text:
    A95A1372.
    GROVNER et al. v. WINN DIXIE STORES, INC.
    (462 SE2d 427)
   Smith, Judge.

Eva Grovner and her husband, George Grovner, filed a complaint against appellee Winn Dixie Stores, Inc., alleging that Winn Dixie’s negligence caused Eva Grovner’s personal injuries. The trial court granted Winn Dixie’s motion for summary judgment, and the Grovners appeal.

As Grovner was shopping in Winn Dixie’s grocery store, she slipped in a puddle of liquid on the floor, fell, and was injured. Without dispute, Winn Dixie employees were aware that a cooler in the produce department was leaking water onto the floor. Winn Dixie employees testified they had called maintenance, mopped the floor, and placed cones printed with the notice “Caution, wet floor” as well as a mop bucket at the site of the leak, directly on the mopped area. The floor had “just been mopped” a few minutes before Grovner’s fall. The employees also testified that Grovner, in falling, actually came to rest on top of or holding the yellow warning cone reading “Caution, wet floor.”

On the other hand, Grovner testified that no warning cone or sign was in the area where she fell: “I looked where I was going. They were not there where I was walking.” She testified that the cone and mop bucket she saw after she fell were not at the site of the leak. Grovner contended the cone was some distance away, “stuck in a corner,” and the bucket was at the other end of the cooler. She also contended that a large number of shipping boxes were stacked in the produce section, blocking the aisles and obscuring her view of the floor and of the warning cone, which was “sitting behind a box, not in sight.” So many boxes were stacked in the aisles, according to Grovner, that “[w]e could not pass through.” A large stack of tomatoes “chest high” obscured her view of the mop bucket before she fell.

Winn Dixie contends that Grovner acknowledged she saw the mop bucket before she fell and that the bucket itself had a notice reading “Caution — wet floor.” Grovner’s testimony, however, shows that she was responding to counsel’s inquiry, “Were there any other warnings at the time that you fell that you saw after you felH” (emphasis supplied) and that she responded, “When I sat up off the floor, yes.” Moreover, Winn Dixie merely lists the deposition of a witness with no page number to support its contention that the mop bucket bore a warning. “We will not accept mere assertions of fact in briefs [cit.], or cull the record in search of error. [Cit.]” Medley v. Boomer- shine Pontiac-GMC Truck, 214 Ga. App. 795 (449 SE2d 128) (1994). Out of an abundance of caution, however, we have examined that witness’s deposition, and it contains no such testimony.

Decided September 12, 1995.

Johnson & Krider, Karen M. Krider, for appellants.

The general rule governing slip and fall cases was established in Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980): “[I]n order to state a cause of action in a case where the plaintiff alleges that due to an act of negligence by the defendant he slipped and fell on a foreign substance on the defendant’s floor, the plaintiff must show (1) that the defendant had actual or constructive knowledge of the foreign substance and (2) that the plaintiff was without knowledge of the substance or for some reason attributable to the defendant was prevented from discovering the foreign substance.” (Emphasis supplied.) “[T]he proprietor’s knowledge of the alleged wetness of the floor due to mopping is presumed and defendant would not be entitled to summary judgment unless the evidence shows that no genuine issue of material fact remains as to plaintiff’s equal knowledge of the wetness and whether, in the exercise of ordinary care, she could have avoided it.” (Citations and punctuation omitted.) Lindsey v. J. H. Harvey Co., 213 Ga. App. 659, 660 (445 SE2d 810) (1994).

Grovner contends her view of the floor and of any warnings in the area was blocked by the accumulation of shipping boxes in the aisles. “[I]t is a plaintiff’s knowledge of the specific hazard which precipitates the slip and fall which is determinative, not merely his knowledge of the generally prevailing hazardous conditions or of the hazardous conditions which he observes and avoids.” (Citation and punctuation omitted; emphasis omitted.) Lindsey, supra, 213 Ga. App. at 660.

In this case, we cannot say that the evidence demands a finding that Grovner failed to exercise ordinary care for her own safety. Compare Stone v. Winn Dixie Stores, 212 Ga. App. 291 (442 SE2d 1) (1994) (garden hose placed directly behind plaintiff by store employee while plaintiff was speaking with another employee could constitute hidden obstruction) with Piggly Wiggly Southern v. Weathers, 216 Ga. App. 12 (453 SE2d 74) (1994) (meat counter or product on store shelves did not constitute distraction). The testimony of Grovner and the store employees with regard to the steps taken to remedy the leak and the location of warnings is in direct conflict. This directly conflicting testimony presents issues of fact and credibility that must be decided by a jury. The trial court erred in granting summary judgment in favor of Winn Dixie.

Judgment reversed.

Birdsong, P. J., and Johnson, J., concur.

Lee, Black, Scheer & Hart, Steven E. Scheer, for appellee.


source: Caselaw Access Project

author: Smith, Judge.

license: Public Domain

text:
    A95A1484.
    SOUTH GEORGIA TIMBER COMPANY et al. v. PETTY.
    (462 SE2d 176)
   Smith, Judge.

We granted a petition for discretionary appeal in this workers’ compensation case to review two controlling issues: whether the claimant’s injury arose out of and in the course of employment; and whether, at the time of injury, claimant had ended a personal detour and resumed work for her employer.

Carol Yvonne Petty is the sole owner of TNS Timber Company, which had an oral contract with South Georgia Timber Company to provide timber cutting services on a quantity basis. South Georgia Timber is located in Folkston, the county seat of Charlton County, Georgia, approximately 35 miles southeast of Waycross. Petty also resides there. South Georgia Timber deducted a per cord charge out of TNS Timber’s checks for workers’ compensation coverage. The owner of South Georgia Timber suggested to Petty that it would be much cheaper for her to obtain her own coverage for TNS. He recommended an insurance agent, and a meeting was arranged between Petty and the agent in Waycross, Georgia.

On the day scheduled for the meeting, Petty drove to Waycross and picked up the insurance agent. She testified that was her sole reason for going to Waycross that day. They drove to TNS Timber’s work site in the woods about 30 miles south of Waycross, where the agent inspected the operation and checked TNS Timber’s equipment. Petty drove the agent back to his office in Waycross, then stopped by a shopping mall in Waycross to use the rest room and look for a pair of rubber boots. She intended to return then to Folkston to deliver a check to her contract hauler. Upon entering her car, however, she was abducted by a man armed with a knife. She leaped or was pushed from the car, sustaining the injuries for which she seeks compensation.

The ALJ concluded that Petty’s trip to Waycross was purely personal because it was for the purpose of obtaining insurance for her own company. Additionally, the ALJ found that Petty’s further deviation to a shopping mall put her clearly outside the scope and course of her employment as a contract logger for South Georgia Timber. The appellate division affirmed the decision of the ALJ, and Petty appealed to the superior court. The superior court, relying on Petty’s testimony that she had a check for her contract hauler in her car and planned to return to Folkston to pay him, held she had returned to her duties for South Georgia Timber at the time she reentered her car in Waycross. On this basis, the superior court set aside the findings of the ALJ and appellate division and remanded the case for further findings.

In reviewing a workers’ compensation award, both this court and the superior court must construe the evidence in the light most favorable to the party prevailing before the appellate division. Jarallah v. Pickett Suite Hotel, 204 Ga. App. 684, 686 (420 SE2d 366) (1992). “It is axiomatic that the findings of the State Board of Workers’ Compensation, when supported by any evidence, are conclusive and binding, and that neither the superior court nor this court has any authority to substitute itself as a fact finding body in lieu of the Board. [Cits.]” Durham v. Twiggs County Bd. of County Commrs., 210 Ga. App. 203, 204 (435 SE2d 688) (1993).

The factors used to determine whether an injury arises “out of’ or “in the course of employment” are well established and include the physical location of the worker: “An injury arises ‘in the course of employment when it occurs within the period of the employment, at a place where the employee may be in performance of her duties and while she is fulfilling or doing something incidental to those duties. [Cit.] An injury arises ‘out of’ the employment when a reasonable person, after considering the circumstances of the employment, would perceive a causal connection between the conditions under which the employee must work and the resulting injury. [Cit.]” (Emphasis supplied.) Hennly v. Richardson, 264 Ga. 355, 356 (1) (444 SE2d 317) (1994). In contrast, “[w]here the employee steps aside from his employer’s business to do some act of his own, not connected with his employer’s business, the relationship of employer and employee, or master and servant, is, as to that act, completely suspended, and an accident occurring at that time, resulting in injury to the employee, does not arise out of the employment within the meaning of the Workmen’s Compensation Act.” Hartford Accident &c. Co. v. Souther, 110 Ga. App. 84, 85 (2) (137 SE2d 705) (1964).

Petty contends she returned to her duties for South Georgia Timber the moment she entered her car to return to Folkston, citing Glens Falls Indem. Co. v. Sockwell, 58 Ga. App. 111 (197 SE 647) (1938). That decision makes clear, however, that Sockwell at the time of injury was “at a place where he had a right to be in pursuance of his duties” and “was on his regular route” when he stopped to assist a stranded motorist. Upon re-entering his truck, he resumed his activities for his employer at a place he was authorized to be. Id. at 114-115. The extent of a worker’s deviation from the geographical route taken on the business of the employer clearly is relevant in determining whether an injury that occurs as he returns to work arises out of and in the course of employment. See, e.g., Fulton County Civil Court v. Elzey, 101 Ga. App. 520, 522 (114 SE2d 314) (1960) (employee struck by car in street “immediately adjoining the courthouse” on the way to complete his day’s work); Hartford, supra, 110 Ga. App. at 86 (employee “never did turn off his direct route”).

Decided September 12, 1995.

Clyatt & Clyatt, Robert M. Clyatt, for appellants.

