text:
    A92A0537.
    KENNEDY v. THE STATE.
    (421 SE2d 560)
   Cooper, Judge.

Timothy Kennedy as Commissioner of Roads & Revenues of Franklin County was indicted by the grand jury in September of 1990 on charges of theft by taking and malpractice in office, a violation of OCGA § 45-11-4. This indictment was quashed by the trial court and appealed by the State, but the appeal was dismissed when Kennedy was re-indicted. The second indictment, entered on March 19, 1991, charged Kennedy in two counts with theft by taking and theft by conversion; Count 3 charged him with malpractice in office in violation of Art. Ill, Sec. VI, Par. VI of the Georgia Constitution of 1983, based upon allegations that he provided labor, materials and equipment to pave a parking lot for the Veterans of Foreign Wars in Lavonia, Georgia, at the expense of the county. Robert Pruitt, a member of the Franklin County Advisory Board, was jointly indicted and just before trial pled nolo contendere and testified as a State’s witness.

At trial, Pruitt testified that in November 1989 when the paving work was done, he was the vice commander of the Lavonia post of the VFW. Kennedy was not a member of the VFW. Paving the parking lot had been discussed at VFW meetings, and Pruitt was asked to find out if the county could do it for them. Pruitt knew of other organizations in the area for which the county had provided labor and equipment to do such work, and eventually as a member of the County Advisory Board, he approved payment for the asphalt used in paving the lot. Pruitt gave the VFW a receipt from Kennedy for gravel and labor on the parking lot provided by the county. On December 1, 1989, Pruitt was given a check for $2,589 made out to “Franklin County Commissioner Tim Kennedy” by the treasurer of the VFW post in payment for the paving job. Pruitt gave the check to Kennedy, who cashed it on December 9, 1989, and divided the money with Pruitt. No money was deposited in the county account. After hearing rumors several months later that an investigation into the matter had been initiated, Kennedy told Pruitt they would have to return the money. Kennedy gave Pruitt half of the money, and Pruitt returned $2,589 to the VFW post president, who signed a receipt dated September 6, 1990, reciting that the money was being donated back to the VFW from the paving job. The VFW then received a bill from Kennedy as County Commissioner, backdated to December 3, 1989, for $4,409.89.

At the close of the State’s case, the defense moved for a directed verdict on the malpractice charge contending the State failed to show that the alleged constitutional violation was a crime that would comprise malpractice as contemplated by OCGA § 45-11-4. The motion was denied. Kennedy testified in his own behalf that he accepted the check from the VFW and split it with Pruitt. He was not sure why the VFW had given him the check, but he cashed it and kept the money from December 1989 to September 1990 when he spoke to the county attorney, who advised him to give the money back to the VFW. Kennedy was convicted of all counts, and immediately after the verdict was returned, a presentence hearing was held. Kennedy was sentenced to four years on Count 1, one year to be served in confinement and a $3,000 .fine; two years of concurrent probation on Count 3; and no sentence was imposed on Count 2.

1. Kennedy contends that Count 3 failed to allege a criminal act in violation of OCGA § 45-11-4 for malpractice in office as a matter of law, relying on State v. Burrell, 189 Ga. App. 812 (377 SE2d 898) (1989). “The crime ‘malpractice in office’ is not statutorily defined. See OCGA § 45-11-4. The Supreme Court, however, stated that the term ‘malpractice in office’ as used in the statute, ‘means a wrongful or unjust doing of an act which the doer has no right to do, or failure to do what the law makes it his duty to do, with evil intent or motive or due to culpable neglect.’ [Cit.] . . . [T]he Supreme Court ruled that the statute ‘was made sufficiently definite by construing the statute in connection with the laws defining the official’s duties. . . .’ [Cits.]” Id. at 812-813. The constitutional provision Kennedy was accused of violating states that except as otherwise provided therein, “the General Assembly shall not have the power to grant any donation or gratuity or to forgive any debt or obligation owing to the public, and . . . shall not grant or authorize extra compensation to any public officer, agent, or contractor after the service has been rendered or the contract entered into.” Const. of Ga. 1983, Art. Ill, Sec. VI, Par. VI (a). It is conceded that this provision applies to cities and counties. Grand Lodge &c. of Odd Fellows v. Thomasville, 226 Ga. 4 (3b) (172 SE2d 612) (1970). The indictment alleged that Kennedy donated and gave a gratuity to the VFW Post, a private association, in the form of asphalt, labor from county employees, and the use of county equipment in the grading and preparation of the parking lot “for which Franklin County was not compensated or reimbursed therefore and from which said county received no substantial benefit. . . .” In Burrell, supra, the alleged malpractice was described only as an act “unauthorized by law and in violation of [the defendant’s] duties as County Commissioner.” Because the statutes outlining the defendant’s duties did not forbid the use of public property for private use, this court held that the indictment did not clearly inform the defendant of a law that made his actions criminal and was thus subject to dismissal. Here, Kennedy was fully apprised of his obligations under the State Constitution, which he had taken an oath to uphold, and of the prohibited acts he was alleged to have committed. See OCGA § 45-3-1.

2. Kennedy enumerates as error the trial court’s failure to conduct a presentence hearing as required by OCGA § 17-10-2, claiming this omission necessitates a remand for resentencing in accordance with that Code section. However, as pointed out by the State, his citation to the trial transcript shows that such a hearing was in fact held approximately an hour after the verdict was filed in the clerk’s office. By reply brief, Kennedy complains that a one-hour lunch break did not afford him adequate time to prepare his witnesses and evidence for the presentence hearing and that he was not informed the State was going to seek the maximum sentence to be imposed. Defense counsel neither requested a continuance nor responded when the trial judge twice asked at the close of the hearing if there was “anything else” to be raised. Moreover, “[o]n appeal an enumeration of error cannot be enlarged by brief to give appellate viability to an issue not contained in the original enumeration. [Cit.]” Chezem v. State, 199 Ga. App. 869 (2) (406 SE2d 522) (1991).

3. Kennedy contends the trial court committed reversible error by denying his oral motion in limine and allowing the State to present the testimony of a woman who served on the first grand jury that indicted Kennedy in September 1990, without showing a necessity therefor in violation of OCGA §§ 15-12-73 and 24-9-21. The witness testified that in a sworn statement before the grand jury, she remembered Kennedy stating that Pruitt had given Kennedy a check made out to Kennedy, which Kennedy kept, but that six months later Kennedy had “gotten to feeling bad about keeping it,” and returned the money. Defense counsel’s renewed objections after direct and cross-examination of this witness were denied. Kennedy argues that the testimony was not necessary to resolve the issues being tried, and its prejudicial nature was so harmful a new trial is required.

Both OCGA §§ 15-12-73 and 24-9-21 (3). exclude admissions and communications “among” grand jurors on public policy grounds. In Womble v. State, 183 Ga. App. 727 (3) (360 SE2d 271) (1987), this court noted that OCGA § 15-12-72 “apparently makes an exception to [OCGA § 15-12-73] by providing that grand jurors shall disclose everything which occurs in their service whenever it becomes necessary in any court of record in Georgia. . . .” Id. at 728. However, because the Supreme Court has held that grand jurors could not be sworn and examined as witnesses to impeach their findings (Turner v. State, 57 Ga. 108 (1) (1876)), it was concluded in Womble that the trial court did not err in sustaining the State’s objections to the admission of certain testimony introduced for the purpose of impeaching the finding of the true bill. We also determined that the trial court did not find that disclosure of the evidence was necessary to resolve the issues before the court. Id. Since impeachment was not the purpose for which the testimony was introduced, in the instant case, the only issue is whether the trial court’s failure to make an express finding that the testimony of the former grand juror was “necessary” renders its admission reversible error.

We conclude that it does not. Not only was the witness competent to testify (Fite v. Bennett, 142 Ga. 660 (3) (83 SE 515) (1914)) but she merely reiterated what Pruitt had previously testified to and what Kennedy testified to immediately following her appearance, thereby making a showing of necessity immaterial. “[T]he admission of evidence, even if erroneous, is not harmful where substantially similar facts are shown either by the defendant. . . or by other evidence, unobjected to. [Cits.]” Freese v. State, 196 Ga. App. 761 (2) (396 SE2d 922) (1990). “Because the very evidence objected to had previously been [and was subsequently] admitted without objection, the trial court’s error in failing to exercise its discretion . . . was rendered harmless. [Cit.]” Bell v. State, 159 Ga. App. 621 (3) (284 SE2d 639) (1981). Accord Carver v. State, 198 Ga. App. 254, 255 (401 SE2d 300) (1990).

4. Kennedy complains that the trial court erred by instructing the jury to begin deliberations before it received the evidence and exhibits or the court had heard and ruled upon objections to the jury charge. He argues that by allowing the jury to begin deliberations prior to receiving all the evidence, the court effectively opened the door to deliberation outside of the evidence, from which impropriety must be presumed, which requires that the verdict be vacated for a new trial. However, there is nothing in the record to indicate that any impropriety or prejudice occurred. When the trial judge retired the jury to reach a verdict, he instructed them that “in just a few moments” he would send them the indictment and exhibits that had been placed in evidence. After hearing defense counsel’s exceptions to the charge, no further instructions or corrections were made. “ ‘Harm as well as error must be shown affirmatively by the record to authorize a reversal. [Cit.] [Kennedy’s contention that impropriety must be presumed under the circumstances] is mere speculation and conjecture unsupported by the record.’ [Cit.]” Columbus v. State, 200 Ga. App. 81 (2) (406 SE2d 576) (1991).

5. Kennedy asserts that the trial court committed reversible error in giving its charge and by refusing to give certain jury charges which were warranted by the evidence and requested in a timely and proper manner.

