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Aug 25 15

Georgia Divorce or Modification: Paying for a Child’s Private School

by merlin

I found this case quite by accident, using Lexis.  It may be present on Westlaw, but is not present on Fastcase.  It is apparently present on both Justia and Findlaw, also, and has been reported on in an Indiana blog on the topic.

However, below I present the 2014 case of Hardman v. Hardman, S14A1187, found (supposedly, according to Lexis, at 295 Ga. 732, 763 S.E.2d 861, 2014 Ga. LEXIS 737.  This case presents a fascinating result, because it involves the Court forcing a custodial parent to pay for private school for a minor child following the divorce of the parents.  This was decided on the father’s determined authority concerning educational decisions, under a theory of contract law, but I am saddened that it does not attempt to make any definite assertions regarding the curriculum for minor children at Rabun Gap-Nacoochee School, which is a genuinely excellent school in Rabun County; the actions taken with regard to removing the child from the institution and placing them in North Carolina public schools appears to have come from a similar motivation.  There is substantially more to the story, and it makes for interesting reading.  I present the FindLaw version below:

John S. Noell Jr., Cook Noell Tolley & Bates, LLP, Athens, for Hardman. J. Matthew Anthony, Steven Kennedy Kirson, C. Wilbur Warner Jr., Warner, Bates, McCough, McGinnis & Portnoy, Atlanta, for Hardman.

William Jackson Hardman III (Father) appeals from the trial court’s grant of summary judgment and award of attorney fees to Mary Ann Hardman (Mother), in an action he filed for declaratory judgment and contempt based on their divorce decree. We reverse the grant of summary judgment, reverse in part and vacate in part the award of attorney fees, and remand for further proceedings.

1. The parties were married in 1992 and divorced in Rabun County on March 25, 2013. They have three children, including twin boys who are minors. Under the parties’ settlement agreement, which was incorporated into the final divorce decree, Father and Mother share joint legal custody of the minor children, while Mother has primary physical custody. As joint legal custodians, the parties are to participate jointly in decisions regarding, among other issues, the children’s education, including the choice of schools. In the event of disagreement, however, Father is given final decision-making authority as to education and health care issues, while Mother is the final decision-maker as to religion and extracurricular activity issues. The settlement agreement says that Father must pay Mother $7,000 per month, plus 30% of any annual gross income between $200,000 and $500,000, in “alimony” payments for 78 months or until she remarries or dies. The agreement also says that “[n]either party shall pay child support to the other at this time,” but if Mother’s “alimony” is terminated while the children are minors or in high school, Father’s child support obligation will be $2,000 per month.1 Although the 24–page settlement agreement is quite detailed, it contains no specific provision regarding payment for the children’s school expenses, and the child support worksheet attached to the divorce decree does not include any deviation for extraordinary educational expenses.

The parties’ oldest child, who is now in college, attended Rabun GapNacoochee School, a private school for grades 6 to 12. The two minor children began attending the same school starting in sixth grade in the 2010–2011 school year, and they have remained there for four school years. The combined tuition for both children is now about $2,605 per month. Before the divorce proceedings, the parties paid the private school tuition using joint marital funds, with Father generally writing the check. After the divorce, Mother refused to pay the tuition and threatened to move the children to a public school in North Carolina, where she lives, unless Father paid it.

Father made an advance tuition payment of $9,453.56 so the boys could enroll for the 2013–2014 school year; he then filed a complaint seeking reimbursement and a declaratory judgment as to whether Mother is required to pay the tuition out of her $7,000 monthly alimony payments and whether she can remove the children to school in another state. The complaint also sought an order enjoining Mother from removing the boys from the private school, asked that Mother be held in contempt, and requested attorney fees under OCGA § 13–6–11. In response, Mother filed a motion for summary judgment and a motion for attorney fees under OCGA §§ 9–15–14 and 19–6–2.2

On December 20, 2013, the trial court entered an order granting Mother’s motion for summary judgment on the ground that Father’s action was barred by the doctrine of res judicata. The court concluded that, if Father “intended for [Mother] to pay the private school costs out of the alimony he pays her each month, he should have written that intent in the Settlement Agreement” rather than trying to “relitigate the Settlement Agreement in order to supplement its terms.” The court also rejected Father’s argument that he needed clarification of the settlement agreement, noting that “[s]imply writing that [Father] has final authority on educational issues does not create an ambiguity as to payment of private school tuition.” Finally, after finding that Father’s complaint for declaratory judgment and his action for contempt “lacked substantial justification,” the court granted Mother’s motion for attorney fees and ordered Father to pay $5,500 to Mother’s counsel pursuant to OCGA § 9–15–14.

This Court granted Father’s discretionary application to appeal.

2. Father argues correctly that the trial court erred by applying the doctrine of res judicata strictly in the context of this divorce case. In response to Mother’s defense of res judicata, the trial court held that this case was “controlled” by Lay Brothers, Inc. v. Tahamtan, 236 Ga.App. 435 (511 S.E.2d 262) (1999), a civil case involving the terms of a property lease. The Court of Appeals held there that res judicata barred the owner’s request for a declaratory judgment that the lease required the tenant to pay the property taxes, because the parties had previously litigated about the lease and—under the usual rules of res judicata—a party is barred from re-litigating not only claims that actually were adjudicated previously, but also claims concerning the same subject matter that could have been adjudicated before between the same parties or their privies. See id. at 435–436. The silence of the lease on the issue of property tax payment was therefore dispositive, because the owner had the opportunity in the first proceeding to seek a ruling that the lease required the tenant to pay the taxes but did not obtain such a judgment. See id. at 437. Likewise, the trial court here reasoned, the divorce proceeding resulted in a settlement agreement and final decree that do not expressly say which party pays for private school tuition, and thus Father cannot pursue a new action to “supplement” the agreement with a term requiring Mother to pay.

This Court has held, however, that the doctrine of res judicata—and in particular, the rule that bars re-litigation of matters that could have been, but were not actually, raised and decided in a previous action—should not be applied “mechanical[ly]” in divorce and alimony cases. See Brookins v. Brookins, 257 Ga. 205, 205–206 (357 S.E.2d 77) (1987). “ ‘[T]he true rule of res judicata in divorce and alimony cases,’ “ we explained in Brookins, is that “ ‘a final decree has the effect of binding the parties and their successors as to all matters which were actually put in issue and decided, or which by necessary implication were decided between the parties.’ “ Id. at 207 (emphasis changed; citation omitted). Or as the Court of Appeals later put the point, “the doctrine of res judicata is less strictly applied in divorce and alimony cases, including cases dealing with child support issues,” and does not bar litigation of matters that merely could have been put at issue in the earlier proceeding. Dial v. Adkins, 265 Ga.App. 650, 651 (595 S.E.2d 332) (2004).

Looking past the trial court’s misperception of the applicable res judicata standard, however, the divorce decree in this case is properly read as requiring Wife to pay the minor children’s private school tuition as long as Father decides that they should attend private school, as we explain in the next division. The issues as to which Father sought a declaration of his rights were adjudicated in his favor in the divorce proceeding, as reflected in the divorce decree, so he was entitled to the declaratory judgment he sought and Mother’s res judicata defense should have been rejected under any version of that doctrine.

3. Mother contends that the trial court’s grant of summary judgment to her should be affirmed because the divorce decree and incorporated settlement agreement do not say that she must pay private school tuition and therefore Father must pay it. We disagree.

(a) To begin with, one of the issues on which Father sought a declaratory judgment was whether the divorce decree allows Mother to move the boys from their private school to a public school in North Carolina, as she had threatened to do. The settlement agreement clearly and explicitly gives Father the final and binding authority to decide what school the minor children will attend. It defines “matters affecting the children’s education” to include “choice of schools,” and then specifies that if Father and Mother cannot agree on such matters, “[Father] shall have final decision-making authority as to education ․ issues” and his decisions on those issues “shall be binding.”

Father has decided that the boys should continue to attend the Rabun Gap Nacoochee School. In light of Mother’s threat to move the children to a different school—that is, her assertion that she has the right to choose which school they attend and intends to exercise that right—Father was entitled to seek a declaratory judgment to ascertain his rights under the divorce decree and the parties’ contract that it incorporates. See Weaver v. Jones, 260 Ga. 493, 493 (396 S.E.2d 890) (1990) (“ ‘A declaratory judgment is an appropriate means of ascertaining one’s rights and duties under a contract and decree of divorce.’ “ (citation omitted)). And given the plain language of the settlement agreement, the trial court plainly erred in granting Mother summary judgment on Father’s request for a declaration that the divorce decree precludes Mother from unilaterally changing the children’s school.

(b) As for which parent is responsible for paying the private school tuition, Mother and the trial court have overlooked a venerable principle for interpreting contracts like the settlement agreement at issue here: “ ‘The laws which exist at the time and place of the making of a contract, enter into and form a part of it’; and the parties must be presumed to have contracted with reference to such laws and their effect on the subject matter.” McKie v. McKie, 213 Ga. 582, 583 (100 S.E.2d 580) (1957) (citations omitted) (applying this rule in interpreting an agreement for alimony). Accord, e.g., Magnetic Resonance Plus, Inc. v. Imaging Sys. Intl., 273 Ga. 525, 527 (543 S.E.2d 32) (2001); West End & Atlanta Street R. Co. v. Atlanta Street R. Co., 49 Ga. 151, 158 (1873).

Georgia’s child support laws establish a presumption that the custodial parent will bear the expenses related to the children, assisted by child support paid by the non-custodial parent, with the amount of the child support obligation calculated principally in proportion to the adjusted gross income of each parent. See OCGA § 19–6–15(b) (outlining the calculation of the child support obligation). This statutory scheme reflects “the state policy of affording to children of unmarried parents, to the extent possible, the same economic standard of living enjoyed by children living in intact families consisting of parents with similar financial means.” OCGA § 19–6–15(c)(1). Thus, before a divorce, the parents normally pay the costs of child-rearing from their collective household income; when that household is divided, the parent in whose home the child primarily lives normally pays the child-rearing expenses, with the help of child support from the non-custodial parent that is calculated largely as a pro rata share of the parent’s collective income.

The presumptive amount of child support calculated pursuant to the statutory child support guidelines is not conclusive. The parents may agree to vary from the presumptive support amount, as long as their agreement complies with the provisions of the guidelines, contains factual findings to support any deviations from the presumptive amount, and is determined by the court to provide adequate support to the children. See OCGA § 19–6–15(c)(6). The trial court also has considerable discretion to deviate from the presumptive child support amount based on the many specific deviations listed in the guidelines or on other grounds, but only after supporting any deviation with written findings of fact. See OCGA § 19–6–15(c)(2)(E), (i). Indeed, the guidelines enumerate a set of specific deviations for “extraordinary expenses,” which allow the child support obligation to vary from the “average child rearing expenditures for families given the parents’ combined adjusted income and number of children.” OCGA § 19–6–15(i)(2)(J). The guidelines also provide a specific deviation to reflect “parenting time,” if the child spends extended time with the noncustodial parent so that parent would bear more of the child’s regular expenses. See OCGA § 19–6–15(b)(8)(K), (g), (i)(2)(K). Any such deviations, however, must be identified and supported on Schedule E of the child support worksheet, which in turn must be attached to the trial court’s final child support order or judgment. See OCGA § 19–6–15(m)(1).

Under this legal framework, if the child support worksheet shows no deviation as to a particular child-rearing expense or type of expense, there is normally no ambiguity as to which parent must pay the expense. The presumption remains intact that the custodial parent will do so, with the aid of the child support he or she receives. We made this point in Georgia Department of Human Resources v. Sweat, 276 Ga. 627 (580 S.E.2d 206) (2003):

[C]ustodial and non-custodial parents are not, by definition, similarly situated. The custodial parent often contributes to the costs of caring for children, and also takes primary responsibility for the day-to-day care of a child, maintains a separate household suitable for the children, and depends upon the Guidelines to ensure he or she receives adequate financial resources from the non-custodial parent to assist in raising the child. Non-custodial parents generally have measurably less involvement in the day-to-day care of children, and depend on the Guidelines to ensure that their financial support obligations are not out of proportion to their income level. Of course, the financial contributions of non-custodial parents are significant and are often the result of hard work and sacrifice; nonetheless, it is generally true that “after divorce, the custodial parent’s responsibility for the child’s support as well as care is general and plenary, while the non-custodial parent’s responsibility is usually limited to the requirements of the support order.”

Id. at 630 (citation omitted).

This point is particularly clear as to the type of educational expenses at issue in this case. The statutory guidelines provide a specific deviation for “extraordinary educational expenses,” which can be used to shift some or all of these expenses from the custodial parent to the non-custodial parent:

Extraordinary educational expenses may be a basis for deviation from the presumptive amount of child support. Extraordinary educational expenses include, but are not limited to, tuition, room and board, lab fees, books, fees, and other reasonable and necessary expenses associated with special needs education or private elementary and secondary schooling that are appropriate to the parent’s financial abilities and to the lifestyle of the child if the parents and the child were living together․ If a deviation is allowed for extraordinary educational expenses, a monthly average of the extraordinary educational expenses shall be based on evidence of prior or anticipated expenses and entered on the Child Support Schedule E–Deviations.

OCGA § 19–6–15(i)(2)(J)(i) (emphasis added).

In this case, the parties’ divorce decree, attached child support worksheet, and incorporated settlement agreement do not include such a deviation or provide the findings that would be necessary to support it and thereby shift the responsibility for paying the children’s educational expenses to Father. In light of the background law of child support, the minor children’s educational expenses, like the other expenses of raising them, remained the responsibility of Mother as the custodial parent, who has either waived her right to receive child support from Father or receives child support as a component of her $7,000 monthly “alimony” payment. See footnote 1 above. The fact that the educational expenses are much higher than they would be if the children attended public school reflects Father’s decision that they should remain at the Rabun Gap–Nacoochee School—but Mother expressly agreed that Father would have the authority to make that decision, and his decision could come as no surprise, since the parties’ oldest child did his entire secondary schooling there and the twins began school there as soon as they could enroll, three years before the divorce. If there is a substantial change in the income or financial status of either party or in the children’s educational needs, Mother’s remedy would be to seek a modification of the child support order. See OCGA § 19–6–15(k). Until then, however, she must abide by the divorce decree and the settlement agreement she entered.

Accordingly, the trial court also erred in granting summary judgment to Mother on the issue of whether the divorce decree requires her to pay the children’s private school tuition. The court’s conclusion that Father “should have specifically addressed [Mother]’s obligation to pay for private school if that is what he intended” has it backwards. It was Mother who needed to have the settlement agreement (as well as the child support worksheet) specify that Father would pay for private school, if she wanted to alter the legal presumption that the custodial parent would pay that child-rearing expense.

