text:
    A98A1597.
    HOPKINS v. GARNER & GLOVER COMPANY.
    (504 SE2d 78)
   Eldridge, Judge.

James Hopkins, defendant-appellant, was employed as an insurance agent by Garner & Glover Company, plaintiff-appellee, from September 1, 1982, until January 1995. The employment agreement provided that it was for an initial four years; however, the attached compensation schedule expressly stated that it would govern the initial four years and any further period of employment unless modified in writing by the parties.

From sometime after March 1992, the defendant was unable to produce sufficient commissions, and plaintiff provided a regular draw, which was paid whether or not there were earned commissions. Plaintiff paid the defendant $500 a month in addition to the commission draw.

In March 1992, defendant executed a promissory note to the plaintiff in the amount of $34,603.62, which was due December 31, 1992. At a later date, the defendant and the plaintiff’s president executed a document denominated “memorandum of agreement” that stated in part “[n]o payment will be required on the current note until 1-1-93 although interest will continue to accrue. As of 1-1-93, the current note will be exchanged for a note of no more than five (5) years with an interest rate of no less than the current accrued deficit.” No new note was ever exchanged for the original note.

In January 1995, defendant left the plaintiff’s employment and went to work for a rival insurance agency. The defendant discussed with the prospective employer which accounts of the plaintiff’s the defendant could bring with him, and upon moving, defendant did bring a number of accounts. Plaintiff sued on the note. The defendant answered, denying liability on the note, and asserted a counterclaim based upon a set-off from commissions on renewal premiums allegedly due to him from the plaintiff.

The parties entered into an employment agreement during the defendant’s employment for a period of four years that began on September 1, 1982. Compensation was provided that the defendant receive 50 percent of all new contracts written by the defendant; that defendant receive 25 percent of all renewals of insurance written by the defendant; and that “when [defendant] validates” he “will own fifty percent (50%) of the renewals retroactive to the date of employment.” After the initial four years of employment under the compensation schedule, the compensation schedule stated that defendant’s compensation was to be based upon commissions earned under the schedule unless replaced by a new schedule mutually agreed upon by the parties. Defendant worked exclusively for the plaintiff until January 9, 1995.

Defendant testified that he validated on January 1,1991, “meaning whatever his commission split happened to be is what constituted his compensation.” Validation occurs when commissions exceed any guarantee of what an agent is paid or when the agent’s commission split with plaintiff constitutes his compensation. Defendant also testified that, at all times during his employment, he engaged in the insurance business exclusively and solely as an agent for the plaintiff and that at no time did he engage in any other business or professional activity. Plaintiff’s principal, William A. Dupree, denied that the defendant ever validated, because after the March 1992 memorandum agreement, the defendant received $500 a month in addition to his draw. Each month the defendant received a set amount of compensation from the plaintiff.

The parties filed cross-motions for summary judgment both on the note and on the counterclaim. On January 24, 1997, the trial court granted plaintiff’s motion for summary judgment on the note and denied defendant’s motion on such issue. However, on the counterclaim, the trial court denied both parties’ motions. In such order, the trial court stated that “the court can best determine that validation never took place in the case at hand. By defendant’s admission, he received a set amount each month as compensation. It would appear that validation never occurred during the time that Defendant was employed by Plaintiff. . . . While the evidence shows validation was not obtained, the opportunity for repayment still exists to make the employer whole again. . . . Summary Judgment GRANTED to Plaintiff on the Promissory Note in the amount of $42,351 as of March 20, 1996, plus daily interest of $11.38 from March 20, 1996 through the date of judgment, plus 10% of all principal and accrued interest as attorney’s fees. Summary judgment on the Defendant’s counterclaim DENIED.”

In an earlier appeal, this Court, on November 20, 1997, affirmed the trial court in Case No. A97A1391, an unpublished opinion. This Court stated that the trial court “found that Validation never took place’ since the defendant did not raise this “finding” as error, it could not address such issue.

After the remittitur, plaintiff filed a renewed motion for summary judgment. The trial court entered its order on February 23, 1998, which sought to clarify the order of January 24, 1997, and granted the second summary judgment motion.

The defendant’s enumeration is that the trial court erred in granting summary judgment on February 23,1998, as to the counterclaim. We agree.

1. The record shows that there is a material issue of fact as to the validation; the defendant testified positively that he had validated on January 1,1991, and Mr. Dupree denied that the defendant had done so. In the January 24, 1997 order, in explaining why the trial court denied the defendant’s summary judgment motion as to the counterclaim, the trial court stated “the Court can best determine that validation never took place in the case at hand. By defendant’s own admission, he received a set amount each month as compensation. It would appear that validation never occurred during the time that Defendant was employed by Plaintiff. . . . While the evidence shows validation was not obtained . . . [, the plaintiff was entitled to judgment].”

Nowhere in the order of January 24, 1997, did the trial court state that it granted the plaintiff’s motion for summary judgment as to the defendant’s counterclaim or granted plaintiff’s motion as to all issues, although the order stated that the motion was granted as to the note. In fact, the alleged admission by the defendant that “he received a set amount each month as compensation” is subject on motion for summary judgment to the favorable inference that the plaintiff spread defendant’s earned commissions evenly throughout the year as a draw against prior earnings, instead of a salary, which would support, and not negate, “validation” on January 1, 1992, and the $500 per month did not commence until some time after March 1992, three months after the alleged validation. There is no evidence that it was the intent of the parties that the defendant could fall out of validation since achieved or that he had to continuously maintain such status for any period of time to validate. The trial court could not, under OCGA § 9-11-56, make findings as to such disputed facts.

In its opinion, this Court stated that “the trial court did not expressly rule on the enforceability of the [employment] contract but concluded that Hopkins never validated” and that this Court could not address an issue not raised that the trial court “found that Validation never took place.’ ” Since such “finding” by the trial court went expressly to the denial of the defendant’s motion for summary judgment as to the counterclaim, and not to the grant of summary judgment for the plaintiff on such issue, then defendant was not bound by such “finding” as the law of the case. Obviously, the plaintiff realized this, because plaintiff filed a renewed motion for summary judgment that stated: “[t]he Plaintiff believes that this Court’s January 24, 1997 Order adjudicated the Defendant’s Counterclaim in the Plaintiff’s favor.” Plaintiff sought to have the trial court retroactively grant its motion for summary judgment over a year later as to the counterclaim. The trial court saw plaintiff’s motion as seeking “clarification of January 24, 1997 Order of This Court in Parties’ Cross Motions for Summary Judgment, specifically pertaining to the Denial of Defendant’s Motion for Partial Summary Judgment.” (Emphasis supplied.) This plainly states that the trial court knew that it had denied such motion. However, in the order of February 23, 1998, the trial court further stated: “This Court found that Mr. Hopkins NEVER VALIDATED and in clarification of Our Original Order, because Mr. Hopkins NEVER VALIDATED, his rights to enforce any existing Employment Contract with Garner and Glover ended the day he went to his new employer.” The trial court had second thoughts as to its order entered a year earlier and sought to change it retroactively instead of ruling currently on the validation issue on the renewed motion for summary judgment.

The trial court has the inherent power to modify or amend its final orders or judgment until the end of the term within which it was entered. Cooley v. All the World, 247 Ga. 459, 460 (1) (276 SE2d 615) (1981); Bank of Cumming v. Moseley, 243 Ga. 858 (257 SE2d 278) (1979); Pekor v. Clark, 236 Ga. 457, 458 (1) (224 SE2d 30) (1976); Bd. of Ed. v. Shirley, 227 Ga. 565, 566 (181 SE2d 826) (1971); Hinson v. Hinson, 218 Ga. 447 (128 SE2d 487) (1962). When the term expired without a petition to amend being filed by either party, the trial court lost its inherent power to amend as to any matter of substance except as provided by statute. See Cobb County v. Buchanan, 261 Ga. 857, 858 (413 SE2d 198) (1992); City of Cornelia v. Gunter, 227 Ga. 464 (181 SE2d 489) (1971); Bufford v. Bufford, 224 Ga. 850, 853 (2) (165 SE2d 128) (1968); Hunter v. Big Canoe Corp., 162 Ga. App. 629, 630 (291 SE2d 726) (1982); C & S Nat. Bank v. Burden, 145 Ga. App. 402, 403 (1) (244 SE2d 244) (1978). The plaintiff did not file its motion for clarification until February 12, 1998, long after the term had expired and subsequent to the first notice of appeal. See Heller v. Bd. of Commrs., 238 Ga. 501 (233 SE2d 761) (1977). It would be unjust, after an appeal has been decided on the earlier grant of summary judgment, to allow either party to have the trial court enter a subsequent order of clarification of substantive matters that makes the earlier order a final adjudication on the merits on other issues. The trial court lacked such power to change the January 24, 1997 order. While denominated as clarification of the January 24, 1997 order, the order of February 23, 1998 had the effect of changing substantive rights retroactively to the grant of summary judgment on January 24, 1997, to make that judgment apply to the counterclaim as a final judgment. Such February 23, 1998 order for that purpose was void and a nullity. See Cobb County v. Buchanan, supra; Robinson v. Kemp Motor Sales, 185 Ga. App. 492, 493 (364 SE2d 623) (1988).

2. However, the order of February 23, 1998, must be considered as the grant of summary judgment to the plaintiff on the counterclaim based upon the then-existing record. In that regard:

(a) The affidavits of Hopkins and Dupree are in direct conflict creating a material issue of fact as to the validation of the compensation schedule. This conflict of fact required the denial of the motion, as the trial judge is not permitted to resolve such conflict. Pritchard v. Neal, 139 Ga. App. 512, 513 (229 SE2d 18) (1976); W. J. Bremer, Inc. v. United Bonding Ins. Co., 122 Ga. App. 183, 184 (176 SE2d 633) (1970). When a material issue of fact exists, the jury must resolve such conflict. Watkins v. Nationwide Mut. Fire Ins. Co., 113 Ga. App. 801, 802-803 (149 SE2d 749) (1966); Holland v. Sanfax Corp., 106 Ga. App. 1, 5 (1) (126 SE2d 442) (1962).

(b) While the written employment agreement specified the time period of September 1982, until September 1986, it provided for the compensation to continue into the future: "After the initial four (4) year period and during the term of the employment agreement dated the 1st day of September, 1982, James P. Hopkins’ compensation shall be determined exclusively based upon commissions earned pursuant to this schedule and/or any replacement schedule mutually agreed upon in writing by the parties.” The compensation schedule, agreed upon by the parties, expressly contemplated future employment by the language of the agreement, even if the employment contract expired. The defendant continued to work for about eight years, until January 5, 1995, under such compensation schedule as the employment agreement. Whether the eight year compensation agreement was ever orally modified and whether it included the validation is in factual dispute.