(a) Kennedy argues that the trial court improperly included in the charge on theft by conversion a portion of the statute which was not adjusted to the evidence as there was no demand for the funds held by Kennedy so as to raise a presumption of intent. “ [I]t is generally not error to include an entire Code section in a charge, even though portions are inapplicable. [Cit.]” Bagby v. State, 178 Ga. App. 282 (7) (342 SE2d 731) (1986). Kennedy does not contend that the jury was confused by the charge, and the record does not indicate that it was confused or misled. Id. at 284. Therefore, “[w]e will neither impute ... an adverse construction to the charge nor give so little credence to the ability of the jury to select that portion of the statute obviously applicable to the facts and issues presented for their determination.” Rowles v. State, 143 Ga. App. 553 (3) (239 SE2d 164) (1977). Compare Anderson v. State, 262 Ga. 26 (1c) (413 SE2d 732) (1992). Moreover, no harm has been shown since the conviction of theft by conversion was merged into the theft by taking conviction at sentencing.

(b) Kennedy asserts that the jury should have been instructed in regard to the leniency granted to Pruitt in his sentencing. The trial court gave a general charge on the credibility of witnesses, including an instruction that the jury could consider the interest or want of interest of a witness in determining his credibility. “The failure of the trial court to charge in the exact language requested is not reversible error where the charge given substantially covered the same legal principles. [Cits.] The trial court charged on the credibility of the witnesses and the weight to be given their testimony, on the impeachment of witnesses, and the purposes for which a prior contradictory statement could be considered. As the jury charge as given covered substantially the same issues as the requested [charge], we find no error.” Stephens v. State, 196 Ga. App. 29 (2) (395 SE2d 353) (1990).

(c) The trial court’s charge on malpractice in office was a correct statement of the law and there was no error in failing to give the requested charge taken from the text of Burrell v. State, supra. As explained in Division 1, the holding in that case is inapposite here. “ ‘(W)e have frequently held that the language employed by a judge of a reviewing court in discussing a case, or in giving reasons for a decision is not always appropriate for use by a trial judge in charging a jury.’ ” Gibbs v. State, 174 Ga. App. 19 (1) (329 SE2d 224) (1985).

(d) The court’s refusal to charge Kennedy’s requested instruction on “bare suspicion” was not error. The jury was charged three different times on the need for the State to prove Kennedy’s guilt beyond a reasonable doubt. “ ‘Although the trial court did not charge in the language requested by the appellant, the charge given covered substantially the same principles.’ [Cit.]” Mattarochia v. State, 200 Ga. App. 681 (5d) (409 SE2d 546) (1991).

(e) The requested instruction on prior inconsistent statements in regard to a conversation between Pruitt and the VFW president after Kennedy returned the money was not germane to the question of Kennedy’s intent when he cashed the check and kept the funds, which was the issue before the jury, and was properly refused. White v. State, 230 Ga. 327 (7) (196 SE2d 849) (1973); Jenkins v. State, 198 Ga. App. 843 (5) (403 SE2d 859) (1991).

Decided July 9, 1992

Reconsideration denied July 23, 1992

McClure, Ramsay & Dickerson, John A. Dickerson, for appellant.

Lindsay A. Tise, Jr., District Attorney, Charles H. Frier, for appellee.

6. Kennedy’s challenge to the proof of the theft by conversion conviction on Count 2 is moot by virtue of the State’s concession that this charge was brought as an alternative to Count 1 for theft by taking, and could not be separately sentenced. Although it is not clearly delineated in the transcript of the presentence hearing that a ruling of merger was made, inasmuch as Kennedy was sentenced only on Count 1, the conviction under Count'2 stands vacated by operation of OCGA § 16-1-7 (a). Wade v. State, 258 Ga. 324 (2) (368 SE2d 482) (1988). We find no grounds for reversal.

Judgment affirmed.

Sognier, C. J., and McMurray, P. J., concur.


source: Caselaw Access Project

author: Cooper, Judge.

license: Public Domain

text:
    A92A0539.
    HUMMEL v. GAINESVILLE RADIOLOGY GROUP, P.C. et al.
    (421 SE2d 333)
   Cooper, Judge.

Appellant brought a medical malpractice action against appellees James C. Strittmatter and the professional corporation within whom he is employed alleging that appellees negligently breached the applicable standard of care in failing to timely diagnose breast cancer after a mammogram examination. The case proceeded to trial before a jury, which returned a verdict for appellees. Appellant moved the court for a new trial. The trial court denied appellant’s motion, and this appeal followed.

1. Appellant enumerates as error the trial court’s failure to grant a new trial on the ground that a juror violated his oath and failed to disclose pertinent information during voir dire. During voir dire, appellant’s counsel asked whether prospective jurors had family members who had been diagnosed with breast cancer or other forms of cancer, the method of diagnosis, treatment and whether there had been any recurrence. One particular juror made no response, and he was eventually accepted by both sides. After the trial, appellant’s counsel discovered that the juror’s wife died in 1942 from carcinoma of the liver, and according to her death certificate, which was attached to the motion for new trial, the contributing cause in her death was “[c]arcinoma of breast removed 2 yrs about 1 year ago. proven by biopsy [sic].” In opposition to the motion for new trial, appellees submitted the affidavit of the juror wherein the juror averred that he did not hear the question asked and that the cause of his wife’s death did not influence his deliberation or judgment in the case. Appellees submitted the affidavits of two other jurors pursuant to OCGA § 9-10-9 in which they averred that the juror in question did not attempt to influence his fellow jurors, did not mention his deceased wife or her cause of death, and only expressed agreement with conclusions drawn by other jurors when his opinion was solicited.

“The public policy of this State is to keep jury trials free from suspicion of irregularity or impropriety of conduct. A method for assuring such, and an expression of the policy as a right, is provided in OCGA § 15-12-133. To implement the voir dire and its purpose, counsel are entitled to have truthful answers given to questions propounded to jurors. [Cit.]” Fidelity Nat. Bank v. Kneller, 194 Ga. App. 55 (1) (390 SE2d 55) (1989). “This is for two reasons: (1) The litigant must have certain background information on the jurors and he can get it only by asking questions; and (2) if he cannot depend upon the truthfulness of the answer then he cannot be certain he is getting a fair, just and impartial trial as guaranteed by the Constitution. The juror must realize that in our system of jurisprudence it is just as important for him to be truthful on voir dire as it is for the witnesses in the case to tell the truth. If the witnesses do not tell the truth, the juror cannot give a fair and just verdict. It is no less important for the juror to be truthful in answer to voir dire questions than the witness on direct and cross-examination. If justice is to be blind, truth in the courtroom must never be doubted.” Pierce v. Altman, 147 Ga. App. 22, 23 (248 SE2d 34) (1978). “[Prospective jurors may be examined regarding their ‘relationship or acquaintance . . . with parties or counsel . . . and any fact or circumstance indicating any inclination, leaning or bias which the juror might have respecting the subject matter of the suit, or counsel or parties thereto.’ It has been held that the failure to respond is tantamount to giving an untruthful answer. [Cit.] The question of whether or not the defendant showed harm is not controlling.” First of Ga. Ins. Co. v. Worthington, 165 Ga. App. 303 (6) (299 SE2d 567) (1983).

Despite these principles, with which the trial court professes to agree, the court, relying on Firestone Tire &c. Co. v. King, 145 Ga. App. 840 (244 SE2d 905) (1978), determined that appellant made no showing of injury or bias; that a full response would have prompted her to strike the juror; or that an affirmative response would have provided a valid basis for challenge for cause. The court held that appellant was not denied the benefit of an impartial jury based on the juror’s “inadvertent” failure to respond to counsel’s questions and that the alleged misconduct did not rise to the level of juror misconduct which would require the grant of a new trial. In Firestone, a products liability case wherein plaintiff’s husband suffered brain damage, a prospective juror did not respond when asked whether any juror had a physical disability. During the trial, defendant’s counsel discovered that the juror had an artificial leg. The court denied counsel’s motion for a mistrial. In a post-trial affidavit, the juror indicated that she had not heard the question, that the loss of her leg, which had occurred 37 years earlier during a tornado, did not enter into her mind during deliberations and further that she did not consider herself to be disabled because she lived and worked with the artificial leg all of her adult life. This court concluded that because a response to the question would not have revealed a connection to the case at bar (citing Glover v. Maddox, 100 Ga. App. 262 (111 SE2d 164) (1959)) and based on appellant’s failure to make a showing of actual injury or bias, the motion for mistrial was properly overruled. The court cited no authority for the latter conclusion.

In Glover, the court declined to decide whether the juror’s response would have been cause for his dismissal or whether counsel would have disqualified the juror with a peremptory strike. “Whether he would have used such peremptory strike or would have permitted such juror to serve rather than some other person who he felt would not give him a fair trial presents no issue here, for under the Act of 1951 [OCGA § 15-12-133], the defendant had the right to the information and the right to make a choice with it.” (Emphasis supplied.) Id. at 266. Moreover, the juror’s false silence does not constitute harmless error in relationship to the ultimate verdict. Martin v. State, 168 Ga. App. 623 (2) (309 SE2d 899) (1983). “We cannot view the error so lightly. While we agree that if one ignores the valuable right of voir dire to effect the selection of an impartial jury, the developed facts show that the juror probably was ultimately fair in [his] decisions. However, we express more dedication to the concept of a trial by peers and of a [litigant’s] right to have jurors selected after exposure and explanation of all apparent defects developed by voir dire. Were we to [find harmless error], we would for all intents and purposes emasculate the concept of voir dire. The trial court or this court could determine the propriety or acceptability of a juror by weighing possible prejudice inherent in a juror’s defect. This would thus deprive the counsel of the right fully to explore a defect, waive it, challenge the juror for cause, or simply peremptorily challenge the suspect juror.” Id. at 625.

