author: Ellington, Presiding Judge.

text:
    A14A1905.
    SANUSI v. COMMUNITY & SOUTHERN BANK.
    (766 SE2d 815)
   Ellington, Presiding Judge.

Community & Southern Bank auctioned David Sanusi’s property at foreclosure and then initiated confirmation proceedings. After a hearing, the Superior Court of Douglas County determined that the bank failed to prove that the property brought its true market value at the foreclosure sale and denied the bank’s application for confirmation. In a subsequent order, the court granted the bank’s motion for permission to resell the property. Sanusi appeals, contending that the trial court lacked jurisdiction over the bank’s motion to resell the property and that the trial court abused its discretion in finding “good cause” for a resale of the property. For the reasons explained below, we affirm.

1. Sanusi contends that the issue of resale is always before the court in a confirmation proceeding. He contends that the trial court’s order denying the bank’s application for confirmation of the foreclosure, which was entered on September 3, 2013, was a final order and that “the trial court had no authority to continue to issue rulings after a final order had been entered which concluded the proceedings.” He contends that the bank’s separate motion for resale, filed September 17, 20.13, was “untimely.”

By arguing that the issue of resale is always before the court in a confirmation proceeding and that the September 3,2013 order was a final order that disposed of all matters that were before the trial court, Sanusi implicitly posits that, although the September 3, 2013 order was silent on the issue of whether the bank had shown good cause for a resale, the order effectively prohibited any resale. In that case, the bank’s motion for resale must be construed as a motion to modify that “final order” so as to permit a resale. It is well settled that

[a] trial judge has the inherent power during the same term of court in which the judgment was rendered to revise, correct, revoke, modify or vacate the judgment, even upon his own motion. Moreover, this inherent power may be extended beyond the term in which a judgment was entered when a motion [to modify, revoke, or vacate the judgment] is filed within that same term of court.

(Citations and punctuation omitted.) Todd v. Todd, 287 Ga. 250, 253 (2) (703 SE2d 597) (2010). Because the bank filed its motion within the term of court that the order denying confirmation was entered, the trial court was authorized to exercise its inherent power to modify the nonconfirmation order to address the issue of resale. Id.

2. Sanusi contends that the stated basis for the resale order, which was that the bank “relied in good faith on a flawed appraisal,” does not support the trial court’s ruling because the appraisal was not flawed. This argument lacks merit.

The record shows that the bank bought the subject property at the foreclosure auction for $1.4 million. It based its bid on an appraisal authored by Jerry Smith. After receiving evidence at the confirmation hearing, which included the testimony of another appraiser who valued the property at $1,535,000, the trial court determined that the true value of the property was at least $1.5 million. The trial court noted that the two appraisers had differing opinions regarding whether and to what extent certain unfinished storage space contributed to the total value of the property.

Sanusi contends that Smith’s appraisal was not “flawed” merely because of this difference in “opinion.” As to value, however, the question in a confirmation proceeding is whether the foreclosure sale brought the fair market value of the property to be applied to the debt secured by the property. Community & Southern Bank v. DCB Investments, 328 Ga. App. 605, 608 (1) (760 SE2d 210) (2014). Because the trial court found that Smith’s appraisal undervalued the property, it did not err in characterizing the appraisal as “flawed.”

3. Sanusi contends that the bank’s good faith reliance on a flawed appraisal does not as a matter of law constitute “good cause” to order a resale under the applicable standard and that the trial court therefore erred in granting the bank’s motion.

OCGA § 44-14-161 (c) “confers upon the trial court broad legal discretion to grant or deny a resale.” (Citations omitted.) RES-GA LJY, LLC v. Y. D. I., Inc., 322 Ga. App. 607, 608 (745 SE2d 820) (2013). We will not disturb a trial court’s exercise of such discretion “unless it is clearly, patently, and manifestly abused. . . . An abuse of discretion occurs where a ruling is unsupported by any evidence of record or where that ruling misstates or misapplies the relevant law.” (Citations and punctuation omitted.) Id. at 609.

“[T]here is no presumption in favor of resale and there is no entitlement to a resale[,]” either “for mere failure to show the sale brought true market value, for a mere ‘flawed’ appraisal, or for any reason.” (Citations and punctuation omitted.) Resolution Trust Corp. v. Morrow Auto Center, 216 Ga. App. 226, 228 (2) (454 SE2d 138) (1995). As we noted in that case, holding that a lender is entitled to a resale whenever confirmation is denied “would obliterate the statute, would remove the trial court’s discretion, and would encourage creditors to engage in any unfair practice at foreclosure sale, with the only penalty being a possible resale.” Id. at 227. Although a finding that, in buying property at foreclosure for less than its true market value, a buyer in good faith based its bid on an appraisal does not mandate resale, however, it can authorize a trial court to find good cause for resale. Adams v. Gwinnett Commercial Bank, 238 Ga. 722 (235 SE2d 476) (1977) (Where the trial court found that the creditor proved by a preponderance of the evidence that it had acted in good faith by having the property appraised before the foreclosure sale, the trial court did not abuse its discretion in ordering a resale.).

Decided December 4, 2014.

Foreclosure. Douglas Superior Court. Before Judge Emerson.

Schreeder, Wheeler & Flint, John A. Christy, Kelly L. Walsh, for appellant.

Stites & Harbison, Melinda Agee, for appellee.

Nothing in the record in this case indicates that the trial court failed to exercise its discretion out of a belief that the bank was entitled to a resale merely because it had relied on a flawed appraisal. Rather, the trial court found that the bank relied on a flawed appraisal in good faith and that the bank had shown good cause for a resale. Sanusi does not contend that the bank engaged in any unfair practice in connection with the foreclosure sale, such that the trial court should have penalized it by denying a resale. Because Sanusi has not shown either that the trial court’s ruling was unsupported by any evidence of record or that its ruling misstated or misapplied the relevant law, we cannot find that the trial court clearly, patently and

manifestly abused its discretion. Greg A. Becker Enterprises v. Summit Investment Mgmt. Acquisitions I, 314 Ga. App. 721, 723-724 (1) (725 SE2d 841) (2012); The Village at Lake Lanier v. State Bank & Trust Co., 314 Ga. App. 498, 499-501 (1) (724 SE2d 806) (2012); Gutherie v. Ford Equip. Leasing Co., 206 Ga. App. 258, 261 (2) (424 SE2d 889) (1992).

Judgment affirmed.

Phipps, C. J., and McMillian, J., concur.

        See Nicholson Hills Dev. v. Branch Banking & Trust Co., 316 Ga. App. 857, 861 (2) (730 SE2d 572) (2012) (“The issue of resale is before the court in every confirmation proceeding, whether or not it has been specifically pled, hut only so long as the debtor is afforded the opportunity to defend against a resale.”) (citations and punctuation omitted). See footnote 4, infra.

       OCGA § 44-14-161 (c) (After a confirmation hearing, “[t]he court may order a resale of the property for good cause shown.”).

       See OCGA § 15-6-3 (15.1) (Douglas County Superior Court terms of court commence on the second Monday in April and October).

       As the bank notes, a debtor is entitled to an opportunity to defend against a resale. See Nicholson Hills Dev. v. Branch Banking & Trust Co., 316 Ga. App. at 861 (2). The record shows that Sanusi was afforded an opportunity to file pleadings in opposition to the bank’s motion and to present evidence on the resale issue at a hearing.

       OCGA § 44-14-161 (b) (At a confirmation hearing, “[t]he court shall require evidence to show the true market value of the property sold under the powers and shall not confirm the sale unless it is satisfied that the property so sold brought its true market value on such foreclosure sale.”).

       But see Damil, Inc. v. First Nat. Bank of Dalton, 165 Ga. App. 678 (302 SE2d 600) (1983) (“[T]he law is that a failure to sell for the true market value is good cause to order a resale.”); Homes of Tomorrow, Inc. v. Fed. Deposit Ins. Corp., 149 Ga. App. 321, 323 (4) (254 SE2d 475) (1979) (The trial court’s determination that the property “did not bring its true market value as of the date of the foreclosure sale ... in itself constituted good cause for ordering a resale.”) (citation omitted; emphasis supplied); Adams v. Gwinnett Commercial Bank, 140 Ga. App. 233, 234 (2) (230 SE2d324) (1976) (“Afailure to sell for the true market value constitutes good cause for ordering a resale.”) (citation omitted), affirmed, 238 Ga. 722 (235 SE2d 476) (1977); Davie v. Sheffield, 123 Ga. App. 228, 229-230(180 SE2d 263) (1971) (The reasons for which a court may order a resale include the failure of the sale to bring the property’s true market value, illegality of the notice, illegality of the advertisement, and irregularity of the sale.).