For a deviation to come to an end at the moment the worker turns back, the worker must be “in the general proximity of the place where he was employed to be and at a time he was employed to be in that general proximity.” London Guarantee &c. Co. v. Herndon, 81 Ga. App. 178,181 (58 SE2d 510) (1950) (claimant took alternate route of beachfront road a short distance past his destination). Where an employee “step[ped] aside from the usual employment to engage in some matter purely personal to himself such as going away from the place of work to talk to another person entirely disconnected from the employment . . . the return from this purely personal mission was a part of the mission, which was a mission not contemplated by the contract of employment.” Travelers Ins. Co. v. Smith, 91 Ga. App. 305, 310-311 (85 SE2d 484) (1954). While a slight geographical deviation may not be conclusive, taking into account the other facts and circumstances of the case, a more substantial deviation may lead to the conclusion that an injury sustained while returning from the mission does not arise out of or in the course of employment.

We cannot hold as a matter of law, therefore, that Petty’s injury arose out of and in the course of her employment with South Georgia Timber. She was still a substantial distance from any place she would have been while on the business of the employer: approximately 35 miles from Folkston and 30 miles from the timber her company was cutting that day. Her only purpose in traveling to Waycross at all was to obtain insurance for her own company, TNS Timber.

Under these circumstances, we cannot conclude that Petty had resumed her duties to South Georgia Timber as soon as she reentered her car at the shopping mall. She had not yet returned to or near the route she would have followed to pay her contract hauler in the absence of her personal errand to Waycross. Whether the Way-cross shopping mall was a place she was “reasonably expected to be” in the course of her employment was, at most, a question of fact for the ALJ and appellate division. This question was decided adversely to Petty, and neither the superior court nor this Court is authorized to find otherwise. The superior court erred in reversing the award of the ALJ and appellate division.

Judgment reversed.

Birdsong, P. J., and Johnson, J., concur.

Gibson & Spivey, Douglas L. Gibson, Andrew C. Spivey, for appellee.


author: Andrews, Judge.

text:
    A95A0926.
    HANLON v. THORNTON et al.
    (462 SE2d 154)
   Andrews, Judge.

Ellsworth Hanlon sued the real estate agents and the sellers of a piece of real property in Clarke and Oglethorpe Counties. Hanlon alleged fraudulent misrepresentation and fraudulent concealment as to the presence of a landfill next to the property, the value of the property, and the condition of two trailers and a well that were on the property. Hanlon sought rescission of the sales contract, compensatory and punitive damages and attorney fees. The trial court granted defendants’ motion for summary judgment. Hanlon appeals.

In early 1990, Hanlon, who lived in California at the time, called Steve Brannen, a real estate agent with Purvis & Associates, about buying some property on which to put a mobile home park. On February 14, 1990, Hanlon came to Georgia, and Brannen showed him several pieces of property, including the parcel of land which is the subject of this suit. The following day, Hanlon executed a contract with Luther and Evelyn Smith to purchase the property for $150,000. Hanlon then returned to California.

On March 14, 1990, Hanlon and his wife returned to Georgia to close on the property. On the morning before the closing, Hanlon inspected the mobile homes on the property and made a list of defective items. Hanlon also had the Northeast Health District Water Lab test the quality of the well water on the property. The water lab found that the wells and the water were satisfactory. Also prior to closing, Brannen advised Hanlon to talk to Jack Griffith of the Oglethorpe County Commission about his plans to put a mobile home park on the site. Hanlon drove past the Clarke County landfill on his way to meet with Griffith, although he says he did not realize it was a landfill at the time.

At the closing, Hanlon presented his list of problems and defects of the mobile homes. Hanlon was warned that Georgia is a “buyer beware” state and these considerations should be taken into account before making an offer on the property. Hanlon left the closing, talked with a friend for about an hour and then returned to the closing. Hanlon demanded and received a price concession from the sellers for the defective items.

After the closing, Hanlon and his wife moved to Georgia and into one of the mobile homes on the property. Hanlon claimed that he then learned that the property was less than the 36 acres that had been represented in a flier and that it was not suitable for a mobile home park. Hanlon also discovered that the property was adjacent to a landfill. Because of the landfill, Hanlon claimed he was forced to spend $10,000 for a new well because the original well kept drying up and produced discolored water which smelled of sulphur. Hanlon states that he also had to replace a furnace, a stove and a refrigerator in the mobile homes, as well as re-coat one of the roofs.

On December 3, 1993, Hanlon filed a complaint against Steve Brannen and his employer, Purvis & Associates, R. M. Thornton, the listing agent and his company, Smith-Boley-Brown and the sellers of the property, Luther and Evelyn Smith, alleging fraudulent misrepresentations and concealment. The trial court granted defendants’ motions for summary judgment.

1. In enumerations of error 1 and 2, Hanlon claims that the trial court erred in finding there existed no genuine issues of material fact regarding his due diligence and justifiable reliance as to the sellers’ misrepresentations regarding the landfill and the value of the property.

Hanlon claimed that Brannen told him there were no landfills in the area and also that the property had been appraised at $150,000. Hanlon also claimed that he believed that Brannen was representing him as well as the sellers of the property, because this dual agency was allowed under California law and Brannen told him that Georgia law was the same as California law.

The tort of fraud has five elements. These are: (1) false representation by a defendant; (2) scienter; (3) intention to induce the plaintiff to act or refrain from acting; (4) justifiable reliance by the plaintiff; and (5) damage to the plaintiff. Crawford v. Williams, 258 Ga. 806 (375 SE2d 223) (1989). In order to survive a motion for summary judgment, plaintiff must show some evidence as to each element. Id. In order to prove the element of justifiable reliance, the plaintiff must show that he exercised his duty of due diligence. Hill v. Century 21 Max Stancil Realty, 187 Ga. App. 754, 756 (371 SE2d 217) (1988).

Hanlon cites Dorsey v. Green, 202 Ga. 655, 659 (44 SE2d 377) (1947), for the proposition that “[wjhile a party must exercise reasonable diligence to protect himself against the fraud of another, he is not bound to exhaust all means at his command to ascertain the truth before relying on the representations.” However, Dorsey involved actions of an executor of a will who had a fiduciary obligation which is lacking in this case. Dorsey, supra at 659. Moreover, “[t]he law in Georgia is well-settled that in the purchase and sale of real estate there is an underlying principle of law to the effect that one cannot be permitted to claim that he has been deceived by false representations about which he could have learned the truth of the matter and could have avoided damage.” (Citations and punctuation omitted.) Lester v. Bird, 200 Ga. App. 335, 338 (408 SE2d 147) (1991).

Here, Hanlon has failed not only to show that he exercised due diligence, but also that he made any independent effort whatsoever to discover the existence of any landfills in the area or the true value of the property. See Crawford, supra at 807. “When the means of knowledge are at hand and equally available to both parties to a contract of sale, if the purchaser does not avail himself of these means, he will not be heard to say, in impeachment of the contract, that he was deceived by the representations of the seller.” (Citations and punctuation omitted.) Hill, supra at 756. Further, the record shows that there was no fiduciary relationship between Hanlon and defendants and that Hanlon was aware that defendants were agents of the seller because this was specifically stated in the sales contract he signed. Moreover, paragraph 12 of the sales contract states that the purchasers have not relied on any representations of the real estate agents and if there are matters of concern to them, they have sought independent advice. Hanlon claims he should not be bound by this contract because he is seeking to rescind it. However, he has shown no basis for rescinding the contract. See Allen v. ReMax N. Atlanta, 213 Ga. App. 644, 646 (445 SE2d 774) (1994). Therefore, the trial court did not err in finding no genuine issues of material fact regarding Hanlon’s due diligence and justifiable reliance as to the seller’s representations regarding the landfill and the value of the property.

2. Next, Hanlon claims that the trial court erred in finding that his fraudulent concealment claims failed as a matter of law. Hanlon claimed that defendants concealed from him that there was a landfill in the area. He also claimed that Brannen told him that the trailers on the property were in good condition and the appliances worked, that the property had been appraised at $150,000 and that the wells on the property contained good drinking water.

In a claim for fraudulent concealment, a plaintiff must prove the same five elements of a fraud claim. Butler v. Terminix Intl., 175 Ga. App. 816, 817 (334 SE2d 865) (1985). Again, a plaintiff must prove that any “defect could not have been discovered by the buyer in the exercise of due diligence.” (Citations and punctuation omitted.) Webb v. Rushing, 194 Ga. App. 732, 733 (391 SE2d 709) (1990).

There is undisputed evidence in the record that Hanlon had the drinking water tested independently. Further, Hanlon inspected the trailers and made a list of problems. If he suspected there could be other problems, Hanlon should have had an inspector check the appliances. In addition, Hanlon could have asked for an independent appraisal of the value of the property.

As to the landfill, Hanlon claims that he asked about landfills in the area and was told there were none. Hanlon cites Ga.-Car. Brick & Tile Co. v. Brown, 153 Ga. App. 747 (266 SE2d 531) (1980), in support of his claim that concealing material facts may be fraud when the buyer asks a direct question and the truth is evaded. Ga.-Car. Brick, supra at 755. However, the facts in Ga.-Car. Brick are different from those in the instant case. The court found that the buyers in that case were entitled to rely on the representations made by defendant because the defendant had a special knowledge as to the properties of the bricks he was selling. Here, the defects and problems complained of were all easily discoverable. As discussed in Division 1, the buyer must prove that the defect could not have been discovered by the buyer in the exercise of due diligence. Webb v. Rushing, supra; Lively v. Garnick, 160 Ga. App. 591, 593 (287 SE2d 553) (1981). Hanlon has not shown that he even attempted to make an independent inquiry as to whether or not there was a landfill in the area. Since the existence of a landfill, as well as all the other items which Hanlon claims were fraudulently concealed by the defendants, was easily discoverable by Hanlon in the exercise of reasonable diligence, it cannot serve as a basis for finding defendants liable for fraudulent concealment. Lively, supra at 593.

Decided August 24, 1995

Reconsideration denied September 13, 1995

Barksdale, Irwin, Talley & Sharp, David B. Irwin, Barry G. Irwin, Daniel S. Digby, for appellant.

Winburn, Lewis & Barrow, Gene M. Winburn, John J. Barrow, Fortson, Bentley & Griffin, Robert N. Elkins, Graham & Graham, Felix P. Graham, Jr., for appellees.

