interested in looking at a property under development on Tybee Island, consisting of 25 residential lots. The property was owned at the time by The Woods at North Beach, LLC (“The Woods”). Due to a disagreement among its members, The Woods did not wish to continue developing the property, and FNB was trying to help The Woods find someone to take over the property and to assume responsibility for a loan The Woods had obtained from FNB. Steve told Adams about the property, and Adams viewed the property with Steve and the FNB loan officer.

Shortly after learning of the property, Adams formed North Beach, and he is its sole member. On March 28, 2008, North Beach purchased a promissory note and deed to secure debt The Woods had executed in FNB’s favor. FNB made a short-term loan to North Beach of $3,183,700 to finance the purchase. Adams personally guaranteed the loan. At the time of this transaction, Adams and FNB understood that North Beach would foreclose on the property, purchase it in foreclosure, and then obtain a new development loan from FNB. Following the second loan, Adams intended to further develop and then sell the lots and had an understanding with Steve that he would purchase 15 lots.

By letter dated April 4,2008, FNB engaged DeWitt to perform an appraisal of the property. FNB’s engagement letter described the function of the appraisal as follows: “Bank will rely upon this appraisal for internal use, including but not limited to, rendering a decision relative to a financial transaction.” Pursuant to the engagement letter, DeWitt appraised the property and prepared an appraisal report showing an “as is” valuation of $5,000,000 as of May 1, 2008. The report stated: “This report is intended for use by .. . [FNB]. Use of this report by others is not intended by the appraiser. This report is intended only for use in providing data upon which the client may analyze the property as collateral for a mortgage loan. This report is not intended for any other use.” The report also stated: “It is our understanding [that] this appraisal will be utilized by the client as the basis for decision making purposes regarding the underwriting criteria for a mortgage loan.” An executive summary in the report mistakenly identified Steve Adams as the borrower. In a cover letter accompanying the appraisal, DeWitt stated that the appraisal was subject to specific limiting conditions, including the following:

1. No environmental site assessment (ESA) was provided to the appraiser. The site is assumed to be free of any contamination of any kind including any fill which may or may not exist. 2. This development was built over an abandoned landfill. This valuation assumes that all environmental issues have been or will be resolved.

North Beach initiated foreclosure proceedings and ultimately purchased the property at a foreclosure sale on May 6, 2008. On the same day, FNB loaned North Beach up to $4 million to repay the first loan and develop the property. The settlement statement for the second loan indicates that North Beach was required to reimburse FNB for the cost of the appraisal. North Beach never completed the planned development work on the property. Adams testified that work ceased due to buried trash on the site and the cost of the clean up work the City of Tybee Island wanted North Beach to perform.

Adams could not recall when he first saw the DeWitt appraisal but stated that he was “fairly sure” he read it before the second loan closed. Adams stated that DeWitt did not give him the report and that he ‘believed” he picked it up at FNB.

DeWitt stated in an affidavit that he knew nothing about North Beach and never met Adams until after Adams and North Beach filed their lawsuit against him. He did not intend for North Beach or Adams to use or rely upon his appraisal. DeWitt stated that he never gave the appraisal to anyone other than the employee at FNB who ordered it and that he was not aware that any representative of the bank was going to give a copy of it to Adams.

1. Adams and North Beach argue that the trial court erred in concluding that DeWitt did not owe them a duty of care. We disagree.

Adams and North Beach allege in their complaint that DeWitt breached the professional standard of care applicable to real estate appraisers in preparing his appraisal and that they relied on representations in the appraisal to their detriment when they proceeded to foreclose on and purchase the property. They allege that Cook & DeWitt is vicariously liable for DeWitt’s negligence.