       See also Greg A. Becker Enterprises v. Summit Investment Mgmt. Acquisitions I, 314 Ga. App. 721, 723-724 (1) (725 SE2d 841) (2012) (trial court did not abuse its discretion in finding good cause for resale where there had been no showing that creditor lacked good faith in conducting foreclosure proceedings and evidence supported finding that creditor did not intentionally bid less than property’s true market value at foreclosure sale); The Village at Lake Lanier, LLC v. State Bank & Trust Co., 314 Ga. App. 498, 499-501 (1) (724 SE2d 806) (2012) (trial court did not abuse its discretion in finding good cause for resale where the evidence showed that the lender acted in good faith by having the property appraised prior to the sale and the failure to sell for fair market value was not brought about by any intentional act of the lender); McDowell v. Regions Bank, 311 Ga. App. 600, 601 (716 SE2d 638) (2011) (trial court did not abuse its discretion in finding good cause for resale where the record showed that the lender did not act in bad faith and that the property failed to sell for its true market value); Gutherie v. Ford Equip. Leasing Co., 206 Ga. App. 258, 261 (2) (424 SE2d 889) (1992) (trial court did not abuse its discretion in finding good cause for resale where creditor proved that it obtained an appraisal, albeit a “fatally flawed” one, before the sale and sold the property for an amount equal to that appraisal); cf. RES-GA LJY, LLC v. Y. D. I., Inc., 322 Ga. App. at 608-610 (trial court did not abuse its discretion in denying resale where creditor showed that it relied upon an appraisal to sell the property for less than its true market value but where trial court found that a cursory review of the appraisal would have alerted creditor to the numerous errors contained therein).


source: Caselaw Access Project

author: ELLINGTON, Presiding Judge.

license: Public Domain

text:
    A15A0349.
    NATIONSTAR MORTGAGE LLC v. BRUNT.
    (766 SE2d 818)
   ELLINGTON, Presiding Judge.

Nationstar Mortgage LLC (“Nationstar”) appeals from the consent order and final judgment in this case, challenging an order of the Superior Court of DeKalb County appointing a special master and a separate order directing Nationstar to pay the special master’s fees. Nationstar contends that the trial court abused its discretion in appointing the special master to investigate and to hear the case and to make recommendations to the court. It also contends that the fees awarded to the special master are excessive. Finding no error, we affirm.

1. A trial court is authorized to refer a portion of litigation pending before it to a special master pursuant to Uniform Superior Court Rule (USCR) 46, and the exercise of the trial court’s discretion to do so will not be interfered with by appellate courts absent an abuse of that discretion. See Alston & Bird v. Mellon Ventures II, 307 Ga. App. 640, 646-647 (6) (a) (706 SE2d 652) (2010). Rule 46 provides, in relevant part:

Unless a statute provides otherwise, upon the motion of any party or upon the court’s own motion, the court of record may appoint a [special] master: (a) to perform duties consented to by the parties; (b) to address pretrial and post-trial matters that the court cannot efficiently, effectively or promptly address; (c) to provide guidance, advice and information to the court on complex or specialized subjects, including, but not limited to, technology issues related to the discovery process; (d) to monitor implementation of and compliance with orders of the court or, in appropriate cases, monitoring implementation of settlement agreements; (e) to investigate and report to the court on matters identified by the court; (f) to conduct an accounting as instructed by the court and to report upon the results of the same; (g) upon a showing of good cause, to attend and supervise depositions conducted outside of the jurisdiction; and (h) to hold trial proceedings and make or recommend findings of fact on issues to be decided by the court without a jury if appointment is warranted by (i) some exceptional condition, or (ii) the need to perform an accounting, to resolve a difficult computation of damages or if the matter involves issues for which a special substantive competence would be beneficial.

USCR 46 (A) (1).

The record shows that, after giving the parties an opportunity to object to the appointment of a special master and to be heard thereon, the superior court concluded that the litigation involved errors in the legal descriptions of several deeds dating back to 1971, errors which were only recently discovered. The court noted that the reformation sought was not one seeking to correct a simple clerical error in a current conveyance, but, rather, one involving a series of errors dating back four decades and which involved persons in the chain of title who were not parties to the current action. A review of the report of the special master supports the court’s conclusion that the matter would benefit from the involvement of one with special substantive competence. The special master found “numerous problems in numerous deeds, ... a faulty beginning point, a call with no direction, a defective survey[,] and the fact that there was no definitive description of which portion of the metes and bounds description was in which of the two subdivision lots.” The special master recommended that the court reject Nationstar’s initial proposed consent agreement with defendant Maria Brunt, who was not represented by counsel, “because of the vagueness and defects in the legal description in the chain of title,” as the special master described in detail in his factual findings.

The court also concluded that using a special master in the case would facilitate a cost-effective and expeditious resolution of the matter, citing previous experience with the same special master in a similar case. Indeed, a review of the record in this case shows that the special master investigated the case, facilitated discovery of documents, held a hearing, and made recommendations to the parties and to the court, permitting the matter to be resolved by a consent judgment in less than four months from the date of the special master’s final, post-objection appointment. To the extent that there were delays in the case, it appears from the record that they are attributable either to Nationstar’s objections to the appointment of the special master or to Nationstar’s failure to timely provide the special master with requested documents.

Given this evidence, we find no abuse of discretion in the trial court’s order appointing a special master. See Alston & Bird v. Mellon Ventures II, 307 Ga. App. at 646-647 (6) (a).

2. Nationstar contends that the $7,235 fee award to the special master was unreasonable in that the amount requested was “exorbitant,” the special master’s bill was not itemized, and the bill included a request for payment for services beyond the scope of the appointment order. We disagree.

The record contains the special master’s response to Nationstar’s objection to the request for fees, and the response contains an itemized bill setting forth both the fees for the special master’s services as well as those of his paralegal. The bill accounts for activities of the special master, including, for example, requesting (more than once) documents from Nationstar, preparing affidavits, responding to objections, filing notices to produce, reviewing the case file, reviewing documents (deeds, surveys, title reports, and subdivision plats), conducting pre-hearing conferences, writing letters to counsel, revising proposed consent orders, conducting a hearing, and preparing recommendations to the court. There is nothing on the face of this bill, nor is there any record evidence to which Nationstar cites in its appellate brief, from which we can infer that the amount of fees requested is excessive or was for any service not specifically authorized in the court’s appointment order.

Nationstar also complains that the special master expanded the scope of the proceedings “beyond the initial pleadings” and independently investigated the facts. However, the court’s appointment order expressly granted the special master the power to investigate, to take evidence, and to make factual findings. Nationstar argues that this matter did not need investigation, that the matter was simple: “[Nationstar] simply wanted to insure that it encumbered all the land Ms. Brunt had, whatever land that might be, and Ms. Brunt agreed with that intention.” As the special master explained, however, signing off on a proposed consent order between Nationstar and the borrower did not satisfy his obligation to the court or to the parties. Rather, it was to ensure that the matter was resolved correctly, fairly, and finally. The final consent judgment indicates that such resolution required correcting several legal documents, accounting for erroneous legal descriptions and for missing conveyances, as well as directing the Clerk of Court to cross-reference the final consent order with numerous pages of official Deed Books.

Decided December 4, 2014.

Rubin Lublin, Peter L. Lublin, Tenise A. Cook, Bret J. Chaness, for appellant.

Maria Brunt, pro se.

Nationstar has not carried its burden of affirmatively demonstrating that the award of fees was excessive or improper. “[W]hen the burden is not met, the judgment complained of is assumed to be correct and must be affirmed.” (Citation and punctuation omitted.) White v. Arthur Enterprises, Inc., 219 Ga. App. 124 (2) (464 SE2d 225) (1995). Consequently, we find no error.

Judgment affirmed.

Dillard and McFadden, JJ., concur.

       USCR 46 (A) (3) provides:
      In appointing a [special] master, the court should consider the fairness of imposing the likely expenses on the parties and should protect against unreasonable expense and delay, taking into account the burdens and the benefits such an appointment would produce. The appointment of a special master shall not deprive any party of access to the courts or the civil justice system.

       Nationstar argues that the court did not consider the itemized hill when making its decision because the court entered its order on the same day that the special master filed his response and the court’s order states only that it reviewed “the Motion and attachments to same.” Given that “the Motion and attachments to same” could be construed to include all of the documents within the breast of the court pertinent to the motion at the time the court made its decision (which included the special master’s itemized bill), and given the presumption in favor of the regularity of proceedings below, we find this argument without merit. See Anthony v. U. S. Bank Nat. Assn., 284 Ga. App. 765, 766 (645 SE2d 12) (2007) (“On appeal, there is a presumption in favor of the regularity and legality of all proceedings in the trial court.”) (citation and punctuation omitted). As such, “[t]his court will not presume the trial court committed error where that fact does not affirmatively appear.” (Citations and punctuation omitted.) Robenolt v. Chrysler Financial Svcs. Corp., 201 Ga. App. 168, 169 (2) (410 SE2d 365) (1991) (rejecting claim that trial court erred in granting writ of possession without holding trial when record did not affirmatively show whether trial was held and, if so, whether appellant was present).


author: BARNES, Presiding Judge.

text:
    A14A0785.
    WIGGINS v. THE STATE.
    (767 SE2d 798)
   BARNES, Presiding Judge.