“A juror has a duty to ... be attentive to the questions and to speak up when he does not understand a question.” Falsetta v. State, 158 Ga. App. 392 (1) (280 SE2d 411) (1981). The record reveals that numerous other prospective jurors were attentive and responsive to counsel’s questions. Furthermore, the inquiry with regard to cancer comprises 16 pages of the trial transcript. The juror’s claim not to have heard “the question in view of all the conversation that transpired between counsel and the other jurors amounts to an admission that he was grossly inattentive to the whole voir dire process.” Id. at 393.

Decided July 9, 1992

Reconsideration denied July 23, 1992

The Keenan Ashman Firm, Don C. Keenan, David S. Bills, Jeffrey W. Lasky, Alfred L. Allgood, for appellant.

Forrester & Brim, Weymon H. Forrester, for appellees.

Based on the foregoing, we conclude the trial court erred in denying the motion for new trial.

2. Because this case must be reversed for the reasons set forth in Division 1, we need not reach the other enumerations of error.

Judgment reversed.

Sognier, C. J., and McMurray, P. J., concur.


text:
    A92A0559.
    A92A0560.
    PIEDMONT HOSPITAL, INC. v. DRAPER. GARRETT et al. v. DRAPER.
    (421 SE2d 543)
   Cooper, Judge.

This is a medical malpractice action resulting from knee reconstruction surgery performed by the appellant physicians on appellee. Within ten days of the expiration of the statute of limitation on appellee’s cause of action, appellee filed her complaint. Appellee did not file an expert affidavit with her complaint, but invoked the provisions of OCGA § 9-11-9.1 (b) and obtained the automatic 45-day extension within which to file the affidavit. At the end of the 45-day period, appellee filed an affidavit of a Dr. Hotchner in which Hotchner stated that the doctors Who performed appellee’s surgery negligently failed to inform her that the graft used to reconstruct her knee was not approved by the United States Food & Drug Administration for such reconstruction and that the graft may deteriorate and fail. The affidavit did not state that appellee’s injury was proximately caused by the surgical procedure as required by OCGA § 31-9-6.1 (d). Contemporaneously with Hotchner’s affidavit, appellee filed a motion entitled “Motion to Extend Time for Filing of Supplemental Physician Affidavit,” in which appellee stated that Hotchner could not determine the extent of appellee’s injury based on the available medical records; that Hotchner needed to perform exploratory surgery; that exploratory surgery could not be scheduled in time to file an affidavit; and that appellee requested an additional 60 days to file a supplemental affidavit to support her complaint. At the end of the 60-day period, and prior to a ruling on the motion, appellee filed an affidavit of a Dr. Kriegsman which substantively met the requirements of OCGA §§ 9-11-9.1 (a) and 31-9-6.1 (b). Kriegsman stated that the appellant physicians were negligent in failing to inform appellee about the graft and further stated that the physicians were negligent in using the graft on appellee and in attaching the graft with an improper screw. Although substantively Kriegsman’s affidavit met the statutory requirements, the commission of the notary who attested the affidavit had expired when the affidavit was executed. After the 60-day period, a hearing was held before the trial court on appellee’s motion. The trial court granted the 60-day extension, allowed Kriegsman’s affidavit to be filed and also granted an additional extension to allow appellee to obtain a properly notarized affidavit from Kriegsman. We granted appellants’ application for an interlocutory appeal. Although the appellants have filed two separate appeals, they raise parallel enumerations of error. Therefore, we will include the enumerations raised in both appeals in one discussion below.

1. Appellants first argue that the trial court’s order was not authorized by OCGA § 9-11-9.1. They contend that section (b) of the statute only grants authority to supplement the pleadings with an affidavit when one has not yet been filed, not the authority to supplement a previously filed affidavit. Further, they contend that the court’s order was an improper extension of the statute of limitation under OCGA § 9-11-9.1 (d); that the order contravenes the informed consent requirement of OCGA § 31-9-6.1; and that the order contravenes the specific requirements of OGGA § 9-11-9.1 (e) which state when the amendment of a complaint for failure to file an affidavit is proper. After giving due consideration to each of appellants’ arguments, we disagree, and conclude that the order of the trial court was authorized under OCGA § 9-11-9.1.

OCGA § 9-11-9.1 (b) provides that in cases filed within ten days of the expiration of the statute of limitation, if the plaintiff alleges that the affidavit could not be prepared because of the time constraints, “the plaintiff shall have 45 days after the filing of the complaint to supplement the pleadings with the affidavit. The trial court may, on motion, after hearing and for good cause extend such time as it shall determine justice requires.” We interpret appellee’s motion to be a motion for a “good cause” extension to supplement the pleadings with an affidavit under OCGA § 9-11-9.1 (b). We acknowledge that appellee captioned her motion as one to supplement the affidavit, not the pleadings; that in the motion, appellee limited her request to a supplementation of Hotchner’s affidavit; and that appellee ultimately filed another physician’s affidavit. However, appellee filed Kriegsman’s affidavit prior to a hearing on the matter, and at the hearing, appellee argued that she was in fact asking for a good cause extension under section (b) in which to file an affidavit and that Hotchner’s affidavit, together with her motion, were filed to show appellee’s good faith attempts at that point in time to comply with the statute. We, too, view appellee’s filing of Hotchner’s incomplete affidavit, contemporaneously with a motion to extend time to supplement, as an effort to show appellee’s good faith attempts at that point in time to comply with the statute. See Emory Clinic v. Wyatt, 200 Ga. App. 184 (3) (407 SE2d 135) (1991). Appellee’s arguments at the hearing further convince us that this is a situation covered under section (b) in which a plaintiff who has received the automatic 45-day extension appeals to the trial court for additional time in which to file the requisite affidavit. Our interpretation is not affected by the fact that the original motion referenced Hotchner’s affidavit and subsequently Kriegsman’s affidavit was filed or by the fact that Kriegsman’s affidavit recites acts of negligence not initially mentioned by Hotchner. If “good cause” were properly determined by the trial court, which is the issue raised in Division 2, then the filing of the new affidavit in its entirety was not prohibited by the statute. Since the extension requested by appellee is authorized by section (b), we discern no improper extension of the statute of limitation. Further, extensions granted pursuant to section (b) are specifically excepted from the amendment restrictions of section (e). Cheeley v. Henderson, 261 Ga. 498 (405 SE2d 865) (1991), cited by appellants, is specifically distinguishable because Cheeley was decided under sections (a) and (e) and does not involve a “good cause” extension under section (b).

2. Even though we have determined that appellee was not prohibited by the statute from obtaining an extension to file Kriegsman’s affidavit, we cannot fully affirm the trial court’s order unless the court properly determined that good cause existed for the requested extension. At the hearing, appellee argued that she was under Dr. Garrett’s care for much of the two-year limitation period; that she continued to experience difficulty with her knee after surgery; that Dr. Garrett never told her about the lack of approval of the graft used; that she went to another doctor who replaced the screw in her knee; that just before the limitation period expired she became aware of the problems with the graft and filed suit; that she contacted numerous physicians in the Atlanta area and in the southeast and none of the physicians would become involved because they knew Dr. Garrett personally; that within one week of the 45-day extension, she obtained an affidavit from Hotchner, a physician in California, who could not determine the extent of her injury without examining her; that appellee believed at that time that exploratory surgery was going to be necessary; that appellee then filed the incomplete affidavit together with the motion to extend; that she ultimately filed an affidavit from Kreigsman, another California physician, because he was willing to come to Atlanta to testify; that Kriegsman, too, had to examine appellee and that appellee wanted to insure that the physician providing the affidavit could testify at trial since appellee had to bear the expense for her examination in California; and that Kriegsman did not have to perform surgery, but he performed another procedure, which, together with his examination and the existing records, provided the basis for his affidavit. “Broad discretion is vested in the trial court to determine whether ‘good cause’ exists and what constitutes ‘good cause.’ [Cit.]” Emory Clinic, supra at 185. The determination of “good cause” is within the sound discretion of the trial court, and we will not reverse a decision of the trial court unless such discretion is manifestly abused. Brake v. Mintz, 193 Ga. App. 662, 665 (388 SE2d 715) (1989). After a review of the record, “ ‘[w]e find no manifest abuse of the trial court’s discretion in determining that appellee . . . demonstrated “good cause” for the grant of her motion to extend the time . . . .’ [Cit.]” Emory Clinic, supra at 186. “Actual execution of an expert affidavit is quite often the culmination of a long process wherein counsel reviews all of the records and refines the wording of the affidavit. Although it may now be argued by some, with the benefit of hindsight, that appellee’s counsel should have accelerated this process so as to have gained a greater margin of safety with regard to meeting the approaching deadline, the trial court was authorized to reject such an argument and to find the existence of a ‘good cause’ to extend the time for compliance with OCGA § 9-11-9.1.” Id.

We also find no abuse of discretion by the trial court in granting an extra several days to have Kriegsman’s affidavit properly notarized. Appellee’s counsel stated to the court that he was not present when the affidavit was notarized in California and he was surprised by the expiration of the commission and could offer no explanation for the expiration. Appellee’s counsel offered to inquire into it for the court and requested seven days to clear up the matter. Within that time, a properly notarized affidavit of Kriegsman was filed. Again, the court’s discretion to allow the additional time was not manifestly abused. Further, even though appellee ultimately relied on a proper affidavit to fulfill the filing requirement, we note that, in any event, the acts of de facto notaries are valid. Smith & Bondurant v. Meador, 74 Ga. 416 (2) (1885); Westley v. State, 143 Ga. App. 344 (1) (238 SE2d 701) (1977).

Judgments affirmed.

Sognier, C. J., and McMurray, P. J., concur.

Decided June 25, 1992

Reconsideration denied July 23, 1992.

Long, Weinberg, Ansley & Wheeler, Robert G. Tanner, Stephen H. Sparwath, Mark E. Robinson, for appellant (case no. A92A0559).