4. The trial court awarded $5,500 in attorney fees to Mother pursuant to OCGA § 9–15–14, based on a finding that Father’s complaint for declaratory judgment and action for contempt lacked substantial justification.3 Our discussion in Division 3 above shows that Father’s declaratory judgment action did not lack substantial justification; the attorney fees award as to that part of Father’s case is therefore reversed. See White v. Howard, 295 Ga. 210, –––– (758 S.E.2d 824, 828) (2014); Farris v. Farris, 285 Ga. 331, 333–334 (676 S.E.2d 212) (2009).

Father’s contempt claim is a different matter. His motion asked the trial court to hold Mother in contempt based on her refusal to pay the children’s private school tuition and her threat to move them to a public school, but the attorney fees portion of the court’s order only addresses the threat to change schools. To that extent, the court properly held that Father’s claim was made in “anticipation” of Mother’s contempt, since she had not actually changed the children’s school and thus had not even arguably violated the divorce decree in that respect. Father cited no law in the trial court, and has cited none here, allowing an “anticipatory contempt” claim. Concern that a counter-party may improperly be asserting rights under an agreement should be addressed, if at all, in an action for declaratory judgment rather than contempt.4

Thus, an award of attorney fees to Mother under OCGA § 9–15–14 might be appropriate if limited to fees she incurred solely in litigating the threatened-school-change aspect of Father’s contempt motion. However, the trial court did not allocate any specific portion of the $5,500 fee award to that aspect of the contempt claim, and the record shows that Mother did not provide evidence of attorney fees incurred solely in relation to that aspect of the contempt claim. Accordingly, to the extent the attorney fee award was based on the contempt action, it is vacated, and the case is remanded for the trial court to determine the amount of attorney fees, if any, that should be awarded to Mother based solely on the threatened-school-change aspect of that claim. We note that Mother also requested attorney fees based on the financial circumstances of the parties, see OCGA § 19–6–2, but the trial court did not address that request; it may do so on remand.

Judgment reversed in part and vacated in part, and case remanded with direction.

While I concur fully in the majority opinion, I write separately to highlight the fundamental errors committed by the trial court in applying the doctrine of res judicata to bar Father’s proper declaratory action. As the majority points out, although the plain language of the divorce decree does not explicitly state that Mother was responsible for paying the minor children’s private school tuition, the decree “is properly read as requiring Wife to pay the minor children’s private school tuition as long as Father decides that they should attend private school.” Maj. Op. at 6. Thus, contrary to the trial court’s conclusions that the parties’ agreement “does not address the particular issue” of private school payment and that Father cannot “relitigate the Settlement Agreement in order to supplement its terms,” the divorce decree does in fact address the issue of private school payment and further resolves the issue in Father’s favor. Accordingly, the fundamental errors committed by the trial court here began with respect to its interpretation of the divorce decree.

By failing to properly analyze the language of the decree, the trial court in turn failed to fulfill its duty to provide the parties with clarity when faced with a proper declaratory action by Father. Indeed, because the parties could not agree who had to make such payments pursuant to the decree, Father was entitled to pursue a declaratory action to determine whether he or Mother was responsible for making the private school payments. See, e.g., Weaver v. Jones, 260 Ga. 493, 493 (396 S.E.2d 890) (1990) (“ ‘A declaratory judgment is an appropriate means of ascertaining one’s rights and duties under a contract and decree of divorce’ ”). However, instead of properly resolving the ambiguity with respect to the parties’ rights under the divorce decree, the trial court invoked res judicata to conclude, erroneously, that the “unresolved” issue of private school tuition payments could not be resolved in Father’s favor because the parties had failed to address it in the original decree. However, here, Father did not seek to “relitigate” the terms of the agreement or even litigate an issue that “should have been” resolved previously. He merely sought guidance with respect to the previous court order and the law regarding an issue in contention that arose after the divorce decree had been entered. Father was entitled to seek this guidance, and the trial court erred by failing to provide the proper guidance to Father through an appropriate interpretation of the language of the divorce decree.

FOOTNOTES

1.  The record indicates that the parties agreed that Father would pay no child support and would instead pay a higher alimony amount to give him a tax advantage, as alimony is tax deductible but child support is not. If taken at face value, such an agreement appears contrary to Georgia law, because divorcing parents may not agree to waive child support to augment the amount of alimony to be received by the custodial parent. See Swanson v. Swanson, 276 Ga. 566, 567 (580 S.E.2d 526) (2003). We also note that the child support worksheet shows that Father should pay a presumptive child support amount of $2,127 per month, but this exact amount is then eliminated by a downward specific deviation for “alimony paid.” See OCGA § 19–6–15(i)(2)(G) (“Actual payments of alimony shall not be considered as a deduction from gross income but may be considered as a deviation from the presumptive amount of child support.”). Even assuming that alimony paid between the same parties allows such a deviation, compare OCGA § 19–6–15(f)(1)(A)(xxi) (alimony is included in the recipient’s gross income only when “received from persons other than parties to the proceedings before the court”), the amount of the deviation here does not reflect the amount of alimony set forth in the settlement agreement, and the trial court did not make the written findings required to support such a deviation. See OCGA § 19–6–15(i)(2)(G) (“If the court ․ considers the actual payment of alimony, the court shall make a written finding of such consideration ․ as a basis for deviation from the presumptive amount of child support.”). See also OCGA § 19–6–15(c)(2)(E), (i)(1)(B) (reiterating the requirement of written findings for deviations). Notwithstanding these concerns, at this point neither party has challenged the validity of the alimony and child support provisions of the divorce decree, and so we will proceed on the assumption that Mother either waived her entitlement to receive child support payments to help her pay the children’s expenses or that, putting substance over form, such child support is a component of the “alimony” payments she receives.

2.  We note that Father has not moved for summary judgment.

3.  OCGA § 9–15–14(b) says: The court may assess reasonable and necessary attorney’s fees and expenses of litigation in any civil action ․ if, upon the motion of any party or the court itself, it finds that an attorney or party brought or defended an action, or any part thereof, that lacked substantial justification․ As used in this Code section, “lacked substantial justification” means substantially frivolous, substantially groundless, or substantially vexatious.

4.  For the reasons discussed in Division 3(b), Father’s contempt claim based on Mother’s actual (not merely threatened) refusal to pay tuition that was due did not lack substantial justification, so an award of attorney fees under OCGA § 9–15–14 based on this claim would be inappropriate. We express no opinion, however, about whether any violation of the divorce decree by Mother was willful.

NAHMIAS, Justice.

HINES, P.J., BENHAM, HUNSTEIN, MELTON, BLACKWELL, JJ., and Judge ROGER B. LANE, SR. concur.THOMPSON, C.J., not participating.

Aug 23 15

Re-re-Post and Edit (10/27/14 on Motions to Compel in Discovery)

by merlin

Though this post was originally written to address motions to compel Discovery, and that is appropriate in one matter that has arisen in a case recently, it is also appropriate for a Motion to Determine the Sufficiency of Discovery Responses.  I have checked the applicable statute, Section 9-11-37 of the Official Code of Georgia, and the relevant sections do not appear to have changed since my previous article.  Because the entry is therefore relevant to the current Discovery situations in several cases I am working on, the following contains pertinent information:

___________________________________________________

Because a current case involves such a panoply of fabrications and falsehoods that it actually surprised me, the following is an earlier post on the bare basics of Discovery sanctions in Georgia, as a refresher:

The Georgia Code contains a specific provision on Motions to Compel, which is to be filed by a party after the expiration of the statutory period allowed for responses to facts and items requested in Discovery.  If a party doesn’t provide answers to Interrogatories, or fails to respond (admit, deny, or object) to Requests to Admit, or doesn’t give a response to a Notice to Produce (Documents and Things) in a civil lawsuit, OCGA 9-11-37 allows what is termed a Motion to Compel to force the party that is failing to respond to provide the information, adding in sanctions as permitted.

The Code Section provides as follows:

“(a) Motion for order compelling discovery. A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling discovery as follows:
(1) Appropriate court. An application for an order to a party may be made to the court in which the action is pending or, on matters relating to a deposition, to the court in the county where the deposition is being taken. An application for an order to a deponent who is not a party shall be made to the court in the county where the deposition is being taken;
(2) Motion; protective order. If a deponent fails to answer a question propounded or submitted under Code Section 9-11-30 or 9-11-31, or a corporation or other entity fails to make a designation under paragraph (6) of subsection (b) of Code Section 9-11-30 or subsection (a) of Code Section 9-11-31, or a party fails to answer an interrogatory submitted under Code Section 9-11-33, or if a party, in response to a request for inspection submitted under Code Section 9-11-34, fails to respond that inspection will be permitted as requested or fails to permit inspection as requested, the discovering party may move for an order compelling an answer, or a designation, or an order compelling inspection in accordance with the request. When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before he applies for an order. If the court denies the motion in whole or in part, it may make such protective order as it would have been empowered to make on a motion made pursuant to subsection (c) of Code Section 9-11-26;
(3) Evasive or incomplete answer. For purposes of the provisions of this chapter which relate to depositions and discovery, an evasive or incomplete answer is to be treated as a failure to answer; and
(4) Award of expenses of motion.
(A) If the motion is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney’s fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.
(B) If the motion is denied, the court shall, after opportunity for hearing, require the moving party or the attorney advising the motion or both of them to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney’s fees, unless the court finds that the making of the motion was substantially justified or that other circumstances make an award of expenses unjust.
(C) If the motion is granted in part and denied in part, the court may apportion the reasonable expenses incurred in relation to the motion among the parties and persons in a just manner.
(b) Failure to comply with order.
(1) Sanctions by court in county where deposition is taken. If a deponent fails to be sworn or to answer a question after being directed to do so by the court in the county in which the deposition is being taken, the failure may be considered a contempt of that court.
(2) Sanctions by court in which action is pending. If a party or an officer, director, or managing agent of a party or a person designated under paragraph (6) of subsection (b) of Code Section 9-11-30 or subsection (a) of Code Section 9-11-31 to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under subsection (a) of this Code section or Code Section 9-11-35, the court in which the action is pending may make such orders in regard to the failure as are just and, among others, the following:
(A) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;
(B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence;
(C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party;
(D) In lieu of any of the foregoing orders, or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination; or
(E) Where a party has failed to comply with an order under subsection (a) of Code Section 9-11-35 requiring him to produce another for examination, such orders as are listed in subparagraphs (A), (B), and (C) of this paragraph, unless the party failing to comply shows that he is unable to produce such person for examination.
In lieu of any of the foregoing orders, or in addition thereto, the court shall require the party failing to obey the order or the attorney advising him, or both, to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.
(c) Expenses on failure to admit. If a party fails to admit the genuineness of any document or the truth of any matter as requested under Code Section 9-11-36 and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, he may apply to the court for an order requiring the other party to pay him the reasonable expenses incurred in making that proof, including reasonable attorney’s fees. The court shall make the order unless it finds that the request was held objectionable pursuant to subsection (a) of Code Section 9-11-36, or the admission sought was of no substantial importance, or the party failing to admit had reasonable ground to believe that he might prevail on the matter, or there was other good reason for the failure to admit.
(d) Failure of party to attend at own deposition or serve answers to interrogatories or respond to request for inspection.
(1) If a party or an officer, director, or managing agent of a party or a person designated under paragraph (6) of subsection (b) of Code Section 9-11-30 or subsection (a) of Code Section 9-11-31 to testify on behalf of a party fails to appear before the officer who is to take his deposition, after being served with a proper notice, or fails to serve answers or objections to interrogatories submitted under Code Section 9-11-33, after proper service of the interrogatories, or fails to serve a written response to a request for inspection submitted under Code Section 9-11-34, after proper service of the request, the court in which the action is pending on motion may make such orders in regard to the failure as are just; and, among others, it may take any action authorized under subparagraphs (b)(2)(A) through (b)(2)(C) of this Code section. In lieu of any order, or in addition thereto, the court shall require the party failing to act or the attorney advising him, or both, to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.
(2) The failure to act described in the provisions of this chapter which relate to depositions and discovery may not be excused on the ground that the discovery sought is objectionable unless the party failing to act has applied for a protective order as provided by subsection (c) of Code Section 9-11-26.”

Of particular note is that there are provisions specific to different kinds of Discovery – missing a deposition has its own consequences, and evasively responding to a Request to Admit can be so evasive that it is treated as a failure to answer, and there are certain specified punishments for that.  The most interesting aspect of these failures lies in the fact that a party is made responsible for the costs arising from their refusal to participate in Discovery, and these costs can often be very extreme.  With depositions, that tend to involve a party travelling to another geographic location, along with their attorney and a Court Reporter, these costs can be high.

 

Aug 18 15

Continuing Legal Education Notes (ABA Webinar on DUI Courts)

by merlin

ABA CLE – The Promise of DWI Courts

August 13, 2015 Webinar

 

Judge J. Michael Kavanaugh (Retired) – Senior Director National Center for DUI Courts

Hon. Earl Penrod is moderator

www.dwicourts.org

 

Instead of adversarial focus, seek a cooperative rehabilitation.

 

Vehicle Crashes:

Since 1982 (26,000 fatalities) – in 2013: 10,076

Sadly – 13% are alcohol-related crashes

Every 52 minutes, someone in the US is killed in a alcohol-related collision

  • Focus on vehicle technology for preventing/minimizing damage to people from crashes
  • Social efforts (not considered “okay”any longer to drink and drive)
  • Legal mechanisms – DWI COURTS

 

DUI Courts:

  • At first, considered to be an “experiment” after seeing success from Drug Courts
  • Campbell Collaboration – meta-analysis of 28 DWI Courts that were evaluated for content; conclusion was OBJECTIVELY REDUCED RECIDIVISM (both DUI recidivism AND general criminal recidivism)
  • Best DWI Courts had a 50%-60% reduction in recidivism

 

Because focus was not on treatment, people would go to the Courts for a probation revocation hearing without ever receiving any treatment!

  • Can’t just leave it alone – must be ACCOUNTABILITY, not just treatment.
  • DUI Courts succeed because of constant reinforcement of the solutions and constant accountability
  • Program lasts 1 year+ (usu. 18 mos.)

 

Post-Conviction Methodology – must have longer accountability models, based on the realities of both the action/addiction itself, and the reality of the System, too.

  • These are NOT programs for people with lower risk and lesser need
  • High Risk, High Need people need the program most because of the nature of addiction
  • Problem with the adversarial approach is that it does not necessarily give the person what they need to abandon the dangerous behavior (needs to be a holistic approach; find community resources, etc.)
  • The Defendant needs to enter the Court early (optimally, within 20 days of the DUI arrest), so the mind connects bad behavior with punishment with TREATING THE BEHAVIOR
  • Eligibility is screened immediately, including a clinical evaluation (ex. detox may need to be addressed) – Harvard Medical School provides a free clinical assessment online
  • Need to look at parallel situations that affect the person (such as mental health issues affecting their behavior); what about local resources to help the person overall, such as bus schedules, etc.?
  • Need to have VICTIM-IMPACT programs.

 

Remember PROXIMAL versus DISTAL goals, recognize the ACTUAL problems that must be addressed in the individual, and make the sanctions real and consistent.

