author: Doyle, Judge.

text:
    A11A0402.
    A11A0403.
    TROTMAN v. VELOCITEACH PROJECT MANAGEMENT, LLC. CERTIFI PROJECT MANAGEMENT CERTIFICATION TRAINING, LLC v. VELOCITEACH PROJECT MANAGEMENT, LLC.
    (715 SE2d 449)
   Doyle, Judge.

Following a jury trial, Floyd Trotman III (in Case No. A11A0402) and CertiFi Project Management Certification Training, LLC (“CertiFi”) (in Case No. A11A0403) appeal from a judgment and other orders entered against them in a dispute arising from Trot-man’s continued use of training materials he obtained as a former instructor for Velociteach Project Management, LLC (“Veloci-teach”). We have consolidated the cases for review, and for the reasons that follow, we affirm in part, vacate the award of attorney fees, and remand.

Viewed in favor of the jury’s verdict, the record shows that from 2003 to 2006, Trotman worked as an instructor for Velociteach, a company founded by Andy Crowe, which offered project management training courses to students seeking a Project Management Professional (“PMP”) credential. When Trotman’s relationship with the company faltered due to a lapse in his own credentials and his unauthorized use of a company credit card, his employment was terminated, and he left the company pursuant to a confidentiality agreement in February 2006. The confidentiality agreement required Trotman to return or delete all course materials and electronic presentation slides, and it prohibited him from soliciting Velociteach customers for a period of three years. In an exit meeting, Trotman assured Velociteach staff that he had returned or deleted any Velociteach teaching materials. Soon thereafter, Trotman asked Velociteach if he could buy instruction kits to teach PMP classes on his own, and Velociteach declined.

In early 2006, Trotman formed his own company, CertiFi, and began teaching training courses on his own. In early 2007, after seeing Trotman in an airport, Crowe decided to search for information about Trotman on the Internet. Crowe discovered a CertiFi website listing Velociteach customers and containing marketing copy that Crowe had written for Velociteach. Crowe then enrolled a student in one of Trotman’s classes to observe the course content and materials. Based on the similarities between Trotman’s course materials and those he had used previously at Velociteach, Veloci-teach demanded that CertiFi cease operating in violation of Trot-man’s confidentiality agreement. Trotman refused, and Velociteach sued him and CertiFi, alleging claims for breach of contract, Uniform Deceptive Trade Practices Act (“UDTPA”) violations, fraud, tor-tious interference with a business relationship, conversion, and misappropriation of trade secrets.

After discovery and the denial of the parties’ cross-motions for summary judgment, the action was eventually tried by a jury, which awarded Velociteach $13,750 (from Trotman) and $134,000 (from CertiFi). The trial court also awarded Velociteach $30,000 in attorney fees and entered a permanent injunction requiring Trotman to, inter alia, return all Velociteach materials and abstain from using Velociteach’s customer lists. Trotman appeals in Case No. A11A0402, and CertiFi appeals in Case No. A11A0403.

Case No. A11A0402

1. During the litigation, Velociteach obtained an interlocutory injunction that prohibited Trotman and CertiFi from using any instructional slides contained in a certain exhibit. Based on Trot-man’s subsequent reformulation and use of a prohibited slide, the trial court found that Trotman had violated the injunction and held him in contempt, ordering Trotman and CertiFi to provide a copy of its teaching materials to Velociteach and pay $1,012.50 in attorney fees incurred by Velociteach while pursuing the contempt motion.

On appeal, Trotman enumerates as error the trial court’s interlocutory injunction, but he does not challenge the $1,012.50 attorney fee award, and the only other remedy, disclosure of his teaching materials, was permissible as part of the pending litigation. As Trotman points to no other remedy affecting him or CertiFi resulting from the contempt finding itself, this enumeration presents nothing for review.

2. Trotman argues that the evidence and verdict did not authorize the trial court to issue a permanent injunction against him based on a violation of the UDTPA. We disagree.

“Equitable relief is generally a matter within the sound discretion of the trial court. The action of the trial court should be sustained on review where such discretion has not been abused.”

(a) Based on the jury’s verdict that Trotman violated the UDTPA, the trial court granted an injunction against Trotman that (1)prohibited him from using a specified trial exhibit containing Velociteach course materials, (2) required him to return all Veloc-iteach property and course materials, (3) forbade him from using Velociteach’s customer lists, and (4) required disclosure of each person to whom he had shown the enjoined materials. Trotman argues that because only he, and not CertiFi, was found to have violated the UDTPA, the only basis for the finding would be his failure to maintain his PMP certification. And because he later remedied the lapse in his certification, he argues that this lapse in certification could not support the injunctive relief granted by the trial court.

This argument ignores the fact that the trial evidence supported a finding that he personally violated the UDTPA, regardless of whether the jury attributed his behavior to CertiFi. The UDTPA provides as follows, in relevant part:

(a) A person engages in a deceptive trade practice when, in the course of his business, vocation, or occupation, he:
(2) Causes likelihood of confusion or of misunderstanding as to the source, sponsorship, approval, or certification of goods or services;
(3) Causes likelihood of confusion or of misunderstanding as to affiliation, connection, or association with or certification by another;
(7) Represents that goods or services are of a particular standard, quality, or grade or that goods are of a particular style or model, if they are of another;
(9) Advertises goods or services with intent not to sell them as advertised; [or]
(12) Engages in any other conduct which similarly creates a likelihood of confusion or of misunderstanding.
(b) In order to prevail in an action under this part, a complainant need not prove competition between the parties or actual confusion or misunderstanding.

At trial, there was evidence that Trotman created a misleading advertisement stating that CertiFi had developed course content over a four-year period, which would have referred to the time Trotman was with Velociteach, not CertiFi. There was also evidence that Trotman solicited former Velociteach students on behalf of CertiFi, referencing the Velociteach course and falsely holding himself out as PMP certified. Velociteach also introduced evidence that Trotman published a list of Velociteach customers and falsely represented them to be CertiFi customers. Finally, there was evidence that Trotman used nearly duplicate versions of certain Velociteach course materials without its consent. This evidence supported the jury’s finding that he violated the UDTPA, and the trial court did not abuse its discretion by awarding equitable relief to Velociteach against Trotman based on the jury’s finding.