Allen & Peters, Hunter S. Allen, Jr., Dennis A. Elíseo, for appellants (case no. A92A0560).

Lamar, Archer & Cofrin, Robert C. Lamar, David W. Davenport, for appellee.


author: Pope, Judge.

text:
    A92A0564.
    PROGRESSIVE CASUALTY INSURANCE COMPANY v. BRYANT.
    (421 SE2d 329)
   Pope, Judge.

Plaintiff James R. Bryant was involved in a motor vehicle collision with a tractor trailer truck owned by a motor common carrier which was insured by defendant Progressive Casualty Insurance Company. Shortly after the collision defendant negotiated and paid plaintiff’s claim for property damage. Over one year after the collision, plaintiff filed an action against the driver of the truck praying for damages for personal injury. A default judgment was entered against the driver in the amount of $20,000. Although the driver attested that he notified his former employer, the named insured, of the suit, it is uncontested that defendant insurer was not notified of the suit until after plaintiff obtained the default judgment and wrote defendant asking it to pay the judgment.

Plaintiff filed an action to collect the judgment from defendant insurance company and defendant moved for summary judgment, arguing that pursuant to OCGA § 33-7-15 (b) it is not liable for the judgment because it was not notified of the action by either the insured or any third party. The trial court denied defendant’s motion for summary judgment and granted summary judgment to plaintiff. Defendant appeals.

The issue presented in this appeal is whether OCGA § 33-7-15 (b), relieving an insurer from liability for a judgment against its insured if the insurer was not timely notified of the lawsuit against the insured, applies to an insurer of a motor common carrier. We conclude it does not. OCGA § 33-7-15 applies to “vehicle liability insurance policies].” A policy of insurance issued to a motor common carrier in lieu of the security bond required for a certificate of public convenience and necessity, however, must be a “policy of indemnity insurance” as set forth by OCGA § 46-7-12 (d). It has long been held that the purpose of such insurance, like the purpose of the bond which is otherwise required, is not for the benefit of the insured but for the sole benefit of those who may have a cause of action for damages for the negligence of the motor common carrier. See, e.g., Great Amer. Indem. Co. v. Vickers, 183 Ga. 233 (188 SE 24) (1936). Such a policy is in the nature of a substitute surety bond and creates liability in the insurer regardless of the insured’s breach of the conditions of the policy. American Motorists Ins. Co. v. King Shrimp Co., 199 Ga. App. 847 (1) (406 SE2d 273) (1991). It is not a motor vehicle liability insurance policy of the type which is subject to provisions of OCGA § 33-7-15.

The purpose of motor carrier indemnity insurance is analogous to the purpose of automobile liability insurance under the assigned risk plan. In Young v. Allstate Ins. Co., 248 Ga. 350 (282 SE2d 115) (1981), the Georgia Supreme Court ruled that the failure of the insured to give notice of suit to the insurer under a policy issued pursuant to the assigned risk plan did not constitute a defense to the insurer’s liability because “the failure of the insured to comply with the policy provisions should not defeat the rights of those for whose benefit the law requiring the policy was enacted.” Id. at 350. The Young case involved a default judgment which was entered before the effective date of OCGA § 33-7-15 and addressed the failure of the insured to comply with policy provisions as opposed to the statutory notice rule. However, in a subsequent case in which we ruled that failure to give notice pursuant to the statute relieved the insurer of liability for a default judgment against the insured, the facts were distinguished from those in Young not only on the ground that the statute applied, but also on the ground that the rationale for holding the insurer liable is different in the case of the typical insurance policy issued for the protection of the insured than for a policy issued under a financial responsibility law enacted for the benefit of the public. Berryhill v. State Farm &c. Co., 174 Ga. App. 97 (329 SE2d 189) (1985). By the same reasoning, an insured under an indemnity policy issued to a common carrier in lieu of a bond should not be permitted to defeat the rights of those for whose benefit the law requiring such a policy was enacted.

This case is governed not by Berryhill, but by our holding in Seawheels, Inc. v. Bankers &c. Ins. Co., 175 Ga. App. 528 (333 SE2d 650) (1985), in which we ruled that the insurer of a motor common carrier was not relieved of its obligation to satisfy a judgment against its insured because the insured had failed to notify it of the wrongful death claim filed against the insured and its driver. Defendant argues Seawheels is distinguishable because, again, the action in that case was filed before the effective date of OCGA § 33-7-15. However, for the reasons set forth above and in Young v. Allstate, supra, we con-elude the provisions of OCGA § 33-7-15 do not apply to relieve defendant of its liability in this case. Contrary to defendant’s argument, this case is not governed by Southeastern Stages v. Gen. Fire & Cas. Co., 151 Ga. App. 487 (260 SE2d 399) (1979), in which the insurer was relieved of liability to reimburse the insured motor common carrier for the judgment entered against it in an action brought by the insured. Unlike the case now before us, it did not involve an action brought by the injured plaintiff to collect from the insurer a judgment obtained against the insured.

Decided July 1, 1992

Reconsideration denied July 23, 1992

Jeffrey W. Frazier, for appellant.

Westmoreland, Patterson & Moseley, Thomas W. Herman, for appellee.

Judgment affirmed.

Carley, C. J., and Johnson, J., concur.


text:
    A92A0681.
    In re JONES.
    (421 SE2d 538)
   Cooper, Judge.

In the first appearance of this case, In re Jones, 198 Ga. App. 228 (401 SE2d 278) (1990), we affirmed appellant’s contempt conviction on the condition that the trial court state whether it applied the reasonable doubt standard in issuing a criminal contempt citation against appellant. After the remittitur from this court was filed in the trial court, the trial judge entered an order setting forth that the reasonable doubt standard had been applied and that he had found the evidence to be sufficient under the reasonable doubt standard to hold appellant in criminal contempt of court. Appellant now appeals from the entry of that order.

Following the trial judge’s issuance of the criminal contempt citation, appellant, counsel for the plaintiff in a medical malpractice case, voluntarily dismissed the underlying case. The defendants in that case then filed a motion for assessment of attorney fees and costs of litigation pursuant to OCGA § 9-15-14 against appellant personally. Appellant filed a motion to recuse, and the trial judge denied appellant’s motion on the ground that the affidavit submitted in support of the motion was legally insufficient. In Houston v. Cavanagh, 199 Ga. App. 387 (405 SE2d 105) (1991), we reversed the trial court’s denial of appellant’s motion to recuse, holding that under the facts of that case, where the judge who found appellant in contempt was to hear the § 9-15-14 claim against appellant, then the defendant in the § 9-15-14 claim, the affidavit in support of the recusal was legally sufficient. Approximately three months after this court decided Houston, the trial judge entered the order which is the subject of this appeal.

Decided June 22, 1992

Reconsideration denied July 23, 1992

Jones, Brown, Brennan & Eastwood, Linda R. Greer, for appellant.

Taylor W. Jones, pro se.

1. The State has moved to dismiss the appeal on the grounds that the order is not a final order and the issues raised have already been decided. Appellant is not requesting that we determine whether the trial court properly applied the reasonable doubt standard. Rather, appellant questions the appropriateness of the trial court’s entry of any order in light of this court’s decision in Houston. We find that this issue is properly reviewable. Accordingly, we deny the motion to dismiss.

2. In two enumerations of error, appellant contends that the trial court erred in entering the order pursuant to our direction in Jones, after the decision in Houston, reversing the trial court’s denial of appellant’s motion to recuse. Appellant also argues that Houston is inconsistent with Jones. We disagree with appellant. The entry of the order by the trial judge pursuant to our direction that the court state whether it applied the reasonable doubt standard did not require the trial judge to preside over any hearing or exercise any judicial discretion. It only required that the trial judge perfect the record by indicating whether he had applied the correct standard during an earlier hearing. We do not find that Houston barred the trial judge from answering the question we posed in Jones or that Houston is inconsistent with Jones. Houston expressly restricted the holding to the facts of that case, which involved only whether the trial judge should be recused from hearing the § 9-15-14 claim. Furthermore, it is clear from Houston that at the time Houston was decided, this court was aware of Jones and the direction given to the trial judge. One of the pivotal facts in Houston was that the trial judge to whom the motion to recuse was directed had earlier found appellant to be in direct criminal contempt of court. In Houston, the result was “necessary to maintain the confidence of the bar and the citizens of this state in the absolute integrity of the judicial system.” Houston, supra at 389. Accordingly, we find no error with the trial court’s entry of the order stating that the correct standard was applied in appellant’s contempt case.

Judgment affirmed.

Sognier, C. J., and McMurray, P. J., concur.

Lewis R. Slaton, District Attorney, Richard E. Hicks, Carl P. Greenberg, Assistant District Attorneys, for appellee.


text:
    A92A0687.
    HOLMES v. THE STATE.
    (421 SE2d 311)
   Cooper, Judge.

Appellant was convicted by a jury of armed robbery and aggravated assault. He appeals from the judgment and sentence entered on the jury verdict and from the denial of his motion for new trial.

The evidence adduced at trial shows that the victim worked the night shift at a Burger King Restaurant where appellant was employed to clean the restaurant after it closed. The victim was alone in the restaurant as he prepared to leave after closing the restaurant. After the victim had locked all of the doors, he heard the door to the restaurant open and assumed that it was appellant coming in to clean the restaurant. The victim felt a hand on his back which he thought was appellant’s hand, but when the victim turned around, he faced a man wearing a pillowcase mask and socks on his hands. The victim testified that he could see between the cuts made in the pillowcase and that he recognized the person underneath as appellant by his voice and because of a peculiar feature of appellant’s eyes. The man put a knife to the victim’s stomach, forced the victim to open the safe and then told the victim to lie on the floor. The man took the money from the safe, but was apparently disappointed about the amount of money in the safe and told the victim to show him the day’s receipts. The man snatched the victim off the floor and in the process dropped the knife. The victim attempted to escape; a struggle ensued, and the victim was cut on the arm. The victim was then able to escape, and the man left the restaurant and ran in the direction where appellant lived. As the man ran away, the victim saw him hitch up his pants in a manner similar to the way appellant frequently hitched up his pants. The victim then called the police, and when they arrived, the victim told them that appellant had committed the robbery. A short time later appellant was arrested and brought back to the restaurant where the victim identified appellant as the robber. A footprint was taken from the crime scene which matched appellant’s, and the mask and socks worn by the robber were found on a path leading from the scene of the crime to appellant’s residence. A knife was found during a search of appellant’s room at a boarding house, and a sum of currency was found in a trash bag outside appellant’s room.