 

Because they are TREATMENT courts:

  • Must comply with HIPAA
  • Must meet standards of 42 USC

 

Cost-benefit analysis – Positive result after studies; because of reduction in recidivism rates and overall reduction of crashes, etc.

 

Hon. J. Michael Kavanaugh [(Ret.) Senior Director – National Center for DWI Courts] (505) 610-4307 judgekavanaugh@dwicourts.org

Jim Eberspacher [Project Director – National Center for DWI Courts] (571) 384-1875 Jeberspacher@dwicourts.org

Cliff Jacobs [Project Manager – National Center for DWI Courts] (571) 384-1867 cjacobs@dwicourts.org

Aug 10 15

“Actual” Versus “Constructive” Drug Possession Under the Law

by merlin

Frequently, people get charged and convicted for alleged possession of drugs that they themselves did not have physically on their persons, and the difference between actual possession and constructive possession (and the sibling of constructive possession, equal access) needs to be clarified for the public, so this misconception may be put to rest.

The term “possession” is defined by The Law Dictionary (Black’s Law Dictionary online) at http://thelawdictionary.org/possession/as “The detention and control, or the manual or ideal custody, of any- thing which may be the subject of property, for one’s use and enjoyment, either as owner or as the proprietor of a qualified right in it, and either held personally or by another who exercises it in one’s place and name. That condition of facts under which one can exercise his power over a corporeal thing at his pleasure to the exclusion of all other persons.”

As noted, this possession may be actual (defined at http://thelawdictionary.org/actual-possession/) – “Having physical control of an object or real property”; it may also be constructive (defined at http://thelawdictionary.org/constructive-possession/) – “Having control of an item but not having actual possession of it. The item may not yet be delivered or paid for).

I had previously mentioned the concept of “equal access”, which has been written about in another blog post, and which is directly tied to the concept of constructive possession.

The following case is Thomas v. State, 291 Ga.App. 795, 662 S.E.2d 849 (Ga. App. 2008), which does an excellent job of explaining the differences in the context of drug possession between these two methods of “possession”:

Leon Larke, Augusta, for appellant.

Steven Askew, District Attorney, Adriane L. Love, Assistant District Attorney, for appellee.

MIKELL, Judge.

        Corey Thomas was convicted of possession of cocaine with intent to distribute by an Emanuel County jury.1 Thomas was sentenced to 30 years, 15 to serve without parole and the remainder on probation. On appeal, Thomas challenges the sufficiency of the evidence and argues that the trial court erred by failing to charge the jury on equal access, by admitting the prior convictions of two witnesses, and by denying his motions for a mistrial and a directed verdict of acquittal. Thomas also contends that the trial court erred when it sentenced him as a recidivist and in failing to find his trial counsel ineffective. For the reasons stated below, we affirm.

        On appeal from a criminal conviction, the evidence is viewed in the light most favorable to the verdict.2 So viewed, the evidence shows that at approximately 7:30 p.m. on February 4, 2005, agents of the East Central Georgia Drug Task Force served a search warrant at 307 Pughsley Street in Swainsboro. The warrant alleged that Vivian Boynton and Robert Foster were selling drugs out of the house. Former agent Travis Akridge testified that when the officers approached the residence, he saw an individual, later identified as Thomas, sitting on a couch inside the residence and heard him say “task force” before he ran toward the back of the residence. According to Akridge, Thomas ran into the bathroom, closing the door on Akridge’s arm. When Akridge opened the door and removed Thomas from the bathroom, Thomas tossed a clear plastic bag, which contained crack cocaine, near the refrigerator in the kitchen. Akridge also testified that marijuana was found in the bedroom of one of the owners, who was identified in the search warrant.

        On cross-examination, Akridge acknowledged that the case report, which was prepared by Agent Dana Reese, did not include the fact that Thomas had thrown the drugs into the kitchen after Akridge pulled him from the bathroom. Akridge maintained, however, that he reported at the scene that Thomas had possession of the drugs.

        Reese testified that Akridge was in front of him and that he saw Akridge follow Thomas as he ran through the house. Reese further testified that the agents searched the residence and found a crack pipe in the vicinity of the living room and that two other people, Kenneth Hopkins and Wayne Johnson, were in the living room when the raid occurred. The agents also found crack cocaine in the kitchen area (that was tossed by Thomas) and 571 in Thomas’s possession that included 19 20 bills. Reese testified that crack cocaine was commonly sold in 20 amounts.

        Reese testified that a young lady was found in the back bedroom of the residence. Pearson, Hopkins, and Johnson were searched, but no significant amount of cash was found on any of them. Also, the agents did not find drugs on any of the men, including Thomas. Reese testified that Pearson was arrested along with Thomas because he was in the vicinity of the area where the crack cocaine was found. Reese further testified that if an officer had made him aware that one as opposed to another person had possession of the drugs, he would have arrested that person. On cross-examination, however, Reese admitted that the scene was chaotic and that he did not remember who talked to him at the scene, particularly as this was the first search warrant that he had executed in his career.

        1. In his first and fourth enumerated errors, Thomas argues that the trial court should have granted him a new trial and a directed verdict of acquittal due to the insufficiency of the evidence. We address these alleged errors simultaneously.

        The standard of review for the denial of a motion for a directed verdict of acquittal is the same as for determining the sufficiency of the evidence to support a conviction.”3 We do not weigh the evidence or determine witness credibility but only determine whether the evidence is sufficient under Jackson v. Virginia.4 “The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”5 We find the evidence sufficient to support Thomas’s conviction.

        Thomas contends that the evidence was insufficient because there were other individuals in the residence who had equal access to the area where the cocaine was found, specifically the owners and Pearson, who was arrested because of his proximity to the cocaine. Although the house did not belong to Thomas, the evidence shows that only Thomas was in control of the cocaine before it was seized by the officers. According to Akridge, Thomas was the only person who ran when the officers approached the residence. After Akridge chased Thomas to the back of the house and forcibly removed him from the bathroom, Akridge saw Thomas toss the cocaine into the kitchen. The cocaine was seized shortly thereafter.

        Possession of cocaine may be joint or exclusive, actual or constructive.6 “A person who knowingly has direct physical control over a thing at a given time is in actual possession of it.”7Here, the evidence was sufficient to support a finding that Thomas had actual possession of the cocaine.8 Thomas argues that we must give some credence to the fact that no cocaine was found on his person, but “[a]ctual possession requires only direct physical control over a substance; it does not require that the substance be on the defendant’s person.”9 Additionally, Thomas was the only person in the house who had a significant amount of money on his person.

        In support of his argument that the cocaine did not belong to him, Thomas also offered the testimony of Hopkins and Johnson that they had tried to purchase cocaine from him earlier that evening and he told them he had none. The jury obviously chose to believe Akridge’s testimony over that of Hopkins and Johnson. “The credibility of the witnesses and the weight to be given the evidence are the sole province of the jury. The jury therefore was authorized to reject [Thomas’s witnesses’] testimony in favor of the evidence presented by the State.”10 Accordingly, the evidence was sufficient to support a rational trier of fact’s finding of guilt beyond a reasonable doubt, and the trial court correctly denied Thomas’s motions for new trial and for directed verdict of acquittal.

        2. Next, Thomas argues that the trial court erred when it failed to give his request to charge on equal access. Thomas maintains that the owners and Pearson had equal access to the area where the cocaine was found. Again, we find no error.

        The equal access rule entitles a defendant to acquittal where the only evidence of possession is the defendant’s ownership or control over the premises, and the defendant can show that others recently had equal access to the premises. It is simply a defense available to the accused to whom a presumption of possession flows.11

        Here, the state was not relying upon Thomas’s ownership or control of the residence to prove that the cocaine found in the kitchen belonged to him. Rather, the state relied upon direct evidence that Thomas tossed the cocaine into the kitchen after he was apprehended by Akridge. Therefore, “no presumption of ownership arose and the equal access defense was not available. Thus, the trial court did not err by failing to charge the jury on equal access.”12

        Thomas incorrectly argues that State v. Johnson13 supports his position that the trial court was required to give an equal access charge. Johnson involves the question of whether an equal access charge was required in the context of contraband found in a vehicle.14 In that case, our Supreme Court held that the equal access charge was not required because no presumption of ownership was placed into evidence for the jury’s consideration.15 Similarly here, the trial court did not charge on the presumption of ownership.16 Thus,Johnson actually supports the trial court’s decision to refuse Thomas’s equal access charge.

        Thomas maintains that the charge to the jury on constructive possession “specifically presumes possession” and, therefore, triggers the need for the equal access charge, but he cites no authority in support of this position. The court here charged that “[a] person who, though not in actual possession, knowingly has both the power and the intention at any given time to exercise authority or control over a thing is in constructive possession of it.” This charge on constructive possession is not tantamount to a charge on the presumption of ownership. Thus, Thomas’s argument fails.

        3. Thomas contends that the trial court erred when it admitted certified copies of Hopkins’s and Johnson’s prior convictions at trial. We evaluate the trial court’s admission of prior convictions under an abuse of discretion standard.17

        Thomas offered the testimony of Hopkins and Johnson as a part of his defense. Johnson testified that he was a chronic drug user at the time the raid occurred; that earlier that evening he asked Thomas if he had any drugs; that Thomas told him that he did not; that one of the crack pipes confiscated by the police belonged to him; and that he had a prior conviction for sale of cocaine. Similarly, Hopkins testified that the police found a crack pipe on his person; that he asked Thomas for drugs earlier that evening, and Thomas told him that he did not have any; and that he had a prior conviction for sale of cocaine. After each of the witnesses testified that they had prior felony convictions, the state offered certified copies of their convictions into evidence with no objection from defense counsel. Thomas contends that the admission of the certified prior convictions violated OCGA § 24-9-84.1.

        “OCGA § 24-9-84.1 … was enacted in 2005 to establish guidelines for the use of criminal convictions to impeach witnesses or defendants who testify.”18 Subsection (a)(1) provides that for the purpose of attacking a witness’s credibility,

        [e]vidence that a witness has been convicted of a crime shall be admitted if the crime was punishable by death or imprisonment of one year or more under the law under which the witness was convicted if the court determines that the probative value of admitting the evidence outweighs its prejudicial effect to the witness.

        Thomas argues that this statute imposes upon the trial court the duty to weigh sua sponte the probative value of admitting the evidence against its prejudicial effect to the witness, which the trial court did not do in the instant case. Our research reveals that there is no case law that addresses the issue of whether the trial court must perform sua sponte the balancing test prescribed in OCGA § 24-9-84.1(a)(1).

        In the trial court’s order denying Thomas’s motion for new trial, it concluded that Thomas waived any objection to the convictions when he failed to object at trial. The trial court noted that Thomas did not object when each witness testified that he had a prior felony conviction nor did he object to the introduction of the certified convictions. Regarding its duty to conduct the balancing test sua sponte, the trial court correctly stated that OCGA § 24-9-84.1(a) is derived from Rule 609(a) of the Federal Rules of Evidence19 and cites to United States v. Blackshear.20Blackshear held that where counsel never articulated an objection to the lack of a Rule 609 procedure in the trial court, the issue could not be addressed on appeal.21 It follows then that inBlackshear, the Fifth Circuit implicitly held that the trial court had no duty to conduct the balancing test sua sponte.

        We agree with the trial court that Thomas’s failure to object waives the issue on appeal and that it had no duty to conduct the balancing test of OCGA § 24-9-84.1(a)(1) absent an objection. However, had we concluded that the trial court had such a duty, we would still find that no reversible error occurred in this case. In a criminal case, the standard for weighing nonconstitutional error “is known as the `highly probable test,’ i.e., [whether] it is highly probable that the error did not contribute to the judgment.”22 In this case, the testimony of Hopkins and Johnson was offered primarily to show that earlier on the evening in question, Thomas would not sell them drugs, creating the inference for the jury that the drugs found in the kitchen did not belong to Thomas. However, as discussed in Division 1, there was direct testimony from Akridge that Thomas announced “task force” when he saw the officers and then ran from them, that he tossed the cocaine after he was forcibly removed from a room by Akridge, and that he was the only individual upon whom a significant amount of money was found in denominations regularly used by persons selling cocaine. Reese also testified that Thomas ran when he saw the officers approaching the residence. The jury, of course, was authorized to believe the officers’ testimony over that offered by Thomas.23 Therefore, there is no reasonable probability that the jury’s verdict would have been different had the court conducted the balancing test.24 Accordingly, this enumerated error fails.

        4. In his fourth enumerated error, Thomas argues more than one error. He challenges the trial court’s denial of his motion for a directed verdict of acquittal, which we addressed in Division 1, and argues that the trial court erred when it denied his motion for mistrial after the state injected Thomas’s bad character into evidence.

        Our law requires that enumerations “shall set out separately each error relied upon.” OCGA § 5-6-40. When an appellant argues more than one error within a single enumeration, this court in its discretion may elect to review none of the errors so enumerated or elect to review any one or more of the several assertions of error contained within the single enumeration and treat the remaining assertions of error therein as abandoned.25

        Although we have already addressed one of the errors raised in this enumeration of error in Division 1, we exercise our discretion to address the other error raised therein as well.

        Counsel moved for a mistrial after the prosecutor asked investigator Rocky Davis how he knew Thomas, and Davis replied, “I’ve made contact with him in the streets before and I believe through past cases.” After hearing argument, the trial court denied the motion for mistrial and asked if defense counsel wanted a curative instruction. Defense counsel made the tactical decision that a curative instruction was not necessary then proceeded without renewing his motion for a mistrial. Consequently, the issue of whether the trial court improperly denied the motion for mistrial is waived on appeal.26 Further exercising our discretion to address this issue on the merits, however, we point out that “a passing reference to a defendant’s criminal record does not suffice to put his character in evidence so as to violate OCGA § 24-2-2.”27 Therefore, we find no abuse of discretion in the trial court’s decision to deny Thomas’s motion for mistrial.28

        5. Thomas next contends that the trial court erred when it sentenced him as a recidivist pursuant to OCGA § 17-10-7(c). We disagree.

        OCGA § 17-10-7(c) provides, in relevant part, as follows:

        [A]ny person who, after having been convicted under the laws of this state for three felonies or having been convicted under the laws of any other state or of the United States of three crimes which if committed within this state would be felonies, commits a felony within this state other than a capital felony must, upon conviction for such fourth offense or for subsequent offenses, serve the maximum time provided in the sentence of the judge based upon such conviction and shall not be eligible for parole until the maximum sentence has been served.