(b) Trotman also argues that an injunction against future conduct is unwarranted because his confidentiality agreement has expired, and his wrongful conduct took place in the past and is not likely to recur. This argument is misplaced. There was evidence supporting a finding that Trotman’s conduct violated the UDTPA regardless of his confidentiality agreement, and the nature of the wrongful behavior was not such that it could not be repeated, i.e., by re-creating confusing or misleading marketing materials or re-using Velociteach’s proprietary course materials. Nor was the injunction’s breadth an abuse of the trial court’s discretion. The injunction essentially pertained to the use of Yelociteach course materials and customer list, and it did not prohibit Trotman from engaging in other PMP teaching activity. Nor was it an abuse of discretion to allow Velociteach five years to monitor Trotman’s courses, because the harm to Velociteach would not diminish over time if Trotman unfairly competed with it. Accordingly, this enumeration provides no basis for reversal.

3. Trotman next challenges the trial court’s failure to give his requested jury charge on the UDTPA claim. “In order for a refusal to charge to be error, the request [ ] must be entirely correct and accurate, and adjusted to the pleadings, law, and evidence, and not otherwise covered in the general charge.” Trotman’s requested charge was as follows:

Although a finding of actual confusion [in the marketplace] is not necessary to prove a likelihood of confusion, it is nevertheless the best evidence of a likelihood of confusion. Coexistence in the marketplace over a significant period of time with no evidence of actual confusion raises a presumption against a likelihood of confusion; however, the presumption may be rebutted by evidence of other factors tending to support a finding of a likelihood of confusion.

As support, Trotman relies on Ackerman Security Systems v. Design Security Systems, which included the following language: “In the case at hand, the trial court . . . incorrectly applied the likelihood of confusion test by requiring a showing of actual confusion. . . . Although evidence of actual confusion is obviously the best evidence of a likelihood of confusion, it is not necessary to a finding of likelihood of confusion.” The emphasized portion of this statement was dicta and not a statement of settled law; thus the requested charge was not entirely correct and accurate. Further, the trial court correctly charged the jury as to the settled law stated in Ackerman, i.e., that actual confusion in the marketplace need not be shown. We discern no reversible error here.

Case No. A11A0403

4. CertiFi contends that the evidence was insufficient to support the jury’s verdict on the conversion claim, which was predicated on Trotman’s use of Velociteach training materials. Specifically, CertiFi argues that because Trotman’s confidentiality agreement required him to return or destroy any training materials, Velociteach had abandoned them, which would preclude a conversion claim due to an absence of Velociteach’s right of possession. The confidentiality agreement does not evince an intent to abandon the property, however; instead, it shows Velociteach’s attempt to remain in exclusive control and possession of its confidential information. This is wholly consistent with the conversion claim because it shows that Trotman’s retention and use of the materials was unauthorized: “The very essence of conversion is that the [defendant’s] act of dominion is wrongfully asserted.”

CertiFi also argues that the intangible teaching materials on the laptop were not “novel” and therefore not subject to a conversion claim. Nevertheless, this argument is belied by the evidence that the methodology and teaching concepts reflected in the Velociteach course materials were originated by and exclusive to Velociteach. Accordingly, this enumeration presents no basis for reversal.

5. CertiFi also challenges the sufficiency of the evidence as to the value element of Velociteach’s unjust enrichment claim. CertiFi relies on Phoenix Airline Svcs. v. Metro Airlines, which is physical precedent only and states that if “an award of monetary damages is made for unjust enrichment, it must, of course, be supported by evidence from which it can be determined to a reasonable certainty that the defendants in fact realized such a gain.” Here, there was evidence that Trotman had unsuccessfully requested to purchase instruction kits from Velociteach, and that the kits were valued at $1,000 each. Thus, the jury could conclude that Trotman avoided paying $1,000 in cost for each kit he used to teach CertiFi students. CertiFi does not dispute that Trotman taught more than 300 students on its behalf. This evidence authorized the jury’s damages award.

6. CertiFi also challenges the trial court’s award of $30,000 in attorney fees under OCGA § 9-15-14 (b) based on its finding that the defendants unnecessarily expanded the proceeding. That Code section authorizes an attorney fee award based on conduct “including, but not limited to, abuses of discovery procedures. . . .” Here, the trial court cited a series of orders granting Velociteach’s motion to compel, prohibiting the use of certain teaching slides, granting a motion for contempt, and ordering production of documents — all of which were the product of Trotman’s and CertiFi’s resistance to discovery and failure to cooperate with court orders.

Based on this behavior, the trial court did not abuse its discretion by awarding attorney fees under OCGA § 9-15-14 (b), but the trial court’s order fails to show how it apportioned its award to fees generated based on sanctionable behavior. “As we have held in cases involving OCGA § 9-15-14 (a) or (b), the trial court must limit the fees award to those fees incurred because of the sanctionable conduct. [Thus,] ‘[l]ump sum’ or unapportioned attorney fees awards are not permitted in Georgia.” Velociteach’s counsel submitted an affidavit with billing statements totaling $95,974.66. The trial court’s award of $30,000 may have been reasonable, but the trial court’s order, “[o]n its face . . . fails to show the complex decision making process necessarily involved in reaching a particular dollar figure and fails to articulate why the amount awarded was $[3]0,000 as opposed to any other amount.” Accordingly, we must vacate the award and remand for appropriate factfinding with respect to the amount of attorney fees to be assessed.

7. (a) CertiFi contends that the trial court erred by failing to give its requested jury charge on waiver with respect to the conversion claim. However, in light of our holding in Division 4, that the confidentiality agreement did not evince Velociteach’s abandonment or waiver of its right to exclusively possess its course materials, this charge was not authorized by the evidence.

(b) CertiFi also asserts as error the trial court’s failure to give its requested jury charge on apportionment of damages under OCGA § 51-12-33, in light of evidence that Trotman had another Velociteach employee help him make revisions to the Velociteach teaching materials and that he hired a marketing firm to edit Velociteach presentation slides and “put some lipstick on” a chart in a Veloci-teach workbook. Nevertheless, “[a] trial court does not err in refusing to give a requested charge which is confusing, misleading, inapt, not precisely tailored or adjusted to the evidence, or not authorized by the evidence.” At trial, Trotman explained that he was personally responsible for the content of the revisions to the teaching materials and he did not assign any blame to his fellow employee or the marketing firm he hired. Further, the evidence is undisputed that he alone was responsible for using the materials for teaching. Based on the record before us, we discern no reversible error in the trial court’s failure to give the requested charge.

8. CertiFi challenges the trial court’s exclusion of certain testimony that Crowe, the founder of Velociteach, was motivated by racial bias when he terminated Trotman. Specifically, CertiFi proffered testimony from a Velociteach employee who heard Crowe use racially derogatory language in reference to Trotman. The trial court sustained Velociteach’s objection to the testimony on relevance grounds.