1. Appellant first contends that the trial court erred in its recharge to the jury on aggravated assault. In his recharge, the trial judge first instructed the jury on simple assault in accordance with OCGA § 16-5-20 (a). The judge then stated: “A person commits aggravated assault when he does that (referring back to the charge on simple assault) or when he assaults (repeating, and now using the term ‘assault’ in place of ‘that’) another person with a deadly weapon, which when used offensively against a person is likely to or actually does result in serious bodily injury.” (Emphasis and parenthetical remarks added.) In complaining of the charge, appellant places emphasis on the word “or” and argues that the recharge authorized a finding of guilt of aggravated assault based upon a finding of simple assault. “In determining whether the recharge contained error, it is fundamental that we must look at not only the recharge but the original charge as well, as jury instructions must be read and considered as a whole in determining whether the charges contain error. [Cit.]” Taylor v. State, 195 Ga. App. 314 (1) (393 SE2d 690) (1990). Viewing the charge as a whole, we do not find that the recharge would mislead a jury of average intelligence. Taylor, supra at 315.

2. Appellant contends that the trial court erred in not finding that the aggravated assault conviction merged with the armed robbery conviction. “ ‘ “(O)ffenses merge as a matter of fact pursuant to OCGA § 16-1-6 (1) if one of them is established by proof of the same or less than all the facts required to prove the other.” [Cit.]’ [Cit.]” Sweet v. State, 196 Ga. App. 451 (1) (396 SE2d 82) (1990). The evidence reflects that appellant forced the victim at knifepoint to open the safe and that after taking the money from the safe, appellant cut the victim during the victim’s attempt to escape. Since the act which constituted the offense of armed robbery was proved without any reference to the act which constituted the aggravated assault, no merger occurred. See Sweet, supra.

3. In his third enumeration of error appellant contends that his trial counsel was ineffective. At the hearing on appellant’s motion for new trial, appellant cited the following instances of ineffectiveness: trial counsel’s failure to adequately cross-examine the victim with respect to the defect he noticed in appellant’s eye, the failure to account for appellant’s key to the restaurant, the failure to locate witnesses to support appellant’s alibi defense, the failure to find missing portions of the stolen money, and the failure to impeach the victim’s positive identification of the knife used during the robbery. “ ‘ “In order to prevail on an ineffectiveness claim, a convicted defendant must show (1) ‘that counsel’s performance was deficient,’ i.e., that counsel’s performance was not reasonable under all the circumstances, and (2) that this ‘deficient performance prejudiced the defense,’ i.e., that ‘there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ (Cit.) ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ (Cit.) The complaining defendant must make both showings. His failure ‘to establish either the performance or the prejudice component results in denial of his Sixth Amendment claim.’ (Cit.)” ’ [Cit.]” Ponder v. State, 201 Ga. App. 388 (1) (411 SE2d 119) (1991). Our review of the transcript from that hearing reveals that the purported deficiencies were part of a conscious and deliberate trial strategy, and there was no showing made that appellant’s trial counsel’s performance was deficient in any way or that but for counsel’s alleged errors the outcome of the trial would have been different. Moreover, given the totality of the evidence against appellant, we conclude that appellant’s motion for new trial on the ground of ineffective assistance of counsel was properly denied. Ponder, supra at 390.

Decided June 26, 1992

Reconsideration denied July 23, 1992

Lenzer & Lenzer, Thomas P. Lenzer, Robert W. Lenzer, for appellant.

Thomas C. Lawler III, District Attorney, Debra K. Turner, Assistant District Attorney, for appellee.

4. In his final enumeration of error, appellant contends that the trial court erred in ordering appellant to reimburse the county for the services of his court appointed attorney without first conducting a hearing as to appellant’s ability to pay for the services. We agree with appellant and hereby vacate that portion of the sentence. Owens v. State, 187 Ga. App. 262 (1) (369 SE2d 919) (1988).

Judgment of conviction is affirmed.

Sentence vacated in part. Sognier, C. J., and McMurray, P. J., concur.


author: Birdsong, Presiding Judge. Beasley, Judge,

text:
    A92A0023.
    RE-MAX EXECUTIVES, INC. et al. v. WALLACE et al.
    (421 SE2d 540)
   Birdsong, Presiding Judge.

This is a suit for commissions owed for breach of a real estate sales contract. Appellants Re-Max Executives, Inc. and Re-Max North Suburban, Inc. prayed for commissions due in the amount of $10,423 and “reasonable attorney fees and expenses of bringing this litigation.” By order of April 16, 1991, the trial court considered appellants’ arguments and appellees’ counter arguments and awarded summary judgment to plaintiffs. The trial court entitled this ruling thusly: “Final Order.” In this “Final Order,” the trial court awarded judgment to appellants as a matter of law in the amount of $10,423 “as a brokerage commission due to them.” The order did not award attorney fees. Appellants Re-Max did not timely appeal the judgment, or otherwise take exception to it.

However, 50 days later, on June 5, 1991, appellants filed a pleading called “Motion for Attorney Fees,” in which they asserted that defendants had no valid defense and that no bona fide controversy existed, and that defendants had put appellants to unnecessary litigation and expense. The motion also averred that defendants/appellees took positions as to which there existed such a complete absence of justiciable issue of law or fact that it could not be reasonably believed that a court would accept the defenses, and that appellees’ counterclaims lacked substantial justification and were interposed for purposes of delay, and that the summary judgment was a ruling that appellees’ counterclaims and defenses were without merit and legal foundation.

Thereupon, appellants prayed for reasonable attorney fees and expenses under OCGA §§ 13-6-11 and 9-15-14. The denial of this motion is the subject of this appeal. Held:

1. Plaintiffs/appellants sought summary judgment “on the entire case and as to each and every issue between plaintiffs and defendants.” The trial court failed to grant attorney fees for bad faith in the transaction or stubborn litigiousness under OCGA § 13-6-11, when it granted summary judgment to plaintiff in an order entitled “Final Order,” and neither was that issue reserved for trial. The trial court’s “Final Order” provides: “Therefore, there existing no genuine issue of material fact, it is hereby ordered and adjudged that plaintiffs’ motion for summary judgment is, and the same shall be granted. Plaintiffs are entitled to a judgment as a matter of law against defendants in the amount of $10,423 as a brokerage commission due to them under the August 19, 1989 sales contract. So ordered.” This judgment was not appealed and neither did appellants seek a clarification of the “Final Order” within the time for appeal. Defendants then filed a “Motion for Attorney Fees.”

The trial court denied appellants’ “Motion for Attorney Fees” on grounds that the motion was not filed within 30 days of the “Final Order” granting summary judgment for commissions. This can only be construed as a confirmation that the “Final Order” was indeed intended to be “final”; otherwise, we thwart the intention of the trial judge which is clear on the face of the “Final Order.” See Nodvin v. West, 197 Ga. App. 92, 94 (397 SE2d 581). What appellants failed to do “within 30 days” was file an appeal or other proper exception to the “Final Order” for its failure to award attorney fees under OCGA § 13-6-11. Appellants reasonably inferred that the trial court’s failure to award defendants/appellees any damages on their counterclaims for fraud was a final determination and thereupon made a motion for “frivolous litigation” attorney fees (see OCGA § 9-15-14 (e)), so no reason appears why appellants would inconsistently contend that the award to them of $10,423 without any award of attorney fees for bad faith was not likewise final, where the trial judge clearly held the judgment was the “Final Order.”

The trial court’s order granting summary judgment to appellants for commissions due was a final judgment within the meaning of OCGA § 9-11-54 (b) because the trial court designated it as such. See Cherry v. Hersch, 193 Ga. App. 471, 472 (388 SE2d 64). It is clear the trial court in granting summary judgment to appellants for commissions due intended this “Final Order” to be the “final outcome” of the suit (see Martin v. Farrington, 179 Ga. App. 227 (346 SE2d 5)); it did not intend to issue an interlocutory order and did not intend to reserve or defer the issue of attorney fees under OCGA § 13-6-11 (see, e.g., Henderson v. Smith, 177 Ga. App. 89, 90 (338 SE2d 520)), but simply did not award any. It was a “final” judgment on all the claims; therefore, it was not necessary for the trial court to issue a certificate of appealability as provided in OCGA § 9-11-54 (b). It was not a judgment as to fewer than all claims or parties under the plain terms of the statute. We will not presume the trial judge did not know the meaning and the full import of the word “final” which she carefully attached to this judgment or that she did so accidentally, since this language has a particular and preeminent significance in connection with a summary judgment and with appealability of judgments. Id. OCGA § 5-6-34 (a) (1) provides: “Appeals may be taken to the Supreme Court and the Court of Appeals from the following judgments and rulings of the superior courts, the constitutional city courts, and such other courts or tribunals from which appeals are authorized by the Constitution and laws of this state: (1) All final judgments. . . .” (Emphasis supplied.) In common parlance, a “final” judgment or order is directly appealable by statute. In fact, the trial judge could not have meant anything else by deliberately attaching the words “Final Order” to the judgment. See Cherry, supra. We will not assume the use of the word attached to this grant of summary judgment of the plaintiffs on their cause of action and finding defendant’s counterclaims to be meritless was a frivolous gesture or a meaningless act.