        Subsection (d) of the statute states that “conviction of two or more crimes charged on separate counts of one indictment or accusation, or in two or more indictments or accusations consolidated for trial, shall be deemed to be only one conviction.”29

        On March 9, 2001, Thomas pled guilty to two separate accusations charging him with possession of cocaine. One of the charges was based on the possession of cocaine on August 9, 1999 (Accusation Number 01-SPCR-25), and the other was based on his possessing cocaine on May 5, 2000 (Accusation Number 01-SPCR-26). On each of those charges, Thomas was sentenced to serve five years on intensive probation supervision, and the sentences were to run concurrently with the sentence that Thomas was serving at that time. In July 2004, Thomas again pled guilty to possession of cocaine and was sentenced to five years to serve two and the remainder on probation. Within less than a year, Thomas was charged in the instant case with possession of cocaine with intent to distribute. Thomas argues that the first two convictions should be treated as one because they were merged, with the sentences running concurrently, and that Thomas was led to believe they would be treated as one offense. Thomas offers in support of his contention the testimony of his trial counsel that he worked in the district attorney’s office from 1994 through 1998 and that it was the policy of the office to encourage defendants to plea on multiple accusations on the same day and to represent to them that those pleas would only count as one offense for purposes of recidivism.

        It is clear from the record that Thomas was sentenced on two separate accusations in 2001 that were not consolidated for trial. Therefore, under OCGA § 17-10-7(d), the trial court properly refused to treat the two possession charges as one offense for purposes of recidivism. Accordingly, since the offense charged here constituted Thomas’s fourth offense, OCGA § 17-10-7(c) applies.

        OCGA § 16-13-30 provides the punishment for the charged offense in the instant case. Subsection (d) provides that

        any person who violates subsection (b) of this Code section with respect to a controlled substance in Schedule I or Schedule II shall be guilty of a felony and, upon conviction thereof, shall be punished by imprisonment for not less than five years nor more than 30 years. Upon conviction of a second or subsequent offense, he or she shall be imprisoned for not less than ten years nor more than 40 years or life imprisonment.

        “Cocaine is classified as a controlled substance that is a narcotic drug. OCGA § 16-13-26(1)(D) lists cocaine as a Schedule II controlled substance.”30 Therefore, the trial court did not err when it sentenced Thomas to 30 years, with 15 to be served without parole and the remaining 15 on probation. Thomas’s argument about the practices of the local district attorney’s office during years preceding the entry of his first guilty plea is unavailing. It is the law as provided in the applicable statutes rather than local practices that governs.

         6. In his last enumeration of error, Thomas argues that his trial counsel was ineffective. Thomas does not explicitly set forth separate alleged deficient acts committed by trial counsel but does argue that the failure to object to the admission of the prior convictions of Hopkins and Johnson caused him harm. Therefore, we will address that alleged claim of ineffectiveness.

        In order to prove his claim of ineffective assistance of counsel, [Thomas] must establish both prongs of the test set out in Strickland v. Washington, 466 U.S. 668, 695-696, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984): (1) that his trial counsel’s performance was deficient and (2) that counsel’s inadequate performance so prejudiced his defense that a reasonable probability exists that the result of the trial would have been different but for that deficiency. Failure to satisfy either prong of this two-part test is fatal to an ineffective assistance claim.31

        In its order denying Thomas’s motion for new trial, the trial court pointed out that Thomas’s trial counsel testified that he strategically decided not to object to the convictions because he wanted the jury to know that the witnesses, who were present when the raid occurred, were convicted drug users. Trial counsel reasoned that in doing so, he thought that the jury would infer that because Hopkins and Johnson were convicted drug users, their pursuit of drugs from Thomas would have been urgent and he would have sold drugs to Hopkins and Johnson if he had some to sell. This reasoning was consistent with Thomas’s argument that the drugs did not belong to him.

        “In general, matters of reasonable trial strategy and tactics will not amount to ineffective assistance of counsel.”32 Although trial counsel acknowledged that in hindsight, he may have objected to the admission of the prior convictions, “when one is considering matters of trial strategy and tactics, the effectiveness of trial counsel must not be judged by hindsight or the ultimate result of the trial.”33 Had we concluded that the failure to object constituted deficient performance, however, we still would not find that the trial court erred when it concluded that trial counsel was not ineffective because there was no harm. As we discussed in Division 3, even if the convictions were erroneously admitted, there was no harm as the other evidence presented in the case supported the jury’s verdict. As Thomas has not shown that a reasonable probability exists that the result of the trial would have been different but for trial counsel’s failure to object to the admission of the witnesses’ prior convictions, his ineffectiveness claim fails.

        Judgment affirmed.

        SMITH, P.J., and ADAMS, J., concur.

—————

Notes:

1. Thomas was jointly indicted with Quinton Pearson, but Pearson was not prosecuted.

2. Paul v. State, 231 Ga.App. 528, 499 S.E.2d 914 (1998).

3. (Citation omitted.) Hester v. State, 282 Ga. 239, 240(2), 647 S.E.2d 60 (2007).

4. 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

5. (Punctuation and footnote omitted.) Christopher v. State, 262 Ga.App. 257, 585 S.E.2d 107 (2003).

6. Davis v. State, 270 Ga.App. 777, 779(1), 607 S.E.2d 924 (2004).

7. (Citation omitted.) Ibekilo v. State, 277 Ga. App. 384, 387(3), 626 S.E.2d 592 (2006).

8. See Hall v. State, 192 Ga.App. 151(1), 384 S.E.2d 428 (1989) (evidence was sufficient to show that the defendant actually possessed the contraband when he threw a bag under a porch and the bag containing marijuana, rolling papers and a bottle of cocaine, was immediately retrieved from that location).

9. (Citation omitted.) Johnson v. State, 194 Ga. App. 743, 745(3), 391 S.E.2d 716 (1990).

10. (Citations and punctuation omitted.) Gaston v. State, 257 Ga.App. 480, 482(1), 571 S.E.2d 477 (2002).

11. (Punctuation and footnotes omitted.) Jackson v. State, 271 Ga.App. 278, 283(3), 609 S.E.2d 207 (2005). Accord Benson v. State, 275 Ga.App. 180, 181(2), 620 S.E.2d 441 (2005) (“equal access principle is applicable only when the State relies on the presumption that the owner of premises is in possession of all its contents”) (citation omitted).

12. (Footnotes omitted.) Jackson, supra. Thomas makes much of the fact that Pearson was arrested because of his proximity to the cocaine and was jointly indicted with Thomas. The jury obviously chose to believe Akridge’s testimony that Thomas had actual possession of the cocaine. Nonetheless, even if Pearson had been tried with Thomas, the equal access defense would not have applied as it is not available where there is evidence of joint possession. Wiggins v. State, 258 Ga.App. 703, 705(2), 574 S.E.2d 896 (2002).

13. 280 Ga. 511, 630 S.E.2d 377 (2006).

14. Id.

15. Id. at 513, 630 S.E.2d 377.

16. The presumption of ownership arises when the state relies on the presumption that the owner of premises is in possession of all its contents, which in turn warrants a charge on equal access. Benson, supra.

17. See Tate v. State, 289 Ga.App. 479, 481, 657 S.E.2d 531 (2008).

18. (Footnote omitted.) Newsome v. State, 289 Ga.App. 590, 592(2), 657 S.E.2d 540 (2008).

19. Id. at 593(2), 657 S.E.2d 540. FRE 609(a) provides that

        [f]or the purpose of attacking the character for truthfulness of a witness, (1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused.

20. 568 F.2d 1120 (5th Cir. 1978).

21. Id. at 1121-1122.

22. (Citation and punctuation omitted.) Felder v. State, 266 Ga. 574, 576(2), 468 S.E.2d 769 (1996).

23. See Wells v. State, 281 Ga. 253, 254(1), 637 S.E.2d 8 (2006).

24. Felder, supra.

25. (Citations and punctuation omitted.) Sheffield v. State, 237 Ga.App. 701, 702(2), 516 S.E.2d 563 (1999).

26. Clark v. State, 289 Ga.App. 612, 617(3), 658 S.E.2d 190 (2008).

27. Height v. State, 281 Ga. 727, 730(4), 642 S.E.2d 812 (2007), citing Johnson v. State, 256 Ga. 604, 605(2), 351 S.E.2d 623 (1987).

28. Rhines v. State, 288 Ga.App. 128, 130-131(2), 653 S.E.2d 500 (2007) (“(w)hether to grant a mistrial based on improper character evidence is within the discretion of the trial judge. In reviewing the trial court’s decision, an appellate court may consider the nature of the statement, the other evidence in the case, and the court’s and counsel’s actions in dealing with the impropriety”) (footnote omitted). See Isaac v. State, 269 Ga. 875, 877(5), 505 S.E.2d 480 (1998) (no abuse of discretion where motion for mistrial denied after officer referred to fact that defendant was in jail and that he had talked to defendant’s probation officer).

29. (Emphasis supplied.)

30. Dennard v. State, 265 Ga.App. 229, 230, 593 S.E.2d 694 (2004).

31. (Citations and punctuation omitted.) Freeman v. State, 282 Ga.App. 185, 187(2), 638 S.E.2d 358 (2006).

32. (Citation omitted.) Stanley v. State, 283 Ga. 36, 41(2)(c), 656 S.E.2d 806 (2008).

33. (Citation omitted.) Williams v. State, 280 Ga. 539, 543(2), 630 S.E.2d 410 (2006).

—————

Aug 4 15

It Really Is Better For a Parent to Spend Time With their Child

by merlin

An issue that has recently arisen is the belief that some people have that it is better for a child to be involved in a wide social network, such as is available in a public school system, over and above the attention of one parent.  However, the law (and common sense) have a definite answer to this dilemma, favoring the devotion of a parent as being more consistent with the “best interests of the child” standard that Section 19-9-3 of the Official Code of Georgia uses as a rule and guide for every child custody decision, over any experience with a wider social group that the child might otherwise have be given (in a social situation, such as a public school environment, for instance).

Specifically, there is a case 2014 Georgia Supreme Court case on point, Rose v. Rose, 294 Ga. 719, 755 S.E.2d 737 (Ga. 2014), which described a divorce involving child custody issues in which a custody award to the father was upheld on appeal because of the way the husband’s work schedule allowed him to provide a far greater level of personal and close interaction with the child than the mother’s provided for.  It is also interesting to note that the Court initially granted its temporary child custody award to the mother, instead, and a “trial and error” approach was taken by the Court below.  It was corrected when the case was appealed.  The case, which makes for informative reading for analogous situations, is below:

Phyllis Renee Williams, Decatur, for appellant.

Daniele Colette Johnson, Atlanta, for appellee.

THOMPSON, Chief Justice.

         Bruce and Latosha Rose were married in 2003. They have one child who was born in 2007. The couple lived in Gwinnett County and the child attended school there until 2012 when the couple separated. After the separation, wife moved to Henry County to be near her sister’s family and took the child with her. Shortly thereafter, wife filed a complaint for divorce against husband in Gwinnett County.

        At a temporary hearing held in August 2012, husband agreed that wife would have primary physical custody of the child. A temporary order was entered giving primary physical custody to wife and stipulating that the child would attend school in wife’s school district. The parties were given joint legal custody and directed to confer with one another on all matters pertaining to the well-being of the child. Following the entry of the temporary order, the child attended an elementary school in Henry County, the wife’s school district.

        A final hearing was held in December 2012 at which husband sought primary physical custody of the child. In this regard, husband expressed his concern for the child’s education in Henry County, claiming that the elementary school that the child could attend in Gwinnett County is ranked 5th in the state, while the school the child attended in Henry County is ranked approximately 400th. Although he allowed that wife essentially was a good mother, husband took issue with the quality of the meals wife gave to the child. In this regard, husband claimed that he fed the child healthy, home cooked meals; but wife fed the child fast food, as well as processed, pre-packaged food, far too often. Husband also asserted that wife’s work schedule required the child to attend an after school program; whereas he works from home several days a week and, therefore, he would be able to retrieve the child from school and spend time with him most afternoons. Finally, husband testified that the child behaved better in his presence than in the presence of wife and that after the child moved to Henry County he “started to talk back a lot more.”

        Following the hearing, the trial court entered a final decree of divorce in which it awarded joint legal custody to both parties and primary physical custody to husband. The trial court did not make findings of facts and conclusions of law. Wife sought and we granted an application for discretionary appeal pursuant to this Court’s Rule 34(4). This appeal followed.

         1. Wife argues the trial court erred in awarding primary physical custody to husband because it focused on factors other than the best interest of the child. See generally Mock v. Mock,258 Ga. 407, 369 S.E.2d 255 (1988) (while trial court may consider conduct of parties in determining custody, it must ultimately decide the custody issue on the basis of the best interest of the child). More specifically, wife asserts the trial court’s custody decision was based only on the ground that husband’s school district provides a better educational opportunity for the child. See generally Bisno v. Bisno, 238 Ga. 328, 232 S.E.2d 921 (1977) (error to find material change substantially affecting welfare of children where only evidence of change stems from the removal of children as students from school); Fox v. Korucu, 315 Ga.App. 851, 854, 729 S.E.2d 16 (2012) (evidence that child’s grades began to drop and she was unhappy and stressed about attending her current school constituted some evidence of material change in circumstances adversely affecting child). We cannot accept this assertion.

         Where the trial court exercises its discretion and awards custody of a child to one fit parent over the other fit parent, the appellate court will not interfere with that decision unless there is evidence the trial court clearly abused its discretion. Powell v. Powell, 277 Ga. 878, 596 S.E.2d 616 (2004); Welch v. Welch, 277 Ga. 808, 809, 596 S.E.2d 134 (2004). If there is any evidence to support the trial court’s decision, it cannot be said there was an abuse of discretion. Id.

Anderson v. Anderson, 278 Ga. 713, 606 S.E.2d 251 (2004).

        Contrary to wife’s assertion, a review of the record provides ample evidence to support the award of physical custody to husband based on the best interest of the child. This includes evidence that husband’s employment schedule enables him to devote more time to the child, see OCGA § 19–9–3(a)(3)(K), that the child is better behaved when he is reared by husband, see OCGA § 19–9–3(a)(3)(C), and that husband provides more nutritious meals for the child. See OCGA § 19–9–3(a)(3)(E). In light of this evidence, we find no clear abuse of discretion.

         The mere fact that wife was awarded temporary physical custody does not require this Court to reach a different result.

        [A]n award of temporary custody “differ[s] in its nature and purpose from an award of permanent custody.” Foster v. Foster, 230 Ga. 658, 660, 198 S.E.2d 881 (1973). The temporary award is intended to create an interim arrangement that serves “[t]he best interests of the child pending adjudication of the rights of the mother and father,” Adams v. State, 218 Ga. 130, 131,126 S.E.2d 624 (1962), whereas an award of permanent custody constitutes “a final adjudication of the rights of the parties.” Id.

Pace v. Pace, 287 Ga. 899, 900, 700 S.E.2d 571 (2010).

        2. The trial court did not err in denying wife’s post-judgment request for findings of fact and conclusions of law. Youngblood v. Youngblood, 263 Ga.App. 820, 821, 589 S.E.2d 602 (2003); OCGA § 9–11–52.

         3. Wife contends the case was not ripe for a final hearing because husband did not complete a parenting workshop previously mandated by the trial court. Because this contention was not raised in the trial court, it will not be addressed on appeal. Earnest v. State, 262 Ga. 494, 495, 422 S.E.2d 188 (1992); Batesville Casket Co. v. Watkins Mortuary, Inc., 293 Ga.App. 854, 855, 668 S.E.2d 476 (2008).

