author: Ellington, Chief Judge. DILLARD, Judge,

text:
    A12A1602, A12A1603. A12A1604. A12A1605, A12A1606. A12A1607.
    NALLEY et al. v. LANGDALE (two cases). NALLEY et al. v. THE LANGDALE COMPANY. NALLEY et al. v. LANGDALE (two cases). LANGDALE v. NALLEY et al.
    (734 SE2d 908)
   Ellington, Chief Judge.

These consolidated cases concern a trust created in 1959 by Judge Harley Langdale, Sr. (“Judge Langdale”). The plaintiffs, who are beneficiaries under the trust or their legal representatives, filed suit in the Superior Court of Lowndes County, claiming, inter alia, that the trustees breached their fiduciary duties in administering the trust and in distributing the trust corpus, which was comprised of stock held in The Langdale Company (“TLC”). The parties filed cross-motions for summary judgment, which the trial court granted in part, largely in favor of the defendants. The plaintiffs appeal, and one of the former trustees, defendant Harley Langdale, Jr. (“Harley Jr.”), has filed a cross-appeal. For the reasons explained below, we affirm in part and reverse in part.

In order to prevail on a motion for summary judgment under OCGA§ 9-11-56,

the moving party must show that there exists no genuine issue of material fact, and that the undisputed facts, viewed in the light most favorable to the nonmoving party, demand judgment as a matter of law. Moreover, on appeal from the denial or grant of summary judgment[,] the appellate court is to conduct a de novo review of the evidence to determine whether there exists a genuine issue of material fact, and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

(Citations omitted.) Benton v. Benton, 280 Ga. 468, 470 (629 SE2d 204) (2006).

1. Viewed in the light most favorable to the nonmovants, the record shows the following relevant facts.

(a) The Langdale Company. In 1947, Judge Langdale incorporated TLC, a closely-held, family-owned business headquartered in Valdosta. The ownership of TLC was initially divided evenly between its first directors, Judge Langdale andhis three sons, Harley Jr., John Langdale, Sr. (“John Sr”), and William Langdale (“Billy’). Judge Langdale also had a daughter, Virginia Langdale Miller (“Virginia”). Between 1956 and 2000, each of the sons served a few years as an officer of TLC or a member of the Board of Directors, and Virginia served as a director for approximately 12 years.

Over the years, TLC appraised its stock 3using the “Stanley methodology,” a formula developed by Dr. Kenneth Stanley, a professor in the business school at Valdosta State College and a paid consultant of TLC, for estimating the value of stock in private, closely-held corporations. According to Stanley, because there typically is no active market for a minority interest in a private, closely-held corporation, it is difficult to estimate the value of the stock.

There is some evidence that a disagreement existed in the Langdale family concerning the governance of TLC. Billy and his sons formed one faction, and Harley Jr., John Sr., and John Sr.’s son, John W. Langdale, Jr. (“Johnny”) formed the other. There is some evidence that Harley Jr., John Sr., and Johnny planned to consolidate ownership and control of TLC in Johnny’s line of descendants. There is no evidence, however, that Billy and his sons actively competed for control of TLC. Billy and his sons sold their interest in TLC to the company in 2009 following a lawsuit.

The record shows that, beginning in 1976, TLC executed a number of shareholders’ agreements restricting the sale of TLC stock. On February 25,1994, all of TLC’s shareholders, including the trust through its trustees, Harley Jr. and John Sr., entered into a new shareholders’ agreement governing the purchase and sale of TLC stock. The 1994 shareholders’ agreement provided that no shareholder could sell or transfer TLC stock to a third party without first offering to sell or transfer the stock to TLC or the remaining shareholders. It also provided that the “agreed value [of the stock] shall be arrived at using a new evaluation employing the same methods and guidelines used by [Stanley] in his appraisal dated the 29th day of December 1993, and using [TLC’s] profit and loss statements for the fiscal year immediately preceding the date of evaluation.”

(b) The Trust Agreements. Judge Langdale sought to provide for his daughter, Virginia, who was not one of the original TLC shareholders, by placing his shares of TLC stock in trust for her and for her descendants. On December 8, 1959, Judge Langdale executed an irrevocable trust agreement for her benefit. Judge Langdale, on that same day, funded the trust with his interest in TLC, 250 shares of common stock. He appointed John Sr. and Harley Jr. as co-trustees, and both co-trustees signed the trust agreement. The trustees controlled the trust property, and were given wide discretion to manage and invest the trust corpus as the “[t]rustees may deem advisable.” This discretion included selling or transferring trust holdings “either at public or private sale, at such prices and places and at such times as they consider [ed] best, without advertisement” or court order, in “their uncontrolled discretion,” so long as it was “in the best interest of [the] Trust.”

At the time the trust was created, Virginia had three living children, Langdale Nalley (“Dale”), James R. Miller (“Jimmy”), and Virginia Ruth Miller. The trust agreement provided that the net income of the trust was to be distributed annually to Virginia and her children and that, after the death of Virginia, “the net income shall be divided annually into as many shares as there are children of [Virginia] living and deceased children with lineal descendants living.” The agreement also provided that the trust “shall terminate on the 21st anniversary of the death of the last surviving beneficiary who was in life at the date of the execution” of the agreement, that is, Virginia, Dale, Jimmy, and Virginia Ruth. On the date that the trust terminated, the agreement directed that “[a]ll property remaining in the corpus of [the] Trust shall then, or as soon thereafter as practicable, be distributed to the persons then entitled to the income, to be theirs absolutely in the same proportion as they are entitled to the income.” Thus, this agreement was a generation-skipping trust.

On December 16, 1959, John Sr. sent a conformed copy of this agreement to Virginia and to Judge Langdale’s accountant. A 1997 letter to Harley Jr. from Virginia’s estate planning attorney indicated that both Virginia and her attorney believed the trust agreement was the operative agreement and noted that “the Trust works very well for Virginia and her descendants, in that it skips generations for estate tax purposes[.]” Virginia’s accountant, who also had a copy of the generation-skipping trust agreement, had the same understanding of the trust.

Almost immediately after executing the generation-skipping trust agreement, however, Judge Langdale apparently changed his mind about when the trust should terminate, and he executed a new trust document, the “1999 terminating trust agreement.” The terms of the 1999 terminating trust agreement and the generation-skipping trust agreement are almost identical. Both agreements provide that the corpus of the trust would be comprised of 250 shares of TLC common stock, name John Sr. and Harley Jr. as co-trustees, and provide that the net income of the trust is to be distributed annually to Virginia and to her children equally, with her grandchildren to receive per stirpes the share of a deceased parent. Unlike the generation-skipping trust agreement, however, the 1999 terminating trust agreement provides that “[the] Trust shall terminate on the 31st day of December, 1999. All property remaining in the corpus of this Trust shall then, or as soon thereafter as practicable, be distributed to the persons then entitled to the income, to be theirs absolutely in the same proportion as they are entitled to the income.”

Harley Jr. served as a co-trustee of the trust until December 27, 2010, and he was the trustee who primarily communicated with the income beneficiaries. John Sr. served as a co-trustee until a serious illness prompted him to resign on December 30, 1994. His son, Johnny, succeeded him as a co-trustee in 1994 pursuant to a document executed in October 1993 by Harley Jr. and John Sr. The plaintiffs contend that they were not aware that Johnny had been appointed trustee. Johnny, however, was aware that he was a trustee. On May 27,1999, Johnny resigned as trustee with the consent of the trust’s beneficiaries. Bob, Billy’s son, was appointed to replace Harley Jr. in 2010.

(c) The Sale and Distribution of the Trust Corpus. It is unclear from the record who initially proposed allowing TLC to redeem the stock held in the trust. The record shows, however, that discussions concerning the disposition of that stock were underway in late 1997. On August 8, 1997, Virginia’s lawyer, Jay Reynolds, wrote to Harley Jr. and asked for information concerning the trust, its assets, and its trustees, so he could advise Virginia about her estate planning. On August 13, Harley Jr. responded, informing Reynolds that the value of the stock was difficult to estimate and that TLC had used the Stanley methodology to value the stock in the past. On September 2, Reynolds wrote to Harley Jr. again, stating: ‘Virginia mentioned to me, she had understood from you, that in 1999 there was to be some change in either the Trust or perhaps [the TLC] stock.” Harley Jr. responded, stating that the trust was to terminate in 1999 and that “[o]ur plans are to distribute the [trust] assets” to the beneficiaries.

Reynolds wrote back immediately, expressing concern that the trust agreement in his possession did not show that the trust terminated on December 31,1999. Harley Jr. responded on September 15:

I have discussed [the trust] with John [Sr.] and he does not remember, [] but he says it is apparent to him that our father must have changed his mind about the termination [provision] on the same day [he created the trust], [John Sr.] says he can’t recall when the conformed copy was sent to [Virginia], but apparently a copy of the first draft was handed to him and it was sent to [Virginia] in error. We regret that this has happened, but we are certain there is no signed instrument other than the [1999 terminating trust agreement] enclosed with this letter.

From this point forward, the trustees proceeded as though the 1999 terminating trust governed. Virginia, Dale, and Jimmy (hereinafter, “the income beneficiaries”) and their advisors had “multiple discussions” with TLC representatives concerning the disposition of the stock in the trust. The income beneficiaries were represented by their attorney, Reynolds, and by a certified public accountant, Deborah Chambless. In April 1999, Reynolds and Chambless met with TLC representatives to discuss a plan for TLC to redeem the trust’s shares. Both Reynolds and Chambless deposed that they were told that the redemption plan required valuing the stock according to the Stanley methodology as set forth in the shareholders’ agreement.

In late 1998, Johnny and TLC’s chief financial officer, Steve Watts, began planning how TLC would redeem the stock held in the trust. Watts deposed that he and Johnny thought it was a good idea for TLC to redeem the stock, that TLC had “good cash flow” at the time and that owning the stock would “accrete to [TLC’s] earnings.” Watts also conceded that the stock redemption plan was intended to give Johnny control of TLC. According to Watts, Johnny wanted to keep the deal quiet because he was afraid that if Billy’s family found out that they would either spoil the deal by telling the income beneficiaries what they believed the stock was worth or that they would bid on the stock and, if they “got control of the company, they would want it sold and therefore Johnny and all of those guys would lose their jobs.” Watts further deposed that Johnny was trying to convince Virginia and Jimmy “to let the trust sell its stock to [TLC].”