Weissman, Nowak, Curry & Zaleon, Seth G. Weissman, Teresa L. Perrotta, amici curiae.

3. Because of our holdings in Divisions 1 and 2, it is unnecessary to address the remaining enumerations of error. Accordingly, we find that the trial court did not err in granting appellees’ motion for summary judgment.

Judgment affirmed.

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


text:
    A95A0980.
    SMITH v. WILFONG.
    (462 SE2d 163)
   Andrews, Judge.

Smith appeals from the trial court’s grant of summary judgment to Dr. Wilfong, her former urologist/surgeon, on the second count of her recast complaint, which alleged assault and battery.

Viewed under the standard of Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), the following facts were uncontested. Smith, who was diabetic, had suffered previous bouts of lower back pain for which she sought treatment from her regular physicians. On February 8, 1988, she went to an emergency room complaining of lower back pain and running a temperature. At that time, she denied any pain on urination.

Over the next several weeks, she continued to see different physicians about this problem and eventually sought treatment at the Coliseum Urgent Care Center where she was admitted on March 4, 1988, at which time she had no fever but continued to be in pain. An emergency room physician called in Dr. Wilfong. Prior to his seeing her, she had undergone an IVP test, a CT examination, and computerized tomography. These tests revealed some “mass defect” or difference in density in the right kidney. The IVP reported an “apparent mass off the superior pole of the right kidney. ...” The CT found a two-by-three-centimeter collection of fluid in a subcapsular location on the right kidney, “which has the CT configuration of a subcapsular hematoma” and no verifiable indication of any inflammatory process, which would be present in an abscess.

Viewing the contested facts with all inferences in Smith’s favor, Mackinnon v. Hodge, 204 Ga. App. 539 (420 SE2d 341) (1992), they were that Dr. Wilfong had an arteriogram performed on Smith on March 7, the results of which were also consistent with a subcapsular hematoma. While no objective evidence of a tumor had been shown on these tests, Dr. Wilfong opined, as well as Smith’s experts, that such a spontaneous hematoma could be an indication of tumor activity, even though not yet visible on the tests. Smith’s experts’ primary difference with Wilfong’s analysis was in the percentage of possibility of such a tumor, Wilfong saying 80 percent and the others 20 to 30 percent.

On March 7, Smith signed a printed “Authorization for Surgical Treatment,” containing the following: “I . . . hereby authorize Dr. Wilfong ... to administer such treatment as is necessary, and to perform the following operation: Right Nephrectomy [removal of the right kidney] and such additional operations or procedures as are considered therapeutically necessary on the basis of findings during the course of said operation.” The underlined portions were handwritten, the remainder typed.

Upon operating, Dr. Wilfong found a renal abscess, not a subcapsular hematoma. Also, the kidney was densely adhered to surrounding structures, and it was inflamed. The kidney was removed.

Smith does not contend that the removal of her right kidney was improperly done, only that a more conservative treatment of IV antibiotics might have saved her kidney. She acknowledges signing the consent but contends that the consent was fraudulently obtained by Dr. Wilfong’s telling her that: 1) her kidney was “enlarged to the size of a football”; 2) the kidney was surrounded by blood or fluid; 3) there was a tumor-like cyst on the kidney, and it was best to remove it; 4) it would not do any good to send her home on antibiotics because she would only be back in two or three days; and 5) her kidney was “no more good.”

1. In answering the recast complaint, Dr. Wilfong asserted the statute of limitation as a defense. This ground was also addressed in his motion for summary judgment. Since the trial court’s order granting the motion as to the assault and battery count does not state the basis upon which it was granted, we must consider all possible theories which could support it.

Under OCGA § 9-3-33, an action for assault and battery “shall be brought within two years after the right of action accrues[.]” Smith signed the consent form on March 7, and the surgery occurred on March 8, 1988. Her original complaint was filed on February 7, 1990, alleging medical malpractice. Smith’s deposition was taken on May 24, 1990, at which time she was aware of Wilfong’s allegedly fraudulent statements she claims induced her into signing the consent form. The recast complaint alleging assault and battery was filed on February 4, 1993.

OCGA § 9-11-15 provides in subsection (a) that “[a] party may amend his pleading as a matter of course and without leave of court at any time before the entry of a pretrial order.” Subsection (c) provides that “[w]henever the claim . . . asserted in the amended pleading arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading.”

Nothing in the record indicates the entry of a pretrial order, leaving the issue of whether the assault and battery count added by amendment arose out of the same conduct, transaction, or occurrence giving rise to the original malpractice count. Dover Place Apts. v. A & M Plumbing &c. Co., 167 Ga. App. 732, 734 (307 SE2d 530) (1983); see Day v. Norman, 207 Ga. App. 37, 38 (1) (427 SE2d 31) (1993).

“ ‘[T]he question of relation back of the amendment . . . turns on fair notice of the same general fact situation from which the claim arises. [Cits.]’ (Emphasis supplied.) [Cit.] ‘It is apparent that the strict rule of no relation back of the amendment to the time of filing the original complaint because (of) the assertion of a new cause of action is no longer applicable unless the causes of the action are not only different but arise out of wholly different facts’ (Emphasis supplied.) [Cit.]” Dover Place Apts., supra at 734.

It cannot be said that the alleged malpractice in diagnosing Smith’s kidney problem and the alleged unauthorized touching involved in the operation due to the claimed fraudulently obtained consent arise from wholly different facts. Therefore, the amendment relates back to the original complaint and is not barred by the statute of limitation. Morris v. Chewning, 201 Ga. App. 658 (411 SE2d 891) (1991); see Gordon v. Gillespie, 135 Ga. App. 369, 375 (1) (217 SE2d 628) (1975).

The statute of limitation could not have been the legal premise upon which the trial court granted summary judgment on the assault and battery claim, absent a finding by the court that Smith’s delay in filing the amendment was the result of laches or unexcusable delay on her part. Morris, supra; Gordon, supra. The only evidence relied upon by Wilfong as reflecting laches or unexcusable delay is the two years and seven months which elapsed between the original and recast complaints. Mere lapse of time in filing an amendment is not enough to bar the amendment absent demonstrated prejudice to the opposing party. Morris, supra; Gordon, supra. Here, there has been no showing of such prejudice.

2. “In order ‘(t)o prevail on a motion for summary judgment (OCGA § 9-11-56), a defendant-movant is required to pierce the allegations of the complaint and to establish as a matter of law that the plaintiff could not recover under any theory fairly drawn from the pleadings and the evidence. [Cits.]’ [Cits.]” Willis v. Allen, 188 Ga. App. 390, 391 (373 SE2d 79) (1988).

The issue of the medical appropriateness of the removal of the entire kidney is subject to dispute and still pending in the malpractice claim. Even assuming, however, that Dr. Wilfong’s diagnosis and treatment comported with medical standards, that does not settle the matter of the assault and battery. “Even if medical treatment is recommended and would be in the patient’s best interest, the patient has the right to refuse such treatment in the absence of conflicting state interest. [Cits.]” Joiner v. Lee, 197 Ga. App. 754, 756 (1) (399 SE2d 516) (1990).

Dr. Wilfong denied telling Smith that her kidney was enlarged to the size of a football, was surrounded by blood or fluid, further antibiotic treatment was of little avail, and that her kidney was no good. Smith’s affidavit in opposition to summary judgment states that she “consented to the removal of my right kidney relying on the representations and recommendations of Dr. Wilfong. ... If I had known that my right kidney was functioning normally; that it was not enlarged to the size of a football; that there was no evidence of significant or major bleeding in or around the kidney; that there was not evidence of a tumor like cyst; and that there was an alternative to the nephrectomy that could save my kidney without surgery, I would not have consented to the surgery.” Smith’s expert nephrologist stated that needle aspiration should have been tried before a total nephrectomy was performed and that prolonged treatment with antibiotics was a viable alternative treatment.

Decided September 1, 1995

Reconsideration denied September 13, 1995

Thomas W. Bennett, for appellant.

Chambless, Higdon & Carson, Joseph H. Chambless, James D. Tolliver, for appellee.

“The question is whether the consent was valid. The law expressly recognizes that it is not valid if it was obtained by fraudulent misrepresentations of material facts. [See OCGA § 31-9-6.] Mere negligence is not enough. The law of fraud in this state ... is that: ‘Fraud, accompanied by damage to the party defrauded, always gives a right of action to the injured party.’ OCGA § 51-6-1. ‘Willful misrepresentation of a material fact, made to induce another to act, upon which such person acts to [her] injury, will give [her] a right of action. Mere concealment of a material fact, unless done in such a manner as to deceive and mislead, will not support an action.’ OCGA § 51-6-2 (a). Georgia also recognizes that ‘(a) fraud may be committed by acts as well as words.’ OCGA § 51-6-4 (a). ‘Actual fraud consists of any kind of artifice by which another is deceived. Constructive fraud consists of any act of omission or commission, contrary to legal or equitable duty, trust, or confidence justly reposed, which is contrary to good conscience and operates to the injury of another.’ OCGA § 23-2-51 (b).” Spikes v. Heath, 175 Ga. App. 187, 189 (2) (332 SE2d 889) (1985).

Here, the dispute as to what was said between doctor and patient creates questions of fact which involve credibility. Such questions are not appropriate for resolution on summary judgment. Spikes, supra; Joiner, supra. Compare Kelly v. Reid, 186 Ga. App. 89, 90 (1) (366 SE2d 315) (1988) (no evidence of fraudulent misrepresentations).

Judgment reversed.

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

       The remaining count of medical malpractice remains pending below.

       Smith acknowledges that she did not report her prior visits to other doctors as she saw different ones, either in the emergency room or at her private practitioner’s office.

       He acknowledges that he told her there was the possibility of a tumor and some of the tests reflected a mass.


author: Birdsong, Presiding Judge.

text:
    A95A1541.
    HOPKINS et al. v. HUDGINS & COMPANY, INC.
    (462 SE2d 393)
   Birdsong, Presiding Judge.

