author: Ruffin, Judge. Beasley, Presiding Judge,

text:
    A98A2154.
    O’NEAL v. OXENDINE.
    (514 SE2d 908)
   Ruffin, Judge.

John O’Neal appeals from the trial court’s denial of his motions to intervene and to take discovery in a rehabilitation action filed by John Oxendine, Commissioner of Insurance for the State of Georgia (the Commissioner), against Master Health Plan, Inc. (MHP), a Georgia health maintenance organization. He also contends that the trial court erred in refusing to allow him to present evidence at a hearing in the rehabilitation action. For reasons discussed below, we affirm.

On June 11, 1997, the Commissioner filed a petition for rehabilitation against MHP pursuant to OCGA § 33-37-11, alleging, among other things, that MHP was undercapitalized, that it had suffered net operating losses in every quarter since September 30, 1994, that its controlling shareholder had been convicted of several offenses including conspiracy to defraud the United States, and that it had filed a bankruptcy petition in U. S. bankruptcy court. On June 19, 1997, the trial court entered a consent order appointing the Commissioner as rehabilitator of MHP, with the power to manage MHP’s business and to take any and all actions necessary or appropriate to reform and revitalize MHP. See OCGA § 33-37-13 (c).

The business continued to suffer operating losses after the appointment of the rehabilitator, and the Commissioner was unsuccessful in his attempts to locate a purchaser for the business. On January 14, 1998, the Commissioner entered into a letter agreement with HMO Georgia, Inc. (HMOG), a Georgia health maintenance organization, providing that, upon approval by the trial court, the parties would enter into an assumption reinsurance agreement whereby HMOG would assume MHP’s policy obligations with respect to its 6,400 remaining policyholders.

On January 20, 1998, the Commissioner filed a motion seeking the trial court’s approval of the reinsurance agreement pursuant to OCGA § 33-37-13 (e). The trial court entered an order requiring any interested parties to appear at a hearing on February 9,1998 to show cause why the motion should not be granted. It also ordered that no discovery would be allowed without approval of the trial court, after notice and a hearing and upon a showing of good cause.

O’Neal, a former executive director of MHP, had obtained a $476,592.30 judgment against MHP on May 12,1997 for violations of the federal False Claims Act, 31 USC § 3730. On January 23, 1998, O’Neal filed a motion to intervene in the rehabilitation action. On January 29, O’Neal filed a motion seeking authority to take depositions of MHP and HMOG and to obtain discovery of certain financial records and other documents of MHP and HMOG. O’Neal contended that such discovery was necessary to enable him to determine whether approval of the reinsurance agreement was fair and in his best interest.

The trial court held a hearing on the motion for approval of the reinsurance agreement on February 9, 1998. At the hearing, the Commissioner’s attorney informed the court that MHP continued to suffer substantial losses, approximately $200,000 to $300,000 per month, after the appointment of the rehabilitator. At the time of the hearing, the company had approximately 6,400 policyholders, or subscribers, left. The Commissioner had attempted to find a purchaser for the company, but all negotiations for a sale were unsuccessful. The Commissioner then began looking for a company to assume MHP’s obligations with respect to its existing subscribers, and HMOG was the only company to make an offer to do so.

The proposed reinsurance agreement with HMOG consisted of three components. First, HMOG would assume MHP’s outstanding liabilities under its insurance policies as of December 31, 1997, and MHP would transfer approximately $1.2 million in cash reserves to enable HMOG to satisfy such liabilities. Second, HMOG would co-insure on a 100 percent basis MHP’s obligations under its existing policies from January 1, 1998 until March 1, 1998, in exchange for a transfer of policy premiums from MHP to HMOG. According to the Commissioner, this would benefit MHP because the premiums generated from its policies were insufficient to cover the payments required under such policies. Finally, on March 1, 1998, all of MHP’s existing policies would be converted into HMOG policies, and MHP would be relieved of any further liability on such policies. The reinsurance agreement contained an escape clause, allowing HMOG to terminate the agreement if closing did not occur by March 1, 1998.

According to the Commissioner, entering into the reinsurance agreement with HMOG would “stop the bleeding of the company” and avert an immediate liquidation. Unless otherwise approved by the court, liquidation would require MHP to remain liable under its policies for at least 30 days following the liquidation order. See OCGA § 33-37-18. Thus, if the reinsurance agreement were not approved and MHP were forced to liquidate, HMOG would not assume MHP’s losses for January and February 1998, and MHP would be liable for further losses at least through March. If the agreement were approved, however, MHP could avoid these continuing losses. In addition, MHP could continue for a time to operate its profitable “third party administrator” business, providing administrative services to self-insured plans, although the Commissioner believed that liquidation ultimately was likely.

O’Neal appeared at the hearing and requested that the court consider his motions to intervene and to conduct discovery. O’Neal’s attorney told the court that he did not have enough information to determine whether the reinsurance agreement was in the interest of creditors, although he believed that the Commissioner had undervalued the company and questioned the Commissioner’s management of the business. However, the attorney stated that

I have to concede to you, Your Honor, it’s a dangerous thing for us to come here because it could be that what the rehabilitator says is all true. . . . Our position is simply that we would like the opportunity to learn the facts under oath so that we can intelligently make a decision about this.

The trial court denied O’Neal’s motion to conduct discovery, stating that it was hesitant to do something that might interfere with the consummation of the reinsurance agreement. The court also denied the motion to intervene, although it stated that

I heard him, so I guess he was intervening. At any rate, I don’t think it makes any difference. I can’t see any difference whether I denied your intervention or allow you to intervene and denied your relief that you sought. So to make it clean, I will just deny your intervention.

The trial court approved the reinsurance agreement, finding that it was fair and equitable to all parties in interest and “calculated to maximize the value accorded to creditors ... as well as offer uninterrupted coverage to [MHP’s] insured members.”

1. O’Neal contends that the trial court erred in denying his motion to allow discovery with respect to the execution of the reinsurance agreement. This contention is without merit.

The Insurers Rehabilitation and Liquidation Act provides that “[t]he rehabilitator may take such action as he deems necessary or appropriate to reform and revitalize the insurer,” and vests the rehabilitator with “all the powers of the directors, officers, and managers” of the company. OCGA § 33-37-13 (c). OCGA § 33-37-13 (e) provides that

[i]f the rehabilitator determines that reorganization, consolidation, conversion, reinsurance, merger, or other transformation of the insurer is appropriate, he shall prepare a plan to effect such changes. Upon application of the rehabilitator for approval of the plan, and after such notice and hearings as the court may prescribe, the court may either approve or disapprove the plan proposed, or may modify it and approve it as modified. Any plan approved under this Code section shall be, in the judgment of the court, fair and equitable to all parties concerned.

(Emphasis supplied.) The Act does not set forth any specific guidelines for giving notice of proposed action or give a creditor the right to take discovery before approval of such action, but leaves such matters to the discretion of the trial court.

In this case, the show cause order required that notice of the hearing on the approval motion be mailed to creditors on January 20, 1998, 20 days before the hearing. In his motion to intervene, O’Neal’s attorney stated that O’Neal received the notice on January 20. The court specifically found that the notice required by the order “constitutes reasonable, adequate, fair and satisfactory notice of the issues to be heard by the Court at the hearing.”

O’Neal did not contend below that the 20-day notice period was unreasonable in and of itself, but argued that he should be allowed to conduct discovery to determine whether the reinsurance agreement was in his best interests. However, O’Neal did not file his motion for discovery until January 29, 1998, nine days after receiving notice and eleven days before the hearing. Moreover, he did not request that an expedited hearing be held on his motion, although the show cause order provided that discovery would be allowed only “after notice and a hearing and a showing of good cause.” Thus, the court was not able to consider O’Neal’s motion until the day of the approval hearing, at which point it was faced with the alternatives of either (1) continuing the hearing and thus delaying approval of the reinsurance agreement, or (2) denying the motion for discovery and proceeding with the hearing.

In balancing these alternatives, the trial court was faced with several considerations. First, and perhaps most important, HMOG was entitled to terminate the reinsurance agreement if it was not consummated by March 1, 1998, and any delay in approval of the agreement could have jeopardized the ability of the Commissioner to close the transaction in a timely manner. Moreover, requiring HMOG to submit to depositions and produce all documents relating to the proposed agreement, as requested by O’Neal, could have affected HMOG’s willingness to consummate the transaction. In denying O’Neal’s motion, the trial court indicated that it was “hesitant” to do anything to jeopardize the transaction.

In addition, O’Neal failed to provide the trial court with any concrete basis to expect that allowing discovery was likely to lead to evidence that would affect the trial court’s decision as to whether to approve the reinsurance agreement. Indeed, O’Neal’s attorney admitted that the reinsurance agreement proposal might be in the best interest of the parties, and that he simply wanted to conduct discovery to be able to make an informed decision about whether to support the agreement. Combined with the fact that O’Neal did not seek an expedited hearing so that the discovery motion could be considered well in advance of the approval hearing, this clearly authorized the trial court to conclude that the possible benefits of allowing discovery were outweighed by the danger of delay, particularly in light of the Commissioner’s evidence regarding the deteriorating financial condition of the company and the adverse consequences of rejecting the reinsurance agreement. Under all of these circumstances, therefore, the trial court did not abuse its discretion in denying the motion for discovery.

2. O’Neal contends that the trial court erred in approving the transfer without giving him the opportunity to present evidence in opposition to it. However, O’Neal did not attempt to present evidence at the hearing, other than through the representations of his attorney Although O’Neal’s attorney informed the court that O’Neal was present and prepared to testify that the reinsurance agreement “would not make sense,” he never attempted to call O’Neal to the witness stand. Although the attorney stated that “we have depositions we’re prepared to introduce into evidence” relating to the valuation of HMOs, he did not in fact attempt to introduce such depositions into evidence. The trial court never ruled that O’Neal was prohibited from introducing testimonial or documentary evidence at the hearing. Because O’Neal never attempted to introduce such evidence, but instead relied upon his attorney’s representations to the court, he cannot complain on appeal that the trial court prevented him from doing so. See Walker v. State, 220 Ga. App. 80, 82-83 (1) (467 SE2d 388) (1996).

