author: Birdsong, Presiding Judge.

text:
    A91A1864, A91A1865.
    ALFORD et al. v. OSEI-KWASI et al.; and vice versa.
    (418 SE2d 79)
   Birdsong, Presiding Judge.

These appeals concern grants and denials of motions for summary judgment. Yolanda Alford and Sterling Alford, her minor son, brought this action against DeKalb County Deputy Sheriff, Lt. Peter Osei-Kwasi, DeKalb County Sheriff Pat Jarvis, DeKalb County Chief Jailer Wayne Melton, in their individual and official capacities, and against DeKalb County, Georgia, seeking damages under 42 USC § 1983 for violations of their rights under the United States Constitution and damages for violations of their Georgia constitutional rights and for state torts as a result of injuries allegedly incurred while Yolanda Alford was confined as a convicted prisoner in the DeKalb County Jail. At that time Yolanda Alford was seven-and-one-half months pregnant with Sterling.

Although there is no agreement about the incident immediately giving rise to these claims, the parties agree that Alford was in administrative isolation in the jail because of earlier fights with other inmates. Becoming upset that she was not allowed to leave her cell, Alford began kicking her cell door.

According to Osei-Kwasi, he was called to the scene by other jail personnel when their efforts to quiet Alford failed. After Alford disobeyed his order to stop kicking the door, he re-entered Alford’s cell with the intention of moving her to another location, but Alford resisted. Also according to Osei-Kwasi, he knew Alford was pregnant, knew that she would fight to get her way, and knew that she would not be easily subdued, and thus he decided to incapacitate her with a Taser. (A Taser fires darts attached to the gun with wires and temporarily incapacitates a prisoner with low amperage, high voltage electrical shock from a nine volt battery in the Taser.) Osei-Kwasi states he decided the Taser was the most appropriate means to subdue Alford because it would not cause permanent injury and would avoid a physical altercation with her which might result in injuries to Alford, her unborn child, and jail personnel. Osei-Kwasi states Alford was extremely abusive, defiant and belligerent and moved toward him in an aggressive manner before he fired the Taser. Alford was struck in the arm by the Taser’s darts and was incapacitated briefly. She was then taken to the jail clinic where she was examined and found without injury, except for where the Taser dart struck.

According to Alford, however, the Taser was used to punish her because she was creating a disturbance. She denies acting in a belligerent manner or that she assaulted or threatened Osei-Kwasi or other jail personnel. She claims that she was injured by the use of the Taser, that her injuries were ignored, and that because of the Taser she attempted suicide the next day.

Defendants moved for summary judgment asserting Alford did not suffer a constitutional deprivation and has no claim under 42 USC § 1983 or any state law theories. They also contended Sterling Alford had no claims because as an unborn child at the time, he had no constitutional rights. They also asserted they were entitled to judgment on any constitutional claims because of qualified immunity and on the state tort claims because of official immunity.

The trial court found Alford’s 42 USC § 1983 claim has two facets: (1) shooting her with a Taser, per se, constituted cruel and unusual punishment and (2) she was denied adequate medical attention. As for the use of the Taser, the trial court found that because of Alford’s and Osei-Kwasi’s conflicting versions of the incident, questions of fact existed whether Osei-Kwasi’s use of the Taser was warranted or whether his use of the Taser was wilful, wanton, and unauthorized. The trial court found, however, that Melton and Jarvis were not liable, even under the conflicting evidence, for any violations under § 1983 because they merely provided the Taser for official use. For the same reasons, the trial court also granted summary judgment to defendants on Alford’s state law claims against Melton and Jarvis concerning the Taser.

On the medical care issue, the trial court found Alford had not established she received inadequate medical care sufficient to constitute deliberate indifference to a serious injury or illness. The trial court found there was no dispute that Alford received medical treatment several times before and after this incident, and concluded that Alford had no federal or state law claims based on the allegation she was denied adequate medical care. The trial court also granted summary judgment against Sterling Alford because the court found the Affords had waived his claims at oral argument. Held:

1. The United States Supreme Court recently rejected the contention that a prisoner must have suffered serious physical injury to maintain an action under § 1983 for violation of the Eighth Amendment. Instead, the Supreme Court held that under Whitley v. Albers, 475 U. S. 312 (106 SC 1078, 89 LE2d 251), the extent of the injury suffered is but one factor to be considered in assessing “whether force was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm.” Hudson v. McMillian, _ U. S. _ (112 SC 995, 117 LE2d 156). Accordingly, since the Al-fords alleged Osei-Kwasi maliciously and wantonly used the Taser to inflict pain, this action may be maintained without proof of serious physical injury. Id.

However, the test to be applied in determining whether the use of the Taser violated the Eighth Amendment is also that established in Whitley: “ ‘whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.’ ” Whitley, supra at 320-321. Of course, Alford’s claim based upon the denial of appropriate medical care is measured by the “deliberate indifference” standard announced in Estelle v. Gamble, 429 U. S. 97, 104 (97 SC 285, 50 LE2d 251).

Case No. A91A1865

2. Osei-Kwasi asserts that the trial court erred by denying his motion for summary judgment based on his qualified immunity to Alford’s § 1983 claims and also erred by holding that he is not entitled to claim official immunity to Alford’s state law claims. Osei-Kwasi maintains he is entitled to summary judgment because, as a matter of law, Alford did not suffer a violation of her Eighth Amendment rights and even if her rights were technically violated, he is entitled to the defense of qualified immunity because he acted in good faith and the law clearly did not prohibit his actions. See Harlow v. Fitzgerald, 457 U. S. 800 (102 SC 2727, 73 LE2d 396). Osei-Kwasi’s claim of official immunity to the state law claims is based upon his attestation that his actions were not wilful, malicious, or corrupt. Hennessy v. Webb, 245 Ga. 329 (264 SE2d 878).

The trial court apparently viewed the issues as turning on whether the use of the Taser was necessary. Thus, if Osei-Kwasi’s version of the events was accepted, he would be entitled to judgment, but if Alford’s version were believed, Osei-Kwasi’s use of the Taser was based upon an improper motive which would be sufficient to deprive him of immunity under either of the defense theories he asserted.

In our view this analysis was incorrect. “Not every governmental action affecting the interests or well-being of a prisoner is subject to Eighth Amendment scrutiny. . . . After incarceration, only the unnecessary and wanton infliction of pain constitutes cruel and unusual punishment forbidden by the Eighth Amendment. To be cruel and unusual punishment, conduct that does not purport to be punishment at all must involve more than ordinary lack of due care for the prisoner’s interests or safety. . . . It is obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel and Unusual Punishments Clause, whether that conduct occurs in connection with establishing conditions of confinement, supplying medical needs, or restoring official control over a tumultuous cellblock. The infliction of pain in the course of a prison security measure, therefore, does not amount to cruel and unusual punishment simply because it may appear in retrospect that the degree of force authorized or applied for security purposes was unreasonable, and hence unnecessary in the strict sense.” (Citation and punctuation omitted.) Whitley, supra at 319.

“[T]he question whether the measure taken inflicted unnecessary and wanton pain and suffering ultimately turns on ‘whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.’ ” Id. at 320. Moreover, prison administrators are given “wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security,” and neither judges nor juries may “freely substitute their judgment for that of officials who have made a considered choice.” Id. at 321-322. In ruling on this issue, “courts must determine whether the evidence goes beyond a mere dispute over the reasonableness of a particular use of force or the existence of arguably superior alternatives. Unless it appears that the evidence, viewed in the light most favorable to [Alford], will support a reliable inference of wantonness in the infliction of pain under the standard we have described, the case should not go to the jury.” Id.

“Under the Whitley approach, the extent of injury suffered by an inmate is one factor that may suggest whether the use of force could plausibly have been thought necessary in a particular situation, or instead evinced such wantonness with respect to the unjustified infliction of harm as is tantamount to a knowing willingness that it occur. In determining whether the use of force was wanton and unnecessary, it may also be proper to evaluate the need for application of force, the relationship between that need and the amount of force used, the threat reasonably perceived by the responsible officials, and any efforts made to temper the severity of a forceful response.” (Citation and punctuation omitted.) Hudson v. McMillian, 117 LE2d at 166.

In applying the Whitley test to this appeal, we recognize that the situation existing in the DeKalb County Jail was much less serious than the prison riot-hostage situation which was present in Whitley, but the Whitley factors are appropriately used here. Id. “[0]fficials confronted with a prison disturbance must balance the threat unrest poses to inmates, prison workers, administrators, and visitors against the harm inmates may suffer if guards use force. Despite the weight of these competing concerns, corrections officials must make their decisions ‘in haste, under pressure, and frequently without the luxury of a second chance.’ ” 117 LE2d at 165.