William Alfred Hopkins and Joyce Hopkins appeal the state court’s order granting appellee/defendant Hudgins & Company’s motion to dismiss or, in the alternative, motion for summary judgment.

Appellant William Hopkins (hereinafter appellant) purchased a metal, roll-up, garage-type door from appellee; appellee’s personnel estimated its weight as ranging between 200 and 400 pounds. Parts to the door were loaded on appellant’s truck in appellee’s supply yard. Appellant, by way of deposition, testified he was standing several feet behind his truck when he was hit by something hard and was knocked unconscious. Appellant received severe head injuries. Some circumstantial evidence exists that, under appellant’s version of the incident, he was struck by metal door parts being carried by a skid-steer loader (forklift). However, appellant’s medical records reflect that appellant or his wife informed medical personnel that appellant was injured when he fell off the back of his own truck. Subsequently, in an affidavit in opposition to the motion at issue, appellant asserts that he had never lifted a door of this weight before, and that if he had known it weighed 300 to 400 pounds he would never have agreed to lift it off of the forks of the forklift. Appellant and his wife in their affidavits proceed to explain the discrepancy in appellant’s testimony as follows: The injury caused appellant a memory loss; immediately following the accident H. T. Hudgins told appellant’s wife that appellant was injured when he fell off his truck. Believing this to have occurred, appellant’s wife thereafter told both medical personnel and appellant that he had been injured when he fell off his truck; appellant may have repeated this information to hospital personnel himself as initially he had thought he must have been in an automobile accident. Later, after appellant was released from the hospital and returned home, his memory appeared to return; the last thing he now remembers is standing five to six feet behind his truck, seeing that the door had already been loaded on the truck, and then being hit.

Steven Hudgins (part owner of appellee business) and an employee who was operating the forklift testified, by way of their depositions, that appellant had insisted that the door be manually loaded on his truck to prevent damage. It was then agreed between appellant and Hudgins that the door would be carried on the forklift to the side of the truck and lowered until the forklift prongs almost touched the sideboards of the truck; appellant and Hudgins then would manually lift the door and place it on the truck bed. Hudgins was near the truck cab facing the end of the truck; appellant was standing near the end of the truck facing the cab. Before the men attempted to lower the door, Dantzler, the forklift operator, offered to assist, but appellant and Hudgins both declined the offer indicating they could handle the job by themselves. As the door was being lowered, appellant appeared to slip and fell off the truck bed, injuring himself.

Dantzler’s deposition testimony basically corroborates Hudgins’ account of the events. However, Dantzler further testified: As appellant and Hudgins proceeded to unload the door it got away from them; this was caused by “just the weight itself.” “They should have checked [the door] before they grabbed it. . . . [T]hey underestimated [the door], that was all.” It appeared to Dantzler that the door may have hit appellant on the thighs or shin; the weight of the door “sort of pushed” appellant back. The evidence as to appellee’s policy of allowing customers to load their own merchandise is conflicting in part. However, Dantzler testified that appellee had a policy not to let customers help load. H. T. Hudgins or his boys told Dantzler not to let customers help load things because it was too dangerous and not to let customers help load because if they got hurt there would be no insurance coverage. Dantzler believed that the way the door was being unloaded was not dangerous.

Steven Hudgins testified that yard procedures are governed by OSHA regulations. Appellant offered expert testimony by way of an affidavit of a safety engineer who opined that the loading procedure violated an OSHA safety regulation and ANSI Standard 605 and that the procedure used also was a gross violation of the ordinary care standard.

There also exists various photographs of record of appellant’s truck, the door, and its components.

Each of appellants’ five enumerations of errors asserts that the trial court erred in granting summary judgment to appellee. Held:

1. (a) The applicable summary judgment standard is that of Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474). Further, in ruling on a summary judgment motion, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. Moore v. Goldome Credit Corp., 187 Ga. App. 594, 595-596 (370 SE2d 843).

(b) Appellant was an invitee on appellee’s premises; he was a customer who had purchased a steel garage door, which was being loaded onto his truck at the time of his injury. “A proprietor is not an insurer of the invitee’s safety.” Shansab v. Homart Dev. Co., 205 Ga. App. 448, 450 (3) (422 SE2d 305). Appellee owed appellant a duty of ordinary care not to injure him while he was on the premises. Compare Lipham v. Federated Dept. Stores, 263 Ga. 865 (440 SE2d 193) with OCGA § 51-3-1 and Motel Properties v. Miller, 263 Ga. 484, 485 (1) (436 SE2d 196).

(c) “Except in plain, palpable and undisputed cases where reasonable minds cannot differ as to the conclusions to be reached, questions of negligence, proximate cause, including the related issues of foreseeability, assumption of risk, lack of ordinary care for one’s own safety, lack of ordinary care in avoiding the consequences of another’s negligence, contributory and comparative negligence are for the jury.” Wade v. Mitchell, 206 Ga. App. 265, 268 (4) (424 SE2d 810) and cases cited therein.

(d) It is not grounds for reversal that the trial court elected not to issue findings of fact and conclusions of law in support of its grant of summary judgment. OCGA § 9-11-52; Dixie Diners &c. v. Gwinnett Fed. Bank, FSB, 211 Ga. App. 364 (439 SE2d 53). However, such findings and conclusions frequently can be helpful to appellate courts and instructive to the parties. See Harrell v. Louis Smith Mem. Hosp., 197 Ga. App. 189 (1) (397 SE2d 746).

(e) We decline to invoke the contradictory testimony rule of Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) against appellant, regarding the alleged contradictions between his deposition testimony and between his medical records, concerning the circumstances surrounding the manner in which he was injured. “[E]ven where testimony is contradictory, if a reasonable explanation is offered for the contradiction, the testimony will not be construed against the party-witness. The burden rests upon the party giving the contradictory testimony to offer a reasonable explanation, and whether this has been done is an issue of law for the trial judge. [Cit.]” Id. at 30 (2). We find that a reasonable explanation was offered in this particular case for the apparent contradiction between appellant’s deposition testimony and the medical history recounted in his medical records regarding the manner in which he sustained major head injuries. That is, as above discussed, the injury caused appellant a memory loss, and after a certain lapse, his memory returned causing appellant to have made varying statements as to the manner in which his injury occurred.

2. We cannot conclude from the evidence of record that this is such a clear and palpable case as to warrant an exception to the general rule requiring negligence and related issues to be submitted to a jury. Wade v. Mitchell, supra.

Additionally, we are satisfied that this case should be submitted to the jury regardless whether appellant’s injuries were sustained when he was on the ground merely looking at the truck or when he was on the truck bed and in the act of assisting in the unloading of the door. The evidence, under either scenario, lends itself to the drawing of more than one reasonable inference as to appellant’s cause of action and appellee’s various defenses. For example, under appellee’s version of the incident, the various photographs of appellant’s truck, the door, and its component parts, especially when coupled with the deposition testimony of the forklift operator, would enable a jury to draw more than one reasonable inference regarding issues of negligence and assumption of the risk. “It is the jury’s function to draw an inference from the evidence when more than one inference can be drawn.” Thompson v. Crownover, 259 Ga. 126, 130 (6) (381 SE2d 283).

Decided August 23, 1995

Reconsideration denied September 13, 1995

Davis, Zipperman, Kirschenbaum & Lotito, E. Marcus Davis, Barry L. Zipperman, for appellants.

Alembick, Fine & Callner, Mark E. Bergeson, Janet L. Franchi, for appellee.

Judgment reversed.

Johnson and Smith, JJ., concur.


text:
    A95A1559.
    ROBERSON v. EICHHOLZ.
    (462 SE2d 382)
   Birdsong, Presiding Judge.

Attorney Benjamin Eichholz sued attorney David Roberson for breach of a joint representation contract. The client later obtained other counsel and reached a settlement of $1,300,000, of which Roberson received $300,000. The trial court granted partial summary judgment to Eichholz, ruling that the letter agreement between Eichholz and Roberson was a valid contract.

This is Roberson’s statement of fact: “On January 2, [Roberson] entered into a contingency fee contract with [the client, Mincey] to provide legal representation. . . . Prior to the execution of the Mincey contract, Roberson and [Eichholz] discussed the joint representation of Mincey, which culminated in a memorandum . . . ‘attempting’ to set forth their understandings, with an agreement to enter into a formal written contract at a later date. Roberson proceeded to represent Mincey. . . . The complaint did not list Eichholz as an attorney of record. . . . The [formal written contract prepared by Eichholz] was never executed. On May 10, 1988, Roberson advised Eichholz that he was severing any relations they may have had. . . . Eichholz repeatedly attempted to coax Roberson into executing the contract [and] appeared, uninvited, at Roberson’s office. He was asked to leave.”

This statement of facts is incomplete to the point of being misleading. It implies that Roberson was first retained by Mr. Mincey (on January 2, 1988); that Roberson contemplated associating Eichholz in the case but never did so; and, in short, that Eichholz had nothing to do with the case.