Cases where we have said that a judgment is not final “absent an express determination that there exists no just cause for delay,” pursuant to OCGA § 9-11-54 (b), are not cases where the trial judge has specifically designated the judgment as “final.” See, e.g., Johnson v. Hosp. Corp. of America, 192 Ga. App. 628 (385 SE2d 731), cert. den. 192 Ga. App. 902; Spivey v. Rogers, 167 Ga. App. 729 (307 SE2d 677); Davis v. Roper, 119 Ga. App. 442 (167 SE2d 685); see also Wise v. Ga. State Bd. for Exam. &c., 244 Ga. 449 (260 SE2d 477); Patterson v. Professional Resources, 242 Ga. 459 (249 SE2d 248). Since appellants did not take exception to the “Final Order” for failing to award attorney fees or timely appeal within 30 days (OCGA § 5-6-34), the grant of summary judgment without attorney fees became final as to all claims and the prayer for attorney fees in the complaint expired where it fell, abandoned by appellants.

2. In addition to attorney fees under OCGA § 13-6-11, plaintiffs after judgment sought attorney fees under OCGA § 9-15-14 for frivolous litigation. A claim under OCGA § 9-15-14 (id., subsection (e)) may be sought within 45 days after judgment. Appellants’ motion for attorney fees filed 50 days after judgment was therefore too late.

Appellants’ motion for attorney fees under both OCGA §§ 13-6-11 and 9-15-14 was properly denied.

Judgment affirmed.

Sognier, C. J., McMurray, P. J., Carley, P. J., Pope, Cooper, Andrews and Johnson, JJ., concur. Beasley, J., dissents.

Beasley, Judge,

dissenting.

Although I concur in the opinion that attorney fees under OCGA § 9-15-14 were not entertainable because sought too late, I do not concur that the claim under OCGA § 13-6-11 had fallen earlier.

In their complaint, plaintiffs demanded, as separate damages, judgment for “[t]heir reasonable attorney’s fees and expenses of litigation.” The jury may award such if specially pleaded and prayed for, which plaintiffs did, and where one of the three grounds is proved, which plaintiffs have not yet had an opportunity to do.

After discovery, plaintiffs moved for summary judgment to the degree it was entitled to, either total or partial. See OCGA § 9-11-56 (c) and (d). Only partial summary judgment was possible because, as provided by OCGA § 13-6-11, defendant is entitled to a jury trial on the issue of attorney fees and expenses. Brannon Enterprises v. Deaton, 159 Ga. App. 685, 687 (285 SE2d 58) (1981). Recognition of this is borne out by the court’s order on summary judgment, which did not address the issue. The court could have done so, to the extent that it could have ruled that plaintiffs were not entitled to attorney fees and expenses as a matter of law. City of Marietta v. Holland, 252 Ga. 299, 304 (314 SE2d 97) (1984). Cf. Rivergate Corp. v. BCCP Enterprises, 198 Ga. App. 761 (2) (403 SE2d 65) (1991). But it did not do so. There is no finding that the evidence precluded such an award. Nor did defendants seek summary judgment on the' issue, on this or any other basis.

The issue remained unresolved. This is confirmed by the later order on the motion raising the attorney fees and expenses issue, wherein the court denied it for untimeliness rather than on the basis that it had already been ruled on in the order which was “Final” with respect to the issues then adjudicated. At that time there was no basis to appeal the OCGA § 13-6-11 question because there was not yet a ruling on it.

Decided June 24, 1992

Reconsideration denied July 27, 1992.

Brant Jackson, Jr., for appellants.

Johnson & Montgomery, Harry W. MacDougald, for appellees.

The majority reads the “Final Order” as a final judgment “within the meaning of OCGA § 9-11-54 (b),” but that proves the point. Such orders are entered when “one or more but fewer than all of the claims or parties” are adjudicated. As is the case here with respect to claims, that was the case in Cherry v. Hersch, 193 Ga. App. 471 (388 SE2d 64) (1989), cited by the majority, with respect to parties.

I am unaware of any requirement that the pending issue had to be pursued within 30 days, the failure of which action was given as the reason for denial. The order relating to OCGA § 13-6-11 should be reversed and the case remanded for disposition of this one remaining issue.


author: Sognier, Chief Judge.

text:
    A92A0103.
    A92A0104.
    CINCINNATI INSURANCE COMPANY v. REYBITZ. STEWART et al. v. REYBITZ.
    (421 SE2d 767)
   Sognier, Chief Judge.

Konrad Reybitz brought suit against Deborah and Mark Stewart and the Stewarts’ automobile insurance carrier, Cincinnati Insurance Company. In Counts 1 and 2, Reybitz sought to recover from the Stewarts damages for injuries he incurred when Deborah Stewart, while driving a vehicle owned by Mark Stewart, allegedly struck Reybitz as he bicycled down a public street. In Count 3, Reybitz sought to recover from Cincinnati the personal injury protection (PIP) benefits he claimed pursuant to former OCGA § 33-34-7 (a) (3) as a pedestrian under the Stewarts’ policy, statutory penalties, and penalties for bad faith failure to pay insurance proceeds. The trial court denied the defendants’ motion to bifurcate the claims, and the case proceeded to trial. The jury returned a verdict against the Stewarts for $75,000 in actual damages and $75,000 in punitive damages. The jury returned a verdict against Cincinnati for $4,304 in PIP benefits, $5,380 in statutory penalties, $33,500 in attorney fees, and $750,000 in punitive damages. The appeals by the Stewarts and Cincinnati are consolidated in this opinion.

At trial appellee testified that he was bicycling near the roadside edge of the right lane of a four lane road in Cobb County when Ms. Stewart, driving a red Jeep Cherokee, moved into his lane as the road curved sharply heading downhill. Appellee testified that he was travelling 15 to 20 miles per hour and braking only slightly when the Jeep moved entirely into his lane. He testified that the right rear quarter of the vehicle hit his left shoulder with such force that the side of the Jeep momentarily dented and then popped out. Statements appellee made indicated that as a result of the contact, his bicycle was knocked out from under him and he flew through the air then slid on his arms a total of approximately 40 yards. Appellee suffered abrasions and a torn rotator cuff in his left shoulder as a result of his fall. Evidence was adduced that appellee’s medical bills totalled under $4,000; that surgery to repair the slow-healing rotator cuff could cost around $7,000; and that the damage to appellee’s bicycle was repaired for $57.29.

Ms. Stewart testified that when she passed appellee, her vehicle was mostly in the inside lane with only the right wheels in appellee’s lane. She stated she cleared him on the curve and moved into his lane ahead of him and that when she was three or four car lengths past him she looked in her car mirror and saw that he had fallen. She stated that she did not hear or feel any contact between her vehicle and appellee. Cynthia Milum, a motorist who stopped to offer help to appellee, testified that he declined her offer to telephone for an ambulance and asked her instead to get the license plate number of the Jeep. Milum testified that after she pursued Ms. Stewart and got the number, she informed Ms. Stewart that appellee claimed she had hit him and that Ms. Stewart denied having done so. The evidence conflicted whether Milum told Ms. Stewart that she should return to the scene of appellee’s fall, but it is uncontroverted that she did not return.

There were no eyewitnesses to the incident although Betty Weaver, who worked at an office building near the scene, testified that after she heard tires screeching, she looked out her window to see a red vehicle ahead of the bicyclist, who was airborne at the time. Evidence regarding the condition of the road at the sharp curve where the incident occurred was conflicting, as was the testimony whether appellee’s description of his fall was more consistent with being sideswiped by a 3,000 pound vehicle than with losing control of the bicycle because of contact with debris or pavement ripples on the road.

1. Appellants in both appeals contend that the trial court erred by denying their joint motion to bifurcate the trial of appellee’s negligence claim against the Stewarts from the trial of the PIP claim against Cincinnati.

The Stewarts contend that the jury’s consideration of appellee’s negligence claim against them was prejudiced by the joinder of the claims against their insurance carrier, the result of which was to authorize the introduction of matters irrelevant to the negligence claim, such as the PIP benefits portion of the Stewarts’ policy (thereby indicating to the jury that the Stewarts possessed liability coverage) and the particulars of Cincinnati’s investigations into the claim, including an internal evaluation by a Cincinnati representative of the credibility of Ms. Stewart and appellee as witnesses.

The law of this State clearly supports the Stewarts’ position that the admission of this evidence was reversible error. “ ‘In an ordinary negligence case, not only is a liability insurance policy of a litigant not admissible in evidence, but disclosure to the jury of the mere existence of such contract is ground for a mistrial. (Cits.)’ [Cit.] This principle is operative not only with reference to liability insurance but also with regard to no fault coverage. [Cits.]” Moore v. Price, 158 Ga. App. 566, 567 (281 SE2d 269) (1981). “We have repeatedly adhered to the rule that evidence of insurance coverage is so prejudicial by nature that it should not be admitted unless it is clearly relevant and, as with any generally prejudicial evidence, in determining its admissibility, the trial court should not admit it unless its relevance outweighs its prejudice. The prejudice lies in the infectious nature of collateral source evidence, contaminating as it does the issue of loss with the issues of injury and liability. [Cit.] Such evidence is prejudicial because by its nature its effect is not self-limiting, but it laps over into other considerations.” Collins v. Davis, 186 Ga. App. 192, 193 (366 SE2d 769) (1988). The Supreme Court has recently reaffirmed the general principle that evidence of a collateral source such as insurance coverage is inherently prejudicial and readily subject to misuse by juries. Denton v. Con-Way Southern Express, 261 Ga. 41, 42-43 (402 SE2d 269) (1991) (addressed constitutional challenge to OCGA § 51-12-1 (b)).