In applying these factors, we note the parties agree Alford was creating a disturbance in the jail by incessantly kicking the door, and the guards on the scene deemed it appropriate to call in a supervisor, Lt. Osei-Kwasi, after they were unable to stop Alford from causing the disturbance. The parties also agree Osei-Kwasi first attempted to stop the disturbance by entering Alford’s cell and ordering her to stop kicking the door, but as soon as Osei-Kwasi left the cell and closed the door, Alford immediately began kicking the door again. Although at this point agreement ceases, there is no dispute that Osei-Kwasi reentered the cell and ultimately used the Taser to put an end to the disturbance. Although disputing the need for the use of the Taser, Alford admits she did not intend to stop disturbing the cell block until she gained what she wanted.

Although we also are concerned about using a device like a Taser, we cannot agree that its use is inherently wanton, malicious, or sadistic. If used properly, it avoids the physical injuries associated with other means of force. Further, although incapacitated by the Taser, Alford produced no credible evidence that the Taser caused her or Sterling Alford any serious injury or that it routinely caused serious injuries in others. Moreover, Tasers are used in other state penal systems (see e.g., Michenfelder v. Sumner, 860 F2d 328, 334-336 (9th Cir. 1988)) and have been used for years in the DeKalb County Jail without report of serious injury. Further, even Alford’s expert did not condemn their use generally. Therefore, we do not find that using the Taser, per se, constituted a violation of the Eighth Amendment.

Considering the incident giving rise to these claims, we note also that Alford’s expert acknowledged that some use of force is necessary when an inmate refuses to obey orders. The expert’s objections were based on whether the disturbance at that point required using the Taser. Nevertheless, “guards may use force when necessary to restore order and need not wait until disturbances reach dangerous proportions before responding.” Bennett v. Parker, 898 F2d 1530, 1533 (11th Cir. 1990). We note also in this context that Osei-Kwasi stated he used the Taser to minimize possible injuries to all concerned, including Alford and her unborn child.

In Whitley v. Albers, the court adopted three factors for determining whether a guard used excessive force: the need for the force, the relationship between the need and the amount of force used, and the extent of the injury inflicted. Whitley v. Albers, supra at 321. Considering these factors, we note that the use of some force was necessary under the circumstances, that the force used was minor even though incapacitating, and that Alford’s resulting injuries were not severe. We note also that efforts were made to have Alford stop the disturbance without using force, but she refused until she was made to do so with the Taser.

Moreover, as it is our understanding that jails or prisons are not to be run at the whim of the inmates, the use of some force was warranted to preserve order. Bennett v. Parker, supra. Accordingly, giving Lt. Osei-Kwasi the wide ranging deference to which he is entitled under Whitley, we find the evidence does not go “beyond a mere dispute over the reasonableness of [using the Taser] or the existence of arguably superior alternatives.” Whitley v. Albers, supra at 322. Therefore, we find that Alford’s Eighth Amendment rights were not violated because the evidence viewed in the light most favorable to Alford does not support a reliable inference of wantonness in the infliction of pain. See Brown v. Smith, 813 F2d 1187, 1189-1190 (11th Cir. 1987). Alford simply presented no evidence from which it could be inferred that Osei-Kwasi had the requisite culpable state of mind. See Wilson v. Seiter, 501 U. S. __ (111 SC 2321, 115 LE2d 271, 278).

Regarding Alford’s claims under our state constitution or tort law, we find that Lt. Osei-Kwasi was entitled to assert the defense of official immunity: He took these actions within the scope of his authorized duties, his position required the exercise of discretion, and Alford produced no evidence that these actions were wilful, malicious, or corrupt. Hennessy v. Webb, supra at 331. Further, even if Lt. Osei-Kwasi performed these discretionary acts in a negligent manner, he would still be authorized to assert the defense of official immunity. Logue v. Wright, 260 Ga. 206, 208 (392 SE2d 235). (There is no issue that DeKalb County has waived sovereign immunity.) Additionally, we are satisfied also that the defense of qualified immunity in Harlow v. Fitzgerald, supra at 818, was available to Lt. Osei-Kwasi.

Therefore, we find that the trial court erred by denying Lt. Osei-Kwasi’s motion for summary judgment. Upon remand, the trial court is directed to enter summary judgment for Lt. Osei-Kwasi on these claims.

Case No. A91A1864

3. In view of our disposition of Alford’s claims against Lt. Osei-Kwasi, her claims against DeKalb County, Sheriff Jarvis and Chief Jailer Melton under 42 USC § 1983 and the Eighth and Fourteenth Amendments to the U. S. Constitution because Osei-Kwasi shot her with the Taser must also fail. Moreover, these defendants were not otherwise liable under 42 USC § 1983. See Monell v. Dept. of Social Svcs., 436 U. S. 658, 694-695 (98 SC 2018, 56 LE2d 611); Brown v. Crawford, 906 F2d 667 (11th Cir. 1990); Fundiller v. City of Cooper City, 777 F2d 1436, 1442 (11th Cir. 1985). “The record is barren of any evidence of ‘implementation of an intentional policy or a constitutional deprivation resulting from an intentionally corrupt or impermissible policy’ so as to find a cause of action under 42 USC § 1983.” Holloway v. Rogers, 181 Ga. App. 11, 13 (351 SE2d 240). Accordingly, the trial court did not err by granting summary judgment to these defendants on these claims.

4. Alford also claims the trial court erred by finding as a matter of law that DeKalb County, Sheriff Jarvis, and Chief Jailer Melton were not liable to Alford for violating her Georgia constitutional rights to due process, freedom from abuse and cruel and unusual punishment and freedom from unreasonable seizure. As discussed in Divisions 2 and 3, supra, the record shows that Alford failed to show factually that any of these defendants took any action which could be construed to implicate any of Alford’s rights under the Georgia Constitution. Consequently, the trial court did not err by granting summary judgment to these defendants. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474). Moreover, these claims are subject also to Jarvis’ and Melton’s defenses of official immunity which is a complete defense. Logue v. Wright, supra; Hennessy v. Webb, supra. Accordingly, these enumerations of error also are without merit.

5. Alford asserts the trial court erred by determining as a matter of law that Osei-Kwasi did not violate Alford’s Fourth Amendment rights when he shot her with a Taser Gun. There was no error. Alford is not entitled to bring this claim under the Fourth Amendment because at the time of this incident she was a convicted prisoner. Therefore, such claims properly are brought under the Eighth Amendment. Graham v. Connor, 490 U. S. 386 (109 SC 1865, 1870-1871, 104 LE2d 443). “[T]he Eighth Amendment, which is specifically concerned with the unnecessary and wanton infliction of pain in penal institutions, serves as the primary source of substantive protection to convicted prisoners in cases such as this one, where the deliberate use of force is challenged as excessive and unjustified.” Whitley v. Albers, supra at 327. Accordingly, this enumeration of error is also without merit.

6. Alford asserts the trial court erred by determining as a matter of law that no defendant violated her right to adequate medical treatment under the Eighth Amendment to the Constitution of the United States. To state an Eighth Amendment violation for inadequate medical care under Estelle v. Gamble, supra, it must be shown that Alford’s treatment was “so grossly incompetent, inadequate or excessive as to shock the conscience or to be intolerable to fundamental fairness or where the medical care is so inappropriate as to evidence intentional maltreatment or a refusal to provide essential care.” Rogers v. Evans, 792 F2d 1052, 1058 (11th Cir. 1986). The claims which Alford asserted fail to approach this standard. First, Alford has identified no injury or medical condition for which she was denied treatment. Second, contrary to her assertions, the record shows Alford was promptly taken to a clinic after she was incapacitated with the Taser and that she was seen in the jail clinic on several occasions thereafter. Third, Alford has identified no instance in which she requested and was denied medical care. On the contrary, the record plainly shows instances in which she has refused medical care. Thus, these undisputed facts show that Alford did not receive inadequate medical care within the meaning of the Eighth Amendment after this incident. Estelle v. Gamble, supra. Therefore, the defendants were entitled to summary judgment on all of Alford’s claims under 42 USC § 1983 that she was denied medical care.

7. Alford’s sixth enumeration of error asserts that the trial court erred as a matter of law by finding that no individual defendant violated her right to adequate medical care under state law. Her brief, however, presents no specific argument, cites no authority, and makes no reference to the transcript or record to support this enumeration. Therefore, it is deemed abandoned. Court of Appeals Rule 15 (c); Bicknell v. Joyce Sportswear Co., 173 Ga. App. 897, 898 (328 SE2d 564); Sepulvado v. Daniels Lincoln-Mercury, 170 Ga. App. 109 (316 SE2d 554).