A more complete statement of facts reveals that it was Eichholz whom Mr. Mincey first contacted, in December 1987. Eichholz then associated Roberson because, according to Eichholz, Mr. Mincey wanted an African-American lawyer involved. The letter agreement by which Eichholz associated Roberson was entered January 1, 1988, the day before Mr. Mincey entered a fee agreement with Roberson. The letter written by Eichholz to Roberson states: “This letter shall attempt to set forth our mutual understandings and agreements that were reached in our office conference ... in my office on January 1, 1988. . . . We discussed our joint efforts in regards to the representation of . . . Raymond Mincey against any and all parties as a result of his traffic accident that occurred on or about July 17, 1987. Based on my representation to you that the legal services contract which Mr. Mincey will eventually enter into will be based on 30 percent attorney fees prior to either the filing of the lawsuit or the [trial] and 40 percent after the filing of a lawsuit or the [trial], we have agreed that your share of attorney fees would be as follows: 5 percent of the first one million dollars as long as the total attorney fees are 30 percent. In the event that the 40 percent attorney fee provision is triggered, then your share of the attorney fees would be increased to 10 percent and there would be no cap on the fees. We have agreed that our firm will be responsible for the payment of any charges assessed against you or your firm as the result of Rule 11 of the Federal Rules. . . . Our obligation to pay any of [such charges] will be limited to any legal documentation, filing or motion that was prepared by our firm and jointly signed by you, but will not apply to any legal documentation, filing or motion that was prepared by you and not signed jointly by our firm. This letter shall further confirm that in the event that any civil liability results from your representation of the claim of [Mincey] . . . then the firm of Eichholz & Associates, P. C. hereby agrees to indemnify you and your firm from any damages. . . . Your main duty in the handling of this case will be for the transition of the representation of Mr. Mincey’s interest from [another firm] to [Roberson’s firm]. Once your firm has been properly engaged to represent the interests and claim of Mr. Mincey, then we will enter into a more formal and binding agreement which will set forth the parameters laid down in this letter. Once your representation has begun then we will take over virtually all of the aspects of the actual handling of the claim of Mr. Mincey including, but not limited to, investigation, collection of medical record, preparation of statement of claim for submission to the insurance company, handling of settlement negotiations and all attendant matters. You will also be called on whenever necessary to meet with the client and to keep him posted as to the progress of our efforts. . . . Please signify your acceptance and understanding of the terms contained herein by affixing your signature on the line provided below. Very sincerely yours EICHHOLZ & ASSOCIATES, P. C. By: Benjamin S. Eichholz [signed] . . . Hereby read, approved and accepted by me 1st day of January, 1988. David Roberson and Associates, P. C. By: David R. Roberson [signed].” (The clause providing five percent fee to Roberson was stricken through with “ten” written to the side, initialed by both Roberson and Eichholz, with the date “1-2-88.”) Held:

1. No bona fide controversy exists that the letter agreement between the parties dated January 1, 1988 contains all terms and conditions necessary to form a valid and binding contract, and it is enforceable. The contract provisions did not require future negotiations or indicate that an agreement had not been reached on the essential conditions. The provisions contained the agreed-upon subject matter, consideration, terms, and the uncontroverted mutual assent by both parties to its terms. Cole v. Shoffner, 205 Ga. App. 65, 67 (421 SE2d 322). See Green v. Johnston Realty, 212 Ga. App. 656, 658 (442 SE2d 843); see also Beckworth v. Beckworth, 255 Ga. 241 (336 SE2d 782). The letter agreement of January 1, 1988 sets forth the responsibilities of the parties, their compensation, and even provides for indemnity by Eichholz’ firm. It is not vague, and it is not lacking in consideration. OCGA § 13-3-40. If all the essential terms of a contract are agreed on, an agreement to enter another contract in the future does not destroy the validity of the contract entered. See Cole, supra; Wells v. H. W. Lay & Co., 78 Ga. App. 364 (2) (50 SE2d 755). And see Poulos v. Home Fed. Sav. &c., 192 Ga. App. 501 (385 SE2d 135).

Moreover, to the extent that a more formal contract was never entered because Roberson refused to do so, he is the party who breached the agreement to enter a separate contract while continuing to accept the fruits of the letter agreement by which Eichholz associated him. Equity therefore prevents him from complaining that another agreement was never entered. See OCGA § 13-4-23.

2. Further, the agreement was partially performed by Roberson. The doing of the contemplated acts furnished the consideration and mutuality for the original agreement, even if such agreement at its inception had been nudum pactum. R. T. Patterson Funeral Home v. Head, 215 Ga. App. 578, 584 (451 SE2d 812). To the extent that Roberson’s removal of the case from Eichholz prevented Eichholz and his firm from performing their part of the bargain, Roberson’s conduct excused Eichholz’ performance, for “[i]f the nonperformance of a party to a contract is caused by the conduct of the opposite party, such conduct shall excuse the other party from performance.” OCGA § 13-4-23.

Judgment affirmed.

Johnson and Smith, JJ., concur.

Decided August 16, 1995

Reconsideration denied September 13, 1995.

Allen & Perry, Roy L. Allen, Jr., Diane M. Morrell, for appellant.

Inglesby, Falligant, Horne, Courington & Nash, Sam P. Inglesby, Jr., for appellee.


text:
    A94A0146.
    GWINNETT I LIMITED PARTNERSHIP v. GWINNETT COUNTY et al.
    (462 SE2d 184)
    Decided September 13, 1995.

      Alston & Bird, T. Michael Tennant, Lori P. Hughes, Timothy J. Peaden, for appellant.

      Frederick D. Burkey, Caryl Sumner, Michael V. Stephens II, for appellees.
   Andrews, Judge.

In Gwinnett I L.P. v. Gwinnett County, 214 Ga. App. 248 (447 SE2d 679) (1994), we reversed the trial court’s grant of summary judgment in favor of Gwinnett County. In Gwinnett County v. Gwinnett I L.P., 265 Ga. 645 (458 SE2d 632), the Supreme Court reversed the judgment of this Court. Accordingly, the original judgment of this Court is vacated, the judgment of the Supreme Court is made the judgment of this Court, and the trial court’s grant of summary judgment in favor of Gwinnett County is affirmed.

Judgment affirmed.

Beasley, C. J., McMurray, P. J., Birdsong, P. J., Pope, P. J., Johnson, Blackburn, Smith and Ruffin, JJ., concur.


author: Beasley, Chief Judge.

text:
    A95A0973.
    MOCK v. THE STATE.
    (462 SE2d 429)
   Beasley, Chief Judge.

Mock was indicted for rape, child molestation, aggravated sodomy, aggravated sexual battery, and recidivism. Shortly before trial, he entered a guilty plea according to the procedure permitted in North Carolina v. Alford, 400 U. S. 25 (91 SC 160, 27 LE2d 162) (1970), and now appeals the court’s denial of his motion to withdraw it. The primary issue concerns the effect of Mock’s prescription drug use and withdrawal upon his capacity to enter the plea.

In June 1993, shortly after return of the indictment, Mock was hospitalized and diagnosed as having experienced continuous alcohol abuse and dependence. After submitting to a court-ordered forensic examination, he was found competent to stand trial.

At the guilty plea hearing in May 1994, the assistant district attorney stated that the evidence would show that in March 1993, the eight-year-old victim disclosed to her mother that the previous summer, Mock had performed various sexual acts involving his finger, mouth, and penis and her vagina and anus. When confronted with these accusations, Mock told police and others that he was drunk during this period and was afraid he might have done something but did not recall. The State and defense negotiated a plea under which the State agreed to waive the recidivist count, enter a nolle prosequi as to the rape count, and recommend that Mock receive concurrent ten-year sentences on the remaining counts. The court permitted the plea after examining Mock, accepting a stipulation by counsel, and independently finding that there was a factual basis for the plea.

From the evidence introduced at a hearing on Mock’s motion to withdraw his plea, it was shown that at the time of the plea hearing, Mock had been incarcerated for about a year. During this period, he had been prescribed 50 milligrams of Vistaril (an anti-anxiety medication) three times a day, 20 milligrams of Prozac (an antidepressant) once a day, and 200 milligrams of Elavil (an antidepressant) a day with a 150-milligram dosage taken each night. The medical records showed that due to concern about Prozac increasing the serum levels of the Elavil, Mock’s Elavil was temporarily withheld beginning the night before the plea hearing.

A medical expert called by Mock testified that it is somewhat dangerous to abruptly stop administering Elavil, so that the accepted method of withdrawal is a slow tapering off. He further testified that Elavil and Vistaril potentiate one another, and adding Prozac “can kind of upset the boat in several ways,” such as by increasing the serum levels of the other two. In the opinion of Mock’s expert, the purpose of these three drugs is to blunt feelings such as anxiety and depression to the point that the person taking the medications does not understand or care what is happening. He opined that the combined effect of administering these drugs to Mock over a prolonged period, together with withholding his Elavil dose the night before the plea hearing, would have been to impair his thinking ability and render him anxious, confused, and lethargic. But he had never examined Mock, and he admitted that it is difficult to determine the combined effect of these drugs in any given individual. Although he testified that alcoholics often have liver damage which interferes with the metabolizing of these three drugs, he did not know whether Mock’s liver was damaged.

The testimony of the medical expert called by the State, a psychiatrist from Georgia Regional Hospital, sharply conflicted with this testimony. He testified that Elavil and Prozac stabilize or normalize brain chemistry in people who are clinically depressed and that the purpose of administering these drugs, in combination with Vistaril, would be to render the patient more capable of clear and rational thought. He further testified that prescribing these three drugs in combination is rare but does not fall outside the accepted standard of care. He opined that it is unlikely that the taking of these three medications would have impaired Mock’s thinking such that he would have been unable to enter a plea intelligently or voluntarily and that the most likely effect of withholding the nightly dose of Elavil would have been to render him a bit more anxious the next day.

Mock’s experienced trial attorney testified that when he first met Mock, he was very lethargic and appeared to be under the influence of drugs but became more lucid and improved each and every time he saw him. At the guilty plea hearing, Mock did not seem any different to him than on other occasions.

The court, which had itself questioned the defendant and observed his demeanor at the plea hearing, ruled that the plea was entered knowingly, intelligently, and voluntarily. The court noted that a psychiatrist had examined Mock the day before he pleaded guilty and did not find anything wrong. Mock signed the negotiated plea form.

1. It is contended that in view of the fact that Mock was under the influence of mind-altering prescription drugs, one of which was withheld from him the night before the plea hearing, the State could not, as a matter of law, meet its burden of showing that his plea was intelligent, knowing, and voluntary. He cites no authority for this proposition, and we have found none. We reject it as having no basis in law or logic. The real question is whether as a matter of fact, the effect of the drugs being taken, together with the absence of the Elavil, prevented the plea from meeting the constitutional test.

It is true that before accepting the plea, the court did not make the usual inquiry as to whether the defendant was under the influence of alcohol or drugs. At the motion hearing, the court indicated that it did not ask this question because Mock had been incarcerated for at least a year and did not appear to be incapacitated. It is not a specific subject of inquiry addressed in Uniform Superior Court Rule 33, and there is no other per se legal requirement that this question be asked. However, it is the preferred practice to do so, particularly in light of the high incidence of drug and alcohol use by criminal defendants. In addition to assuring validity of the plea when taken, expressly questioning defendant on this subject forecloses later attacks such as the one in this case.