3. O’Neal contends the trial court erred in denying his motion to intervene. In his appellate brief, O’Neal clarifies and limits the scope of this enumeration by arguing simply that he had a right to intervene “to contest the propriety of [the reinsurance agreement].” See Mauldin v. Weinstock, 201 Ga. App. 514, 517 (3) (411 SE2d 370) (1991). In his motion below, O’Neal indicated that he sought intervention so that he could take discovery with respect to the reinsurance agreement. As discussed above, however, the trial court did not err in precluding O’Neal from conducting discovery prior to approving the reinsurance agreement. Although the trial court technically “denied” the motion to intervene, it allowed O’Neal to participate fully in the approval hearing and to raise objections to the reinsurance agreement. Although O’Neal elected to present no testimony in opposition to the approval motion, he was not prevented from doing so by the trial court. Accordingly, he has not shown how he has been harmed by the denial of his motion to intervene. See Joiner v. Lane, 235 Ga. App. 121, 125 (3) (a) (508 SE2d 203) (1998) (harm as well as error must be shown to warrant reversal).

Judgment affirmed.

McMurray, P. J., Pope, P. J., Andrews and Eldridge, JJ, concur. Blackburn, J., concurs in judgment only. Beasley, P. J., dissents.

Beasley, Presiding Judge,

dissenting.

1. First, I do concur in denial of the Commissioner’s motion to dismiss the appeal as moot.

The primary criterion in making this determination is whether the appellant would derive any benefit from the appeal. Howard v. Smith, 226 Ga. 850, 851 (178 SE2d 159) (1970); see Essuon v. Raynor, 231 Ga. 297, 298 (2) (201 SE2d 416) (1973) (appeal only moot as to injunctive relief, not as to damages).

(Punctuation omitted.) Grindle v. Chastain, 229 Ga. App. 386, 388 (1) (493 SE2d 714) (1997).

O’Neal is a substantial judgment creditor of MHP. It is patent that the possibility of recovery of his judgment is diminished by the transaction which he seeks to challenge, because the transfer of MHP’s main asset, its “block of business,” will severely jeopardize payment in full of O’Neal’s judgment. If MHP’s assets have already been transferred following the entry of the appealed order, as the Commissioner states, that does not moot the issue of whether O’Neal was deprived of due process of law in the proceedings which culminated in the court’s approval of the transfer by way of the coinsurance and assumption reinsurance agreement.

The trial court’s judgment was entered on February 12, 1998. According to the affidavit submitted with Commissioner Oxendine’s motion, the transaction closed the next day and the transfer of assets and liabilities called for in the agreement was “promptly” concluded so that effective March 1, MHP’s subscribers became subscribers under HMOG’s plan. O’Neal’s notice of appeal was timely. Knowing that O’Neal objected to the transfer and to the procedure employed, the Commissioner acted at his peril in effectuating the judgment within the appeal period. He cannot deprive the insurer’s creditor of his right to appeal by manufacturing mootness. Completing the transaction does not insulate it from the consequences of reversal of the trial court’s approval of it, should that be called for by the application of law.

2. The contextual history of the matter under review demonstrates that O’Neal was shortchanged and that the trial court acted outside the bounds of the law in refusing to permit him to ascertain the facts and adequately present his challenge to the proposed approval. The following outlines the sequence of events.

September 30, 1994 — MHP reported net operating losses for the quarter, and for every quarter thereafter.

March 31, 1997 — MHP reported net worth of $2,776,803 comprised of capital stock of $1,500,000 and surplus of $1,276,803. The statutory minimum surplus is either $1,500,000 or $3,000,000 depending on the type of company. OCGA §§ 33-3-7; 33-14-61.

May 12, 1997 — O’Neal was granted judgment in federal court on a jury verdict against MHP in the amount of $476,592.30 plus attorney fees and expenses, “for damages sustained as a result of the retaliation in violation of the False Claims Act.”

May 22, 1997 — Insurance Commissioner put MHP into administrative supervision due to the operating losses dated back to September 1994.

June 11, 1997 — Insurance Commissioner filed a petition for rehabilitation of MHP pursuant to OCGA § 33-37-11.

June 18, 1997 — MHP’s federal bankruptcy proceeding was dismissed.

June 19, 1997 — The court entered an order of ‘Voluntary rehabilitation” consented to by the Insurance Commissioner and MHP, which states that “rehabilitation is in the best interest of MHP, its members, the public, and the Commissioner” and appointing Insurance Commissioner Oxendine as the Rehabilitator pursuant to OCGA §§ 33-37-12 and 33-37-13. No mention is made of creditors, although one of the purposes of the Insurers Rehabilitation and Liquidation Act is “the protection of the interests of . . . creditors.” OCGA § 33-37-1 (d). O’Neal had no notice of the proceeding which resulted in this order.

January 14, 1998 — The deputy rehabilitator and HMOG signed a three-page letter assumption reinsurance agreement for the latter’s acquisition of the insured member business. No mention is made of creditors.

January 20, 1998 — The Commissioner/Rehabilitator moved the court to approve the transfer of policy obligations and certain assets to HMOG, pursuant to OCGA § 33-37-13 (e). The three-page “letter of intent” was attached. It set out the principal terms of the purported rehabilitation plan. One term required the parties “to keep confidential (except as may be required to obtain all necessary approvals for the transaction) all information . . . disclosed by the parties to each other with respect to the Transaction.” The statute requires the court to assure that the plan “shall be, in [its] judgment, fair and equitable to all parties concerned.” On the same day, the Commissioner/ Rehabilitator sent by mail a notice to creditors and other interested parties, briefly describing the proposed agreement to transfer memberships and reserves and stating that on February 9 the court would hear the motion to approve, that the court “may” hear evidence, and that anyone failing to appear and object “shall be forever barred from raising such objections.” No documents were included with the notice.

January 21, 1998 — O’Neal received the notice and, upon inquiry, learned of the motion.

January 22, 1998 — The court entered an order for a February 9 show cause hearing and prohibited discovery “except upon prior order of [the] court, entered after notice and a hearing and upon a showing of good cause.” The notice included the provision that assets of MHP would be transferred to HMOG “tree and clear of all claims, liens and liabilities (other than liabilities expressly assumed in the agreement).” A copy of the plan was not included. Since O’Neal was not a party, the order was not served on him.

January 23, 1998 — O’Neal filed a motion to intervene and supporting brief, pursuant to OCGA § 9-11-24 (a) (2), in order to obtain discovery and knowledgeably object to the transfer of assets from the entity against which he had a sizeable judgment. He asserted that he learned at the supersedeas bond hearing in federal court (regarding his judgment) that “of the $3,000,000 in reserves which had existed in [MHP] before its consent to [the] rehabilitation proceedings, all but $1,200,000 had been dissipated,” much of it since rehabilitation commenced. He also asserted that he had repeatedly tried, unsuccessfully, to obtain information concerning MHP’s financial status and the progress of rehabilitation from the rehabilitator. He sought to intervene in order to pursue discovery to determine, among other things, what happened to the reserves he alleged had been lost. Since this was not a liquidation proceeding pursuant to OCGA § 33-37-15 et seq., O’Neal recognized that he had no right to file a claim.

January 29,1998 — O’Neal moved for permission to conduct discovery of financial records and documents he could not get any other way because the rehabilitator and the potential transferee had control of them, and to depose persons familiar with them. He set out exactly what he sought, which were only 1997 and 1998 records. He asked for this to be done before the February 9 hearing, as the court ordered, and that if it could not be accomplished in that time, that the February 9 hearing be postponed.

February 9, 1998 — Show cause hearing. The court refused to allow intervention or discovery and took no evidence from anyone except for a copy of the final transfer agreement presented by the Commissioner/Rehabilitator and stipulated to by O’Neal. That document is not in the record on appeal. Defendant MHP was not present at the hearing, nor was the proposed transferee, only the Commissioner/Rehabilitator and creditor O’Neal and another objector, who had been president and CEO of MHP. The court orally approved the agreement.

February 12, 1998 — The court entered the approval order, prepared by the Commissioner/Rehabilitator’s counsel and setting out findings of fact which included the following:

The proposed Reinsurance Agreement is reasonable and is calculated to maximize the value accorded to creditors from [MHP’s] estate, as well as offer uninterrupted coverage to [MHP’s] insured members. . . .
All interested parties were given a full and fair opportunity to present objections, evidence and arguments at the hearing. . . .
The Reinsurance Agreement is fair and equitable to all creditors and other parties in interest. . . .

February 13, 1998 — The court entered an order denying O’Neal’s motions to intervene and for discovery.

Thereafter the transfer occurred, as described above, and this appeal was taken.

Critical to O’Neal’s position is what transpired at the hearing on February 9. The Commissioner’s attorney described the agreement he sought to have approved, focusing on the protection which the 6,400 subscriber-members would have for their insurance if this “block of business,” obligations with respect to them, and assets of the company to service them, were transferred so the purchaser could take over servicing of the subscribers for the months of January and February, co-insure them in exchange for premiums, and convert the policies to policies of the purchaser on March 1. The attorney, speaking for the Commissioner, hoped that MHP’s remaining business, that of third-party administrator, might after some time of continued operation pay creditors. He expressed the opinion that if the transfer were not approved, the Commissioner would have to seek permission to liquidate MHP.

The court asked if there were any objectors, and O’Neal’s attorney stepped forward to introduce O’Neal’s status and present his objection and the reasons therefor. He reminded the court that he had filed two motions (to intervene and for discovery). He related that O’Neal had the large judgment and that based on O’Neal’s knowledge of the company, his experience as former executive director of MHP and what he learned during the course of the federal litigation, he believed the company was then or had been (prior to appointment of rehabilitator) worth much more than the stated value of the assets.

He explained that the Commissioner had refused information to O’Neal about the proposed agreement or the financial condition of the company even though he was the principal creditor. He stated, and explained why, O’Neal believed “the evidence will show that the company should have a value today of at least six or seven million dollars based on the membership that it still retains of 6400 members.” He further indicated that O’Neal believed the company was mismanaged after appointment of the rehabilitator and stated that O’Neal was present “to testify that this transaction, based on what he knows about the company, would not make sense.” He also offered to present as evidence depositions from his federal case which he contended supported his representations. He pleaded for “a short delay” and opportunity for discovery “on whatever expedited basis the court would be willing to consider” to back him up or at least assure that his interest as creditor was not being unfairly jeopardized.

The Commissioner objected, challenged O’Neal’s representations, and opined that O’Neal could get his judgment out of the federal case supersedeas bond (which O’Neal disputed). The Commissioner urged approval of the agreement without further delay.