8. Alford claims that the trial court erred by deciding as a matter of law that Sheriff Jarvis and Chief Jailer Melton were not liable under state law for their failure to train Osei-Kwasi in using a Taser Gun and for acquiescing in and ratifying his conduct. Since we have found that Lt. Osei-Kwasi’s use of the Taser did not violate Alford’s rights, this enumeration presents nothing for us to review. Moreover, the doctrine of official immunity applies to these allegations, and neither defendant may be held liable for these discretionary decisions. Logue v. Wright, supra; Hennessy v. Webb, supra.

9. Alford asserts that the trial court erred by deciding as a matter of law that no individual defendant violated Sterling Alford’s Georgia constitutional rights or committed tortious conduct against him. The record shows the trial court based its decision solely on what it perceived to be Alford’s agreement at oral argument that Sterling Alford had no independent causes of action, and the parties to these appeals agree there was no such concession. Although this would typically require reversal, a correct decision of a trial court will not be reversed, regardless of the reasons stated. Ely v. State, 192 Ga. App. 203, 205 (384 SE2d 268). Although Sterling has an independent cause of action under Georgia law (see Hornbuckle v. Plantation Pipe Line Co., 212 Ga. 504 (93 SE2d 727)), because at the time of the incident he was inseparably linked with his mother, he can stand in no better legal position regarding the actions of the defendants than did she. Therefore, since we have concluded that no defendant was liable to Yolanda Alford under the causes of action asserted, it necessarily follows that no defendant can be liable to Sterling under these causes of action, and the trial court did not err by granting summary judgment to the defendants on Sterling Alford’s claims.

Decided March 18, 1992

Reconsideration denied April 2, 1992

Thomas M. West, Ralph S. Goldberg, for appellants.

Johnson & Montgomery, Harry W. MacDougald, Wade H. Watson III, for appellees.

Judgments affirmed in part and reversed in part, with direction.

Pope and Cooper, JJ., concur.


source: Caselaw Access Project

author: Johnson, Judge. Beasley, Judge,

license: Public Domain

text:
    A91A1879.
    FRANKLIN v. HILL.
    (417 SE2d 721)
   Johnson, Judge.

Appellants Nancy Franklin (Franklin) and her daughter, Christine Carroll (Carroll) through her mother as “next friend” brought this action against appellee Andrew Hill (Hill), Carroll’s former high-school teacher, for seduction of a daughter, under OCGA § 51-1-16. The trial court granted summary judgment in favor of Hill, and this appeal resulted. Franklin and her daughter filed a separate action which is pending in Federal District Court. Christine Franklin v. Gwinnett County Public Schools and William Prescott, No. 1:88-cv2922-ODE.

Carroll alleges that in September 1986, Hill, her tenth-grade economics teacher, schemed to seduce her by befriending her and showing her favoritism over her classmates. Carroll contends that Hill requested that she perform special classroom duties, such as grading daily tests and working problems on the board in front of the class. She further contends that Hill complimented her regularly on her physical appearance. She claims that on many occasions, while the other students were in class completing daily assignments, Hill would take her to his office, which was segregated from the school building in a trailer known as the “field house,” where they would discuss various topics. Ultimately, Hill allegedly began to direct his “field house” discussions with Carroll toward sexual problems he was having with his wife, and inquired into Carroll’s sexual relationship with her boyfriend. He allegedly asked Carroll if she would consider having sex with an older man. Carroll claims that on three occasions, during the 1987-1988 school year, Hill engaged in sexual intercourse with her during the school day and on school premises.

Hill denies all of Carroll’s allegations. He claims that he and Carroll engaged in infrequent casual conversations, and that she initiated these conversations. He further contends that on several occasions, she approached him in his office to discuss her parents’ divorce and the difficulty that it was causing her. Hill claims that he never engaged in sexual relations with Carroll.

On August 2, 1988, Franklin filed the subject action against Hill under OCGA § 51-1-16. Franklin brought the action individually, and as “next friend for Christine Carroll.”

On October 17, 1990, Hill filed his motion for summary judgment, including therein an attack on the constitutionality of OCGA § 51-1-16. The trial court granted summary judgment in favor of Hill finding that the appellant failed to present a genuine issue of material fact to sustain a cause of action under OCGA § 51-1-16. The court did not address the constitutionality of the statute in its order, nor did it include a statement of facts found to be undisputed which required judgment for Hill as a matter of law.

At the time the appellants filed their appeal to this court, Hill filed a motion to have this case transferred to the Supreme Court of Georgia as a result of the constitutional issue. We declined to transfer because it is not clear from the trial court’s order that the constitutional issue was ruled upon. We affirm in part and reverse in part.

1. Appellants contend that the trial court erred in granting Hill’s motion for summary judgment by finding that Nancy Franklin, in her capacity as next friend for Christine Carroll, a minor child, could not maintain a cause of action, pursuant to OCGA § 51-1-16.

OCGA § 51-1-16 provides, “the seduction of a daughter, unmarried and living with her parent, whether followed by pregnancy or not, shall give a right of action to the father, or to the mother, if the father is dead, or absent permanently, or refuses to bring an action. No loss of services need be alleged or proved. The seduction is the gist of the action, and in well-defined cases exemplary damages shall be granted.” (Emphasis supplied.) OCGA § 51-1-16.

The statute, on its face, provides that only a parent of a seduced daughter has the requisite standing to bring an action for seduction. Therefore, Carroll, the alleged victim of seduction, cannot bring a valid cause of action under OCGA § 51-1-16 in her own name through Franklin “as next friend.” Accordingly, we find that Franklin cannot pursue a cause of action on behalf of her daughter and summary judgment was properly granted as to this issue.

2. The appellants’ second enumeration of error asserts that the trial court erred in finding that virtue is a requirement of the tort of seduction.

The elements of the tort of seduction contained in OCGA § 51-1-16 do not include a requirement that the seduced female, be “virtuous.” A cause of action under that section requires only that the seduced daughter be unmarried and living with her parent. Furthermore, the statute makes it clear that “the seduction is the gist of the action,” thus placing the emphasis on the conduct of the tortfeasor, rather than on the behavior of the alleged victim.

In Mosley v. Lynn, 172 Ga. 193 (157 SE 450) (1931), the Court, after referring to the various definitions of seduction in other jurisdictions, did not hold the virginity of the daughter to be a necessary element in the tort of seduction, although the alleged victim in that case happened to be a virgin. In Mosley, the Court held that “(i)n an action brought for the recovery of damages under the Civil Code § 4466 [now OCGA § 51-1-16], it is not necessary to allege or prove that a daughter alleged to have been seduced was virtuous. ...” Mosley, supra at 193, 194. The fact that in her deposition Carroll admits that she has had sexual relations with her boyfriend prior to the alleged acts of sexual intercourse with Hill would not preclude her mother from bringing an action under OCGA § 51-1-16.

3. In enumeration one, it is contended that the trial court erred in granting Hill’s motion for summary judgment against Franklin, individually, by finding that the actions of Hill did not constitute the tort of seduction by “false or fraudulent” means. The tort of seduction as codified in OCGA § 51-1-16 does not include a requirement that the seduction of the daughter be accomplished through “false or fraudulent” means, though the concept can be found in the sparse opinions addressing this statute under Georgia law.

In Morris v. Stanford, 53 Ga. App. 722 (187 SE 159) (1936), this Court concluded that “[t]here can be no seduction without carnal knowledge of the woman by the alleged seducer, and that must have been induced by promise of marriage by the man or by other false and fraudulent means.” (Emphasis supplied.) Morris, supra at 722. However, in Mosley, supra, the Supreme Court of Georgia noted that “[i]n order to charge seduction it is not necessary that the manner of accomplishing the act or the circumstances attending it should be set out. The allegation that the defendant ‘did seduce’ implies that the act was done by flattery and false promises or the exercise of other influence.” Mosley at 202. It is uncontroverted that Hill gave no promise of marriage to Carroll, but Carroll does allege material facts which could lead a reasonable jury to conclude that Hill employed other “false and fraudulent” means in his alleged seduction of her. In a sexual harassment context, this court has already pointed out that the existence of a special relationship in which one person has control over another may produce a character of outrageousness that otherwise might not exist. See Coleman v. Housing Auth. of Americus, 191 Ga. App. 166, 169 (381 SE2d 303) (1989). It is entirely possible that a jury could consider the special relationship between a male teacher and a 15-year-old female high school student, together with the power and control of the teacher over the student that relationship involved, and conclude that the disparity of power alone was sufficient to support a finding of seduction, thus meeting the requirements of the statute.