        Judgment affirmed.

All the Justices concur.

Jul 30 15

Shameless Plea for Nomination

by merlin

It’s that time of year again!  The American Bar Association has sent out a call for nominations for the annual Blawg 100 Amici and I am here to shamelessly beg for nominations from my readers.  I know that only a few of you subscribe, but I also know that I have about 800 – 1,000 posts read per day, so I know somebody pays attention to the things I write!

The link is embedded above, and I would love to be included in their list.  If this blawg helps you folks in any way, I am glad to be a source of that assistance, and would appreciate the recognition.

Jul 29 15

A2L Webinar Notes – “Winning Your Case Before Trial Using Persuasive Graphics”

by merlin

A2L Webinar – “Winning Your Case BEFORE Trial Using Persuasive Graphics”

Webinar – July 29, 2015

 

Two-Track Litigation Plan

Juries tend to find two facts very interesting or important, and tend to organize their cases around those two facts.  The lawyer should do the same.

Storytelling for Litigators:

  • REMEMBER: Dealing with HUMAN BEINGS, so tell a story, because SOME STORY will emerge (so better to control the story that does emerge)
  • Scientific Study: Same areas in the brain-scans of subjects (listeners and speakers on same story) light up.
  • Effective storytelling: Use sensory language wherever possible, because the brain does not interpret it as mere NOISE.
  • Engage listener as a PARTICIPANT (not a mere observer) of what you are saying, and do it BEFORE the trial, if possible. You want the story to be consistent for them over the course of the encounter.
  • Don’t tell HOW it happened as much as the WAY it happened.

Must be a VISUAL component as well (studies show vast majority, more than 61%, learns visually)

  • Just relaying information alone is not enough.
  • 2011 Broda-Baum Study: No graphics vs. flipchart vs. static graphics vs. IMMERSIVE graphics (graphics are moving, dynamic)
  • Only the last one provides advantage to retention
  • Not enough to make powerpoint slides and leave it alone
  • Putting everything on slide word-for-word decreases effect of what you are saying (redundancy effect); it actually DECREASES retention and memory
  • Do not use BULLET POINTS (you want to avoid text-heavy stuff)
  • Look at a classic Bill Gates presentation versus a classic Steve Jobs presentation (if users are spending time reading your graphics, not necessarily LISTENING to you); presentation needs to LOOK pricey and well-done, but avoid cost(duh)
  • Professor Edward Tufte (Yale) – study that looked at a mere list of data versus the graphical depiction of same date, presented to NASA for the Challenger disaster; the graphical depiction is MORE PERSUASIVE
  • The presentation showed a timeline they composed versus one their client had done, involving a trademark infringement case, and the VISUAL depiction of the timeline shows the clear infringement, as opposed to the TEXT timeline.
  • They did a VIDEO that was labelled, showing the stuff in PLAIN LANGUAGE (winning with visual evidence)

When they did an information-comparison (powerpoint versus their own version), the PowerPoint was a text-based presentation (ineffective) versus their GRAPHIC version (effective)

 

  • Showing the visual demonstrative:
  1. Tells the other side how much they are going to spend on this case;
  2. Tells the mediator WHO IS GOING TO WIN THE CASE

Tell the story graphically and in a short format!!!

“People will forget what you said, people will forget what you did, but they will never forget how you made them feel.” – Maya Angelou

Jul 27 15

Re-Post (4/15/12 on Temporary Hearings in Divorce Cases)

by merlin

Because the issue has become important again, I have looked at the Uniform Superior Court Rule governing the conduct of temporary hearings (Rule 24.5 – it does not appear to have changed since my entry in April 2012).  The only change that I would make to the entry below is to place significance on a different phrase in subsection (B) – “Except by leave of Court,…” – because there are times when care and custody of a minor child is the ONLY issue relevant, and the minor children might have relevant testimony.

The entry is below:

_________________________________________________

Many people in Georgia, even in relatively ugly divorce cases, choose to represent themselves (they are often convinced that they are as smart as any attorney, but the fact is that there are specialized rules that govern the proper admission and use of evidence and testimony, and even attorneys themselves might be unaware of these rules when they don’t necessarily practice often in a particular area, or they tend to dispose of the matter without need for the procedures that would otherwise be available).  In an action for divorce, the Court will first establish the rights and obligations of the respective parties at a temporary hearing.  It is important to choose the evidence that the Court can/will hear at this hearing carefully, because there are special rules governing that hearing itself, and the hearing sets the standards for the divorce action overall.

Georgia Uniform Superior Superior Court Rule 24.5 gives the following guidelines for this hearing:

(A) At temporary hearings the parties involved and one additional witness for each side may give oral testimony. Additional witnesses must testify by deposition or affidavit unless otherwise ordered by the court. Any affidavit shall be served on opposing counsel at least 24 hours prior to hearing.

(B) Except by leave of court, the minor child/children of the parties shall not be permitted to give oral testimony at temporary hearings; such child/children will be excluded from the courtroom or other place of hearing. When custody is in dispute, if directed by the court, minor child/children of the parties shall be available for consultation with the court. At any such consultation, attorneys for both parties may be in attendance but shall not interrogate such child/children except by express permission from the court. Upon request, the proceedings in chambers shall be recorded.

There are two things that need to be pointed out to the party that is involved in an action for divorce in Georgia, especially when minor children are involved, and I have put both of these topics in italics in the Court Rule above.  The first important issue to note is that the party themselves will have their chance to say something, if they feel that is wise (remember: a party that testifies is guided by their attorney on direct examination, but they are then subject to cross-examination by the other side’s attorney), and they get to support their allegations/contentions with one additional witness.  That additional witness likely ought to provide the testimonial issue that most needs to be addressed in a case by the party, such as a property issue they are fighting over or an issue of child custody during the divorce.

This second point is relevant to the latter phrase I have placed in italics in the Court Rule above: “the minor child/children of the parties shall not be permitted to give oral testimony at temporary hearings”.  This is why it is very important, when the care and custody of minor children is a matter of contention between the parties at a divorce hearing, to make sure that the contentions supporting a party’s views on the child custody issue, or demonstrating the falsity of the contentions of the other party on that issue, are addressed, either by Affidavit (at least, one that isn’t subject to exclusion on the basis of a valid objection) or by use of the additional witness that is permitted under the Rule.

Jul 24 15

Basic Information on Advance Directives for Health Care

by merlin

As a general practitioner, I try to be capable at a wide variety of tasks.  There is an old label for general practitioners like myself: “Jack of all trades; Master of none”.  Changes to the Georgia Probate Code over the past decade have made it increasingly less financially advantageous to attorneys to engage in the practice of drafting and composing testamentary documents (note that this does not hold true for any situation in which those documents are contested, in which it is absolutely to the advantage of any prospective heir or beneficiary to seek an attorney’s assistance) but have made it far easier for non-attorneys to draft the very important testamentary documents that every person should have.

It was with this in mind that I looked into an area of law that I have not examined in a decade or so, and discovered that it had changed significantly since I last did anything involving it: advance healthcare directives.  I had ceased my activity in this area shortly before Georgia revised its statutes to make estate work much simpler for non-lawyers, when it became evident that there was a trend to this activity that would eventually run most lawyers out of the field.  To be clear – an attorney is not necessarily needed for drafting an Advance Directive for Healthcare (the basic document that dictates what rules govern your care when you are unable to respond for yourself), though an attorney is certainly necessary for any disputes that may arise.  If you would like an excellent, step-by-step explanation of this process (with included forms), please look to the online guide to creating an Advance Directive for Healthcare put out by the DHS.

When I did any work at all in this field, this agency relationship was called a “Durable Power of Attorney for Health Care Decisions”, which apparently ceased to apply in 2007.  The rules have changed, but the principle behind these instruments remains the same: when a person is unable to make health-related decisions for themselves, the law provides an instrument whereby they can designate another person to make those decisions for them.

The link I have embedded above puts the following in easier-to-understand terms, but the form for these tools is contained in Section 31-32-4 of the Official Code of Georgia, which reads as follows:

“GEORGIA ADVANCE DIRECTIVE FOR HEALTH CARE

By:                  __                 Date of Birth:                                    

(Print Name)  ______________________________
(Month/Day/Year)___________________________

This advance directive for health care has four parts:

PART ONE HEALTH CARE AGENT. This part allows you to choose someone to make health care decisions for you when you cannot (or do not want to) make health care decisions for yourself. The person you choose is called a health care agent. You may also have your health care agent make decisions for you after your death with respect to an autopsy, organ donation, body donation, and final disposition of your body. You should talk to your health care agent about this important role.

PART TWO TREATMENT PREFERENCES. This part allows you to state your treatment preferences if you have a terminal condition or if you are in a state of permanent unconsciousness. PART TWO will become effective only if you are unable to communicate your treatment preferences. Reasonable and appropriate efforts will be made to communicate with you about your treatment preferences before PART TWO becomes effective. You should talk to your family and others close to you about your treatment preferences.

PART THREE GUARDIANSHIP. This part allows you to nominate a person to be your guardian should one ever be needed.

PART FOUR EFFECTIVENESS AND SIGNATURES. This part requires your signature and the signatures of two witnesses. You must complete PART FOUR if you have filled out any other part of this form.

You may fill out any or all of the first three parts listed above. You must fill out PART FOUR of this form in order for this form to be effective.

You should give a copy of this completed form to people who might need it, such as your health care agent, your family, and your physician. Keep a copy of this completed form at home in a place where it can easily be found if it is needed. Review this completed form periodically to make sure it still reflects your preferences. If your preferences change, complete a new advance directive for health care.

Using this form of advance directive for health care is completely optional. Other forms of advance directives for health care may be used in Georgia.

You may revoke this completed form at any time. This completed form will replace any advance directive for health care, durable power of attorney for health care, health care proxy, or living will that you have completed before completing this form.

PART ONE: HEALTH CARE AGENT

[PART ONE will be effective even if PART TWO is not completed. A physician
or health care provider who is directly involved in your health care may not
serve as your health care agent. If you are married, a future divorce or annulment of your marriage will revoke the selection of your current spouse as your health care agent. If you are not married, a future marriage will revoke the selection of your health care agent unless the person you selected as your health care agent is your new spouse.]

(1) Health Care Agent

I select the following person as my health care agent to make health care
decisions for me:

Name:

Address:

Telephone Numbers:

(Home, Work, and Mobile)

(2) Back-up Health Care Agent

[This section is optional. PART ONE will be effective even if this section is left blank.]

If my health care agent cannot be contacted in a reasonable time period and cannot be located with reasonable efforts or for any reason my health care agent is unavailable or unable or unwilling to act as my health care agent, then I select the following, each to act successively in the order named, as my back-up health care agent(s):

Name:

Address:

Telephone Numbers:

(Home, Work, and Mobile)

Name:

Address:

Telephone Numbers:

(Home, Work, and Mobile)

(3) General Powers of Health Care Agent
My health care agent will make health care decisions for me when I am unable to communicate my health care decisions or I choose to have my health care agent communicate my health care decisions.
My health care agent will have the same authority to make any health care decision that I could make. My health care agent’s authority includes, for
example, the power to:
— Admit me to or discharge me from any hospital, skilled nursing facility, hospice, or other health care facility or service;
— Request, consent to, withhold, or withdraw any type of health care; and
— Contract for any health care facility or service for me, and to obligate me to pay for these services (and my health care agent will not be financially liable for any services or care contracted for me or on my behalf).
My health care agent will be my personal representative for all purposes of federal or state law related to privacy of medical records (including the Health Insurance Portability and Accountability Act of 1996) and will have
the same access to my medical records that I have and can disclose the contents of my medical records to others for my ongoing health care. My health care agent may accompany me in an ambulance or air ambulance if in the opinion of the ambulance personnel protocol permits a passenger and my health care agent may visit or consult with me in person while I am in a hospital, skilled nursing facility, hospice, or other health care facility or service if its protocol permits visitation.
My health care agent may present a copy of this advance directive for health care in lieu of the original and the copy will have the same meaning and effect as the original.
I understand that under Georgia law:
— My health care agent may refuse to act as my health care agent;
— A court can take away the powers of my health care agent if it finds that my health care agent is not acting properly; and
— My health care agent does not have the power to make health care decisions for me regarding psychosurgery, sterilization, or treatment or involuntary hospitalization for mental or emotional illness, developmental disability, or addictive disease.

(4) Guidance for Health Care Agent
When making health care decisions for me, my health care agent should think about what action would be consistent with past conversations we have had, my treatment preferences as expressed in PART TWO (if I have filled out PART TWO), my religious and other beliefs and values, and how I have handled medical and other important issues in the past. If what I would decide is still unclear, then my health care agent should make decisions for me that my health care agent believes are in my best interest, considering the benefits, burdens, and risks of my current circumstances and treatment options.

(5) Powers of Health Care Agent After Death
(A) Autopsy
My health care agent will have the power to authorize an autopsy of my body unless I have limited my health care agent’s power by initialing below. (Initials)

My health care agent will not have the power to authorize an autopsy of my body (unless an autopsy is required by law).

(B) Organ Donation and Donation of Body
My health care agent will have the power to make a disposition of any part or all of my body for medical purposes pursuant to the Georgia Revised Uniform Anatomical Gift Act, unless I have limited my health care agent’s power by initialing below.

[Initial each statement that you want to apply.]
(Initials) My health care agent will not have the power to make a disposition of my body for use in a medical study program.
(Initials) My health care agent will not have the power to donate any of my organs.

(C) Final Disposition of Body
My health care agent will have the power to make decisions about the final disposition of my body unless I have initialed below.
(Initials) I want the following person to make decisions about the final disposition of my body:

Name:

Address:

Telephone Numbers:

(Home, Work, and Mobile)

I wish for my body to be:
(Initials) Buried

OR
(Initials) Cremated

PART TWO: TREATMENT PREFERENCES

[PART TWO will be effective only if you are unable to communicate your treatment preferences after reasonable and appropriate efforts have been made to communicate with you about your treatment preferences. PART TWO will be effective even if PART ONE is not completed. If you have not selected a health care agent in PART ONE, or if your health care agent is not available, then PART TWO will provide your physician and other health care providers with your treatment preferences. If you have selected a health care agent in PART ONE, then your health care agent will have the authority to make all health care decisions for you regarding matters covered by PART TWO. Your health care agent will be guided by your treatment preferences and other factors described in Section (4) of PART ONE.]

(6) Conditions

PART TWO will be effective if I am in any of the following conditions:

[Initial each condition in which you want PART TWO to be effective.]
(Initials) A terminal condition, which means I have an incurable or irreversible condition that will result in my death in a relatively short period of time.

(Initials) A state of permanent unconsciousness, which means I am in an incurable or irreversible condition in which I am not aware of myself or my environment and I show no behavioral response to my environment. My condition will be determined in writing after personal examination by my attending physician and a second physician in accordance with currently accepted medical standards.