The decision to admit or exclude evidence is committed to the sound discretion of the trial court and will not be disturbed on appeal absent a clear abuse of discretion. When an issue is raised whether the probative value of evidence is outweighed by its tendency to unduly arouse the jury’s emotions of prejudice, hostility, or sympathy, a trial court’s decision regarding admissibility is a matter of discretion. Further, a trial court may exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading of the jury.

Here, the issues at trial centered on the similarity between the teaching material used by Trotman/CertiFi to that created by Crowe/Velociteach and Trotman’s authority to use them after his termination. The proffered witness stated that any derogatory statements made by Crowe were not in connection with Crowe’s termination of Trotman, who had received favorable evaluations prior to the events leading up to his termination, i.e., the lapse in Trotman’s PMP credentials and his misuse of the company credit card. Based on the record before us and the inflammatory nature of the proffered evidence, we discern no clear abuse of the trial court’s discretion.

9. Finally, CertiFi attempts to incorporate by reference to its brief in the companion case an argument challenging the sufficiency of the evidence to show that it tortiously interfered with Veloci-teach’s business relationships or contracts. This enumeration was not otherwise supported by argument or citation to authority. Nevertheless, we note that during his tenure at Velociteach, Trot-man had taught classes to students from a company called Axiom, including one class shortly before his termination. Shortly after his termination, Trotman solicited Axiom on behalf of CertiFi based on his prior contact with them, and Axiom employed CertiFi and declined to employ Velociteach. Crowe, Velociteach’s founder, testified as to the loss of Axiom as a paying client. Thus, this enumeration is without merit.

10. CertiFi and Trotman’s remaining enumerations are moot.

Judgments affirmed in part and vacated in part, and cases remanded with direction.

Ellington, C. J., and Miller, P. J., concur.

Decided July 13, 2011

Reconsideration denied July 28, 2011

McGahren, Gaskill & York, Matthew F. McGahren, Eric J. Marlett, for appellants.

Robertson, Bodoh & Nasrallah, Mathew G. Nasrallah, for appel-lee.

On Motion for Reconsideration.

On motion for reconsideration, Trotman contends that the contempt finding was not moot because it served as the basis for the attorney fee award and the injunction. To the extent that the contempt finding was not moot, based on our review of the order and the record, we discern no reversible error.

Trotman also contends that this Court failed to grant his motion to unseal and consider a portion of the record. A sealed record protects against disclosure to the public, but this Court need not grant a motion to unseal the record in order to consider the contents under seal, as it did in this case. Thus, the pending motion to unseal the sealed portion of the record is denied, and the motion for reconsideration is denied.

Motion for reconsideration denied.

       The parties have raised the issue of this Court’s jurisdiction over the appeal, in light of equitable remedies employed by the trial court. We conclude that the Court of Appeals has jurisdiction over the appeal because the issues of equity are ancillary to the trial court’s legal determinations at issue. See Redfearn v. Huntcliff Homes Assn., 271 Ga. 745, 747-748 (2) (524 SE2d 464) (1999) (“whether an action is an equity case for the purpose of determining jurisdiction on appeal depends upon the issue raised on appeal, not upon how the case is styled nor upon the kinds of relief which may be sought by the complaint, and . . . cases in which the grant or denial of such relief are merely ancillary to underlying issues of law, or would have been a matter of routine once the underlying issues were resolved, are not equity cases”) (punctuation and footnote omitted). See also Nowlin v. Davis, 278 Ga. 240, n. 1 (599 SE2d 128) (2004) (neither exercise of contempt power nor grant of equitable remedy in a breach of contract case invoked Supreme Court of Georgia’s appellate jurisdiction over equity cases).

       See Williamson v. Strickland & Smith, Inc., 263 Ga. App. 431 (587 SE2d 876) (2003).

       Trotman was assigned a company laptop which contained current Power Point slides and other teaching'materials. Trotman had also purchased an older laptop from Velociteach during his tenure.

       OCGA § 10-1-372.

       A related appeal, Case No. A11A0404, has already been disposed of in an unpublished decision affirming the trial court’s denied of the defendants’ motion for inclusion of substituted transcripts. In Case No. A11A0402, Trotman limited his enumerated errors to only those errors that would not require the reversal of the verdict against him or the damages award in the amount of $13,750. We therefore do not address the withdrawn enumerations.

       See Grindle v. Chastain, 229 Ga. App. 386, 388 (1) (493 SE2d 714) (1997) (“[t]he primary criterion in making [the mootness] determination is whether the appellant would derive any benefit from the appeal” of the moot issue) (punctuation omitted).

       (Punctuation omitted.) Essex Group, Inc. v. Southwire Co., 269 Ga. 553, 557 (2) (501 SE2d 501) (1998).

       OCGA § 10-1-372.

       See Essex Group, Inc., 269 Ga. at 557-558 (2).

       Absent an actual case or controversy, we cannot address Trotman’s specific concerns about his future conduct or the similarity of his future teaching materials to the course material protected by the injunction. Concerns “based wholly on speculation about what might or might not occur at some point in the future” present nothing for review. Mullin v. Roy, 287 Ga. 810, 812 (3) (700 SE2d 370) (2010).

        Essex Group, Inc., 269 Ga. at 558 (2).

       (Punctuation omitted.) Hefner v. Maiorana, 259 Ga. App. 176, 177 (1) (576 SE2d 580) (2003).

       201 Ga. App. 805 (412 SE2d 588) (1991).

       (Citations and punctuation omitted; emphasis supplied.) Id. at 806 (1).

       See, e.g., Zepp v. Brannen, 283 Ga. 395, 397 (658 SE2d 567) (2008) (courts are not bound to follow a statement in an opinion “concerning some rule of law or legal proposition not necessarily involved nor essential to determination of the” prior case) (punctuation omitted).

        Amon-Ra v. Dept. of Transp., 259 Ga. App. 313, 315 (576 SE2d 578) (2003) (“A request to charge must embody a correct, applicable and complete statement of law, and be so couched as not to have a tendency to confuse and mislead the jury and to becloud the issues.”) (punctuation omitted).

       See generally Metzger v. Americredit Financial Svcs., 273 Ga. App. 453, 454 (615 SE2d 120) (2005) (“In order to establish a claim for conversion, the complaining party must show (1) title to the property or the right of possession, (2) actual possession in the other party, (3) demand for return of the property, and (4) refused by the other party to return the property.”) (punctuation omitted).

       (Punctuation omitted.) Habel v. Tavormina, 266 Ga. App. 613, 615 (1) (597 SE2d 645) (2004).

       See, e.g., Burgess v. Coca-Cola Co., 245 Ga. App. 206, 209 (1) (a) (536 SE2d 764) (2000) (addressing conversion claim based on Coca-Cola’s anthropomorphic polar bear).