The other objector who was present, also a creditor and former officer, presented through counsel’s representations the basis for his objection, echoing the same concerns as O’Neal. In trying to respond to a question of the court, he stated: ‘Your honor, if we could hear evidence in this proceeding, we might answer some of our questions. We came here today to hear the evidence. All we’ve heard is a representation of counsel.” The court declined to accept his documentary evidence as being unnecessary to the issue it had to decide.

Turning to O’Neal, the court expressed that the Commissioner had no obligation to him any greater than any other creditor, that he had no right to intervene, and that the reason for the proceeding was not because of creditors but for the protection of the company’s insureds.

The court did not wish to delay the matter and did not hear the evidence offered but rather relied on the representations of the Commissioner’s attorney for its decision to approve the agreement, without even actually reviewing it, as being in the best interest of the policyholders. The court indicated that it put trust in the Commissioner because he is a public officer. With that, the court denied the motion for discovery and the motion to intervene, suggesting to the objectors: ‘You all can use whatever means you have, public records, so forth, to get whatever information you need to get. I don’t think the court should hold up this matter to do it.” The court ended the hearing by directing the Commissioner’s counsel to draw an order of approval.

The purpose of the Insurers Rehabilitation and Liquidation Act is “the protection of the interests of. . . creditors” among others and not only insureds. OCGA § 33-37-1 (d). This is to be done by the Commissioner through such actions as “(1) Early detection of any potentially dangerous condition in an insurer and prompt application of appropriate corrective measures; ... (4) Equitable apportionment of any unavoidable loss. . . .” Id. The duty imposed on the Commissioner of Insurance by the legislature because of the nature of the industry authorizes the Commissioner to file formal delinquency proceedings, such as a petition for rehabilitation, when “the interests of policyholders, creditors, or the public will be endangered by delay. . . .” (Emphasis supplied.) OCGA §§ 33-37-9 (2); 33-37-3 (4).

“Creditor” is specifically defined in the Act (OCGA § 33-37-3 (3)), and there is no doubt that O’Neal comes within that category. The Commissioner may file a petition for rehabilitation on a number of grounds, including: “(1) The insurer is in such condition that the further transaction of business would be hazardous financially to its policyholders, creditors, or the public.” OCGA § 33-37-11 (1). One of the grounds authorized, but not asserted in this case, is that “(10) The insurer has failed to pay within 60 days after due date . . . any judgment entered in any state. . . .” Although O’Neal’s judgment was on appeal, the inclusion of this provision in the Act as well as other prominent references to creditors in the statutory rehabilitation procedure indicates the concern of the legislature for the protection of their interests.

The rehabilitator is to “take possession of the assets of the insurer and to administer them under the general supervision of the court.” OCGA § 33-37-12 (a). “Any order issued under this Code section shall require accountings to the court by the rehabilitator . . . no less frequently than semiannually.” OCGA § 33-37-12 (b).

The facilitator has broad powers “to reform and revitalize the insurer,” including authority to appoint, with the approval of the court, “an advisory committee of policyholders, claimants, or other creditors.” OCGA § 33-37-13 (a) and (c). This again demonstrates the legislature’s intention that creditors, and not only policyholders, be protected and enlightened. Not only was there no committee, but O’Neal could not even gain information.

The court’s duties are also provided for in this section:

(e) If the rehabilitator determines that reorganization, consolidation, conversion, reinsurance, merger, or other transformation of the insurer is appropriate, he shall prepare a plan to effect such changes. Upon application of the rehabilitator for approval of the plan, and after such notice and hearings as the court may prescribe, the court may either approve or disapprove the plan proposed, or may modify it and approve it as modified. Any plan approved under this Code section shall be, in the judgment of the court, fair and equitable to all parties concerned.

It is evident in this case that the rehabilitator had little concern for the interests of the primary creditor of the company, in fact held him at a distance, and uninformed, and focused on the policyholders to his exclusion. The notice, the plan as described by the Commissioner’s counsel, the objection to discovery, and the hasty process for approval which was set in motion by the Commissioner all demonstrate this. For that reason the creditor had to present his objection to the court and to seek to intervene so he could determine the facts underlying the proposed transfer and ascertain whether the administration of the company and the agreement to transfer was “fair and equitable” to him. In these circumstances, OCGA § 9-11-24 (a) (2) entitled him to intervene, for he was a statutorily recognized interested party whose interest was not “adequately represented by existing parties,” i.e., the Commissioner/Rehabilitator or the troubled insurer. OCGA § 9-11-81.

He was also entitled, as an intervenor, to the limited discovery he sought on an expedited basis, so that he could adequately present evidence to support what he reasonably expected to be true, in order that the court would be fully informed of the facts when it considered whether the plan was “in the judgment of the court, fair and equitable to all parties concerned.” OCGA §§ 9-11-26 (b) (1); 33-37-13 (e). See also Ray v. Dept. of Human Resources, 155 Ga. App. 81, 84 (270 SE2d 303) (1980) (the concept of due process in all judicial proceedings which is “firmly supported” by the courts of this state embraces discovery even when special statutory procedures, such as the juvenile court proceedings in Ray, do not provide for it).

Decided March 19,1999

Warlick, Tritt & Stebbins, Charles C. Stebbins III, Fletcher, Harley & Fletcher, Clinton T. Harley, Richard E. Miley, for appellant.

Thurbert E. Baker, Attorney General, Robert S. Bomar, Deputy Attorney General, Harold D. Melton, Senior Assistant Attorney General, William W. Calhoun, Assistant Attorney General, for appellee.

O’Neal was not only denied information needed to protect his interest in collecting his judgment, but he was also denied opportunity to present evidence in court to the extent he had it. This is despite the fact that the notice and the court order requiring it invited “all interested persons” to “appear and show cause” why the plan should not be approved. Instead, the court relied on the judgment of the Commissioner, related by his attorney and without any evidence except for the plan itself, that the plan met the statutory goal.

The constitution of this state guarantees to all persons due process of law and unfettered access to the courts of this state. . . . These fundamental constitutional rights require that every party to a lawsuit ... be afforded the opportunity to be heard and to present his claim or defense, i.e., to have his day in court. [Cits.]

Hart v. Owens-Illinois, Inc., 165 Ga. App. 681, 682 (302 SE2d 701) (1983). “The fundamental idea of due process is notice and an opportunity to be heard. [Cit.]” (Punctuation omitted.) Collins v. Morris, 263 Ga. 734, 737 (438 SE2d 896) (1994).

O’Neal was denied due process of law as the procedure contemplated by the statute for rehabilitation of the insurance company was not carried out. The fairness of the plan to the large judgment creditor was found as fact by the trial court even though it was a vigorously contested fact and the court took no evidence to support the finding.

       Although no testimonial evidence was offered at the hearing, “[a]ttomeys are officers of the court and their statements in their place, if not objected to, serve the same function as evidence.” (Punctuation omitted.) Cafagno v. Hagan, 213 Ga. App. 631 (445 SE2d 380) (1994).

       The Commissioner’s motion to dismiss this appeal on the grounds of mootness is denied. Although the Commissioner contends that the reinsurance agreement was consummated after the trial court’s ruling, it does not appear that O’Neal would fail to derive any benefit from a favorable ruling in this appeal. See Grindle v. Chastain, 229 Ga. App. 386, 388 (1) (493 SE2d 714) (1997).

       For comparison purposes, we note that Rule 2002 (a) of the Federal Rules of Bankruptcy Procedure requires 20 days notice of, among other things, “a proposed use, sale, or lease of property of the estate other than in the ordinary course of business.”

       The dissent states that another creditor attempted to present documentary evidence, but that “[t]he court declined to accept his documentary evidence as being unnecessary to the issue it had to decide.” The documentary evidence in question consisted of a contract providing that the creditor, a former officer of the company, would receive a specified amount upon the sale of the company. The colloquy between the trial court and such creditor’s counsel was as follows:
      Mr. Knox: Would Your Honor like for me to leave the court this contract that I mentioned on behalf of my client? The Court: I don’t think it’s going to help us any because I don’t have any problem with believing that he is a creditor. I don’t have any problem with believing what you say about his association or his connection with the company. Mr. Knox: I just wanted to proffer some evidence in that regard. The Court: I have no problem with that. I don’t need to look into it. It’s just a question of what do I do about it. Mr. Knox: All we want is some time, Your Honor, to find out. The Court: All right. Thank you.
      Contrary to the dissent’s statement, the trial court did not prevent the creditor from offering any evidence; rather, it appears that the creditor simply elected not to proffer such evidence after the trial court indicated that it accepted his contention that he was a creditor of the company.

       According to O’Neal’s brief, the trial court subsequently determined attorney fees, bringing the judgment to over $673,000. Appellee does not refute this as fact.


source: Caselaw Access Project

author: Eldridge, Judge. Pope, Presiding Judge, Beasley, Presiding Judge,

license: Public Domain

text:
    A98A2333.
    THE STATE v. WEST.
    (514 SE2d 257)
   Eldridge, Judge.

Nineteen-year-old Jamie West lived rent-free with his mother and stepfather in his mother and stepfather’s house. Based on a tip from a concerned citizen that West had marijuana plants in his bedroom, the police went to the house without a warrant to ask for consent to search the room. West was not at the house when the police arrived, but his mother and stepfather were there. When informed of the purpose for the. officers’ visit, West’s mother stated “[s]he didn’t want nothing in her home and if we found anything, she wanted it out.” West’s mother signed a consent-to-search form: “I understood it to be that it would be okay for them to search my house. ... I didn’t have any intention of him [officer] not searching.” West’s bedroom door was locked, so West’s stepfather got the key to unlock the door. The police found marijuana plants inside the bedroom.

West was charged with possessing and manufacturing marijuana. He filed a motion to suppress the evidence of marijuana found in his room. The trial court granted the motion, finding that West’s mother did not have authority to consent to a search of a locked bedroom:

I am going to grant the motion [.] ... In that Mr. West by locking his door had expectation of privacy and that the officer should have, after getting the consent to search the house, either waited until Mr. West appeared or gone and got a search warrant in order to search a room which had been locked by the person residing in that room.