During the negotiations, the co-trustees of the trust were Harley Jr. and Johnny. Both Harley Jr. and Johnny were also shareholders of TLC and together controlled more than half of TLC’s voting stock.

On May 5,1999, Reynolds wrote to Watts, expressing his clients’ interest in proceeding with the stock redemption. TLC made a number of internal financial documents available for Reynolds and Chambless to review, including past stock valuations, TLC balance sheets, statements concerning operating expenses and earnings, and reports of independent auditors. On May 21, 1999, Watts wrote a proposal for Harley Jr.’s approval, outlining how to redeem the stock from the trust with the consent and approval of the income beneficiaries and of the TLC Board of Directors. Ultimately, the parties agreed to break the transaction into two parts for tax purposes, a May 1999 sale and distribution and a January 2000 sale and structured payment over a ten-year term.

On May 28, 1999, TLC redeemed the trust’s voting stock and entered into a number of agreements, including an irrevocable option agreement for the purchase of the balance of the stock at the predetermined Stanley value. On the same day, Harley Jr., still in his capacity as trustee, entered into a reimbursement and indemnification agreement with the income beneficiaries. In the agreement, the income beneficiaries acknowledged that they “have requested that the Trustee enter into a transaction to sell a portion of [the TLC] stock prior to December 31, 1999,” and distribute the cash proceeds to them. In return, the income beneficiaries agreed

to release, indemnify, save and hold harmless the Trustee, of, from and against any and all liabilities, claims, demands, causes of action, costs, . . . and judgments incurred or suffered on behalf of the Trustee, whether presently existing or arising in the future, whether from claims made by them or on their behalf or by any other person having an interest in the Trust, such as contingent or alternate beneficiaries of the Trust, which in any way relate to, or arise from: the sale of the stock by the Trustee; the distribution of the Net Cash Proceeds;... and any other agreements contained herein or actions of the Trustee under or related to this Agreement.

After the closing of the Redemption Agreement and the execution of the reimbursement and indemnification agreement, Virginia, Dale, and Jimmy each received checks for approximately $2.4 million, each check representing one third of the proceeds from the stock redemption.

On January 4, 2000, Harley Jr., acting as trustee, notified TLC that the trust had terminated and directed TLC to reissue the remaining Class B stock that he held on behalf of the trust to Virginia, Dale, and Jimmy. TLC’s Board of Directors adopted a resolution on January 24, authorizing the company’s representatives to redeem the balance of the stock. On January 28, 2000, TLC redeemed the balance of the stock pursuant to agreements substantially similar to those executed in May. After executing the agreements, Virginia, Dale, and Jimmy each received checks for $1.6 million and ten-year installment notes for $5 million plus interest.

(d) The Instant Lawsuit. Sometime in 2007, Dale had a conversation with her cousin that led her to believe that she, Virginia, and Jimmy had gotten “shortchanged” in the sale of the TLC stock. The income beneficiaries met with counsel to investigate claims that they had been defrauded. In May 2009, Dale, individually and as attorney-in-fact for Virginia, and James IV, individually and as executor of Jimmy’s estate, filed this action against Harley Jr., Johnny as the executor of John Sr.’s estate, and Johnny individually. TLC was added as a defendant in 2010. Virginia, Dale, and Jimmy (the income beneficiaries) premised their complaint on an averment that the 1999 terminating trust agreement was the operative agreement. They asserted claims for breach of trust, breach of fiduciary duty, fraud, constructive trust, and conspiracy. In essence, the income beneficiaries averred that the stock that TLC redeemed was worth at least $100 million more than TLC paid for it and that they were consequently damaged to the extent of the difference between the stock’s true value and the amount they actually received when Harley Jr. distributed the trust’s corpus to them. The plaintiffs’ expert opined that the TLC stock was worth significantly more than the Stanley value. The defendants dispute the plaintiffs’ valuation of the stock; however, they concede that Stanley’s valuation in this case may not have taken into account the full value of some of TLC’s assets or holdings. In addition, the plaintiffs averred that the stock redemption agreement, by reducing the number of voting shares and by paying only a fraction of the stock’s value, substantially increased the value of the TLC stock owned and controlled by the defendants and enabled them to control TLC for their own profit. The income beneficiaries prayed that a constructive trust be imposed upon the defendants’ TLC stock and upon all benefits the defendants gained as a result of their alleged scheme.

In June 2009, attorneys representing Harley Jr. and Johnny discovered the original, generation-skipping trust in one of John Sr.’s filing cabinets. These defendants filed their answers, asserting defenses based upon the discovery of the generation-skipping trust instrument; Harley Jr. also asserted counterclaims against the income beneficiaries, seeking the return of the proceeds of the stock redemptions. Harley Jr. asserted that he relied upon the 1999 terminating trust agreement in good faith and denied that he acted intentionally or negligently in disbursing the trust corpus to the income beneficiaries.

After Harley Jr. and Johnny filed their answers, the income beneficiaries amended their complaint on September 3, 2009, adding as plaintiffs Virginia’s six grandchildren, that is, James IV (individually) and Dale’s five children. William McIntosh was appointed guardian ad litem for the minor and unborn potential remainder beneficiaries, and he joined the litigation as a plaintiff on February 19, 2010. Bob, the successor trustee, also joined the suit as a plaintiff on January 7, 2011. These additional plaintiffs aligned themselves with the income beneficiaries and adopted the allegations of the complaint.

The plaintiffs asserted that, “since the beneficiaries — all of them — have elected to seek a damages remedy, the May 28, 1999 transaction stands.” The remainder beneficiaries and their representatives also took the position that they have elected to affirm the transaction and pursue a damages remedy for breach of trust. All of the plaintiffs have asserted that they would redistribute any award of damages in the instant suit to the remainder beneficiaries. And, if there is no award of damages, they have agreed to redistribute to the remainder beneficiaries the funds paid to the income beneficiaries with court approval. We note that all of the parties have taken the position that the generation-skipping trust agreement is the operative trust agreement and that Judge Langdale lacked the authority to revoke that agreement or to alter any of its provisions, as he attempted to do when executing the 1999 terminating trust agreement.

After hearings on the various motions, the trial court granted summary judgment in favor of Johnny, individually, on the plaintiffs’ claims. The plaintiffs appeal this ruling in Case No. A12A1602. The court also granted summary judgment in favor of Johnny, as the executor of the estate of John Sr., on the plaintiffs’ claims. The plaintiffs appeal this ruling in Case No. A12A1603. The trial court granted summary judgment in favor of TLC on the plaintiffs’ claims, and the plaintiffs appeal this ruling in Case No. A12A1604.

The trial court denied Harley Jr.’s motion for summary judgment in part as to the remainder beneficiaries’ claims that he “committed a breach of trust or breach of fiduciary duty by dispersing the trust corpus to the income beneficiaries.” The trial court otherwise granted summary judgment in favor of Harley Jr. on the plaintiffs’ claims. In Case No. A12A1605, the plaintiffs appeal the grant of partial summary judgment in favor of Harley Jr. In Case No. A12A1607, Harley Jr. appeals the denial of partial summary judgment on the issue of whether he committed a breach of trust or fiduciary duty by dispersing the trust corpus to the income beneficiaries.

Finally, the trial court denied the plaintiffs’ motion for summary judgment on Harley Jr.’s counterclaims, and the plaintiffs appeal this ruling in Case No. A12A1606.

Case Nos. A12A1605 and A12A1607

2. In Case No. A12A1605, the plaintiffs contend that the trial court erred in granting partial summary judgment in favor of Harley Jr. on their claims. Specifically, they contend that Harley Jr.’s allegedly false statements gave rise to claims for fraud and breach of trust against Harley Jr. as a trustee.5 ********** They argue that Harley Jr.’s “fraudulent misrepresentations and concealments were the entire foundation of the [stock] transaction, and the transaction could not have occurred without them.” They also argue that they were “severely damaged” by Harley Jr.’s actions in that he sold the stock to TLC for less than its true value and that he “disenfranchised” the remainder beneficiaries by distributing the trust corpus in 1999.

In both Case Nos. A12A1605 andAl2Al607, Harley Jr. contends that all of the plaintiffs ratified the stock transactions and the distribution of the trust corpus, thereby estopping them from pursuing claims for breach of trust or fraud arising out of those transactions. Therefore, he argues that the trial court’s partial grant of summary judgment in his favor was correct, but that the court erred in denying his motion for summary judgment as to the plaintiffs’ claim for the wrongful distribution of the trust corpus.

It is undisputed that, under the generation-skipping trust agreement, the trustees were not authorized to distribute the trust corpus to anyone in 1999. Yet Harley Jr., acting as trustee, allowed the stock comprising the trust corpus to be distributed to the income beneficiaries in violation of the terms of the trust instrument and then allowed TLC to redeem it from the beneficiaries at a price the plaintiffs argue was a fraction of its true value. They argue that Harley Jr. “duped” them into the transactions at issue by misrepresenting the trust’s termination date, that he conspired with others to orchestrate a clandestine stock redemption pursuant to the shareholders’ agreement to suppress the value of the stock, and that he used the stock redemption to increase the value of his stock and to consolidate control of TLC in Johnny’s line of descendants.