       194 Ga. App. 120, 125 (390 SE2d 219) (1989), reversed on other grounds, 260 Ga. 584 (397 SE2d 699) (1990).

       See Court of Appeals Rule 33 (a).

       194 Ga. App. at 125-126 (3).

       See White v. Arthur Enterprises, Inc., 219 Ga. App. 124 (1) (464 SE2d 225) (1995) (evidence that computer files were valued at $90,000 authorized the jury to find that two defendants “each realized a gain of $18,000 from the misappropriation of those files”).

       OCGA § 9-15-14 (b).

       See Century Center at Braselton v. Town of Braselton, 285 Ga. 380, 381-382 (1) (677 SE2d 106) (2009).

       (Citation and punctuation omitted.) Brewer v. Paulk, 296 Ga. App. 26, 31 (2) (673 SE2d 545) (2009).

        Huggins v. Chapin, 233 Ga. App. 109, 110 (503 SE2d 356) (1998).

       See Brewer, 296 Ga. App. at 31 (2).

       See Hefner, 259 Ga. App. at 177 (1) (jury charges must be adjusted to the evidence).

       (Punctuation omitted.) Keogler v. Krasnoff, 268 Ga. App. 250, 255 (2) (601 SE2d 788) (2004).

       See id. at 255-256 (2).

       The witness’ proffered testimony was equivocal, but at one point he testified that he believed Crowe was speaking about Trotman.

       (Citation and punctuation omitted.) Sellers v. Burrowes, 302 Ga. App. 667, 671 (2) (691 SE2d 607) (2010). See also Mitchell v. State, 200 Ga. App. 146, 148 (2) (407 SE2d 115) (1991) (“[A]nything not legitimately arising out of the trial of the case, which tends to destroy the impartiality of the juror, should be discountenanced.”) (punctuation omitted).

       See Sellers, 302 Ga. App. at 671-672 (2).

       See Court of Appeals Rule 25; Sirdah v. North Springs Assoc., 304 Ga. App. 348, 352 (2) (696 SE2d 391) (2010) (“an appellant must support enumerations of error with argument and citations of authority, and mere conclusory statements are not the type of meaningful argument contemplated by Rule 25 (a) (3)); Fletcher v. State, 307 Ga. App. 131, 133 (3) (704 SE2d 222) (2010) (incorporation of argument by reference to other arguments resulted in abandonment of an enumeration not otherwise supported).

       See generally Cox v. City of Atlanta, 266 Ga. App. 329, 332 (1) (596 SE2d 785) (2004) (elements of tortious interference).

       See, e.g., Riley v. State, 251 Ga. App. 64, 66 (1) (553 SE2d 374) (2001) (“Having reviewed the record provided under seed, we find nothing that contravenes the finding by the trial court.”).


source: Caselaw Access Project

author: Dillard, Judge.

license: Public Domain

text:
    A11A0485.
    BOSTON MEN’S HEALTH CENTER, INC. v. HOWARD.
    (715 SE2d 704)
   Dillard, Judge.

In this civil action, John Henry Howard sued Dr. William Powell, Boston Medical Group (“BMG”), Aaron Hardge, and Boston Men’s Health Center, Inc. (“BMHC”), among others, for damages he allegedly suffered as a result of the defendants’ medical malpractice and fraud. The case was tried before a jury, but prior to the conclusion of that trial, Howard dismissed or settled with all defendants except BMHC. Thereafter, the jury rendered a verdict in favor of Howard, awarding him compensatory and punitive damages, and the trial court entered judgment against BMHC. BMHC now appeals, arguing that the trial court erred in (1) instructing the jury on the physician-patient confidential relationship and a physician’s duty to disclose despite the fact that no physician remained as a party and BMHC never employed any physician; (2) failing to grant judgment in BMHC’s favor because Howard did not provide sufficient evidence that BMHC proximately caused his injury; (3) failing to instruct the jury on apportionment of damages; and (4) denying BMHC’s motion for judgment notwithstanding the verdict (“j.n.o.v.”) as to punitive damages. For the reasons noted infra, we conclude the trial court’s error in instructing the jury on the physician-patient relationship and a physician’s duty to disclose requires reversal, and we therefore remand this case for a retrial consistent with this opinion.

At the outset, we note that “[t]his Court reviews the judgment entered by the trial court after approval of a jury verdict upon the any evidence test, absent any material error of law.” Additionally, “[w]e review questions of law de novo, applying the plain legal error standard of review.”

So viewed, the evidence shows that in approximately 1999, Dr. Quoc Ha founded a group of medical clinics to treat erectile dysfunction (“ED”), doing business generally as “Boston Medical Group.” At that time, there were twenty-two BMG clinics operating in thirteen different states, including one in Atlanta, which did business under the name BMG-Georgia. Boston Men’s Health Center, Inc. — a related but separate entity — was a management company that supplied all nonphysician personnel to BMG clinics throughout the country pursuant to a Management Services Agreement. Under that same agreement, BMG was responsible for employing its own physicians.

On September 30, 2006, then 50-year-old John Howard went to the BMG clinic in Atlanta after repeatedly hearing its advertisements on the radio. And upon arriving at the clinic that morning, Howard met with Dr. Powell, who examined Howard and advised him that he wanted to administer a test dose of ED medication via an injection into Howard’s penis. While ED is usually initially treated with oral medications, the primary treatment option offered at BMG clinics is a procedure known as intracavernous pharmacotherapy (“ICP”), which entails the patient self-administering an injection of medication directly into his penis in order to induce an erection. After discussing the ICP treatment option with Dr. Powell, Howard consented to Dr. Powell’s request, and Dr. Powell then gave him the injection, which induced an erection within ten minutes. After examining Howard again a few minutes later, Dr. Powell informed Howard that the medication was working and that his associate, Hardge (a medical advisor employed by BMHC but supervised by Dr. Powell), would explain how to self-administer the ICP injections and discuss with him the various purchase options offered by BMG. During their subsequent discussion, Hardge advised Howard that ICP was safe to use and that his ED would be “cured” if he followed BMG’s six-month treatment plan.