Clearly genuine issues of material fact exist in this case, and it was error for the trial court to grant summary judgment to Hill. Accordingly, the trial court’s grant of summary judgment is affirmed as to the issues discussed in Division 1 of this opinion, and reversed as to the issues discussed in Divisions 2 and 3. The case is remanded to the trial court for trial on the merits.

Judgment affirmed in part and reversed in part.

Carley, P. J., concurs, and Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

1. I concur fully in Division 1.

2. As to Division 2, I agree that, according to Mosley v. Lynn, 172 Ga. 193 (157 SE 450) (1931), plaintiff need not prove that the daughter was “virtuous.” This is contained in the Court’s headnote 1. The confusion may stem from the summary which the Court gives at the end of that decision: “As a civil injury, the term denominates an injury to the parent which arises out of any unlawful sexual intercourse in which the child is induced to participate by the arts or wiles of the seducer. ‘Seduction, as a civil injury, may generally be defined as the act of a man in inducing a virtuous woman to commit unlawful sexual intercourse with him.’ ” (Emphasis supplied.) Id. at 203. The Court did not give the source of the quotation.

Although it is true that the plaintiff does not have to prove that the daughter was virtuous in order to prove seduction, the circumstances of the daughter are not irrelevant. The word “seduction” is not defined in the statute. Mosley defines it in this way: “Properly construed, the word ‘seduction’ as used in § 4466, has reference to any and all cases in which a child is led astray and her morals destroyed, uprooted and extirpated, her social standing damaged, and she is thereby rendered an unfit associate for other children in the family, and a debased member of society; . . .” Id. at 194 (1) (b). The Court uses the word “debauchery” instead of “seduction” in headnote 3 and “debauched” in lieu of “seduced” in headnote (1) (b). Even if the identical definition as given in 1930 would be given today, the jury would have to find that the defendant “seduced” this particular person.

The majority refers in Division 2 to the daughter as “the alleged victim” of the tort. This may be true in fact but it is not true in law. The victim of this tort is the parent. That is why the virtue of the daughter is not an element. Whether the daughter has a cause of action for a different tort is not an issue in this case. See Kite v. Brooks, 51 Ga. App. 531, 534 (181 SE 107) (1935).

Decided March 20, 1992

Reconsideration denied April 2, 1992

Weinstock & Scavo, Michael Weinstock, Hillard J. Quint, for appellant.

Harben & Hartley, Phillip L. Hartley, Martha M. Pearson, for appellee.

3. Since “false and fraudulent means” is not an element of the tort, it is irrelevant to consider, as the majority has done, whether there are genuine issues of material fact “which could lead a reasonable jury to conclude that Hill employed other ‘false and fraudulent’ means in his alleged seduction of her.” That is not an issue.


text:
    A91A2025.
    COMPO MACHINERY CORPORATION v. PANTS LIMITED S.A.
    (417 SE2d 443)
   Johnson, Judge.

Compo Machinery Corporation (Compo) brought a breach of contract action against Pants Limited S.A. (Pants) in Barrow County, Georgia. Compo is a Massachusetts corporation and Pants is a Haitian corportion. Pants alleges that the contract giving rise to this action was not negotiated, entered into or executed in Georgia. Pants filed a motion to dismiss for lack of personal jurisdiction and, after a hearing, the trial court granted the motion. Compo appeals from that ruling. No transcript of the hearing is included as part of the record on appeal.

“The party asserting error on appeal has the burden to show it affirmatively by the record. [Cit.] . . . ‘This court is a court for the correction of errors and its decision must be made on the record sent to this court by the clerk of the court below and not upon the briefs of counsel.’ [Cit.] . . . The party asserting error has a duty to show it by the record. [Cit.]” McClaskey v. Jiffy Lube, 197 Ga. App. 537, 538 (398 SE2d 825) (1990).

We have thoroughly reviewed the entire record on appeal and absent a transcript of the hearing it is unclear what evidence the trial court relied upon in making its decision. Accordingly, Compo has failed to show any error by the record and without “a transcript it must be presumed that the trial judge correctly ruled on the issues presented.” Beech Aircraft Corp. v. Jackson, 199 Ga. App. 627 (405 SE2d 518) (1991).

Decided March 20, 1992

Reconsideration denied April 2, 1992.

James A. Dunlap, Jr., for appellant.

Scott & Quarterman, Donald T. Wells, Jr., for appellee.

Judgment affirmed.

Carley, P. J., concurs, and Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur because the trial court was correct on the merits of the motion to dismiss. The problem is not the absence of a transcript. Appellant relies exclusively on the pleadings and evidence in the record. The evidence consists of affidavits filed by both parties and defendant’s answers to plaintiff’s interrogatories.

Based on this evidence, it is clear that defendant’s minimal contacts in this state did not subject defendant to the jurisdiction of the Georgia court because the transaction in question did not occur in Georgia. O. N. Jonas Co. v. B & P Sales Corp., 232 Ga. 256 (206 SE2d 437) (1974). Its activities consisted of using Mrs. Ridgeway’s home address for certain of its correspondence due to difficulties with Haitian postal service and by making some purchases for its operations through Mrs. Ridgeway and consulting her. But nothing other than attempts at collection for the alleged debt which is the subject of this lawsuit occurred in Georgia.

Thus, the defendant corporation did not “transact any business within this state” within the meaning of OCGA § 9-10-91 (1) such as would give jurisdiction to the Georgia court with respect to the alleged debt for machinery sold to the non-resident defendant by the non-resident plaintiff by way of phone calls between Haiti and Massachusetts.

This is not to say that service of process was valid, but that even if it was not, long-arm jurisdiction did not lie.


author: Johnson, Judge.

text:
    A91A2037.
    HEAD v. THE STATE.
    (417 SE2d 398)
   Johnson, Judge.

At the conclusion of a bench trial, the appellant, Sherry Head, was found guilty of theft by deception. She brings this appeal from the denial of her motion for new trial.

The state’s evidence showed that on March 16, 1990, Ms. Head approached the customer service counter at a K-Mart store in Mableton, Georgia, obtained a refund for certain items she had previously purchased and left the store. After re-entering the store empty handed approximately 30 minutes to an hour later, she approached the customer service desk carrying two hats and two dresses, inquired about obtaining a refund for the two hats, and, representing that she had previously purchased one of the two dresses from another K-Mart store, sought to exchange that dress for the other one. However, she had no receipts for any of this merchandise, and the customer service supervisor consequently declined these requests. Ms. Head then indicated that she would simply go to the checkout counter ahead and pay for the dress which she had wanted to exchange for the previously purchased one, and she asked the customer service supervisor to place the other items in a bag for her in the meantime. The customer service supervisor complied, and upon returning from the checkout counter, Ms. Head retrieved the bag and left the store with it. She was detained at this time by the security supervisor and was subsequently charged with theft by deception in connection with her acquisition of the two hats and the dress for which she had no sales receipt.

1. Head contends that the customer service supervisor should not have been allowed to testify because her name had not been included on the list of witnesses provided to defense counsel prior to trial. See generally OCGA § 17-7-110. However, no such objection was raised at trial, and it is well settled that such an objection may not be raised for the first time on appeal. See Jackson v. State, 186 Ga. App. 847, 848 (1) (368 SE2d 771) (1988).

2. Head further contends that the evidence is insufficient to support the conviction because the customer service manager’s testimony was predicated on hearsay and because the state failed to introduce into evidence the merchandise she was accused of having stolen. These contentions are without merit. The customer service manager quite obviously was testifying as an eyewitness, and Head did not dispute that she had been in possession of the merchandise in question when she was detained outside the store. Construed in favor of the verdict, the evidence introduced at trial was amply sufficient to enable a rational trier of fact to find her guilty beyond a reasonable doubt of theft by deception. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided March 16, 1992

Reconsideration denied April 2, 1992.

Gary R. Pelphrey, Joyce H. Pelphrey, for appellant.

Patrick H. Head, Solicitor, Beverly M. Collins, H. William Rowling, Jr., Assistant Solicitors, for appellee.

3. It is contended that the trial judge improperly applied a preponderance of the evidence standard in finding her guilty. However, the transcript does not support this contention but rather reveals that the trial judge repeatedly announced at the conclusion of the trial that he was convinced of the defendant’s guilt beyond a reasonable doubt.

4. Head contends that by refusing to sentence her as a first offender status pursuant to OCGA § 42-8-60, the trial court improperly penalized her for exercising her right to trial. This contention is also without merit. “A trial court is not required to grant first offender treatment, but may impose, in its discretion, any sentence prescribed by law. [Cit.] ” Hardman v. Hardman, 185 Ga. App. 519, 520 (4) (364 SE2d 645) (1988). See also Moreland v. State, 183 Ga. App. 113 (5) (358 SE2d 276) (1987). The constitutionality of the statute in question was neither raised nor ruled upon below and thus cannot be addressed on appeal.