Given that Harley Jr. was a trustee when the stock redemption occurred, any claim against him sounding in fraud is also a claim for breach of trust. “The trustee shall be accountable to the beneficiary for the trust property. A violation by the trustee of any duty that the trustee owes the beneficiary shall be a breach of trust.” OCGA § 53-12-300. In order to recover for a trustee’s breach of trust, a beneficiary must show proof of damages proximately caused by the breach. See SunTrust Bank v. Merritt, 272 Ga. App. 485, 489 (2) (612 SE2d 818) (2005) (“Establishing a claim for breach of fiduciary duty requires proof of three elements: (1) the existence of a fiduciary duty; (2) breach of that duty; and (3) damage proximately caused by the breach.”) (punctuation and footnote omitted). In this case, the plaintiffs argue that Harley Jr. breached his duties as a trustee of good faith and loyalty by fraudulently inducing the income beneficiaries to enter into the stock redemption transactions. As we have held:

The tort of fraud has five elements: a false representation by a defendant, scienter, intention to induce the plaintiff to act or refrain from acting, justifiable reliance by plaintiff, and damage to plaintiff. For an action for fraud to survive a motion for summary judgment, there must be some evidence from which a jury could find each element of the tort.

(Citations omitted.) Crawford v. Williams, 258 Ga. 806 (375 SE2d 223) (1989). “Given that fraud is inherently subtle, slight circumstances of fraud may be sufficient to establish a proper case. . . . Moreover, it is peculiarly the province of the jury to pass on these circumstances showing fraud.” (Citations omitted.) Almond v. McCranie, 283 Ga. App. 887, 889 (2) (643 SE2d 535) (2007).

In the instant case, the plaintiffs have asserted facts from which the jury could infer that Harley Jr. exceeded the scope of his discretion as a trustee and committed a breach of trust. He represented to the income beneficiaries that the trust terminated in 1999, and that representation was false. Under the circumstances of this case, whether that representation was made negligently, fraudulently, or in good faith remains for the jury to resolve. In the record before us, there is some evidence from which the jury might infer that Harley Jr. intentionally induced the income beneficiaries to enter into the stock redemption transactions for his personal gain, that is, for obtaining control of TLC at a discount and for maximizing the value of his own shares. There is some evidence that using the Stanley methodology resulted in a low value for the trust’s stock. Further, the jury may infer that the income beneficiaries were justified in relying on Harley Jr.’s representation that the trust terminated in 1999 and that the stock was properly valued because Harley Jr. was, in fact, their trustee and owed them a fiduciary duty. Finally, although the income beneficiaries received a windfall in that they received a payment comprising the entire trust corpus rather than a payment for annual income, all of the plaintiffs were damaged in that the trustee did not allocate the trust proceeds according to the settlor’s intent. In light of the evidence as outlined above, we conclude that the plaintiffs presented sufficient evidence on each element of fraud and breach of trust to survive a motion for summary judgment.

Harley Jr. contends that, pretermitting whether he made any fraudulent misrepresentations, the plaintiffs ratified any fraud at issue in the stock transactions or any breach of trust in the distribution of the trust corpus. We disagree. “In general, a party alleging fraudulent inducement to enter a contract has two options: (1) affirm the contract and sue for damages from the fraud or breach; or (2) promptly rescind the contract and sue in tort for fraud.” (Citations omitted.) Ainsworth v. Perreault, 254 Ga. App. 470, 471 (1) (563 SE2d 135) (2002). The right to affirm the contract and the right to sue for damages dub to fraud coexist. Tuttle v. Stovall, 134 Ga. 325, 329 (67 SE 806) (1910). However, if the defrauded party, “with knowledge of the fraud, does an act in ratifying or affirming the contract which shows his intention to abide by the contract as made, with the fraud in it, and thus waives the fraud, he can not afterwards set up the fraud and recover damages therefor.” Id. at 329. Whether such a ratification has occurred “is usually a fact question for the jury.” Brock v. Yale Mtg. Corp., 287 Ga. 849, 854 (3) (700 SE2d 583) (2010).

Similarly, a beneficiary may also ratify a breach of trust. “[Ejven though an act of the trustee is unauthorized and constitutes a breach of trust, it may be so acquiesced in, confirmed, or ratified by the cestui que trust as to estop him or her from repudiating it and attempting to hold the trustee liable.” (Footnote omitted.) 90A CJS Trusts, § 334. However, the cestui que trust must have acted with full knowledge of all facts and of his or her legal rights. Id.; see also Warner v. Hill, 153 Ga. 510, 513 (112 SE 478) (1922) (The beneficiaries of a trust may impliedly ratify the actions of the trustee by accepting the benefits of the action.). “Generally[,j the question of ratification is one which depends upon the intention of the parties, and is a matter of fact to be determined by the jury.” (Citations omitted.) Warner v. Hill, 153 Ga. at 513.

We cannot say that the acceptance of the benefit flowing from the unauthorized distribution of the trust corpus and the sale of the stock by the income beneficiaries amounts to an implied ratification as a matter of law in this case because the plaintiffs did not learn about the existence of the generation-skipping trust instrument until after suit was filed and their election made; further, all of the plaintiffs have agreed that any recovery should be structured to compensate those newly-discovered remainder beneficiaries. Whether, given these facts, the plaintiffs intended to ratify any breach of trust remains a question of fact for the jury to resolve.

Accordingly, we reverse the trial court’s grant of partial summary judgment to Harley Jr. on the plaintiffs’ claims for fraud and breach of trust. We also affirm the trial court’s order denying Harley Jr.’s motion for summary judgment on the plaintiffs’ claims that he “committed a breach of trust or breach of fiduciary duty by dispersing the trust corpus to the income beneficiaries.”

Case No. A12A1606

3. The income beneficiaries contend that the trial court erred in denying their motion for summary judgment on Harley Jr.’s counterclaims. They contend that Harley Jr. cannot prosecute claims for the return of the trust corpus, whether those claims sound in unjust enrichment, recoupment, set-off, constructive trust, or money had and received, because Harley Jr. is no longer the trustee and such a claim can only be prosecuted on behalf of the trust by the current trustee. They also contend that Harley Jr. is not entitled to indemnity for his allegedly wrongful distribution of the trust corpus, because the indemnity agreement that the income beneficiaries executed did not indemnify Harley Jr. for his own negligence, wrongdoing, or other misconduct.

(a) Claims for the Return of Trust Funds. Harley Jr. asserted his counterclaims for unjust enrichment, money had and received, recoupment, and constructive trust in his capacity “as trustee,” seeking the return of misapplied trust funds in the possession of the income beneficiaries. Because Harley Jr. is no longer the trustee, however, he lacks standing to pursue claims on behalf of the remainder beneficiaries for the return of the trust funds. Rather, the right to pursue an action concerning the wrongful distribution of trust funds belongs exclusively to the trust beneficiaries or to one with the authority to act on behalf of the trust beneficiaries, such as a co-trustee or successor trustee. OCGA § 53-12-301. Consequently, the trial court erred in denying the plaintiffs’ motion for summary judgment as to Harley Jr.’s counterclaims for the return of the trust corpus.

(b) Claims for Indemnification and Set-off. It is undisputed that, during the May 1999 sale of stock, the income beneficiaries signed indemnification agreements “to release, indemnify, save and hold harmless” Harley Jr. as trustee from any claims •— including those made by contingent beneficiaries — arising from the sale of the stock and distribution of proceeds. Similarly, at the January 2000 closing, the parties agreed to indemnify each other for any loss, liability, or claim arising from any breach of the representations made in the agreement. The plaintiffs assert, however, that Harley Jr. should not be able to rely on the indemnification agreement to shield himself from his wrongdoing.

Public policy is reluctant to cast the burden of negligent actions upon those who are not actually at fault. Thus it is well established in Georgia that contractual indemnities do not extend to losses caused by an indemnitee’s own negligence unless the contract expressly states that the negligence of the indemnitee is covered. The words of the contract will be scrutinized closely to discover whether such an intent is actually revealed in them and every presumption is against such intention. In the absence of explicit language to the contrary, courts will not interpret an indemnity agreement as a promise by the indemnitor to save the indemnitee harmless on account of the latter’s own negligence. Georgia courts never imply an agreement to indemnify another for one’s own negligence in the absence of express language.

(Citations and punctuation omitted.) Ryder Integrated Logistics v. BellSouth Telecommunications, 281 Ga. 736, 737-738 (642 SE2d 695) (2007) . According to the plaintiffs, this policy applies to intentional wrongdoing as well as negligent acts. See, e.g., Corbett v. Benioff, 126 Cal. App. 772, 776 (14 P2d 1028) (1932) (indemnity clause was not intended to protect trustees against their own wrongful conduct in violation of the trust).

Here, however, we have found that issues of fact remain as to whether Harley Jr. engaged in wrongful conduct or acted in bad faith. If a jury finds that Harley Jr. acted in good faith and within his discretion as a trustee in selling the stock, Harley Jr. should be permitted to invoke the indemnity clause in his defense. See, e.g., Coleman v. B-H Transfer Co., 284 Ga. 624, 627 (3) (669 SE2d 141)

(2008) (Georgia courts will enforce an indemnification clause in a contract unless such enforcement contravenes public policy). It follows that the trial court properly denied the plaintiffs’ motion for summary judgment as to the claim for indemnification and set-off.

Case No. A12A1603

4. The plaintiffs contend that the trial court erred in granting summary judgment to Johnny, as the executor of the estate of John Sr., on their claims against the estate. The plaintiffs’ claims against John Sr.’s estate, as amended, are identical to those alleged against Harley Jr. The trial court did not err in granting summary judgment in the estate’s favor, as a matter of law, for the following reasons.

The claims against John Sr.’s estate fail for the reason that, as of the date of John Sr.’s death in 1998, none of the plaintiffs had suffered any injury flowing from John Sr.’s alleged wrongdoing and, therefore, any cause of action based on such wrongdoing was extinguished, pursuant to OCGA § 9-2-41.

“At common law[,] a cause of action for a personal tort abated on the death of the tort-feasor.” Smith v. Jones, 138 Ga. 716 (76 SE 40) (1912). However, OCGA § 9-2-41, which is in derogation of the common law, provides:

No action for a tort shall abate by the death of either party, where the wrongdoer received any benefit from the tort complained of; nor shall any action or cause of action for the recovery of damages for homicide, injury to the person, or injury to property abate by the death of either party. The cause of action, in case of the death of the plaintiff and in the event there is no right of survivorship in any other person, shall survive to the personal representative of the deceased plaintiff. In case of the death of the defendant, the cause of action shall survive against said defendant’s personal representative. However, in the event of the death of the wrongdoer before an action has been brought against him, the personal representative of the wrongdoer in such capacity shall be subject to the action just as the wrongdoer himself would have been during his life, provided that there shall be no punitive damages against the personal representative.

