author: Johnson, Judge.

text:
    A93A0930.
    A93A0931.
    FAMILIES FIRST v. GOODEN et al. MARVE v. FAMILIES FIRST.
    (439 SE2d 34)
   Johnson, Judge.

The complexity of these companion cases warrants a detailed review of the underlying facts and a brief introduction of the parties involved. Families First is a non-profit adoption agency. Vanessa Gooden is the biological mother of the child placed with Families First for adoption. Roderic Ball was Gooden’s boyfriend prior to and after the birth of the child. Gerald Marve is Gooden’s husband. Marve and Gooden were married in 1987. Marve was in the U. S. Navy and stationed in California during the period from before the conception until after the birth of the child. Gooden lived in Georgia at all times relevant to this action.

During her pregnancy, Gooden decided to place her baby for adoption through Families First. When the baby was born, however, Gooden changed her mind and took him home with her from the hospital. Several days later Gooden changed her mind again, deciding that she would give the child up for adoption after all. She and Ball, whom she claimed to be the child’s father, took the child to Families First. Both Gooden and Ball executed the surrender of parental rights and acknowledgment of surrender of parental rights forms required by OCGA § 19-8-4 in the form prescribed by OCGA § 19-8-26 (a) and (g). Gooden also executed the mother’s affidavit in the form prescribed by OCGA § 19-8-26 (h). On the mother’s affidavit form, Gooden swore under oath that she was divorced, and she identified Ball as the child’s father. She left blank spaces on the affidavit form showing her date of marriage, her spouse’s address, and the date and place of her divorce.

Families First immediately placed Gooden’s child in foster care pending final adoption. Three months later, Families First received the child’s birth certificate from the State of Georgia. The birth certificate listed Marve as the child’s father. When Families First asked Gooden about this, she admitted for the first time that she and Marve had never divorced and were still married. She continued to insist that Ball was the father of the child, however, and informed Families First that Marve had agreed to sign the necessary surrender documents. Gooden gave Families First an address for Marve, and he was contacted. Marve, having been told by his wife that she had miscarried, knew nothing about the birth of the child or the adoption. When he learned of the placement from Families First, he informed the agency that he wanted to keep the child.

Based upon all these factors, Families First filed the underlying declaratory judgment action against Gooden, Marve and Ball to determine if it had the right to consent to the adoption of the child, and to determine paternity of the child insofar as resolution of that issue was critical to its ability to satisfy its obligations under Georgia’s adoption statutes. Marve filed an answer, a counterclaim, and a petition for a writ of habeas corpus seeking immediate custody of the child. Gooden and Marve appeared together at the habeas hearing, and informed the court that they wanted to raise the child. After hearing the habeas petition, the trial court ordered Families First to release the child to Marve pending the receipt of blood test results. Marve, Gooden and Ball agreed to submit to HLA blood tests. The results of these blood tests established that neither Marve nor Ball was the father of the child. Marve requested and submitted to an additional blood test conducted by a different laboratory. The results of this test also excluded any possibility that Marve is the biological father of the child.

Gooden filed an amended answer and counterclaim raising, among other things, the claim that the mother’s surrender documents were void because part of the mother’s affidavit was incomplete. Ball moved to dismiss the suit against him on the grounds that the blood test proved that he was not the father of the child and asserting that he was therefore not a proper party to the litigation. The trial court granted Ball’s motion.

Families First, Gooden and Marve filed motions for summary judgment. The trial court granted summary judgment to Marve on the issue of paternity, holding as a matter of law that he is the presumptive father and that he had not surrendered his parental rights. Summary judgment was also granted to Gooden and Marve on the issue of the invalidity of the surrender documents. Summary judgment was granted to Families First on the issue of whether it is a charity. The trial court denied summary judgment to Families First on the issues of the validity of the surrender documents as well as on the claims for damages for intentional infliction of emotional distress and punitive damages filed by Gooden and Marve. The trial court also denied summary judgment to Families First and Gooden on the issues of duress and mental incapacity. Thus, the only issues which were not decided by summary judgment were the claims by Gooden and Marve for punitive damages and for damages for emotional distress, Gooden’s claims of duress and mental incapacity, and the extent of Families First’s immunity from liability. Families First, Gooden and Marve appeal the adverse rulings.

Case No. A93A0930

1. Gooden and Marve filed a motion to dismiss Families First’s appeal based on the contention that this is an appeal of a paternity case and therefore subject to the discretionary appeal procedures set forth in OCGA § 5-6-35. We do not agree that this is an appeal of a paternity case. While one issue involves paternity, it is ancillary to more significant issues in this appeal, including concerns about the validity of surrender of parental rights documents and the interpretation of the Georgia adoption code. Adoption cases do not fall under OCGA § 5-6-35 (a) (2). Moore v. Butler, 192 Ga. App. 882, 883 (1) (386 SE2d 678) (1989). Nor do other issues as to which summary judgment was granted. Therefore, the trial court’s decisions are directly appealable pursuant to OCGA § 9-11-56 (h). The motion to dismiss the appeal is denied.

2. Families First contends that the trial court erred in holding that the surrender documents executed by the mother were invalid as a matter of law solely because the mother’s affidavit contained some blank spaces. We agree and reverse.

The surrender of rights form, acknowledgment of surrender of rights form and the mother’s affidavit are separate documents with distinct purposes. As stated on the surrender of rights form, its purpose is to effect a surrender of all of the parent’s rights, title and claim to the child. As stated on the acknowledgment of surrender form, its function is to show that the parent has read and understands the accompanying surrender of rights document. Both these documents would have to be properly executed for there to be a valid surrender. Johnson v. Smith, 251 Ga. 1, 2 (2) (302 SE2d 542) (1983); Nelson v. Taylor, 244 Ga. 657 (261 SE2d 579) (1979). In this case, it is undisputed that the surrender of rights form and the acknowledgment of surrender form were properly executed.

On the other hand, the purpose of the mother’s affidavit, as stated on the form itself, is to gather information to be used by the agency in notifying and determining the rights of the father. It does not purport to protect or otherwise affect the rights of the mother. Fathers are not even required to execute such an affidavit. The form itself provides that the mother does not have to answer all of the questions. In fact, it expressly states that the mother has “the right not to disclose” information about the biological father. The form also contains many sections which would be inapplicable in certain situations and would, of necessity, remain blank. Thus, even if Gooden had accurately completed all spaces applicable to her spouse, due to the nature of the form prescribed by the statute, entire sections of the form would still be left blank. Accordingly, given the nature of the affidavit as well as the separate and distinct purposes of the documents, we hold that failure to accurately complete the mother’s affidavit does not affect the validity of the mother’s surrender of parental rights.

Consider the adverse effect that invalidating a surrender due to the mother’s failure to accurately complete the mother’s affidavit would have on the integrity of the adoption process in Georgia. Here, the mother left some spaces blank and put false information in others in what she admitted was a deliberate attempt to deceive the adoption agency into completing the adoption. She shall not now be allowed to use her deliberate omissions and misrepresentations to invalidate an otherwise valid surrender. We will not invalidate a surrender in which all other requirements of surrender have been met solely because of omissions from or inaccuracies in what is nothing more than an information-gathering device facilitating the satisfaction of the agency’s legal obligations as to the rights of the biological father.

3. Families First also claims that the trial court erred in granting Gooden and Marve’s motion for summary judgment on the issue of paternity. We agree that summary judgment was improperly granted on this issue. While a child born in wedlock is presumed to be the legitimate child of the husband, that presumption can be overcome by clear evidence to the contrary. OCGA § 19-7-20; Black v. Prince, 176 Ga. App. 465, 466 (1) (336 SE2d 318) (1985). Here, there is clear evidence to the contrary. Specifically, the two blood tests performed on the husband by two different laboratories excluded any possibility that he was the father.

In addition to the blood test evidence, it is clear that Marve was stationed in California and Gooden was living in Georgia at the time of conception. In her first sworn statement, Gooden testified that she and her husband had no access to each other around the time of conception. She also told the social worker at Families First that her husband was not the father. Contradicting these admissions, Gooden later testified on deposition that she did visit and have sexual intercourse with her husband around the time of conception. The testimony of a party who offers herself as a witness in her own behalf on a motion for summary judgment is to be construed most strongly against her when it is self-contradictory. See Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 28-29 (343 SE2d 680) (1986). The party moving for summary judgment has the burden of establishing the non-existence of any genuine issue of fact and all doubts must be resolved in favor of the non-moving party. Crosson v. Lancaster, 207 Ga. App. 404, 407 (4) (427 SE2d 864) (1993). Gooden and Marve have not met this burden. Indeed, the evidence tends to exclude the possibility that Marve is the father. The only evidence in support of Marve’s claim is his statement that he had sexual intercourse with Gooden around the time of conception. It is upon this bare thread that any genuine issue of fact exists on his claim of paternity. The existence of genuine issues of material fact on the question of paternity required that the motion for summary judgment be denied and that the case be adjudicated on its merits.

Because the blood tests here indicate that Marve cannot be the father of the child, at the trial of this issue, the trial court must instruct the jury, as required by OCGA § 19-7-49 (c), “that, if they believe that the witness presenting the [blood test] results testified truthfully as to those results and if they believe that the tests and comparisons were conducted properly, it will be their duty to decide that the alleged parent is not the natural parent.” See Howard v. Howard, 258 Ga. 846, 847 (375 SE2d 852) (1989).

4. Families First contends that the trial court erred in failing to grant its motion for partial summary judgment as to Gooden’s and Marve’s claims of intentional infliction of emotional distress. We agree. To support a claim for intentional infliction of emotional distress, conduct must be intentional or reckless, extreme and outrageous, and must result in severe emotional distress. Jackson v. Nationwide Credit, 206 Ga. App. 810, 811 (2) (426 SE2d 630) (1992). Here, the evidence in the record does not indicate that Families First acted recklessly or intentionally, that its actions were extreme or outrageous, or that its actions resulted in severe emotional distress. Families First began questioning Gooden about the paternity issue soon after it received the birth certificate. Until it had received this document containing information contrary to that Gooden had provided under oath on the mother’s affidavit and otherwise, Families First had no reason to doubt her identification of Ball as the father. Ball himself acknowledged that he was the father. We note that Families First filed this action in order to have a court of law decide the rights and duties of all the parties regarding the adoption process and its validity. This clearly shows that Families First was not acting without regard to consequences. “[S]ummary judgment is appropriate when the court, viewing all the facts and reasonable inferences from those facts in a light most favorable to the non-moving party, concludes that the evidence does not create a triable issue as to each essential element of the case.” Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (4) (405 SE2d 474) (1991). Contrary to Gooden and Marve’s argument, the evidence did not create a triable issue as to intentional infliction of emotional distress. The trial court erred by denying the motion for summary judgment as to this claim.