(a) The primary reason set forth by the trial court for joining appellee’s claims despite the prejudice to the Stewarts presented by the admission of insurance coverage evidence was that because appellee claimed to be entitled to PIP benefits as a “pedestrian struck by” Ms. Stewart, see former OCGA § 33-34-2 (5), appellee was authorized under former OCGA § 33-34-6 (b) to bring an action against Cincinnati directly to recover the benefits. Based on the fact that appellee could bring direct actions against both the Stewarts (for the negligence claim) and Cincinnati (for the PIP benefits), the trial court determined that OCGA § 9-11-20 (a) applied and authorized joinder of the two actions because the claims against appellants arose out of the same occurrence and shared the common question of fact as to whether appellee had indeed been struck by Ms. Stewart.

» The trial court analogized this situation to the joinder in OCGA §§ 46-7-12 (e) and 46-7-58 (e) .of a motor carrier and its insurer in a suit by an injured plaintiff, as discussed in Continental Ins. Co. v. Mercer, 130 Ga. App. 339, 340 (1) (203 SE2d 297) (1973) (citing former Ga. Code Ann. § 68-612). Both OCGA §§ 46-7-12 (e) and 46-7-58 (e) expressly provide in identical language that “it shall be permissible to join the motor carrier and the insurance carrier in the same action.” In the recent opinion in Grissom v. Gleason, 262 Ga. 374 (418 SE2d 27) (1992), involving an equal protection challenge to OCGA § 46-7-12 (e), the Supreme Court acknowledged that the statute results in “disparate” and “differential” treatment of motor carriers from “other insured defendants,” and upheld the constitutionality of the statute authorizing joinder of motor carriers and their insurers only after determining that the provision “is based on a rational distinction directly related to the purpose of the Motor Carrier Act.” Id. at 377 (3).

There is no explicit language in the 1974 version of the Georgia Motor Vehicle Accident Reparations Act (former OCGA § 33-34-1 et seq., hereinafter “the Act”) comparable to the joinder provision in OCGA §§ 46-7-12 (e) and 46-7-58 (e). It does not follow from the fact that a pedestrian struck by an insured may bring actions against both the insured and the insured’s no-fault carrier that joinder is proper absent a statutory provision restricting such joinder. Rather, because joinder in these circumstances results in the “differential treatment” of defendants with no-fault insurance from other insured defendants, see Grissom, supra, we conclude that in the absence of an express statutory provision authorizing the joinder of the pedestrian’s negligence claim against the insured with the claim against the insurer for failure to pay PIP benefits, such joinder is not permitted.

The admission of evidence of no-fault insurance coverage is inherently prejudicial in a negligence action against the insured; Denton; Collins; Moore, supra. Prejudice to the parties is one of the statutory grounds for severance. OCGA § 9-11-42 (b); see Atlanta Air Fleet v. Ins. Co. of N. A., 130 Ga. App. 15, 16 (2) (202 SE2d 192) (1973); see also Plaza Pontiac v. Shaw, 158 Ga. App. 799, 800 (1) (282 SE2d 383) (1981) (admission of prejudicial evidence is sufficient to trigger the authority granted by OCGA § 9-11-42 (b) to order a separate trial). In Chupp v. Henderson, 134 Ga. App. 808 (216 SE2d 366) (1975), a case in which the liability of an alleged reckless driver was asserted together with a claim against the driver’s employer for negligent entrustment, we noted that evidence “essential” to support punitive damages for the negligent entrustment claim would be “irrelevant and prejudicial in the resolution of the issues [regarding the driver’s liability].” Thus, we held that “[t]he obvious solution to the problem is a separate trial of issues presented in [the count against the driver] from those presented in [the negligent entrustment counts], pursuant to [OCGA § 9-11-42 (b)].” Id. at 811 (2).

A comparable situation is presented in the case sub judice. Evidence of the policy providing no-fault benefits to a pedestrian struck by an insured as well as evidence regarding the action taken and the matters considered by the insurer in assessing the pedestrian’s claim are essential to establish a claim by the pedestrian for PIP benefits and bad faith penalties for failure to pay the claim. See generally Hufstetler v. Intl. Indem. Co., 183 Ga. App. 606, 608-609 (359 SE2d 399) (1987). This evidence, however, is irrelevant and prejudicial to the just resolution of issues regarding the insured’s liability for striking the pedestrian. Denton; Collins; Moore, supra. We agree with appellants that the obvious, and only, solution to the problem was to separate trial of these issues upon proper objection by the parties to the joinder. See Sollek v. Laseter, 124 Ga. App. 131 (183 SE2d 86) (1971).

We do not agree with the trial court that its order joining appellee’s claims against appellants is condoned by our holding in Miller v. Spicer, 147 Ga. App. 759 (250 SE2d 492) (1978), a no-fault case with a similar procedural setting in which the insured and insurer were tried together as defendants. No objection to the joinder was raised on appeal and in our opinion we neither approved nor disapproved of the joinder. While Miller arguably stands for the proposition that the parties can waive separate trials and all objections to the admission of insurance coverage evidence, nothing in the holding in Miller suggests that joinder of insured and no-fault insurance carrier as defendants is proper where objection has been made. As we noted in Collins, supra, “we resist any inference that a [holding] in a particular case indicates a loosening of [the] general rule [that evidence of insurance is inadmissible].” Id. at 194.

(b) The trial court expressly noted that it was exercising its discretion in denying the motion and joining the issues and that such discretion “will not be controlled on appeal unless it can be illustrated how the rights of a complaining party have been adversely affected by the trial court’s action. [Cits.]” McGowan v. North Ga. Prod. Credit Assn., 246 Ga. 135, 136 (1) (269 SE2d 25) (1980). We find the adverse effect on the Stewarts of the trial court’s denial of their motion to bifurcate is amply illustrated by a review of the testimony at trial, the documents published to the jury, the actual damages adduced by appellee, and the verdict returned by the jury. Accordingly, we conclude that the trial court abused its discretion by denying the motion to bifurcate appellee’s claims.

(c) We do not agree with the trial court that joinder of these claims was justified on the grounds of judicial economy. While we are cognizant of the benefits of judicial economy and note that the trial court correctly recognized that one purpose of the no-fault law is to resolve claims quickly and to eliminate wasteful litigation, Teasley v. Mathis, 243 Ga. 561, 563 (1) (255 SE2d 57) (1979), although a court may exercise its inherent discretion to resolve matters in the interest of judicial economy, Cheeley v. Henderson, 261 Ga. 498, 501 (405 SE2d 865) (1991), the goal of judicial economy cannot justify sacrificing the rights of the parties. Pizza Hut of America v. Kesler, 254 Ga. 360 (2) (329 SE2d 133) (1985). Given the prejudicial nature of the evidence admitted during the trial of appellee’s negligence claim against the Stewarts, see Denton, supra, we do not agree with the trial court that judicial economy warranted joinder of appellee’s claims against appellants.

(d) The trial court also based its denial of the motion to bifurcate on the applicability of OCGA § 51-12-1 (b), which provides that evidence of collateral sources “shall be admissible for consideration by the trier of fact.” This statute was held unconstitutional by a plurality of the Supreme Court in Denton, supra. (Smith, P. J., Benham, J., and Judge Hugh D. Sosebee, Sr. held the statute violated the equal protection clause of the Georgia Constitution; Fletcher, J., joined by Judge Thomas Pope, concurred on the basis that the statute was unconstitutionally vague.) In Grissom, supra, which addressed a constitutional challenge to OCGA § 46-7-12 (e) (authorizing joinder of motor common carrier and its insurer in same action by plaintiff having cause of action under OCGA § 46-7-1 et seq.), the Supreme Court disapproved Denton “to the extent that it suggests a new equal protection analysis. . . . [T]he Denton decision is an aberration in this court’s interpretation of the equal protection provision.” Grissom, supra at 376 (2). The Grissom court did not expressly overrule the holding in Denton regarding the constitutionality of OCGA § 51-12-1, and based on the language employed by the Supreme Court in Grissom regarding its disapproval of Denton, we conclude that the holding in Denton is still the law of this State, even if the analysis suggested therein is not. Accordingly, the trial court erred by basing its denial of the motion to bifurcate on the applicability of OCGA § 51-12-1 (b), which was held unconstitutional in Denton, supra.

(e) We find no merit in appellee’s argument that appellants waived their right to object to the denial of the motion and the admission of the insurance evidence because they did not object to evidence as it was introduced at trial. Appellants preserved their objection by moving to bifurcate on the specific basis that a joint trial would introduce evidence of insurance relevant to the PIP claim but irrelevant and prejudicial to the negligence claim. Once the motion was denied, any objection to the admission of the insurance coverage evidence at trial would have been futile because the relevancy of that evidence for the PIP claim was uncontroverted. Compare Hightower v. McIntyre, 170 Ga. App. 269-270 (1) (316 SE2d 849) (1984).

(f) Because Cincinnati’s liability on appellee’s no-fault claim is contingent upon a determination that Ms. Stewart struck appellee so as to place him within the statutory definition of a pedestrian so as to invoke coverage under the policy Cincinnati issued the Stewarts, and given our holding that the admission of the prejudicial insurance evidence may have contaminated the jury’s determination of Ms. Stewart’s liability, we do not agree with appellee’s argument that the denial of the motion to bifurcate did not adversely affect Cincinnati. Accordingly, the trial court erred by denying the motion to bifurcate in regard to Cincinnati.

(g) Therefore, because the trial court erred by denying appellants’ motion to bifurcate, the judgment entered against the Stewarts and Cincinnati is reversed.

2. Since the issue may arise upon retrial, we address the Stewarts’ contention that the trial court erred by denying their motion in limine as to certain opinion testimony of witnesses Betty Weaver and Gregory Whitaker, the police officer who investigated the alleged hit and run, regarding their opinions of the cause of appellee’s fall. Assuming the testimony of these witnesses is substantially the same upon retrial, we find no error in admitting the testimony of Weaver who, as a lay witness, is permitted to give her opinion as to the cause of appellee’s fall after she fully describes her own observations of the incident. Avant Trucking Co. v. Stallion, 159 Ga. App. 198, 200 (1) (283 SE2d 7) (1981); Dual S. Enterprises v. Webb, 138 Ga. App. 810, 811-812 (2) (227 SE2d 418) (1976).