A jury convicted Rebecca Wiggins of sexual exploitation of children, aggravated sodomy, child molestation, and cruelty to children in the first degree, and after merging the last two offenses with the sodomy offense, she was sentenced to life in prison on the aggravated sodomy count and twenty years consecutively on the exploitation count. On appeal, she enumerates seven errors, contending among other things that the evidence was insufficient and that the trial court erred in failing to exercise its discretion under OCGA §§ 5-5-20 and 5-5-21. Although the evidence was sufficient, the trial court did not exercise its discretion and weigh the evidence under the general grounds. Accordingly, we must vacate the denial of Wiggins’ motion for new trial and remand for further proceedings that are consistent with this opinion.

Wiggins was indicted on four counts: (1) sexual exploitation of children between November 17, 2001 and November 16, 2003 for using and enticing a minor, N. G., to lewdly exhibit her genitals for the purpose of producing a photograph; (2) for aggravated sodomy between February 25, 2004, and September 30, 2004, by aiding and encouraging David Ray to perform an act of sodomy with N. G., who was younger than ten; (3) for child molestation during the same time period as count 2 by taking N. G. to Ray’s home and holding her while Ray sodomized the child; and (4) for cruelty to children in the first degree during the same time period as counts 2 and 3 by causing N. G. excessive mental pain by taking her to Ray’s home and holding her hand while Ray sodomized the child.

When determining whether the State presented sufficient evidence to support a criminal conviction,

[w]e view the evidence in the light most favorable to the jury’s verdict, and the defendant no longer enjoys the presumption of innocence. We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the essential elements of the crime beyond a reasonable doubt.

Valentine v. State, 301 Ga. App. 630, 630-631 (689 SE2d 76) (2009).

So viewed, the evidence at trial established that N. G. and her younger sisters T. W. and M. W. first came to the attention of authorities in Savannah when the police responded to a “domestic violence with an injury” call. The children’s mother had a red mark on her face, as if someone had hit her, and the children recounted that the mother’s boyfriend, Cesar Moran, had been hitting the mother. After Moran was arrested and placed in the patrol car, T. W. and N. G. approached an officer and reported that Moran had been molesting them. Because under police department rules only a Special Victims’ Unit (SVU) officer could take out a warrant against Moran for molestation, Moran was charged only with misdemeanor battery and was allowed to bond out of jail before additional charges were brought against him.

A Savannah SVU detective assigned to the case interviewed the two older girls, N. G. and T. W., two days later. T. W., who was eight then, made reference to several men involved in their lives: David Wiggins, David Ray, and Moran. Specifically, T. W. disclosed that Ray was her mother’s “sugar daddy” and had bought her new clothes for school, then described the physical altercation with Moran that led to the police being called. She further disclosed that three men had molested her, beginning when she was five with David Wiggins, who is the defendant Rebecca Wiggins’ brother and had previously lived with the children and their mother but was in j ail when the girls were being interviewed. T. W. then talked about having to spend the night with Ray at his house in Marietta, and Ray having taken pictures of her private area.

The detective then interviewed N. G., who was eleven then. N. G. said Moran had not molested her, only hit her, but that David Wiggins had anally sodomized her for “[q]uite a few years,” beginning when she was seven. When the detective asked about Ray, N. G. sat quietly for a time, then went back to talking about David Wiggins.

The detective obtained an arrest warrant for Moran for child molestation, and eventually U. S. Marshals tracked him to a country outside the United States. The warrant was outstanding as of the trial in August 2011. In December 2008, N. G. told her therapist that she was excited about the defendant, her “Aunt Becka,” coming to visit, and named her aunt as someone on her “safe place list.” Then in January 2009, the therapist referred to the girls’ intake notes and asked N. G. to tell her about Ray. N. G. went white and asked how the therapist knew about him. After the therapist responded that N. G.’s sister had made some disclosures about Ray, N. G. for the first time disclosed that the defendant used to obtain money from Ray in exchange for N. G. performing sexual acts with him.

The therapist testified that N. G. said her mother also obtained money from Ray and described a weekend when Ray took N. G. and T. W. shopping for new school things in exchange for her and T. W. staying overnight at Ray’s house while her mother and youngest sister stayed at a motel. N. G. said she locked the girls’ bedroom door but Ray got inside the room anyway. At the next therapy session, N. G. disclosed that Ray had anally sodomized T. W. that night, and said, “I didn’t know how to help her or what to do.”

N. G. told the therapist that she and her sisters lived with the defendant for about two years while her mother was incarcerated. She said the defendant would tell her they “were going to get two hundred to three hundred to four hundred dollars, and all I had to do was give [Ray] blow jobs,” although at the time she was only seven and did not know what that meant. N. G. reported that the defendant took naked pictures of her and gave them to Ray. The therapist testified that N. G. said that the defendant told her about being molested by her drunken father and other abuse she had suffered as a child. Finally in a session in mid-February 2009, N. G. told her therapist that she had been to Ray’s house six or eight times, and described one incident during which the defendant bathed her in Ray’s tub and placed her on Ray’s bed, where he tried unsuccessfully to penetrate her anally. N. G. told her therapist that the defendant held her hand and told her it would be okay, and then Ray placed his mouth on N. G.’s vagina. N. G. described other sexual acts she performed on Ray, and described his house in great detail, details later confirmed by other witnesses.

The girls were interviewed a second time by another specialist in February 2009 because of their continued disclosures during therapy. In a subsequent session N. G. said that the defendant told her not to tell what was going on with Ray because the defendant would go to jail, the girls would go into county custody, and they would never see their mother again. The defendant told N. G. that if she did not perform sexual acts with Ray, the family would have no food and would lose their house.

Ray’s wife testified that in March 2009, she was out of town when Ray called to tell her he was going to be accused of child molestation. When she returned home, he told her he had been “involved” with a family composed of a mother, an aunt, a boyfriend, and two girls who were accusing him of molestation. He also told his wife that he had let them come to the house and then gave them money to get an apartment because the mother was a drug addict and the children were going to be taken from her. Shortly after this disclosure, the police executed a search warrant at Ray’s house, and on April 4,2009, Ray killed himself in his back yard with a shotgun.

A records custodian from Western Union authenticated documents showing that Ray had transferred money to both the defendant and the children’s mother. A detective reviewed the Western Union data and determined that Ray sent the mother a total of $54,568 beginning in June 2005, and sent the defendant a total of $9,085 beginning in March 2004 and ending in December 2008.

The State played portions of N. G.’s two forensic interviews during the direct examination of the interviewers, and Wiggins played the entire first interview. N. G. testified, confirming what she said in the interviews and to her therapist. For example, she testified that when she was six or seven, her aunt took photographs of her naked with her legs spread and gave them to Ray. In 2004, N. G.’s mother went to jail and the girls lived with the defendant, who took N. G. to Ray’s house eight to ten times, where he would touch her vagina and try to insert his private part in her butt while the defendant was present. The defendant bathed N. G. beforehand, told her that it would not hurt, and held her hand while Ray sodomized her. The defendant moved to Savannah with the three girls, where David Wiggins lived with them for a time and molested N. G. until he went to jail in 2008 and N. G. went into foster care. (Wiggins was the father of N. G.’s youngest sister, M. W.) N. G. initially did not tell her therapist about Ray because she had promised the defendant that she would not do so.

After the Savannah detective interviewed David Wiggins in July 2009, she administratively closed her investigation of him by referring the case to the district attorney’s office and requesting that he be arrested, but that office did not want her to take out a warrant. An arrest warrant for the children’s mother was outstanding as of trial, as was the warrant against Moran. This defendant is thus the only party involved in these crimes who had been prosecuted as of her trial in August 2011.

(a) In arguing that the evidence was insufficient to sustain the convictions, Wiggins first notes that the State never introduced any photographs to support the charge of sexual exploitation of children by enticing N. G. to engage in a lewd exhibition of her genitals to produce a photograph. N. G. testified that Wiggins used a Polaroid camera to take photographs of her with her legs spread and then sent the pictures to Ray, and that evidence is sufficient to sustain that conviction.

(b) As to the counts of aggravated sodomy, child molestation, and cruelty to children, which were merged for sentencing, Wiggins argues that the indictment accused David Ray of performing the actual act of sodomy, and therefore Wiggins’ convictions were “presumably based upon her being a party to the crime.” While N. G. testified that the acts took place at Ray’s home, Wiggins argued that N. G. could have become familiar with the house when her mother took her there and her sister was molested, and that coupled with the evidence that Wiggins was molested as a child and had sex with Ray for money, “you have more prejudicial facts than probative ones, not to mention the lapse of time from the events to trial and the intervening molestations by two other men.”