Judgment affirmed.

Carley, P. J., and Beasley, J., concur.


author: Judge Arnold Shulman.

text:
    A91A2160.
    HOFFMAN ELECTRIC COMPANY, INC. et al. v. CHIYODA INTERNATIONAL CORPORATION.
    (417 SE2d 371)
   Judge Arnold Shulman.

This is an appeal from the grant of a motion for summary judgment for the appellee, Chiyoda International Corporation, in an action for declaratory relief filed by it against the appellants. The appellants, consisting of Hoffman Electric Company and 21 other suppliers of labor or material, filed claims of lien against property owned by the Georgia Ports Authority (established by OCGA § 52-2-4 as “an instrumentality of the State of Georgia and a public corporation”) and leased by it to Fuji Vegetable Oil, Inc. (“Fuji”). Fuji had engaged the appellee, Chiyoda International Corporation, as its general contractor for the construction of a vegetable oil refining plant on the subject property, and the appellee had hired Grady Sturgess Builder, Inc. (“Sturgess”) as one of its subcontractors. Sturgess in turn had contracted with the appellants for labor and materials. Sturgess defaulted on its contract with the appellee and, although it had been paid by the appellee, did not pay the appellants, whose lien claims exceed $540,000. As a part of its contract with Fuji, the appellee had agreed to “pay and satisfy all claims for labor and materials employed or used in any way by it or any of its subcontractors in connection with the Work performed hereunder . . . and to permit no liens of any kind to be fixed upon the land upon which the Plant is situated or the Plant or Project. . . .”

Asserting that Fuji had called upon it to discharge the liens pursuant to their contract and that there existed a substantial dispute as to whether the subject property was a lienable estate for years, the appellee filed the present action for declaratory relief. In its complaint, the appellee alleged that the lease agreement between Fuji and the Georgia Ports Authority granted Fuji only a non-lienable possessory interest (i.e., a usufruct, see OCGA § 44-7-1), with the result that the appellants’ claims of liens were invalid, and it was under no contractual obligation to Fuji to discharge them. The appellee requested the court to protect it from “uncertainty and insecurity with respect to the propriety of its future actions . . . including the necessity to post bonds to discharge improper liens, [and] payment of claims for which it is not liable” by enjoining the appellants from attempting to enforce the liens, declaring the liens invalid and directing the clerk of the court to cancel them of record. The appellants responded by moving the court to add Fuji as an additional plaintiff or, alternatively, as a defendant, under OCGA § 9-11-19 (a). The appellee then moved for summary judgment on its theory that the claims of lien were invalid, and the appellants filed cross motions for summary judgment. After denying the appellants’ motion to add Fuji, the trial court granted the appellee’s motion for summary judgment and denied the appellants’ motions. This appeal followed.

The appellants contend on appeal that the trial court erred in ruling that Fuji’s lease did not create a lienable estate for years and in denying their motion to add Fuji as a necessary party under OCGA § 9-11-19 (a). However, we do not reach these issues. Under its contract with Fuji, the appellee is obligated both to “pay and satisfy all claims for labor and materials . . . used . . . by it or any of its subcontractors in connection with the work performed hereunder,” and to “permit no liens of any kind to be fixed upon the land.” These obligations are obviously premised upon the assumption by the parties to the contract (i.e., the appellee and Fuji) that Fuji had a lienable estate in the property. However, regardless of the nature of Fuji’s interest in the property, the appellee clearly assumed a contractual obligation both to remove any liens which were filed against the property and to satisfy all claims for labor and materials supplied in connection with the project. The most expedient method of removing such liens would, as acknowledged by the appellee, be for it to file bonds with the superior court pursuant to OCGA § 44-14-364. The bonds would then stand in place of the recorded liens as security for the claims; and in any subsequent action to collect on the bond, the appellee could “present as defenses those which would be available to a foreclosure of the lien for which the bond was substituted.” M. Shapiro & Sons, Inc. v. Yates Constr. Co., 140 Ga. App. 675, 678 (231 SE2d 497) (1976). See also Linco Constr. Co. v. Tri-City Concrete, 161 Ga. App. 174 (1) (288 SE2d 125) (1982).

Decided March 9, 1992

Reconsideration denied April 2, 1992

Miller, Simpson & Tatum, William E. Dillard III, for appellants.

Bouhan, Williams & Levy, Leamon R. Holliday III, Hunter, Maclean, Exley & Dunn, Andrew H. Ernst, for appellee.

In summary, we conclude that the appellee’s assertion that Fuji’s estate is not lienable would not, even if true, relieve the appellee of its liability under the terms of its agreement with Fuji both to remove the liens and to discharge the underlying claims on which they are predicated. Accordingly, we hold that the trial court erred in granting summary judgment to the appellee and in denying summary judgment to the appellants.

Judgment reversed.

Carley, P. J., and Beasley, J., concur.


text:
    A91A2177.
    HENDERSON v. THE STATE.
    (417 SE2d 413)
   Johnson, Judge.

Frank Henderson (Henderson) appeals from his conviction for aggravated assault and the denial of his motion for a new trial.

Henderson and Reynardo Torres (Torres) had a fight in an Atlanta nightclub and were told to leave by the management. Torres and a companion testified that as they were leaving the club, Henderson fired a pistol at them several times. Torres thought Henderson’s gun was out of bullets, so he approached Henderson to take the gun away. Henderson then fired one more shot hitting Torres in the neck and paralyzing him from the chest down.

Henderson presented testimony that Torres harassed him inside the club. When Henderson left the club, Torres and two friends were outside and charged at him brandishing knives and a flammable aerosol can with a lighter, prompting Henderson to run back into the club. When Henderson exited the club a second time, Torres and his friends were still waiting and again rushed at him. Henderson fired three warning shots in the air and ran toward his car. Torres jumped out from behind a car with a knife and Henderson fired another warning shot. Torres kept coming at him, so Henderson “just dropped [his] hand, and [Torres] got shot.” Henderson then ran to his car, threw the pistol under the seat and drove away. The police stopped him about two blocks from the club. They found no knife or other weapon on Torres.

1. Henderson first argues that the trial court erred in refusing to give a written request to charge on reckless conduct as a lesser included offense of aggravated assault. This argument is without merit.

Omitting a charge on a lesser included offense is not error absent a written request. Emmett v. State, 199 Ga. App. 650, 651 (2) (405 SE2d 707) (1991); French v. State, 199 Ga. App. 873, 874 (1) (406 SE2d 526) (1991). Here, the record on appeal contains absolutely no evidence of any written request to charge on reckless conduct. None of the State’s written requests to charge is on reckless conduct and the record is devoid of any written requests to charge filed by Henderson. Furthermore, the record does not include a transcript of the charge conference.

Henderson alleges in his brief that he submitted a written request to charge on reckless conduct to the trial court and in support thereof, he has attached an affidavit from his trial attorney. However, “a brief or an attachment thereto cannot be used as a procedural vehicle for adding evidence to the record. [Cit.] ‘We must take our evidence from the record and not from the brief of either party.’ [Cit.]” Cotton States Mut. Ins. Co. v. Bogan, 194 Ga. App. 824, 826 (392 SE2d 33) (1990). As the record on appeal contains no evidence of a written request, we must conclude that the trial court did not err in omitting a charge on reckless conduct.

Moreover, notwithstanding the paucity of evidence in the record, even if a written request to charge on reckless conduct was submitted, the trial court did not err in refusing it. Henderson mistakenly relies on Bowers v. State, 177 Ga. App. 36 (338 SE2d 457) (1985). The case sub judice is instead controlled by Riley v. State, 181 Ga. App. 667 (353 SE2d 598) (1987). “In Bowers, the charge on reckless conduct was appropriate because the jury was authorized to find that the defendant engaged in target practice with a gun while consciously disregarding the risk to the nearby victim. . . . ‘Using a deadly weapon to commit an act which places another in reasonable apprehension of immediately receiving a violent injury amounts to an aggravated assault, absent justification. (Cits.) The act testified to by appellant was either justified as an act of self-defense or constituted a felony.’ (Emphasis supplied.) [Cit.] The jury was fully and completely instructed on justification. The trial court did not err in refusing to give the requested charge.” Id. at 669-670. Here, Henderson presented evidence of, and argued, self-defense. He admitted firing four warning shots and he testified, “I didn’t intend to shoot [Torres], but I wanted to stop him.” The jury, as in Riley, was fully instructed on justification. The trial court did not err in omitting a charge on reckless conduct.