The State appeals from the ruling. Held:

Permission to search may be obtained from one who “possess [es] [(a)] common authority over or [(b)] other sufficient relationship to the premises . . . sought to be inspected.” United States v. Matlock, 415 U. S. 164, 171-172 (94 SC 988, 39 LE2d 242) (1974) (“Matlock”). The Matlock analysis, then, is two-pronged, i.e., a “common authority” prong, or a “sufficient relationship to the premises” prong.

Matlock, itself, involved a co-habitating couple in a bedroom rented from a third party. The Matlock Court examined the “common authority” of the one whose name was not on the lease to consent to a search of the rented bedroom. Such “common authority” analysis necessarily involved aspects of each individual’s expectation of privacy in the bedroom. Thus, factors such as “access” to and “mutual use” of the bedroom were relevant.

However, the application of Matlock’s prong-one “common authority” analysis to the facts of this case would be inappropriate. Instead, in this case, we examine a resident homeowner’s authority to permit a search of her own home, including an adult child’s bedroom which the homeowner permits the child to use for free.

An examination of cases from other jurisdictions convinces us that it is the general rule that the voluntary consent of the head of a household to the search of premises owned or controlled by such head of the household is sufficient to authorize a search of the premises without a search warrant [.]

Tolbert v. State, 224 Ga. 291, 293 (161 SE2d 279) (1968). To that end:

[E]ven if the son, living in the bosom of a family, may think of a room as “his,” the overall dominance will be in his parents. . . . Given the nature of the home as a family dwelling and the fact that the mother, as owner and head of the single-family household, designated what use, if any, could be made of the premises including the bedroom in question, we think it was reasonable to recognize that the mother had the authority to permit the inspection in her own right.

(Citations and punctuation omitted.) United States v. Peterson, 524 F2d 167, 180-181 (4th Cir. 1975), cert, denied, 423 U. S. 1088 (96 SC 881, 47 LE2d 99) (1976).

As a resident homeowner granting consent to a search of her own home, including her adult son’s rent-free bedroom, West’s mother satisfies the second prong of the Matlock analysis in that she possesses a “sufficient relationship to the premises” sought to be inspected. Accordingly, factors such as “access” to the bedroom and “mutual use” of the bedroom are not relevant inquiries. Thus, regardless of whether West locks his bedroom door and regardless of his mother’s reluctance to enter the bedroom, she has the right to enter and she may assign that right, as she did in this case:

[The mother] had control of the premises, undiminished by any kind of less-than-fee interest possessed by [West]. This fact stands in contrast to the hotel or rental situations. [] The situation strikes us as being no different, factually, than if [the mother] herself had brought the seized item, it being properly in her possession, to the authorities. They came to the home, it is true, but they obtained it by freely allowed access to the house.

(Punctuation omitted.) United States v. Peterson, supra at 180, citing Maxwell v. Stephens, 348 F2d 325 (8th Cir. 1965), cert, denied, 382 U. S. 944 (86 SC 387,15 LE2d 353) (1965), reh. denied, 382 U. S. 1000 (86 SC 532, 15 LE2d 490) (1966).

Because West’s mother had the authority to consent to a search of her home, including the bedroom she permitted her son to use for free, such consent was valid. The trial court’s ruling to the contrary is erroneous.

Judgment reversed.

McMurray, P. J., Andrews and Blackburn, JJ, concur. Pope, P. J., concurs specially. Beasley, P. J., and Ruffin, J., dissent.

Pope, Presiding Judge,

concurring specially.

I fully concur with the majority opinion that West’s mother gave valid consent to the search of the bedroom and that the trial court’s ruling to the contrary must be reversed. Because the majority relies primarily on federal case law, I write separately in order to emphasize the Georgia cases on point.

A warrantless search of a residence may be authorized by the consent of any person who possesses common authority over or other sufficient relationship to the premises to be searched. [Cits.] “Common authority” is defined as: mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their own number might permit the common area to be searched. [Cit.]

(Punctuation omitted.) Smith v. State, 264 Ga. 87-88 (2) (441 SE2d 241) (1994).

This Court has previously held that a parent, as the head of the household, has the authority to consent to the search of the room of a child who lives in the parent’s home free of rent. See Howard v. State, 207 Ga. App. 125,126 (1) (427 SE2d 96) (1993); Williams v. State, 166 Ga. App. 798, 800 (2) (305 SE2d 489) (1983); Montgomery v. State, 155 Ga. App. 423, 424 (1) (270 SE2d 825) (1980). In Howard v. State, we ruled: “it was uncontroverted that the appellant’s mother was a co-owner of the premises, and there was no landlord/tenant relationship between the appellant and his parents. Accordingly, we find that she was authorized to permit the officers to conduct the search.” (Citations and punctuation omitted.) Howard v. State, 207 Ga. App. at 126. See also Ford v. State, 214 Ga. App. 284 (1) (447 SE2d 334) (1994) (holding that appellant’s sister, who rented an apartment and was allowing appellant to stay in a bedroom in the apartment, could consent to a search of appellant’s bedroom).

In the instant case, it is true that West tried to maintain some privacy by locking his bedroom door. That fact, however, does not end the inquiry. West’s attempts at privacy and the authority of his mother to consent to the search are different issues. The trial court and the dissent have incorrectly focused on West’s privacy expectation in evaluating whether the search was valid. The dispositive question in this case is not merely if West tried to have privacy by locking his bedroom, but whether his mother had such authority over, or relationship to, the premises that she had the right to allow inspection of the room and that West assumed the risk that she might permit the room to be searched. See Smith v. State, supra. Pertinent to this inquiry are the facts that West’s mother and stepfather are co-owners of the house; that there is no landlord/tenant relationship because West was allowed to stay in the house without paying rent; and that West’s mother and stepfather have a key to the room. Given all the circumstances, it is clear that West’s mother had sufficient authority over her own house, that she had the right to consent to a search of the room and that West assumed the risk that she might permit the room to be searched.

[T]he voluntary consent of the head of a household to the search of premises owned or controlled by such head of the household is sufficient to authorize a search of the premises without a search warrant, and such search does not violate the constitutional prohibition against unreasonable searches and seizures.

Tolbert v. State, 224 Ga. 291, 293 (2) (161 SE2d 279) (1968). Because the consent to search given by West’s mother was valid, the trial court’s ruling to the contrary is erroneous.

Beasley, Presiding Judge,

dissenting.

I respectfully dissent because the trial court’s order does not contravene the law.

In reviewing an order on a motion to suppress evidence, three principles guide examination of the facts. One, the judge sits as the trier of facts. The findings should not be disturbed if there is any evidence to support them. Second, the trial court’s resolution of questions of fact and credibility must be accepted unless clearly erroneous. Third, the appellate court must construe the evidence most favorably to the upholding of the trial court’s order. Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994). These principles apply whether the trial judge validated the seizure or invalidated it. Id. We do not have authority to substitute our judgment for that of the trial court if there is a substantial basis for its decision. Lambright v. State, 226 Ga. App. 424 (487 SE2d 59) (1997). See State v. Oliver, 183 Ga. App. 92 (357 SE2d 889) (1987), a case which affirms a trial court’s conclusion of invalid consent to search.

Critical here is that the court found that West’s bedroom was locked, that a key had to be procured, that the household’s general policy for each of the adult residents “was to keep their bedroom door locked in order to maintain the security of their possessions and to provide for each individual’s privacy,” and that West’s mother only entered the bedroom upon obtaining permission or a request from West. These findings are supported by the following evidence in the record.

Undisputed is that the officer did not seek a search warrant because, after he consulted with his superiors and also the district attorney’s office about getting one, they decided instead to go and find out who lived there and try to do “a nonchalant consent to search” to determine the accuracy of the tip. The only information he had was from an anonymous person who had reported seeing marijuana plants growing in West’s bedroom. The officer was familiar with West and the house because he had been there before and knew West had been on probation. Nothing occurred when the three officers went to the home which would support probable cause to believe that marijuana was in the room or which created exigent circumstances to search without a warrant, so consent of an authorized person was essential.

The officers did not believe the Brookses would know anything about the marijuana, if it was there, and police discussion with them prior to obtaining consent bore that out. Mrs. Brooks testified that she did not know anything about the marijuana discovered by the police. She was “bumfuzzled” when the police explained why they were there. She felt that if there were any drugs in her house, she wanted them out. This all allows the inference that Mrs. Brooks did not frequent her son’s room. Also inferable is that she did not feel quite free to permit entry on her own, even though she made known that she wanted any drugs in her house removed. She signed the consent form because the officer said “[t]hat he was going to search, but [she] needed to sign it.”

The police learned from her that defendant had left the house a short time before to go to the store or to a friend’s house or some such place and had been expected back before the police arrived. In fact, he arrived and was arrested before the police left. There was no urgency to obtain the consent of someone other than the room’s occupier.

Mrs. Brooks told the officer the room was locked and that she was not sure where the key was which he had given to her. She said she had misplaced it and had not been in the room “in a while” because she could not find it and “never went in there anyway that much, but [West] gave [her] a key in case [she] needed to get in there for something.” She had not been in the room for about two or three weeks and would generally go in only “sometimes ... to clean it” or if West called her on the phone and asked her to get something, which happened only two or three times. She never went in West’s room without his permission, not even to get the dirty laundry or put back the clean laundry. Most of the time he kept the door locked.

West had put the lock on his door with her permission because he had experienced some things missing from his room previously. All the occupants of the house were adults and everyone locked their rooms. According to Mrs. Brooks, “we all try to respect each other’s privacy.”

Mr. Brooks knew where the key was, got it from their bedroom, and unlocked the door after Mrs. Brooks signed the consent form. Although West did not pay rent as such to his mother, he did give her money “to help out” if she needed some. He did not stay at the house much of the time. But no one else stayed in that room even though others visited the residence from time to time, and only West and the Brookses had keys.

The evidence is abundantly clear that West had an objectively reasonable expectation of privacy in his bedroom, which was his home. As the trial court said in summing up her ruling, “I don’t know of any greater way that Mr. West could have been trying to protect his privacy than to have a lock on his door.” The court repeated this observation in the order granting the motion: “[T]he Court cannot imagine of any greater way that the Defendant could have attempted to protect his privacy than to place a lock requiring a separate key on the door to his bedroom.”

Taking into account West’s expectation of privacy, what was the relationship of his mother to the room? Did she have the sort of relationship which would authorize her to consent to its search in her own right?