(Emphasis supplied.) See also Wrinkle v. Rampley, 97 Ga. App. 453, 454 (1) (103 SE2d 435) (1958) (“It follows that[,] if the plaintiff could not have maintained the [cause of] action against the decedent during his life, the action cannot be maintained against his personal representative.”) (citation omitted). Thus the plaintiffs may prosecute an action against John Sr.’s estate only if the cause of action was viable against John Sr. before his death. “A cause of action has been defined as being the entire set of facts which give rise to an enforceable claim.” (Citations and punctuation omitted; emphasis in original.) Haley v. Regions Bank, 277 Ga. 85, 91 (2) (586 SE2d 633) (2003).

The plaintiffs seek to recover damages allegedly flowing from TLC’s redemption of stock from the Trust and from the income beneficiaries. As recounted above, these transactions occurred in May 1999 and January 2000. John Sr. was neither a trustee nor a director of TLC at that time, having resigned from both positions in 1994. And he died on February 20, 1998, over a year before formal negotiations concerning the stock redemption commenced. The record is devoid of any evidence that the plaintiffs took any action to their detriment based upon anything John Sr. said or did. Moreover, no plaintiff had suffered any injury as a result of any alleged breach of trust prior to John Sr.’s death. Under the circumstances of this case, the plaintiffs’ claims against John Sr. did not survive his death.

Because the plaintiffs had no cause of action against John Sr. before his death, any fraud claim against him must fail. See Middleton v. Troy Young Realty, 257 Ga. App. 771, 772 (572 SE2d 334) (2002) (An actionable claim for fraud requires proof of detrimental reliance upon a misrepresentation.). Moreover, no breach of trust ascribed to John Sr. proximately caused any injury to any beneficiary during John Sr.’s lifetime. See SunTrust Bank v. Merritt, 272 Ga. App. at 489 (2) (A claim for breach of fiduciary duty requires proof of injury proximately caused by the breach.). The plaintiffs’ contention that the alleged breach of trust entitles them to nominal damages and that, therefore, they were injured, lacks merit. Under OCGA § 51-12-4, nominal damages are only available upon a showing of injury. Under the circumstances of this case, the plaintiffs’ causes of action against John Sr. do not survive to his estate. Therefore, the trial court did not err in granting summary judgment in the estate’s favor.

As for the plaintiffs’ claim against John Sr. for breach of fiduciary duty as a director of TLC, they have made no argument that the trial court erred in granting summary judgment on that claim. Therefore, it is deemed abandoned. Court of Appeals Rule 25 (c) (2).

Case No. A12A1602

5. The plaintiffs contend that the trial court erred in granting summary judgment in favor of Johnny, individually, on their claims. The plaintiffs’ claims against Johnny, as amended, are for breach of trust and fraud and are identical to those alleged against Harley Jr., and Johnny raises many of the same defenses. We conclude that the trial court erred in granting summary judgment in Johnny’s favor, as a matter of law, for the same reasons set forth in Division 2, supra. The jury could infer from the evidence adduced that Johnny, who was a trustee when the plan to redeem the TLC stock from the trust was effectuated, acted in concert with Harley Jr., was aware of the existence of the generation-skipping trust agreement and the true value of the TLC stock, and took advantage of his position as trustee for personal gain.

As for the plaintiffs’ claim against Johnny for breach of fiduciary duty as a director of TLC, they have made no argument that the trial court erred in granting summary judgment on that claim. Therefore, it is deemed abandoned. Court of Appeals Rule 25 (c) (2).

Case No. A12A1604

6. The plaintiffs contend that the trial court erred in granting summary judgment in favor of TLC on the plaintiffs’ claim for tortious interference with a fiduciary relationship, also referred to by the plaintiffs as either “aiding and abetting a breach of fiduciary duty” or “conspiracy to breach a fiduciary duty.” For the following reasons, we agree.

A plaintiff may recover for tortious interference with a fiduciary duty upon proof of the following elements:

(1) through improper action or wrongful conduct and without privilege, the defendant acted to procure a breach of the primary wrongdoer’s fiduciary duty to the plaintiff; (2) with knowledge that the primary wrongdoer owed the plaintiff a fiduciary duty, the defendant acted purposely and with malice and the intent to injure; (3) the defendant’s wrongful conduct procured a breach of the primary wrongdoer’s fiduciary duty; and (4) the defendant’s tortious conduct proximately caused damage to the plaintiff.

(Citations and footnotes omitted.) Insight Technology v. Freight-Check, 280 Ga. App. 19, 25-26 (1) (a) (633 SE2d 373) (2006).

In this case, to establish the “improper action or wrongful conduct” element of their tort claim, the plaintiffs rely upon allegations that TLC’s officers and Board of Directors conspired with the trustees to induce the income beneficiaries to sell their stock to TLC at a discount, in violation of the terms of the trust agreement. Here, we find sufficient evidence from which a jury might infer that TLC — through some of its officers and the majority of its directors — knowingly aided and abetted the trustees in the alleged breach of their fiduciary duties. First, there is some evidence that the stock was undervalued. TLC provided the documents that Stanley used to value the stock, and the defendants concede that the valuation may not have taken into account the full value of some of TLC’s assets or holdings. Second, there is evidence from which a jury could infer that TLC was secretive about its intent to purchase the stock to discourage other potential buyers. Specifically, Watts deposed that the proposed sale was concealed from Billy and from the public so that others would not spoil the deal. Under these circumstances, the trial court erred in granting summary judgment in favor of TLC on the plaintiffs’ claim for tortious interference with a fiduciary relationship. See Insight Technology u. FreightCheck, 280 Ga. App. at 26 (1) (b).

Judgments affirmed in Case Nos. A12A1603 and A12A1607.

Judgment affirmed in part and reversed in part in Case No. A12A1606.

Judgments reversed in Case Nos. A12A1602, A12A1604 and A12A1 605.

Phipps, P. J., concurs. Dillard, J., concurs dubitante in judgment only.

DILLARD, Judge,

concurring dubitante in judgment only.

I concur in today’s result. I concur because I cannot say with confidence that my colleagues on the panel are incorrect in the manner they have chosen to resolve the issues before us. But I do so with serious doubts. And if I were deciding this case alone, my reasoning and conclusions might differ from the majority’s in several material respects. That said, I am satisfied that my colleagues have carefully and seriously studied this case. Chief Judge Ellington has penned a thoughtful opinion in which Presiding Judge Phipps has fully concurred. I commend them both for the amount of time and effort they have exerted in resolving this difficult and important case. Unfortunately, our constitutional duty to resolve this appeal today (within two terms of docketing) precludes me from engaging in the type of extended study necessary to achieve a high degree of confidence that my experienced, able colleagues are right. As such, I defer to the conclusions they have reached in this case, albeit with considerable reservations.

Decided November 30, 2012

Reconsideration denied December 13, 2012

Butler, Wooten & Fryhofer, James E. Butler, Jr., George W. Fryhofer III, John C. Morrison III, Tedra C. Hobson, William E. Moore, Jr., Gregory A. Voyles, for Nalley.

Jones, Cork & Miller, H. Jerome Strickland, Matthew T. Strickland, Christopher J. Arnold, Hunter, Maclean, Exley & Dunn, John M. Tatum, Matthew C. Henderson, Rachel C. Young, for John Langdale.

Watson Spence, Frank F. Middleton TV, Evans J. Plowden, Jr., Louis E. Hatcher, Sarah F. Kjellin, for Harley Langdale.

Bryan, Cave, Powell & Goldstein, William V. Custer TV, Raymond J. Burby TV, Edwin M. Cook, Coleman Talley, William E. Holland, for The Langdale Company.

       TLC functions as a holding company for subsidiaries that conduct a number of businesses (including forest products, auto dealerships, and banks) and whose assets include substantial tracts of timberland.

       In 1974, TLC issued nonvoting shares of stock, designated Class B; the original common (voting) shares were amended and designated Class A.

       The record shows that Stanley appraised TLC stock for the company almost every year from 1987 through 1999. The estimates were done primarily for establishing the value of stock for estate and gift tax purposes in accordance with IRS rules.

       The plaintiffs point to what they contend is evidence of a 1993 “takeover plan” by Harley Jr. and Johnny. These plans appear to have been generated by a consultant who met with certain TLC board members and who proposed that TLC use insurance products to fund stock redemptions from shareholders upon their death. The plaintiffs contend that, pursuant to this plan, Harley Jr. and John Sr. executed documents that would give Johnny control of TLC’s voting shares.

       TLC acquired control of the voting stock held in trust for Virginia in 1999 and 2000, as will be discussed further below.

       The agreement provided that “this Trust is and shall be irrevocable and that[,] after the execution of this Trust[,] I... shall have no right to alter, amend, revoke or terminate this Trust or any provision thereof.”

       See generally IRC § 2611 (a) (defining the term “generation-skipping transfer” for estate tax purposes).

       A “conformed copy,” as the parties use that term, is a copy in which the handwritten signatures are replaced by the notation “Is/.”

       Copies of unsigned letters found in John Sr.’s files indicate that, on December 29, 1959, John Sr. wrote to Judge Langdale’s accountant, advising him that his father had “[s]hortly after execution . .. changed his mind and desired that the Trust should terminate on December 31, 1999 [,] rather than as originally drafted.” John Sr. told the accountant to “destroy this letter and [to] destroy the copy [of the original trust agreement] which was forwarded to you previously.” The record also shows that someone marked a red “X” across the first page of the generation-skipping trust agreement and placed it in a file in John Sr.’s filing cabinet.

       The 1999 terminating trust agreement was signed by Judge Langdale, the same trustees, and the same witness, was notarized, and was also dated December 8, 1959. The original of this agreement was attached to a gift tax return that Judge Langdale filed following the creation of the trust, and the documents were placed in a vault at TLC’s headquarters. There is no dispute that Judge Langdale signed both trust agreements. There is also no evidence, however, that he intended to create two separate trusts. In fact, he only owned 250 shares of common stock in TLC, so he could not have transferred 250 shares to two individual trusts. There is no evidence that Judge Langdale, who died in 1972, made any statement concerning the operative agreement.