Further, whether the written contract was automatically renewed under the theory of “tacit relocation” is a fact question based upon the intent of the parties, which is in dispute. See Standard Oil Co. v. Gilbert & Co., 84 Ga. 714, 717-720 (11 SE 491) (1890); Empire Box v. Moore, 87 Ga. App. 57, 66-68 (2) (73 SE2d 63) (1952).

3. If the evidence shows that the 1982 written contract was renewed orally or modified by oral novation, despite the requirement that any modification or extension be in writing, then the other terms of such contract must be given effect beyond the compensation schedule.

Under such written contract, the defendant was prohibited from “other employment and shall engage in no other business or professional activity during the term of this agreement, which shall substantially interfere with his employment with Employer.” The compensation schedule provided: “James P. Hopkins acknowledges his commitment to engage in the insurance business exclusively as agent of Garner & Glover Company as required herein.” There exists a factual question as to the proper construction of such provisions.

There is a factual issue under the contract language as to whether the defendant breached such agreement under the facts of this case through a plain language construction that literally means “simultaneous employment,” or as to whether the terms have a broader scope so as to encompass the conduct in this case. It is undisputed that, while employed by the plaintiff, defendant sought out a rival insurance agency, discussed employment with such insurance agency, discussed taking customers of the plaintiff, and left the plaintiff in order to work for another agency less than five months after the anniversary of the written contract; but does that conduct come within the prohibited conduct?

There is a question of fact to be determined if the contract was breached as to the period of any renewal of the written contract, i.e., 12 months from the anniversary or employment at will. In order to determine if the defendant breached the contract by taking employment within the 12 months, then the contract must be construed to give employment for a definite period, which would conflict with the general policy of Georgia law that indefinite contracts of employment are at will. OCGA § 34-7-1; Jellico v. Effingham County, 221 Ga. App. 252 (471 SE2d 36) (1996); Jackson v. Nationwide Credit, 206 Ga. App. 810, 811 (1) (426 SE2d 630) (1992).

If the defendant was found to have totally or partially breached the agreement, then the agreement does not specify a remedy for breach, and a jury question is created as to the consequential damages to the plaintiff and defendant as to past and future performance. OCGA §§ 13-6-2; 13-6-4.

The trial court ruled that the defendant breached the contract, which is a factual question for the jury. The trial court construed the written contract as providing for a penalty or total forfeiture of all renewal commissions, which conflicts with the general policy of Georgia law as to penalties or forfeiture when a contract has no such written provision. AFLAC, Inc. v. Williams, 264 Ga. 351, 354 (2) (444 SE2d 314) (1994); Waldrup v. Bettis, 223 Ga. 715, 720 (3) (157 SE2d 870) (1967); Budget-Luxury Inn of Dayton, Ltd. v. Kamash Enterprises, 194 Ga. App. 375, 376 (390 SE2d 607) (1990); Nat. Consultants v. Burt, 186 Ga. App. 27, 32-33 (2) (366 SE2d 344) (1988). “A liquidated damages provision is or is not enforceable based upon the intent that was manifested at the time that the provision was originally proposed and agreed to, and to determine the intent, we first look to the contract language.” (Citations and punctuation omitted.) Roswell Properties v. Salle, 208 Ga. App. 202, 205 (3) (c) (430 SE2d 404) (1993). There was no contract language which addressed such issues.

The written contract could have expressly provided for loss of rights and privileges by forfeiture for engaging in competitive employment, but it did not do so. Collins v. Storer Broadcasting Co., 217 Ga. 41, 50-51 (2) (b) (120 SE2d 764) (1961); Sheppard v. Columbus Pkg. Co., 146 Ga. App. 202 (245 SE2d 887) (1978); Brown Stove Works v. Kimsey, 119 Ga. App. 453-456 (2) (167 SE2d 693) (1969). In fact, a written insurance agent employment contract could provide for the forfeiture of future commissions on renewal premiums for working for a competitor; however, the compensation schedule and the written employment agreement did not do so. See Nat. Consultants v. Burt, supra at 31-32. Georgia law does not favor forfeiture. Waldrup v. Bettis, supra at 720; Nat. Consultants v. Burt, supra at 32-33.

It is a fact question under the ambiguous language of the compensation schedule whether the additional 25 percent of renewal commissions after validation was given as additional past compensation or as inducement to remain faithfully employed; such is a question of the intent of the parties. Therefore, if the defendant had a vested interest in the first 25 percent of the renewals as past compensation, and if the second 25 percent of the renewals after validation were for future compensation for continued faithful employment, then the loss of the future compensation would not be a prohibited forfeiture. Likewise, the jury could find that the second 25 percent of the commissions on renewals were additional past compensation, if they find that there had been validation. If the defendant did not validate the contract, then he had a vested right in commissions on renewal premiums as past earned compensation. See Nat. Consultants v. Burt, supra.

Decided July 2, 1998

Brinson, Askew, Berry, Seigler, Richardson & Davis, Robert L. Berry, Jr., Mark M. J. Webb, for appellant.

Hiñe & Niedrach, John E. Niedrach, for appellee.

4. Where facts as to the intent of the parties are in dispute, the construction of the ambiguous terms of the written contract is for the jury if, after application of the rules of construction by the trial court, the contract remains ambiguous. See OCGA § 13-2-1; Interstate Fire Ins. Co. v. Nat. Indem. Co., 157 Ga. App. 516 (277 SE2d 802) (1981); Bress v. Keep-Safe Indus., 155 Ga. App. 544, 545-546 (1) (271 SE2d 867) (1980); Trippe v. Crescent Farms, 58 Ga. App. 1, 4 (197 SE 330) (1938). The trial court has not construed these contract provisions, because the trial court decided the case on other grounds, i.e., lack of validation and breach of contract.

Judgment reversed.

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


source: Caselaw Access Project

author: Pope, Presiding Judge. Beasley, Judge,

license: Public Domain

text:
    A98A0678.
    DEPARTMENT OF CORRECTIONS et al. v. LAMAINE et al.
    (502 SE2d 766)
   Pope, Presiding Judge.

In this tort suit against the Georgia Department of Corrections (“DOC”) and probation officer Tim Hollingshed, we granted interlocutory appeal to review the trial court’s denial of Hollingshed’s motion for summary judgment based on arguments including official immunity. We find the law clearly requires that the trial court’s decision be reversed and that the case against Hollingshed be dismissed.

The complaints in this case alleged that on February 20, 1990, James Chester, a declared habitual violator without a driver’s license, drove his mother’s vehicle while under the influence and killed Christy Lamaine. Because Chester was on probation at the time of the collision, Lamaine’s father sought to hold the DOC and Hollingshed liable for failing to properly supervise Chester. Lamaine first sued the DOC on August 29, 1991, and brought a separate suit against Hollingshed on February 18, 1992, which was later combined with the first.

Two of the three enumerations of error address the claims that Hollingshed owed no duty to Christy Lamaine and that any negligence on the part of Hollingshed could not have proximately caused Lamaine’s death. We need not address those issues, however, as we find Hollingshed immune from suit.

The issue of immunity is controlled by a 1991 amendment to Ga. Const. 1983, Art. I, Sec. II, Par. IX, which states in relevant part: “(d) Except as specifically provided by the General Assembly in a State Tort Claims Act, all officers and employees of the state or its departments and agencies may be subject to suit and may be liable for injuries and damages caused by the negligent performance of, or negligent failure to perform, their ministerial functions and may be liable for injuries and damages if they act with actual malice or with actual intent to cause injury in the performance of their official functions. Except as provided in this subparagraph, officers and employees of the state or its departments and agencies shall not be subject to suit or liability, and no judgment shall be entered against them, for the performance or nonperformance of their official functions. The provisions of this subparagraph shall not be waived; (e) Except as specifically provided in this Paragraph, sovereign immunity extends to the state and all of its departments and agencies. The sovereign immunity of the state and its departments and agencies can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver.” That amendment became effective January 1,1991. See Donaldson v. Dept. of Transp., 262 Ga. 49, 53 (414 SE2d 638) (1992).

While Lamaine’s death occurred before the effective date of the constitutional amendment, the amendment applies because Lamaine did not file suit against Hollingshed until February 1992. In Donaldson, 262 Ga. at 53, the court held that “the state may withdraw its waiver of sovereign immunity at any time before a citizen acts in reliance on that waiver by filing suit.” See also Bontwell v. Dept. of Corrections, 226 Ga. App. 524, 526-527 (2) (486 SE2d 917) (1997) (physical precedent only) (holding the amendment applicable when suit was filed in 1991 over a cause of action that accrued in 1989). Neither does the Georgia Tort Claims Act apply, as that limited waiver of immunity is applicable only to cases in which the claim accrued — i.e., the “loss was or should have been discovered” — on or after January 1, 1991. OCGA § 50-21-27 (a).

Under the 1991 constitutional amendment state employees “are subject to suit only when they negligently perform or fail to perform their ‘ministerial functions’ or when they act with actual malice or intent to cause injury in the performance of their ‘official functions.’ . . . [The amendment] provide[s] immunity for the negligent performance of discretionary acts.” Gilbert v. Richardson, 264 Ga. 744, 753 (6) (452 SE2d 476) (1994).

Plaintiff first claims that Hollingshed merely performed the “ministerial” act of supervising Chester, as he was required to do by OCGA §§ 42-8-27 and 42-8-29. But the supervision of criminals on probation necessarily requires the allocation of scarce time and resources and the exercise of judgment and discretion. “A discretionary act . . . calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.” Vertner v. Gerber, 198 Ga. App. 645, 646 (402 SE2d 315) (1991). See Gilbert, 264 Ga. at 753 (noting that the purpose of official immunity is to protect “government employees who work in positions where they make policy or exercise discretion”). Here, for example, Lamaine claims among other things that Hollingshed negligently failed to “properly investigate” Chester’s allegation that he was not using alcohol or drugs or to “properly investigate” whether Chester was enrolled in an “acceptable” alcohol treatment program.

We have consistently held that one who supervises or monitors another exercises discretion in so doing. See Bontwell, 226 Ga. App. at 527-528 (prison official supervising convicts); Wright v. Ashe, 220 Ga. App. 91, 93-94 (469 SE2d 268) (1996) (teacher monitoring and supervising students); McDay v. City of Atlanta, 204 Ga. App. 621 (1) (420 SE2d 75) (1992) (training and supervision of police officers by superiors); Vertner, 198 Ga. App. 646-647 (supervision of inmates). See also Merrow v. Hawkins, 266 Ga. 390, 391 (1) (467 SE2d 336) (1996), in which the parties agreed the defendant jailer exercised discretion when he decided to loan his car keys to a “trusty” inmate and the inmate later stole the car and collided with the plaintiff.