“Resolving evidentiary conflicts and inconsistencies and assessing witness credibility are the province of the fact finder, not the appellate court.” Browner v. State, 296 Ga. 138, 141 (765 SE2d 348) (2014). The above-summarized evidence was sufficient to authorize a rational trier of fact to find appellant guilty beyond a reasonable doubt of the offenses charged as a party to the crimes. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

(c) Wiggins also argues that the trial court’s standard of review was erroneous on her challenge to the verdict on the general grounds. Wiggins asserted in her initial motion for new trial the general grounds that the verdict was “decidedly and strongly against the weight of the evidence” and that it was “contrary to the law and principles of justice and equity.” She also argued that the evidence against her was insufficient to sustain the convictions. In its order denying Wiggins’ motion for a new trial, the trial court applied only the Jackson v. Virginia standard in rejecting her assertions as follows:

The evidence was sufficient to support the verdict. . . . Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979); OCGA § 5-5-20; OCGA § 5-5-21. See also Valentine v. State, 301 Ga. App. 630 [(689 SE2d 76)] (2009) (mother of victims properly convicted of child molestation and aggravated child molestation for aiding and abetting housemate in sexual abuse of children).

When considering a motion for new trial, the trial court must apply different standards of review for claims that the evidence was insufficient and claims made under “the general grounds.” These standards “address two distinct legal issues, illustrated by the fact that the double jeopardy clause applies when a court finds the evidence insufficient, but not when a court holds that the verdict was against the weight of the evidence.” Manuel v. State, 289 Ga. 383, 386-387 (2) (711 SE2d 676) (2011).

Even when the evidence is legally sufficient to sustain a conviction, a trial judge may grant a new trial if the verdict of the jury is “contrary to . . . the principles of justice and equity,” OCGA § 5-5-20, or if the verdict is “decidedly and strongly against the weight ofthe evidence.” OCGA § 5-5-21. When properly raised in a timely motion, these grounds for a new trial — commonly known as the “general grounds” — require the trial judge to exercise a broad discretion to sit as a “thirteenth juror.” In exercising that discretion, the trial judge must consider some of the things that she cannot when assessing the legal sufficiency ofthe evidence, including any conflicts in the evidence, the credibility of witnesses, and the weight of the evidence. Although the discretion of a trial judge to award a new trial on the general grounds is not boundless — it is, after all, a discretion that should be exercised with caution and invoked only in exceptional cases in which the evidence preponderates heavily against the verdict, — it nevertheless is, generally speaking, a substantial discretion.

(Citations and punctuation omitted.) White v. State, 293 Ga. 523, 524 (2) (753 SE2d 115) (2013); see also Walker v. State, 292 Ga. 262, 264 (2) (737 SE2d 311) (2013); Alvelo v. State, 288 Ga. 437, 439 (1) (704 SE2d 787) (2011) (“Only the trial court is authorized by law to conduct... an assessment” of the witnesses’ credibility in reviewing a motion for new trial brought pursuant to OCGA § 5-5-21.).

Decided November 18, 2014

Reconsideration denied December 5, 2014

Gary W. Jones, for appellant.

The trial itself was conducted by the Honorable G. Grant Brantley and a different judge reviewed Wiggins’ motion for new trial. But while the discretion of the second judge in weighing the evidence is “narrower in scope” than the presiding judge’s would be, State v. Harris, 292 Ga. 92, 95 (734 SE2d 357) (2012), “after a thorough review of the case, even a successor judge may exercise a significant discretion to grant a new trial on the general grounds.” White, 293 Ga. at 525 (2), n. 4.

Here, there is no evidence that the successor judge exercised discretion, weighed the evidence, and determined as the “thirteenth juror” whether the verdict was against the great weight of the evidence or offended the principles of justice and equity. The order denying Wiggins’ motion for new trial shows that the trial court made only the legal determination that the evidence was sufficient under the standards of Jackson v. Virginia.

The State, however, argues that the trial court’s citation to OCGA §§ 5-5-20 and 5-5-21 was an express indication that it reviewed the evidence under the discretionary standards of those statutes. To the contrary, the trial court’s citation to these statutes is immediately preceded by the explicit legal finding that the evidence was sufficient to support the verdict and a citation to Jackson v. Virginia, and is immediately followed by a citation to Valentine, 301 Ga. App. 630, a case that addressed only the legal standard of sufficiency of the evidence under Jackson v. Virginia. The trial court’s citation to Valentine further reflects that the court did not exercise its discretion and weigh the evidence in addition to determining its legal sufficiency.

Accordingly, we vacate the judgment and remand this case to the trial court for consideration of the motion for new trial under the appropriate discretionary standard. Due to this holding, it is unnecessary for us to address the remaining enumerations of error at this time.

Judgment vacated and case remanded with direction.

Boggs and Branch, JJ., concur.

D. Victor Reynolds, District Attorney, Daniel J. Quinn, Assistant District Attorney, for appellee.

       While the recorded interviews were not transcribed when they were played during the trial, this Court has reviewed the recordings themselves.


text:
    A14A0866.
    HOSPITAL AUTHORITY OF VALDOSTA/LOWNDES COUNTY et al. v. BRINSON.
    (767 SE2d 811)
   BARNES, Presiding Judge.

This medical malpractice case addresses the applicability of the emergency room (ER) statute, OCGA § 51-1-29.5, which requires a plaintiff to show clear and convincing evidence of gross negligence to recover for claims arising out of the provision of emergency medical care. The trial court in this case granted partial summary judgment to the plaintiff, finding that the ER statute did not apply because the patient had been stable and non-urgent when seen and received no emergency care.

The defendants appealed, arguing that the “actual condition” of the plaintiff is determinative and that the trial court erred in “relying on the subjective belief” of the plaintiff that the baby who presented to the ER only had a cold when the evidence establishes that the baby had a “life-threatening medical condition.” Because the baby needed emergency medical care he did not receive, they argue, they are entitled as a matter of law to the greater protection of the ER statute.

We agree that the trial court erred in holding that the ER statute does not apply as a matter of law, and therefore reverse the grant of partial summary judgment to the plaintiff. We affirm the trial court’s denial of summary judgment to the defendants, however, finding a question of fact exists for a jury to determine whether the gross negligence standard of the ER statute applies in this case, and whether the defendants breached whatever standard of care the jury finds applicable.

1. As an initial matter, we note that the plaintiff devotes much of her brief to arguing that the defendants must automatically lose because they did not designate the entire record in their notice of appeal, omitting at least three depositions despite the trial court’s recitation that it had reviewed all of the record before granting partial summary judgment to the plaintiff. Additionally, the plaintiff correctly notes that the defendants’ notice of appeal was not in proper form because they designated items to be included in the record rather than those to be omitted as directed by OCGA § 5-6-37.

The defendants subsequently moved this Court for permission to supplement the record with the three omitted depositions, admitting that the depositions had been filed with the trial court before it issued the order on appeal. They further argued that the supplementation would cause no delay and would cure any perceived defect in the record and allow this appeal to be decided on the merits. This Court granted the motion over the plaintiff’s procedural objection. At oral argument, the plaintiff further objected to this Court’s grant of the defendants’ motion to supplement the record.

“It is well settled that, on appeal, the burden is on the appellant to establish error.” (Citation and punctuation omitted.) Miller Grading Contractors v. Ga. Fed. Savings & Loan Assn., 247 Ga. 730, 734 (3) (279 SE2d 442) (1981).

[F]or the appellate court to determine whether the grant of summary judgment was erroneous, the appellant must include in the record those items which will enable the appellate court to ascertain whether a genuine issue of material fact remains or, if the record establishes there is no such issue of fact, whether the moving party is entitled to judgment as a matter of law.

Brown v. Frachiseur, 247 Ga. 463, 464 (277 SE2d 16) (1981). This Court has previously held that when a trial court states that it considered the entire record and an appellant omits some portion of the evidence upon which the court relied, we must affirm the trial court. See, e.g., Hooks v. Humphries, 303 Ga. App. 264, 268 (3) (692 SE2d 845) (2010); Armstrong v. Rapson, 299 Ga. App. 884, 885 (683 SE2d 915) (2009); Advanced Elec. System v. Turkin, 288 Ga. App. 799, 800 (655 SE2d 685) (2007); Roach v. Roach, 237 Ga. App. 264, 265 (514 SE2d 44) (1999); Regency Executive Plaza Unit Owner’s Assn. v. Wilmock, Inc., 237 Ga. App. 193, 194-195 (514 SE2d 446) (1999). We have also held more specifically that when the evidence omitted is something upon which the appellant relies in arguing on appeal that a material issue of fact exists, we must assume that the trial court’s judgment was correct. Ferros v. Ga. State Patrol, 211 Ga. App. 50, 51-52 (2) (438 SE2d 163) (1993) (omission of depositions that appellant cited in appellate brief required affirming trial court order).