       There is no evidence in the record that suggests that John Sr. engaged in any discussions with the beneficiaries or their advisors concerning the sale of TLC stock while he was a trustee. He resigned in 1994, and he died in early 1998.

       A similar document, executed by Harley Jr. alone, provided a schedule of successor trustees for the trust, beginning with Johnny and followed by Johnny’s son, John Wesley Langdale III and, then by Billy’s son, Robert Harley Langdale (“Bob”).

       The record indicates, however, that in April 1997, John Sr.’s administrative assistant had written a memorandum concerning the trust on J ohn Sr.’s behalf which indicated that John Sr. was of the opinion that the trust did not terminate in 1999.

       Virginia’s third child, Virginia Ruth, died in 1971.

       The counts of the original complaint, as amended, against Harley Jr. are for (1) breach of trust, (2) breach of fiduciary duty, (3) breach of fiduciary duty as a director of TLC, (4) fraud, (5) constructive trust, and. (6) conspiracy. Counts 5 and 6 do not state independent causes of action. A claim for the imposition of a constructive trust is not an independent cause of action. Morrison v. Morrison, 284 Ga. 112, 113 (1) (663 SE2d 714) (2008). And where a plaintiff seeks to impose civil liability for a conspiracy, the conspiracy in and of itself furnishes no independent cause of action. Cook v. Robinson, 216 Ga. 328, 328-329 (1) (116 SE2d 742) (1960). Rather, the “gist of the action, if a cause of action exists, is not the conspiracy alleged, but the tort committed against the plaintiff and the resulting damage.” (Citation omitted.) Id. at 329 (1). See also Alta Anesthesia Assoc. of Ga. v. Gibbons, 245 Ga. App. 79, 85 (3) (537 SE2d 388) (2000). Thus, the claims at issue are those for fraud and breach of trust.

       The plaintiffs make no argument that the trial court erred in granting summary judgment on their claim against Harley Jr. for breach of fiduciary duty as a director of TLC. That claim of error, therefore, is deemed abandoned. Court of Appeals Rule 25 (c) (2).

       Harley Jr. also contends that the plaintiffs’ claims are barred by the six-year statute of limitation concerning a breach of trust, OCGA § 53-12-307. We find no merit to this contention, however. The original plaintiffs filed suit in 2009, two years after they discovered that they may have been paid less for the stock than it was actually worth. The additional plaintiffs joined the suit as soon as they learned of the existence of the generation-skipping trust instrument. See Snuggs v. Snuggs, 275 Ga. 647, 647-648 (1) (571 SE2d 800) (2002) (“The applicable statute of limitation for a breach of trust claim ... , is, in relevant part, six years from the date the beneficiary discovered, or reasonably should have discovered, the subject of the claim.”) (punctuation and footnote omitted).

       Although the Revised Georgia Trust Code became effective July 1,2010, it applies to any trust regardless of the date such trust was created, with two exceptions: “to the extent it would impair vested rights” and “except as otherwise provided by law.” OCGA § 53-12-1 (b); see also McPherson v. McPherson, 307 Ga. App. 548, 550 (1) (a) (705 SE2d 314) (2011). As no party has shown that either exception applies in this case, we proceed under the Revised Trust Code as supplemented by the common law. See McPherson, 307 Ga. App. at 550-551 (1) (a).

       A trustee is a fiduciary. Fiduciaries are held to the highest standard of the law. A “fiduciary” is a “person who is required to act for the benefit of another person on all matters within the scope of their relationship; one who owes to another the duties of good faith, trust, confidence, and candor.” Alvista Healthcare Center v. Miller, 286 Ga. 122, 127 (686 SE2d 96) (2009), quoting Black’s Law Dictionary (8th ed. 2004) (Melton, J., dissenting).

       In trusts like the generation-skipping trust at issue, that is, those with income beneficiaries and remainder beneficiaries, “the interests of the two beneficiaries are to a certain extent antagonistic, and the trustee is under a duty so to administer the trust as to preserve a fair balance between them.” (Citation, punctuation and footnote omitted.) SunTrust Bank v. Merritt, 272 Ga. App. at 488-489 (1).

       See also Bogert, Law of Trusts, 5th ed., p. 629 (“After the commission of a breach of trust or other wrong to the beneficiary, the latter may approve of the act and thus prevent himself from asserting later [that] he has a cause of action. This is generally called ‘ratification.’ ”) (footnote omitted).

       That Code section provides, in relevant part, that “[i]f a trustee commits a breach of trust, or threatens to commit a breach of trust, a beneficiary shall have a cause of action to seek... [t]ocompel the trustee to redress a breach of trust by payment of money or otherwise!.]” (Emphasis supplied.) OCGA § 53-12-301 (a) (5).

       See footnote 15, supra.

       “Damages are given as compensation for injury; generally, such compensation is the measure of damages where an injury is of a character capable of being estimated in money. If an injury is small or the mitigating circumstances are strong, nominal damages only are given.” OCGA § 51-12-4.

       See footnote 15, supra.

       The plaintiffs have made no legal argument concerning the grant of summary judgment to TLC on any of their remaining claims. Therefore, any claim of error concerning any other aspect of the court’s grant of summary judgment to TLC is deemed abandoned. Court of Appeals Rule 25 (c) (2).

       “[Kjnowledge of officers of a corporation is knowledge to that corporation and the corporation is bound thereby.” Stein Steel & Supply Co. v. Franco, 148 Ga. App. 186, 188 (251 SE2d 74) (1978).

        See generally United States v. Kaley, 677 F3d 1316, 1330-32 (11th Cir. 2012) (Edmondson, J., concurring in the result); Benefield v. Tominich, 308 Ga. App. 605, 613 (708 SE2d 563) (2011) (Blackwell, J., concurring dubitante); Jason J. Czarnezki, The Dubitante Opinion, 39 Alerón L. Rev. 1 (2006).

       Ga. Const, art. VI, § 9, ¶ 2 (“The Supreme Court and the Court of Appeals shall dispose of every case at the term for which it is entered on the court’s docket for hearing or at the next term.”).

       The parties to this appeal are represented by talented and skillful attorneys who have vigorously advanced their clients’ interests throughout this unique and complex piece of litigation'—so much so that their considerable efforts have produced a staggering appellate record consisting of eighty parts (and thousands upon thousands of pages), six transcripts, and numerous lengthy and detailed briefs. It is in this context that I suggest extended study on my part would be required in order for me to achieve a high degree of confidence that my distinguished colleagues are correct in the reasoning outlined in their majority opinion, as well as in the conclusions they have reached.


source: Caselaw Access Project

author: Ellington, Chief Judge.

license: Public Domain

text:
    A12A1752.
    In the Interest of C. H., a child.
    (735 SE2d 291)
   Ellington, Chief Judge.

On December 21, 2011, 17-year-old C. H. was charged in a delinquency petition with public indecency, OCGA § 16-6-8 (a) (2), and with a violation of probation.* C. H. admitted to both counts during a March 26, 2012, dispositional hearing, and the juvenile court sentenced him to concurrent periods of probation and to 30 days confinement in a youth development center, but the court allowed C. H. to begin serving his period of confinement on May 31, 2012, after the end of the school year. In an order clarifying its disposition, the juvenile court noted that the adjudication of delinquency was founded on a finding that C. H.’s act of public indecency, if committed by an adult, would constitute a misdemeanor. On April 10, 2012, the juvenile court entered an order staying that portion of the adjudication concerning C. H.’s confinement until the resolution of this appeal.

C. H. contends that the juvenile court was not authorized to impose a period of confinement in a youth development center as a disposition for the delinquent act of public indecency. We agree. For the reasons that follow, we vacate the court’s disposition order and remand the case for the entry of a new disposition order consistent with this opinion.

The juvenile court is authorized to impose a period of confinement in a youth development center when a child has been adjudicated delinquent, but only if certain prerequisites have been met. OCGA § 15-11-66 (b) (1) provides that, “[a]t the conclusion of the dispositional hearing provided in subsection (a) of Code Section 15-11-65, if the child is found to have committed a delinquent act,” the juvenile court may, in the exercise of its discretion, order the child to serve up to a maximum of 30 days in a youth development center in those cases involving:

(i) An offense that would be a felony if committed by an adult; or
(ii) An offense that would be a misdemeanor of a high and aggravated nature if committed by an adult and involving bodily injury or harm or substantial likelihood of bodily injury or harm, in addition to any other treatment or rehabilitation [.]

OCGA § 15-11-66 (b) (2) (A). C. H.’s delinquent act does not constitute an act which, if committed by an adult, would be punishable either as a felony or as a misdemeanor of a high and aggravated nature involving bodily injury or harm or the substantial likelihood of the same. See OCGA § 16-6-8 (b) (punished as misdemeanor). No other provision of OCGA § 15-11-66 allows for the imposition of confinement to a youth development center under the circumstances of this case. Consequently, the juvenile court’s sentence exceeds that allowed bylaw and is void. See Jones v. State, 278 Ga. 669, 670 (604 SE2d 483) (2004) (Under Georgia law, “[a] sentence is void if the court imposes punishment that the law does not allow.”) (citations and punctuation omitted).

Decided December 11, 2012

Reconsideration denied December 13, 2012

Ali-Reza P. Ghanouni, for appellant.

Garry T. Moss, District Attorney, Cliff Head, Jay G. Wall, Shannon G. Wallace, Assistant District Attorneys, for appellee.

Finally, the state did not file a petition for probation revocation, and the juvenile court was not allowed to impose a period of confinement concerning the delinquent act of “violation of probation” by treating the dispositional hearing as a probation revocation proceeding. As we have held, due process requires that “before a juvenile court may revoke an order granting probation, a petition must be filed requesting such relief.” In re B. C., 169 Ga. App. 200, 201 (311 SE2d 857) (1983) (“[N]o petition to revoke appellant’s probation was ever filed in the juvenile court. Indeed, it appears that only a petition of delinquency was filed[.]”).