Although the dissent concludes that the terms of Chester’s probation required Hollingshed to administer drug and alcohol tests to Chester, we are not persuaded that the court’s order imposed a ministerial duty upon Hollingshed. Under the terms of probation, Chester was “to submit to regular/random drug/alcohol screens.” While it is clear that this order imposed a duty upon Chester to submit to any drug/alcohol tests administered to him, it does not follow that this term imposed a corresponding duty upon Hollingshed to administer such tests. If the court wanted to mandate that Chester be tested, it could have made that requirement explicit. As the order is written, we believe that Hollingshed had the discretion to determine when such tests were needed to assist him in supervising Chester. Hollingshed is, as a matter of law, not liable to Lamaine on any theory that he negligently performed or failed to perform a ministerial duty.

To the extent Lamaine claims Hollingshed is not entitled to immunity because he acted with “actual malice,” we reject his argument. The Supreme Court has determined that “actual malice” excludes any concept of “implied malice” or “reckless disregard” and means only “express malice or malice in fact.” Merrow, 266 Ga. at 392 (2). Chester told Hollingshed he was not using alcohol or drugs, Hollingshed saw no signs of such use, and nothing in the record indicates that Hollingshed in any way actively encouraged or condoned Chester’s drinking or drunken driving. As in Merrow, 266 Ga. at 392-393 (3), “[t]he record is devoid of any evidence demonstrating that [Hollingshed] acted with actual malice.” As Hollingshed is immune from suit over the alleged acts, the trial court should have granted Hollingshed’s motion for summary judgment.

Judgment reversed.

Andrews, C. J, McMurray, P. J, Blackburn, Ruffin and Eldridge, JJ, concur. Beasley, J., dissents.

Beasley, Judge,

dissenting.

I respectfully dissent.

Christy Lamaine and a friend were walking along the side of the road in the evening when the inebriated probationer struck and killed both girls.

1. It was not error to deny summary judgment to probation officer Hollingshed. Plaintiff alleged in his complaint that, in part, Hollingshed performed a ministerial duty negligently. If that along with proximate cause is proved, plaintiff will be entitled to relief. Gilbert v. Richardson, 264 Ga. 744, 753 (6) (452 SE2d 476) (1994). There is an issue of fact whether Hollingshed’s failure to fulfill any of his ministerial duties constituted a proximate cause of Christy’s death.

The scope of the probation officer’s duties is set out by law in OCGA §§ 42-8-27 and 42-8-29, as appellee points out. It is true that the statutes describe a function that is primarily in the realm of discretion. Such activity would be clothed with official immunity. Gilbert, supra; Doe v. Howell, 212 Ga. App. 305, 306 (2) (441 SE2d 767) (1994). But in addition, one of the express conditions of probation which had been imposed on the tortfeasor James Chester when he was sentenced nine months before the fatalities occurred, was that he was “to submit to regular/random drug/alcohol screens.”

This court order left to the discretion of the probation officer assigned to Chester the time, frequency, location, and method of such testing. But it did not leave to discretion the decision to screen or not to screen. The court order was a mandate, and in order to give integrity to the court’s sentence, it was the probation officer’s duty to require Chester’s submission to such tests. The probation officer did not have authority to decide not to screen. It was to be done on some “regular” basis. If in fact it was not done in the nine months between Chester’s sentencing in May 1989 and Christy Lamaine’s death in February 1990, a jury could find that this was a breach of a ministerial duty imposed on the probation officer as an inherent concomitant of the express condition of probation imposed on the defendant.

It is no answer to justify the omission as necessitated by the scarcity of time and resources in the probation office. While that excuse, which is not offered by appellants, may be factually true, it is irrelevant in connection with the implementation and enforcement of a court order.

Appellants respond to plaintiff’s allegation regarding screening by contending that Chester’s “ ‘regular’ [frequency] for urine screens could very well have been once a year in his discretion.” There is no evidence to back this up, and it is the defendant’s burden on summary judgment to prove that he cannot be held liable. Sherin v. Dept. of Human Resources, 229 Ga. App. 621, 625 (4) (494 SE2d 518) (1997) (official has burden of showing he was acting within the scope of his discretionary authority); see Jones v. Littlejohn, 222 Ga. App. 494, 496-497 (2) (474 SE2d 714) (1996) (defendant/movant has burden of proof on summary judgment as to defense of immunity); Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). If Hollingshed had discretion to choose to require drug/alcohol screens only once a year, then of course the ministerial aspect of the duty could not be shown to have been violated as the first year of Chester’s five-year probationary period had not yet expired.

But if the policy of the Department was to require screens of probationers in Chester’s shoes on some other regular basis, then a jury could find a breach of the ministerial duty. It is not unlikely that more was required. There is evidence that, when Chester was sentenced in 1989 for driving under the influence, for no insurance, for leaving the scene of an accident, and for being a habitual violator, he already had six prior DUI’s, one prior habitual violator, and two hit and runs.

2. I agree that there is no evidence which would support a finding of “express malice or malice in fact,” which would be required in order for plaintiff to recover against probation officer Hollingshed on the exception which lifts immunity for a discretionary act.

Decided June 11, 1998

Reconsideration denied July 6, 1998

Thurbert E. Baker, Attorney General, Kathleen M, Pacious, Deputy Attorney General, John C. Jones, Senior Assistant Attorney General, for appellants.

Michael J. Kramer, for appellees.

       We note that although the claims in Bontwell arose from incidents which occurred in 1989, the court discusses claims made pursuant to the Georgia Tort Claims Act. However, the opinion held those claims without merit and did not address whether the GTCA was, in fact, applicable to those claims. 226 Ga. App. at 527-528 (4). As two of the three judges in Bontwell concurred in the result only, that opinion is not binding on this Court.


author: Pope, Presiding Judge.

text:
    A98A0087.
    WHITE v. THE STATE.
    (503 SE2d 891)
   Pope, Presiding Judge.

A jury convicted defendant William White of driving under the influence of alcohol to the extent that he was a less safe driver. OCGA § 40-6-391 (a) (1). He appeals, and we affirm.

A review of the evidence in the light most favorable to the verdict shows that on November 22, 1996, defendant was stopped at a police roadblock in Atlanta, Georgia, and asked by Officer Cox to produce his driver’s license. At that time, Cox noticed that defendant had glassy, bloodshot eyes, and Cox smelled alcohol on defendant’s breath and person. Cox asked defendant if he had been drinking, and defendant replied that he had had four or five glasses of wine. Cox next asked defendant to pull to the side of the road and step out of his car. When defendant complied, Cox observed that defendant was unsteady on his feet. Thereafter, Cox asked defendant to recite the alphabet. In two attempts, defendant was unable to properly do so, skipping several letters. Defendant also tested positive on an alcosensor device and showed six out of six clues on the horizontal gaze nystagmus test.

Based on his observations of defendant before and during the above field tests, as well as his experience in making approximately 600 prior DUI arrests, Cox concluded that defendant was intoxicated to the extent he was a less safe driver. Consequently, Cox arrested defendant. Another officer who observed defendant at the scene also testified at trial that defendant was intoxicated. Following defendant’s arrest, Cox read defendant his implied consent rights and requested that defendant take a blood test. Defendant, however, refused to take any test. Defendant also was belligerent throughout much of his encounter with police.

1. The above evidence was amply sufficient to allow any rational jury to have concluded that defendant was guilty of the crime for which he was convicted in accordance with the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Prior to trial, defendant filed a motion to suppress all evidence obtained against him after he was detained at the roadblock on the ground that the roadblock was unconstitutional. He argues that the trial court’s denial of his motion to suppress constitutes reversible error.

The record evidence presented at trial and during the hearing on defendant’s motion to suppress demonstrates that the roadblock at issue had been set up by supervisory personnel of the Atlanta DUI Countermeasures Team, who were present at the scene. The purpose of the roadblock was to check for driver’s licenses and for intoxicated drivers. Implementation of the roadblock was carried out pursuant to specific, prearranged procedures that required all cars in the northbound lane of Peachtree Road to stop unless safety considerations dictated otherwise. There is, however, no evidence in this case that any northbound traffic was allowed to pass for any reason without first stopping at the roadblock. It also appears that any delay to passing motorists caused by the roadblock was minimal, absent reasonable suspicion of a violation of law on the part of a particular motorist. Additionally, the roadblock was demarcated by the blue lights of police vehicles and by at least four officers, including Cox, standing in the middle of the roadway, wearing reflective vests and using flashlights to motion oncoming traffic to stop. It also is evident that Cox was amply trained to make an initial determination of intoxication upon stopping defendant or any other motorist at the roadblock.

In light of the above, we conclude that the roadblock was legitimate, and that defendant’s detention at it did not constitute an arbitrary, random stop or an unreasonable seizure. See Michigan Dept. of State Police v. Sitz, 496 U. S. 444, 450 (110 SC 2481, 110 LE2d 412) (1990); LaFontaine v. State, 269 Ga. 251, 252-253 (3) (497 SE2d 367) (1998); Heimlich v. State, 231 Ga. App. 662, 663-664 (500 SE2d 388) (1998). Absent an unreasonable seizure, there was no violation of defendant’s rights under the Fourth Amendment to the United States Constitution. Id. Nor was there any violation of defendant’s rights under Art. I, Sec. I, Par. XIII of the Georgia Constitution, which, like the Fourth Amendment, prohibits only unreasonable seizures. Consequently, the trial court did not err in denying defendant’s motion to suppress.

3. Defendant contends the trial court committed reversible error by stating to the jury in its final charge that “the State is not required to prove the guilt of the accused beyond a reasonable doubt, all doubt or to a mathematical certainty.” Clearly this instruction contains a verbal inaccuracy, making it erroneous. Postell v. State, 200 Ga. App. 208, 210 (2) (407 SE2d 412) (1991) (rev’d on other grounds); Chamberlain v. State, 216 Ga. App. 207, 208 (2) (453 SE2d 793) (1995). The trial court should have stated that “the [SJtate is not required to prove the guilt of the accused beyond all reasonable doubt or to a mathematical certainty.” (Citation and punctuation omitted.) Id. In this State, however, it is well settled that a mere verbal inaccuracy, resulting from a palpable “slip of the tongue,” does not constitute reversible error if it clearly could not have misled or confused the jury. Gober v. State, 247 Ga. 652, 655 (3) (278 SE2d 386) (1981); Postell, 200 Ga. App. at 210 (2).