5. Families First also contends that the trial court erred in not granting its motion for summary judgment on Gooden’s claim of mental incapacity. As the parties have not cited any cases and as we have not otherwise found any Georgia cases specifically addressing the issue of mental incapacity and surrender of parental rights, we must base our analysis upon the law regarding mental incapacity to execute a contract generally. A contract is subject to cancellation if the person executing the contract was entirely without understanding of the contract or if the person lacked a full and clear understanding of the nature and consequences of the contract. See Norfolk Southern Corp. v. Smith, 262 Ga. 80, 84 (3) (414 SE2d 485) (1992). Gooden had the burden of showing that she lacked the necessary mental capacity at the time she executed the surrender documents. See Nelson v. State Farm Life Ins. Co., 178 Ga. App. 670, 672 (344 SE2d 492) (1986). Gooden stated on deposition that she knew what adoption meant, that she wanted to push the adoption through, that she knew what she was doing when she signed the surrender documents and that she felt she could not handle parenting. Not only did she fail to come forward with evidence to establish that she lacked the necessary mental capacity, she testified herself out of court on that issue. Therefore, Families First’s motion for summary judgment should have been granted on this issue.

6. Families First claims that the trial court erred in not granting its motion for summary judgment on Gooden’s claim of duress. “Duress is defined as imprisonment, threats, or other acts, by which the free will of the party is restrained. OCGA § 13-5-6.” (Punctuation omitted.) Miller &c., Inc. v. Fayette County, 190 Ga. App. 777 (1) (380 SE2d 73) (1989). In this case, there was no evidence that Gooden was imprisoned or threatened or that her free will was restrained in any way. Summary judgment should have been granted to Families First on this issue.

7. Families First argues that the trial court erred in denying its motion for summary judgment on Gooden’s and Marve’s claims for punitive damages. In view of our holdings above that there is no tort liability, Families First’s motion for summary judgment on the issue of punitive damages should also have been granted.

8. In its final three enumerations of error, Families First contends that the trial court erred in dismissing the case against Roderic Ball, in finding that Roderic Ball was not the father, and in sealing the guardian ad litem’s report. However, the arguments intended to support these enumerations cite no authority and identify no particular erroneous statements of the law. “The mere repetition and rephrasing of an enumeration of error without more is not the argument anticipated by Court of Appeals Rule 15 (c) (2). The principal purpose of argument is to provide guidance to this court on the basis for a claim of error and for citations of authority which tend to support appellant’s allegation of error. A mere recital or repetition of the enumerated error is not argument.” (Citations and punctuation omitted.) T & M Investments v. Jackson, 206 Ga. App. 218, 223 (9) (425 SE2d 300) (1992). Therefore, these enumerations are deemed abandoned. We do note, however, that Ball’s solemn admissions in judicio that he is not the father of and that he is not making any claim to the child, the blood test results, and his execution of surrender documents, the validity of which he did not dispute while he was a party to the case, accomplish the purpose Families First had as to his rights when it made him a party to the litigation.

Decided November 22, 1993

Reconsideration denied December 6, 1993

Bauer, Deitch & Raines, Henry R. Bauer, Jr., George R. Ference, White, Smith, Howard & Ajax, Williston C. White, for Families First.

H & M Johnson, Mereda D. Johnson, Eddie D. Jones, Richard A. Coleman, for Gooden and Marve.

Jeanney M. Kutner, James B. Outman, amici curiae.

In view of the rulings above, the posture of this case is now as follows: Gooden has validly surrendered her rights to the child. Ball has surrendered and withdrawn any claim he had to the child and is no longer a party to this action. As each of Gooden’s and Marve’s tort claims have now been decided against them, the only issue remaining for trial is whether Marve is in fact the father of the child.

Case No. A93A0931

In their cross-appeal, Gooden and Marve raise issues related to the trial court’s ruling on the issue of Families First’s qualification for charitable immunity. In view of our decision in Case No. A93A0930 that there is no tort liability, the issues on the cross-appeal are moot, and the judgment of the trial court as to these issues is affirmed.

Judgment in Case No. A93A0930 affirmed in part and reversed in part. Judgment in Case No. A93A0931 affirmed.

McMurray, P. J., and Blackburn, J., concur.

       Since September 27, 1991, the date of the order on Marve’s habeas petition, the child has been in Marve’s custody, though the report of the guardian ad litem which is in the record shows that the child is physically in the custody of Gooden and Gooden’s mother.

       This purpose was served in this case. When Families First received the birth certificate and noticed the discrepancy between the information on the affidavit and that on the birth certificate, it began investigating and obtained information which allowed it to notify the husband of the mother’s surrender.


source: Caselaw Access Project

author: Smith, Judge.

license: Public Domain

text:
    A93A1328.
    BARKER v. THE STATE.
    (438 SE2d 649)
   Smith, Judge.

Arthur Barker was indicted for the offenses of armed robbery, OCGA § 16-8-41, and aggravated assault, OCGA § 16-5-21. The trial court directed a verdict of acquittal as to the aggravated assault charge, and the jury found Barker guilty of armed robbery. Barker’s motion for a new trial was denied, and he appeals.

1. Barker’s first, second, third, and twelfth enumerations of error are based upon the general grounds and the overruling of his motion for a new trial. On appeal, the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), “is the proper test for us to use when the sufficiency of the evidence is challenged, whether the challenge arises from the overruling of a motion for directed verdict or the overruling of a motion for new trial based upon alleged insufficiency of the evidence.” Humphrey v. State, 252 Ga. 525, 527 (1) (314 SE2d 436) (1984). Viewed in the light most favorable to the verdict, Gazaway v. State, 207 Ga. App. 641, 642 (1) (428 SE2d 659) (1993), the evidence showed that Barker was known by face and by name to the service station attendant who was on duty at the time of the robbery. The service station attendant testified that Barker approached him, pointed a gun at his chest, and demanded money. A rational trier of fact could reasonably find that Barker was guilty of the offense charged beyond a reasonable doubt under the standard of Jackson v. Virginia.

2. Barker contends that the State failed to prove venue in Sumter County. “Generally, criminal actions must be tried in the county where the crime was committed. OCGA § 17-2-2 (a). And, venue must be established beyond a reasonable doubt. [Cit.] However, when the evidence is not conflicting and when no challenge to venue is raised at trial, slight evidence is sufficient to prove venue. [Cit.]” Minter v. State, 258 Ga. 629 (1) (373 SE2d 359) (1988). The victim testified that the armed robbery occurred at the Dixie Oil Company on Highway 19 in Americus, Georgia. Moreover, the police testified that in the course of their investigations, various locations in Americus and in Sumter County were searched.

The evidence indisputably shows that the offenses occurred in Americus, Georgia, a city within Sumter County. Because there is no showing that the offenses were committed in another county, we find this evidence sufficient to establish venue in Sumter County. See Wiggins v. State, 208 Ga. App. 757, 759 (3) (432 SE2d 113) (1993). The decision of Moye v. State, 65 Ga. 754 (1880), relied upon by Barker, is inapposite, because the evidence in that case established neither the county nor the state in which the crime was committed.

3. Barker next complains that the trial court committed error in questioning a witness regarding the witness’s earlier identification of a photograph from a police line-up card. However, Barker waived his right to appellate review by failing to object at trial. See McDonald v. State, 170 Ga. App. 884 (1) (318 SE2d 749) (1984). This enumeration of error has no merit.

4. Barker also enumerates as error the refusal of the trial court to permit impeachment of a witness for the State by admitting into evidence the witness’s conviction for criminal trespass. Any witness other than an accused may be discredited by evidence of a conviction for a crime involving moral turpitude. Harris v. State, 173 Ga. App. 787, 788 (2) (328 SE2d 370) (1985). Crimes involving moral turpitude are “restricted to the gravest offenses, consisting of felonies, infamous crimes, and those that are malum in se and disclose a depraved mind. [Cit.]” Lewis v. State, 243 Ga. 443, 444 (254 SE2d 830) (1979). This category does not include misdemeanor offenses such as obstruction of a law enforcement officer or public intoxication, Harris v. State, supra; simple battery, Jabaley v. Mitchell, 201 Ga. App. 477 (411 SE2d 545) (1991); or simple assault, Polk v. State, 202 Ga. App. 738, 739 (2) (415 SE2d 506) (1992).

The courts of other states have concluded that misdemeanor criminal trespass is not a crime involving moral turpitude. See Hutson v. State, 843 SW2d 106, 107 (Tex. App. 1992), and cases cited therein. In Hutson, the court observed: “Criminal trespass is not an offense that is inherently immoral or dishonest, and no culpable mental state is required for the offense, other than a volitional entry without consent or refusal to leave when requested to do so.” Id. The Georgia criminal trespass statute contains similar provisions. See OCGA § 16-7-21. We agree that a misdemeanor offense of criminal trespass does not involve moral turpitude and therefore hold that the trial court properly refused to admit the conviction to impeach the witness’s testimony at trial.

5. Barker asserts that the trial court erred in overruling his objection to two allegedly leading questions asked by the prosecution. In the first instance, the prosecutor asked if the witness remembered talking to the police. In the second, after the witness expressed uncertainty as to the meaning of the term “revolver,” the prosecutor asked a series of questions to establish the witness’s knowledge of the appearance of a revolver. “ ‘A judge is given latitude and discretion in permitting leading questions, and unless there has been an abuse thereof, resulting in prejudice and injury, there is no reversible error.’ ” English v. State, 234 Ga. 602 (2) (216 SE2d 851) (1975). We find no abuse of discretion, prejudice or reversible error.

6. Barker also complains, on hearsay grounds, of a police officer’s testimony that the victims had identified Barker from a photographic line-up. “Testimony as to the mere fact that [a witness] identified the defendant’s picture is not inadmissible as hearsay.” Montos v. State, 212 Ga. 764, 767 (6) (95 SE2d 792) (1956); see also Woodard v. State, 175 Ga. App. 449, 450 (3) (333 SE2d 645) (1985). This enumeration of error has no merit.

Decided November 19, 1993

Reconsideration denied December 6, 1993.

Wayne Jernigan, for appellant.

John R. Parks, District Attorney, Henry 0. Jones III, for appellee.