After speaking with Hardge, Howard remained at the clinic so that Hardge could monitor him for signs of priapism, which is a prolonged erection lasting more than four hours that can cause permanent damage to the penis. And when Howard’s erection had not dissipated a half hour after the initial test-dose injection, Hardge gave Howard an oral medication to reverse the effect of the ICR But over an hour later, Howard’s erection had still not significantly dissipated. Consequently, Dr. Powell administered an epinephrine injection directly into Howard’s penis in an effort to dissipate his erection. This injection eventually reduced Howard’s erection to the point where he was told that he could leave the clinic; however, Howard still maintained a significant erection for the remainder of the day. According to Howard, neither Dr. Powell nor Hardge ever informed him that he was being kept at the clinic because his erection had not dissipated within the normal amount of time. To the contrary, Hardge told Howard that this was part of the normal “building process,” and then discussed various treatment purchase options with him. Furthermore, although Howard was provided with written materials that discussed the risk of priapism, neither Dr. Powell nor Hardge verbally warned Howard of that risk. Understandably impressed by the immediate results he experienced from the initial test dose, Howard purchased the six-month treatment plan.

Approximately one week later, Howard received his ICP prescription in the mail. The following Saturday around 7:00 p.m., Howard gave himself an ICP injection, and he and his wife engaged in sexual intercourse. Howard went to sleep that night with a partial erection, and the next morning, Howard awoke with a full erection, which did not significantly dissipate over the course of the day. Believing that this was part of the “building process” Hardge had mentioned to him, Howard did not seek immediate medical attention. But the following morning (nearly 36 hours after he had administered the ICP injection), Howard still had a full erection and was experiencing extreme pain. At that point, Howard returned to the BMG clinic, where Dr. Powell gave him an epinephrine injection and began draining blood from Howard’s penis in order to treat his priapism. But when that effort proved unsuccessful, Dr. Powell advised Howard to seek immediate treatment at a hospital, which Howard did. The physicians at the hospital then treated Howard’s priapism, but by that time he had already suffered permanent injuries, and he has been unable to attain a full erection since self-administering the ICP injection.

Thereafter, Howard filed a lawsuit against Boston Medical Group-California, LLC; Boston Medical Group-Georgia, Inc.; BMHC; Meditech Laboratories, Inc.; Dr. Powell; and Hardge, alleging that he suffered permanent injuries as a result of defendants’ medical malpractice and fraud, and seeking both compensatory and punitive damages for same. During the course of discovery, Howard dismissed BMG-California and Meditech Laboratories from the lawsuit.

The case was eventually set for trial in September 2009. But less than a week before the start of trial, Howard settled with Dr. Powell and dismissed him from the lawsuit. Despite this settlement, Dr. Powell testified during trial, and a significant amount of evidence focused on the issue of whether Dr. Powell’s treatment of Howard deviated from the proper standard of medical care. Additionally, Howard introduced into evidence the operations manual that BMHC provided to all BMG clinics, which instructed employees to advise patients that ICP treatments can cure ED despite the overwhelming medical consensus that ED cannot be permanently cured. Howard also introduced evidence that Dr. Powell and Hardge received significant bonuses for sales of ICP treatments, but did not receive such bonuses for prescribing oral ED medications. At the close of Howard’s case, BMG and BMHC argued motions for directed verdict, which the trial court denied. And shortly thereafter, Howard’s counsel informed the trial court that he had settled with BMG and was dismissing both BMG and Hardge from the case. The trial court then instructed the jury that BMG and Hardge were no longer parties and that the jury would not be required “to decide any of the claims of Mr. Howard against those two defendants.”

After BMHC — the sole remaining defendant — closed its case, the trial court instructed the jury, during which it informed the jury members that they could consider whether Howard’s own negligence contributed to his injuries, but reiterated that they should not be concerned with any defendant other than BMHC. The court also instructed the jury that “[t]he physician/patient relationship is a confidential one and silence or failure to disclose what should be said or disclosed can amount to fraud.” Additionally, the trial court provided the jury with a verdict form, which did not allow for the apportionment of liability or damages to any party other than BMHC.

At the trial’s conclusion, the jury rendered a verdict in Howard’s favor, awarding him $750,000 in compensatory damages, and further found that punitive damages were warranted. The parties then presented evidence and argument on punitive damages, after which the trial court instructed the jury on the law with regard to same. Ultimately, the jury found that BMHC intended to cause harm to Howard and awarded him $8.5 million in punitive damages.

Two weeks later, the trial court issued an order entering judgment in favor of Howard in the amount of $8,762,500, plus costs, which included a reduction based on the amount of Howard’s settlements with Dr. Powell and BMG. BMHC filed a motion for j.n.o.v., or in the alternative for a new trial, arguing, inter alia, that the trial court erred in instructing the jury on the confidential nature of the physician-patient relationship, as well as a physician’s duty to disclose; failing to instruct the jury on apportionment of damages; and awarding punitive damages. And after a hearing on the issue, the trial court reduced the total damages award to $7,762,500, which again included the set-off based on the other defendants’ settlements, but otherwise denied BMHC’s motion. This appeal follows.

1. BMHC contends that the trial court erred in instructing the jury on the confidential nature of the physician-patient relationship and a physician’s duty to disclose because, inter alia, BMHC never employed Dr. Powell, and thus had no such confidential relationship with or duty to Howard. We agree.

It is well established that “[a] jury charge must be adjusted to the evidence, apt, and a correct statement of the applicable law.” Moreover, “[t]he review of allegedly erroneous jury instructions is a legal question, and we therefore owe no deference to the trial court’s ruling and apply the ‘plain legal error’ standard of review.” And here, in charging the jury on the law applicable to Howard’s case, the trial court gave the following instruction:

The physician/patient relationship is a confidential one and silence or failure to disclose what should be said or disclosed can amount to fraud. A patient is entitled to believe and to rely upon his doctor’s affirmative representations, and has no duty to investigate or confirm the truth or accuracy of such representations.

BMHC objected to this instruction during the charge conference, arguing that the charge was not “applicable any longer seeing that it refers to a physician/patient relationship,” and “[t]he evidence is clear that Aaron Hardge is not a physician, a medical professional” and “ostensible agency is no longer a part of the case.” After the trial court charged the jury, BMHC reiterated its objection. On appeal, BMHC argues that this instruction was harmful because it allowed the jury to find BMHC liable for Dr. Powell’s alleged professional negligence and fraud despite the fact that BMHC was neither a physician nor Dr. Powell’s employer.

The law of this State “is clear that physician-patient privity is an absolute requirement for the maintenance of a professional malpractice action.” And “[i]t is a well-settled principle of Georgia law that there can be no liability for malpractice in the absence of a physician-patient relationship.” Nevertheless, the trial court instructed the jury on the physician-patient confidential relationship and a physician’s duty to disclose despite the fact that no physician remained in the case and despite the fact that Dr. Powell was not a BMHC employee for which BMHC could be held vicariously liable. A charge unauthorized by the evidence, “which injects into the case issues not made by the pleadings or evidence, is presumed to be harmful to the losing party, and such a charge is grounds for new trial unless it is apparent that the jury could not have been misled by it.” Here, the trial court’s instruction was both inapt and misleading in that it allowed the jury to find BMHC directly or vicariously liable for Dr. Powell’s alleged professional negligence and fraud, even though Dr. Powell was no longer a party and, more importantly, was never employed by BMHC. Accordingly, we have no choice but to reverse the jury’s verdict and the trial court’s judgment and remand the case for retrial.