With the above in mind, we note that it is undisputed and apparent in this case that the erroneous instruction was the result of a “slip of the tongue.” Therefore, we need only determine whether it, when considered in light of the whole charge, may have misled or confused the jury in this case regarding the burden of proof required to convict defendant. Whitt v. State, 257 Ga. 8, 9 (3) (354 SE2d 116) (1987); Hambrick v. State, 256 Ga. 688, 690 (3) (353 SE2d 177) (1987); Postell, 200 Ga. App. at 210 (2). In addressing this issue, we note that prior to the erroneous instruction, the trial court correctly instructed the jury regarding the State’s general burden of proof and the fact that each element of the crime must be proven beyond a reasonable doubt. Additionally, before the erroneous instruction was given, it is apparent in this case, unlike Chamberlain, that the trial court specifically informed the jury that it was incumbent upon the State to prove every essential element of the crime beyond a reasonable doubt. Following the erroneous instruction, the trial court properly defined reasonable doubt and told the jury that it had a duty to acquit defendant if the State failed to prove his guilt beyond a reasonable doubt. On two other occasions the trial court further instructed the jury that it must acquit defendant if it did not believe he was guilty beyond a reasonable doubt.

Under such circumstances, “[vjiewing the charge as a whole, we find, beyond a reasonable doubt, that the erroneous [instruction] did not mislead or confuse the jury on the burden of proof, or in any way contribute to the verdict. [Therefore, t]he error [caused by the trial court’s slip of the tongue] was harmless[, and as such, does not warrant reversal].” Postell, 200 Ga. App. at 210 (2); see Whitt, 257 Ga. at 9 (3); Moak v. State, 222 Ga. App. 36, 41-43 (473 SE2d 576) (1996) (Birdsong, P. J., concurring specially, and joined by a majority of the Court).

4. Defendant contends that the trial court erred in refusing to give the jury his third and fourth written requests to charge. In those requests, defendant asked that the jury be instructed that while Georgia’s Implied Consent Law included a requirement that a person arrested for DUI in this State submit to a chemical test or tests of his or her blood, breath, urine or other bodily substances when properly requested to do so by a police officer, that person had the right to refuse to take any such test or tests, and the exercise of that right, in and of itself, was not determinative of whether or not the person was under the influence of alcohol.

Decided July 6, 1998

Head, Mullís, Thomas & Webb, Thomas J. Thomas, for appellant.

June D. Green, Solicitor, James M. Miller, Assistant Solicitor, for appellee.

Clearly the above requests contained relevant and accurate statements of the law. See State v. Leviner, 213 Ga. App. 99, 100 (2) (443 SE2d 688) (1994) (acknowledging that DUI suspects have the right to refuse to take a requested State-administered chemical test subject to the legislative mandate that evidence of the exercise of that right shall be admissible in the suspect’s criminal trial); Brinson v. State, 232 Ga. App. 706 (503 SE2d 599) (1998) (holding that a suspect’s refusal to take a State requested chemical test, by itself, is insufficient to warrant a determination that the suspect was driving under the influence to the extent he or she was less safe). The trial court’s failure to give the requests as written, however, does not constitute error. This is so because the record demonstrates that in its final charge, the trial court instructed the jury in accordance with a written request provided by the State, which made it implicitly clear that defendant could refuse to take a State-administered blood test after being requested to do so by police. Additionally, the trial court properly instructed the jury that defendant’s failure to take the State-administered blood test could be used against him and that it created a rebuttable inference that the test would have shown that he had had something to drink, but that the mere fact that someone had been drinking, without more, was not sufficient to convict that person of driving under the influence of alcohol. Thus, the final charge relayed the same principles to the jury that were set forth in defendant’s third and fourth requests to charge. A trial court does not err in failing to give an appropriate request to charge, as written, when its charge as a whole contains the same principles of law set forth in the request. White v. State, 230 Ga. 327, 338-339 (7) (196 SE2d 849) (1973).

Judgment affirmed.

Beasley and Ruffin, JJ, concur.


author: Beasley, Judge. Eldridge, Judge,

text:
    A98A1032.
    McMANN v. MOCKLER.
    (503 SE2d 894)
   Beasley, Judge.

Sandra McMann filed this legal malpractice case against Dominic Mockler, alleging that he failed to file an appeal from a denial of her workers’ compensation claim. The court granted Mockler’s motion for summary judgment.

1. In her first enumeration, McMann asserts three bases of error: the “trial court erred in determining that (a) the claims alleging malpractice were defeated because McMann could not show that she would have been unsuccessful in an appeal; (b) that the appeal would have been unsuccessful to the Appellate Division of the State Board of Workers’ Compensation; and (c) that McMann failed to demonstrate any harm arising from the malpractice.” All three bases challenge the trial court’s finding that plaintiff failed to demonstrate any harm arising from defendant’s malpractice.

“A professional malpractice action is merely a professional negligence action. To state a cause of action for negligence in Georgia, the following elements are essential: (1) A legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risks of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and, (4) some loss or damage flowing to the plaintiff’s legally protected interest as a result of the alleged breach of the legal duty. In particular, this court has held that in a suit for legal malpractice, proof that the attorney’s negligence proximately caused the client’s harm is necessary for recovery.” (Citations and punctuation omitted.) Whitehead v. Cuffie, 185 Ga. App. 351, 352 (364 SE2d 87) (1987); see also OCGA § 51-1-8. Faced with such a claim, a defendant is entitled to favorable resolution summarily if he can show that the record reveals “that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991); OCGA § 9-11-56.

For the purpose of ruling on Mockler’s motion for summary judgment, the trial court assumed that McMann had hired Mockler to represent her; that Mockler had in fact promised to file an appeal of McMann’s adverse workers’ compensation award; that Mockler missed the filing deadline for the appeal; and that Mockler’s omission breached the standard of professional conduct owed to his client. McMann’s expert affidavit supported the conclusion that Mockler breached his duty to McMann.

The element of causation was the Achilles’ heel. “In the context of a legal malpractice case in which the negligence alleged is the failure of an attorney to [file] an appeal, proximate cause may be established by showing that the appellate court would have reversed and that[,] upon remand to the lower court[,] the client would have obtained a more favorable result. A determination of whether an appeal to this court would have been successful is a question of law, and hence, proper for summary adjudication.” (Citations and punctuation omitted.) Jaraysi v. Soloway, 215 Ga. App. 531, 532 (451 SE2d 521) (1994).

It was undisputed that McMann failed to include a transcript or record of the underlying workers’ compensation case, so the trial court had to assume that the findings of the administrative law judge were supported by the record. See OCGA § 34-9-103 (a); Harrell v. City of Albany Police Dept., 219 Ga. App. 810 (466 SE2d 682) (1996) (standard on appeal). That being the posture of the case, the court correctly ruled that McMann failed to present any evidence of harm arising from the alleged professional malpractice, i.e., that the denial of McMann’s workers’ compensation claim would have been reversed on appeal but for Mockler’s oversight. Accordingly, the court was authorized to grant Mockler’s motion for summary judgment. Failure to file an appeal which would be unsuccessful on the merits or frivolous would not harm the losing litigant but instead would save the litigant time, money, and anguish.

2. Citing Spence v. Hilliard, 181 Ga. App. 767, 768 (353 SE2d 634) (1987), McMann asserts that she is entitled nevertheless to survive summary judgment on the thread of nominal damages, even if she can present no evidence of actual damages resulting from defendant’s oversight.

The validity of summary judgment on the malpractice claim is resolved by the conclusion that, as a matter of law, plaintiff failed to present any evidence that she suffered harm as a result of her attorney’s failure to appeal from the decision of the administrative law judge. This hole in the presentation of her malpractice case ended it, as recognized by the trial court.

The issue of damages, i.e., monetary compensation for harm, is therefore moot. The trial court did not address that issue, and neither do we, as pronouncements concerning it would not be controlling authority and would not be binding precedent. Flournoy v. State, 266 Ga. 618, 619 (2) (469 SE2d 195) (1996); White v. State, 213 Ga. App. 429, 430 (1) (445 SE2d 309) (1994).

3. In her remaining enumeration, McMann contends that the court erred in granting summary judgment on her amended complaint, which alleged damages arising from a breach of contract for legal services, breach of the implied duty of good faith and fair dealing, breach of fiduciary duty, and fraud. The court ruled that the claims were “mere duplications of the legal malpractice claim which itself is based on the establishment of a fiduciary, attorney-client relationship that is breached.”

As to plaintiff’s purported fraud claim, defendant’s motion for summary judgment was filed before plaintiff added this and other causes of action to her malpractice claim. So defendant did not address it. Neither did the trial court. By not obtaining a ruling on the survivability of the fraud claim past the motion for summary judgment, plaintiff did not preserve this issue for appellate review. In the Interest of C. T., 197 Ga. App. 300 (1) (398 SE2d 286) (1990). Whether she recognized this or simply abandoned the fraud cause of action along the way, she did not include it in her second enumeration of error. These missteps preclude its proper presentation to this Court for resolution. Goins v. Tucker, 227 Ga. App. 524, 529 (489 SE2d 857) (1997) (“matters not enumerated as error may not be considered on appeal”).

Moreover, the element of resulting injury, a necessary ingredient of a fraud claim, is absent from the amended complaint. See Little v. Fleet Finance, 224 Ga. App. 498, 500 (1) (481 SE2d 552) (1997).

As to breach of contract, for the purposes of this opinion there is no dispute that McMann and Mockler entered into an oral contract in which Mockler agreed to provide professional legal services for a fee. This bound Mockler to abide by standards of professional conduct. Cf. Peacock v. Beall, 223 Ga. App. 465, 466 (477 SE2d 883) (1996) (complaint was for breach of contract, not legal malpractice, because existence of attorney-client contract was the subject of dispute). Although McMann frames the contract as one in which Mockler expressly promised to file an appeal from her denial of workers’ compensation benefits, there is no evidence that the appeal could have been successful. As such, there can be no action for breach of contract based only on the failure to file an appeal per se.