(7) Treatment Preferences

[State your treatment preference by initialing (A), (B), or (C). If you choose (C), state your additional treatment preferences by initialing one or more of the statements following (C). You may provide additional instructions about your treatment preferences in the next section. You will be provided with comfort care, including pain relief, but you may also want to state your specific preferences regarding pain relief in the next section.]
If I am in any condition that I initialed in Section (6) above and I can no longer communicate my treatment preferences after reasonable and appropriate efforts have been made to communicate with me about my treatment preferences, then:
(A) (Initials) Try to extend my life for as long as possible, using all medications, machines, or other medical procedures that in reasonable medical judgment could keep me alive. If I am unable to take nutrition or fluids by mouth, then I want to receive nutrition or fluids by tube or other medical means.

OR

(B) (Initials) Allow my natural death to occur. I do not want any medications, machines, or other medical procedures that in reasonable medical judgment could keep me alive but cannot cure me. I do not want to receive nutrition or fluids by tube or other medical means except as needed to provide pain medication.

OR

(C) (Initials) I do not want any medications, machines, or other medical procedures that in reasonable medical judgment could keep me alive but cannot cure me, except as follows:

[Initial each statement that you want to apply to option (C).]
(Initials) If I am unable to take nutrition by mouth, I want to receive nutrition by tube or other medical means.
(Initials) If I am unable to take fluids by mouth, I want to receive fluids by tube or other medical means.
(Initials) If I need assistance to breathe, I want to have a ventilator used.
(Initials) If my heart or pulse has stopped, I want to have cardiopulmonary resuscitation (CPR) used.

(8) Additional Statements

[This section is optional. PART TWO will be effective even if this section is left blank. This section allows you to state additional treatment preferences, to provide additional guidance to your health care agent (if you have selected a health care agent in PART ONE), or to provide information about your personal and religious values about your medical treatment. For example, you may want to state your treatment preferences regarding medications to fight infection, surgery, amputation, blood transfusion, or kidney dialysis. Understanding that you cannot foresee everything that could happen to you after you can no longer communicate your treatment preferences, you may want to provide guidance to your health care agent (if you have selected a health care agent in PART ONE) about following your treatment preferences. You may want to state your specific preferences regarding pain relief.]

(9) In Case of Pregnancy

[PART TWO will be effective even if this section is left blank.]
I understand that under Georgia law, PART TWO generally will have no force and effect if I am pregnant unless the fetus is not viable and I indicate by initialing below that I want PART TWO to be carried out.

(Initials) I want PART TWO to be carried out if my fetus is not viable.

PART THREE: GUARDIANSHIP

(10) Guardianship

[PART THREE is optional. This advance directive for health care will be effective even if PART THREE is left blank. If you wish to nominate a person to be your guardian in the event a court decides that a guardian should be appointed, complete PART THREE. A court will appoint a guardian for you if the court finds that you are not able to make significant responsible decisions for yourself regarding your personal support, safety, or welfare. A court will appoint the person nominated by you if the court finds that the appointment will serve your best interest and welfare. If you have selected a health care agent in PART ONE, you may (but are not required to) nominate the same person to be your guardian. If your health care agent and guardian are not the same person, your health care agent will have priority over your guardian in making your health care decisions, unless a court determines otherwise.]

[State your preference by initialing (A) or (B). Choose (A) only if you have also completed PART ONE.]

(A) (Initials) I nominate the person serving as my health care agent under PART ONE to serve as my guardian.

OR

(B) (Initials) I nominate the following person to serve as my guardian:
Name:
Address:
Telephone Numbers:

(Home, Work, and Mobile)

PART FOUR: EFFECTIVENESS AND SIGNATURES

This advance directive for health care will become effective only if I am unable or choose not to make or communicate my own health care decisions. This form revokes any advance directive for health care, durable power of attorney for health care, health care proxy, or living will that I have completed before this date.
Unless I have initialed below and have provided alternative future dates or events, this advance directive for health care will become effective at the time I sign it and will remain effective until my death (and after my death to the extent authorized in Section (5) of PART ONE).

(Initials) This advance directive for health care will become effective on or upon and will terminate on or upon .

[You must sign and date or acknowledge signing and dating this form in the
presence of two witnesses.

Both witnesses must be of sound mind and must be at least 18 years of age, but the witnesses do not have to be together or present with you when you sign this form.

A witness:
Cannot be a person who was selected to be your health care agent or back-up health care agent in PART ONE;
Cannot be a person who will knowingly inherit anything from you or otherwise knowingly gain a financial benefit from your death; or Cannot be a person who is directly involved in your health care.

Only one of the witnesses may be an employee, agent, or medical staff member of the hospital, skilled nursing facility, hospice, or other health care facility in which you are receiving health care (but this witness cannot be directly involved in your health care).]

By signing below, I state that I am emotionally and mentally capable of making this advance directive for health care and that I understand its purpose and effect.

(Signature of Declarant) (Date)

The declarant signed this form in my presence or acknowledged signing this form to me. Based upon my personal observation, the declarant appeared to be emotionally and mentally capable of making this advance directive for health care and signed this form willingly and voluntarily.

(Signature of First Witness) (Date)

Print Name:

Address:

(Signature of Second Witness) (Date)

Print Name:

Address:

[This form does not need to be notarized.]”

Note that this form DOES NOT NEED TO BE NOTARIZED, but it certainly does need to be executed in the presence of TWO witnesses.  The following case is the prevailing Georgia ruling on the interpretation afforded to this statute, Doctors Hosp. of Augusta, LLC v. Alicea, A15A0107 (Ga. App., 2015), which better illustrates the power-relationship between the personal representative designated by an Advance Directive and the Advance Directive iteself:

FOURTH DIVISION

BARNES, P. J.,

RAY, and MCMILLIAN, JJ.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed.

Barnes, Presiding Judge.

This appeal raises questions pertaining to the immunity of health care providers and facilities under the Georgia Advance Directive for Health Care Act, OCGA § 31-32-1 et seq. (“Advance Directive Act”) and to the law of informed and basic consent. The plaintiff, as administrator of the estate of her grandmother, sued Doctors Hospital of Augusta, LLC and Dr. Phillip William Catalano, alleging that they intubated the plaintiff’s grandmother and placed her on mechanical ventilation, which prolonged her life when she was in a terminal condition and caused her unnecessary pain and suffering, contrary to the grandmother’s advance directive and the specific directions of her designated health care agent. The plaintiff asserted claims for, among other things, medical malpractice for lack of informed consent and medical battery for lack of basic consent.

The defendants moved for summary judgment, contending that the uncontroverted evidence showed that they were immune from liability for intubating the grandmother on March 7, 2012 based on OCGA § 31-32-10 (a) (2) and (3) of the Advance Directive Act; that they obtained informed consent for a March 5, 2012 surgical procedure performed on the grandmother; and that they obtained basic consent for the March 5 procedure and March 7 intubation. The trial court denied summary judgment to the defendants on these claims.

For the reasons discussed below, we affirm the trial court’s denial of the defendants’ motion for summary judgment on their defense of statutory immunity and on the plaintiff’s medical battery claim for lack of basic consent to the March 7 intubation. However, we reverse the trial court’s denial of summary judgment to the defendants on the plaintiff’s claims based on the alleged lack of basic and informed consent relating to the grandmother’s March 5 surgical procedure.

Summary judgment is appropriate only if the pleadings and evidence “show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” OCGA § 9-11-56 (c). We review the denial of summary judgment de novo and view the evidence in the light most favorable to the nonmoving party. Hood v. Todd, 287 Ga. 164, 165 (695 SE2d 31) (2010). Guided by these principles, we turn to the record in the present case.

Stephenson’s Advance Directive for Healthcare. In November 2009, Bucilla C. Stephenson executed an advance directive for healthcare (the “Advance Directive”).1;In her Advance Directive, Stephenson designated Jacqueline Alicea, her granddaughter with whom she lived, as her health care agent if she became “incapable of making [her] own decisions.” She granted Alicea the unlimited authority “to make all health-care decisions for [her], including decisions to provide, withhold, or withdraw artificial hydration and nutrition, and all other forms of health care to keep [her] alive.” Alicea was authorized to consent or refuse consent to any medical treatment or procedure and to direct the withholding of cardiopulmonary resuscitation (“CPR”) and other forms of health care.

Additionally, in her Advance Directive, Stephenson instructed her health care providers and others involved in her care not to prolong her life under the following circumstances: (1) when she had an incurable and irreversible condition that would result in her death within a relatively short period of time; (2) when she became unconscious and, to a reasonable degree of medical certainty, would not regain consciousness; or (3) when the likely risks and burdens of treatment outweighed the expected benefits. The Advance Directive did not specifically list or define the medical technology that Stephenson did or did not desire to be used as part of her medical care. But Stephenson informed her family members that she did not want to be kept alive “on any machines” at the hospital, including a ventilator, if her condition was terminal.

Stephenson’s Admission to Doctor’s Hospital. In late February 2012, Stephenson, then 91 years old, developed a persistent cough. On the morning of March 3, 2012, Stephenson awoke lethargic and “not very responsive,” and she lost consciousness and bowel control when Alicea was bathing her. Alarmed by Stephenson’s condition, Alicea and her husband drove Stephenson to the Doctor’s Hospital emergency room.

Upon arrival at the emergency room, Stephenson was disoriented and unable to complete a sentence because of her shortness of breath. Stephenson was examined in the emergency room and subsequently was admitted to Doctors Hospital after her blood work and a chest x-ray showed that she was suffering from pneumonia, sepsis, and acute renal failure.

Alicea provided the hospital with a copy of Stephenson’s Advance Directive and her contact information so that she could be consulted about Stephenson’s care if she were away from the hospital. Hospital policy required that upon admission to the hospital, a copy of a patient’s advance directive be placed in the front of the medical record behind the admission tab to ensure that it was readily available to all physicians and hospital staff. A copy of Stephenson’s Advance Directive was placed in her medical record, but not behind the admission tab where it could easily be seen and reviewed.

Alicea’s Communications to the Physicians. On the morning following Stephenson’s admission, Alicea was at home preparing to return to the hospital when she received a phone call from Dr. Catalano, a thoracic and cardiovascular surgeon with staff privileges at Doctors Hospital. Dr. Catalano informed Alicea that Stephenson was being moved to the intensive care unit (“ICU”) where he would be treating her and that he planned to perform a computed tomography (“CT”) scan to better assess her condition. During the phone call, Alicea told Dr. Catalano about Stephenson’s Advance Directive and specifically instructed that no CPR should ever be administered and “no heroic measures” employed.

The CT scan performed on March 4 showed that the pneumonia was causing a build-up of fluid around Stephenson’s lung that was displacing her heart. Around 2:30 p.m. that same day, Alicea received a phone call from Dr. Carmel Joseph, an ICU physician, who wanted to perform a thoracentesis, a therapeutic procedure that involved inserting a tube into Stephenson’s chest to drain the fluid around the lung. Alicea consented to the thoracentesis during the phone call.

Repeating what she told Dr. Catalano earlier that day, Alicea informed Dr. Joseph during their phone call that although she was consenting to the thoracentesis, Stephenson wanted no “heroic measures” to prolong her life and that there was to be no CPR because she feared that Stephenson would be injured during chest compressions. Alicea also specifically directed Dr. Joseph that no intubation be performed or mechanical ventilation be used on Stephenson without first calling her for permission.2 Under hospital policy, any discussions between a physician and family members regarding an advance directive were to be documented in the progress notes on the patient’s medical chart. Pursuant to that policy, Dr. Joseph made two notations in his March 4 progress note that Stephenson was “no CPR” and that Alicea was to be called “before patient is intubated.”

After his phone call with Alicea, Dr. Joseph performed the thoracentesis, which revealed pockets of pus within Stephenson’s chest cavity outside of her lungs. Concerned that Stephenson faced an imminent risk of death from overwhelming infection in her chest cavity, the physicians involved in Stephenson’s care agreed that Dr. Catalano would consult with Stephenson’s family about performing an additional surgical procedure to drain the pus.

The March 5 Surgical Procedure. On the morning of March 5, Alicea received a telephone call from Dr. Catalano, who asked for her consent to perform the surgical procedure to drain more fluid from Stephenson’s lung cavity. He told Alicea he would insert a tube for drainage and that Stephenson would be under general anesthesia for the procedure. Dr. Catalano had not reviewed the progress notes in the medical chart and did not inform Alicea that the procedure would require intubation. Unaware that Stephenson would be intubated, Alicea consented to the procedure.

Dr. Catalano performed the surgical procedure later that day. He cleaned out the infected area of Stephenson’s chest cavity and removed portions of the lung upon discovering that the tissue was necrotic. Once the procedure was completed, Stephenson was extubated (i.e., the tube inserted into her airway was removed) and taken off the ventilator.

The March 7 Intubation. Following the March 5 surgical procedure, Stephenson’s condition continued to deteriorate, and by approximately 4:00 a.m. on March 7, she was unable to respond to questions from the ICU nurses and “was beginning to go into respiratory failure.” Despite the notation in the progress notes that there was to be no CPR or intubation without calling Alicea, the nurses did not contact Alicea, who had gone home for the night. Instead, one of the nurses called Dr. Catalano at home around 4:00 a.m. and asked him to give an order for Stephenson to be intubated. Although Alicea had told Dr. Catalano on March 4 that Stephenson had an Advance Directive and he knew that Alicea was the designated health care agent, Dr. Catalano had not reviewed the Advance Directive since that time and did not contact Alicea upon receiving the phone call from the ICU nurse. Furthermore, although hospital policy was to document conversations regarding an advance directive in the progress notes, Dr. Catalano had not reviewed the progress notes regarding Stephenson’s care.

Without contacting Alicea for permission, Dr. Catalano gave the order to intubate Stephenson. Based on Dr. Catalano’s order, Dr. Troy Coon, the on-duty physician in the emergency room, came to the ICU and intubated Stephenson around 4:50 a.m.

Later that morning, Alicea’s husband visited Stephenson in the ICU and was surprised to find her intubated and on a ventilator. After her husband called and informed her of the intubation, Alicea returned to the hospital. Alicea spoke with the ICU nurses and asked them to locate the hospital’s copy of Stephenson’s Advance Directive. The nurses initially could not find the hospital’s copy but ultimately located it in Stephenson’s medical chart at the ICU main desk. When Alicea demanded to know why Stephenson had been intubated without calling her first for permission, the nurses asked Dr. Michael Behnia, the attending pulmonologist who was managing Stephenson’s overall care in the ICU, to speak with Alicea about the situation.

Dr. Behnia advised Alicea of the circumstances of the early morning intubation and of Stephenson’s condition and treatment options. He informed Alicea that she could authorize an extubation and the removal of the ventilator, and that to do so would cause Stephenson to suffocate. Alicea was further advised that, alternatively, she could authorize the medical team to continue to treat Stephenson, including a second surgical procedure by Dr. Catalano to clean out more pus from the chest cavity.