On the other hand, “[i]t is permissible for an appellant to submit only a portion of the record below to this court,” although he remains obliged to demonstrate error by the record and cannot omit portions of the record that are material to deciding the specific issues raised on appeal. Rohatensky v. Woodall, 257 Ga. App. 801, 802 (1) (572 SE2d 354) (2002). Further, OCGA § 5-6-48 (d) grants this Court the authority, with or without a motion, to “require that additional portions of the record or transcript of proceedings be sent up... or take any other action to perfect the appeal and record so that the appellate court can and will pass upon the appeal and not dismiss it.” We exercised our statutory discretion in this case and granted the defendants’ motion to amend their notice of appeal and forward to this court the three depositions that were not previously included in the appellate record. Transcripts of those three depositions were subsequently forwarded to this court. Accordingly, we will address the merits of this appeal rather than automatically affirm the trial court without analysis because the defendants initially omitted deposition transcripts from the plaintiff’s three expert witnesses.

2. An appellate court’s “review of the grant or denial of summary judgment is de novo, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.” Abdel-Samed v. Dailey, 294 Ga. 758, 760 (1) (755 SE2d 805) (2014). In this case, both parties moved for summary judgment, and do not appear to dispute the basic underlying facts, only the application of law to those facts. That law provides:

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

OCGA § 51-1-29.5 (c) (emphasis supplied).

The statute defines “emergency 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.

OCGA § 51-1-29.5 (a) (5). The statute further specifically excludes from the definition of emergency medical care “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.” Id. Finally, in a medical malpractice case arising out of ER care, the statute directs the trial court to instruct the jury to consider:

(1) Whether the person providing care did or did not have the patient’s medical history or was able or unable to obtain a full medical history, including the knowledge of preexisting medical conditions, allergies, and medications;
(2) The presence or lack of a preexisting physician-patient relationship or health care provider-patient relationship;
(3) The circumstances constituting the emergency; and
(4) The circumstances surrounding the delivery of the emergency medical care.

OCGA§ 51-1-29.5 (d).

The defendants in this case contend that the plaintiff must show by clear and convincing evidence that they were grossly negligent because she brought her baby to the ER, he was triaged in the ER, and her experts say the baby needed immediate care. In contrast, the plaintiff contends she must show only regular negligence because, upon presentation to the ER, her baby was not suffering from an acute medical issue requiring immediate medical care and received no emergency care from the defendants.

Whether the gross negligence standard of OCGA § 51-1-29.5 (c) applies here depends on whether the baby was suffering from a medical condition that was manifested “by acute symptoms of sufficient severity, including severe pain, such that the absence of immediate medical attention could reasonably be expected to” seriously jeopardize the baby’s health or seriously impair his bodily functions, organs, or parts. OCGA § 51-1-29.5 (a) (5). A review of the record reveals that whether the baby’s medical condition was manifested by acute symptoms of sufficient severity that the health care providers should have rendered emergency care is a question that must be determined by the trier of fact.

Evidence in the record establishes that on June 30, 2010, Kur-renci Brinson was born more than two months early and weighed four pounds at birth. On August 7, 2010, the baby was seen by a pediatrician in the Youth Care department of South Georgia Medical Center (the hospital) and admitted to the hospital for treatment of pneumonia. Pediatricians staff the hospital Youth Care department, which has its own ER, but when the mother brought the baby to the hospital at 10:00 p.m. on September 24, 2010, Youth Care was closed.

The mother brought him to the hospital ER because, she testified, “he was a little fussy, and he was running a fever.” He was normally not a fussy baby but that day, his mother said, “[h]e was doing a lot more crying than normal,” and the child’s sitter had reported that the previous day the baby had a fever, diarrhea, poor oral intake, was sleeping more than normal, and had been cringing as if his belly hurt.

ER triage nurse Bonita Werts testified that while the mother told her about the baby’s symptoms, when she saw him he was playing with his mother and not crying or doing anything abnormal. When Werts examined him she thought he appeared to be a “normal baby.” He had urinated recently, had not vomited, his skin looked fine, his temperature was 99.2, which was not technically a fever, and he was smiling and acting appropriately, so after five minutes she assessed him as “4-Non-urgent” and took him into a “fast track” room to be seen by the physician’s assistant.

The nurse explained that patients were sent to “fast track” if they were “stable 3s to 4s and 5s” based on their assessed acuity levels. A patient’s acuity level could range from 1, which was life-threatening, to 5, which was “non-emergent,” and the level was measured based on the kinds of resources that the patient would require, such as IV injections, traction, CT scans, and other tests. Werts did not note in the baby’s history that he was premature, or that he had been admitted to the hospital a month earlier with pneumonia.

Physician’s assistant Bryan Shiver saw the baby next and testified in deposition that “he was a pretty healthy, normal child.” A physical examination revealed nothing unusual, and after spending eight minutes with the baby, Shiver diagnosed him as having allergic rhinitis or a cold. He prescribed an oral steroid medication and discharged the baby with instructions for the mother to make an appointment with the baby’s doctor to follow up in three days. Supervising physician Wilfredo Rios reviewed the baby’s chart five hours later, and although he personally would not have prescribed a steroid to treat an infant with a common cold, he co-signed the chart, agreeing with Shiver’s assessment and prescribed course of treatment.

The mother returned to the hospital three days later as directed, and the baby was seen by a pediatrician in Youth Care. At that time the baby had a fever of 102.1, diarrhea, vomiting, and abdominal pain. He was given Tylenol and an antibiotic, and after his blood and urine were collected for testing, he was diagnosed as having a urinary tract infection and discharged with a prescription for another antibiotic, Tylenol, and Prednisolone.

The next day, September 28, 2010, a hospital representative called the mother and told her to bring the child back to the hospital immediately because the blood work had revealed a systemic infection. When the mother received the call, she was already on her way back to the hospital to meet the baby and his sitter, who had reported that the baby had been crying and shaking. The baby was admitted to the hospital and was transferred the next day to a pediatric intensive care unit at another hospital, where he was diagnosed as having streptococcus meningitis and a stroke that paralyzed his right side. The mother subsequently sued the hospital and the ER personnel, contending that when the baby first went to the ER on September 24, 2010, he had a systemic bacterial infection that, left untreated, infected his brain and caused permanent mental and physical injuries.

One of the mother’s experts, pediatric emergency room physician Javier Escobar, testified in deposition that a patient younger than three months should never be “fast-tracked” in an emergency room, because children that age did not have a properly developed immune system and could not localize infections well. Further, the difference between a baby 35 days old, as this one was based on his gestational or developmental age, and 85 days old, which was his chronological age, was “huge” as far as his ability to handle infections, according to Escobar. A baby younger than six weeks, or a neonate, was by definition “immunocompromised,” meaning his immune system would not respond properly to infections. Thus, Escobar testified, in his opinion it was “grossly negligent” to have triaged the baby as “non-emergent” acuity level 4 instead of as a high-risk acuity level 2. Regardless of the fact that the baby had no fever when he was triaged, the mother had reported symptoms consistent with an infection that should have been investigated, he said.

Escobar opined that while the baby was not in “dire straits,” was not about to die, and was not toxic when he first came to the ER, based on his age and history, he should have received a full septic work-up including blood and urine analysis and cultures and possibly a spinal tap depending on the blood work results. He believed that when first seen, the baby had early stages of Group B streptococcus bacteremia, meaning the bacteria was floating in his bloodstream and had not yet seeded to an area outside the blood, such as the brain or lungs, which was when the situation became critical due to sepsis. Sepsis occurs when cells are no longer getting necessary oxygen as the result of a full-blown systemic infection, and that is when the patient begins to crash, he testified. It may take days for bacteremia to develop into septicemia, and depending on the results of blood work, a patient with bacteremia may be treated with an intramuscular shot of antibiotics and sent home or admitted to wait for the cultures to grow out. That is the course of treatment that was given when the baby returned three days later with a similar presentation and complaints and was seen by a Youth Care pediatrician, but by then the infection was much more advanced and the antibiotics were insufficient to stem the progress, he concluded.

Following discovery, the defendants moved for summary judgment, arguing that the heightened standard of OCGA § 51-1-29.5 (c) applies and that the mother failed to introduce clear and convincing evidence that they had been grossly negligent. The mother opposed the defendants’ motion and moved for partial summary judgment, arguing that the stricter standard of OCGA § 51-1-29.5 (c) does not apply in this case because the baby did not present with an emergency medical condition as defined by the statute and did not receive any emergency medical care.

The trial court reviewed OCGA § 51-1-29.5 and noted that

the condition in which the child presented to the emergency room is not in material dispute. The parties’ deposition testimony, statements of material fact as to which there is no dispute and defendants’ statement of fact in their brief, reflect the stable, non-urgent condition of Kurrenci Moore while he was in the hospital emergency room on September 24, 2010.

The court found that the record showed that “the infant presented to the emergency room in a stable, non[-]life-threatening condition, and no bona fide emergency care was provided to him by the Defendants.” Therefore, the court held, the plaintiff did not have to prove by clear and convincing evidence that the defendants were grossly negligent, only whether they “breached the standard of care under which similar conditions and like surrounding circumstances is ordinarily employed by the medical profession generally.”