The law does not require an attorney to appeal every case which a client loses. It is only when the client engages the attorney to do so that a duty arises. The duty is a contractual one, and the failure to properly fulfill that duty is both a breach of the agreement to do so and a deficiency in the performance of professional standards of conduct. The tort of professional negligence, or malpractice, arises from the relationship (attorney and client) created by contract. As stated in Plumlee v. Davis, 221 Ga. App. 848, 851-852 (2) (473 SE2d 510) (1996), “A cause of action against an attorney sounding in contract arises from the breach of a legal duty imposed by the contract of employment. . . . The tort cause of action for legal malpractice arises because the law imposes upon attorneys a duty to act with a certain degree of skill in performing their contractual duties to their clients.” See also Hamilton v. Powell, Goldstein &c., 167 Ga. App. 411, 412-415 (1) (306 SE2d 340) (1983), aff’d, 252 Ga. 149 (311 SE2d 818) (1984).

Accordingly, the trial court correctly concluded that McMann’s claims for breach of contract, breach of implied duty of good faith and fair dealing, and breach of fiduciary duty were merely duplications of her malpractice complaint.

Judgment affirmed.

Andrews, C. J., Pope, P. J., Johnson, P. J., Smith and Ruffin, JJ, concur. McMurray, P. J., Blackburn, Eldridge, JJ., and Senior Appellate Judge Harold R. Banke concur specially.

Eldridge, Judge,

concurring specially.

While I agree with the majority in its opinion, I do not agree with that portion of Division 2 that states: “[t]he issue of damages, i.e., monetary compensation for harm, is therefore moot.” Plaintiff contended that even though she had produced no evidence, from the occurrence of the malpractice alone nominal damages were to be inferred as a matter of law; thus, on summary judgment, she had no duty to produce actual evidence of such damages. See Spence v. Hilliard, 181 Ga. App. 767, 768 (353 SE2d 634) (1987). Under the majority’s analysis, the issue can never be reached by this Court, because the issue can only arise when there is not evidence, only an inference of nominal damages. It was to clarify this issue of inference of nominal damages that the case was circulated whole court. I contend that for this reason the issue was not moot, and the Court should answer this issue.

Spence dealt with a legal malpractice case that sought special damages arising from the failure to file a compulsory counterclaim. The trial court in granting summary judgment in that case ruled that the evidence showed that the plaintiff was unable to prove the amount of actual or special damages or that such damages were collectible. This Court reversed, stating: “there was a fatal failure of proof with regard to actual damages. . . . Nominal damages are recoverable in a legal malpractice action provided plaintiff carries the burden of proving that he was wronged.” Id. at 768. Such holding should be limited to the facts of Spence, i.e., that nominal damages are authorized “where the violation of a right is shown, substantial damages claimed, and some actual loss proved, and yet the damages are not susceptible of reasonable certainty of proof as to their extent.” (Punctuation omitted.) Jones v. Padgett, 186 Ga. App. 362, 364 (4) (367 SE2d 88) (1988); see also Ponce de Leon Condos. v. DiGirolamo, 238 Ga. 188, 190 (232 SE2d 62) (1977); MTW Investment Co. v. Alcovy Properties, 228 Ga. App. 206 (491 SE2d 460) (1997).

“It stands to reason that if there is no harm resulting from the breach of duty [in a legal malpractice case], then no cause of action exists to be the subject of a lawsuit.” Whitehead v. Cuffie, 185 Ga. App. 351, 352-353 (364 SE2d 87) (1987).

Plaintiff must tender some evidence on summary judgment raising the issue of nominal damages other than evidence of the wrongful conduct alone or suffer a judgment against her.

I am authorized to state that Presiding Judge McMurray, Judge Blackburn, and Senior Appellate Judge Harold R. Banke join in this special concurrence.

Decided July 6, 1998.

John A. Roberts, for appellant.

Dominic Mockler, pro se.


author: Blackburn, Judge.

text:
    A98A1104.
    GARY v. WEINER.
    (503 SE2d 898)
   Blackburn, Judge.

Joan S. Gary appeals an order of the Probate Court of Chatham County removing her as guardian of her husband, John G. Gary, and appointing Aron G. Weiner as successor guardian. For the reasons set forth below, we affirm the decision of the probate court.

On March 20, 1992, Joan Gary was appointed as guardian of the person and- the property of John Gary, who had become incapacitated. On June 19, 1997, the probate court, pursuant to OCGA § 29-2-45, issued a citation for Joan Gary to show cause why she should not be removed as guardian for failure to make acceptable returns as required by OCGA § 29-2-44. Apparently, Joan Gary had filed no annual returns since she had been appointed guardian of her husband. On July 15,1997, Joan Gary filed a motion for a continuance of the show cause hearing, stating that she was in the process of completing an accounting. The probate court granted Joan Gary’s motion, and a hearing was set for August 19, 1997. Joan Gary did not file the annual returns required for the years 1992 through 1996 until the day of the hearing. On November 17, 1997, the probate court removed Joan Gary as guardian of John Gary, stating that “Mrs. Gary filed annual returns which the Court has determined are unacceptable and she is no longer fit for the trust imposed upon her as guardian in that she has failed to properly account for her ward’s funds.” In the same order, the probate court appointed Aron G. Weiner as successor guardian.

In this appeal, Gary contends that the probate court abused its . discretion in removing her as guardian and failed to follow OCGA § 29-5-2 in its appointment of Weiner as successor guardian. We cannot agree.

1. We do not find that the probate court abused its discretion in removing Gary as guardian. As an initial matter, we must point out that “[n]o transcript was filed, because, as stated in the Notice of Appeal, there was no transcript of evidence. There is no requirement that testimony in a civil case be transcribed. The respondent here apparently failed to make arrangements for transcription. In the absence of a transcript, we must assume the trial court’s action would be supported by the record.” (Citations and punctuation omitted.) Myers v. Dept. of Human Resources, 162 Ga. App. 885, 886 (293 SE2d 480) (1982).

Decided July 6, 1998.

Roberson & Schmidt, David Roberson, for appellant.

Moreover, even if we were able to consider Gary’s assertions, her claims would be patently meritless. As it appears from the record that she never filed annual returns as guardian until compelled to do so by the probate court, there is clear evidence that she had breached her fiduciary duties, supporting her removal. OCGA § 29-2-45.

2. We also reject Gary’s claim that, by appointing Weiner as guardian, the probate court contravened OCGA § 29-5-2. This Code section sets forth the statutory preferences to be considered by a court in selecting guardians. Other than individuals specifically chosen by the ward prior to the onset of incapacity, the statute indicates that spouses and adult children of the ward are preferred over other individuals.

Gary’s argument that the probate court abused its discretion in this matter is not supported by the record. In essence, Gary points to the probate judge’s order, argues that it is wrong, and does little more. For example, Gary makes the assertion that the probate court improperly appointed Weiner successor guardian in violation of the preferences set out in OCGA § 29-5-2 without even providing this Court with any evidence of John Gary’s family tree or his relationship to Weiner. Gary merely asserts that the probate court should have appointed one of John Gary’s sons instead of Weiner without sufficient support for her claim.

“Factual assertions] contained in appellate briefs which are not supported by evidence in the record cannot be considered in the appellate process, and briefs cannot be used in lieu of the record or transcript to add evidence to the record. Consequently, this appeal is subject to the well-established rule that the burden is on the appellant to show error by the record, and when a portion of the evidence bearing on the issue raised is not brought up so that this court can make its determination from a consideration of it all, an affirmance as to that issue must result.” (Citations omitted.) Hooten v. State, 212 Ga. App. 770, 775-776 (2) (442 SE2d 836) (1994). Again, in the absence of the transcript and evidence to the contrary, we must assume that the probate court’s appointment of Weiner was proper. Myers, supra. Furthermore, as Joan Gary was properly removed and is no longer the personal representative of John Gary, she lacked standing to contest Weiner’s appointment on direct appeal.

Judgment affirmed.

McMurray, P. J., and Eldridge, J., concur.

Beckmann & Pinson, Luhr G. C. Beckmann, Jr., for appellee.

Weiner, Shearhouse, Weitz, Greenberg & Shawe, Aron G. Weiner, pro se.


text:
    A98A1231.
    HOWARD v. McFARLAND et al.
    (503 SE2d 900)
   Blackburn, Judge.

Gregory L. Howard appeals the trial court’s denial of his summary judgment motion. Because the trial court failed to allow oral argument despite timely request therefor, we vacate the trial court’s order.

Uniform Superior Court Rule 6.3 requires a trial court to conduct oral argument on a motion for summary judgment upon timely written request. Howard filed his motion for summary judgment on April 30, 1997. At the same time, Howard also filed a separate document requesting oral argument, as well as a notice of hearing to be held on June 26. The time for responding to the summary judgment motion was subsequently extended, and no hearing was held on June 26.

On August 26, 1997, without conducting a hearing, the trial court entered an order denying Howard’s motion for summary judgment. However, Howard’s attorney did not receive notice of this ruling until November 19, after the expiration of the period in which he could seek an appeal. On November 26, Howard’s attorney filed a motion to set aside the order due to the lack of notice and reiterated his request that the court conduct oral argument prior to entry of a second order granting or denying the summary judgment motion. The trial court granted the motion to set aside the order on December 8. Two days later, the trial court, without holding a hearing, entered a second order again denying Howard’s motion for summary judgment.

The failure to hold a hearing on a summary judgment motion, after timely request therefor, is reversible error, and we will not apply a harmless error analysis where no hearing is held. Dixon v. McClain, 204 Ga. App. 531 (1) (420 SE2d 66) (1992). In Dixon, we held that “[t]he obvious purpose of a hearing in summary judgment is to provide counsel with an opportunity to persuade the court and to provide the court with an opportunity to interrogate counsel. . . . Having timely requested a hearing, a litigant should not have summary judgment granted against him [or have his motion for summary judgment denied] without having had the opportunity to convince the trial court to the contrary and a trial court should not grant [or deny] summary judgment. . . without having availed itself of the opportunity to interrogate counsel. Appellate review of the record is no viable substitute for the opportunity to argue before the trial court. Accordingly, . . . the error in failing to hold the hearing mandated by a timely request therefor is not subject to the harmless error rationale.” (Punctuation omitted.) Id. at 531-532 (1). Thus, the trial court’s order must be vacated.

Decided July 6, 1998.

Louis K. Polonsky, for appellant.

R. Keith Prater, for appellees.

In Premo v. Ga. Ports Auth., 227 Ga. App. 27 (488 SE2d 106) (1997), we reversed a grant of summary judgment to a defendant because no hearing was held after plaintiff’s timely request. Relying on Dixon, we expressly stated therein that “we decline the [defendant’s] invitation to apply harmless error analysis.” Id. at 28 (1).