The United States Supreme Court has instructed that

the consent of one who possesses common authority over premises or effects is valid as against the absent nonconsenting person with whom that authority is shared. . . . [Consent to search is valid if] permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected.

United States v. Matlock, 415 U. S. 164, 170-171 (94 SC 988, 39 LE2d 242) (1974). The Court explained what it meant by “common authority”:

[It] is . . . not to be implied from the mere property interest a third party has in the property. The authority which justifies the third-party consent does not rest upon the law of property, with its attendant historical and legal refinements, . . . but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.

Id. at 171, fn. 7.

West’s mother did not have mutual use of the property or joint access or control of it so as to have the right to permit inspection of the room in her own right. She had relinquished use and consistently over time had respected the exclusive use of the room by her adult son. Although she owned the house and her son did not pay rent as such so as to establish a landlord-tenant relationship, these facts are not determinative because “common authority” is not based on the law of property. Because the Supreme Court has made that clear, it would not intend the law of property to govern the other category it created, i.e., “sufficient relationship” else the latter would swallow up “common authority” as defined and make it superfluous. Although Mrs. Brooks had a key, she only used it with permission of West. She had given up use and control of the room out of generosity and familial ties and further, had permitted the assurance of privacy as a matter of courtesy and her son’s security.

Contrasted to the situation here is that found in Smith v. State, 264 Ga. 87 (2) (441 SE2d 241) (1994). The Supreme Court of Georgia held that the consent by the mother was valid because the son slept in the common area, only kept his belongings in the unlocked spare room with its standing-open door, the mother had joint access and unhindered control over the room, and there was no evidence that he paid rent or had exclusive domain over it. The court held that this authorized the trial court “to conclude that she had common authority over the room . . . and a sufficient relationship to [it] to consent to the search.” (Citations omitted.) Id. at 88.

In Peek v. State, 239 Ga. 422, 426 (2) (238 SE2d 12) (1977), the Supreme Court avoided what it regarded as the close question of the authority of defendant’s sister, lessee of the house in which he resided, to consent to search of his bedroom. We have here the difficult issue skirted there, but it is notable that the Court was unwilling to conclude that because the sister was the lessee (there was no evidence that he paid anything to her for use of the room), she had authority to consent.

Distinguishable is Dawson v. State, 166 Ga. App. 199 (303 SE2d 532) (1983), for there the appellant’s brother, who shared the bedroom with him in the house occupied by the two of them and their grandmother, gave consent to search the bedroom where incriminating evidence was found.

Even where a tenant fails to pay rent (she was in jail and the landlord put new locks on the apartment to hold her personal property as security for past due rent), this Court held there was not an abandonment of the premises so as to authorize the landlord to give consent to search. The tenant “maintained a reasonable expectation of privacy” so that “the landlord had no authority to consent to the search” as measured by the Matlock test. Browning v. State, 176 Ga. App. 420, 422 (1) (336 SE2d 41) (1985).

Further, based on the facts related above in this case, it is not one in which the police intrusion into West’s bedroom can be justified on the ground that they reasonably believed Mrs. Brooks possessed common authority over his room. The United States Supreme Court allows such in the proper circumstances. Illinois v. Rodriguez, 497 U. S. 177 (110 SC 2793, 111 LE2d 148) (1990). But as we recognized in Browning, supra at 423,

Decided March 19,1999.

Roger Queen, District Attorney, John G. Wilbanks, Jr., Assistant District Attorney, for appellant.

John R. Jackson, for appellee.

[l]aw enforcement officers carry the burden when determining whether a third party has authority to consent to a warrantless search of another person’s property. See OCGA § 17-5-30 (b). An officer’s belief that a third party has authority to consent to the search of another person’s property should not only be based on information previously obtained in his investigation, but should also be based on the facts and circumstances existent at the time of the search. This is true particularly where there are no exigent circumstances which authorize bypassing the Constitutional safeguard of obtaining a warrant. See generally Chapman v. United States, 365 U. S. 610, 615 [(81 SC 776, 5 LE2d 828) (1961)].

As in State v. Stewart, 203 Ga. App. 829, 830 (418 SE2d 110) (1992), “the [officers] could not reasonably have believed that [Mrs. Brooks] had authority over [West’s bedroom].”

Her consent, even if freely given, was an invalid key to the officers’ legitimate entry. The Fourth Amendment stood in the way. The Supreme Court of Georgia has said as to a third party consent search: “No expectation of privacy is more reasonable than that which one has in one’s bedroom. From there, one may exclude the whole world, including one’s children, and especially the government.” Davis v. State, 262 Ga. 578, 581, n. 3 (422 SE2d 546) (1992).

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

       See also Howard v. State, 207 Ga. App. 125, 126 (1) (427 SE2d 96) (1993); Williams v. State, 166 Ga. App. 798, 800 (2) (305 SE2d 489) (1983).

       Compare Chapman v. United States, 365 U. S. 610 (81 SC 776, 5 LE2d 828) (1961) (landlord cannot consent to search of house he has rented to another); Stoner v. California, 376 U. S. 483 (84 SC 889, 11 LE2d 856) (1964) (hotel clerk cannot consent to search of customer’s room).

       Although I agree with the majority’s conclusion and much of its analysis, I disagree with the majority’s statement that a “common authority” analysis in this case is inappropriate. As noted in both the majority and this special concurrence, a third party with “sufficient relationship” to the premises can validly consent to a search. “Common authority,” or mutual use of the property by persons having joint access for most purposes, is simply one kind of “sufficient relationship” to the premises. In this case, there is evidence that West, his mother and his stepfather mutually used the house and had joint access to it. Thus, whether or not the mother had common authority over, or any other kind of sufficient relationship to, the premises is the appropriate inquiry.


author: McMurray, Presiding Judge.

text:
    A98A1746.
    REGENCY EXECUTIVE PLAZA UNIT OWNER’S ASSOCIATION, INC. et al. v. WILMOCK, INC. et al.
    (514 SE2d 446)
   McMurray, Presiding Judge.

This is an action for damages arising from moisture retention problems and resultant termite problems in the structure of a condominium office building complex. The plaintiffs are Regency Executive Plaza Unit Owner’s Association, Inc., the association organized for the operation of the condominium, along with a number of representatives of unit owners and tenants. Numerous corporate and individual defendants were involved in the testing, manufacture, sale, installation, or inspection of the exterior insulation and finishing system, a synthetic stucco exterior with foam insulation backing, which was placed on the buildings in the complex, or provided pesticide treatment and related services for the buildings. The present appeal is taken by plaintiffs from the grant of summary judgment in favor of defendants Edward D. Garvin, Joy Garvin, and Daniel J. Sheehan Company, as well as the grant of partial summary judgment in favor of defendants Dryvit Systems, Inc., Wilmock, Inc., Marvin Dickey, d/b/a Southern Tile and Carpet Company, and Astro Pest Control Services of Savannah, Inc. Held:

The notice of appeal filed by plaintiffs is not in the form directed by OCGA § 5-6-37 in that, rather than designating portions of the record to be omitted on appeal, plaintiffs have instructed that only items listed on the notice of appeal be included in the record sent to this court. Under the statutory scheme, the notice of appeal provides information concerning omission of portions of the record before the lower court. Nonetheless, after study of the record sent up and communication with the clerk of the court below, it is apparent that under the directions contained in the notice of appeal, some portion of the evidence upon which the superior court relied in this case has been omitted from the record on appeal.
It is well established that the burden is on the party alleging error to show it by the record and that where the proof necessary for determination of the issues on appeal is omitted from the record, an appellate court must assume that the judgment below was correct and affirm. Brown v. Frachiseur, 247 Ga. 463 (277 SE2d 16); Jackson v. Dept. of Transp., 201 Ga. App. 863, 865 (412 SE2d 847); Transport Indent. Co. v. Hartford Ins. Co., 198 Ga. App. 265, 266 (401 SE2d 294); Riverbend Ford-Mercury v. Kirksey, 196 Ga. App. 307, 309 (1) (395 SE2d 898); Taylor v. Colwell Mtg. Corp., 187 Ga. App. 397 (370 SE2d 520).

Bennett v. Executive Benefits, 210 Ga. App. 429 (436 SE2d 544).

“ 'On consideration of summary judgments we and the trial court must look at the entire record.’ Lawson v. Duke Oil Co., 155 Ga. App. 363, 364 (270 SE2d 898) (1980).” MacKinnon v. Hodge, 204 Ga. App. 539 (420 SE2d 341). Consequently, appellants who omit portions of the record which they view as not pertaining to any issue on appeal create a probably fatal defect in their appeals. “Such omissions from the appellate record from matters on summary judgment generally prove fatal to appellate review since it must be assumed by a reviewing court that the trial court’s grant of summary judgment is properly supported by the trial court record and since appellant has the burden of showing error affirmatively by the record on appeal. Transport Indem. Co. v. Hartford Ins. Co., 198 Ga. App. 265, 266(, supra).” Dillman v. Kahres, 201 Ga. App. 210, 211 (411 SE2d 43).

Decided March 11,1999

Reconsideration denied March 22,1999

Eugene C. Brooks TV, for appellants.

Brannen, Searcy & Smith, Daniel C. Cohen, McLain & Merritt, William S. Sutton, Henderson & Henderson, Devaul L. Henderson, Jr., Beckmann & Pinson, Walter W. Ballew ITT, for appellees.

Peacock v. Campbell, 223 Ga. App. 620 (478 SE2d 409).

The appellate record designated by plaintiffs omits portions of a dozen or more depositions which were included in their entirety in the record below and were presumably considered by the superior court in reaching its decision. Some parts of this evidence are included in the record on appeal because it was designated by one or more of the defendants. However, the defendants as appellees do not share the appellants’ responsibility to show error affirmatively by the record, a record which continues to omit some portion of no less than eight depositions. The missing portions of the depositions must be presumed to contain evidence authorizing the judgment of the superior court. Since plaintiff has omitted some portion of the evidence upon which the superior court relied, we must affirm. Tahamtan v. Sawnee Elec. Membership Corp., 228 Ga. App. 485, 486 (491 SE2d 918); Ferros v. Ga. State Patrol, 211 Ga. App. 50, 51 (2) (438 SE2d 163).

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.


author: Ruffin, Judge.

text:
    A98A1828.
    BOLDEN v. THE STATE.
    (514 SE2d 32)
   Ruffin, Judge.

