Decision Date20 March 2000
Docket NumberNo. A99A2442.,A99A2442.
Citation242 Ga. App. 896,531 S.E.2d 770
CourtGeorgia Court of Appeals


Kitchens, Kelley & Gaynes, Stephen V. Kern, Atlanta, for appellant.

Fellows, Johnson & La Briola, Henry D. Fellows, Jr., Loewenthal & Jackson, Glenn A. Loewenthal, Atlanta, for appellees.

POPE, Presiding Judge.

"Rocky," a 110-pound Rottweiler, attacked and bit Melanie S. Russell on the premises of Richard's Buckhead Collision. Russell was an employee of Richard's, and Rocky was a guard dog that the business hired from Superior K-9 Service, Inc. In 1994, following a series of break-ins, Eugene Cato, Richard's owner, decided that he should get a guard dog to help protect his business. To that end, he contacted Glenn C. Whitten, Superior's owner, and subsequently contracted for Rocky's services. Under the parties' contract, Richard's was responsible for feeding the dog, releasing him from his pen to patrol the grounds at night and securing him again in the morning. Cato and one other employee were primarily responsible for these duties, although on two occasions a third employee released Rocky from his pen. Russell had no regular responsibilities for Rocky, but Cato anticipated that he might have to ask her to help with the dog on occasion. So following instructions received from Whitten, Russell took steps to make the dog familiar with her.

On the evening of the attack, Russell asked Cato if she could let Rocky out of his pen, and he agreed. As she had been instructed, Russell blew a whistle, called Rocky's name and approached him with treats in hand. She then opened the gate and let the dog out. But when Russell walked back toward the shop door, the dog attacked her.

Russell sued Superior and Whitten for damages arising out of the attack, and she appeals following a jury verdict in favor of the defendants.

1. Russell first claims that the defendants laid an insufficient foundation for the admission of an audio recording made by Whitten of a telephone conversation he had with Elaine Dunton, another Richard's employee, the evening of the attack. In ruling that the tape was admissible, the trial court stated: "Well, foundation is, [Whitten] testified he had a conversation with Ms. Dunton, and Ms. Dunton testified yesterday she did, in fact, have a conversation."

"Unless clearly erroneous, a trial court's findings as to factual determinations and credibility relating to admissibility will be upheld on appeal." (Citation and punctuation omitted.) Hilliard v. J.C. Bradford & Co., 229 Ga.App. 336, 338(1)(a), 494 S.E.2d 38 (1997). For a sound recording to be admissible into evidence, a proper foundation must be laid:

It must be shown that the mechanical transcription device was capable of taking testimony; that the operator of the device was competent to operate the device; that changes, additions, or deletions have not been made; and that the testimony was elicited freely and voluntarily made, without any kind of duress. Further, the authenticity and correctness of the recordings must be established; the manner of preservation of the record must be shown; and the speakers must be identified. Central of Ga. R. Co. v. Collins, 232 Ga. 790, 209 S.E.2d 1 (1974); Steve M. Solomon, Jr., Inc. v. Edgar, 92 Ga.App. 207, 211-212, 88 S.E.2d 167 (1955).

Hilliard v. J.C. Bradford & Co., 229 Ga.App. at 338(1)(a), 494 S.E.2d 38. Our Supreme Court has recognized, however, that advances in recording technology have somewhat relaxed these foundation requirements. See Saunders v. Padovani, 258 Ga. 866, 867, 375 S.E.2d 853 (1989).

In this case, the existence of the audio tape was first established by Whitten's testimony, in response to questions from Russell's attorney. Ordinarily "a party cannot complain of a judgment, order, or ruling that his own procedure or conduct aided in causing." Morris v. State Farm &c. Ins. Co., 203 Ga.App. 839, 841-842(7), 418 S.E.2d 119 (1992). See also Winburn, Lewis & Barrow, P.C. v. Richardson, 233 Ga.App. 534, 538(3), 504 S.E.2d 480 (1998). But even though Russell "opened the door" to the admission of the tape, defendants were still required to authenticate it.

The record shows that both parties to the phone conversation testified at trial. The transcript of the call was used to refresh Dunton's memory, and she testified that she recalled the conversation from reading the transcript. After the tape was played to the jury, Whitten was cross-examined by Russell's counsel. He testified, among other things, that he made the recording of the phone conversation in his home and that "the whole reason of making the tape is because the first time you hear a story ... it's usually the truth...." Thus, the evidence indicates that Dunton and Whitten had a phone conversation, that Whitten recorded it and that the tape played to the jury was the tape of that conversation. Under these circumstances, we find no error in the admission of the audiotape.

And even if there were some error, a reversal would not be required so long as the evidence of the same facts was properly before the jury. Platt v. Nat. Gen. Ins. Co., 205 Ga.App. 705, 710(1)(c), 423 S.E.2d 387 (1992). The transcript shows that before the tape was even played to the...

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