Judgment vacated and case remanded with direction. Phipps, P. J., and Dillard, J., concur.

       OCGA § 15-11-2(6) (B) provides that a delinquent act includes “[t]he act of disobeying the terms of supervision contained in a court order which has been directed to a child who has been adjudged to have committed a delinquent act.” In the instant case, the petition was not one seeking probation revocation pursuant to OCGA§ 15-11-40, but one brought pursuant to OCGA § 15-11-65 (a). Count 2 alleged that C. H., by violating the terms of a previous supervision order, committed a separate delinquent act.

       Contrary to the State’s assertion, C. H.’s March 26 dispositional order is ripe for review. It is undisputed that the juvenile court required C. H. to serve a period of confinement in its final written order. The record also contains a summons issued by the juvenile court clerk on March 26 commanding C. H. to “report for short term program” on May 31,2012. Although the juvenile court permitted C. H. to begin serving his 30-day period of confinement at a later date “by separate order,” the final disposition, when entered, was not contingent upon the happening of any future event, nor had the court failed to impose punishment on any remaining counts of the petition. The disposition was definite and had been reduced to writing. Therefore, it was ripe for review. See generally Keller v. State, 275 Ga. 680 (571 SE2d 806) (2002) (discussing finality). Nor is the disposition “moot.” C. H. has not served his period of confinement, nor has the time for serving it passed, as the court has entered an order staying such service pending appeal. See generally Chaplin v. State, 141 Ga. App. 788, 789 (1) (234 SE2d 330) (1977) (discussing mootness).


author: Adams, Judge. MCFADDEN, Judge,

text:
    A12A0982.
    MOCERI v. THE STATE.
    (735 SE2d 36)
   Adams, Judge.

Dominic Moceri III filed a direct appeal from the trial court’s denial of his Motion for Discharge and Acquittal on speedy trial grounds. In an order dated November 18, 2011, this Court found that Moceri, indeed, had a right to a direct appeal and granted his emergency motion to stay the proceedings in the trial court pending the appeal. But in an opinion dated November 19,2012, the Supreme Court of Georgia held that no right of direct appeal lies from the denial of a constitutional speedy trial motion. Sosniak v. State, 292 Ga. 35 (734 SE2d 362) (2012).Accordingly, we must dismiss Moceri’s appeal for lack of jurisdiction.

As the Supreme Court of Georgia recognized, however, “given the clear, though incorrect, mandate” of prior Supreme Court precedent, an appellant with a pending speedy trial appeal “may be caught somewhat by surprise” by the Sosniak opinion. Id. at 40 (3). In an effort to ameliorate such surprise in this case, we note that the trial court’s order denying Moceri’s speedy trial motion was insufficient to allow us to determine whether the trial court abused its discretion because the trial court made no findings pursuant to Barker v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972). Thus, the order was subject to vacatur and remand “for entry of an order including proper findings in accordance with Barker v. Wingo . . . .” Higgenbottom v. State, 288 Ga. 429, 430 (704 SE2d 786) (2011).

In considering a motion asserting the denial of the constitutional right to a speedy trial, courts must apply a balancing test, considering the following factors:

(1) the length of the delay; (2) the reasons for the delay; (3) the defendant’s assertion of the right to a speedy trial; and (4) prejudice to the defendant. Barker v. Wingo, 407 U. S. [at 530 (IV)]. The existence of no one factor is either necessary or sufficient to sustain a speedy trial claim, and a trial court’s findings of fact and its weighing of disputed facts will be afforded deference on appeal.

(Citation omitted.) Brown v. State, 287 Ga. 892, 894 (1) (700 SE2d 407) (2010). An appellate court reviews the denial of a speedy trial motion for an abuse of discretion. Higgenbottom v. State, 288 Ga. at 430. “It is imperative, therefore, that in cases implicating a defendant’s constitutional right to speedy trial, the trial court enter findings of fact and conclusions of law consistent with Barker. Absent such findings, there is no exercise of discretion for this Court to review.” (Citations omitted.) Id. at 430-431.

Here, the trial court’s order denies Moceri’s speedy trial motion based upon the record and the argument of counsel, which included a defense argument on the Barker v. Wingo factors, before making a separate finding that the motion was frivolous and dilatory. We must presume, therefore, that the trial court considered the merits of Moceri’s argument in denying the motion. But because the trial court made no findings on the Barker v. Wingo factors, we would have been unable to consider whether the trial court properly exercised its discretion.

Further, we note that the additional evidentiary issues Moceri raised in this appeal are not directly appealable standing alone. This Court denied Moceri’s prior application for interlocutory appeal on these issues, and the Supreme Court of Georgia denied his petition for certiorari. In any event, because the resolution of a speedy trial motion is potentially dispositive, it would have been premature to address Moceri’s appellate arguments on the evidentiary issues until after remand.

Finally, we emphasize Sosniak’s holding that in the future, any appeal from the denial of a constitutional speedy trial motion must be made pursuant to the procedures for interlocutory appeal set forth in OCGA § 5-6-34 (b).

Appeal dismissed.

Barnes, P. J., concurs. McFadden, J., concurs specially.

MCFADDEN, Judge,

concurring specially.

I concur fully in the majority opinion. I write separately to emphasize that the issue raised in Moceri’s second enumeration of error also returns to the breast of the trial court and would also be subject to appellate review upon conviction. His second enumeration complains of the trial court’s decision to impose a discovery sanction suppressing all evidence as to the only issue worth trying in this vehicular homicide case: his defense that a mechanical failure caused sudden acceleration.

It is of no consequence that we denied Moceri’s earlier application for interlocutory appeal from that ruling. Holmes v. Achor Center, Inc., 249 Ga. App. 184, 186-187 (1) (547 SE2d 332) (2001).

The defense is at least plausible. The record reflects that, in the early morning hours Moceri was driving a female passenger home from a date in his father’s 1995 BMW sedan. A police officer, having concluded that Moceri was speeding and failing to maintain his lane, undertook a routine traffic stop. Rather than pull over, Moceri’s car sped up. As it rounded a curve, it hit a telephone pole, killing the passenger.

The manufacturer had issued a recall stating that cars of the make and model of Moceri’s should be inspected for possible problems that could cause them to not decelerate properly on release of the gas pedal. Moceri’s car had not been inspected for that problem. The state was aware of the recall and had the car in its possession for nearly a year after the collision. But the state confined its investigation to a single conversation with a dealer, after which it chose to accept at face value the dealer’s representation that the recall did not apply to Moceri’s car.

Moceri’s blood alcohol level was 0.059 — just under three-quarters of 0.08, the level at which a driver is intoxicated as matter of law. OCGA § 40-6-391 (a) (5). There is no other evidence in the record that Moceri had a motive to engage in a fatally reckless attempt to evade a routine traffic stop. Nor is there any evidence of similar past behavior on his part.

After the car was returned to Moceri and after he — belatedly — provided reciprocal discovery disclosing the details of his sudden acceleration defense, the trial court ordered that the state be allowed an opportunity to inspect it. Moceri subsequently reported that the car had been sold and the relevant evidence destroyed.

In a detailed order, the trial court found a pattern of discovery violations by defense counsel and concluded that “Defendant acted in bad faith.” That finding is supported by numerous instances of discovery violations on the part of defense counsel, which of course are attributable to Moceri. But it also rests in part on findings of misconduct by third parties who had control of the car, particularly that one of those third parties was motivated by a hope to do business with Moceri’s father. Attributing the conduct of third parties to Moceri is problematic.

The trial court went on to reject the argument that, in light of the state’s knowledge of the recall, “the State was required to anticipate the specific defense to the degree urged by the Defendant.” But that aspect of the order is not supported by detailed findings. The order makes no allowance for the possibility that Moceri’s evidence might have been, at least in part, fairly foreshadowed by the recall notice. The order directs, “Evidence and testimony about a possible mechanical failure, including a manufacturer recall, affecting the 1995 BMW M3 vehicle at issue shall be excluded from the trial of this case.”

The reciprocal discovery statutes authorize trial courts to exclude evidence in appropriate cases. OCGA § 17-16-6 provides:

... If at any time during the course of the proceedings it is brought to the attention of the court that the defendant has failed to comply with the requirements of this article, the court may order the defendant to permit the discovery or inspection, interview of the witness, grant a continuance, or, upon a showing of prejudice and bad faith, prohibit the defendant from introducing the evidence not disclosed or presenting the witness not disclosed, or may enter such other order as it deems just under the circumstances. . . .

In enacting this statute, the legislature “cloaked the trial court with the discretion to use its own judgment to ensure a fair trial. Thus, the remedy a trial court fashions to cure a discovery violation is reviewed on appeal only for abuse of discretion.” (Citation and punctuation omitted.) Jones v. State, 290 Ga. 576, 577-578 (2) (722 SE2d 853) (2012). But “[exclusion of evidence is a particularly harsh sanction and should be imposed only where there is a showing of prejudice to the [state] and bad faith by the [defendant].” (Citation and punctuation omitted.) Leger v. State, 291 Ga. 584, 586 (2) (732 SE2d 53) (2012).

As to prejudice to the state, it is true that the state is now unable to examine the car; but any harm is tempered by the fact that the state failed to conduct such investigation during the year that it had possession of it. And, even after the trial court ordered that the car be made available to the state for inspection, the state did not arrange for such an inspection to occur until months later. See Norley v. State, 170 Ga. App. 249, 252 (4) (316 SE2d 808) (1984) (defendant’s failure to timely utilize court-ordered opportunity to conduct independent testing of substance amounted to waiver of any right to the independent analysis).