7. In Barker’s final enumeration of error, he contends that the trial court erred in refusing to give the jury instruction known as the “two theories charge.” See Davis v. State, 13 Ga. App. 142, 143 (1) (78 SE 866) (1913). This charge has been discredited and “is appropriate, if at all, only when the evidence relied upon by the State is entirely circumstantial. [Cits.] Since there was direct evidence of appellant’s guilt, the charge was not applicable.” Poole v. State, 205 Ga. App. 652, 653 (2) (423 SE2d 52) (1992); see also Johnson v. State, 210 Ga. App. 99, 102 (3) (435 SE2d 458) (1993). The trial court did not err in refusing to give this charge.

Judgment affirmed.

Beasley, P. J., and Cooper, J., concur.


text:
    A93A1341.
    WEYANT v. MacINTYRE.
    (438 SE2d 640)
   Smith, Judge.

Plaintiff and defendant are attorneys and the shareholders in MacIntyre and Weyant, a professional corporation engaged in the practice of law. Because of disputes which arose between them in the latter part of 1989 and early 1990, the corporation ceased doing business in February 1990. However, it continued in existence and had not been dissolved at the time of the proceedings below.

Plaintiff Weyant brought suit in the Superior Court of Fulton County seeking an accounting and distribution of fees collected by the professional corporation. Defendant MacIntyre answered, stating as his first defense that the shareholders’ agreement, entered into in December 1983, contained an arbitration clause for “a deadlock as to any proposed Company action.”

MacIntyre moved to compel arbitration, and Weyant moved to enjoin arbitration. The trial court denied Weyant’s motion and granted MacIntyre’s motion to compel arbitration. Weyant’s application for interlocutory review of the trial court’s order was granted, and this appeal followed. See Phillips Constr. Co. v. Cowart Iron Works, 250 Ga. 488, 489 (299 SE2d 538) (1983).

1. Appellant contends that the Georgia law governing arbitration, as currently constituted, is inapplicable to this case. In 1988, the General Assembly extensively revised the statutory provisions governing arbitration, repealing the existing common-law arbitration and construction contract arbitration statutes and enacting the “Georgia Arbitration Code,” OCGA § 9-9-1 et seq. The stated intention of the General Assembly in revising the Arbitration Code was to extend the enforcement of arbitration in Georgia from construction contracts to all contracts in which the parties have agreed to arbitration in writing. Ga. L. 1988, p. 903 et seq. The cases cited by Weyant disapproving or refusing to compel arbitration predate the amendment of the Arbitration Code and are not applicable here. As this court observed in Freeman v. C. W. Redfern Enterprises, 182 Ga. App. 205, 207 (3) (355 SE2d 79) (1987), “[t]he General Assembly has established the public policy of this State with regard to the enforceability of arbitration agreements” (construing former construction contract arbitration code, OCGA § 9-9-80 et seq.).

By its terms, OCGA § 9-9-2 (a) applies to “agreements specified in subsection (b) of this Code section made on or after July 1, 1988, and to disputes arising on or after July 1, 1988, in agreements specified in subsection (c) of this Code section.” (Emphasis supplied.) OCGA § 9-9-2 (c) states: “This part shall apply to all disputes in which the parties thereto have agreed in writing to arbitrate and shall provide the exclusive means by which agreements to arbitrate disputes can be enforced, except the following. . . .” Subsection (c) then provides ten exceptions, which Weyant has not raised and which do not appear applicable to the facts in the record.

Although the shareholders’ agreement in this case was executed in 1983, it contains a specific, written agreement to arbitrate, as contemplated by OCGA § 9-9-2 (c). The dispute that resulted in this litigation arose in 1990, or in mid-1989 at the earliest, and is therefore a dispute “arising on or after July 1, 1988” as provided for in the Code. The parties agreed in writing to arbitrate, and they are bound by the provisions of OCGA §§ 9-9-2 and 9-9-3 to do so.

2. Weyant contends that the motion to compel arbitration should not have been granted, because the provisions of the Georgia Arbitration Code were thereby applied retroactively to a contract executed in 1983, in violation of Ga. Const., Art. I, Sec. I, Par. X. In enacting the revised Arbitration Code, the General Assembly clearly contemplated its application to disputes arising after the effective date on contracts entered into at an earlier date. See OCGA § 9-9-2 (a). The Arbitration Code in this context simply aids enforcement of a remedy already agreed upon by the parties in disputes that arise after the effective date of the law. Nor does the Arbitration Code provide a new remedy, or impair any obligation under the contract; instead, it enforces the existing agreement and obligation of the parties as originally drafted.

“Generally statutes prescribe for the future and that is the construction to be given unless there is a clear contrary intention shown. [Cits.] On the other hand, where a statute governs only procedure of the courts . . . it is to be given retroactive effect absent an expressed contrary intention. [Cits.] . . . Substantive law is that law which creates rights, duties, and obligations. Procedural law is that law which prescribes the methods of enforcement of rights, duties, and obligations. [Cits.]” Polito v. Holland, 258 Ga. 54, 55, (2, 3) (365 SE2d 273) (1988). Assuming without deciding that statutory enforcement of a remedy originally agreed upon by the parties to a contract is in some sense retroactive, it is nonetheless permissible as a procedural measure, and not a violation of the Georgia Constitution. The trial court properly applied the provisions of OCGA § 9-9-1 et seq. to the contract in this action.

3. Weyant also contends that MacIntyre waived the provisions of the Arbitration Code by filing a separate lawsuit in the State Court of DeKalb County. That suit is an action on a note endorsed by Weyant individually, and was filed after Weyant brought the action which is the subject of this appeal.

A party may waive the arbitration provisions of a contract by taking legal action inconsistent with arbitration. Tillman Group v. Keith, 201 Ga. App. 680, 681 (2) (411 SE2d 794) (1991). However, in those cases where a waiver was held to have occurred, the party seeking to rely upon an arbitration clause did not promptly invoke or seek to enforce the clause. See, e.g., Tillman, supra (appellant litigated claim to judgment without ever moving to compel arbitration or to stay proceedings pending arbitration); Nat. Parents’ Resource &c. v. Peachtree Hotel Co., 201 Ga. App. 637, 638 (2) (411 SE2d 884) (1991) (appellant defended on the merits and litigated case without moving to compel or to stay proceedings).

In this case, contrary to Weyant’s assertion, MacIntyre made known his intention to rely upon the arbitration clause as early as February 1990. He attempted to select an arbitrator or arbitrators in accordance with the clause, apparently without success. In July 1990, he made formal demand for arbitration via certified mail. Moreover, when Weyant filed this action, MacIntyre asserted the arbitration clause in his answer and promptly moved to compel arbitration pursuant to OCGA § 9-9-6. Nor is this a case in which MacIntyre himself initiated legal action and then belatedly attempted to invoke arbitration. Compare Taft v. Burttram, 254 Ga. 687, 688, n. 1 (333 SE2d 585) (1985). Only after Weyant filed his complaint did MacIntyre bring the DeKalb County action.

Under the former construction contract arbitration code, this court has held that a party seeking arbitration could pursue other legal remedies without waiving the right to proceed to arbitration. In H. R. H. Prince LTC. Faisal M. Saud v. Batson-Cook Co., 161 Ga. App. 219, 221 (3b) (291 SE2d 249) (1982), appellant contended that appellee had waived its right to arbitrate the dispute by filing a counterclaim seeking foreclosure of a materialmen’s lien. This court held that a party “is entitled to protect its rights to a materialmen’s lien ... by filing a petition to foreclose said lien at the same time it is pursuing its arbitration rights under the contract.” Id.

By analogy, MacIntyre is entitled to protect his rights in a promissory note by filing a separate action at law, without thereby waiving his demand for arbitration in this action. As observed in Batson-Cook at 222, had the trial court stayed arbitration, MacIntyre would have been prepared and able to proceed with his claim on the note.

“Here, where [MacIntyre] consistently sought to enforce [his] right to arbitration under the contract, it is clear that [he] had no intention of waiving such a right. [Cit.] Had [MacIntyre] flagrantly disregarded arbitration as a contractual prerequisite, filed a claim . . . and a complaint . . . without attempting to enforce [his] arbitration rights, a waiver of the arbitration provisions of the contract may have occurred. [Cit.]” Id. at 221. Both before and after the filing of the complaint in this action, MacIntyre consistently asserted his right to arbitration and made it abundantly clear that he had no intention of waiving that right. Accordingly, the trial court did not err in granting MacIntyre’s motion to compel arbitration.

4. Weyant also contends that the matters raised in this suit fall outside the scope of the arbitration agreement. However, Weyant’s complaint below alleges that he is bringing this action individually as a shareholder, officer, and director and on behalf of the corporation, that he is seeking an accounting of corporate funds, that MacIntyre’s alleged actions were taken in his capacity as a corporate officer and shareholder, and that Weyant seeks liquidation of and compensation for corporate assets and property. The shareholders are unable to agree upon the allocation of funds, the payment of corporate debts, or even the dissolution of the corporation. Under these circumstances, the shareholders are in deadlock with regard to almost any “proposed Company action” and thus are within the scope of the arbitration agreement.

5. Weyant’s enumerations of error regarding the law applicable to dissolved corporations are without merit, because no evidence appears on the record of the dissolution of the corporation, and Weyant’s counsel stated in open court that the corporation in this case was not dissolved.

Judgment affirmed.

Beasley, P. J., and Cooper, J., concur.

Decided November 9, 1993

Reconsideration denied December 6, 1993

Charles L. Jurjevich, for appellant.

Bondurant, Mixson & Elmore, Jeffrey 0. Bramlett, Mary J. Bradbury, for appellee.


author: Blackburn, Judge.

text:
    A93A2582.
    DAVIS et al. v. STATE OF GEORGIA et al.
    (439 SE2d 40)
   Blackburn, Judge.

On June 17, 1992, the appellants, Cullen B. Davis, individually and as administrator of the estate of Richard Davis and Betty Davis, filed the instant action for damages against the appellee, State of Georgia, Department of Human Resources, Georgia Regional Hospital at Augusta (hereinafter collectively referred to as DHR), Coastal Emergency Services of Augusta, Inc., and University Health Services, Inc., for the wrongful death of their 30-year-old son. Although the Davises alleged in their complaint that employees of DHR failed to exercise the requisite degree of care and skill in their treatment of the decedent on June 21, 1990, and June 22, 1990, the Davises did not specifically name any employees of DHR as party defendants in the action.