Decided July 12, 2011

Reconsideration denied July 28, 2011

Holland & Knight, Sarah L. Zampell, Laurie W. Daniel, for appellant.

Orr & Edwards, James G. Edwards II, Cash, Krugler & Fred-ericks, David N. Krugler, Alwyn R. Fredericks, for appellee.

2. In light of our holding in Division 1 of this opinion, we need not address BMHC’s remaining enumerations of error.

In summary, because the trial court erred in instructing the jury on the physician-patient confidential relationship and a physician’s duty to disclose, we reverse the jury’s verdict and the trial court’s judgment, and remand the case for a retrial consistent with this opinion.

Judgment reversed and case remanded with direction.

Smith, P.J., and Mikell, J., concur.

        Timmons v. Cook, 287 Ga. App. 712, 712 (652 SE2d 604) (2007) (citation and punctuation omitted).

        Id. (citation omitted).

       Priapism can result in increased pressure and a loss of blood flow to the penis, which can lead to a permanent scarring of the spongy penile tissue — a condition known as penile fibrosis.

        King v. Davis, 287 Ga. App. 715, 715 (652 SE2d 585) (2007) (citation and punctuation omitted; emphasis supplied).

         Carter v. Smith, 294 Ga. App. 590, 592-93 (2) (669 SE2d 425) (2008) (footnote omitted).

       This instruction was originally proposed by Howard in the form of two separate and distinct jury charges. Howard contends that the record clearly shows that BMHC did not object to the latter half of this instruction. We disagree. But even if we were inclined to accept Howard’s characterization of the record, it would be of no consequence. The first half of the instruction, concerning the confidential nature of the physician-patient relationship and a physician’s duty to disclose, constitutes a basis for reversal in and of itself for all of the reasons noted infra.

         The trial court also instructed the jury that “[t]he case before you is a tort case in which the plaintiff must prove by a preponderance of the evidence that the negligence or fraud of the defendant, if any, was a proximate cause of the injuries to the plaintiff.”

        Medical Center of Central Ga. v. Landers, 274 Ga. App. 78, 84 (1) (b) (616 SE2d 808) (2005) (citation and punctuation omitted).

        Id. (citation and punctuation omitted).

       Howard claims that the complained-of instruction “was an appropriate statement of the law and was tailored to the evidence” because, inter alia, it allowed the jury to consider whether a confidential relationship existed between Howard and Hardge. We disagree. The instruction did not charge the jury on what it could or could not infer from the existence of a confidential relationship between Howard and Hardge, but instead invited the jury to consider the actions of Dr. Powell when deciding whether BMHC was liable to Howard, even though (1) BMHC did not employ any physicians; and (2) BMHC and Dr. Powell’s employer, BMG, were separate and distinct corporate entities.

        Valdez v. Power Industry Consultants, Inc., 215 Ga. App. 444, 446 (1) (451 SE2d 87) (1994); see also Godwin v. Godwin, 265 Ga. 891, 892 (1) (463 SE2d 685) (1995) (holding that trial court committed reversible error by giving a jury instruction regarding a theory of recovery for which there was no evidentiary support); Gurin v. General Motors Corp., 171 Ga. App. 159, 160-61 (2) (318 SE2d 830) (1984) (same).

       Although not the basis for our reversal, we note that the specific portion of the trial court’s instruction regarding a physician’s duty to disclose was also incorrect as a matter of law. Other than the information specified for disclosure pursuant to OCGA § 31-9-6.1, which is not applicable here, under Georgia law, a physician has no duty to disclose any risks associated with a particular medical treatment or procedure. See Albany Urology Clinic, P.C. u. Cleveland, 272 Ga. 296, 298-99 (1) (528 SE2d 777) (2000).

       The inherently misleading nature of the complained-of instruction is further evinced by the trial court’s justification for giving the charge:
      I think the principle is relevant to the jury in determining whether Mr. Hardge had a confidential relationship. I'm not sure they have to find that he had a confidential relationship, but I think they can consider since he was operating under Dr. Powell’s instructions by his own testimony, they can consider the physician/patient confidential relationship in determining what Mr. Hardge’s conduct should be.

        See Smith v. Finch, 285 Ga. 709, 713 (2) (681 SE2d 147) (2009) (holding that jury charge that instructed jury to disregard appellant’s expert regarding standard of care was prejudicial and thus required reversal of judgment).

        See American Multi-Cinema, Inc. v. Walker, 270 Ga. App. 314, 317 (2) (a) (605 SE2d 850) (2004) (holding that errors in jury charge required reversal despite finding that the evidence was sufficient to support jury’s verdict).


author: PHIPPS, Presiding Judge.

text:
    A11A0503.
    PACHECO et al. v. REGAL CINEMAS, INC. et al.
    (715 SE2d 728)
   PHIPPS, Presiding Judge.

On September 29, 2006, 21-year-old Jesus Silencio and members of his family arrived in the parking lot of a DeKalb County movie theater. As Silencio was walking toward the theater entrance, a truck stopped near him. Several individuals from the truck, one of whom verbally communicated gang affiliation to Silencio, confronted Silen-cio and began punching him and hitting him with a bat. During the altercation, Silencio was fatally shot. Immediately after the shots were fired, the individuals who had arrived in the truck quickly fled in their vehicle.

A wrongful death action ensued. Carlos Pacheco, individually and as administrator of Silencio’s estate, together with Olga Pacheco, charged two defendants with negligence: (1) the operator of the movie theater upon the premises, Regal Cinemas, Inc.; and (2) the company hired by Regal to provide security thereupon, Perfections Management Solutions, LLC. After a jury trial, the court entered judgment upon the defense verdict, then denied the Pache-cos’ motion for new trial. In this appeal, the Pachecos present contentions based upon spoliation and OCGA § 51-12-33, which, as modified by the Tort Reform Act of 2005, requires in certain cases the assessment of fault and apportionment of damages. No reversible error has been shown, and we affirm.