2. Henderson asserts in his second enumeration of error that the facts of the case did not support a jury charge on flight and that the decision in Renner v. State, 260 Ga. 515, 518 (3) (397 SE2d 683) (1990), applies to this case. This enumeration is also without merit.

It is undisputed that Henderson shot Torres in the neck, ran to his car and drove from the scene of the shooting until stopped by the police. Under these facts, the jury charge on flight was warranted. “It is for the jury to determine if his sudden departure was due to consciousness of guilt or other reasons.” Lockette v. State, 181 Ga. App. 649 (1) (353 SE2d 585) (1987).

Further, Renner, supra, specifies that it will apply only to cases tried after the date the opinion appeared in the advance sheets of the Georgia Reports. Since this case was tried on July 16 and 17, 1990, prior to publication of the opinion, Renner is not applicable. Accordingly, the trial court did not err.

3. In his third enumeration, Henderson contends the trial court erred in admitting into evidence State’s Exhibit Two, five empty bullet casings, and State’s Exhibit Three, a bullet; and in allowing an expert to testify that these exhibits were fired from Henderson’s gun.

“ ‘[Objections not raised at trial cannot be raised for the first time on appeal, as they are deemed waived.’ ” Deal v. State, 199 Ga. App. 184, 188 (5) (404 SE2d 343) (1991). In the instant case, when the State moved to introduce Exhibit Two, Henderson objected that the proper foundation had not been laid. The trial judge sustained the objection. The State then offered further testimony to lay a foundation, after which the court admitted Exhibit Two without further objection from Henderson. Since Henderson did not object after the State offered foundation evidence and at the time the exhibit was admitted, he waived any objections.

As to Exhibit Three, “ ‘[t]he circumstances of each case need only establish reasonable assurance of the identity of the sample.’ ” Stephens v. State, 259 Ga. 820 (3) (388 SE2d 519) (1990). Here, the neurosurgeon who operated on Torres testified that Exhibit Three is “compatible with” the bullet he removed from Torres’ neck. He further testified that Exhibit Three is labeled with Torres’ name, the operating room number where he performed the surgery and the number assigned to the bullet he removed. This testimony establishes with reasonable certainty that Exhibit Three is the bullet removed from Torres. Accordingly, the trial court did not err in admitting it into evidence.

Decided March 19, 1992

Reconsideration denied April 2, 1992.

Garland & Samuel, Kathleen V. Duffield, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Richard E. Hicks, Assistant District Attorneys, for appellee.

The foregoing conclusions render Henderson’s contention that it was error to admit expert testimony as to Exhibits Two and Three moot. Moreover, Henderson waived this objection by not raising it at the time of the testimony. Deal v. State, supra.

Finally, even if the trial court did commit error in admitting the exhibits and the expert testimony into evidence, it was harmless in light of Henderson’s own testimony that the pistol already introduced was the one with which he shot Torres.

4. Henderson’s final enumeration of error is that the physician’s testimony as to Torres’ prognosis was irrelevant. “ ‘[T]he admission or exclusion of evidence which is objected to on the ground of relevancy lies within the sound discretion of the trial court, whose decision will not be disturbed on appeal absent a clear abuse of discretion.’ ” Barnwell v. State, 197 Ga. App. 116, 118 (5) (397 SE2d 717) (1990). There has been no showing that the trial court abused its discretion in allowing the testimony of the physician and, therefore, we will not disturb its decision.

Judgment affirmed.

Carley, P. J., concurs, and Beasley, J., concurs in Divisions 1, 2, 3, and in judgment only as to Division 4.


author: Beasley, Judge.

text:
    A91A2207.
    OWENS-ILLINOIS, INC. v. CHAMPION.
    (417 SE2d 703)
   Beasley, Judge.

In this workers’ compensation case, we granted the application of the employer and self-insurer for discretionary appeal in order to decide whether the superior court erred in holding them liable for an employee’s medical expenses which, they argue, were unauthorized under OCGA § 34-9-201 and the line of cases represented by Boaz v. K-Mart Corp., 254 Ga. 707 (334 SE2d 167) (1985).

The law

OCGA § 34-9-201 (b) requires an employer to maintain a posted list of at least three physicians reasonably accessible to employees. Under OCGA § 34-9-201 (c), an employee may select the services of any of the physicians on this panel of physicians, and the physician selected may arrange for referrals; the employer is not responsible for medical services furnished by any physician or other person selected by the employee in disregard of subsection (c), unless “due to an emergency or similarly justifiable reason, an inability to make a selection results.” OCGA § 34-9-201 (d) authorizes the board to order a change of physician or treatment upon the request of an employee or employer.

Boaz applied these statutory rules as well as the exception recognized in Georgia Power v. Brasill, 171 Ga. App. 569 (1) (320 SE2d 573) (1984), aff’d 253 Ga. 766 (327 SE2d 226) (1985). There, and in Boaz, the employee was “cut off” from receiving medical benefits by discharge from treatment by the authorized physician. This entitled the employee to see any doctor if he was still in need of treatment for the work-related injury.

The facts, as found by the ALJ

Champion was employed by Owens-Illinois as a forklift operator. On March 18, 1987, she was in the back of a truck attempting to secure a load when the truck began to drive away from the loading dock. While attempting to jump from the truck to the loading dock, she fell approximately five feet to the ground, injuring primarily her left side.

The following day, she received treatment from a physician listed on the employer’s posted panel of physicians. He diagnosed her condition as a lumbar strain and contusion of the left wrist, left forearm, and left ankle, and he released her to return to light-duty work on March 20.

She continued to complain of physical pain and symptoms, and she was referred to a succession of physicians who, despite extensive diagnostic testing, could establish no physical injury beyond a strain. The only mental health care provider to whom she was referred was Dr. Garrett, a psychiatrist, who performed an independent examination but did not render treatment. Dr. Loughlin, an orthopedic surgeon, was of the opinion that Champion was able to return to work as a forklift operator and did not schedule a follow-up appointment, thereby dismissing her from treatment.

On June 4, 1987, Champion obtained unapproved treatment from a medical clinic that referred her to Dr. George, a Ph.D. psychologist, who she began seeing in April 1988. He in turn referred her to Dr. Cheatham, a psychiatrist, who she began seeing in September 1988.

On November 16, 1987, Champion was seen by Dr. McLeod, an orthopedist, who provided ongoing medical treatment. As of January 1, 1989, Owens-Illinois agreed to pay prior medical expenses incurred by Champion from unapproved medical providers, in exchange for Champion’s agreeing that Dr. McLeod would be her authorized treating physician and that Owens-Illinois would not be liable for additional charges by other medical providers.

Champion stopped working during the latter part of February 1989. She testified that she could no longer work because of her injuries as well as anxiety and depression. She was not being treated by Dr. McLeod, and she continued to be treated by Dr. George. (She testified that she also continued to be treated by Dr. Cheatham.) On March 7, 1989, she was admitted to Brawner Psychiatric Institute on a voluntary basis, on a referral from Dr. George, whom she advised that she was severely depressed and potentially suicidal. She remained there for approximately two months. The discharge summary stated that Dr. George had recommended hospitalization for reevaluation of Champion’s physical and mental state and adjustment of her medication.

Champion sought reimbursement for medical expenses charged by Dr. George, Dr. Cheatham, and Brawner Psychiatric Institute, among others, for services rendered after January 1, 1989.

Although the ALJ found that Champion’s current mental condition is the result of her work-related physical injuries aggravating preexisting psychological problems and personality disorders suffered by her, he denied her claims for reimbursement. He agreed that Dr. Loughlin terminated Champion’s treatment within the meaning of Boaz, thereby entitling her to seek medical treatment from a physician of her own choosing. He found that Champion relinquished this right when she agreed to have Dr. McLeod become her authorized treating physician. Champion testified that she would have sought treatment from Dr. McLeod during this time period but was unaware that she was authorized to do so. The ALJ found that any fault for this misunderstanding was that of the employee or her counsel, and that there was no evidence that after the parties’ agreement the employer had failed to provide medical treatment.

Finally, the ALJ concluded that the employee’s psychiatric hospitalization at Brawner did not constitute an “emergency” under OCGA § 34-9-201 (c). He noted that the employee did not attempt or threaten to commit suicide and that she had suicidal ideations in the past and hospitalization was not required.

The award of the ALJ was made the award of the Full Board.