DHR responded to the complaint, asserting several defenses, including sovereign immunity. Following the commencement of discovery, the department moved for summary judgment based upon its immunity from suit, and the motion was granted by the trial court. This appeal followed. In their sole enumeration of error, the Davises challenge the trial court’s grant of summary judgment in favor of DHR.

“Article I, Sec. II, Par. IX of the Constitution of Georgia of 1983 (prior to 1991 amendment) provides: ‘Sovereign immunity extends to the state and all of its departments and agencies. . . . [TJhe defense of sovereign immunity is waived as to those actions for the recovery of damages for any claim against the state or any of its departments and agencies for which liability insurance protection for such claims has been provided but only to the extent of any liability insurance provided’ ” (Emphasis supplied.) Hiers v. City of Barwick, 262 Ga. 129, 130 (2) (414 SE2d 647) (1992). See Litterilla v. Hosp. Auth. of Fulton County, 262 Ga. 34, 35 (413 SE2d 718) (1992); Martin v. Ga. Dept. of Public Safety, 257 Ga. 300, 301 (357 SE2d 569) (1987). This constitutional provision was amended in 1991 to extend sovereign immunity to all state departments and agencies notwithstanding their purchase of liability insurance. Donaldson v. Dept. of Transp., 262 Ga. 49 (414 SE2d 638) (1992).

A waiver of sovereign immunity by a state department or agency occurs at the time that the cause of action arises. Id. “[Sovereign immunity [is] waived to the extent of available insurance coverage as to any cause of action that accrued before the effective date of the constitutional amendment . . . and remains effective regardless of whether the action was filed before or after the effective date of the amendment.” Curtis v. Bd. of Regents &c. of Ga., 262 Ga. 226, 228 (416 SE2d 510) (1992). Although the instant action was filed after the effective date of the constitutional amendment, it is uncontroverted that the cause of action arose before January 1, 1991, the effective date of the amendment. Consequently, the 1991 amendment is not applicable, and the department’s immunity from suit is subject to waiver to the extent of any available insurance covering the claim. Id.; Adams v. Coweta County, 208 Ga. App. 334 (1) (430 SE2d 599) (1993); Rogers v. Sharpe, 206 Ga. App. 353 (1) (425 SE2d 391) (1992); Dozier v. Clayton County Hosp. Auth., 206 Ga. App. 62 (2) (424 SE2d 632) (1992). Cf. Datz v. Brinson, 208 Ga. App. 455 (1) (430 SE2d 823) (1993); Collier v. Whitworth, 205 Ga. App. 758 (423 SE2d 440) (1992).

It is undisputed that the department did not have a policy of insurance in effect at the time that this cause of action arose covering the department or Georgia Regional Hospital at Augusta for any negligent acts or omissions. However, the record on review does show DHR participated in a Liability Trust Fund which provided comprehensive liability insurance protection for personal injury, bodily injury, sickness, disease or death caused by or as a result of an error, omission, or negligence of an insured in the performance of the insured’s duties of employment with the agency. The specific policy in question entitled “Broad Form State Employee Liability Agreement” was issued by the Department of Administrative Services pursuant to OCGA § 45-9-1 et seq. and is substantially similar, in pertinent part, to the insurance coverage considered by our Supreme Court in its recent decision of Ga. Dept. of Human Resources v. Poss, 263 Ga. 347 (434 SE2d 488) (1993), which is controlling under the facts presented herein. In affirming the trial court’s grant of summary judgment in favor of DHR, the Supreme Court in Poss found that the department could not be held vicariously liable and invoke the coverage of its policy of insurance where the allegedly negligent employees were not added as party defendants within the time period provided in the applicable statutes of limitation.

Under the terms of the policy in the case at bar, “[i]nsureds” are defined as “(1) Employees of the State of Georgia employed by participating Departments or Agencies. (2) All employees of participating Authorities and Instrumentalities of the State of Georgia. ... (7) Any participating entity as authorized by OCGA § 45-9-1 now enacted or hereafter enacted.” While liability insurance is specifically provided to the individuals employed within the agency pursuant to this agreement, the department’s liability protection is limited to the extent that it becomes vicariously liable on behalf of the negligent actions, errors, or omissions of its personnel. Id. Contrary to the Davises’ contentions, notwithstanding the language contained in subsection 7, OCGA § 45-9-1 only authorizes the purchase of liability insurance or formulation of plans of self-insurance to insure public officers or employees of the agency, board, bureau, commission, department, or authority of the state to the extent that they are not immune from liability. Logue v. Wright, 260 Ga. 206 (2) (392 SE2d 235) (1990). The statute does not authorize the purchase of insurance by an agency specifically for the agency as the entity enjoys immunity from suit unless the immunity has been waived.

In their complaint, the Davises alleged that employees of DHR’s Georgia Regional Hospital at Augusta “failed to exercise that degree of care and skill which is ordinarily employed by the medical profession in the diagnosis and treatment of patients under similar circumstances,” which ultimately resulted in the death of the decedent on June 22, 1990. However, the Davises failed to identify, name as party defendants, and serve the allegedly negligent employees within the time period provided in the applicable statute of limitation. See OCGA § 9-3-71. Consequently, the allegedly negligent employees of DHR cannot be held liable now for the decedent’s suffering and untimely demise as a matter of law. Poss, supra. As the Supreme Court stated in Ward v. Bulloch County, 258 Ga. 92, 93 (365 SE2d 440) (1988), “the mere purchase of liability insurance does not automatically waive sovereign immunity. Rather, sovereign immunity is waived only when the insurer of a state entity [can] satisf[y] a claim under the coverage provided.” Under the facts of this case, insurance protection cannot be provided in the absence of the liability of an employee of DHR. Poss, supra; Martin, supra. Cf. Newsome v. Dept. of Human Resources, 199 Ga. App. 419 (405 SE2d 61) (1991) (where the department and the allegedly negligent employees of the department were named as party defendants).

Accordingly, we must conclude that DHR was entitled to summary judgment as a matter of law in the absence of a waiver of its immunity from suit. Poss, supra.

Decided November 22, 1993

Reconsideration denied December 6, 1993

Stephen E. Curry, for appellants.

Michael J. Bowers, Attorney General, Teresa E. Lazzaroni, Staff Attorney, Knox & Zacks, Ted H. Clarkson, Alston & Bird, Theodore E. G. Pound, for appellees.

Judgment affirmed.

McMurray, P. J., and Johnson, J., concur.

       The Constitution does not require governmental entities to elect commercial insurance coverage rather than self-insurance, and a governmental entity can waive immunity by participation in a self-insurance program. Litterilla, supra. See also Martin, supra; Dozier, supra.

       Under OCGA § 45-9-1, an agency is authorized to purchase liability insurance or participate in a self-insurance program to indemnify officers, officials, or employees to the extent that they are not immune from liability for damages arising out of their performance of their duties with the agency.


author: Birdsong, Presiding Judge.

text:
    A93A1571.
    BUNDRAGE v. STANDARD GUARANTY INSURANCE COMPANY.
    (439 SE2d 92)
   Birdsong, Presiding Judge.

Roosevelt Bundrage appeals the grant of summary judgment to Standard Guaranty on his claim for Personal Injury Protection (PIP) benefits, for penalties and punitive damages under former OCGA § 33-34-6 (b), and, pursuant to his amended complaint, for penalties and attorney fees under former OCGA § 33-4-6. After Bundrage was injured in a covered accident, he received medical care from health care providers to whom he assigned the right to collect the PIP benefits. Standard Guaranty paid medical benefits up to a certain amount and then ceased payments. Thereafter, Bundrage filed suit to collect unpaid PIP benefits and penalties, attorney fees, and punitive damages because of untimely PIP payments.

Subsequently, Standard Guaranty moved for summary judgment contending that Bundrage was not entitled to penalties and punitive damages under former OCGA § 33-34-6 (b) because of the repeal of no-fault insurance (see Terry v. State Farm Mut. Auto. Ins. Co., 205 Ga. App. 224 (422 SE2d 212)), and because Bundrage was not the real party in interest for the benefits claimed because of his assignment to the health care providers. Ultimately, the trial court granted summary judgment to Standard Guaranty because of Terry v. State Farm Mut. Auto. Ins. Co., supra, and on a finding that the assignments of payment to the medical providers made them the real parties in interest, and Bundrage was then not authorized to maintain this action. The trial court’s ruling on Bundrage’s entitlement to PIP penalties under former OCGA § 33-34-6 is not enumerated as error and is affirmed.

Bundrage contends the trial court erred because an assignment of benefits to the medical provider does not divest Bundrage of his right to bring such a suit. Further, Bundrage contends the action should not have been dismissed because of failure to join the real parties in interest, the medical providers, since they were third-party defendants. Moreover, Bundrage contends that he should be granted summary judgment because the evidence showed Standard Guaranty acted in bad faith as a matter of law. Held:

1. Bundrage correctly asserts that summary judgment should not have been granted for failure to join an indispensable party since such a defense is a matter in abatement. Fleming v. Caras, 170 Ga. App. 579 (317 SE2d 600).

2. We must also reverse on the merits of Standard Guaranty’s motion because the trial court misapplied our decision in Santiago v. Safeway Ins. Co., 196 Ga. App. 480 (396 SE2d 506). Although in Santiago this court held that a medical provider which had received an assignment of PIP benefits could sue the insurer for failure to pay, we did not hold that the insured could not bring such an action. Indeed, under Vulcan Life Ins. Co. v. Davenport, 191 Ga. App. 79, 85 (380 SE2d 751), the insured may bring an action notwithstanding his authorization of payment to the medical care providers. Nevertheless, the assignment of the medical benefits made the health care providers indispensable parties to the action within the meaning of OCGA § 9-11-19 (a) (2) (B). North American Life &c. Co. v. Riedl, 209 Ga. App. 883, 884 (434 SE2d 820). Therefore, the judgment of the trial court concerning the real-party-in-interest objection is reversed and remanded with direction that a reasonable opportunity be provided for the health care providers to ratify or join the action as parties plaintiff pursuant to OCGA § 9-11-17 (a), or to be joined or substituted under OCGA § 9-11-9 (a). The trial court is directed to permit such joinder, but upon appellee’s failure to so move within 20 days of the receipt of the remittitur, a denial of the motion to dismiss based on the real-party-in-interest objection shall be entered. North American Life &c. Co. v. Riedl, supra at 885.