As we recognized in Dixon, “[a]ppellate review of the record is no viable substitute for the opportunity to argue before the trial court.” Dixon, supra. Where the trial court has not had the opportunity to consider the arguments of counsel at a timely requested hearing, appellate review of the record is premature. Indeed, oral argument may illuminate issues obscured by the record or result in admissions by counsel that affect the summary judgment analysis. Accordingly, we decline to address the merits of Howard’s summary judgment motion in the interest of promoting judicial economy and remand this case to the trial court for further proceedings.

Judgment vacated.

McMurray, P. J, and Eldridge, J., concur.

       We decline to consider documents attached to appellees’ brief, which appellees contend support a claim of waiver, as such documents are not part of the record. Paul v. Joseph, 212 Ga. App. 122, 125 (2) (441 SE2d 762) (1994).


author: Smith, Judge.

text:
    A98A0497.
    BRADY v. THE STATE.
    (503 SE2d 906)
   Smith, Judge.

James Lee Brady was convicted of the offenses of statutory rape, incest, and child molestation. His motion for new trial as amended was denied, and he appeals. Finding that the evidence was sufficient to convict Brady of the crimes charged but that the trial court erroneously denied Brady’s motion for continuance, we reverse.

1. Brady first claims the evidence was insufficient to convict him of the crimes charged. We disagree. Brady was the victim’s stepfather. Evidence was presented that the victim reported to law enforcement officers and other witnesses that Brady and she had sex twice on the night of October 6,1995. She told witnesses that she had been having sex with Brady since she was 11 years old. We also note that the victim’s half-sister testified that when she was 11 or 12 years old, Brady began having sex with her, that she brought charges against him, and that she later dropped the charges because she was afraid for her sister and mother. The victim’s mother also reported to a police officer that Brady had been having sex with the victim.

Although the victim, aged 15 at the time of trial, recanted her story at Brady’s bond hearing and again at trial, this recantation does not render the evidence against him insufficient. Her prior inconsistent statements concerning the sexual activity in which she and Brady were engaged were substantive evidence of Brady’s guilt. See, e.g., Gibbons v. State, 248 Ga. 858, 863-864 (286 SE2d 717) (1982); Brown v. State, 175 Ga. App. 246, 247 (1) (333 SE2d 124) (1985). Although these statements contradicted the victim’s trial testimony, it was for the jury, rather than this Court, to resolve conflicts and to assess witness credibility. See Berry v. State, 268 Ga. 437, 438 (1) (490 SE2d 389) (1997). The victim’s prior statements, along with other evidence including her mother’s testimony and testimony concerning Brady’s involvement with the victim’s half-sister, authorized a rational trier of fact to find Brady guilty under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Brown, supra; McCormick v. State, 228 Ga. App. 467, 468 (1) (491 SE2d 903) (1997).

As for Brady’s enumeration that the verdict is against the weight of evidence, we note that our review of the evidence is limited to its sufficiency, not its weight. See, e.g., Mullinax v. State, 227 Ga. App. 670, 672 (490 SE2d 201) (1997).

2. Brady claims that the trial court erroneously denied his request for a continuance based on the State’s failure to provide him with a copy of a written scientific report within ten days of trial as provided for by OCGA § 17-16-4 (a) (4).

The report at issue contains the results of DNA testing performed by analysts at the Georgia Crime Lab. The five-page written report states that DNA obtained from Brady was consistent with that obtained from a vaginal swab of the victim and that the frequency of such a match would be one in two hundred thousand in the Caucasian population and one in two hundred million in the African-American population. A crime lab analyst testified at trial to these facts. The report also describes in technical detail the evidence received from law enforcement officials and the scientific procedures performed on the evidence. The report was dated September 3, 1995, but was faxed to the prosecuting attorney two days later, on September 5. After receiving the report, defense counsel moved for a continuance.

During the hearing on Brady’s motion, the prosecutor stated that he had called the crime lab four or five times a day, “rushing” and “hurrying” the lab with regard to the report. He also testified that as soon as he received the report from the crime lab, he filed it with the clerk of court and then placed a copy of it under defense counsel’s door. Defense counsel apparently did not discover the report until the next day, four days before Brady’s trial began. By letter dated August 30, the prosecutor provided defense counsel with the substance of the results contained in the written report. This letter, which “repealed] a phone conversation” between the prosecutor and defense counsel’s secretary, stated that the prosecutor had received an oral report that a DNA match existed and that the chance of a coincidental match was one in two hundred thousand in the white population. The prosecutor also stated in the letter that as soon as he received a written report he would supply it to defense counsel.

In analyzing Brady’s contention that a continuance was warranted, we must compare the language of the new statute addressing discovery of written scientific reports, OCGA § 17-16-4 (a) (4), with that of the prior statute addressing such discovery, OCGA § 17-7-211. The prior statute required scientific reports to be made available only when they were “ ‘in the possession of or available to the prosecuting attorney.’ ” Law v. State, 251 Ga. 525, 527 (1) (307 SE2d 904) (1983). OCGA § 17-16-4 (a) (4), however, places a heavier burden on the State by omitting language requiring reports to be in the possession of or available to the prosecuting attorney. Under that statute, if the State wishes to use scientific reports at trial, it must provide copies of the reports to the defense “no later than ten days prior to trial, or as otherwise ordered by the court.”

Here, defense counsel did not receive a copy of the written report within the ten-day period as required by the new statute. It is true that a continuance is not the only remedy when violation of discovery requirements has occurred. Under OCGA § 17-16-6, the court “may order the state to permit the discovery or inspection, interview of the witness, grant a continuance, or, upon a showing of prejudice and bad faith,” exclude the evidence. See generally McWhorter v. State, 229 Ga. App. 875, 876 (2) (495 SE2d 139) (1997). But under the circumstances present in this case, we cannot say that permitting defense counsel to inspect the scientific report four days prior to trial afforded adequate time for trial preparation. The facts of this case are similar to those in Moody v. State, 210 Ga. App. 431, 432 (436 SE2d 545) (1993), which was also a child molestation case. The prosecutor in Moody failed to provide to defendant within the appropriate time period a copy of a written report concerning a DNA match between a blood sample taken from defendant and semen found at the crime scene. The State’s explanation for providing a copy of the report to defendant seven days before trial began was that it did not actually receive the report from the FBI until that time. Stating that the report was available to.the State prior to the time it provided a copy to defendant and that defendant was unable to prepare adequately for trial because of the complexity of DNA analysis and testing, we concluded that the trial court abused its discretion in denying defendant’s motion for new trial. Id. at 432.

Moody is distinguished from this case in some respects. In addition to its having been decided under the old statute, the scientific report in that case was apparently in existence and available well before the FBI provided it to the State. But that portion of our rationale in Moody addressing the technical nature of the DNA report and the fact that defense counsel was unable to prepare adequately for trial is equally applicable here. The report at issue in this case was highly detailed, containing technical, scientific descriptions of the procedures performed on blood samples taken from Brady and from a vaginal swab obtained from the victim. While defense counsel may have been knowledgeable in general about DNA testing, as evidenced by his opening statement and closing arguments, as well as his cross-examination of the State’s witnesses, he did not receive the report containing the specific details about his client and the victim until four days before trial. Just as the trial court in Moody abused its discretion under the less stringent standard for providing copies of reports set out in OCGA § 17-7-211, we must conclude that the trial court here also abused its discretion in failing to grant Brady’s motion for continuance based on the more restrictive language of OCGA § 17-16-4 (a) (4).

It is apparent that the prosecutor acted in good faith in an effort to obtain the results from the crime lab and in orally notifying defense counsel that DNA analysts had discovered a match between DNA found in Brady’s blood sample and the vaginal swab obtained from the victim. But the report contained far more than those results; as discussed above, it detailed in technical terms the methods of testing as well as the evidence tested. Brady was not provided with this information within a time frame that permitted him adequate opportunity to prepare his defense with regard to the specific procedures and findings detailed in the report. Under these circumstances, as in Moody, a continuance was the appropriate remedy.

Decided July 7, 1998

Ashley C. Coope-McKenna, for appellant.

J. Gray Conger, District Attorney, Patrick B. Moore, Assistant District Attorney, for appellee.

Although the properly introduced evidence was sufficient to convict Brady of the crimes charged, as in Moody, we cannot say that the trial court’s erroneous refusal to grant a continuance was harmless. Brady’s conviction must therefore be reversed and a new trial granted.

3. Our holding in Division 2 renders Brady’s final enumeration concerning sentencing moot.

Judgment reversed.

Johnson, P. J., and Senior Appellate Judge Harold R. Banke concur.

       The victim stated that she made the story up because she was angry with Brady after an argument with him concerning her school attendance. The prosecutor who initially prosecuted the case but who later moved out of area testified during the trial that the victim recanted because her mother was upset. 1

       Defense counsel disputed receiving this letter.

       As Law, supra; Davis v. State, 204 Ga. App. 657 (420 SE2d 349) (1992); and Daniel v. State, 180 Ga. App. 179 (348 SE2d 720) (1986), relied on by the State, addressed the applicability of OCGA § 17-7-211, they are not controlling.


author: Beasley, Judge.

text:
    A98A0801.
    JONES v. THE STATE.
    (503 SE2d 902)
   Beasley, Judge.

Tommy Jones appeals his conviction for aggravated assault (OCGA § 16-5-21) arising out of his acts of repeatedly striking a victim with a two-by-four board. The issues are whether (i) sufficient evidence supports the conviction, (ii) the court erred in not directing a verdict on a murder charge, (iii) the court erred in finding Jones voluntarily waived his rights before giving a statement to the police, (iv) the admission of certain evidence was error, (v) Jones’ counsel provided effective assistance, (vi) Jones was entitled to a new trial due to the prosecutor’s reference in closing argument to a local “victims’ wall,” and (vii) the court erred in allowing the State to submit untimely jury charges.

1. Regarding sufficiency of the evidence, Jackson v. Virginia sets the standard of review: “[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” In addition, “appellant no longer enjoys a presumption of innocence. An appellate court determines only the legal sufficiency of the evidence adduced below and does not weigh the evidence or assess the credibility of the witnesses.” The evidence of aggravated assault is overwhelming.

Early one morning the victim pestered Jones while he and others were playing a game of dice in an apartment building parking lot. Jones responded by striking the victim with a two-by-four board and then chasing him across the parking lot with the board in hand. During the chase, two of Jones’ friends by chance drove up in a truck, got out, and joined Jones in the chase. One of the friends had a pistol and shot the victim four times before the victim could get to a waiting taxi. When Jones and the gunman reached the victim still alive on the ground, Jones repeatedly and viciously struck him with the two-by-four with such force that it broke. He continued striking him with a broken piece. The gunman used the other broken piece to also strike the victim. The two men fled, and the victim soon died.