Alicea showed the Advance Directive to Dr. Behnia and told him that the hospital had failed to follow Stephenson’s wishes by intubating her and placing her on a ventilator, but that “since they put her on it, they had to take care of her.” Alicea drew a distinction between never placing Stephenson on a ventilator and “let[ting] nature take its course,” and taking the affirmative step of removing her from the ventilator now that she was already on it. According to Alicea, she now “had to make the decision that [she] wasn’t supposed to have to make.” Declining to have Stephenson extubated and the ventilator removed at that point, Alicea chose to continue treatment for Stephenson and consented to the second surgery by Dr. Catalano, which he performed on March 8.

Stephenson’s Subsequent Medical Procedures. As Stephenson’s condition continued to deteriorate after the March 8 surgery, a number of additional medical procedures and interventions were performed on the advice of Stephenson’s physicians and with Alicea’s consent, including the placement of a feeding tube, a bronchoscopy to remove pus from the airway, and a tracheostomy to provide an airway and remove lung secretions. Stephenson remained in the ICU until March 14, when Alicea and the attending physicians authorized the removal of Stephenson from the ventilator, the entry of a “Do Not Resuscitate” order, and the provision of comfort measures only from that point forward. Stephenson died on March 17.

Procedural Background. On May 14, 2013, Alicea, as the administrator of the estate of Stephenson, filed her complaint for damages against Dr. Catalano and Doctors Hospital (collectively, the “Defendants”), alleging claims of breach of agreement, professional and ordinary negligence, medical battery, intentional infliction of emotional distress, and breach of fiduciary duty for injuries allegedly arising out of the care and treatment of Stephenson at Doctors Hospital.3 The complaint alleged that Dr. Catalano and the nurses and other medical personnel associated with Doctors Hospital had caused Stephenson pain, suffering, and emotional distress by subjecting her to unnecessary medical procedures, specifically intubation and placement on a ventilator on March 5 and March 7, when she was terminally ill, in violation of her Advance Directive and the instructions of Alicea as her designated health care agent. The complaint sought compensatory and punitive damages, together with attorney fees and the expenses of litigation.

Alicea relied upon an expert on gerontology, geriatrics, and palliative care4 to support her claims.5 The expert opined that when Stephenson arrived at the emergency room on March 4, “she had an incurable and irreversible condition that was likely to result in her death within a relatively short period of time thereafter.” Consequently, the expert opined that the Defendants were required under the standard of care to refrain from taking steps to prolong Stephenson’s life in accordance with her Advance Directive and the instructions of her designated health care agent, Alicea. According to the expert, Dr. Catalano breached the standard of care by failing to review Stephenson’s Advance Directive and the progress notes in her medical chart to determine if Alicea had given any directions for Stephenson’s care; by failing to obtain basic and informed consent from Alicea before the March 5 surgical procedure involving intubation; and by failing to obtain basic consent from Alicea before the March 7 intubation. The expert further opined that the nurses employed by Doctors Hospital had violated the standard of care by failing to contact Alicea before the March 7 intubation and failing to call Dr. Catalano’s attention to Stephenson’s Advance Directive and the notation in the progress notes regarding intubation.

Alicea later testified in her deposition that she would not have consented to Stephenson’s March 5 surgical procedure if she had been told it would involve intubation, and would not have consented to the March 7 intubation if she had been called before it occurred. According to Alicea, if she had been told on March 5 that the proposed procedure involved intubation, she would have authorized only less invasive procedures such as a thoracentesis, and if she had been called on March 7, she would have authorized only comfort measures from that point forward rather than intubation.

Dr. Catalano conceded in his deposition that he knew that Alicea was Stephenson’s health care agent under the Advance Directive but did not contact her before the March 7 intubation. Nor had he reviewed the Advance Directive or the March 4 progress note containing Alicea’s direction that no intubation occur without calling her first. Dr. Catalano testified that because the family had authorized the March 5 surgical procedure on Stephenson that had involved general anesthesia, and “obviously [he] had to intubate her to do [that] surgery,” he had believed there would be no objection to the March 7 intubation. Later in his deposition, Dr. Catalano testified that he had decided it would be better to order the intubation on March 7 and then consult the family later about whether they wanted to remove the ventilator: “[W]hen this happened I really didn’t go into any of the code/no code / do not intubate/resuscitate. Save the patient’s life first and then we’ll do whatever it takes to make the family and the patient whatever, but we can’t undo death. So that’s what I was thinking.”

Following discovery, the Defendants moved for summary judgment. The Defendants contended that they were shielded from liability for any claims relating to the March 7 intubation under the immunity provisions of OCGA § 31-32-10 (a) (2) and (3), and that any claims for lack of basic and informed consent for the March 5 surgical procedure and the March 7 intubation failed as a matter of law.

After conducting a hearing, the trial court granted in part and denied in part the Defendants’ motion for summary judgment. Specifically, the trial court granted summary judgment to the Defendants with respect to any informed consent claim based on the March 7 intubation, finding as a matter of law that intubation was not a medical procedure that required informed consent under Georgia law as set forth in OCGA § 31-9-6.1 (a).6 The trial court denied the Defendants’ motion for summary judgment as to all remaining claims and issues, including whether the Defendants were entitled to immunity for the March 7 intubation under OCGA § 31-32-10 (a), whether there was basic and informed consent for the March 5 surgical procedure, and whether there was basic consent for the March 7 intubation.

In conjunction with its summary judgment order, the trial court granted a certification of immediate review. The Defendants filed an application for interlocutory appeal, which we granted. This appeal followed.

1. The Defendants contend that the trial court erred in denying their motion for summary judgment on Alicea’s claims pertaining to the March 7 intubation because the uncontroverted evidence showed that they were entitled to immunity under OCGA § 31-32-10 (a) (2) and (3). Immunity under the statute is an affirmative defense, and thus the Defendants had the burden of proving that they were immune from liability. See Heath v. Emory Univ. Hosp., 208 Ga. App. 629, 631 (2) (431 SE2d 427) (1993) (defendants had burden of proving affirmative defense of statutory immunity for good faith compliance with procedures for holding a patient in a mental health facility after the patient has requested discharge). We conclude that the trial court properly denied summary judgment to the Defendants on the immunity question because genuine issues of material fact exist regarding whether the Defendants made a good faith effort to rely on the directions and decisions of Alicea, Stephenson’s health care agent under her Advance Directive, in carrying out the March 7 intubation.

The Advance Directive Act is codified at OCGA §§ 31-32-1 through 31-32-14. In adopting the current version of the Act, the General Assembly noted that it “has long recognized the right of the individual to control all aspects of his or her personal care and medical treatment, including the right to insist upon medical treatment, decline medical treatment, or direct that medical treatment be withdrawn,” and that “the clear expression of an individual’s decisions regarding health care, whether made by the individual or an agent appointed by the individual, is of critical importance not only to citizens but also to the health care and legal communities, third parties, and families.” Ga. L. 2007, p.133, § 1 (a), (d).

Among other things, the Advance Directive Act authorizes an adult of sound mind (the “declarant”) to execute a document designating a health care agent to make decisions on his or her behalf when the “declarant is unable or chooses not to make health care decisions for himself or herself.” OCGA §§ 31-32-2 (3), (6); 31-32-5 (a) (1). The health care agent may consent to or refuse any medical care or treatment for the declarant, including any surgical or life-sustaining procedures. OCGA § 31-32-7 (e) (1). The agent must exercise his or her powers “consistent with the intentions and desires of the declarant” if known, but if the declarant’s wishes are unclear, the agent must “act in the declarant’s best interest considering the benefits, burdens, and risks of the declarant’s circumstances and treatment options.” OCGA § 31-32-7 (b).

When the designated agent notifies a health care provider of a decision regarding the declarant’s medical care or treatment, the provider must abide by the agent’s decision, “subject to the health care provider’s right to administer treatment for the declarant’s comfort and alleviation of pain.” OCGA § 31-32-8 (2). However, OCGA § 31-32-10 (a) (2) and (3) of the Advance Directive Act affords health care providers and facilities7 immunity from liability for the refusal or failure to comply with a health care agent’s decision, so long as certain conditions are met.8Specifically, OCGA § 31-32-10 (a) provides in part:

(a) Each health care provider, health care facility, and any other person who acts in good faith reliance on any direction or decision by the health care agent shall be protected and released to the same extent as though such person had interacted directly with the declarant as a fully competent person. Without limiting the generality of the foregoing, the following specific provisions shall also govern, protect, and validate the acts of the health care agent and each such health care provider, health care facility, and any other person acting in good faith reliance on such direction or decision:
(1) No such health care provider, health care facility, or person shall be subject to civil or criminal liability or discipline for unprofessional conduct solely for complying with any direction or decision by the health care agent, even if death or injury to the declarant ensues;
(2) No such health care provider, health care facility, or person shall be subject to civil or criminal liability or discipline for unprofessional conduct solely for failure to comply with any direction or decision by the health care agent, as long as such health care provider, health care facility, or person promptly informs the health care agent of such health care provider’s, health care facility’s, or person’s refusal or failure to comply with such direction or decision by the health care agent. The health care agent shall then be responsible for arranging the declarant’s transfer to another health care provider. A health care provider who is unwilling to comply with the health care agent’s decision shall continue to provide reasonably necessary consultation and care in connection with the pending transfer;
(3) If the actions of a health care provider, health care facility, or person who fails to comply with any direction or decision by the health care agent are substantially in accord with reasonable medical standards at the time of reference and the provider cooperates in the transfer of the declarant pursuant to paragraph (2) of Code Section 31-32-8,9 the health care provider, health care facility, or person shall not be subject to civil or criminal liability or discipline for unprofessional conduct for failure to comply with the advance directive for health care . . . .

(Emphasis supplied.)

The immunity question raised in this case centers on the Defendants’ “failure to comply” with Alicea’s direction to contact her and obtain permission before intubating Stephenson and placing her on a ventilator on March 7.10 By its plain language, OCGA § 31-32-10 (a) (2) and (3) afford immunity to a health care provider or facility that fails to comply with a direction of the health care agent if: the provider or facility promptly informed the agent of the failure to comply with the agent’s direction; the actions of the health care provider or facility that failed to comply with the agent’s direction were “substantially in accord with reasonable medical standards at the time of reference”; and the provider or facility cooperated in the transfer of the declarant at the behest of the agent and provided reasonably necessary consultation and care of the declarant in connect with the pending transfer.

In addition to these elements, Alicea argues that when the statute is read as a whole, immunity for the failure to comply with a health care agent’s direction under OCGA § 31-32-10 (a) (2) and (3) requires a showing that the health care provider or facility was acting in good faith reliance on the directions and decisions of the agent. In contrast, the Defendants suggest that good faith reliance, referenced in the introductory clause of the statute, is not an element of proving immunity for a provider or facility’s failure to comply with an agent’s direction under OCGA § 31-32-10 (a) (2) and (3). We agree with Alicea that good faith reliance must be taken into account as part of the immunity analysis.

Statutory construction is a question of law, and our review is de novo. Hill v. First Atlantic Bank, 323 Ga. App. 731, 732 (747 SE2d 892) (2013). “In construing a legislative act, a court must first look to the literal meaning of the act. If the language is plain and does not lead to any absurd or impracticable consequences, the court simply construes it according to its terms and conducts no further inquiry.” (Punctuation and footnote omitted.) Savannah Cemetery Group v. DePue-Wilbert Vault Co., 307 Ga. App. 206, 207 (1) (704 SE2d 858) (2010). Furthermore, “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.” (Citation and punctuation omitted.) Walker County v. Tri-State Crematory, 292 Ga. App. 411, 414-415 (1) (664 SE2d 788) (2008). Different subsections of a statute should be read in pari materia, and we must strive to “reconcile them, if possible, so that they may be read as consistent and harmonious with one another.” (Punctuation and footnote omitted.) City of LaGrange v. Ga. Public Svc. Comm., 296 Ga. App. 615, 621 (2) (675 SE2d 525) (2009).

Applying these principles in the present case, we conclude that the immunity afforded by OCGA § 31-32-10 (a) (2) and (3) applies only where the health care provider or facility was making a good faith effort to rely on the decisions and directions of the health care agent when treating the declarant, but nevertheless failed to comply with a direction of the agent. The first sentence of the introductory clause of OCGA § 31-32-10 (a) refers to health care providers and facilities that act “in good faith reliance on any direction or decision by the health care agent,” and the second sentence states that “without limiting the generality of the foregoing, the following specific provisions shall also govern, protect, and validate the acts of the health care agent and each such health care provider, health care facility, and any other person acting in good faith reliance on such direction or decision.” (Emphasis supplied.) OCGA § 31-32-10 (a). The second sentence of the introductory clause then ends with a colon followed by several subsections, including subsections (a) (2) and (3), which address failures to comply with a health care agent’s direction or decision. In turn, OCGA § 31-32-10 (a) (2) begins with the words “no such health care provider, health care facility, or person,” linking the subsection to the introductory clause, and OCGA § 31-32-10 (a) (3) further elaborates on the conditions under which immunity can be obtained for failing to comply with an agent’s direction or decision.

Taken together, the language, grammar, and structure of OCGA § 31-32-10 (a) reflect that the requirement of “good faith reliance” on a health care agent’s direction or decision referenced in the introductory clause was intended to apply to the subsections that follow it, including subsections (a) (2) and (3) pertaining to a failure to comply with an agent’s direction or decision. To reconcile and harmonize the introductory clause with these subsections and give effect to all the statutory language, we construe the immunity afforded by OCGA § 31-32-10 (a) (2) and (3) to arise only where the health care provider or facility made a good faith effort to rely on the directions and decisions of the health care agent in the medical care and treatment of the declarant that has been called into question. By construing the introductory clause and subsections in this manner, we avoid any apparent internal conflict in the statute and render the provisions consistent and harmonious with one another, as we are charged to do. Ford Motor Co. v. Carter, 239 Ga. 657, 661 (238 SE2d 361) (1977).

Accordingly, the Defendants, to prove that they were entitled to immunity under OCGA § 31-32-10 (a) (2) and (3) as a matter of law, had to establish that the uncontroverted evidence of record showed that they were making a good faith effort to rely on the directions and decisions of the health care agent, Alicea, when Stephenson was intubated in the ICU on March 7. “Good faith” has been defined as “a state of mind indicating honesty and lawfulness of purpose; belief that one’s conduct is not unconscionable or that known circumstances do not require further investigation.” (Punctuation, and footnote omitted.) O’Heron v. Blaney, 276 Ga. 871, 873 (1) (583 SE2d 834) (2003). See Anderson v. Little & Davenport Funeral Home, 242 Ga. 751, 753 (1) (251 SE2d 250) (1978). “Ordinarily, good faith is a question for the jury based on a consideration of the facts and circumstances of the case.” Purcell v. Breese, 250 Ga. App. 472, 476 (4) (552 SE2d 865) (2001). See Hodges v. Youmans, 129 Ga. App. 481, 483 (3) (200 SE2d 157) (1973).