Moreover, since neither the repeal of PIP, nor the real-party-in-interest objection reached Bundrage’s amended complaint asserting a claim under former OCGA § 33-4-6, it was error for the trial court to grant summary judgment to Standard Guaranty on this claim.

3. In view of our disposition of this appeal in Division 2, we need not address Bundrage’s assertion that the medical care providers, as third-party defendants, were parties to the action sufficient to defeat Standard Guaranty’s motion. See, however, OCGA § 9-11-14 (a); Hyde v. Klar, 168 Ga. App. 64 (308 SE2d 190).

4. Although we find that summary judgment was erroneously granted Standard Guaranty, we also find that genuine issues of material fact remain on Bundrage’s entitlement to summary judgment on his claims. OCGA § 9-11-56 (e).

Decided December 6, 1993

Chambers, Mabry, McClelland & Brooks, Robert M. Darroch, Saveli & Williams, Daniel N. Meyer, for appellant.

Eason, Kennedy & Associates, Richard B. Eason, Jr., McReynolds & Welch, Aubrey T. Villines, Jr., for appellee.

Judgment affirmed in part and reversed in part with direction.

Pope, C. J., and Andrews, J., concur.


author: Blackburn, Judge. McMurray, Presiding Judge,

text:
    A93A1102.
    A93A1186.
    GIVENS v. THE STATE. BARFIELD v. THE STATE.
    (439 SE2d 22)
   Blackburn, Judge.

The defendants, Carroll Givens and Arthur Barfield, were convicted of criminal attempt to possess cocaine, stemming from a reverse sting operation conducted by the Albany-Dougherty Drug Unit on May 9, 1992. These appeals followed.

The State’s evidence at trial showed that on the night in question, a truck approached one of the undercover police officers who was posing as a drug dealer on the street. Barfield drove the truck, and Givens was a passenger. The officer asked the defendants what they wanted, and Givens replied that he needed a “twenty.” The defendants were then told to back up to a point where another officer was standing. Barfield had money in his hand and told the second officer that he wanted a “twenty,” and the officer handed him a bag containing crack cocaine. Givens then remarked, “you get one then I’ll get one,” or words to that effect. Barfield looked at the contents of the bag and handed it back to the officer. Next, without any explanation, the defendants attempted to drive off, and they were immediately arrested.

1. On appeal, Barfield and Givens contend that their convictions must be reversed due to the State’s failure to disprove their affirmative defense of abandonment beyond a reasonable doubt. We disagree.

Although a defendant in a criminal case has no burden of persuasion with regard to an affirmative defense asserted, there must be some evidence presented by either the defendant or the State that raises the defense. “The responsibility of producing evidence of an affirmative defense and the burden of persuasion by proof beyond a reasonable doubt are two distinct and separate concepts. The first is placed squarely on the defendant unless the state’s evidence raised the issue.” Moore v. State, 137 Ga. App. 735, 736 (224 SE2d 856), overruled on other grounds State v. Moore, 237 Ga. 269 (227 SE2d 241) (1976). See also May v. State, 179 Ga. App. 736 (2) (348 SE2d 61) (1986).

Where a defendant testifies and raises an affirmative defense by that testimony, the State then has the burden of disproving that defense beyond a reasonable doubt. Bentley v. State, 261 Ga. 229 (404 SE2d 101) (1991); Coleman v. State, 141 Ga. App. 193 (2) (233 SE2d 42) (1977). However, in the instant cases, the defendants did not testify or present any other evidence to support a deffense of abandonment. Further, the State’s evidence did not raise an affirmative defense of abandonment, or establish such an abandonment as fact.

The defendants were charged with and convicted of criminal attempt to possess cocaine. “A person commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime.” OCGA § 16-4-1. The State’s evidence established that the defendants drove up to an undercover officer posing as a drug dealer, placed an order for a specific quantity of cocaine, backed up their vehicle with money in hand to another undercover officer to pick up their order, and actually took possession of the cocaine. In the end, they handed the cocaine back to the undercover officer and attempted to drive away, but by that point in time they had already taken a “substantial step” toward committing the crime of possession of cocaine. If the defendants had a change of heart, it was after the criminal attempt was completed, and thus too late.

Under these circumstances, the trial court properly denied the defendants’ motions for directed verdict of acquittal based on the defense of renunciation, and properly refused to instruct the jury that the State had the burden of disproving that defense beyond a reasonable doubt. The trial court’s general jury charge on abandonment was not required by the evidence.

Even if the State’s evidence had raised the affirmative defense of abandonment, “[t]he determination of whether the State has met its burden to disprove the affirmative defense is for the jury.” Bentley v. State, supra at 230. Inasmuch as the defendants have not even suggested an explanation for their conduct other than the jury’s conclusion that there was no abandonment, we should not disturb the jury’s finding. Cf. Rash v. State, 207 Ga. App. 585, 587 (5) (428 SE2d 799) (1993).

2. In reverse sting operations, undercover police officers pose as drug dealers in an area known for drug activity and sell cocaine to purchasers. Following the purchase or attempted purchase, the buyer is arrested for possession of cocaine. The law enforcement officers use this operation as a means of attempting to prevent street level drug activities.

The trial court properly disallowed defense counsel’s attempt during the trial to develop an argument that reverse sting operations conducted by the police are illegal and so outrageous as to constitute a violation of due process. There was no criminal intent or act on the part of the undercover officers, and it is the targeted illicit trade of drugs that properly may be described as outrageous, rather than the reverse sting operations designed and conducted to combat that trade. As noted by the United States Supreme Court in the context of discussing the defense of entrapment, “an agent deployed to stop the traffic in illegal drugs may offer the opportunity to buy or sell drugs, and, if the offer is accepted, make an arrest on the spot or later.” Jacobson v. United States, 503 U. S. _ (112 SC 1535, 118 LE2d 174, 185) (1992).

3. A videotape of the attempted purchase was played for the jury after the police officer who taped the incident testified and laid the proper foundation for its admission. During cross-examination of the officer, defense counsel initially asked that the tape be played again to assist with that cross-examination. The trial court denied the request, noting that the jury would recall what the tape depicted, but did not otherwise limit the cross-examination of the officer regarding the matter. On appeal, however, the defendants contend that the trial court’s refusal to allow the replay of the tape constituted a harmful restriction of their cross-examination of this witness.

The scope of cross-examination is not unlimited and lies within the sound discretion of the trial court. Hayes v. State, 193 Ga. App. 33 (2) (387 SE2d 139) (1989). In the instant cases, the defendants have not shown how the restriction adversely affected their ability to develop their defense of abandonment. The videotaped transaction was brief and did not involve a great deal of action to recall, and defense counsel was afforded a thorough cross-examination of the police officer regarding the contents of the tape. Under these circumstances, the trial court did not abuse its discretion.

4. The defendants were represented by separate counsel. At trial, neither defendant presented any evidence, and under OCGA § 17-8-71, each defense counsel had the right to open and conclude the closing argument. McDuffie v. Jones, 248 Ga. 544 (2) (283 SE2d 601) (1981). In the instant cases, the trial court thus erred in only allowing one defense counsel to open and the other defense counsel to conclude the closing argument.

“The question remains, however, whether the error was harmless. The right to make the final argument to the jury is an important right and harm to the defendant is presumed on appeal when the right is erroneously denied. Seyden v. State, 78 Ga. 105 (4) (1886). However, the presumption is not absolute and the error may be shown to be harmless.” McDuffie v. Jones, supra at 547.

One defendant was improperly prohibited from arguing before the State and the other defendant was improperly prohibited from arguing after the State. The evidence was the same against both defendants, and the jury found each defendant guilty. In view of that evidence, including the videotape and the testimony of the police officers who conducted the reverse sting operation, we find it highly probable that the error did not contribute to the defendants’ convictions and the trial court’s failure to properly allow argument, while error, is not reversible error under the facts of this case. Id. at 548.

5. Viewed in the light most favorable to support the verdict, the evidence was sufficient to authorize a rational trier of fact to find the defendants guilty of criminal attempt to possess cocaine beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgments affirmed.

Pope, C. J., Birdsong, P. J., Beasley, P. J., Cooper, Andrews, Johnson and Smith, JJ., concur. McMurray, P. J., dissents.

McMurray, Presiding Judge,

dissenting.

Under Georgia law, “A person commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime.” OCGA § 16-4-1. To reward those who have a change of heart and voluntarily abandon their criminal purpose, our law also provides: “(a) When a person’s conduct would otherwise constitute an attempt to commit a crime under Code Section 16-4-1, it is an affirmative defense that he abandoned his effort to commit the crime or in any other manner prevented its commission under circumstances manifesting a voluntary and complete renunciation of his criminal purpose, (b) A renunciation of criminal purpose is not voluntary and complete if it results from: (1) A belief that circumstances exist which increase the probability of detection or apprehension of the person or which render more difficult the accomplishment of the criminal purpose; or (2) A decision to postpone the criminal conduct until another time.” OCGA § 16-4-5.

The remedial purpose behind OCGA § 16-4-5 (formerly OCGA § 26-1003) is explained in the Committee Notes to the 1968 Criminal Code as follows: “This section is a new provision that specifically allows a person to withdraw without criminal liability if he has a change of mind and heart and voluntarily desists from the criminal attempt before the ultimate crime is perpetrated. Theoretically, though detection might be rare and proof might be difficult, a person who, with the requisite criminal intent had gone far enough toward the commission of a crime for his act to constitute an attempt, would be guilty of a criminal attempt at that point, and without this [section], he would be subject to severe punishment. The philosophy of [this section] is that the person who really repents at that point and abandons the enterprise should not be punished. It should be emphasized that this defense is not available to one whose criminal activity ceases only because of difficulty, or a decision to wait for a later or safer opportunity.”

The majority takes the position that the evidence did not raise the defense of abandonment. In this regard, the majority opines: “If the defendants had a change of heart, it was after the criminal attempt was completed, and thus too late.” In my view, this approach misses the point of the abandonment defense. As the Committee Notes point out, the abandonment defense was enacted to enable a person who would otherwise be guilty of a criminal attempt to repent and abandon the criminal enterprise. That is exactly what happened in this case. The mere fact that defendants may have committed a criminal attempt before they had a change of heart is of no consequence.

In my view, the evidence presented by the State demonstrated that defendants abandoned their criminal scheme. Accordingly, I am of the view that the affirmative defense of abandonment was raised below. See generally Noles v. State, 164 Ga. App. 191, 192 (296 SE2d 768). (Indeed, the trial court must have agreed because it charged the jury on the law of abandonment.)