A jury found Stanley Bolden guilty of driving under the influence of alcohol to the extent that it is less safe to drive and of driving without headlights in violation of OCGA § 40-8-20. Bolden appeals, asserting that the trial court erred by allowing the State to bolster the credibility of its witness during closing arguments. In addition, Bolden contends that the trial court failed to properly address juror questions during deliberations. Since Bolden’s assertions lack merit, we affirm.

Shortly before midnight on March 14, 1997, an Atlanta police officer saw Bolden driving down North Avenue with his headlights turned off. After the officer pulled Bolden over, he noticed an “extremely strong” odor of alcohol. At the officer’s request, Bolden performed several field sobriety tests including reciting the alphabet, touching his finger to his nose, and walking in a straight line. According to the officer, Bolden failed all three tests.

1. Bolden claims that the trial court erred in permitting the State to bolster the credibility of the arresting officer. During his closing argument, the solicitor stated “you heard from the officer, who I thought was very credible.” Bolden’s attorney objected to this comment after which the trial court stated “I think the jury can determine credibility. He can argue that.” Bolden made no additional objections nor did he move for a mistrial.

“It is improper for counsel to state to the jury his personal belief as to the veracity of a witness.” (Punctuation omitted.) Alexander v. State, 263 Ga. 474, 477 (2) (d) (435 SE2d 187) (1993). Therefore, the solicitor’s comment was improper. However, by failing to renew his objection or to move for a mistrial, Bolden waived any error.

When improper argument is made to the jury, it is necessary, in order to make the alleged error the basis for appeal, that opposing counsel . . . properly object to the argument, invoke the ruling or instruction of the court, and if dissatisfied with the action taken to renew the objection and move for a mistrial.

(Punctuation omitted.) Snider v. State, 200 Ga. App. 12, 14 (6) (406 SE2d 542) (1991); see also Epps v. State, 168 Ga. App. 79, 81 (4) (308 SE2d 234) (1983).

2. Bolden also claims that the trial court erred in giving an improper response to the jury’s questions during deliberation.

[W]hen the jury requests the court to recharge them on any point, it is the court’s duty to do so. . . . It is further the obligation of the court to instruct the jury in plain, clear language. Even when the charge relies on the exact language of the law, it must be calculated to enlighten rather than confuse the jury.

(Citations and punctuation omitted.) Kimmel v. State, 261 Ga. 332, 334-335 (3) (404 SE2d 436) (1991).

In this case, the jury asked to see a copy of the police report. Although neither the State nor Bolden tendered the report into evidence, the State did use the report to refresh the officer’s recollection, and Bolden’s attorney asked the officer numerous questions about alleged inconsistencies between the report and his testimony at trial. Instead of telling the jury that the report had not been tendered, the trial court instructed the jurors “that all of the evidence in the case has been presented to you during the course of the trial. And you are to make your decision based solely upon the evidence presented to you during the course of the trial.” At Bolden’s request, the trial court also instructed the jurors that they were not to speculate on any other evidence. One juror asked “ [s] o anything that was said in court on the police report, forget about it?” Following this question, the trial court recharged the jury on evidence including the instruction that “evidence includes all of the testimony of the witnesses admitted during the course of the trial.” Bolden objected to the court’s response to the juror’s question contending that it did not answer the question and served to confuse the jurors.

In recharging the jury,

[t]he trial court in its discretion may recharge the jury in full, or only upon the point or points requested. Moreover, the trial court does not have to engage in a question-and-answer session with the jury or instruct the jurors individually on how to apply the law to the facts.

(Citation omitted.) Herrin v. State, 229 Ga. App. 260, 262 (2) (493 SE2d 634) (1997). Here, the trial court’s recharge to the jury that evidence includes the testimony of witnesses was legally sufficient and not misleading. In addition, the recharge, as given, answered the juror’s question regarding the admissibility of the officer’s testimony about his report. Thus, the trial court did not err in recharging the jury on this point in response to the juror’s question.

In addition, it appears that only one juror asked additional questions regarding the admissibility of the police report, “which may not denote ‘confusion’ of the entire jury so as to trigger the need to recharge . . . and there was no abuse of discretion in not further responding to the individual juror.” (Citations and punctuation omitted.) Cannon v. State, 230 Ga. App. 440, 442 (2) (496 SE2d 330) (1998).

Judgment affirmed.

Pope, P. J., and Beasley, P. J., concur.

Decided February 15,1999

Reconsideration denied March 22,1999

William C. Head, for appellant.

Joseph J. Drolet, Solicitor, for appellee.


text:
    A98A2019.
    PYRON v. THE STATE.
    (514 SE2d 51)
   Ruffin, Judge.

A jury found Rosa Mae Pyron guilty of three counts of cruelty to children. In her sole enumeration of error, Pyron contends that the trial court erred in failing to allow her to present expert testimony regarding the interview techniques employed in questioning the victim. Since such testimony involves an area of expertise beyond the ken of the average juror, the trial court erred in refusing to permit Pyron’s expert to testify. Accordingly, we reverse.

In September 1994, the victim, who was four years old, and his two siblings moved in with his grandparents, Rosa Pyron and her husband. On March 21,1996, Lenell Bailey, the victim’s mother, visited the victim and noticed marks on his back and side. Bailey notified a caseworker from the Department of Family & Children Services (DFACS), and the children were removed from Pyron’s home. After the victim identified his grandmother as the person who had injured him, Pyron was arrested for cruelty to children. In May 1996, Officer Lorene Jackson of the Gwinnett County Police Department conducted a videotaped interview of the victim that the State tendered into evidence. The victim, who was five at the time of trial, took the stand and the prosecutor questioned him about the alleged incidents of abuse. During her case in chief, Pyron sought to introduce the testimony of Dr. Robert Shaffer, a psychologist, regarding the techniques employed by Officer Jackson and the prosecutor in their examinations of the victim. Outside the presence of the jury, Dr. Shaffer testified that children, in general, tend to be more susceptible to suggestion than adults. Dr. Shaffer testified that a few of the victim’s responses “appear [ed] to have been influenced by certain experiences prior to being asked the question” and that there were specific instances in which the victim’s responses revealed “a very specific pattern.” To provide an example, Dr. Shaffer testified that the victim described his grandmother “as the mean grandmother . . . and the residence that he lived in as the mean house.” According to Dr. Shaffer, this pattern “seem[ed] to portray an emotional tone of the response set that [he] believe [d] th[e] child acquired in interaction with some other individual.” Following the State’s argument that this testimony improperly interfered with the jury’s assessment of credibility, the trial court excluded Dr. Shaffer’s testimony.

It is well-established that “[e] xpert opinion testimony on issues to be decided by the jury, even the ultimate issue, is admissible where the conclusion of the expert is one which jurors would not ordinarily be able to draw for themselves.” Smith v. State, 247 Ga. 612, 619 (277 SE2d 678) (1981) (battered woman’s syndrome); see also Brown v. State, 262 Ga. 833, 834 (2) (426 SE2d 559) (1993) (sanity); Bethea v. State, 251 Ga. 328, 331 (10) (304 SE2d 713) (1983) (cause of death). In a case of first impression, the Supreme Court recently addressed the propriety of admitting expert testimony regarding interviewing techniques in a child sexual abuse case. Barlow v. State, 270 Ga. 54 (507 SE2d 416) (1998).

The Supreme Court noted that “[testimony intended to show that an investigating officer’s questions of the child victim were inappropriate represents evidence only an expert could give on matters not within the knowledge of a juror. It would assist the jury directly in evaluating the weight given to that testimony.” (Citation and punctuation omitted.) Id. at 54. The Supreme Court further noted that “cross-examination of a child witness could be ineffectual if the child sincerely takes his or her recollections to be grounded in facts and does not remember the improper interview procedures which may have suggested them. Similarly, cross-examination of the interviewer is not necessarily sufficient.” (Citation and punctuation omitted.) Id. at 54-55. Thus, the Supreme Court concluded that expert testimony on this issue should be admitted because the effect of such techniques “is a subject with which a lay juror may be unfamiliar.” Id. at 54.

Unlike Barlow, this case involves physical rather than sexual abuse. This distinction, however, does not warrant a different result since the underlying concerns remain the same. In Barlow, the Supreme Court acknowledged that “[s]pecial interviewing processes are necessary to get information from child victims, who are often immature, inarticulate, frightened, and confused about the abuse they have received.” (Punctuation omitted.) Id. Since child victims of physical abuse are likely to exhibit these same qualities, expert testimony on the subject of interviewing techniques is equally relevant in a trial involving physical rather than sexual abuse.

Another concern mentioned by the Supreme Court is the need for a level playing field. Id. at 55. In the past, Georgia courts have adopted a liberal approach to the introduction of evidence by the State in cases involving either the physical or sexual abuse of children. See Miller v. State, 179 Ga. App. 100 (1) (345 SE2d 647) (1986) (prior incident); Phelps v. State, 158 Ga. App. 219-220 (2) (279 SE2d 513) (1981) (similar transactions); Smith v. State, 154 Ga. App. 497, 499 (1) (268 SE2d 714) (1980) (prior transactions). We have recognized that “since there is seldom a competent witness other than the defendant to what occurred in a child abuse case, courts should be . . . liberal in admitting corroborative evidence.” Smith, supra at 499. Conversely, we should endeavor to ensure that a defendant is not unduly hampered in presenting a defense to a charge involving either physical or sexual abuse of children. Allowing an expert to testify “on the narrow issue of the proper method of interrogating a child” serves this end. Barlow v. State, 229 Ga. App. 745, 751 (494 SE2d 588) (1997) (Smith, J., concurring in part and dissenting in part).

Here, as in Barlow, 270 Ga. 54, the expert witness clarified that he was not commenting on whether the victim was telling the truth. Rather, he offered his testimony for the limited purpose of addressing the interviewing techniques employed by the State and the dangers involved in using such techniques. Dr. Shaffer was competent to testify on this issue, and his testimony was both relevant and necessary to Pyron’s defense. Accordingly, the trial court abused its discretion by excluding his testimony.