The superior court’s decision

The superior court reversed in part, stating in its order: Champion should be reimbursed for the expenses charged by Brawner, as well as Drs. George and Cheatham, in that the employer, by designating Dr. McLeod as the employee’s authorized treating physician as of January 1, 1989, failed in its obligation to provide mental health services, thereby authorizing the employee to continue in the care of Drs. George and Cheatham under Boaz. Dr. McLeod recognized that the employee required continuing mental health treatment and thereby implicitly authorized Drs. Cheatham and George to continue their ongoing treatment. Whether a medical emergency exists is a question of sound medical judgment or opinion, and the ALJ erred as a matter of law in finding that the psychiatric hospitalization did not qualify as a medical emergency.

The appeal

1. The superior court’s order that the employer reimburse the claimant for the contested medical expenses, essentially on the ground that there had been a referral by Dr. McLeod, is not supported by the evidence. There is no evidence of a referral by Dr. McLeod after January 1, 1989, or that the employee had even sought treatment from Dr. McLeod after that date. There is a basis for the ALJ’s finding of an agreement that the claimant would not be reimbursed for these expenses. At the hearing before the ALJ, after employee’s counsel stated certain facts “in his place” related to treatment, counsel for the employer similarly related, after inviting contradiction if there was any, that the parties had agreed that the authorized treating physician thereafter would be Dr. McLeod, with certain exceptions not in issue here. Employee’s counsel responded that the January 1989 agreement, when “we wanted to try to get her back to work,” was to have her see Dr. McLeod. Claimant testified that she just did not go back to Dr. McLeod. There is no evidence that Dr. McLeod discharged her. The evidence supports the ALJ’s finding.

The superior court erred in disregarding it. “When there is any evidence to support the Board of Workers’ Compensation’s findings of fact, neither the Superior Court nor the Court of Appeals has authority to substitute itself for the Board as a fact-finding body, and to set aside an award based on the Board’s findings. [Cits.]” City of Atlanta v. Walker, 169 Ga. App. 34, 35 (311 SE2d 479) (1983).

2. Whether an emergency exists is a question of fact, also to be resolved by the ALJ or the Board. Ibid. The fact that resolution of this question might be ultimately dependent upon a medical diagnosis does not alter this rule. Armstrong v. Allstate Ins. Co., 135 Ga. App. 278 (1) (217 SE2d 486) (1975), upheld the board’s finding that medical treatment was of an emergency nature, even though the treating physician had testified that the procedure was elective surgery. In this case, the evidence authorized the conclusion that an emergency did not exist.

Decided March 18, 1992

Reconsideration denied April 2, 1992

Wilson, Strickland & Benson, Earl B. Benson, Jr., Samuel T. Brannan III, for appellant.

Charles E. Moore, Jr., for appellee.

Judgment reversed.

Carley, P. J., and Johnson, J., concur.


author: Cooper, Judge.

text:
    A91A2218.
    PENARANDA v. THE STATE.
    (417 SE2d 683)
   Cooper, Judge.

Appellant was convicted by a jury of one count of aggravated child molestation, and he appeals from the denial of his motion for new trial.

Appellant and his wife were the owners of a day care center attended by the victim. Approximately two months after the victim began attending appellant’s day care center, the victim’s mother became concerned when the victim kissed her with his tongue. The victim, who was approximately one month from turning three years old, had also exhibited behavior changes, and upon being questioned by his mother, the victim told her that appellant had put his penis in the victim’s mouth. The mother contacted the police, and the ensuing investigation resulted in two videotaped interviews of the victim, which were shown at trial. Appellant raises four enumerations of error on appeal.

1. Appellant first contends that the instructions of the trial court to the jury on the degree of proof necessary for conviction were in error. The trial court gave the pattern jury instructions on the degree of proof necessary to convict an accused and stated, in relevant part, “However, the State is not required to prove the guilt of the defendant beyond all doubt or to some mathematical certainty. Moral and reasonable certainty is all that we expect and all that can be expected in any legal investigation.” The court then proceeded to define in detail “reasonable doubt” and stated that a reasonable doubt must have an evidentiary basis. Appellant, citing Cage v. Louisiana, — U. S. _ (111 SC 328, 112 LE2d 339) (1990), asserts that the charge given by the court allows a conviction on a standard of “moral and reasonable certainty,” which is a less stringent standard of proof than “beyond a reasonable doubt.” The record reveals that after the jury charge, the court specifically asked if there were any objections, reservations or suggestions from counsel as to the charge. Another opportunity to object to this charge was given to counsel when the court recharged the jury on this issue. Appellant failed to object or reserve objection at each juncture. “ ‘ “Clearly, it is the law of this state, even in criminal cases, that if the trial court asks if there are any objections to the charge given, counsel for the defendant must either state his objections or reserve the right to make such objections on motion for new trial or on appeal or waive any such objections.” (Cits.)’ [Cit.]” Seidel v. State, 197 Ga. App. 14 (2) (397 SE2d 480) (1990). Therefore, appellant has waived his right to object to the jury charge. Moreover, appellant’s substantive argument has no merit as the charge at issue in Cage is so dissimilar to the pattern charge given in the instant case that the concerns raised in Cage are not at issue here.

2. Appellant next contends that the trial court erred in allowing the videotape of the interview with the victim to be shown at trial. Appellant argues that the trial court was in error when it found, pursuant to OCGA § 24-3-16, that the tape was surrounded by a sufficient indicia of reliability to be admitted into evidence. “The standard to be applied in determining whether a statement sought to be introduced under § 24-3-16 provides sufficient indicia of reliability has been discussed by this court in Newberry v. State, 184 Ga. App. 356 (361 SE2d 499). In Newberry, the court considered atmosphere, circumstances, spontaneity, and demeanor in judging the reliability of the statement.” Ortiz v. State, 188 Ga. App. 532 (3) (374 SE2d 92) (1988). In the instant case, the court conducted a lengthy hearing outside the presence of the jury to determine the tape’s reliability and considered, as in Newberry and Ortiz, the atmosphere and circumstances of the interview, the spontaneity of the victim’s responses and the demeanor of the victim during the interview. We find no abuse of discretion in the court’s finding that the tape was admissible. See Hicks v. State, 196 Ga. App. 311 (1) (396 SE2d 60) (1990). Appellant further argues that a proper foundation for the tape was not laid prior to its admission. Appellant made no objection on this ground at trial, and, in fact, any objection for the failure to authenticate the tape was waived by appellant when defense counsel called for the tape’s admission during cross-examination of a State witness in an attempt to discredit the tape. This issue cannot be raised on appeal for the first time. Grayer v. State, 181 Ga. App. 845 (2) (354 SE2d 191) (1987).

3. In his third enumeration, appellant asserts that the trial court erred in allowing several of the State’s witnesses to state their opinion that the victim had been molested. As appellant did not object to the admission of this testimony at trial, the objection cannot be considered for the first time on appeal. See Grayer, supra.

4. Appellant finally enumerates that he was denied effective assistance of counsel at trial. A hearing was held on appellant’s motion for new trial at which appellant’s trial counsel and several other witnesses testified with respect to appellant’s ineffectiveness claim. The court denied the motion, and appellant argues the denial was in error. Appellant contends that his trial counsel was ineffective in that (a) he failed to object to the opinions of the expert witnesses that the victim had been molested; (b) he failed to object to the absence of a proper foundation for the admissibility of the videotape of the victim; (c) he did not accept the court’s offer of a continuance when the State requested the introduction of similar transaction evidence without giving the required notice to the defense; (d) he failed to interview witnesses resulting in inadequate preparation for trial; (e) he failed to call a witness, Marva Lynch, for trial; and (f) he failed to submit written requests to charge, specifically one on impeachment.

“ ‘Under the holding in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), there is a two-pronged test for determining the validity of a claim of ineffective assistance of counsel: whether (1) counsel’s performance was deficient; and whether (2) this deficiency prejudiced the defense (there is a reasonable possibility that the outcome of the proceedings would have been different, but for counsel’s deficiency). [Cit.]’ [Cit.]” Ruffin v. State, 201 Ga. App. 792 (2) (412 SE2d 850) (1991). “ ‘The defendant must overcome the strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct. As to deficient performance, errors in judgment and tactical errors do not constitute denial of effective assistance of counsel.’ [Cits.]” (Punctuation and citations omitted.) Powell v. State, 198 Ga. App. 509 (1) (402 SE2d 108) (1991). “ ‘The decisions on which witnesses to call, whether and how to conduct cross-examinations, what jurors to accept or strike, what trial motions should be made, and all other strategic and tactical decisions are the exclusive province of the lawyer after consultation with his client.’ [Cits.] The appellate courts of this state are reluctant to reverse a case on the ground of ineffective assistance of counsel whenever the specific complaint urged can reasonably be construed as involving defense counsel’s trial strategy. [Cits.]” (Punctuation and citations omitted.) Ruffin, supra at 795.