To overcome defendants’ affirmative abandonment defense, the State needed to introduce evidence disproving abandonment beyond a reasonable doubt. See Coleman v. State, 141 Ga. App. 193, 194 (2) (233 SE2d 42). I feel the State failed in that endeavor. The officers testified that they did not announce they were police officers until defendants started to leave the scene. They also testified that they did not know why defendants aborted their criminal enterprise.

Based on the evidence adduced below, we can only speculate as to why defendants decided they did not want to purchase the cocaine that the police were selling. Did they somehow suspect that they were being set up? Did they decide that the cocaine was overpriced? Or, did they have a real change of heart? The evidence adduced below does not answer these questions.

The State was unable to demonstrate beyond a reasonable doubt that defendants abandoned their criminal purpose because they believed they were about to be apprehended and decided to wait for a safer opportunity. Compare Padgett v. State, 170 Ga. App. 98, 100 (316 SE2d 523), in which victim’s obstructive conduct caused defendant to abandon his scheme. Accordingly, it is my view that the State failed to present evidence enabling a rational trier of fact to find beyond a reasonable doubt that defendants made a criminal attempt to possess cocaine.

Decided November 15, 1993

Reconsideration denied December 7, 1993

Borough & Sizemore, Kermit S. Borough, Jr., for Givens.

T. Lee Bishop, Jr., for Barfield.

Britt R. Priddy, District Attorney, Johnnie M. Graham, Assistant District Attorney, for appellee.

I respectfully dissent.


text:
    A93A1450.
    GRAY v. GENERAL MOTORS ACCEPTANCE CORPORATION.
    (439 SE2d 49)
   Smith, Judge.

Charles Atlas Gray brought this action against General Motors Acceptance Corporation (GMAC), contending that GMAC wrongfully repossessed his car. The underlying facts are as follows: Gray was arrested and pled guilty to a federal charge of distribution of cocaine. The federal agents who arrested Gray testified that he used the vehicle financed by GMAC to transport and sell cocaine. The vehicle accordingly was seized by the Drug Enforcement Administration under 21 USC § 881 (a) (4). GMAC then sought to repossess the vehicle. Because GMAC held a perfected security interest that exceeded the value of the vehicle, the DEA released the vehicle to GMAC.

Cross-motions for summary judgment were brought by the parties on Counts I and II of the original complaint and GMAC’s counterclaim for deficiency judgments on this vehicle and another repossessed vehicle. On July 29, 1992, the trial court denied summary judgment to Gray and granted summary judgment to GMAC, finding that the repossession was proper, because Gray had breached the retail installment sales contract by “exposing] the vehicle to misuse or confiscation.” The trial court also granted a deficiency judgment to GMAC. Gray has not appealed the July 1992 order.

However, on the date of the hearing on the initial summary judgment motions, Gray amended his complaint to add a third count alleging claims for violation of his federal constitutional rights pursuant to 42 USC §§ 1981, 1983 and 1985. The parties again brought cross-motions for summary judgment, and the trial court again denied summary judgment to Gray and granted summary judgment to GMAC. Gray’s sole enumeration of error is the trial court’s denial of his motion for summary judgment on Count III.

In order to prevail on summary judgment, the moving party must demonstrate that he is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). Gray has failed to show a basis for summary judgment in his favor under any of the federal statutes cited, and we affirm.

Decided November 23, 1993

Reconsideration denied December 7, 1993

Sonja L. Salo, for appellant.

McCullough & Pane, John G. McCullough, Gregson T. Haan, for appellee.

42 USC § 1981 forbids interference with the right to contract on the basis of race, and in order to state a claim under this statute, Gray must allege discriminatory intent. Faulk v. City of Orlando, 731 F2d 787, 790 (11th Cir. 1984). Gray does not point to any evidence in the record that reveals discriminatory intent on the part of GMAC. In fact, he does not raise the issue of any race- or class-based discrimination in his brief. There is, moreover, no showing of any interference with any contractual right, as the trial court determined in its unappealed order that the repossession of the collateral involved here was proper and lawful under the contract.

By its terms, 42 USC § 1985 (3) applies to conspiracies “for the purpose of depriving . . . any person ... of the equal protection of the laws. ...” Gray has alleged a deprivation of due process rights, which is not cognizable under § 1985 (3). See Yglesias v. Gulfstream Park Racing Assn., 201 F2d 817, 819 (5th Cir.), cert. denied, 345 U. S. 993 (73 SC 1132, 97 LE2d 1400) (1953) (decided under previous codification of statute at 8 USC § 43). As in actions under 42 USC § 1981, Gray must show some racial or class-based invidious discrimination behind the alleged conspiracy. Wrenn v. Ledbetter, 697 FSupp. 483, 487 (N.D. Ga. 1988), aff’d 880 F2d 420 (11th Cir. 1989), cert. denied, 493 U. S. 1075 (110 SC 1123, 107 LE2d 1030) (1990).

Finally, “[s]tate action is a prerequisite to maintenance of a suit under 42 USCA § 1983. [Cit.] No state action has been demonstrated in this case. Furthermore, it is clear that appellant’s constitutional rights have not been violated.” Aiken v. C & S Bank, 249 Ga. 481, 482 (4) (291 SE2d 717) (1982).

Gray has shown no basis for a cause of action pursuant to any of the provisions of 42 USC §§ 1981, 1983 or 1985. Accordingly, the trial court did not err in denying Gray’s motion for summary judgment.

Judgment affirmed.

Beasley, P. J., and Cooper, J., concur.

       42 USC § 1985 (1) and (2) address interference with officers of the United States government and obstruction of justice, and are not applicable here.


author: Cooper, Judge.

text:
    A93A1524.
    CONTRACT HARVESTERS et al. v. CLARK.
    (439 SE2d 30)
   Cooper, Judge.

In this proceeding for workers’ compensation benefits, the Administrative Law Judge (ALJ) found that appellee-claimant Clark sustained a compensable injury and ordered Clark’s employer and its insurer, appellants Contract Harvesters and American Interstate Insurance Company, to provide income and medical benefits. The ALJ denied Clark’s request for attorney fees. Upon de novo review, the award of the ALJ was made the award of the full board. Pursuant to OCGA § 34-9-105 (b), the employer appealed to the superior court which affirmed the award of the full board and further assessed attorney fees against appellants for pursuing a frivolous appeal, apparently pursuant to OCGA § 9-15-14. Appellants’ application for discretionary appeal was granted by this court and a timely notice of appeal was filed. The employer and its insurer appeal from the order of the superior court affirming the award of the full board and assessing attorney fees for frivolous appeal.

1. The superior court’s affirmance of the full board’s award of benefits is enumerated as error on the general grounds. The findings of fact made by the members of the full board are, in the absence of fraud, conclusive and binding upon a reviewing court if there is “any evidence” to sustain them. Ga. Cas. Co. v. Martin, 157 Ga. 909, 915 (122 SE 881) (1924); OCGA § 34-9-105 (c) (4). In support of their enumeration of error, appellants point to a statement by the ALJ in her award that “the [right rear] tire of the vehicle in which [Clark] was driving blew out and caused the employee’s [sic] truck to veer off the road and overturn.” (Emphasis supplied.) It is contended that this finding of fact is unsupported by any competent evidence because a photograph taken immediately after the accident on site shows that the right rear tire is still inflated. This enumeration is patently without merit.

The uncontradicted testimony of Clark and another eyewitness shows that the tread became separated from the tire, causing Clark to lose control of the vehicle. Pieces of tread were recovered from the accident site and close-up photographs of the tire confirm that, while still inflated, the tire had no tread and was bare down to the belt. Accordingly, the ALJ’s description of the event as a “blow out” is entirely consistent with the physical evidence showing that the tread had become completely separated from the tire. There is no material misstatement of the evidence and the finding of causation in fact is amply supported by competent evidence, both testimonial and physical. Compare Fidelity &c. Ins. Co. v. Cigna/Pacific Employers Ins. Co., 180 Ga. App. 159, 161 (1) (348 SE2d 702) (1986). Neither the ALJ nor the full board, as the trier of fact, was bound by the opinion testimony of appellants’ expert witness. Thomas v. United States Cas. Co., 218 Ga. 493, 494 (3) (128 SE2d 749) (1962); American Motorists Ins. Co. v. Blaylock, 84 Ga. App. 409 (66 SE2d 126) (1951). The superior court correctly affirmed the award of benefits ordered by the full board, applying the appropriate standard of appellate review of the evidence adduced below to the contentions of the prevailing party. St. Paul Ins. Co. v. Henley, 141 Ga. App. 581, 582 (1) (234 SE2d 159) (1977).

2. Appellants contend that the superior court erred in awarding attorney fees to appellee. Appellants denied coverage and defended on the basis of the employee’s wilful misconduct, alleging that Clark was greatly exceeding the speed limit at the time of the accident. This defense was supported by opinion testimony from an expert accident reconstructionist, who testified that the truck was traveling 75 to 79 mph, as well as by circumstantial evidence that Clark had covered a great distance in a short period of time. Although Clark sought an award of attorney fees pursuant to OCGA § 34-9-108 (b) (1), this relief was denied by both the ALJ and the full board. The full board adopted the ALJ’s determination that attorney fees were unwarranted for the prosecution of the case in that appellants “had a reasonable defense to this claim [of employee misconduct] based upon their expert who was of the opinion that the employee was exceeding the speed limit when the accident occurred.” However, the superior court determined that the appeal itself was frivolous and granted Clark’s motion for expenses of litigation, awarding $1,500 in attorney fees for defending the frivolous appeal. Appellants argue that the award of attorney fees is “not based on Georgia law and is not supported by any specific citation,” and that the finding of the full board, to the effect that appellants’ defense of the claim was reasonable, precludes an award of attorney fees on the basis of a frivolous appeal.

Prior to 1978, the superior court, acting in its appellate capacity, was expressly authorized to assess an award of reasonable attorney fees incurred by a prevailing party in defending a frivolous appeal from an award of workers’ compensation benefits, pursuant to former Ga. Code Ann. § 114-712. Magnus Metal &c. Co. v. Stephens, 115 Ga. App. 432, 433 (2) (154 SE2d 869) (1967); Dunn v. American Mut. Liab. Ins. Co., 64 Ga. App. 509, 514 (13 SE2d 902) (1941). Appellant correctly notes that, pursuant to OCGA § 34-9-108 (b) (1) as currently enacted, only the ALJ or the full board is expressly authorized to assess attorney fees and only upon “a determination that proceedings have been brought, prosecuted, or defended in whole or in part without reasonable grounds.” Appellee, on the other hand, contends that the assessment of attorney fees for a frivolous appeal to the superior court from the award of the full board nevertheless is authorized by OCGA § 9-15-14. We agree.