The appellate courts have held that even where a trial court fails to fully address the factors set forth in USCR 33.8, the error may be deemed harmless if “the record as a whole demonstrates that appellant’s plea was knowing and voluntary.” King v. State, 215 Ga. App. 139, 140 (1) (449 SE2d 870) (1994). See also Wood v. State, 190 Ga. App. 179, 181 (2) (378 SE2d 520) (1989); McClendon v. State, 256 Ga. 480, 481 (2) (350 SE2d 235) (1986). Cf. Purvis v. Connell, 227 Ga. 764 (182 SE2d 892) (1971).

Under all the circumstances here, including those shown by the inquiries of defendant at the plea taking, it was not error to refuse a withdrawal of the plea, as the evidence supported the court’s findings of fact. There was ample basis for the court to find that the combined effect of the drugs administered to Mock improved his thinking ability and that the withdrawal of the Elavil did not deprive him of the capacity to knowingly, intelligently, and voluntarily enter his plea. See generally Mathis v. State, 199 Ga. App. 538 (405 SE2d 528) (1991); compare Rowland v. State, 72 Ga. App. 793 (35 SE2d 372) (1945).

2. Mock also contends that at the plea hearing the court did not determine on the record that he understood the nature of the charges, as required by USCR 33.8, in that the court did not explain the elements of the criminal charges to him.

Again, it is by far better to do so and thereby establish contemporary assurance as well as avoid later questioning, but the law does not require the trial court to personally inform the accused of the elements of the crime to which he is pleading guilty. Clark v. State, 186 Ga. App. 106, 107 (1) (366 SE2d 361) (1988). Mock told the court that he had time to discuss the situation with his lawyer and was satisfied with his services. “ ‘(I)t may be appropriate to presume that in most cases defense counsel routinely explain the nature of the offense in sufficient detail to give the accused notice of what he is being asked to admit.’ [Cit.] It is not appellant’s contention that he did not have notice of the crime to which he pleaded guilty, but that the trial court did not inform him of the elements of the crime. It was not error to refuse to permit appellant to withdraw his plea based on this ground. [Cit.]” (Emphasis in original.) Id.; compare Breland v. Smith, 247 Ga. 690, 691 (2) (279 SE2d 204) (1981).

3. “[A]fter the pronouncement of sentence a motion to withdraw a plea of guilty addresses itself to the sound discretion of the trial court, and this discretion will not be disturbed unless manifestly abused. [Cit.]” Conlogue v. State, 243 Ga. 141 (1) (253 SE2d 168) (1979). We find no such abuse.

Judgment affirmed.

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

Decided September 13, 1995

Calhoun & Associates, John R. Calhoun, Gregory N. Crawford, for appellant.

Spencer Lawton, Jr., District Attorney, Gregory M. McConnell, Assistant District Attorney, for appellee.


text:
    A95A1888.
    BROWN v. BENHAM et al.
    (462 SE2d 184)
    Decided September 13, 1995
    Walter L. Brown, pro se.

      Michael J. Bowers, Attorney General, Daryl A. Robinson, John C. Jones, Senior Assistant Attorneys General, for appellees.
   Birdsong, Presiding Judge.

1. In this case the following circumstances exist and are dispositive of this appeal: (1) the evidence supports the judgment; (2) no reversible error of law appears and an opinion would have no precedential value.

The judgment of the court below, therefore, is affirmed in accordance with Court of Appeals Rule 36 (1) and (2).

2. As we find no reasonable basis under which Brown might have anticipated the reversal of the trial court’s decision not to allow filing of his complaint, we assess a $250 penalty against Brown under Court of Appeals Rule 15 (b) for pursuing a frivolous appeal. Upon return of the remittitur, the trial court is directed to enter judgment against Brown in this amount. English v. Liberty Mtg. Corp., 205 Ga. App. 141, 143 (421 SE2d 286); Abrahamsen v. McDonald’s Corp., 193 Ga. App. 868, 871 (389 SE2d 386).

Judgment affirmed with direction.

Johnson and Smith, JJ., concur.


author: Blackburn, Judge.

text:
    A95A1910.
    TWEEDELL v. THE STATE.
    (462 SE2d 181)
   Blackburn, Judge.

Following a trial by jury, John Tweedell was convicted of one count of battery in violation of OCGA § 16-5-23.1. This appeal followed.

While the victim, Marcus Cunningham, was in line to pay for a pack of cigarettes at a convenience store, Tweedell entered the store and challenged Cunningham to a fight. As Cunningham attempted to exit the store, Tweedell struck him with his fist. The store manager separated them and ordered them to leave the premises. Tweedell followed Cunningham’s car until Cunningham stopped; Tweedell then repeatedly struck Cunningham with his fist until Cunningham’s brother heard the commotion outside and chased Tweedell away.

1. On appeal, Tweedell asserts the trial court erred in permitting the State to inquire as to whether defense witnesses had discussed their testimony with defendant’s counsel prior to trial. He argues that this inquiry adversely affected the credibility of the defendant’s witnesses.

The record shows that the State asked several of the defendant’s witnesses when they first discussed this case with defendant’s counsel. One of the witnesses stated she had met with counsel four or five times prior to testifying. The other stated he discussed the case with counsel for the first time on the morning of trial. The State also inquired of its own witnesses, the victim and his girl friend, whether they had discussed their testimony with the prosecutor prior to coming to court, and they testified they had not.

The breadth of cross-examination of a witness is within the discretion of the trial court, “and the results of the exercise of that discretion will not be interfered with on appellate review unless the discretion was manifestly abused.” (Punctuation omitted.) Walker v. State, 215 Ga. App. 790, 791 (452 SE2d 580) (1994). “The State, like any other party, has the right to conduct a thorough and sifting cross-examination of a witness as to any material issue.” Wilkey v. State, 215 Ga. App. 354, 355 (450 SE2d 846) (1994). After a review of the record, we conclude that the prosecutor’s questions related to the witnesses’ credibility, a line of inquiry which is always relevant and material and therefore admissible. Under the circumstances, we find no abuse of discretion.

2. Tweedell alleges that after defense counsel inadvertently failed to call defendant to testify, the trial court erred by refusing to allow defense counsel to correct this oversight.

“It is well settled that the reopening of the evidence is within the sound discretion of the trial court. That decision will not be disturbed absent an abuse of discretion. [Cits.]” Killens v. State, 184 Ga. App. 717, 721 (362 SE2d 425) (1987). The defense presented several witnesses after which it rested. The court inquired whether any further evidence was forthcoming from the defense, to which defense counsel responded in the negative. Only after the State presented rebuttal witnesses, the charge conference, and a lunch break (during which it appears the defendant spoke to the victim) did defense counsel seek to reopen the evidence so the defendant could testify. No proffer was made as to Tweedell’s testimony at the trial level; therefore, we are unable to ascertain how he was harmed by the court’s ruling. Mooneyham v. State, 251 Ga. 404, 408 (306 SE2d 272) (1983). We conclude there was no abuse of discretion by the trial court in this matter.

Decided September 13, 1995.

James W. Bradley, for appellant.

Keith C. Martin, Solicitor, Michael P. Baird, Assistant Solicitor, for appellee.

To the extent counsel is alleging ineffective assistance of counsel, by this enumeration of error, we find that such issue is not properly before us. Normally claims for ineffective assistance of counsel raised for the first time on appeal are remanded to the trial court for an evidentiary hearing. Smith v. State, 255 Ga. 654, 656 (341 SE2d 5) (1986). However, in this case the defendant’s trial counsel is also his appellate counsel. “[D]efense counsel is precluded from presenting a claim of ineffective assistance of counsel concerning a trial in which he participated due to the ethical prohibition against a lawyer acting as a witness.” McGuire v. State, 185 Ga. App. 233, 238 (363 SE2d 850) (1987). However, defendant’s right to raise an ineffective assistance of counsel claim is not waived but is not properly presented before this Court, and thus, we cannot address it at this time. Dobbs v. State, 199 Ga. App. 793, 796 (406 SE2d 252) (1991). See also Nixon v. State, 255 Ga. 656, 657, n. 1 (340 SE2d 7) (1986).

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.


text:
    A95A2067.
    COMLEY v. THE STATE.
    (462 SE2d 432)
   Blackburn, Judge.

John Joseph Comley appeals his conviction of aggravated assault, criminal trespass, possession of a firearm during commission of a felony, and two counts of reckless conduct.

1. On appeal, Comley contends the trial court erred in denying his motion to suppress his in-custody statement. Specifically, Comley argues that he requested an attorney and was not provided with one prior to questioning.

At the Jackson-Denno hearing, Ken Padgett, a criminal investigator with the Calhoun Police Department, testified that after he read the Miranda rights form to Comley and Comley agreed to talk to him, Comley said, “I will need an attorney, though, unless this is settled.” Padgett responded, “Let me get you to sign. I’ve read you your waiver of rights. Just sign right here that you understand those rights, and I’ve not made any promises.” Comley then signed the waiver of rights form and engaged in a discussion with Padgett without mentioning an attorney. The entire interview was tape-recorded, and the trial court reviewed the transcript of the interview.

“Although it is clear that when an accused invokes his right to have counsel present during interrogation, all further interrogation must cease, it also appears that where that request is for a specific purpose other than interrogation, such as to have an attorney at trial, and does not encompass a desire to deal with the police only through counsel, interrogation may continue.” (Citations, punctuation, and footnote omitted.) Berry v. State, 254 Ga. 101, 104 (326 SE2d 748) (1985). See also Hall v. State, 255 Ga. 267, 271 (336 SE2d 812) (1985).

An investigating officer has considerable latitude in responding to the defendant’s statements and formulating a reasonable response under the circumstances of the interview. See Hall, supra at 274. In the present case, the investigating officer concluded that Comley’s statement did not encompass a desire to deal with the police only through counsel, but instead was a request for legal representation should the matter proceed to trial. The trial court agreed with the investigating officer. As the trial court’s findings were not clearly erroneous, this enumeration is without merit. See Berry, supra at 104.