The defendants contend on appeal that the trial court erred in granting partial summary judgment to the plaintiff and denying summary judgment to them. They argue that the gross negligence standard of OCGA § 51-1-29.5 (c) applies as a matter of law because the record contains evidence that the baby was “actually suffering from an emergency medical condition at the time of the [defendants’] care” instead of the cold he was treated for, and further argue that the baby’s “actual condition” is dispositive.* *

While the defendants further argue on appeal, as they did in the trial court, that the plaintiff has taken “the unequivocal position that [the baby] had a Very common cold’ ” when he first came to the ER, that summation misrepresents the plaintiff’s argument. The plaintiff argued in her motion for summary judgment that the ER statute does not apply in this case because the baby was stable when he came to the ER, he was treated for a cold, and he received no emergency services. All of the defendant health care providers testified that the baby was not “emergent” when he was seen, and a pediatric infection disease physician testified that when the baby came to the ER, “clearly at that moment he was stable” as opposed to emergent, although his condition was urgent. The quotations the defendants cite from the plaintiff’s trial court brief are summaries of the defendants’ deposition testimony, not statements by the plaintiff attesting to the baby’s “true” condition. In her appellate brief, the plaintiff does not argue that the baby had only a benign common cold when he came to the ER. She argues instead that the statute does not apply because the baby’s condition was not emergent at that time but instead was stable upon presentation and remained stable throughout the ER visit.

Georgia’s appellate courts have issued eight opinions in the past two years addressing the application of OCGA § 51-1-29.5 andissued a ninth case in 2008. These cases have defined the parameters of current emergency room medicine law.

None of the cases have addressed the precise issue here, which is whether the gross negligence provision of the ER statute, OCGA § 51-1-29.5 (c), applies to a stable, immunocompromised patient who comes to the ER with indications of an infection but receives no emergency care. The defendants argue that the statute describes only two mutually exclusive scenarios: either (1) the ER patient had an emergent, life-threatening condition, or (2) the patient had a previous life-threatening condition but had become stable. A patient cannot be both stable and have a life-threatening condition that should have been treated immediately, they contend, or the statute “would both apply and not apply at the same time.”

The parties agree that the baby had a medical condition when he was brought to the ER. The question is not about the baby’s “actual condition” though. It is whether his medical condition was manifested by acute symptoms of sufficient severity to trigger the gross negligence standard of OCGA § 51-1-29.5 (c). The defendants argue that “the statute provides that the condition of the patient controls, not the opinion of the physician,” quoting from Bonds, 322 Ga. App. at 855 (1). In this case, they contend, the plaintiff’s experts said the baby was actually sick and that the defendants should have provided him with emergency care, and therefore the gross negligence standard of OCGA § 51-1-29.5 (c) applies.

In Bonds, however, as in Abdel-Samed, 294 Ga. at 761 (1), n. 5 and Quinney, 325 Ga. App. at 115-116 (1), the issue addressed is only whether the patient had stabilized and was capable of receiving care as a non-emergency patient, a statutory exclusion to the definition of “emergency care.” OCGA § 51-1-29.5 (a) (5). In those three cases, our appellate courts held that, regardless of whether the defendants stopped providing emergency care, the question was not whether the patients had presented to the ER with a condition manifested by acute symptoms of sufficient severity to trigger the gross negligence statute, but whether their condition had changed. In other words, the analysis revolved around the patient’s actual condition rather than the defendants’ perception of their condition and resultant care. See also Howland, 324 Ga. App. at 177-178 (jury question whether patient initially assessed as “non-urgent” received “emergency medical care” or not).

In this case, the question is not whether the exception to the gross negligence standard no longer applied because the baby had stabilized. The question is whether he presented with symptoms that should have alerted the health care providers that he required emergency medical care.

Decided November 20, 2014

Reconsideration denied December 5, 2014.

Young, Thagard, Hoffman, Smith, Lawrence & Shenton, James B. Thagard, Brian J. Miller, Daniel C. Hoffman, Huff, Powell & Bailey, Jeffrey D. Braintwain, Michael G. Frankson, for appellants.

Charles R. Adams III, James E. Messer, Jr., for appellee.

In this case, the three defendant health care providers testified that the baby was stable and was triaged and treated appropriately. Additionally, when asked in deposition whether the baby had a life-threatening emergency when he presented to the ER on September 24, 2010, the plaintiff’s expert physician responded, “I believe that, without treatment at that time, the patient . . . had a serious illness in the early stages, and there was a chance to stop it. This kid had an infection, and it could have been stopped at that time.” On the other hand, there was evidence that the mother reported to the health care personnel that the baby recently had a fever, diarrhea, poor oral intake, sleeping more than normal, and uncharacteristic fussiness, and that the personnel knew or should have known the baby had been born prematurely and had been hospitalized for pneumonia the previous month. Juxtaposed in this manner, clearly the jury must determine genuine issues of material fact in this case in assessing whether the ER statute applies and whether the defendants met whatever standard of negligence the jury determines to be applicable.

Therefore, we conclude that the trial court erred in granting partial summary judgment to the plaintiff and in holding that the ER statute did not apply to this case as a matter of law. We also conclude that the trial court did not err in denying summary judgment to the defendants, as an issue of fact exists for the jury to determine whether the baby’s claims arose out of the provision of emergency medical care and whether the plaintiff must surmount the gross negligence standard of the ER statute or whether she must show only ordinary negligence.

Accordingly, we reverse the trial court’s grant of partial summary judgment to the plaintiff, and affirm the trial court’s denial of summary judgment to the defendants.

Judgment affirmed in part and reversed in part.

Boggs and Branch, JJ., concur.

       Those depositions are of the plaintiff’s expert registered nurse, expert physician’s assistant, and expert physician, all of whom opine that the defendants were deficient in their ER assessment and treatment of the baby. The amended notice of appeal properly lists items to be omitted from the appellate record; the only items subsequently transferred from the trial court in the supplemental record are the three depositions.

       The plaintiff, Patreace Brinson, brought suit individually and as mother and natural guardian of Kurrenci Moore, a minor, against the Hospital Authority of Valdosta/Lowndes County d/b/a South Georgia Medical Center, Emergency Medicine South, LLC, Bonita Werts, R.N., Bryan Shiver, P.A., and Wilfredo Rios, M.D.

       While the defendants argued in the trial court that the plaintiff failed to establish hy clear and convincing evidence that they were grossly negligent and were therefore entitled to a complete summary judgment, on appeal they only argue that the gross negligence standard applies as a matter of law, and not that the plaintiff failed as a matter of law to present clear and convincing evidence that they were grossly negligent.

       “Emergent” is defined as “calling for prompt or urgent action,” as opposed to “urgent,” meaning “very important and needing immediate attention.” Merriam Webster Online, Retrieved October 29, 2014, from http://www.merriam-wehster.com/dictionary/emergent, http://www. merriam-wehster.com/dictionary/urgent.

        Abdel-Samed, 294 Ga. 758, affirming Dailey v. Abdul-Samed, 319 Ga. App. 380 (736 SE2d 142) (2012) (physical precedent only); Johnson v. Omondi, 294 Ga. 74 (751 SE2d 288) (2013), reversing Johnson v. Omondi, 318 Ga. App. 787 (736 SE2d 129) (2012); Nisbet v. Davis, 327 Ga. App. 559 (760 SE2d 179) (2014); Quinney v. Phoebe Putney Mem. Hosp., 325 Ga. App. 112 (751 SE2d 874) (2013); Howland v. Wadsworth, 324 Ga. App. 175 (749 SE2d 762) (2013); Bonds v. Nesbitt, 322 Ga. App. 852 (747 SE2d 40) (2013); Pottinger v. Smith, 293 Ga. App. 626 (667 SE2d 659) (2008).


text:
    A14A0925.
    FEIN et al. v. CHENAULT et al.
    (767 SE2d 766)
   BARNES, Presiding Judge.

Florida attorney Frederick J. Fein and his client Continental Tire The Americas, LLC (Continental), filed a direct appeal of the trial court’s order in this personal injury case finding that Fein violated the Georgia Rules of Professional Conduct but declining to revoke his pro hac vice status. Instead, the court restricted Fein’s advocacy by designating local counsel as lead counsel for defendant Continental and directing Fein not to prepare or file pleadings, contact the court or its staff, or present argument or evidence at any future court proceeding. The court noted that Fein would be permitted to attend all future proceedings, confer with his client and local counsel, and sit at counsel table during court. Because this court lacks jurisdiction to consider this issue on direct appeal while the case remains pending in the trial court, we must dismiss the appeal.