In so holding, we create no new rule regarding the admissibility of expert testimony. To the contrary, “[w]hether or not a witness is allowed to testify as an expert [remains] a question for the sound discretion of the trial court and such discretion, unless abused, will not be disturbed.” (Punctuation omitted.) Fatora v. State, 185 Ga. App. 15, 19 (4) (363 SE2d 566) (1987). “Certainly a trial court has the discretion to exclude expert testimony regarding how techniques of law enforcement officers and caseworkers would cause false memories or mistaken attributions, where the proffered testimony is not based upon either the facts within the expert’s knowledge or other facts admitted in evidence.” Barlow, 270 Ga. at 56.

In this case, however, the trial court provided no basis whatsoever for its decision to exclude the expert’s testimony. The court gave no indication that it found the credentials of the expert witness to be lacking. Furthermore, a review of the record demonstrates that Dr. Shaffer’s opinion was based upon facts admitted into evidence. The State argued that the expert testimony should be excluded because it “directly interferes with the jury’s assessment of the ultimate credibility of the child witness.” “However, the fact that limited expert testimony regarding proper interview techniques indirectly involves the child’s credibility does not render it inadmissible.” Barlow, supra at 55. What an expert cannot do is give an opinion that the victim’s allegations of abuse are false. See Barlow, supra; Jennette v. State, 197 Ga. App. 580, 582 (3) (398 SE2d 734) (1990). Because the expert witness’s testimony comes within the holding of Barlow and because the trial court provided no viable basis for excluding this testimony, the trial court abused its discretion in refusing to permit the expert witness to testify regarding proper techniques for interviewing children.

Decided March 8,1999

Reconsideration denied March 22,1999.

Darel C. Mitchell, for appellant.

Daniel J. Porter, District Attorney, Nancy J. Dupree, Assistant District Attorney, for appellee.

Judgment reversed.

Pope, P. J., concurs. Beasley, P. J., concurs in the judgment only.

       Pyron’s husband also was charged with cruelty to children, but the jury acquitted him and, thus, he is not a party to this appeal.

       According to the victim, his grandmother whipped him with an extension cord and with a belt and burned him both with an iron and by putting him in a tub of hot water.


text:
    A98A2199.
    LUXENBERG v. GRIFFITH et al.
    (514 SE2d 63)
   Ruffin, Judge.

Sandra Luxenberg, as executrix under the will of her mother, Estelle Rosen, sued Michael Griffith and Judy Miller for trespass, interference with enjoyment of property, and nuisance, seeking injunctive relief and damages. A jury found in favor of defendants, and Luxenberg appeals, contending that the trial court erred (1) in admitting into evidence minutes of the Tybee Island City Council; (2) in admitting the testimony of a defense witness; and (3) in failing to give a requested charge on negligence. For reasons which follow, we affirm.

Rosen and defendants owned adjacent property on Eighteenth Place on Tybee Island. In April 1995, defendants added fill dirt to their property which increased the height of the property. Luxenberg claimed that the elevation of defendants’ property forced rainwater to flow onto Rosen’s property and caused flooding. A real estate appraiser testified that without flooding, Rosen’s property was worth over $30,000, but with flooding, the value of the property “would be nil.” Defendants, on the other hand, claim that the Rosen property had always been susceptible to flooding and that the elevation of their property actually served to improve Rosen’s property.

Defendants tendered minutes from certain Tybee Island City Council meetings which showed that Rosen’s husband, Dr. Rosen (now deceased), had complained of flooding on the Rosen property as early as 1979. These minutes also indicated that the council had discussed the flooding problem in the area several times. Defendants also called Donald Harris to testify about instances of flooding of the Rosen property that he had witnessed before April 1995.

1. In her first enumeration, Luxenberg contends that the trial court erred in admitting into evidence copies of the Tybee Island City Council minutes because they contain hearsay and because they are irrelevant. With respect to her claim that the documents were inadmissible because they contained hearsay, Luxenberg did not support this assertion in her brief with any argument or citation to the record. Accordingly, this assertion is deemed abandoned. Court of Appeals Rule 27 (c) (2); see also In the Interest of B. J G., 234 Ga. App. 285, 287, n. 1 (506 SE2d 449) (1998).

With regard to her relevancy objection, Luxenberg claims that the earlier flooding of the property referenced in the minutes was caused by ocean water coming over the sea wall during high tides rather than rainwater and that the City of Tybee Island corrected the problem. Thus, she contends that the minutes were irrelevant as a matter of law.

As an initial matter, we note that “our appellate courts have consistently adhered to the rule that an objection to the admission of evidence on the sole ground that it is irrelevant is insufficient to show error requiring reversal.” (Punctuation omitted.) Kittles v. Kittles, 187 Ga. App. 537, 538 (2) (370 SE2d 803) (1988). Accordingly, we need not address this claim of error.

Moreover, at trial, Luxenberg did not object to the minutes on the grounds that the earlier flooding was caused by ocean water rather than rainwater, but simply argued that the minutes were irrelevant because they related to periods before 1995. Thus, the trial court never had an opportunity to consider the similarity of the various instances of flooding. “In order to preserve an objection upon a specific ground for appeal, the objection must be made at trial upon that specific ground. Objecting on specific grounds waives the grounds not asserted.” (Citations and punctuation omitted.) Campbell v. State, 228 Ga. App. 258, 263 (3) (b) (491 SE2d 477) (1997). “The rule is that the scope of review is limited to the scope of the ruling in the trial court as shown by the trial record and cannot be enlarged or transformed through a process of switching [or] shifting.” (Punctuation omitted.) Robinson v. State, 208 Ga. App. 528, 530-531 (4) (430 SE2d 830) (1993). Thus, Luxenberg waived her right to raise this issue on appeal.

2. Luxenberg also contends the trial court erred in admitting Harris’s testimony. Harris, an engineer formerly with the Army Corp of Engineers, had worked on a beach erosion project in 1978. He testified that in 1978, Dr. Rosen contacted him regarding the flooding of his property. From 1978 through 1988 or 1989, Harris visited Dr. Rosen’s property several times and witnessed flooding first-hand. At trial, Luxenberg objected to this testimony because it dealt “with events that transpired in 1980.” In her brief, however, Luxenberg argues that Harris’s testimony was not relevant because the flooding he referred to involved “ocean water coming over the sea wall” rather than rainwater.

To the extent that Luxenberg’s objection at trial constituted an objection on relevancy grounds, we reiterate that “an objection to the admission of evidence on the sole ground that it is irrelevant is insufficient to show error requiring reversal.” (Punctuation omitted.) Kittles, supra. To the extent Luxenberg now argues in her brief that the earlier flooding was different in type from the flooding following the elevation of defendants’ property, she waived that argument by failing to raise the issue below. See Campbell, supra; Robinson, supra.

3. In her final enumeration of error, Luxenberg contends the trial court erred in failing to give a jury instruction she requested. This contention lacks merit.

During the charge conference, the parties discussed the defendants’ request for the trial court to instruct the jury “that the Plaintiff seeks recovery for injuries allegedly caused by the Defendants’ negligence.” Luxenberg’s attorney objected to this charge, claiming that “[t]his is not a negligence action.” At Luxenberg’s request, the trial court changed the defendants’ charge to eliminate use of the word “negligence.”

Immediately thereafter, the parties discussed Luxenberg’s request for the trial court to charge the jury “that in order that a party may be liable in negligence, it is not necessary that they should have contemplated or even been able to anticipate the particular consequences which ensued, or the precise injuries sustained by the plaintiff. It is sufficient, if, by the exercise of reasonable care, the defendants might have foreseen that some injury would result from their act or o[m]issions, or that consequences of a generally injurious nature might have been expected.”

The trial court noted that Luxenberg’s charge also involved negligence and concluded that it would not give the instruction “to avoid confusing the jury.” After the trial court explained its reasoning for excluding the charge, Luxenberg’s attorney responded “okay.”

Decided March 10,1999

Reconsideration denied March 22,1999

Clark & Clark, Fred S. Clark, for appellant.

McCorkle, Pedigo & Johnson, Kenneth P. Johnson, for appellees.

“These facts compel the conclusion that [Luxenberg] expressly acquiesced in . . . the court’s instruction.” (Footnote omitted.) Moody v. Dykes, 269 Ga. 217, 220 (3) (496 SE2d 907) (1998). Having agreed to the trial court’s decision, Luxenberg may not now complain of it. Id.; see also Rainwater v. State, 256 Ga. 271, 272 (2) (347 SE2d 586) (1986).

Judgment affirmed.

Pope, P. J., and Beasley, P. J., concur.

       Luxenberg originally brought the action as attomey-in-fact for Rosen, but Rosen died prior to trial.

       We note, in passing, that Luxenberg’s amended complaint does reference a negligence claim.


author: Judge Harold R. Banke.

text:
    A99A0103.
    BOWDEN v. THE STATE.
    (515 SE2d 178)
   Judge Harold R. Banke.

Stanley Wayne Bowden was convicted of theft by taking and misdemeanor obstruction. In his sole enumeration, he argues that the trial court erred by making remarks regarding guilty pleas and trials to the jury.

This case arose after Bowden attempted to leave a Rite-Aid Store with a cassette player tucked into the back of his shirt. After Bowden activated the store alarm, the manager approached him and ordered him to stop. Bowden returned to the store and emptied his pockets, claiming, “I ain’t got nothing.” Then Bowden walked down an aisle, took the cassette player from the back of his shirt and replaced it on the shelf. The manager attempted to make a citizen’s arrest as Bow-den started to leave the store, but Bowden pushed him against the door and ran. The cashier called authorities, who discovered Bowden nearby. When Bowden ignored the officer’s repeated commands to lie on the ground, the officer sprayed him with pepper spray and forced him to the ground. Bowden continued to struggle until he was handcuffed. Held:

Bowden contends that comments the trial court made to the jury prior to trial warrant reversal. He argues that these remarks left the jury with the impression that he was wasting their time because most of those accused are in fact guilty.

The record refutes this contention. Prior to trial, before jury selection began, the first case was called, a bench warrant was issued, and the court was informed that several defendants had elected to enter guilty pleas. By way of explanation for these delays, the trial court made the remarks at issue. Then, before Bowden’s case commenced, a jury for another criminal case was selected.

Decided March 22,1999.

James A. Yancey, Jr., for appellant.

Michael D. DeVane, Solicitor, for appellee.

Having read and considered the trial court’s statement, we find nothing which might have caused the jurors to form an opinion as to the guilt or innocence of any defendant who was not requesting to enter a guilty plea. Edmonds v. State, 196 Ga. App. 190, 195 (395 SE2d 566) (1990). Unlike Edmonds, on which Bowden relies, the court here did not discuss the workings of the plea bargaining process or the admission of defendants’ prior criminal records. The trial court merely explained the delay in jury selection.