In Robert & Co. Assoc. v. Rhodes-Haverty Partnership, the Supreme Court of Georgia established a rule governing the viability of a negligent misrepresentation claim against a professional in the absence of privity and involving economic loss only:

[0]ne who supplies information during the course of his business, profession, [or] employment . . . has a duty of reasonable care and competence to parties who rely upon the information in circumstances in which the maker was manifestly aware of the use to which the information was to be put and intended that it be so used. This liability is limited to a foreseeable person or limited class of persons for whom the information was intended, either directly or indirectly. In making a determination of whether the reliance by the third party is justifiable, we will look to the purpose for which the report or representation was made. If it can be shown that the representation was made for the purpose of inducing third parties to rely and act upon the reliance, then liability to the third party can attach. . . . The additional duty that this rule imposes may be, of course, limited by appropriate disclaimers which would alert those not in privity with the supplier of information that they may rely upon it only at their peril.

250 Ga. 680, 681-682 (300 SE2d 503) (1983). In its subsequent decision in Badische Corp. v. Caylor, the Supreme Court clarified that the rule in Robert & Co. did not “expand[ ] professional liability for negligence to an unlimited class of persons whose presence is merely ‘foreseeable,’ ” but rather extended liability only “to those persons, or the limited class of persons who the professional is actually aware will rely upon the information he prepared.” (Footnote omitted.) 257 Ga. 131, 133 (356 SE2d 198) (1987); see also Martha H. West Trust v. Market Value of Atlanta, 262 Ga. App. 90, 93 (2) (584 SE2d 688) (2003) (appraiser who appraised property for seller was not liable in negligence to purchaser when the appraiser knew appraisal would be used to determine sales price but was not aware seller was actually in process of selling property and appraisal contained provision prohibiting its distribution without appraiser’s consent).

The evidence in this case establishes that DeWitt knew a borrower existed, but it cannot support an inference that DeWitt actually was aware that the borrower received the appraisal much less actually relied on it. Adams admitted that DeWitt did not give him the appraisal. DeWitt did not know of North Beach and had not met Adams at the time he performed the appraisal, and he was not aware that anyone at FNB intended to give Adams the appraisal. The evidence also fails to raise an inference that DeWitt intended for the borrower to rely on his appraisal. Even if DeWitt knew that his appraisal could affect the borrower by, for example, influencing the amount of credit extended, “[tjhat is not evidence... that [DeWitt] did the appraisal[ ] for the purpose of inducing the [borrower] to justifiably rely and act upon the appraisal[ ].” Wingate Land, LLC v. ValueFirst, Inc., 314 Ga. App. 24, 26 (722 SE2d 868) (2012). DeWitt stated that he did not intend for North Beach or Adams to use or rely upon his appraisal. The appraisal report, on its face, negates any such intention, stating expressly: “This report is intended for use by... [FNB]. Use of this report by others is not intended by the appraiser. This report is intended only for use in providing data upon which the client may analyze the property as collateral for a mortgage loan. This report is not intended for any other use.” Such language constitutes an “appropriate disclaimer [ ] which would alert those not in privity with [DeWitt] that they may rely upon [his appraisal] only at their peril.” Robert & Co., supra, 250 Ga. at 682.

Decided June 12, 2014.

Savage, Turner, Pinckney & Madison, Brent J. Savage, Ashleigh R. Madison, for appellants.

Ellis, Painter, Ratterree & Adams, Paul W. Painter, Jr., for appellees.

In conclusion, the trial court did not err in concluding that DeWitt owed no professional duty to North Beach or Adams under the rule established in Robert & Co., supra.

2. Given our holding above in Division 1, we need not address Adams and North Beach’s argument that issues of material fact remain regarding their reasonable reliance on misrepresentations of fact.

Judgment affirmed.

McFadden and Ray, JJ., concur.

       The FNB loan officer testified that Adams chose to acquire the property through this unusual two-step process in an effort to wipe out a second mortgage on the property.

       DeWitt performed a second appraisal of the property in 2009, which reflected a significantly lower “as is” value of the property. Adams admitted that he did not rely on the 2009 appraisal, and it is not at issue in this appeal.

       DeWitt recalled speaking with Steve during the appraisal process but could not remember what they discussed. Steve testified that he spoke with DeWitt but could not remember if it was in connection with the 2008 or 2009 appraisal and could not recall what they talked about.

       Adams and North Beach do not contend, and we do not find, that privity existed simply because North Beach ultimately reimbursed FNB for the cost of the appraisal.