The underlying case arose when Marios Chenault and his wife filed suit against multiple defendants after Chenault was involved in a car wreck, allegedly caused by a defective tire, that resulted in his paralysis. The Chenaults brought product liability and negligence claims against Continental and General Motors Corporation (GM). GM is not involved in the issue before this court now. Discovery disputes regarding the disclosure of certain rubber compound formulas and other information Continental Tire deemed to be trade secrets led to a telephone conference with the trial court, which resulted in the court ordering Continental on May 23, 2013, to disclose certain information pursuant to a protective order by June 11, 2013.

On May 31, 2013, Continental filed an “Emergency Motion for Reconsideration or, in the Alternative, Request for a Certificate of Immediate Review of the Court’s Order of May 23, 2013,” arguing that the telephonic hearing was inadequate to provide the trial court with the necessary case law and evidence, that the information was “highly proprietary trade secrets that are not subject to disclosure,” that its production would cause irreparable harm, and that Chenault had not shown sufficient need for the information. It argued that “courts across the country have repeatedly found that tire companies’ rubber compound formulas . . . are trade secrets whose secrecy and value in being maintained as secrets justify excluding them from the discovery process,” even with a protective order. Continental attached an affidavit from its director of product analysis, who averred that the company’s rubber compound formulas are so highly protected they “are not disclosed even pursuant to a protective order.”

Chenault responded on May 31, 2013, and argued that the information sought was not a trade secret and was crucial to his claim. He further argued that the cases cited by Continental for the proposition that courts have refused to allow discovery of the information sought actually dealt with different information, and that “a number of other courts have in fact ordered both the disclosure of halobutyl content in tires, as well as the full formulas.” Chenault attached orders from Missouri, Florida, and New York courts directing Cooper Tire Company to disclose information regarding the content or existence of halobutyl in the inner liner of the subj ect tires, and an order from a Montana court directing Continental to disclose tire compound formulas.

The ten-day window for issuing a certificate of immediate review passed without a ruling from the trial court. On June 4, 2013, Continental filed an emergency motion to stay that portion of the trial court’s May 23 order directing it to produce certain information by June 11, 2013. Chenault opposed the stay, noting in a brief filed on June 10, 2013, that Continental was citing to a legal standard inapplicable in Georgia, which required movants to show that the disclosure of confidential information was “necessary.” Chenault also pointed out that while Fein represented that a court had never required his clients to produce rubber compound information, he was lead counsel in a Florida case and a DeKalb County, Georgia, case, in which the tire manufacturer he represented was ordered to disclose that information.

On June 11, 2013, the trial court denied Continental’s motion to stay and for reconsideration, reminding the parties of the existing protective order and giving Continental until June 14, 2013, to produce the documents and information previously ordered. On June 13, 2014, Continental requested a certificate of immediate review of the court’s June 11 order, which the court denied later that same day.

On June 14, 2013, Continental filed a notice of appeal from the court’s discovery orders of May 23, 2013 and June 11, 2013, and also filed an application for interlocutory appeal with this court. This court dismissed the interlocutory appeal on July 11, 2013, and dismissed the direct appeal on August 20, 2013, finding in both cases that the discovery issue was neither an exceptional one reviewable absent a certificate of immediate review, nor subject to the collateral source exception to the final judgment rule.

Meanwhile, on June 22, 2013, the trial court sua sponte issued a rule nisi, placing the parties

on notice that it is considering revoking the pro hac vice status of Frederick J. Fein, Esq., based upon material false statements made to the Court regarding legal authority and factual matters during his representation[,] which misstatements may be detrimental to the prompt, fair and efficient administration of justice in this case.

It ordered Fein and all other counsel for Continental to appear on September 4, 2013, for a hearing on the issue.

On June 26, 2013, Continental moved to vacate the rule nisi, arguing that Fein did not know what false statement the court referred to, that the court appeared to have already determined his culpability, and that the court had entered the order without giving him a chance to refute it. All previous pleadings had been signed only by local counsel, but the motion to vacate was the first one that also included Fein’s signature as counsel for Continental. All subsequent pleadings included Fein’s signature until the trial court’s October 2013 order at issue here. The trial court denied the motion to vacate the rule nisi order on July 26, 2013.

Both parties filed motions on July 29, 2013, with Chenault moving to compel Continental to provide the discovery the trial court had previously ordered it to produce and Continental filing a motion to recuse the trial court. On July 30, 2013, Continental filed a Rule 5.2 certificate of service of discovery of supplemental answers and objections to Chenault’s interrogatories and requests for production of documents.

On July 31, 2013, the trial court issued an order denying Continental’s motion to recuse, finding the motion timely but lacking a basis as a matter of law. On August 1, 2013, the court ordered Continental to respond to Chenault’s motion to compel by August 16, 2013, and the next day Chenault filed a motion seeking sanctions for discovery abuse. On August 6, 2013, Continental requested a certificate of immediate review of the court’s order denying its motion to recuse.

On August 8, 2013, the trial court issued an amended rule nisi, directing that

defense counsel, including pro hac counsel, should be prepared to address the question of whether or not pro hac counsel violated Georgia Rule of Professional Conduct 3.3 during a telephone conference with the Court regarding Plaintiff’s Interrogatories and Request for Production of Documents in May of 2013. Specifically, the Court is concerned that pro hac counsel made false statements regarding the law to the tribunal, failed to disclose legal authority contrary to his position which was known to him, and failed to disclose material facts to the tribunal which were in direct contradiction of his statements made on personal knowledge regarding the production of evidence in this case. If proven, these misstatements may be detrimental to the prompt, fair and efficient administration of justice in this case and may be grounds for a revocation of Mr. Fein’s pro hac status pursuant to Rule 4.4 (d) (4) and 4.4 (f) (1) (b).

(Emphasis supplied.)

On August 14, 2013, Fein filed a renewed Motion to Vacate Rule Nisi of June 22, 2013 (the first rule nisi), arguing that, although the trial court added qualifying language in its amended rule nisi, it had not vacated its initial rule nisi, which had already been cited by opposing counsel in other cases as proof that Fein had been found to have exhibited a “pattern of deception” in representing his client. Fein also objected to and moved “to clarify” the amended rule nisi, contending that he still did not know what he failed to disclose or misrepresented to the court.

Two days later, Continental filed an opposition to Chenault’s motion to compel and for attorney fees, arguing that it had “bent over backwards to produce hordes of information about the tire” at issue in this case. Continental included affidavits from company engineers stating that Chenault’s discovery requests were too broad to comply with and that because this particular unique tire had been developed with GM for this particular vehicle, information about other tires was irrelevant.

Continental also responded to Chenault’s motion for sanctions on August 14, 2013. Its brief began, “According to Plaintiffs, no good deed should go unpunished,” and asserted that the company had gone above and beyond its required duty to locate certain information, the late production of which had resulted in Chenault’s motion for sanctions. Continental accused Chenault of trying to turn the case into one about a “discovery tort,” rather than a “7[-]year-old, used, worn-out tire, which never should have been in service on the day of this accident... .’’Attached to the motion were affidavits from Fein’s local counsel attesting to the parties’ agreement about Continental’s deadline in supplementing its discovery responses and from Continental’s senior counsel regarding the company’s efforts to locate the information sought.

An attorney made an entry of appearance on Fein’s behalf, and on August 28, 2013, Fein filed a supplement to his objection to the trial court’s amended rule nisi and another motion to clarify it, noting that in a discussion with the court’s staff attorney, Fein’s counsel had been referred to a specific page in one of Chenault’s pleadings. In that pleading, Chenault argued that Fein said he had never been required to produce rubber compound information and submitted orders from other courts. Fein argued in his supplemental objection that what he actually said during the telephone conference was that “he has never produced such information in any case he has handled, a statement which remains true to this day,” because the orders directing Continental to produce that information were later vacated. Therefore, Continental did not produce the information, he concluded, and his statement to the trial court in this case was accurate. Fein submitted an affidavit attesting to those facts, and attached the court orders vacating the previous orders requiring Continental to produce the disputed information.

In reply, on September 3, 2014, Chenault argued that Fein’s response was “disingenuous.” First, he contended, whether or not Fein used the word “required” during the telephone conference was not controlling, because his argument left the court with the “clear impression” that an order directing Continental to produce the halobutyl information would be “completely ‘out of left field’ ” and that “ordering its production would be totally unheard of.” Chenault quoted from a hearing transcript in a DeKalb County case in which Fein similarly argued he had never been required to produce this information, and that transcript is included in this record on appeal. Chenault further argued that Fein’s brief was misleading because the orders to produce were vacated solely as a condition of settlement.

After the September 4, 2013, hearing, the court found that Fein had intentionally made statements to the court that were “deliberately calculated to cause the Court and opposing counsel to infer a fact that was not true so as to gain advantage for his client.” The trial court found that these statements violated the Georgia Rules of Professional Conduct, but declined to revoke Fein’s pro hac vice status. Instead, the court restricted Fein’s advocacy by designating local counsel as lead counsel for defendant Continental. The trial court also directed that Fein was not allowed to prepare or file pleadings, contact the court or its staff, or present argument or evidence at any future court proceeding, although he would be permitted to attend all future proceedings, confer with his client and local counsel, and sit at counsel table during court.