OCGA § 9-15-14 (b) provides: “The court may assess reasonable and necessary attorney fees and expenses of litigation in any civil action in any court of record 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 or that the action, or any part thereof, was interposed for delay or harassment. ... As used in this Code section, ‘lacked substantial justification’ means substantially frivolous, substantially groundless, or substantially vexatious.” (Emphasis supplied.) Also, OCGA § 9-15-14 (h) expressly provides that, “when a case is appealed from the magistrate court, the appellee may seek litigation expenses incurred below if the appeal lacks substantial justification.” Although an “appeal from a decision of a magistrate court is [itself] ‘a de novo investigation!,]’ [Cits.]” (Howe v. Roberts, 259 Ga. 617, 619 (2) (385 SE2d 276) (1989)), we conclude that OCGA § 9-15-14 may be applied when the superior court is sitting in an appellate capacity. Every court has power “[t]o control, in the furtherance of justice, the conduct of its officers and all other persons connected with a judicial proceeding before it, in every matter appertaining thereto[.]” OCGA § 15-1-3 (4). The phrase “any civil action in any court of record” is not limited to a cause of action initiated in a court of record where the Civil Practice Act applies. Nor does OCGA § 9-15-14 limit its application to appeals de novo in the superior court. Compare Butlerhouse Maintenance Co. v. Greeson, 174 Ga. App. 637, 639 (331 SE2d 46) (1985) (holding that the “penalty prescribed by OCGA § 5-3-31 cannot be assessed by the superior court when it is acting in the appellate capacity prescribed by OCGA § 34-9-105”). We hold that OCGA § 9-15-14 (b) authorizes a superior court to assess attorney fees against a party or his counsel who has prosecuted a frivolous appeal from a workers’ compensation award of the ALJ or the full board in the superior court. See Osborn & Walcott Mfg. Co. v. Blanton, 109 Ga. 196, 197 (3) (34 SE 306) (1899) (inherent authority of appellate court to sanction frivolous appeal). Compare Dills v. Bohannon, 208 Ga. App. 531, 533 (2) (431 SE2d 123) (1993) (appeal of an arbitration award is not per se an unwarranted expansion of the proceedings such as to authorize an award of OCGA § 9-15-14 (b) attorney fees). Pursuant to OCGA § 9-15-14 (d) the amount of attorney fees and expenses of litigation “shall not exceed amounts which are reasonable and necessary for defending or asserting the rights of a party” before the superior court, and shall not include expenses incurred before the ALJ or the full board. See OCGA § 34-9-108 (b) (1). See also Dept. of Transp. v. Franco’s Pizza &c., 200 Ga. App. 723, 727 (5) (409 SE2d 281) (1991) (a trial court is not authorized by OCGA § 9-15-14 to award the expenses of litigation incurred during proceedings before an appellate court of this state).

3. OCGA § 9-15-14 (f) provides that an “award of reasonable and necessary attorney’s fees and expenses of litigation under this Code section shall be determined by the court without a jury and shall be made by an order of court which shall constitute and be enforceable as a money judgment.” The superior court determined that this appeal based on the general grounds was frivolous. In this instance, that determination is supported by the nature and quality of the argument presented below. The mere fact that the ALJ and the full board did not award attorney fees to Clark during the factfinding phase of this claim is not determinative as to whether the appeal was brought on frivolous grounds or solely for an improper purpose.

Decided November 19, 1993

Reconsideration denied December 7, 1993

Lowendick, Speed & Donahue, H. Durance Lowendick, Kenneth B. Donahue, for appellants.

Cathey & Strain, Edward E. Strain III, John C. Swearingen, for appellee.

Appellee’s counsel prayed for an award of $2,625 and submitted his affidavit relating his experience with workers’ compensation cases, the time spent defending this award before the superior court, and his customary hourly rate. The reasonableness of the request was contested by appellants, whose counsel submitted his own affidavit in opposition. The award of $1,500 as reasonable attorney fees incurred in defending the award of the full board is within the range of the evidence adduced and is not on its face manifestly unreasonable. An award of attorney fees and expenses of litigation made under “OCGA § 9-15-14 (b) is discretionary and the standard of review is abuse of discretion.” Haggard v. Bd. of Regents &c. of Ga., 257 Ga. 524, 527 (4c) (360 SE2d 566) (1987). Under this standard, the record supports the superior court’s award for bringing a frivolous appeal from an award of the full board.

Judgment affirmed.

Beasley, P. J., and Smith, J., concur.


text:
    A93A2343.
    BALLARD v. CLAYTON COUNTY HOSPITAL AUTHORITY.
    (439 SE2d 672)
   Blackburn, Judge.

The appellant, Rozie Ballard, in her capacity as the surviving widow and administratrix of the estate of the decedent, Mitchell Ballard, filed the instant wrongful death action against the appellee, Clayton County Hospital Authority d/b/a Clayton General, for Clayton General’s alleged negligence in failing to properly monitor the decedent who had a history of irrational behavior. Hospital personnel allegedly allowed the decedent to leave the hospital’s premises where he was exposed to sub-freezing temperatures before his body was discovered two days later. Following a five-day jury trial, a judgment was entered on the jury’s verdict in favor of Clayton General. Ballard’s motion for a new trial was subsequently denied by the trial court, and this appeal followed.

At trial, Ballard presented the expert testimony of Fred Ellison, a retired hospital administrator, in support of her claim of hospital negligence. During cross-examination, Ellison was questioned on the nature of his fee arrangement with Ballard, and indicated that he was paid on an hourly basis, denying that he worked on a contingency fee basis. In an attempt to impeach his testimony, counsel for the defense presented a letter written to Ellison by another consultant who had initially examined the records of the case and had referred the case to Ellison. The consultant did not testify at trial.

In the letter, which Ellison acknowledged receiving, the consultant stated that he had established fees with Ballard’s attorney for Ellison of $50 per hour for case review; $100 per hour for written or oral testimony; $4,000 per each $100,000 of any settlement, and travel as well as out-of-pocket expenses. Ellison denied that he had a financial interest in the outcome of the case. Ballard’s counsel objected to the admission of this letter, asserting that the letter was irrelevant, immaterial, and inadmissible hearsay. The letter was admitted over counsel’s objection.

1. In her first enumeration of error, Ballard maintains that the trial court erred in admitting this letter of an out-of-court declarant as it contained impermissible hearsay. Ballard further asserts that this error warrants a new trial. While we agree with Ballard that the letter was improperly admitted, its admission does not warrant reversal.

In Renew v. Edenfield, 200 Ga. App. 484 (2) (408 SE2d 499) (1991), we rejected the use of a radiology report of an out-of-court physician for impeachment purposes, as the report constituted hearsay not within a recognized exception. In the case sub judice, the expert was questioned about the nature of his fee arrangement based upon the letter of an out-of-court declarant. As we stated in Renew, there is no general rule that allows all hearsay evidence to be used for impeachment purposes. Accordingly, the trial court erred in admitting this letter for such purpose. However, this letter did not impeach Ellison’s testimony as the letter does not show that Ellison agreed to accept the case on a contingency basis, contrary to his testimony, and merely shows that the consultant discussed payment arrangements on behalf of Ellison.

Decided November 22, 1993

Reconsideration denied December 7, 1993

Albert B. Wallace, Stephen B. Wallace II, for appellant.

Oliver, Duckworth, Sparger & Winkle, William H. Duckworth, Jr., for appellee.

Moreover, Ellison testified without objection that he discussed the possibility of receiving a contingency fee with Ballard’s attorney, and he declined the offer. Consequently, the erroneous admission of the letter was harmless inasmuch as the contents of the letter were subsequently disclosed without objection. See Kennedy v. State, 205 Ga. App. 152 (421 SE2d 560) (1992). “Where error is harmless, reversal is not indicated. [Cit.]” Kilgo v. State, 198 Ga. App. 762, 764 (403 SE2d 216) (1991). See also Butts v. State, 198 Ga. App. 368 (4) (401 SE2d 763) (1991). Accordingly, the trial court did not err in denying Ballard’s motion for new trial on this basis, and enumerations of error 1 and 3 are without merit.

2. In her second enumeration of error, Ballard asserts that the trial court erred in questioning the expert on the consultant’s fee in the case and the consultant’s future involvement in the case. However, Ballard did not object to this line of questioning at trial. As this court has repeatedly held, “[a]n objection cannot be raised for the first time on appeal. [Cit.]” Womack Indus. v. Loadstar, 204 Ga. App. 802, 803 (420 SE2d 659) (1992). See also Long v. Jones, 208 Ga. App. 798 (432 SE2d 593) (1993); Abreu v. State, 206 Ga. App. 361 (2) (425 SE2d 331) (1992); Dupree v. State, 206 Ga. App. 4 (2) (424 SE2d 316) (1992). Accordingly, this enumeration presents nothing for appellate review.

Judgment affirmed.

McMurray, P. J., and Johnson, J., concur.


author: Johnson, Judge. Beasley, Presiding Judge, Blackburn, Judge,

text:
    A93A1075.
    SCHROEDER et al. v. GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY.
    (439 SE2d 18)
   Johnson, Judge.

The Schroeders filed an action against Georgia Farm Bureau Mutual Insurance Company (Farm Bureau) to recover damages incurred as a result of Farm Bureau’s refusal to pay their insurance claim for a fire loss which destroyed their residence and the personal property it contained. The trial court granted Farm Bureau’s motion for summary judgment, denied as moot the Schroeders’ cross-motion for summary judgment, and the Schroeders appeal from both rulings. We affirm.

In asserting that it was entitled to judgment as a matter of law, Farm Bureau argued that the Schroeders had no insurable interest in the property, that the Schroeders had made material misrepresentations on their application for insurance, that they had violated a condition of the policy by using the residence in furtherance of a “business pursuit” thereby voiding the policy as a matter of law, and that it was not guilty of bad faith in denying coverage. Thereafter, the Schroeders filed a cross-motion for summary judgment in which they argued that Farm Bureau was estopped from denying coverage based upon lack of insurable interest due to its knowledge of the true ownership of the property at the time the policy was issued, that the Schroeders’ conduct did not constitute a “business pursuit” within the meaning of the policy, that there was no causal connection between the Schroeders’ conduct and the loss they incurred, that the policy language relied upon by Farm Bureau in denying coverage was contrary to Georgia law, and that the Schroeders were entitled to bad faith penalties as a matter of law.