Spoliation

1. The Pachecos contend that the trial court erred by not imposing harsher sanctions against Regal and Perfections for failing to comply with their discovery requests for a video recording depicting views of the parking lot at the time of the assault. The Pachecos assert that the recording might have put to rest two critical issues. First, it might have negated the claim by the defense that Silencio somehow contributed to his own death. In particular, the Pachecos point out, Regal and Perfections sought to show that the parking lot attack was a continuation of an earlier altercation between the same parties at a nearby grocery store.

Second, the Pachecos assert that the recording might have established the duration of the altercation, a hotly disputed fact underlying the issue whether there had been reasonable time for security personnel to intervene. At trial, the Pachecos presented the testimony of Silencio’s family members that the altercation had spanned approximately ten minutes. In contradiction, a security guard who was working for Perfections at the time in question and who had viewed the recording at issue testified that it did not show the altercation, although it captured the truck entering, then exiting the parking lot approximately five minutes later. Based on that time lapse, together with other events he recalled going on at the time, the security guard estimated that the altercation had occurred within a two-to-three-minute time frame. Further, the defense presented testimony of a bystander who stated that the entire episode was over in about 30 seconds.

According to the Pachecos, Regal’s and Perfections’ failure to produce the video was in bad faith and amounted to egregious spoliation. Therefore, they claim that the trial court should have imposed the sanctions of: (a) precluding the defendants from putting on evidence contradicting their version of events, and (b) instructing the jury that it must accept as true their description of the assault.

(a) Precluding the defendants from presenting certain evidence. The Pachecos filed a pretrial motion that included an allegation of spoliation and a request for the two sanctions listed above. In their appellate brief, however, they do not show or even assert that they obtained a pretrial ruling from the trial court on their request to preclude contradictory evidence; nor do they assert that they objected to contradictory testimony when it was presented.

The record shows that, after the evidence was closed, the Pache-cos reminded the court of their pretrial motion. But upon the court’s request to clarify the sanctions they sought, they did not specify that which is urged here. Under such circumstances, the Pachecos waived the argument that the trial court erred by allowing the defendants to present evidence contradicting their version of events.

(b) Instructing the jury that it must accept as true the Pachecos ’ description of the assault. When the Pachecos reminded the court of their pretrial motion, they asked that the jury be instructed to accept as true their account that the incident occurred over the course of about ten minutes. When the trial court denied that request, the Pachecos asked for a charge on the rebuttable presumption arising from spoliation, which was given. But this sanction, the Pachecos argue, did not go far enough.

“Spoliation refers to the destruction or failure to preserve evidence that is necessary to contemplated or pending litigation. Such conduct creates the presumption that the evidence would have been harmful to the spoliator.”

Where a party has destroyed or significantly altered evidence that is material to the litigation, the trial court has wide discretion to fashion sanctions on a case-by-case basis. .. . Whether remedies are warranted is a matter for the trial court to decide. The trial court should weigh five factors before exercising its discretion to impose sanctions: (1) whether the party seeking sanctions was prejudiced as a result of the destruction of the evidence; (2) whether the prejudice could be cured; (3) the practical importance of the evidence; (4) whether the party who destroyed the evidence acted in good or bad faith; and (5) the potential for abuse if . . . testimony about the evidence was not excluded.

At trial, the defense elicited testimony that Regal and Perfections maintain showed their numerous attempts to recover the video, which had become lost. They also presented evidence that a copy of the video had been turned over to police and that a county prosecutor had viewed it. The defense showed further that, despite their numerous attempts to retrieve that copy, they had been unsuccessful.

The Pachecos assert on appeal that there is a reasonable inference the defense destroyed the video in bad faith. In the order denying the Pachecos’ motion for new trial, with respect to the Pachecos’ argument that harsher sanctions should have been imposed, the trial court ruled:

Plaintiffs argue the lost security surveillance tape would have shown, or would have at least provided circumstantial proof, that the verbal altercation leading to the eventual shooting of the deceased took ten minutes and given that time frame, Defendant Regal Cinemas had more than sufficient time to prevent the escalation of the altercation had adequate security been provided. During the trial, both sides stipulated to admission of a statement made by the [county prosecutor] who was in charge of the criminal case against the perpetrators of the shooting that she had reviewed the video tape and did not find it helpful in the criminal prosecution. Because the Plaintiffs never filed a motion to compel the production of this tape, this Court was unable to determine who was responsible therefor. Under these circumstances, a charge of spoliation of evidence was more than adequate.

The Pachecos have cited no authority that the circumstances of this case mandated the court to instruct the jury to accept as true their description of the assault. And we find none. Applying the necessarily deferential standard of review, we conclude that no reversible error has been shown in the trial court’s exercise of its discretion to charge the jury on the rebuttable presumption arising from spoliation, as opposed to instructing the jury that it must accept as true the Pachecos’ description of the assault.

OCGA § 51-12-33

2. In several claims of error, the Pachecos contend that the trial court erred by instructing the jury pursuant to OCGA § 51-12-33’s provisions regarding assessment of fault and apportionment of damages.

Background for the claims of error. Among other evidence pertaining to the individuals from the truck, the defense introduced at trial certified copies of convictions of three individuals charged in connection with the underlying incident. And during the final jury charge, as requested by the defense, the trial court instructed the jury under OCGA § 51-12-33, including the assignment of fault, if any, to the convicted individuals. Further, the trial court explained the special verdict form presented to the jury, which directed the jury to find either: (A) in favor of the plaintiffs, then to assign fault amongst the defendants and the convicted individuals, or (B) in favor of the defendants. (Having returning a defense verdict, the jury did not assign any fault.)

(a) The Pachecos argue that the trial court erred in instructing under OCGA § 51-12-33, claiming that the statute is unconstitutional on various grounds. However, the Pachecos failed to preserve any constitutional challenge to the statute.

In their notice of appeal to the Supreme Court of Georgia, the Pachecos asserted that “the constitutionality of a statute has been drawn into question.” But the Supreme Court transferred this case to this court, explaining in its transfer order: “Appellants seek to invoke this Court’s subject matter jurisdiction over constitutional questions. However, appellants have failed to identify any distinct ruling by the trial court that would invoke this Court’s jurisdiction.” Accordingly, the Pachecos waived their constitutional challenges to OCGA § 51-12-33. Thus, their several claims of error that the trial court gave jury instructions based upon a statute they argue was unconstitutional also fail, as does their enumerated claim of error (although indicating no ruling by the trial court) that “OCGA § 51-12-33 deprives the plaintiff of a substantial property right in violation of the Due Process Clause of the Georgia Constitution.”