2. Comley contends the trial court erred in failing to charge the lesser included offenses of simple assault and pointing a pistol at another on the charges of aggravated assault. The trial court did charge the lesser included offense of reckless conduct, and the jury convicted Comley of the lesser included offense on two of the aggravated assault charges.

In the present case, the evidence shows that Comley pointed a gun directly at the head of one of the victims and threatened to shoot. Comley also waved the gun around in the direction of the other adults in the room. “Where, as here, the undisputed evidence shows that the assault was committed with a deadly weapon, it is not error to refuse to give a charge on simple assault as a lesser included offense. Under the facts here, [Comley] either committed an aggravated assault or none at all. There was no evidence of an attempt to commit an injury not involving a gun.” (Citations and punctuation omitted.) (Emphasis in original.) Dickerson v. State, 207 Ga. App. 241 (1) (427 SE2d 591) (1993). Therefore, the trial court did not err in failing to charge the lesser included offenses requested by Comley.

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.

Decided September 13, 1995.

Scott J. Forster, for appellant.

T. Joseph Campbell, District Attorney, for appellee.

       Comley was tried with two co-defendants who are not involved in this appeal.


text:
    A95A2248.
    WILLIFORD v. THE STATE.
    (462 SE2d 632)
   Blackburn, Judge.

Defendant Travis Williford appeals the trial court’s denial of his motion for stay and supersedeas bond following his conviction and incarceration for selling and possessing drugs. He contends that the trial court erred in denying supersedeas by failing to enter written findings of fact in its order, by not considering evidence in support of the grant of supersedeas and weighing it against the evidence for denial of supersedeas, and in failing to consider the likelihood of success on appeal. Williford has filed a motion to expedite this appeal based upon the fact that he is incarcerated. Such motion is unnecessary, as in all criminal cases wherein the defendant is incarcerated, the clerk of the trial court is required to indicate such condition on the face of the record and this court is required to expedite the disposition thereof. OCGA § 5-6-43 (c).

Appellant first contends that the trial court erred by not making written findings of fact and conclusions of law in its order, relying on Birge v. State, 238 Ga. 88, 90 (230 SE2d 895) (1976); Weaver v. State, 200 Ga. App. 82, 83 (406 SE2d 574) (1991); Logan v. State, 151 Ga. App. 274 (259 SE2d 678) (1979); and Fong v. State, 148 Ga. App. 828, 831 (253 SE2d 218) (1979). Appellant’s contention is not supported by current law.

As discussed in more detail below, the Georgia Supreme Court in Birge, a 1976 case, prescribes the standards that a trial court should apply in determining whether to grant supersedeas, and it does not specifically require that the order set forth findings to support its ruling. This Court did, however, in White v. State, 146 Ga. App. 147, 148 (245 SE2d 870) (1978), set out the additional requirement that the findings of the trial court in support of its ruling at a supersedeas hearing be set out in writing. “The purpose of setting forth the supporting evidence is to give the appellate court the opportunity to determine if the trial court abused its discretion.” Id. This Court followed White in Logan v. State, supra, and in Fong v. State, supra, the cases cited by appellant. In Weaver v. State, this Court found that the trial court had, in fact, entered findings in its order, not that it was required to do so.

In Moore v. State, 151 Ga. App. 413, 414 (260 SE2d 350) (1979), this Court removed the writing requirement found in White, revising paragraph two of page 148 of White to read as follows: “In view of the number of cases we receive on the matter of appeal bond hearings, this court will set out the procedure a trial court must follow in order to abide by Birge. ‘(A)fter a sentence of imprisonment has been imposed, the question of the appellant’s custody pending final decision on appeal should be reviewed and a fresh determination made by the trial court.’ (Emphasis supplied.) Birge v. State, 238 Ga. 88, 89, supra. In doing so, the court must give applicant notice of the hearing and a chance to appear and be heard. At such hearing the burden of seeking a stay of execution and a release on bond is upon the applicant. Also, ‘the trial judge may consider all the evidence adduced at the trial that is pertinent to this determination in addition to such other oral and documentary evidence that he may consider appropriate.’ [Cit.] After the appeal bond hearing conducted in accordance with the above guidelines, the court must make its decision as to the granting or denying of the appeal bond by answering the question [s] set out in the above paragraph. [] The answer of ‘yes’ to any one of the above questions will support the denial of an appeal bond, absent an abuse of discretion. If an affirmative finding is reached as to any one of the four Birge criteria, for this court to consider the appeal the record must include a transcript or meet the requirements of [OCGA § 5-6-41], In the absence of a transcript we must assume as a matter of law that the evidence adduced at the hearing supported the findings of the court.

“Anything to the contrary in White v. State, 146 Ga. App. 147, supra; Johnson v. State, 147 Ga. App. 94 (248 SE2d 170) (1978); Fong v. State, [supra]; and Logan v. State, [supra], is hereby overruled.” (Emphasis supplied.)

Moore’s revision of White clearly deleted the requirement that a trial court, denying a motion for stay and supersedeas bond, set out in writing those facts supporting its determination. Therefore, in this matter, it was not error for the trial court to fail to set forth in writing the evidence supporting its determination which was contained in the record.

As to the substantive errors enumerated by the appellant, “[t]he granting of an appeal bond to a person who has been convicted of [a crime of the type herein involved] shall be in the discretion of the convicting court.” OCGA § 17-6-1 (g). In reviewing the trial court’s determination, we are mindful that “[t]he granting or refusing of bail in felony cases after indictment and conviction is a matter within the sound discretion of the trial court, and this court will not control that discretion unless it has been flagrantly abused. [Cits.]” Watts v. Grimes, 224 Ga. 227 (161 SE2d 286) (1968).

The Georgia Supreme Court in Birge adopted the following modified version of ABA Standards, Criminal Appeals, § 2.5 (a) and (b) (1974) for release pending appeal in noncapital felony cases: “ ‘(a) When an appeal has been instituted by a convicted defendant after a sentence of imprisonment has been imposed, the question of the appellant’s custody pending final decision on appeal should be reviewed and a fresh determination made by the trial court. The burden of seeking a stay of execution and release may properly be placed on the appellant. . . . (b) Release should not be granted unless the court finds that there is no substantial risk the appellant will not appear to answer the judgment following conclusion of the appellate proceedings and that the appellant is not likely to commit a serious crime, intimidate witnesses or otherwise interfere with the administration of justice, and that the appeal is not frivolous or taken for delay.’ ” An affirmative finding entered in the record as to any one of the pertinent Birge factors is sufficient to deny an appeal bond. Moore, supra at 414. Further, in conducting its hearing upon the motion for stay and supersedeas bond, a trial court is authorized to consider all the evidence adduced at the trial pertinent to the motion as well as such other oral and documentary evidence deemed necessary. Birge v. State, supra; Moore v. State, supra at 414-415.

Based on Williford’s sentence to 30 years confinement, a prior conviction for the possession of cocaine, and the evidence supporting the instant conviction upon two counts of selling cocaine and a third count of possessing cocaine, the trial court found that Williford was a flight risk and that the likelihood existed that he would commit other serious crimes, in effect, that Williford posed a danger to others.

Inasmuch as the findings of the court are supported by the record, we cannot say that the court abused its discretion in refusing to stay Williford’s sentence or grant an appeal bond.

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.

Decided September 13, 1995.

L. Scott McLarty, for appellant.

Lindsey A. Tise, Jr., District Attorney, Kathleen R. Johnson, Assistant District Attorney, for appellee.

       Notice of appeal on the merits of this case was timely filed in the trial court contemporaneously with the instant matter; however, that appeal is not before this Court at this time.

       “The above paragraph referred to in White is as follows: ‘The mandate of Birge v. State, supra, requires the trial court to address four questions when determining whether to allow an appeal bond: (1) Is there a substantial risk the applicant will flee? (2) Is there a substantial risk the applicant will pose a danger to others or to the community? (3) Is there a substantial risk the applicant will intimidate witnesses or otherwise interfere with the administration of justice? (4) Does it appear the appeal was frivolous or was taken only for purposes of delay? An affirmative answer to any of these questions will support denial of an appeal bond.’ ” Moore v. State, supra at 414.


text:
    A95A1683, A95A1684.
    STAFFING RESOURCES, INC. v. NASH; and vice versa.
    (462 SE2d 401)
   Blackburn, Judge.

On or about August 26, 1991, John Nash was injured when the forklift he was operating was struck by another forklift operated by Chris Hill. The accident occurred at a warehouse owned and operated by the Komatsu Dresser Company (Komatsu). Hill was a temporary laborer that Staffing Resources, Inc. (Staffing), a temporary employment agency, had supplied to Komatsu. On August 25, 1993, one day before the statute of limitation lapsed, Nash filed suit against Staffing alleging that he had been injured as a result of Hill’s negligence and that Staffing was liable on a theory of respondeat superior.

Subsequently, on December 9, 1994, Nash amended his complaint to state a claim against Staffing for negligent hiring, alleging that it supplied Hill to Komatsu with the knowledge that Hill had no training or experience in operating a forklift even though such skills might be required for his work at Komatsu.

Staffing moved for summary judgment first alleging that Hill was a “borrowed” servant of Komatsu when the accident occurred, and, consequently, Staffing was not liable for Hill’s alleged negligence under the doctrine of respondeat superior. Staffing further moved that Nash’s claim of negligent hiring was barred by the statute of limitation as it concerned “new facts” that would prevent it from “relating back” to the original complaint. The trial court denied Staffing’s motion on the respondeat superior argument and granted it on the statute of limitation basis. Both sides appealed.

The evidence reveals that Hill had only cursory contact with Staffing. Staffing exercised no supervisory control over Hill and had no knowledge of the specific job duties Komatsu had assigned to him.