Fein first asked the trial court to issue a certificate of immediate review of its order, which the court denied. Fein nevertheless filed an application for interlocutory appeal, which this court dismissed on November 26, 2013, Case No. A14I0051. We held that an appellate court generally will not review a trial court’s exercise of its discretion to grant or deny a certificate of immediate review, citing Scruggs v. Ga. Dept. of Human Resources, 261 Ga. 587, 588 (1) (408 SE2d 103) (1991), and B & D Fabricators v. D. H. Blair Investment Banking Corp., 220 Ga. App. 373, 376 (3) (469 SE2d 683) (1996). We further held that this is not one of those extraordinary cases described in Waldrip v. Head, 272 Ga. 572 (532 SE2d 380) (2000), that qualify for an exception to the certificate requirement because the trial court’s actions would preclude appellate review of a substantive issue. We thus dismissed the application due to Continental’s failure to comply with the interlocutory procedures of OCGA § 5-6-34 (b).

Fein also filed a direct appeal of the trial court’s order, and contends that the trial court’s order infringes on Continental’s fundamental right to counsel of its choosing and is an “unwarranted disqualification” based on a misrepresentation that never occurred. After this appeal was docketed, Chenault moved to dismiss it on jurisdictional grounds, arguing that the trial court’s order regarding Fein’s status as pro hac vice counsel is neither final nor otherwise appealable, citing Bd. of Regents of the Univ. System of Ga. v. Canas, 295 Ga. App. 505 (672 SE2d 471) (2009). In Canas, we held:

A necessary prerequisite for a direct appeal is that the judgment or order appealed from be final or otherwise appealable. A judgment is directly appealable as a final judgment where the case is no longer pending in the court below, except as provided in Code Section 5-6-35 (concerning cases requiring an application for appeal). . . . Generally, where an appellant fails to comply with the interlocutory appeal procedures set forth in OCGA § 5-6-34 (b) and an interlocutory ruling is not otherwise appealable, this Court lacks jurisdiction over a direct appeal filed from an interlocutory ruling and must dismiss it.

(Citation and punctuation omitted.) Id. at 506 (1).

Besides final judgments, OCGA § 5-6-34 allows “the direct appeal of judgments or orders that may have an irreparable effect on the rights of parties, such as rulings in contempt, injunction, and mandamus actions.” In re Paul, 270 Ga. 680, 682 (513 SE2d 219) (1999). See OCGA § 5-6-34 (a) (2)-(12). Additionally, parties may directly appeal a “collateral order,” even if the case remains pending in the trial court, if “the issue is substantially separate from the basic issues presented in the complaint, an important right may be lost if review had to await final judgment, and nothing further in the underlying action can affect the issue on appeal.” In re Paul, 270 Ga. at 682-683.

Fein stated in his response to Chenault’s motion to dismiss that “Appellants do not contend that the Disqualification Order is a collateral order and will not address Appellees’ arguments regarding the collateral order doctrine.” Instead, he argues, he has a right to direct appeal based on Stevens v. Thomas, 257 Ga. 645 (361 SE2d 800) (1987). The Supreme Court of Georgia in Stevens found untimely the appeal of an order disqualifying an attorney from representing two plaintiffs in a class action suit because of disciplinary rules violations, reasoning that the disqualification was a sanction that took place immediately, and also noting that the court had subsequently affirmed a contempt citation related to the sanction in Brown v. Thomas, 257 Ga. 68 (354 SE2d 830) (1987). Stevens, 257 Ga. at 647 (1). The court then remanded the case for the trial court to determine whether an attorney fee award was imposed “as a penalty for contempt or as a penalty for violations of the disciplinary rules.” Id.

In contrast, Chenault argues that the disqualification order is not directly appealable per Cherry v. Coast House, Ltd., 257 Ga. 403 (359 SE2d 904) (1987), a case from the same term as Stevens. In Cherry, the Supreme Court held that an order disqualifying an attorney from representing a client would ordinarily require an application for interlocutory appeal pursuant to OCGA § 5-6-34 (b). Id. at 405 (2). In that case, however, because summary judgment grants were before the court on direct appeal, the Supreme Court also considered the disqualification orders. Id.

Fein argues that the Supreme Court’s pronouncement in Stevens controls this appeal, being the latest on the issue of whether an order disqualifying a lawyer is directly appealable before a final order or judgment is entered in the trial court. This court attempted to reconcile the conflicting cases in Settendown Public Utility v. Waterscape Utility, 324 Ga. App. 652, 654 (751 SE2d 463) (2013), and Lassiter Properties v. Davidson Mineral Properties, 230 Ga. App. 216, 217-218 (495 SE2d 663) (1998). In addition to Settendown and Lassiter, this court has held in other cases that attorney disqualification orders must be brought by application for interlocutory appeal after the issuance of a certificate of immediate review and are not directly appealable. See Amado v. City of Atlanta, 228 Ga. App. 791 (492 SE2d 761) (1997); Ewing Holding Corp. v. Egan-Stanley Investments, 154 Ga. App. 493, 496 (1) (268 SE2d 733) (1980).

In considering whether this court has jurisdiction to address the direct appeal of the trial court’s order regarding Fein’s pro hac vice status, however, we need not determine whether an order disqualifying an attorney from representing a client is directly appealable or not under Stevens, because Fein was not disqualified. Rather, the trial court decided not to revoke Fein’s pro hac admission to practice in this case, finding that to do so “would be too harsh of a remedy for the harm incurred.” Instead, the trial court designated the two local counsel as lead counsel and directed that only those attorneys “prepare and file pleadings, contact the Court, or present evidence or argument at any future motions, hearings, or trials.” The court further found that Fein would be permitted to attend any proceedings, confer with local counsel and his client at will, and sit at counsel table, but would not be allowed to prepare or file any documents, deal directly with the court or its staff, “or otherwise act as lead counsel.”

Finally, we note that important public policy considerations compel against allowing a direct appeal in this context. In holding that an attorney’s disqualification was not subject to the collateral order doctrine exception to the requirement of a final judgment or order under the Federal Rules of Civil Procedure, the United States Supreme Court observed:

We also decline to view the disqualified attorney’s personal desire for vindication as an independent ground for interlocutory appeal. An attorney who is disqualified for misconduct may well have a personal interest in pursuing an immediate appeal, an interest which need not coincide with the interests of the client. As a matter of professional ethics, however, the decision to appeal should turn entirely on the client’s interest.

Richardson-Merrell, Inc. v. Koller, 472 U. S. 424, 434-435 (III) (A) (105 SCt 2757, 86 LE2d 340) (1985). The Supreme Court further held that “orders disqualifying counsel in civil cases are not completely separate from the merits of the action,” because “[a]ppellate review of orders disqualifying counsel for misconduct may be entwined with the merits of the litigation as well.” (Citation and punctuation omitted.) Id. at 439 (III) (B). While acknowledging that an order disqualifying counsel may impose significant hardship on litigants and “tempt courts of appeals to assert jurisdiction,” the Supreme Court quoted the following from a Third Circuit case addressing the rule that only final judgments are reviewable in the federal courts:

Decided October 22, 2014

Reconsideration denied December 5, 2014

Carlock, Copeland & Stair, Thomas S. Carlock, Balch & Bing-ham, Michael J. Bowers, Christopher S. Anulewicz, Nall & Miller, George R. Neuhauser, Clinton F. Fletcher, for appellants.

Harris Penn Lowry, Darren W. Penn, The Mabra Firm, Ronald E. Mabra, Jr., Franklin Law, Rebecca C. Franklin, for appellees.

It would seem to us to be a disservice to the Court, to litigants in general and to the idea of speedy justice if we were to succumb to enticing suggestions to abandon the deeply-held distaste for piecemeal litigation in every instance of temptation. Moreover, to find appealability in those close cases where the merits of the dispute may attract the deep interest of the court would lead, eventually, to a lack of principled adjudication or perhaps the ultimate devitalization of the finality rule as enacted by [the legislature].

(Citations and punctuation omitted.) Id. at 440 (IV).

Chenault’s motion to dismiss is hereby granted. His motions for sanctions and to supplement the record are denied.

Appeal dismissed.

Boggs and Branch, JJ., concur.

       Halogenated butyl (halobutyl) rubber is an expensive synthetic rubber compound used to make a tire’s inner liner less permeable to air. Chenault sought to discover the percentage of halobutyl in the inner liner of the tire that blew on his car.

       The only two grounds on which the Supreme Court in Stevens could have relied in holding that the disqualification order was immediately appealable were either: (1) as an exception to the final order requirement, which are listed in OCGA § 5-6-34 (a), none of which are applicable here, or (2) as a collateral order reviewable before the trial court entered a final judgment or order in the case. For purposes of this analysis, however, whether Fein is actually arguing the collateral order doctrine or not is irrelevant.