(b) The Pachecos contend that the trial court erred in instructing the jury pursuant to OCGA § 51-12-33 because “it is not rationally possible to apportion fault between a premises owner and the criminal perpetrator that the owner was supposed to protect against.” Subsections (b) and (c) of that statute are relevant to this contention. In pertinent part, subsection (b) provides:

Where an action is brought against more than one person for injury to person or property, the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall after a reduction of damages pursuant to subsection (a) of this Code section, if any, apportion its award of damages among the persons who are liable according to the percentage of fault of each person. . . .

Subsection (c) provides: “In assessing percentages of fault, the trier of fact shall consider the fault of all persons or entities who contributed to the alleged injury or damages, regardless of whether the person or entity was, or could have been, named as a party to the suit.”

Although the Pachecos argued this issue at the jury charge conference, they made no objection on the ground asserted here when the court asked for exceptions to the final charge, and the transcript reflects further that neither did they object before the jury returned its verdict. Pretermitting whether the issue was consequently waived, we find that the Pachecos’ argument nevertheless falls short of demonstrating any trial court error.

It bears emphasizing that the Pachecos do not complain that the particular language employed by the trial court was an incorrect statement of the law under OCGA § 51-12-33; they do not complain that the statute was not invoked by the evidence; instead, they argue that the trial court should not have covered the statute’s principles of assessing fault and apportioning damages, given the particular allegations underlying their case. To support their argument, the Pachecos rely on two out-of-state decisions, which refused to apply such principles where, as here, the defendants were alleged to have been negligent in failing to keep the premises safe from allegedly foreseeable intentional conduct.

The cases relied upon are not persuasive authority, however. The result in Merrill Crossings Assocs. v. McDonald, one of the cases relied upon by the Pachecos, was based upon the Supreme Court of Florida’s interpretation of a Florida apportionment statute, which expressly provided that the statute was inapplicable where the case was “based upon an intentional [act].” The Pachecos do not contend that OCGA § 51-12-33 contains a similar exclusionary provision; and we find none. Consequently, they have not shown that the trial court erred by charging the jury pursuant to the Georgia statute, rather than pursuant to Merrill Crossings Assocs.

Decided July 14, 2011

Reconsideration denied July 28, 2011.

Patrick J. Hannon, for appellants.

Gray, Rust, St. Amand, Moffett & Brieske, Matthew G. Moffett, W. Winston Briggs, for appellees.

The decision of Turner v. Jordan, the other case relied upon by the Pachecos, did not turn on any statute. However, given the enactment of OCGA § 51-12-33 by our General Assembly, the Pachecos have failed to show that the trial court erred by instructing the jury pursuant to our state’s statute, rather than pursuant to Tennessee case law.

Judgment affirmed.

Andrews, J., concurs. McFadden, J., concurs and concurs in judgment only in Division 2 (b).

       See Ga. L. 2005, p. I, § 12.

       See OCGA § 24-4-22 (“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.”).

       See generally Bowman v. Bowman, 230 Ga. 395, 396 (1) (197 SE2d 373) (1973) (“An instruction to the jury to disregard evidence is tantamount to an exclusion.”).

       See generally Whitehead v. State, 287 Ga. 242, 246 (2) (695 SE2d 255) (2010) (noting that a party is required to make and obtain a ruling on an objection to evidence in the trial court, before or as the evidence is admitted, in order to preserve the objection for appeal).

        Baxley v. Hakiel Indus., 282 Ga. 312, 313 (647 SE2d 29) (2007) (citations and punctuation omitted).

        AMLI Residential Properties v. Ga. Power Co., 293 Ga. App. 358, 361 (1) (667 SE2d 150) (2008) (citations and punctuation omitted).

       See id. (recognizing that, while a trial court may exclude a party’s evidence, it also may remedy spoliation prejudice by charging the jury that spoliation of evidence creates the rebuttable presumption that the evidence would have been harmful to the spoliator).

        See R & R Insulation Svcs. v. Royal Indem. Co., 307 Ga. App. 419, 438-439 (7) (b) (705 SE2d 223) (2010) (noting the range of sanctions to impose in the event a trial court determines that spoliation has occurred and holding that trial court did not abuse its discretion by declining to dismiss the case, where it did not appear from the record that the appellees maliciously destroyed the evidence, and the appellants’ ability to present a defense had not been so diminished as to be impossible or improbable). See generally Wal-Mart Stores v. Lee, 290 Ga. App. 541, 546 (1) (659 SE2d 905) (2008) (before imposing sanctions, trial court must consider relevant factors, weigh the degree of spoliator’s culpability against the prejudice to the opposing party, and exercise its discretion by imposing sanctions which correspond to its findings); Brito v. Gomez Law Group, 289 Ga. App. 625, 631-632 (3) (b) (658 SE2d 178) (2008).

       The Supreme Court cited Jenkins v. State, 284 Ga. 642, 643-644 (1) (670 SE2d 425) (2008).

       See Haynes v. Wells, 273 Ga. 106, 108 (3) (538 SE2d 430) (2000).

       See generally Felix v. State, 271 Ga. 534, 539 (523 SE2d 1) (1999) (appellate courts are for correction of errors of law made by the trial courts; an error of law has as its basis a specific ruling made by the trial court; an appealing party must set forth in the enumeration of errors the allegedly erroneous ruling).

       See Sims v. GT Architecture Contractors Corp., 292 Ga. App. 94, 97 (2) (663 SE2d 797) (2008) (in a civil case, an exception or objection to a charge must be made after the jury is charged and before the verdict; an objection made at a charge conference before the charge is given does not preserve a charging issue for appellate review); Hurst v. J. P. Colley Contractors, 167 Ga. App. 56, 57 (2) (306 SE2d 54) (1983). Accord Palmer v. State, 270 Ga. 278, 279 (2) (507 SE2d 755) (1998). But cf. OCGA § 5-5-24 (a) (requiring an objection “before the jury returns its verdict”), (c) (mandating review in certain circumstances, notwithstanding the lack of proper objection); Whitehead, supra at 245-249 (2) (examining the rationale underlying the requirement to reiterate an objection in order to preserve an issue for appellate review).

       See Jones v. Sperau, 275 Ga. 213, 214 (2) (563 SE2d 863) (2002) (“A trial court has a duty to charge the jury on the law applicable to issues which are supported by the evidence. If there is even slight evidence on a specific issue, it is not error for the court to charge the jury on the law related to that issue.”) (citation and punctuation omitted).

       705 S2d 560 (Fla. 1997).

       Id. at 561 (citing Fla. Stat. § 768.81 (4) (b)).

       Supra. See generally Cavalier Convenience v. Sarvis, 305 Ga. App. 141, 146-147 & n. 24 (699 SE2d 104) (2010).

       957 SW2d 815 (Tenn. 1997).

       See generally Sarvis, supra.