1. Staffing claims that Hill was Komatsu’s “borrowed servant,” relieving Staffing of any derivative liability for Hill’s negligence. “One widely recognized exception to the doctrine of respondeat superior is the ‘borrowed servant’ rule. If a master lends his servants to another then the master is not responsible for any negligence of the servant committed within the scope of his employment by the other. Since vicarious liability for the acts of servants depends upon the master’s right of control over the acts of the servants, it is only logical that where employees are doing one job for two masters . . . both employers cannot have control over the actions of the employee at the same time.” Hoffman v. Wells, 260 Ga. 588, 589-590 (397 SE2d 696) (1990).

In order to determine when a loaned employee is considered a borrowed servant, three factors must be demonstrated: (1) The borrowing employer must have complete control and direction over the employee for the occasion; (2) the lending employer must have no such control and (3) the borrowing employer must have the exclusive right to discharge the employee. U. S. Fidelity &c. Co. v. Forrester, 230 Ga. 182, 183 (196 SE2d 133) (1973). The parties focus on the third factor.

Nash asserts that a disputed fact exists about whether Komatsu had the exclusive right to terminate Hill. Reviewing this testimony in a light most favorable to the nonmovant, it is apparent that if Komatsu found a temporary employee’s job performance to be unsatisfactory, it had the power to end that temporary employee’s assignment with Komatsu although Komatsu would “coordinate” the release with the temporary agency which supplied the employee. As one Komatsu manager put it, the actual “hiring and firing” duties were left to the temporary agency. Further, a Staffing representative testified that Staffing sometimes terminated its temporary employees because of the dissatisfaction expressed by a customer such as Komatsu. On the basis of this testimony, Nash argues that the authority to dismiss a temporary employee was jointly exercised by both Komatsu and Staffing and, thus, could not be exclusively vested in Komatsu. We disagree.

A similar issue was addressed by this Court in Stephens v. Oates, 189 Ga. App. 6 (374 SE2d 821) (1988); see also Sheets v. J. H. Heath Tree Svc., 193 Ga. App. 278 (387 SE2d 155) (1989). In Stephens, a temporary employee sued her temporary employer after she was injured by another employee. The temporary employer subsequently moved for summary judgment on the ground that workers’ compensation benefits were the temporary employee’s exclusive remedy because she was a borrowed servant at the time of her injury. In evaluating the third requirement of the borrowed servant test, it was held that the temporary employer’s exclusive power to discharge must relate only to the temporary assignment.

In the present matter, while it is clear that Staffing may have helped implement a dismissal, the decision to terminate a temporary worker from a temporary assignment belonged to Komatsu. Thus, Hill meets the third requirement and should be considered a borrowed servant of Komatsu. Accordingly, Nash’s claim to hold Staffing derivatively liable for Hill’s alleged negligence is without basis.

In light of the above, we reverse the decision of the trial court denying Staffing summary judgment on the issue of respondeat superior.

As the only error enumerated by Staffing concerned its liability by virtue of the doctrine of respondeat superior, we make no findings as to whether Nash was Hill’s fellow servant or whether the exclusive remedy of workers’ compensation applies in this case.

2. In his cross-appeal, Nash asserts that the trial court erred in determining that his claim for negligent hiring was barred by the statute of limitation. OCGA § 9-11-15 (c) outlines the test for determining when a late-filed claim will escape the bar of the statute of limitation: “Whenever the claim or defense asserted in the amended pleading arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading.” Thus an amendment asserting a new claim will relate back so long as the newly asserted claim arises out of the same set of facts alleged in the original complaint. Narrow readings of OCGA § 9-11-15 (c)’s requirements are discouraged as they defeat the purposes for which the statute was designed. Samples v. Barnes Group, 175 Ga. App. 253, 255 (333 SE2d 147) (1985).

In A. H. Robins Co. v. Sullivan, 136 Ga. App. 533 (221 SE2d 697) (1975) the initial complaint asserted medical malpractice for the improper placement of an intrauterine contraceptive device. That complaint was later amended to include a claim that the device was defectively manufactured. While the claims of medical malpractice and products liability were vastly different, it was determined, applying the test of OCGA § 9-11-15 (c), that these two claims arose out of the same set of facts. “[I]t cannot be disputed that [the manufacturer’s] alleged negligence (manufacture of the defective device) arose out of the same occurrence alleged in the original complaint (installation of the same device). See Sam Finley, Inc. v. Interstate &c. Ins. Co., 135 Ga. App. 14 (2) (217 SE2d 358) [(1975)].” Id. at 535.

Like Sullivan, the amended complaint in the present case may have concerned specific facts not addressed in the original complaint, however, the original complaint provided Staffing with “fair notice ... of the general fact situation” out of which the amended pleading arose. Samples, supra at 255. Thus, the amended complaint met the requirements of OCGA § 9-11-15 (c) such that it relates back to the original complaint, and the trial court erred in determining that the negligent hiring claim was time-barred.

3. This Court does not address herein whether or not a factual basis exists for the negligent hiring claim. While this issue was raised by Staffing, it was never ruled upon by the trial court.

Judgments reversed in Case Nos. A95A1683 and A95A1684.

McMurray, P. J., and Andrews, J., concur.

Decided August 28, 1995

Reconsideration denied September 14, 1995.

Van Gerpen, Harris & Parson, Earl J. Van Gerpen, Frank P. Harris, for appellant.

Curtis R. Richardson, for appellee.


text:
    A95A1734.
    DEPARTMENT OF HUMAN RESOURCES v. ANDERSON et al.
    (462 SE2d 439)
   Andrews, Judge.

Pursuant to the authority of OCGA § 19-11-12, the Georgia Department of Human Resources (DHR) ex rel. the minor child of Anderson and Camp conducted a review of an existing child support order and issued an administrative order pursuant to OCGA § 19-11-12 (d) adjusting the existing court award of child support. After the order was issued and the time limits for review set forth in OCGA § 19-11-12 (c) had expired, DHR petitioned the Superior Court for an order adopting the final administrative order as the order of the court. DHR appeals from the Superior Court’s denial of its petition.

OCGA § 19-11-12 was enacted pursuant to congressional mandate that the states periodically examine existing child support orders to address any inequities in the establishment of support obligations. Under OCGA § 19-11-12 (d), “[t]he administrative order adjusting the child support award . . . shall, upon filing with the local clerk of the court, have the full effect of a modification of the original order or decree of support.” The Superior Court concluded that the statute does not provide for the court to enter an order adopting the administrative order, but provides that, “upon filing with the local clerk of the court,” the administrative order, by operation of law, shall “have the full effect of a modification of the original [court] order” or decree of support.

DHR argues that DHR regulation 290-7-1-.08 provides authority requiring the court to enter an order adopting the administrative order. The regulation is predicated upon OCGA § 19-11-12 and provides that the Office of Child Support Recovery of DHR “may petition the appropriate court for modification in accordance with the final administrative decision. . . .” The regulation further provides for service of the petition upon the custodial and non-custodial parents and concludes that “[u]pon adoption by the court, the final administrative decision adjusting the child support award . . . shall have the full effect of a modification of the original order or decree of support.”

“The test of the validity of an administrative rule is twofold: whether it is authorized by statute and whether it is reasonable.” Brown v. State Bd. of Examiners of Psychologists, 190 Ga. App. 311, 312 (378 SE2d 718) (1989); Ga. Real Estate Comm. v. Accelerated Courses &c., 234 Ga. 30, 32-33 (214 SE2d 495) (1975). A valid administrative rule has the same force and effect as the statutory scheme upon which it is predicated. Dallas Blue Haven Pools v. Taslimi, 180 Ga. App. 734, 735-736 (350 SE2d 265) (1986). However, an administrative rule which exceeds the scope of or is inconsistent with the authority of the statute upon which it is predicated is invalid. Strickland v. Phillips Petroleum Co., 248 Ga. 582, 586 (284 SE2d 271) (1981); Rielli v. State, 174 Ga. App. 220, 222 (330 SE2d 104) (1985).

DHR argues that “[although OCGA § 19-11-12 (d) suggests that the mere filing of an administrative adjustment works a modification, the Department has established the cited procedure to assure against any perceived violation of the separation of powers principles embodied in the Constitution. Ga. Const. 1983, Art. I, Sec. II, Para. Ill . . . [and that] [t]he rule merely adds an additional procedure which allows a court to adopt the Department’s administrative findings and decision. . . .” The language of OCGA § 19-11-12 (d) does more than merely suggest that the filing of an administrative order with the clerk of the court modifies the court child support order — the statute flatly states that “[t]he administrative order adjusting the child support award . . . shall, upon filing with the local clerk of the court, have the full effect of a modification of the original order or decree of support.” To the extent the regulation at issue attempts to add a requirement that the final administrative decision adjusting a court award of child support must be adopted by the court to be effective as a modification of the existing court order, it is inconsistent with the clear authority of the statute. Accordingly, we conclude the trial court did not err by denying DHR’s petition for an order adopting the administrative order as provided by the regulation. Our decision in Dept. of Human Resources v. Lewis, 217 Ga. App. 399 (457 SE2d 824) (1995) remanding the case and ordering the court to reinstate its previous order adopting DHR’s administrative decision pursuant to OCGA § 19-11-12 did not address this issue and is not authority to the contrary.

Decided September 14, 1995.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, William M. Droze, Kevin M. O’Connor, Assistant Attorneys General, Kunz & Associates, Eva Jo L. Parmer, for appellant.

John C. Anderson, pro se.

Sandra C. Camp, pro se.

Judgment affirmed.

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

       The Superior Court denied the petition, then denied DHR’s motion for reconsideration. The court’s denial of the petition would have been a final order requiring a discretionary appeal under OCGA § 5-6-35 (a) (2), but for the clear language in the order allowing the matter to remain pending subject to further motion or amendment by DHR. Since this language rendered the order interlocutory, we granted DHR’s application for an interlocutory appeal to address the denial of the motion to reconsider. See Mayor &c. of Savannah v. Norman J. Bass Constr. Co., 264 Ga. 16, 17 (441 SE2d 63) (1994).

       The validity of OCGA § 19-11-12 is not an issue presented in this case.