And although the trial court found bad faith, there is no evidence that Moceri destroyed or participated in the destruction of the evidence. Rather, it is undisputed that the evidence was lost by a third party, the mechanic with whom the vehicle had been stored. It is unclear from the record if the loss of the vehicle was due to intentional conduct or if it was the result of negligence, mistakes and misunderstandings. Indeed, in the converse situation involving the loss of evidence by the state due to mistake or negligence, such action has been found not to rise to the level of bad faith. See Fincher v. State, 276 Ga. 480, 484 (5) (578 SE2d 102) (2003); Brannan v. State, 275 Ga. 70, 73-74 (2) (c) (561 SE2d 414) (2002) (vehicle impounded by state lost when towing company under contract with police released vehicle to lienholder, which repaired and resold it); Champion v. State, 260 Ga. App. 12, 14 (2) (579 SE2d 35) (2003). Regardless, since Moceri himself did not destroy the evidence, any bad faith of others must somehow be imputed to him in order to justify the trial court’s imposition of the ultimate sanction of excluding his sole defense. See Williams v. State, 256 Ga. App. 249 (568 SE2d 132) (2002) (absent showing of bad faith and prejudice to state, trial court erred in imposing harsh sanction of excluding certain defense evidence).

Decided November 29, 2012 —

Reconsideration denied December 14, 2012

Head, Thomas, Webb & Willis, Gregory A. Willis, for appellant.

Kenneth W. Mauldin, District Attorney, for appellee.

The trial court has stripped Moceri of his sole defense. It seems that a remedy less harsh than exclusion of all evidence, which would protect the interests of the state while still allowing Moceri to present his sole defense, could be fashioned. Trial courts have broad discretion to formulate appropriate remedies for discovery abuses. But the state has not cited, and I have not found, any other criminal case in which a trial court imposed the ultimate sanction for a discovery violation and thereby eliminated a defendant’s ability to present any evidence in support of his only defense.

This discovery sanction is — in effect — a summary judgment of conviction for homicide. That is extraordinarily harsh. And it is, in my view, a matter of grave concern.

       The State subsequently filed a motion asking this Court to dismiss the stay, “arguing that because the trial court’s summary judgment order found appellant’s appeal to be frivolous, the court was not required to allow a direct appeal,” but the motion was denied.

       Prior to Sosniak, this Court’s prior rulings on emergency motion would have been binding as to future proceedings in this case and could not have been reconsidered on appeal. See Melton v. State, 252 Ga. App. 29, 30 (2) (555 SE2d 488) (2001); Blalock v. State, 201 Ga. App. 461 (411 SE2d 914) (1991).

       See Callaway v. State, 275 Ga. 332 (567 SE2d 13) (2002), and Boseman v. State, 263 Ga. 730, n. 1 (438 SE2d 626) (1994), both expressly overruled by Sosniak.

        Strunk v. United States, 412 U. S. 434, 439-440 (II) (93 SC 2260, 37 LE2d 56) (1973) (“In light of the policies which underlie the right to a speedy trial, dismissal must remain, as Barker [u. Wingd\ noted, ‘the only possible remedy.’ ”). See also Ruffin v. State, 284 Ga. 52, 66 (3), n. 63 (663 SE2d 189) (2008).

       I note, however, that at oral argument defense counsel represented that at least some of those violations were delays caused by difficulty paying for expert testimony and that defense counsel ultimately paid those expenses out of his own pocket.


author: MILLER, Presiding Judge. RAY, Judge,

text:
    A12A1109.
    DAILEY et al. v. ABDUL-SAMED et al.
    (736 SE2d 142)
   MILLER, Presiding Judge.

Ryan S. Dailey and Cindy Dailey brought the instant medical malpractice action against Dr. Gihan Abdul-Samed, PA-C Mark Epps, and ACS Primary Care Physicians-SoutheastP.C. (collectively, “the Defendants”), alleging that Dr. Abdul-Samed and her staff delayed referring Mr. Dailey to a hand surgeon, left his hand injury untreated for a protracted period, and caused a partial amputation of his finger. The Defendants moved for summary judgment on the basis that the Daileys’ suit was governed by OCGA § 51-1-29.5 (c) since Mr. Dailey presented to the emergency room, and that the Daileys failed to present clear and convincing evidence that Defendants’ actions were grossly negligent. The trial court granted Defendants’ motion for summary judgment, and the Daileys appeal from that order. The Daileys contend that OCGA § 51-1-29.5 is unconstitutionally vague, and that the trial court erred in concluding that the statute insulated Defendants from liability. The Daileys also contend that, even if OCGA § 51-1-29.5 applied, there are still issues of fact as to Defendants’ liability, Dr. Abdul-Samed’s breach of her fiduciary duty to Mr. Dailey, and whether Defendants acted in bad faith. For the reasons set forth below, we reverse.

To prevail at summaryjudgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case.
When ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions therefrom most favorably toward the party opposing the motion. Further, any doubts on the existence of a genuine issue of material fact are resolved against the movant for summary judgment. When this Court reviews the grant or denial of a motion for summary judgment, it conducts a de novo review of the law and the evidence.

(Punctuation and footnotes omitted.) Beasley v. Northside Hosp., 289 Ga. App. 685, 685-686 (658 SE2d 233) (2008).

So viewed, the evidence shows that on the night of December 10, 2005, Mr. Dailey inadvertently shot paint thinner into his left-middle finger as he was cleaning a paint spraying device. The tip of Mr. Dailey’s finger immediately started hurting. The Daileys went to the emergency room at Spalding Regional Hospital, arriving shortly after midnight on December 11, 2005. Mr. Dailey saw a nurse for an initial assessment at approximately 12:15 a.m. Shortly thereafter, the nurse contacted a poison control center, who informed the nurse to contact a hand surgeon about Mr. Dailey’s injury.

Epps next examined Mr. Dailey. Based on the high-pressure injection injury that Mr. Dailey had suffered, Epps concluded that Mr. Dailey needed an immediate referral to a hand surgeon. Sometime before 1:00 a.m., Epps reviewed Mr. Dailey’s condition with Dr. Abdul-Samed, who agreed that Mr. Dailey needed an immediate referral to a hand surgeon.

At approximately 1:00 a.m., Dr. Abdul-Samed contacted Dr. John G. Seiler, a hand surgeon at Piedmont Hospital in Atlanta, about possibly transferring Mr. Dailey to Piedmont Hospital in the event Mr. Dailey could not be transferred to a closer facility. At approximately 1:30 a.m., Dr. Abdul-Samed examined Mr. Dailey, confirmed that Mr. Dailey’s injury represented a surgical emergency, and informed the Daileys that she would attempt to transfer Mr. Dailey to another hospital with an available hand surgeon.

Dr. Abdul-Samed had the emergency room’s unit secretary call hospitals to find a hospital that would accept Mr. Dailey. Although the unit secretary initiated the calls, the actual transfer request was a physician-to-physician discussion. Based on Spalding Hospital’s protocol, the unit secretary first called the Atlanta Medical Center at approximately 2:00 a.m. An Atlanta Medical Center physician returned the call approximately 45 minutes later and informed Dr. AbdulSamed that the hospital was unable to accept Mr. Dailey. Spalding Hospital’s protocol required that the next call be made to hospitals in close proximity, including the Medical Center of Central Georgia. While Dr. Abdul-Samed testified that she believed the Medical Center of Central Georgia was called, the Director of the Transfer Center for the Medical Center of Central Georgia stated that the center never received a transfer request. The Medical Center of Central Georgia further stated that it would have accepted a transfer had a request been made since it had an available hand surgeon to treat Mr. Dailey.

At some point, the unit secretary called Piedmont Hospital. Dr. Abdul-Samed spoke with Dr. Seiler at Piedmont Hospital in an attempt to transfer Mr. Dailey. Dr. Seiler agreed to accept Mr. Dailey and instructed Spalding Hospital to send Mr. Dailey to Piedmont Hospital “right away.” Dr. Abdul-Samed testified that she spoke to Dr. Seiler one to two hours before Piedmont Hospital’s official acceptance, which occurred at 7:33 a.m. Dr. Abdul-Samed explained that once the physician accepts the patient, the hospitals must coordinate the transfer, and that a transfer is not official until both parties complete the necessary paperwork. An ambulance arrived at Spalding Hospital about an hour later and delivered Mr. Dailey to Piedmont Hospital at approximately 9:43 a.m. Dr. Seiler subsequently performed surgery on Mr. Dailey, amputating part of Mr. Dailey’s finger.

The Daileys filed the instant suit, claiming that Defendants breached their duty of care by not achieving a transfer for Mr. Dailey to a hand surgeon within a timely manner. The affidavit of Mr. Dailey’s physician expert stated that Defendants knew Mr. Dailey’s condition would worsen over time, and that their delay in timely transferring Mr. Dailey to a hand surgeon violated the standard of care.

1. The Daileys contend that OCGA § 51-1-29.5 is unconstitutionally vague. Although the Daileys raised this issue below, there is no evidence in the record that the trial court distinctly ruled on their constitutional challenge. Therefore, the constitutional challenge was not preserved for appeal because it was not ruled on below. See Focus Entertainment Intl. v. Bailey, 256 Ga. App. 283, 284 (568 SE2d 183) (2002). “Further, transfer of this appeal to the Supreme Court of Georgia is not warranted because that court does not have exclusive appellate jurisdiction over a case where the constitutional issue asserted on appeal has not been raised in and ruled upon by the trial court.” (Citation and punctuation omitted.) Id.

2. The Daileys contend that the trial court erred in granting summary judgment to Defendants because the evidence presents factual questions as to whether OCGA § 51-1-29.5 (c) applied. We agree.

OCGA § 51-1-29.5 (c) provides, in pertinent part:

In an action involving a health care liability claim arising out of the provision of emergency medical care 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.

“Emergency medical care” has been defined 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).