The autopsy revealed numerous two-inch wide bruises on the victim’s head, arm, chest, thigh, wrist, and knee, all of which were inflicted shortly before he expired. The cause of death was a gunshot wound to his heart.

2. The court withheld ruling on Jones’ motion for a directed verdict on the murder charge. When the jury verdict of “not guilty” was announced, the court noted that this mooted the motion, and Jones agreed. He now argues that the court erred in not granting the directed verdict before the jury deliberations in that the presence of the murder charge during jury deliberations prejudiced him, for it made more likely the possibility the jury agreed to the aggravated assault conviction as a compromise verdict.

. The argument fails. First, the acquittal on the murder charge did moot the directed verdict motion and rendered any error in the failure to grant the motion harmless. Jones’ speculation that the jury reached a compromise verdict does not undermine this result, particularly in light of the concrete evidence (including his own testimony) of the vicious attack against the victim.

Second, a directed verdict on the murder charge was inappropriate because such a verdict “will lie only where there is no evidence to support a contrary verdict. [Cits.]” Although Jones did not fire the shot which killed the victim, he was vulnerable to conviction of the murder if the evidence showed he intentionally aided and abetted in the commission of the homicide. “Aid and abet” means to “[h]elp, assist, or facilitate the commission of a crime, promote the accomplishment thereof, help in advancing or bringing it about, or encourage, counsel, or incite as to its commission. [Cit.] It comprehends all assistance rendered by words, acts, encouragement, support, or presence, actual or constructive, to render assistance if necessary.” “ ‘In essence, ... a defendant must be an accessory before the fact.’ [Cit.]”

Jones’ friend, while running beside Jones, shot the victim as he was attempting to escape to a waiting taxi. The two men followed and beat him, incapacitating him. Viciously striking a mortally injured person while he is still alive, and waylaying him from seeking medical help, can constitute evidence of intentionally assisting in the murder of the victim. The court did not err in declining to grant a directed verdict on the murder charge.

3. After conducting a Jackson-Denno hearing, the court ruled that Jones knowingly waived his rights before making a videotaped statement to the police. The videotape and transcript were admitted without objection at trial. Claiming error, Jones asserts that the transcript shows the interrogation continued after he asked for a lawyer.

To the contrary. Although the transcript did contain a question to Jones as to why he felt he needed a lawyer, the context showed this question referred to Jones’ remark that he thought he might have needed a lawyer before he voluntarily came into the police station to talk to the police. The trial court did not clearly err in making this finding.

4. Jones claims, without suggesting any reason, that “[t]he court erred in allowing certain testimony about a mop-head and a not-to-scale drawing into evidence.” This omission is exacerbated by the tardiness of the objection, at least as to the not-to-scale drawing, which had already been admitted without objection.

Beyond that, “[admissibility of evidence is a matter which rests largely within the discretion of the trial court,” and because Georgia favors the admission of even doubtful evidence, no error is shown.

5. Claiming ineffective assistance, Jones points out that his counsel did not move for a mistrial when it was discovered a juror was sleeping nor inform Jones of the consequences of being convicted on a recidivist indictment. “In order to establish ineffectiveness of trial counsel . . ., appellant must show both that counsel’s performance was deficient and that the deficient performance prejudiced the defense.”

(a) When it was discovered a juror was sleeping, Jones personally addressed the court and asked that the juror be dismissed. The court complied and replaced the juror with the alternate juror. The remedy chosen rectified the problem so counsel was not remiss in not seeking a mistrial; none would have been required. Foster v. State instructs that if possible the court should “take corrective measures short of a mistrial,” such as substituting an alternate juror. This is exactly what transpired. Jones shows no prejudice.

(b) Assuming Jones’ counsel failed to advise him of the consequences of being convicted on a recidivist indictment, and assuming such was deficient performance, Jones was not prejudiced. In a pretrial hearing where Jones and his counsel were present, the prosecutor announced that Jones was “indicted as a recidivist. If he is found guilty of simply the aggravated assault, it would be twenty years, a portion of that to be served.” Thus he was aware of the ramifications of the recidivist indictment. The court sentenced Jones to twenty years to serve seven.

6. In closing his argument the State’s attorney noted that a local victims’ rights group was constructing a wall with bricks inscribed with the names of people killed by violent crime, and that Jones had taken a living, breathing person and reduced him to “nothing more than a brick with a name on it.” Jones did not object to this argument, so “the test for reversible error is whether the argument, even if improper, in reasonable probability changed the result of trial. [Cits.]”

Jones was not entitled to a new trial on this ground because, as in Bright v. State, there was “overwhelming evidence of guilt . . . including [defendant’s] own testimony. . . . [E]ven assuming the argument was objectionable, there is no reversible error.”

Decided July 7, 1998.

David J. Grindle, for appellant.

J. Gray Conger, District Attorney, Julia Slater, Assistant District Attorney, for appellee.

7. Permission for the State to submit an untimely jury charge presents the final enumeration of error. The record does not show the use of any such charge, and Jones does not indicate what portion of the overall charge was improper. He objected only to the murder charge, based on his argument that a directed verdict should have been granted on the murder count. His failure to reserve the right to later object waived all other objections.

Even if the court had accepted and given jury charges untimely submitted by the State, it had the discretion to do so, and no abuse is discernible.

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.

       (Emphasis omitted.) 443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560) (1979).

       (Citations and punctuation omitted.) Hight v. State, 221 Ga. App. 574, 575 (1) (472 SE2d 113) (1996).

        McClain v. State, 226 Ga. App. 714, 719 (4) (487 SE2d 471) (1997).

       (Emphasis in original.) Hamm v. State, 187 Ga. App. 318, 319 (1) (370 SE2d 158) (1988); see OCGA § 17-9-1.

       OCGA § 16-2-20 (b) (3); see Bostic v. State, 239 Ga. 32, 34 (1) (235 SE2d 530) (1977) (even if defendant’s shot did not kill victim, his action of harming the victim aided and abetted in the contemporaneous murder of the victim by another shooter).

       Black’s Law Dictionary (5th ed. 1979), p. 63.

        Grant v. State, 227 Ga. App. 243, 245 (488 SE2d 763) (1997). Compare Bullard v. State, 263 Ga. 682, 685 (1) (436 SE2d 647) (1993) (helping to hide the body after the murder does not alone constitute aiding and abetting the murder).

       See Dixon v. State, 267 Ga. 136,139 (3) (475 SE2d 633) (1996) (“Factual and credibility determinations made by a trial court after a Jackson v. Denno hearing will not be disturbed on appeal unless they are clearly erroneous”); Cox v. State, 248 Ga. 713 (1) (285 SE2d 687) (1982) (same).

       (Citation and punctuation omitted.) Hestley v. State, 216 Ga. App. 573, 576 (2) (455 SE2d 333) (1995).

        Peppers v. State, 261 Ga. 338, 340 (2) (404 SE2d 788) (1991).

       (Citations omitted.) Stephens v. State, 265 Ga. 120, 121 (2) (453 SE2d 443) (1995).

       255 Ga. 425, 426 (2) (339 SE2d 256) (1986).

       See Trenor v. State, 252 Ga. 264, 266-267 (7) (313 SE2d 482) (1984) (no ineffective assistance arose out of failure of trial counsel to object to sleeping juror); Williams v. State, 190 Ga. App. 361, 362 (2) (378 SE2d 886) (1989) (court’s awakening sleeping juror was sufficient remedy; no error in denying defendant’s motion for mistrial).

        Bright v. State, 265 Ga. 265, 285 (19) (a) (455 SE2d 37) (1995); see Jones v. State, 268 Ga. 12, 15 (3) (483 SE2d 871) (1997).

       265 Ga. at 285 (19) (a).

        Bryant v. State, 268 Ga. 33, 34 (1) (485 SE2d 763) (1997).

       See Hubacher v. Volkswagen Central, 164 Ga. App. 791, 796 (5) (298 SE2d 533) (1982) (court has discretion whether to accept late charges); Snipes v. Leaseway of Ga., 150 Ga. App. 135, 137 (2) (257 SE2d 40) (1979) (court is free up to the time of charging the jury to correct errors in the proposed charge).


author: McMurray, Presiding Judge. Blackburn, Judge,

text:
    A98A2001.
    ROLLESTON et al. v. CHERRY.
    (504 SE2d 504)
   McMurray, Presiding Judge.

Plaintiff John Randolph Cherry, executor of the estate of Rebecca Wight Cherry Sims, filed an action against defendants Moreton Rolleston, Jr. Living Trust and Moreton Rolleston, Jr., seeking (in pertinent part) to set aside certain allegedly fraudulent conveyances. On July 7, 1995, the trial court entered an interlocutory injunction enjoining defendants from transferring any real or personal property without notifying and obtaining the trial court’s approval. After the Supreme Court of Georgia affirmed this injunction, the trial court denied defendants’ motion for summary judgment and refused to certify this order for interlocutory review. Defendants, nonetheless, filed a direct appeal from this interlocutory order, which the trial court dismissed. Defendants then challenged the trial court’s dismissal order via a direct appeal to the Supreme Court of Georgia. The Supreme Court of Georgia transferred this appeal in the case sub judice to this Court. Held:

Decided July 7, 1998.

Hall, Booth, Smith & Slover, Michael A. Pannier, for appellants.

Moretón Rolleston, Jr., pro se.

Shelby A. Outlaw, for appellee.

Although a direct appeal may be taken from an order dismissing an appeal of the grant of an interlocutory injunction (Azar v. Baird, 232 Ga. 81, 83 (205 SE2d 273)), the appeal in the case sub judice is not from such an order. This appeal is from an order dismissing an unauthorized appeal of an interlocutory order denying defendants’ motion for summary judgment. Such an interlocutory order is not appealable absent compliance with OCGA § 5-6-34 (b)’s interlocutory appeal procedures. See Sharpe’s Appliance Store v. Anderson, 161 Ga. App. 112 (289 SE2d 312). Because defendants failed to comply with these procedures, this Court is without jurisdiction to consider the case sub judice, and this direct appeal must be dismissed. English v. Tucker Fed. Sav. &c. Assn., 175 Ga. App. 69 (332 SE2d 365).

Plaintiff’s request for frivolous appeal damages pursuant to Court of Appeals Rule 15 (b) is denied.

Appeal dismissed.

Blackburn and Eldridge, JJ, concur and concur specially.

Blackburn, Judge,

concurring specially.

I fully concur with the majority opinion with respect to the issue of this Court’s lack of jurisdiction to consider this appeal. Additionally, I would impose a penalty of $1,000 upon appellants for frivolous appeal. However, I defer to the judgment of the author of the majority opinion on this matter.