As previously discussed, Dr. Catalano testified in his deposition that he had believed he was carrying out the family’s wishes in ordering the March 7 intubation because in his “framework of thinking” Alicea had authorized him to perform the March 5 surgical procedure involving general anesthesia that required intubation. Dr. Catalano’s testimony would support a finding by a jury that he was making a good faith effort to rely on the directions and decisions of Alicea when he ordered Stephenson’s intubation.

On the other hand, Dr. Catalano later testified in his deposition that he “didn’t go into any of the code/no code / do not intubate/resuscitate” in deciding to intubate Stephenson on March 7 because he had decided to place her on ventilation first and then give the family the choice whether to remove her from it. Additionally, there was evidence that Alicea had specifically told Dr. Catalano that Stephenson had an Advance Directive and that Alicea did not want CPR or “heroic measures” performed on Stephenson. Despite these communications, Dr. Catalano chose not to read the Advance Directive or to contact Alicea before ordering the intubation, even though up to 50 minutes passed between when he was called by the ICU nurses and when the intubation was performed. Dr. Catalano also chose not to review the progress notes in Stephenson’s medical chart, which would have alerted him to Alicea’s express direction that no intubation occur without her permission, even though hospital policy reflected that any communications between a physician and family members regarding an advance directive would be documented there, and Dr. Catalano conceded that he had seen and reviewed the hospital’s policies pertaining to advance directives.

This combined evidence, when viewed in the light most favorable to Alicea as the non-moving party, creates a genuine issue of material fact as to whether Dr. Catalano made a good faith effort to rely on the directions and decisions of Alicea when he ordered the March 7 intubation. See Purcell, 250 Ga. App. at 477 (4) (genuine issues of material fact precluded summary judgment on question of physician’s good faith under different immunity statute, where there was evidence that, among things, the physician failed to call the patient’s parents or review notes in the patient’s file made by another physician that would have alerted him to the patient’s need for further treatment). The trial court thus committed no error in denying summary judgment to Dr. Catalano on his immunity defense under OCGA § 31-32-10 (a) (2) and (3).

We reach the same result with respect to Doctors Hospital, which failed to point to any evidence reflecting that the nurses employed at the hospital who were involved in the March 7 intubation of Stephenson made a good faith effort to rely on the directions and decisions of Alicea as the designated health care agent. Because Doctors Hospital had the burden of proof on this issue, see Heath, 208 Ga. App. at 631 (2), the lack of evidence in the record regarding the good faith reliance of its nurses precluded the grant of summary judgment in its favor on the issue of immunity under OCGA § 31-32-10 (a) (2) and (3), as the trial court properly concluded.11

2. The Defendants also contend that the trial court erred in denying their motion for summary judgment on Alicea’s medical malpractice claim for lack of informed consent based on the March 5 surgical procedure performed on Stephenson that involved intubation. According to the Defendants, Alicea failed to come forward with any evidence showing that Stephenson was injured by the March 5 procedure, and thus cannot succeed on her informed consent claim as a matter of law. We agree.

“Georgia does not recognize a common law duty to inform patients of the material risks of a proposed treatment or procedure[.]” Blotner v. Doreika, 285 Ga. 481 (678 SE2d 80) (2009). However, by statute,

any person who undergoes any surgical procedure under general anesthesia . . . must consent to such procedure and shall be informed of the diagnosis, nature, and purpose of the surgical or diagnostic procedure, material risks of the procedure, likelihood of success, the practical alternatives to the procedure, and the prognosis if the procedure is rejected.

(Citation and punctuation omitted.) Roberts v. Connell, 312 Ga. App. 515, 518 (2) (718 SE2d 862) (2011). See OCGA § 31-9-6.1 (a). To bring an action for medical malpractice premised upon the failure to obtain informed consent for a procedure in accordance with OCGA § 31-9-6.1 (a), the plaintiff must present evidence showing that “the patient suffered an injury which was proximately caused by the surgical or diagnostic procedure.” OCGA § 31-9-6.1 (d) (1).

In the present case, the March 5 surgical procedure involved general anesthesia and thus triggered a duty to inform Alicea, as Stephenson’s health care agent, of the material risks associated with the procedure and the other information required to be disclosed under OCGA § 31-9-6.1 (a). Alicea claims that informed consent was not properly obtained from her for the March 5 surgical procedure because she was not told that Stephenson would be intubated and was not fully informed of the nature, purpose, prognosis, alternatives, and advisability of the proposed procedure. She seeks compensatory and punitive damages based on this alleged lack of informed consent.

Alicea, however, has failed to come forward with any evidence that Stephenson suffered an injury that was proximately caused by the March 5 surgical procedure. There is nothing in the record to suggest that the intubation and ventilation of Stephenson during the procedure injured her in any manner, and Stephenson was extubated and the ventilator was removed when the procedure was completed. Nor is there any evidence that Stephenson experienced any adverse side effects or complications arising from the procedure, that her condition worsened from the procedure, or that she experienced any pain, suffering, or mental distress as a result of the procedure apart from what she was already experiencing as a result of her severe illness. Accordingly, we conclude that Alicea failed, as a matter of law, to satisfy the statutory requirement of showing an injury proximately resulting from the alleged lack of informed consent. See OCGA § 31-9-6.1 (d) (1). It follows that the trial court erred in denying summary judgment to the Defendants on Alicea’s informed consent claim predicated on the March 5 surgical procedure.

3. Lastly, the Defendants contend that the trial court erred in denying their motion for summary judgment on Alicea’s medical battery claim. We agree with the Defendants with respect to the March 5 surgical procedure, but not with respect to the March 7 intubation.

It is well-established that a competent adult patient has the right to refuse medical and surgical treatment. See OCGA § 31-9-7; State v. McAfee, 259 Ga. 579, 580 (1) (385 SE2d 651) (1989). If a health care agent has been designated for the patient in accordance with the Advance Directive Act, the agent may exercise the patient’s right to refuse such treatment. OCGA § 3l -32-5 (a) (1); 31-32-7 (e) (1).

In addition to the legal principle of “informed consent” previously discussed in Division 2, consent to medical treatment encompasses the principle of “basic consent.” Paden v. Rudd, 294 Ga. App. 603, 605 (2) (669 SE2d 548) (2008). “With respect to basic consent, a medical touching without consent constitutes the intentional tort of battery for which an action will lie.” (Punctuation and footnote omitted.) Id. See Prince v. Esposito, 278 Ga. App. 310, 311 (1) (a) (628 SE2d 601) (2006). Continued treatment of a patient after consent has been withdrawn also will give rise to a medical battery claim. Joiner v. Lee, 197 Ga. App. 754, 756 (1) (399 SE2d 516) (1990). “Actual physical injury is not required to support a claim for battery, which is an intentional tort.” (Citation and punctuation omitted.) Lawson v. Bloodsworth, 313 Ga. App. 616, 619 (722 SE2d 358) (2012).

Here, the uncontroverted evidence of record reflects that there was basic consent for the March 5 surgical procedure. Alicea consented to Dr. Catalano conducting a surgical procedure under general anesthesia to drain more fluid from Stephenson’s lung cavity on that date. And while Alicea alleges that Dr. Catalano did not fully disclose to her the nature of the procedure (including that it would entail intubation), the likelihood of success, and the practical alternatives to the procedure, those allegations reflect an informed consent, not a battery, claim.12 See OCGA § 31-9-6.1 (a). Because the “purported failure to obtain . . . informed consent does not give rise to a claim of battery,” Paden, 294 Ga. App. at 605 (2), the trial court erred in denying summary judgment to the Defendants on Alicea’s battery claim based on the March 5 surgical procedure.

We reach a different result with respect to the March 7 intubation. Alicea specifically directed Dr. Joseph that no intubation of Stephenson was to occur until she had been called and had given consent, and Dr. Joseph placed this information in his March 4 progress note in the medical chart. Based on this evidence, a jury could find that the Defendants had notice of this specific limitation on Stephenson’s medical care and treatment and thus were under an obligation to abide by it. See OCGA § 31-32-8 (2). Compare Roberts v. Jones, 222 Ga. App. 548, 549 (2) (475 SE2d 193) (1996) (physician could not be held liable for battery, where medical procedure limitation contained in advance directive was neither placed in the patient’s medical chart nor told to the physician). Nevertheless, Dr. Catalano and the ICU nurses did not contact Alicea to obtain her consent before the March 7 intubation. Furthermore, given that there was evidence that approximately 50 minutes elapsed between the time Dr. Catalano was called and the intubation was performed, a jury could find that the situation was not so emergent that consent could not have been obtained from Alicea by calling her at home before performing the intubation. Under these circumstances, a jury must resolve whether the Defendants committed medical battery by performing the March 7 intubation, and the trial court committed no error in denying the Defendants’ motion for summary judgment on this claim.13

In summary, we affirm the trial court’s denial of the Defendants’ motion for summary judgment on their immunity defense predicated on OCGA § 31-32-10 (a) (2) and (3) and on Alicea’s medical battery claim predicated on the March 7 intubation. We reverse the trial court’s denial of the Defendants’ motion for summary judgment on Alicea’s medical malpractice claim for lack of informed consent and on her medical battery claim predicated on the March 5 surgical procedure.

Judgment affirmed in part; reversed in part. Ray and McMillian, JJ., concur.
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Footnotes:

1. Stephenson’s Advance Directive varied from the model form set out in OCGA § 31-32-4. However, none of the parties dispute that the Advance Directive was valid under Georgia law. See OCGA § 31-32-5 (b).

2. Intubation involves passing a plastic tube through the mouth of the patient down into her airway. The plastic tube is then connected to a ventilator that controls the patient’s breathing.

3. The complaint also named Dr. Coon and his employer, CSRA Emergency Physicians, P.C., as defendants. The trial court granted summary judgment in favor of Dr. Coon and his employer on all of Alicea’s claims. Alicea has not appealed that ruling.

4. Gerontology is “[t]he scientific study of the biological, psychological, and sociological phenomena that are associated with old age and aging.” The American Heritage Medical Dictionary. (2007). Retrieved May 22, 2015 from http://medical-dictionary.thefreedictionary.com/gerontology. Geriatrics is “[t]he branch of medicine that deals with the diagnosis and treatment of diseases and problems specific to old age.” Id. Retrieved May 22 2015 from http://medical-dictionary.thefreedictionary.com/Geriatrics. Palliative care refers to treatments aimed at “[r]elieving or soothing the symptoms of a disease or disorder without effecting a cure. Id. Retrieved May 22, 2015 from http://medical-dictionary.thefreedictionary.com/palliative.

5. The Defendants assert that Alicea’s expert was not qualified to testify under OCGA § 24-7-702. The record reflects that after the trial court entered its summary judgment order, the Defendants raised the qualification issue in a motion to strike the affidavit and opinions of Alicea’s expert, but the trial court has not ruled on that motion and thus it remains pending below. Given this record, the qualification issue is not ripe for our review and will not be addressed on appeal. See Dempsey v. Gwinnett Hosp. System, 330 Ga. App. 469, 474 (1) (b) (765 SE2d 525) (2014); Renz v. Northside Hosp., 285 Ga. App. 882, 884 (1) (648 SE2d 186) (2007).

6. Alicea has not filed a cross-appeal challenging the trial court’s grant of summary judgment to the Defendants on the informed consent claim pertaining to the March 7 intubation.

7. It is undisputed that as a licensed hospital established under the laws of Georgia, Doctors Hospital satisfied the statutory definition of a “health care facility” under the Advance Directive Act. See OCGA § 31-32-2 (7). It is likewise undisputed that as a licensed attending physician permitted by law to administer health care, Dr. Catalano met the Advance Directive Act’s definition of a “health care provider.” See OCGA § 31-32-2 (8).

8. OCGA § 31-32-10 (b) provides immunity from civil liability “for failing or refusing in good faith to effectuate the declarant’s directions regarding the withholding or withdrawal of life-sustaining procedures or the withholding or withdrawal of the provision of nourishment or hydration.” (Emphasis supplied.) The Defendants did not rely upon this provision in the trial court as a basis for immunity, and we will not consider it for the first time on appeal. SeeWellons, Inc. v. Langboard, Inc., 315 Ga. App. 183, 186 (1) (726 SE2d 673) (2012) (“Appellate courts do not consider whether summary judgment should have been granted for a reason not raised below because, if they did, it would be contrary to the line of cases holding that a party must stand or fall upon the position taken in the trial court.”) (citation and punctuation omitted).

9. OCGA § 31-32-8 (2) provides:

A health care decision made by a health care agent in accordance with the terms of an advance directive for health care shall be complied with by every health care provider to whom the decision is communicated, subject to the health care provider’s right to administer treatment for the declarant’s comfort or alleviation of pain; provided, however, that if the health care provider is unwilling to comply with the health care agent’s decision, the health care provider shall promptly inform the health care agent who shall then be responsible for arranging for the declarant’s transfer to another health care provider. A health care provider who is unwilling to comply with the health care agent’s decision shall provide reasonably necessary consultation and care in connection with the pending transfer.

10. Because the Defendants never argued in the trial court that they were entitled to immunity for the March 5 surgical procedure, we will not consider that issue on appeal. See Wellons, Inc., 315 Ga. App. at 186 (1). We also note that this case does not involve a “refusal” by a health care provider to follow a health care agent’s direction for religious or philosophical reasons.

11. Because there are genuine issues of material fact regarding whether there was a good faith effort by the Defendants to rely on the directions and decisions of Alicea in carrying out the March 7 intubation, we need not address whether the other statutory conditions for immunity were met in this case. See generally Lowry v. Cochran, 305 Ga. App. 240, 241 (699 SE2d 325) (2010) (“We will affirm a trial court’s denial of a motion for summary judgment if it is right for any reason.”).

12. As noted in Division 2, Alicea’s informed consent claim predicated on the March 5 surgical procedure fails for lack of evidence of any injury.

13. The Defendants’ reliance on Pruette v. Ungarino, 326 Ga. App. 584, 590-592 (3) (757 SE2d 199) (2014) (physical precedent only) is misplaced. Pruette addressed, among other things, whether certain expert testimony regarding what the defendant physician should have told the patient’s family went to the issue of informed consent or basic consent and whether it should have been excluded from trial. In contrast, the issue in the present case is the more general one whether there was any evidence to support a battery claim for lack of basic consent to the March 7 intubation.
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Jul 21 15

What Point Should Separate Property Be Measured From?

by merlin

I take the rare step of linking to someone else’s blog article (from the Law Offices of Andy Cook, an attorney in California, with an article about a ruling by the California Supreme Court on when the line can be drawn between marital property and separate property and, therefore, when the “date of separation” begins for purposes of determining responsibility for household bills and what is considered joint versus individual).  The address is http://www.divorcesd.com/supreme-court-rules-on-date-of-separation-in-california-divorce-cases/?sthash.z7dNRwF5.mjjo, and this is a common-sense idea that gets overlooked by folks, for simplicity’s sake.

I have posted this link because it is something that people engaged in the divorce process should consider – especially if there was a substantial time in which they formally stayed in the marital residence but did not actually live there.