The undisputed facts in the record show that in September 1985, Farm Bureau issued the homeowners’ insurance policy which is at issue in this case providing coverage on the Schroeders’ residence. Approximately 15 to 20 feet from their house, the Schroeders operated a store called Mac’s Bait & Tackle. Farm Bureau had issued a separate business policy covering the store. In October 1990, the Schroeders installed three coin-operated video games and two coin-operated pool tables in two rooms of their residence. A sign was placed in their store indicating the availability of the machines and directing customers to their residence, where they were invited to operate these games and tables. The video games and pool tables were owned by Huckleberry Amusement, and the Schroeders received one-half of the gross proceeds they generated. On average, the Schroeders received approximately $300 per month in income from the operation of the video games and pool tables.

On December 25, 1990, a fire totally destroyed the Schroeders’ residence and their personal property contained therein. The fire was caused by a wood heater located in the residence, not by the video games or pool tables. In fact, it is undisputed that the video games and pool tables were not in operation on the day of the fire.

In granting Farm Bureau’s motion for summary judgment, the trial court found, as a matter of law, that the Schroeders did have an insurable interest in the property, but that the Schroeders’ operation of the video game and pool table business in the house voided the homeowners’ policy. The Schroeders’ cross-motion for summary judgment was denied as moot. In their appeal, the Schroeders contend that the trial court erred in granting Farm Bureau’s motion for summary judgment and in denying their motion for summary judgment.

The policy provided on its first page that “[Farm Bureau] will provide the insurance described in this policy in return for the premium and compliance with all applicable provisions of this policy.'’'’ (Emphasis supplied.) The special provisions section of the policy contained the following language: “(a) The residence premises is not seasonal; (b) no business pursuits are conducted on the residence premises. . . .” (Emphasis in original.)

1. The Schroeders assert as error the trial court’s determination that the Schroeders’ introduction of a business pursuit into their residence voided the insurance policy as a matter of law. We disagree.

As noted above, it is undisputed that the Schroeders were operating video games and pool tables for profit in the insured residence premises. The special provisions section of the policy quoted above constitutes a representation in clear and unambiguous terms that no business pursuits are conducted on the residence premises. “While an ambiguous insurance contract will be liberally construed in favor of the insured, one which, when construed reasonably and in its entirety, unambiguously and lawfully limits the insurer’s liability, cannot be expanded beyond what is fairly within its plain terms. . . . Where the language fixing the extent of the liability of the insurer is unambiguous and but one reasonable construction is possible, the court must expound the contract as made.” (Citations and punctuation omitted.) Ga. Farm Bureau Mut. Ins. Co. v. Fire &c. Ins. Co., 180 Ga. App. 777, 778 (350 SE2d 325) (1986).

It is clear from the record that the Schroeders’ pursuit of their video game and pool table business continued up through the date of the loss, although the games were not in operation on the day of the fire. Therefore, appellants’ reliance on Ga. Farm &c. Ins. Co. v. Brown, 260 Ga. 160 (390 SE2d 586) (1990), is misplaced. The insurance company in Brown asserted that a change in ownership of property barred coverage. However, the property had been reconveyed to the original insured at the time of the loss. As a result, the court held that the various conveyances did not contribute to the loss, so coverage was not terminated. That case did not hold, as appellants would have it, that if the change of condition did not contribute to the loss it should not bar coverage. Nor is such an interpretation otherwise the law in Georgia. There is no requirement that a causal connection between the increased risk, in this case the operation of a commercial enterprise, and the loss itself be shown. See Grigsby v. Houston Fire &c. Ins. Co., 113 Ga. App. 572, 574 (3) (148 SE2d 925) (1966); American Alliance Ins. Co. v. Pyle, 62 Ga. App. 156 (8 SE2d 154) (1940).

The quid pro quo set forth at the outset of the policy, “(w)e will provide the insurance described in this policy in return for the premium and compliance with all applicable provisions of this policy,” provided sufficiently clear notice to the insureds that coverage would not lie in the event the insureds failed to comply with its provisions, such as the specific condition in this policy that “(n)o business pursuits are conducted on the residence premises.”

“An insurance company may fix the terms of its policies as it wishes, provided they are not contrary to law, and it may insure against certain risks and exclude others.” (Citations and punctuation omitted.) McMillon v. Empire Fire &c. Ins. Co., 209 Ga. App. 378, 380 (433 SE2d 429) (1993). The Schroeders’ operation of the video game and pool table business in their residence voided the policy in this case as a matter of law, and the trial court did not err in granting Farm Bureau’s motion for summary judgment on that basis.

2. In light of the foregoing, we hold that the trial court’s ruling that the Schroeders’ cross-motion for summary judgment was moot was correct.

Judgment affirmed.

Pope, C. J., Birdsong, P. J., Cooper, Andrews and Smith, JJ., concur. Beasley, P. J., concurs specially. McMurray, P. J., and Blackburn, J., concur in part and dissent in part.

Beasley, Presiding Judge,

concurring specially.

Five “Special Provisions” are stated on the last page of the policy contract following but not part of the sections with the heading “Conditions” in large type. The special provisions are in the nature of representations made by the insured: “(a) The residence premises is not seasonal; (b) no business pursuits are conducted on the residence premises; (c) the residence premises is the only premises where the Named Insured or spouse maintains a residence other than business or farm properties; (d) the insured has no full time residence employee (s); (e) the insured has no outboard motor (s) or watercraft otherwise excluded under this policy for which coverage is desired. Exception, if any, to (a), (b), (c), (d), or (e) is entered on the Declarations Page. Absence of any entry means ‘no exceptions.’ ”

No exceptions are stated on the Declarations Page. “Business” is defined in the policy as including “trade,” which the activity of providing, for a fee, video games and pool tables constituted. Exclusions related to “business” specifically appear in the definitions.

Insureds’ representation “(b)” was not true for the period mid-October 1990 until the date of the fire about eight weeks later (December 25, 1990), although it was true when the policy was purchased. Insurer agreed in the first sentence of the homeowners’ policy, 16 pages before the Special Provisions, to furnish insurance “for the premium and compliance with all application provisions of the policy.” There is no express warning that if one of the circumstances changes, coverage is lost. Nevertheless, it is implied. We cannot ignore that or require that such a warning be express. “[T]his court will not rewrite or change the terms to extend coverage.” Smith v. Southeast ern Fid. Ins. Co., 181 Ga. App. 316, 319 (352 SE2d 407) (1986).

The insureds did not comply with Special Provision (b). They introduced an activity which increased the risk and which the insurer had not agreed to cover. Thus, I agree that the premises are not covered, including the business property damaged or destroyed. This is true despite the property coverage section extending to “$2500 on property, on the residence premises, used at any time or in any manner for any business purpose.” This provision is not inconsistent with the special condition which avoids coverage altogether if business pursuits are conducted on the residence premises.

Blackburn, Judge,

concurring in part and dissenting in part.

I agree with the majority that the trial court was correct in granting summary judgment to Farm Bureau on the issue of its liability for bad faith penalties. As Farm Bureau’s defenses raised reasonable questions of law, an award for damages and attorney fees for bad faith was not authorized. Colonial Life &c. Ins. Co. v. McClain, 243 Ga. 263 (253 SE2d 745) (1979).

With regard to the coverage provided under the insurance contract, I dissent from the majority and find that the insurance contract was not voided by the Schroeders’ actions.

Section I, Coverage “A” of the subject policy provides in part: “We cover:_ 9) $2500 on property on the residence premises used at any time or in any manner for any business purpose.” (Emphasis supplied.) The existence of a condition contemplated by the policy cannot void coverage under the policy. The majority opinion renders this provision of the policy absolutely meaningless and such result violates the basic law of interpretation of contracts.

“The general rule is that if an insurance company intends for the violation of a policy provision to void the policy ipso facto it must so provide in the contract.” Cotton States Mut. Ins. Co. v. Boatright, 100 Ga. App. 493, 495 (111 SE2d 645) (1959). See also Blackburn v. State Farm Fire &c. Co., 174 Ga. App. 157 (329 SE2d 284) (1985) and American Intl. Life Ins. Co. v. Hartsfield, 147 Ga. App. 213 (248 SE2d 518) (1978). In the case sub judice, the insurance policy did not provide specifically that the policy would be voided ipso facto if the Schroeders conducted a business pursuit in their residence.

In order for the Schroeders’ conduct to create a forfeiture, two clauses of the insurance contract must be construed together. The first clause, found on the first page of the policy, provided that the insurance described in the policy would be provided for the premium charged and compliance with all applicable provisions of the policy. The majority combines that statement with a special provision, found on the back jacket of the policy, which contained the following language: “(a) The residence premises is not seasonal; (b) no business pursuits are conducted on the residence premises; (c) the residence premises is the only premises where the Named Insured or spouse maintains a residence other than business or farm properties; (d) the insured has no full time residence employee (s); (e) the insured has no outboard motor(s) or watercraft otherwise excluded under this policy for which coverage is desired. Exception, if any, to (a), (b), (c), (d) or (e) is entered on the Declaration Page. Absence of an entry means ‘no exceptions.’ ”

Decided November 12, 1993

Reconsideration denied December 8, 1993

James B. Duncan III, John J. Czura, for appellants.

Dunaway & Wallace, Roger W. Dunaway, Jr., for appellee.

“[T]he familiar rule that forfeitures are not favored, and that a contract will not be construed to work a forfeiture unless it is manifest that it was the intention of the parties that it should have that effect” requires that a specific provision voiding the policy is necessary. Southern Fire Ins. Co. v. Knight, 111 Ga. 622, 624 (36 SE 821) (1900). See also Boatright, supra. It is clear that rather than voiding the policy ipso facto, business pursuits on the premises are specifically contemplated by the policy. The policy excludes coverage where property damage arises from business pursuits, which is not the case here, and limits liability for damage to business property even where the loss is not caused by the business pursuits. The insurance policy at issue specifically provides that there is no coverage for property damage which arises out of business pursuits. Furthermore, the policy contains many conditions which expressly limit or exclude coverage for certain conduct and in certain instances. Knight, supra. Therefore, the insured is entitled to an equally specific provision stating that the policy will be voided in the event business pursuits are conducted on the premises, even though the loss does not arise out of the business pursuit.

I am authorized to state that Presiding Judge McMurray joins in this dissent.