While Defendants provided some care to Mr. Dailey upon his arrival to the Spalding Hospital emergency department, it was their alleged lack of emergent care ■—• namely, their delay in timely transferring him to a hand surgeon—that led to this suit. Construing the evidence in a light most favorable to the Daileys, the record shows that Mr. Dailey presented to the emergency room around midnight. At 1:00 a.m., Dr. Abdul-Samed had a conversation with Dr. Seiler about possibly transferring Mr. Dailey to Piedmont hospital for surgery. Around 1:30 a.m, Dr. Abdul-Samed confirmed that Mr. Dailey needed surgery immediately and directed her staff to make calls to other hospitals to initiate transfer requests. Spalding Hospital’s unit secretary stated that she could have multiple transfer requests pending at any given time. Despite Dr. Abdul-Samed’s prior conversation with Dr. Seiler, there was no attempt, however, to call Piedmont Hospital until sometime after 2:45 a.m., more than an hour after the transfer requests were initiated.-

Moreover, while Spalding Hospital’s unit secretary averred that she generally had to wait for hospitals to return their calls, Dr. Abdul-Samed stated that she spoke to Dr. Seiler one to two hours before the official acceptance, which occurred at 7:30 a.m. In other words, Dr. Abdul-Samed spoke to Dr. Seiler at approximately 5:30 or 6:30 a.m., or three to four hours after Piedmont Hospital was contacted concerning the transfer request. It is not clear from the record what actions Defendants took during this significant period of time in which Dr. Abdul-Samed waited to speak with Dr. Seiler to make the physician-to-physician request. Defendants did not present evidence that other hospitals were contacted, while the Daileys presented evidence that other hand surgeons were available at the time and were not contacted.

More troubling, Spalding Hospital’s protocols required that transfer requests be made to nearby hospitals, such as the Medical Center of Central Georgia. While Dr. Abdul-Samed believed that the Medical Center of Central Georgia was called, there was contrary evidence that no call was made. Significantly, the Medical Center of Central Georgia stated that it never received a call from Spalding Hospital concerning a transfer request for Mr. Dailey, and that it would have accepted a transfer since a hand surgeon would have been available to treat Mr. Dailey. The failure to contact Piedmont Hospital sooner and the failure to contact Medical Center of Central Georgia at all caused an unnecessary delay in providing the required treatment to Mr. Dailey.

The circumstances in this case are similar to those found in Crewey v. American Medical Response of Ga., 303 Ga. App. 258, 259-261, 263 (692 SE2d 851) (2010), where we ruled that an ambulance company was not entitled to summary judgment after claiming immunity under OCGA § 31-11-8 (a). In Crewey, the plaintiff suffered a heart attack and presented to a medical center, where a cardiologist ordered that the plaintiff be transferred to another facility because the medical center did not have the resources to treat the plaintiff. Id. at 259. The medical center contacted an ambulance company, but the ambulance company delayed in providing the necessary transportation. Id. at 259-261. The plaintiff, who suffered significant heart damage, sued the ambulance company, alleging that the company was negligent in its failure to provide timely transportation. Id. at 258. We held that the ambulance company was not entitled to emergency-care immunity under OCGA § 31-11-8 because it was the company’s failure to provide the requisite care that allegedly led to the increased severity of the plaintiff’s heart damage. Id. at 262-263.

As in Crewey, the suit in this case is based upon allegations that Defendants failed to provide the requisite emergency care by not transferring Mr. Dailey to a hand surgeon in a more timely manner. Viewing the record evidence in a light most favorable to the Daileys, the evidence shows that Mr. Dailey’s prognosis worsened with the delay. While we express no opinion as to the question of Defendants’ liability, we conclude that there are factual questions as to Defendants’ actions during the time Mr. Dailey remained in the emergency room. The mere fact that Mr. Dailey remained in the emergency department while Defendants allegedly delayed in providing Mr. Dailey the requisite care does not automatically invoke application of OCGA § 51-1-29.5 (c). Although the evidence reflects that Mr. Dailey presented to the emergency room with an emergency condition, a question of fact exists as to whether Defendants’ actions in delaying necessary treatment constituted emergency medical care under OCGA § 51-1-29.5 (c), and the trial court erred in granting summary judgment to Defendants on this basis.

3. In light of our disposition of Division 2, we need not consider the Daileys’ remaining enumerations of error.

Judgment reversed.

Ray, J., concurs specially. Branch, J., concurs in judgment only.

RAY, Judge,

concurring specially.

On reconsideration I find it necessary to write separately because, although I agree that the trial court’s order granting summary judgment must be reversed, I do so for a different reason than that expressed by the majority.

Specifically, I disagree with Division 2 of Presiding Judge Miller’s opinion holding that a question of fact exists as to whether the Defendants’ actions in delaying necessary treatment constituted emergency medical care under OCGA § 51-1-29.5 (c).

In the present case, while the Defendants provided some care to Mr. Dailey upon his arrival to the Spalding Regional Hospital emergency department, it was their alleged lack of emergent care — namely, their delay in timely transferring him to a hand surgeon — that led to this suit. The Daileys argue, and Presiding Judge Miller’s opinion agrees, that a question of fact remains as to whether OCGA § 51-1-29. applies in the present case and whether the Defendants’ efforts to secure Mr. Dailey’s transfer to another hospital with an available hand surgeon constituted the “provision of emergency medical care.” Because I believe that the record shows that Mr. Dailey’s injury continued to be an emergency until he received surgery at Piedmont Hospital, I disagree.

When considering the meaning of a statute, we apply the following analysis:

First, courts should construe a statute to give sensible and intelligent effect to all of its provisions and should refrain, whenever possible, from construing the statute in a way that renders any part of it meaningless. Second, a court’s duty is to reconcile, if possible, any potential conflicts between different sections of the same statute, so as to make them consistent and harmonious. Third, in construing language in any one part of a statute, a court should consider the entire scheme of the statute and attempt to gather the legislative intent from the statute as a whole.

With these principles in mind, we note that OCGA § 51-1-29.5imposes a heightened burden of proof and lower standard of care only for health care liability claims arising from the provision of “emergency medical care.” Subsection (a) (5) of the statute defines “[e]mergency medical care” 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.

The plain language of this statute indicates that services provided by the Defendants were to be deemed “emergency medical care” until such time that Mr. Dailey was stabilized, and the absence of such services would not place his health or the proper functioning of his hand in serious jeopardy. The record shows that Mr. Dailey’s injury was not stabilized by the medical care he received at Spalding Regional Hospital, and that his injury continued to require emergency care that could only be provided by timely transferring him to another hospital. Specifically, he required surgery as soon as possible in order “to minimize the degree of secondary injury to the soft tissues” in his hand.

Further, “it is elementary that in all interpretations of statutes, the courts shall look diligently for the intention of the legislature [, and such intent shall be] determined from a consideration of the entire statute.” It is clear from a consideration of subsection (a) of the emergency medical care statute, OCGA § 51-1-29.5, that the legislature anticipated that a “[h]ealth care liability claim” arising out of the provision of emergency medical care in a hospital emergency department could include a claim against a health care provider or physician for departures from accepted standards of “professional or administrative services directly related to health care, which departure from standards proximately results in injury to or death of a claimant.” Defendants’ efforts to locate an available hand surgeon and coordinate a timely transfer of Mr. Dailey so that he might receive emergency surgery are certainly administrative services that fall under the category of “emergency medical care.”

I concur in the judgment reversing the trial court’s grant of summary judgment, however, because I believe that there exists a question of fact as to whether the claimants have demonstrated by clear and convincing evidence that the Defendants’ actions in locating and transferring Mr. Dailey to a hospital with an available hand surgeon constituted gross negligence under OCGA § 51-1-29.5 (c). The record shows that Dr. Abdul-Samed concluded that Mr. Dailey needed hand surgery and that such a surgeon was not available at Spalding Hospital by 1:30 a.m., but that Mr. Dailey was not transferred to Piedmont Hospital until after 9:43 a.m. Although Dr. Abdul-Samed instructed her staff to make calls to other hospitals to initiate transfer requests, the majority correctly notes that there is conflicting evidence in the record as to what efforts were made to locate available hand surgeons in nearby hospitals, particularly the Medical Center of Central Georgia. Further, the record contains little evidence to explain the significant delay in transferring Mr. Dailey to Piedmont Hospital. Accordingly, I concur in the majority’s opinion in judgment only.

Decided November 28, 2012

Reconsideration denied December 14, 2012

Reynolds, Horne & Survant, W. Carl Reynolds, Bradley J. Survant, for appellants.

Carlock, Copeland & Stair, Eric J. Frisch, for appellees.

       The Daileys also named other defendants who had been dismissed from the suit and are not parties to the appeal.

       The time of this call is not in the record. Dr. Abdul-Samed could not recall what time the call was made, and conceded that her staff did a “poor” job documenting its calls.

       The Daileys acknowledge that the Supreme Court has upheld the constitutionality of OCGA § 51-1-29.5. See Gliemmo v. Cousineau, 287 Ga. 7, 12-13 (4) (694 SE2d 75) (2010). The Daileys nevertheless argue that the Supreme Court did not address their vagueness challenge as to the definition of “emergency medical care.” In any event, we cannot transfer the case to the Supreme Court for consideration of the Daileys’ constitutional claim since the trial court did not distinctly rule on the issue below.

       OCGA § 31-11-8 (a) provides:
      Any person, including agents and employees, who is licensed to furnish ambulance service and who in good faith renders emergency care to a person who is a victim of an accident or emergency shall not be liable for any civil damages to such victim as a result of any act or omission by such person in rendering such emergency care to such victim.

       The majority opinion thus decides only the issues in this case and may not be cited as binding precedent pursuant to Court of Appeals Rule 33 (a).

       (Citation omitted.) Fulton County v. Colon, 316 Ga. App. 883, 887 (2) (730 SE2d 599) (2012).

       OCGA § 51-1-29.5 (c).

       (Citation and punctuation omitted.) Dept. of Human Resources v. Hutchinson, 217 Ga. App. 70, 72 (1) (456 SE2d 642) (1995).

       Specifically, OCGA § 51-1-29.5 (a) (9) provides:
      “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.
      The statute then defines “[professional or administrative services” as “those duties or services that a physician or health care provider is required to provide as a condition of maintaining the physician’s or health care provider’s license, accreditation status, or certification to participate in state or federal health care programs.” OCGA § 51-1-29.5 (a) (18).

       Gross negligence has been defined as “equivalent to the failure to exercise even a slight degree of care, or lack of diligence that even careless men are accustomed to exercise.” Johnson v. Omondi, 318 Ga. App. 787, 791 (736 SE2d 129) (2012).