As to Whitaker, however, the transcript reveals that he testified that by the time he arrived on the scene of the accident, the witnesses had left, the bicycle had been moved, and no physical evidence existed to be examined. His examination of appellee’s bicycle, which had been placed in a police vehicle, showed no sign of contact with or paint transfer from a vehicle. Whitaker was allowed to testify that he believed a hit and run had occurred, but the transcript reveals that his opinion was based on hearsay statements by a police officer at the scene, a telephone conversation he had with Milum during his investigation, and a statement Whitaker obtained from appellee at the hospital. Even assuming, arguendo, that Whitaker was qualified as an expert, his testimony established that the opinion he gave was based almost exclusively on hearsay statements that were not part of the res gestae. The admission of the challenged testimony was error. Haynes v. Huff, 165 Ga. App. 192 (299 SE2d 902) (1983); Avant Trucking, supra. Compare Quality Rental Co. v. Grier, 187 Ga. App. 5, 6 (3) (369 SE2d 276) (1988).

Decided July 16, 1992

Reconsideration denied July 27, 1992.

Alston & Bird, G. Conley Ingram, Nancy Glenn, for appellant (case no. A92A0103).

Goodman, McGuffey, Aust & Lindsey, William S. Goodman, Kathryn A. Cater, for appellants (case no. A92A0104).

William R. Waldrop, for appellee.

3. Our reversal of the judgment renders it unnecessary for us to address appellants’ remaining enumerations of error.

Judgment reversed.

McMurray, P. J., and Cooper, J., concur.

       The accident in issue occurred on March 30, 1988, and thus resolution of this appeal involves the 1974 version of the Georgia Motor Vehicle Accident Reparations Act, former OCGA § 33-34-1 et seq., repealed effective October 1, 1991. Ga. L. 1991, p. 1608.

       The Supreme Court in Grissom v. Gleason, 262 Ga. 374 (418 SE2d 27) (1992) recently disapproved Denton v. Con-Way Southern Express, 261 Ga. 41 (402 SE2d 269) (1991) to the extent that it suggests a new equal protection analysis. Grissom, supra at 376 (2). See Division 1 (d), infra.

       We note that in the interest of judicial economy, to avoid repeating the evidence common to both claims, the same jury could decide both the negligence phase of the trial and the no-fault phase. See Southern Guar. Ins. Co. v. Nixon, 194 Ga. App. 398, 399-400 (1) (390 SE2d 638) (1990).


author: Andrews, Judge.

text:
    A92A0200.
    DUNCAN v. THE STATE.
    (421 SE2d 336)
   Andrews, Judge.

Duncan was tried and convicted of operating a motor vehicle after having been declared an habitual violator and of driving under the influence of alcohol and appeals.

1. In his first enumeration, Duncan claims that the trial court erred in permitting Johnny Hull to testify since the State mistakenly identified him as “Johnny Hill” in response to Duncan’s request for a witness list pursuant to OCGA § 17-7-110.

This enumeration is without merit; Hull, whose address had also been provided to Duncan, had been subpoenaed previously to Duncan’s divorce trial. “The record here shows that the witness was identified sufficiently for counsel to have had an opportunity to interview [him] prior to trial. Furthermore, ‘remedies available for defendant are a continuance or a mistrial,’ [cits.] neither of which was sought here. The trial judge did not abuse his discretion in permitting the witness to testify and in allowing [Hull’s] testimony to remain in the record.” Moody v. State, 258 Ga. 818, 821 (4) (375 SE2d 30) (1989); see also Gardner v. State, 172 Ga. App. 677 (6) (324 SE2d 535) (1984).

2. In his second enumeration of error, Duncan claims that there was insufficient evidence to support his conviction for driving under the influence pursuant to OCGA § 40-6-391 (a) (1). Although Duncan’s argument in this regard is unclear, he apparently argues that because there was no testimony regarding his unsafe driving, the conviction cannot stand. It also appears that he argues that the evidence was insufficient to convict because one of the investigating officers did not observe Duncan driving. This enumeration is without merit.

Two witnesses, one of whom was a police officer, testified that they saw Duncan driving. See generally Melendy v. State, 202 Ga. App. 638 (1) (415 SE2d 62) (1992). That there was no testimony concerning Duncan’s unsafe driving is immaterial to establishing a violation of OCGA § 40-6-391 (a) (1). “ ‘There is no requirement that the person actually commit an unsafe act. (Cits.)’ [Cit.]” State v. Smith, 196 Ga. App. 876, 877 (397 SE2d 304) (1990); Moss v. State, 194 Ga. App. 181 (390 SE2d 268) (1990).

There was evidence that Duncan was observed drinking a beer while driving and that empty beer cans were found in the vehicle. There was also evidence that Duncan ran from the car into his home and locked himself up; that he refused to submit to any chemical tests of his bodily fluids; that he smelled of alcohol and his face was flushed; that his eyes were bloodshot and watery; that his speech was slurred and sometimes incomprehensible; that he was screaming and shouting when he got out of the vehicle; that he appeared confused and belligerent; and, that he was unsteady when walking. There was also testimony that Duncan appeared intoxicated to the extent that it was unsafe for him to operate his vehicle. A rational trier of fact could reasonably have found him guilty beyond a reasonable doubt of driving under the influence of alcohol to the extent that it was less safe for him to drive. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Merrell v. State, 192 Ga. App. 100 (1) (383 SE2d 905) (1989).

3. In his third enumeration of error, Duncan contends that there was insufficient evidence to support his conviction for operating a vehicle after having been declared an habitual violator in that the state failed to prove that Duncan received appropriate notice in compliance with OCGA § 40-5-58 (b). He argues that the signature of receipt is not his and that the address was improper. This enumeration is without merit for several reasons, the most obvious of which is that Duncan admitted at trial that he received the notice. See also Johnson v. State, 194 Ga. App. 501 (2) (391 SE2d 132) (1990).

4. Apart from changing the number of the indictment count, Duncan’s fourth enumeration of error is identical to enumeration 3 and appears to be unsupported by argument. This enumeration is deemed abandoned. See Court of Appeals Rule 15 (c) (2).

5. In his fifth enumeration of error, Duncan claims that the trial court erred in refusing to allow into evidence a certified copy of a document labeled “judgment” in a previous habeas corpus action. The November 3, 1986 judgment which Duncan sought to introduce concerned one of the three offenses on which a previous habitual offender status was based. The court determined that Duncan’s conviction for that offense was invalid. The judgment then indicates that the determination that Duncan was an habitual violator was made in July 1984. Duncan relies here on ambiguous language in the judgment which ordered that the Commissioner of Public Safety return Duncan’s license to him.

Despite the confusing nature of the document, we find no error in the exclusion of the evidence. First, although the judgment refers to a July 1984 determination, included in the record before us is a document dated November 6, 1985 determining that Duncan was an habitual offender. The record also contains a subsequent denial of his petition for habeas corpus and an order from April 18, 1988 terminating his sentence for the June 25, 1986 conviction of operating a vehicle after being declared an habitual violator.

Former OCGA § 40-5-58 (c) provided: “Except as provided in subsection (e) of this Code section, it shall be unlawful for any person to operate any motor vehicle in this state after such person has received notice that his driver’s license has been revoked as provided in subsection (b) of this Code section, if such person has not thereafter obtained a valid driver’s license.” “[0]ne who has had his Georgia drivers’ license revoked by the Department of Public Safety can legally thereafter operate a vehicle in Georgia only if the Department reauthorizes him to do so after the expiration of the applicable period of time prescribed in this chapter. . . . Thus, one who has been properly notified that he has been declared an habitual violator by this State can thereafter lose that status and drive in Georgia only after the passage of five years and, pursuant to his application, the Department of Public Safety has determined that it will be safe to grant him the privilege of driving a motor vehicle on the public highways.” (Punctuation omitted.) Goblet v. State, 174 Ga. App. 675, 676 (331 SE2d 56) (1985); see also Kimbrell v. State, 164 Ga. App. 344, 346 (1) (296 SE2d 206) (1982).

There is no evidence to indicate that Duncan’s license was restored; the only evidence in the record establishes his status as an habitual offender. Accordingly, the exclusion of the document here did not constitute harmful error. See also State v. Bell, 182 Ga. App. 860 (357 SE2d 596) (1987).

Decided July 13, 1992

Reconsideration denied July 27, 1992

John L. Watson, Jr., for appellant.

Robert E. Keller, District Attorney, Gregory K. Hecht, Assistant District Attorney, for appellee.

6. In his sixth and seventh enumerations, Duncan contends that the trial court erred in informing him in front of the jury that only the Department of Public Safety, and not a superior court judge, could reinstate his license. Duncan claims that the trial court’s statements were argumentative. After a careful review of the record, we find these enumerations without merit.

7. In enumerations eight and nine Duncan claims that the court erred in failing to give two of his requested charges to the jury. Regarding enumeration eight, we find no error in the trial court’s failure to instruct the jury according to Duncan’s request. The trial court charged the jury appropriately on the offense of driving under the influence of alcohol; its charge was based on OCGA § 40-6-391 and on the Suggested Pattern Jury Instructions and was adequate. See generally Phillips v. State, 185 Ga. App. 54 (2) (363 SE2d 283) (1987).

We can locate no argument or citation of authority with respect to Duncan’s ninth enumeration of error and it is deemed abandoned. See Court of Appeals Rule 15 (c) (2).

Judgment affirmed.

Birdsong, P. J., and Beasley, J., concur.