I am authorized to state that Judge Eldridge joins in this opinion.


author: Ruffin, Judge.

text:
    A98A0354.
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. COX.
    (502 SE2d 778)
   Ruffin, Judge.

Keith Jacobs was a named insured under an automobile insurance policy issued and delivered in Georgia by State Farm Mutual Automobile Insurance Company (“State Farm”). Pursuant to the policy’s uninsured motorist provisions, State Farm paid Jacobs $6,300 to compensate him for bodily injuries he sustained in a collision with Elizabeth Cox. State Farm then filed the instant subrogation action in its own name against Cox to recover the benefits it paid to Jacobs. Cox subsequently moved to dismiss State Farm’s complaint on the ground that State Farm was not the real party in interest and that the suit should have been filed in the name of State Farm’s insured, Jacobs. The trial court granted Cox’s motion: Relying on Liberty Mut. Ins. Co. v. Clark, 165 Ga. App. 31 (299 SE2d 76) (1983) (physical precedent only) and Generali U. S. Branch v. Owens, 218 Ga. App. 584 (462 SE2d 464) (1995), the trial court ruled that “[t]he law is clear that while [State Farm] is subrogated to the rights of recovery of its insured, the right of action belongs to the insured, and any action must be brought in the name of the insured.” State Farm appealed, asserting (1) that the trial court erred in ruling that the insurance company could not file the subrogation action in its own name, and (2) that even if the trial court’s ruling was proper, Jacobs should have been permitted an opportunity to join the action. We agree with the latter assertion and accordingly reverse the trial court’s order dismissing the action.

1. State Farm first argues that OCGA § 33-7-11 (p authorizes an insurance company to bring a subrogation action in its own name if the uninsured motorist policy was issued in Georgia. We disagree. As we ruled in both Clark and Generali, that Code section merely grants the right of subrogation to insurers issuing and delivering policies within Georgia. See Clark, supra; Generali, supra. As stated in both decisions, such an action must be brought in the name of the insured because OCGA § 44-12-24 prohibits the assignment of rights of actions for personal torts. See id.; Clark, supra.

Contrary to State Farm’s contention, Division 1 of Clark does not authorize a different conclusion. There, we simply ruled that if the uninsured motorist policy was issued or delivered outside Georgia, OCGA § 33-7-11 (f) would not provide a statutory right of subrogation to the insurance company. See Clark, supra. Rather, under such circumstances, the insurance company would have to rely on other available legal or conventional subrogation rights. Id. There is simply no language in OCGA § 33-7-11 (f) or in the foregoing opinions to support State Farm’s argument that it could file a subrogation action for Jacobs’ personal injuries against Cox in the insurance company’s own name. See Travelers Ins. Co. v. Harris, 226 Ga. App. 269, 270 (2) (486 SE2d 427) (1997).

2. State Farm correctly asserts, however, that the trial court should have allowed it a reasonable opportunity to join or substitute Jacobs as the real party in interest. “When an action is not being prosecuted by the real party in interest, a trial court should not dismiss the action ‘until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest.’ OCGA § 9-11-17 (a).” Allianz Life Ins. Co. &c. v. Riedl, 264 Ga. 395, 398 (3) (444 SE2d 736) (1994). “Therefore, upon return of this case to the trial court, the trial court is directed to allow [Jacobs] a reasonable opportunity to join the action pursuant to OCGA § 9-11-17 (a), or be joined or substituted in accordance with OCGA § 9-11-19 (a). [Cit.]” Travelers, supra at 270 (2).

Decided June 16, 1998

Reconsideration denied July 8, 1998

Tisinger, Tisinger, Vance & Greer, Thomas E. Greer, for appellant.

Deedra M. Brewer, for appellee.

Finally, “[although [Cox] contends [that] this procedure should not be followed in this case because the two-year period of limitations established in OCGA § 9-3-33 has expired, this issue was not ruled upon by the trial court. Thus, this issue is not ripe for our consideration.” Travelers, supra at 270 (2).

Judgment reversed with direction.

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


text:
    A98A0413, A98A0435.
    THE STATE v. KENNEY et al. (two cases).
    (503 SE2d 585)
   Ruffin, Judge.

In a two-count accusation, the State charged Jane Kenney and James Kenney with prostitution (Count 1) and James Kenney with pimping (Count 2). The trial court sustained the Kenneys’ special demurrers to both counts. In Case No. A98A0413, the State asserts that the trial court erred in sustaining the Kenneys’ special demurrer to Count 1, and in Case No. A98A0435 the State asserts that the trial court erred in sustaining James Kenney’s special demurrer to Count 2. For reasons which follow, we reverse both cases.

The special demurrer at issue here challenges the form of the accusation. Dunbar v. State, 209 Ga. App. 97, 98 (2) (432 SE2d 829) (1993). “ ‘The requisite of a good indictment, as to form, is that the offense with which the defendant is charged be so stated as to give him ample opportunity to prepare his defense.’ [Cit.]” State of Ga. v. Williams, 247 Ga. 200, 202 (1) (B) (275 SE2d 62) (1981).

Case No. A98A0413

1. “A person commits the offense of prostitution when he performs or offers or consents to perform an act of sexual intercourse for money.” OCGA § 16-6-9. In Count 1 of the accusation, the State charged Jane and James Kenney “with the offense of PROSTITUTION for that the said accused, in [Barrow County, Georgia], on or about November 21, 1996, did unlawfully, offer to perform and consent to perform an act of sexual intercourse with another person for money, contrary to the laws of said State, the good order, peace and dignity thereof.” The Kenneys’ demurrer to Count 1 alleged that the accusation was fatally defective because it did not specify (a) the identity of the person they allegedly solicited for prostitution (b) what act of sexual intercourse they offered to perform or (c) who made the offer to perform sexual intercourse.

(a) As a general rule, if an accusation charges the defendant with committing a crime against a person, the injured person should be identified in the accusation. See Arrington v. State, 160 Ga. App. 645, 646 (2) (288 SE2d 97) (1981), citing Irwin v. State, 117 Ga. 722 (2) (45 SE 59) (1903); see also 42 CJS 419, Indictments & Informations, § 105. However, where the identity of a person related to the crime is not a material part of the crime charged, the State is not required to name the person in the accusation. See id.; Arrington, supra. Thus we have held that, in an accusation for gaming, the State is not required to name those who participated in the illegal game with the defendant. See Day v. State, 70 Ga. App. 819, 820 (29 SE2d 659) (1944), citing Hicks v. State, 16 Ga. App. 228 (84 SE 837) (1915). We have similarly held that an indictment for selling intoxicating liquor “ ‘need not, even as against a special demurrer, allege the name of the person to whom the liquor is charged to have been sold, given or furnished.’ [Cit.]” Day, supra at 821. And, more on point, “in an accusation for soliciting for a prostitute the gist of the offense is the harm done society by such unlawful solicitation, and not an injury to the individual solicited.” Id. at 820. Accordingly, when charging such an offense, the State is not required to name the person solicited for prostitution. Id. at 820-821. Though we believe that the better practice is for the State to identify such individuals in the indictment, the failure to name them does not materially prejudice the defendant’s ability to prepare his defense since they are only collaterally involved in the alleged offense. See id. We thus conclude that the State’s failure to name the person solicited in this case was not a ground for sustaining the Kenneys’ demurrer to Count 1.

(b) We also find that it is not necessary for an accusation to specify the type of sexual intercourse a defendant is charged with selling. Although the term “sexual intercourse” has been held to include more than “sexual intercourse in the [regular] way,” Price v. State, 76 Ga. App. 108, 111 (45 SE2d 84) (1947), see also Allen v. State, 170 Ga. App. 96 (1), 97 (2) (316 SE2d 500) (1984), it is not such a generic term that an accused is left speculating about what illicit conduct he or she has been charged with committing. Cf. Military Circle &c. v. State, 181 Ga. App. 657, 658 (1) (a) (353 SE2d 555) (1987) (accusation which merely used generic term “neglect” in charging a violation of the cruelty to animal statute must specify the manner in which defendants were negligent), rev’d on other grounds, 257 Ga. 388 (360 SE2d 248) (1987). Furthermore, in many cases the evidence supporting the prostitution charge may not indicate which specific type of sexual intercourse is being offered by the defendant, only that the defendant generally offered to have sexual intercourse for money. See, e.g., Ross v. State, 214 Ga. App. 697, 698 (448 SE2d 769) (1994) (although defendant did not offer to perform a specific act of sexual intercourse, evidence was sufficient where it showed that she solicited $200 from an officer, undressed, placed a bag of condoms and rubber gloves on a nightstand and acquiesced when the officer stated “‘[l]et’s get busy’”); see also Berman v. State, 191 Ga. App. 231 (1) (381 SE2d 316) (1989). Accordingly, we conclude that the State’s failure to specify the type of sexual intercourse in the Kenneys’ accusation was not a proper ground for sustaining their special demurrer.

(c) Finally, as to Count 1, we disagree with the Kenneys that the accusation fails to specify who made the offer to perform sexual intercourse. The accusation clearly charges that they both offered to perform sexual intercourse for money. Whether there is evidence supporting such a charge is a matter to be resolved by the factfinder at trial.

Accordingly, we conclude that the trial court erred in sustaining the Kenneys’ special demurrer to Count 1 of the accusation.

Case No. A98A0435

2. A person commits the offense of pimping when he “[o]ffers or agrees to arrange a meeting of persons for the purpose of prostitution.” OCGA § 16-6-11 (2). In Count 2 of the accusation, the State charged James Kenney “[w]ith the offense of PIMPING for that the said accused, in [Barrow County, Georgia], on or about November 21, 1996, did unlawfully, offer and agree to arrange a meeting of persons, to wit: Jane Velma Kennedy (sic) and another person, for the purpose of prostitution, contrary to the laws of said State, the good order, peace and dignity thereof.” James Kenney alleged that Count 2 was fatally defective because it did not specify the type of prostitution act he offered to arrange or the person who was supposed to meet with Jane Kenney.

Decided May 28, 1998

Reconsideration denied July 8, 1998

Timothy G. Madison, District Attorney, Robin R. Riggs, Assistant District Attorney, for appellant.

William D. Median, Jr., William D. Hedían MI, for appellees.

We addressed both these grounds in subdivisions 1 (a) and (b), and for the reasons discussed therein, we conclude that the trial court erred in granting James Kenney’s special demurrer to Count 2 of the accusation.

Judgments reversed.

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

       James Kenney did not raise the apparent misspelling of Jane Kenney’s name as a ground for his demurrer to Count 2.