Moreover, defense counsel was present during the remarks at issue and presented no evidence that he objected to them or sought corrective jury instructions. Waters v. State, 169 Ga. App. 290, 292 (2) (312 SE2d 812) (1983). Thus, the issue was waived. Id. Were it not, the evidence was sufficiently overwhelming to preclude a finding that the remarks were harmful. See Livery v. State, 233 Ga. App. 882, 885 (3) (506 SE2d 165) (1998).

Judgment affirmed.

Pope, P. J., and Eldridge, J., concur.

       The trial court stated:
      Ladies and gentlemen, so that you will know what’s going on, several defendants have evidently decided to change their plea from not guilty to guilty this morning and we’re entering those on the record at this time and I’m going to bring them back later to sentence them. I’m not going to do that now, so [sic] to try to shorten the time that you have to sit there. Everybody has the right to a trial and every time this happens, some juror will inevitably come back and ask me at the end of the day, “Well, why did you let them plead guilty?” It may be that I could keep them from pleading guilty but I’m going to give them the same sentence if they plead guilty probably as I would if they had gone to trial and been found guilty, and it would just be a waste of your time and the taxpayers’ money to go through the exercise.
      We give all defendants an opportunity to enter pleas of guilty before they get here today, several opportunities, but a lot of times they get here and see the jury and decide that they will enter a plea of guilty when before they had plead not guilty, and that’s certainly their right and we want to dispose of all of these cases as quickly as we can, and that’s what we’re trying to do. So, we’re not — while it may seem like your time is being wasted, it’s not.


text:
    A99A0052.
    YAWN v. THE STATE.
    (515 SE2d 182)
   Judge Harold R. Banke.

Kendall Eugene Yawn was convicted of two counts of aggravated assault and possession of a firearm by a convicted felon. On appeal, Yawn enumerates three errors.

The underlying case arose after Yawn’s girlfriend summoned help for domestic violence. When Chief Deputy Ron Bivens responded to the call at about 10:30 p.m., he parked his police cruiser under a security light. Stephen Rogers, a friend of Yawn’s, intercepted Bivens and warned him to move his car from under the light because Yawn was armed with a rifle and “Kendall is going to kill ya’ll.” Rogers told him that the rifle was a 30-30 or 30.06.

The adjacent surrounding area was rural, heavily wooded, extremely secluded, and sparsely populated. The only two residences in the area were a trailer belonging to Yawn’s grandmother and a house belonging to her next door neighbor. After heeding Rogers’ advice to move his police cruiser, Bivens discovered Yawn’s girlfriend hiding in a closet in the neighbor’s house. She had fled next door to seek help. Yawn’s girlfriend was bleeding from injuries to her face and nose but steadfastly refused to leave the premises because she was afraid. As Bivens started to leave, he noticed a white Ford pickup truck with a smashed window. Yawn’s grandmother told Bivens that Yawn had “busted out a window and got a rifle,” from that truck.

After the next door neighbor contacted authorities because Yawn’s girlfriend still refused to leave his home, Bivens returned about 20 minutes later accompanied by another officer. As the officers placed Yawn’s girlfriend into the patrol car, they were fired upon as they pulled away. Both shots came from the wooded area behind Yawn’s grandmother’s trailer where Bivens had seen a man with a blue shirt proceed. The officers testified that they could actually hear a whooshing sound made by the first bullet as it passed them. According to Bivens, he recognized the distinct sound as coming from a high powered rifle, not a shotgun or pistol. Held:

On appeal, Yawn contests the denial of his motion for directed verdict and claims that the verdict was contrary to and against the weight of the evidence. Although Yawn asserted two general grounds, only the latter ground presents anything for appellate review and is the same as challenging the sufficiency of the evidence. Towns v. State, 185 Ga. App. 545 (365 SE2d 137) (1988). The standard for reviewing the denial of a directed verdict is the same as reviewing the sufficiency of the evidence: whether, after considering the evidence in the light most favorable to the verdict, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Oliver v. State, 232 Ga. App. 816, 817 (1) (503 SE2d 28) (1998). A motion for directed verdict of acquittal is authorized only where there is no evidence to support a conviction. Stewart v. State, 210 Ga. App. 474, 477 (9) (436 SE2d 679) (1993).

Decided March 23,1999.

Straughan & Straughan, William T. Straughan, for appellant.

Timothy G. Vaughn, District Attorney, Russell P. Spivey, Assistant District Attorney, for appellee.

The act of intentionally firing a gun at another person, in the absence of justification, is sufficient to support a conviction for aggravated assault under OCGA § 16-5-21 (a) (2). Lewis v. State, 215 Ga. App. 161, 163 (3) (450 SE2d 448) (1994). Here, the State presented evidence of Yawn’s guilt, which though not overwhelming, was certainly sufficient. Moody v. State, 206 Ga. App. 387, 391 (5) (425 SE2d 397) (1992). Bivens observed the broken truck window and saw Yawn disappearing into the woods behind his grandmother’s home. One of Yawn’s friends warned Bivens that Yawn would probably shoot at him. That friend testified that he had seen Yawn break the glass and take the gun from the truck. The officers testified that they were able to identify the general type of weapon and the direction of travel of the first bullet. The area was desolate and remote. No evidence showed the presence of any other person in the area at that time of night which was approaching midnight. This evidence was sufficient within the meaning of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979) for the jury to find all the essential elements of aggravated assault. See Dobbs v. State, 204 Ga. App. 83, 84 (2) (418 SE2d 443) (1992).

Judgment affirmed.

Andrews and Ruffin, JJ, concur.


text:
    A99A0054.
    RUBIN et al. v. FIELDS.
    (515 SE2d 180)
   Judge Harold R. Banke.

Mary Jo Rubin and David Rubin sued Carol Ann Fields for personal injuries and loss of consortium respectively after a minor automobile accident. Following a defense verdict, the Rubins appeal.

At trial, Fields admitted that her vehicle struck the rear passenger door of Mary Jo Rubin’s automobile. According to Fields, as she started to make a right turn from a stopped position, she did not see Rubin’s vehicle and “bumped” into it, barely striking it. Although Rubin proceeded on her errands in another car and did not seek any medical treatment that day, she ultimately sought more than $53,596 in medical and dental expenses, as well as damages for lost wages. Rubin claimed that she sustained soft tissue injuries to her neck and back, pelvic pain, right arm pain, and temporomandibular joint (“TMJ”) injuries and consulted with, or obtained treatment from, 17 different physicians, dentists, chiropractors, and physical therapists.

At trial, the parties extensively controverted the nature, extent, and cause of Rubin’s purported medical problems. During cross-examination, Rubin admitted that despite presenting herself to a board certified orthopedic surgeon and to a board certified neurologist as she walked painfully with the assistance of a cane, neither physician was able to confirm her medical problems with objective findings. Fields insinuated that Rubin, a licensed physical therapist, had engaged in “doctor shopping” and manufactured symptoms to correspond with her claim for damages. The jury refused to award any damages to the Rubins. Enumerating two errors, the Rubins (collectively “Rubin”) appeal. Held:

1. Rubin contends that the trial court erred in precluding her from informing the jury that Dr. Peter Benoit was selected by and compensated as an independent medical examiner for the defendant.

It is undisputed that Dr. Peter Benoit, a dentist with a Ph.D. in anatomy, conducted an independent medical examination of Rubin on behalf of State Farm Insurance Company. Prior to trial, the court had ruled that Dr. Benoit’s status as a defense witness would not be revealed to the jury and would be edited from his videotape deposition. After Fields suggested to the jury that Rubin engaged in “self-treatment” and “doctor shopping,” Rubin wanted the jury to be informed that Dr. Benoit had been selected by the defendant, not her. In light of Fields’ arguments about Rubin’s fraudulent manufacturing of symptoms and Rubin’s alleged visits to multiple “friendly” medical providers, Rubin contended that Fields “opened the door” to the disclosure of Dr. Benoit’s actual status. Rubin now urges that the exclusion of evidence of Dr. Benoit’s employment was so harmful and erroneous as to warrant reversal. White v. Lance H. Herndon, Inc., 203 Ga. App. 580, 582 (5) (417 SE2d 383) (1992).

The information that Dr. Benoit had been retained by the defense became relevant after the issue of “doctor shopping” arose. Plainly, Dr. Benoit’s employment could have been disclosed without any mention of insurance or an insurance company. The record indicates that Dr. Benoit, a specialist in orafacial pain and TMJ disorders, testified that in his professional opinion to a reasonable degree of medical certainty the automobile collision caused the TMJ dysfunction and need for surgery.

But, even assuming that the trial court erred in barring the jury from learning that Dr. Benoit was a defense witness, Rubin cannot prove the harm needed for reversal. Dr. Benoit also testified that “[h]er MRI could be consistent with a person with no symptoms and no problems whatsoever.” Moreover, TMJ was only one of several health problems claimed by Rubin. In light of Rubin’s self-contradictory testimony as well as the disputed testimony by medical providers as to the existence of any objective medical corroboration to support Rubin’s purported injuries, we will not substitute our judgment for that of the jury who sifted through the medical records, testimony, and ultimately resolved the credibility of the witnesses adversely to Rubin. Willis v. Brassell, 220 Ga. App. 348 (469 SE2d 733) (1996).

Decided March 23,1999.

Goodman & Goodman, Michael D. Goodman, for appellants.

Allen & Associates, Arthur L. Myers, Jr., Forrester & Brim, Weymon H. Forrester, for appellee.

2. Rubin contends that the trial court erred in denying the motion for new trial.

Where a defendant’s negligence is admitted and some proof of damages is unrefuted, a defense verdict cannot stand. Potts v. Roller, 232 Ga. App. 696 (503 SE2d 587) (1998). But here, whether Rubin sustained any injuries which emanated from the slight impact remained disputed throughout the entire trial. Compare Potts, 232 Ga. App. at 696-697. Because there is some evidence to support the verdict, the denial of Rubin’s motion for new trial cannot be disturbed. Bldg. Materials Wholesale v. Reeves, 209 Ga. App. 361, 364 (2) (433 SE2d 346) (1993).

Judgment affirmed.

Andrews and Ruffin, JJ., concur.