(a) With respect to the expert testimony, the record reveals that the contested testimony of the state licensing investigator was elicited by the defense on cross-examination and in fact pertained to another child, not the victim. However, a psychiatric resident and a county social worker both testified at trial on direct examination, without objection, that in their opinion the victim was sexually molested. Whereas there was legal authority at the time of trial that would prevent the admission of such testimony, defense counsel testified at the motion for new trial that he did not object because he intended to discredit their opinions on cross-examination by showing that they had no independent facts on which to base their opinions. Defense counsel stated that by discrediting their opinions on cross, he felt that the experts were some of the best witnesses for the defense. The record shows that defense counsel did conduct a lengthy and detailed cross-examination of the psychiatric resident and also cross-examined the social worker in an attempt to discredit her opinion testimony. “We do not consider .this trial strategy to be a deficient performance which prejudiced appellant’s defense. . . .” Snyder v. State, 201 Ga. App. 66 (8) (d) (410 SE2d 173) (1991). “ ‘ “Trial strategy and tactics do not equate with ineffective assistance of counsel. Effectiveness is not judged by hindsight or by the result. Although another lawyer may have conducted the defense in a different manner and taken another course of action, the fact that defendant and his present counsel disagree with the decision made by trial counsel does not require a finding that defendant’s original representation was inadequate. [Cits.]” [Cit.]’ [Cit.]” Powell, supra at 511-512.

(b) Defense counsel did not object to the failure to authenticate the videotape of the victim because defense counsel himself first requested the playing of the videotape during cross-examination of the state licensing investigator. Defense counsel was questioned by the trial court as to his decision to request the showing of the tape, and defense counsel reaffirmed his request to show the tape. Counsel then proceeded to question the witness in detail as to many aspects of the tape in an attempt to show the jury that the circumstances of the interview and the victim himself were not credible. This method of cross-examination and the use of the tape was a conscious trial strategy, and we cannot say that these tactics fell outside the “broad range of reasonable professional conduct.” Powell, supra at 510.

(c) After the trial had begun, the State made a request to introduce similar transaction evidence as a result of information that the State received the preceding evening. The State told the court that another child in appellant’s day care center had told his mother the previous night that appellant had performed acts of oral sex on him and other children in the center. The child who made these statements had been interviewed by investigators many months before and had denied any such actions by appellant. A videotaped interview had been made of this child, which was presented to the grand jury months before, in which he denied any wrongdoing by appellant. Defense counsel vigorously objected to the introduction of the evidence. The trial court did not restrict the evidence; however, the court did offer to grant a continuance to the defense to investigate the evidence because the State had not given defense counsel the required notice of similar transactions. Defense counsel refused the continuance. Counsel indicated at the motion for new trial that he was not actually surprised by the testimony and that he was aware of the content of all the previous interviews and videotape of this child, as well as the previous testimony of the child’s mother. At trial, defense counsel introduced the tape in which the child made inconsistent statements and questioned the child’s mother as to the previous inconsistent statements she had made. Defense counsel’s decision not to postpone a trial that had already begun when he was familiar with the previous involvement of the child and his mother in the case, was within the realm of reasonable professional conduct. Counsel’s decision does not trigger an ineffectiveness claim.

(d) Appellant alleges that defense counsel did not interview witnesses and was inadequately prepared at trial. At the motion for new trial, counsel stated that he did interview several witnesses and reviewed the reports of the doctor who was called as an expert by the State. Although certain witnesses testified that they were not interviewed by defense counsel, counsel maintained that he interviewed the necessary witnesses and that he was not surprised by the evidence at trial. Defense counsel testified that he had filed a civil suit in connection with this case and that he had taken the depositions of relevant persons and had performed much discovery via the civil suit. Counsel’s preparation was not so slight as to give rise to a claim of ineffective assistance of counsel. See Sleeth v. State, 201 Ga. App. 324 (411 SE2d 79) (1991).

(e) Appellant asserts that defense counsel was deficient in that he did not call Marva Lynch as a trial witness for the defense. Ms. Lynch testified at the motion for new trial that she was a babysitter for the victim and that she had observed him kissing persons on the mouth and using his tongue before the victim was enrolled in appellant’s day care center. Counsel testified that he did not remember if appellant had supplied the name of Ms. Lynch; that he did not remember being told of the content of her testimony; and that in any event, he did not see the significance of her testimony in light of the actual sexual acts alleged by the victim in the videotape. Even if counsel was aware of Ms. Lynch’s testimony, he made a tactical decision not to call her as a witness as her testimony did not bear on the actual sexual acts alleged by the victim. “ ‘The fact that the case could have been tried differently on behalf of the defendant does not mean that he failed to receive a vigorous and competent defense.’ [Cit.]” Sleeth, supra at 326.

(f) Defense counsel submitted no written requests to charge; however, he did make an oral request to charge which the court granted. The court gave pattern jury instructions, including a charge on the credibility of witnesses. As to the failure to give an impeachment charge, the inconsistent testimony of the child testifying to the similar transaction was introduced via the videotaped interview of the child, and his mother was cross-examined as to her inconsistent statements. Despite the absence of the charge, the evidence was before the jury for their consideration. We cannot conclude that there is a reasonable probability that the outcome of the trial would have been different but for counsel’s failure to request a charge on impeachment. See Snyder, supra at 70.

Decided March 16, 1992

Reconsideration denied April 2, 1992

Michael C. Garrett, for appellant.

Michael C. Eubanks, District Attorney, for appellee.

“ ‘In determining the effectiveness of counsel, the court looks to the totality of the representation provided by counsel. [Cits.] A defendant’s right to effective assistance of counsel does not guarantee errorless counsel or counsel judged ineffective by hindsight, “ ‘but counsel . . . likely to render and rendering reasonably effective assistance.’ (Cits.)” (Cit.)’ [Cit.]” (Emphasis in original.) Richardson v. State, 194 Ga. App. 358 (1) (h) (390 SE2d 442) (1990). “ ‘A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous. (Cit.) The trial court’s finding in the instant case is not clearly erroneous. [Cit.]’ [Cit.]” Harris v. State, 198 Ga. App. 503 (1) (402 SE2d 62) (1991).

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.


text:
    A91A2245.
    PETERSON v. AMERICAN INTERNATIONAL LIFE ASSURANCE COMPANY OF NEW YORK.
    (417 SE2d 402)
   Cooper, Judge.

Appellant appeals from the grant of summary judgment to appellee.

In July 1990, appellee filed a dispossessory action against appellant in which it sought a judgment for past due rent in the amount of $13,324.99, interest, late charges and attorney fees. In June 1991, appellee filed simultaneously a First Amendment to its dispossessory action and a motion for summary judgment. In the amendment, appellee substituted its original prayer for judgment with a revised prayer for judgment for past due rent in the amount of $42,928.30, and increased amounts for interest, late charges and attorney fees. The motion for summary judgment was served on appellant by deposit in the mail on June 18, 1991. Appellant alleges thát. on the day a response to the motion for summary judgment was due, counsel for both parties orally agreed to an extension of time to respond to the motion. A written stipulation extending the response time was mailed to the trial court on July 23, 1991, and was received by the trial court on July 26, 1991. On July 24, 1991, counsel for appellant began a leave of absence which had been previously granted by the court. On July 25, 1991, the court issued an order granting summary judgment to appellee due to the lack of response from appellant. The court ordered that appellee recover from appellant $42,928.30 in past due rent plus interest, late charges and attorney fees prayed for in the First Amendment to the dispossessory action. When appellant’s counsel returned from his leave of absence, there was not sufficient time for the trial court to reconsider its order before the time for appeal expired; therefore appellant filed the instant appeal, raising two enumerations of error.

1. Appellant first contends that the trial court erred in granting summary judgment to appellee before appellant had the opportunity to respond when the parties had stipulated to an extension of time. Pursuant to Uniform State Court Rule 6.2 and OCGA § 9-11-6 (e), appellant had 33 days to respond to appellee’s motion for summary judgment. See Pyramid Constr. Co. v. Star Mfg. Co., 195 Ga. App. 644, 645 (394 SE2d 598) (1990). Appellant’s response, therefore, was due on July 22, 1991. No response was filed by that date. “Under the circumstances, appellant had sufficient notice that judgment was imminent and gave up his opportunity to be heard.” Spikes v. Citizens State Bank, 179 Ga. App. 479 (1) (347 SE2d 310) (1986). Even accepting appellant’s assertion that an oral agreement to extend the response time was reached on July 22, 1991, that agreement was not filed with the court for another four days. In the interim and three days after the response time had expired, the court issued its order. “ ‘A request for an extension of time governed by the CPA must be made before the expiration of the original period prescribed by the statute (OCGA § 9-11-6 (b)), and “by written stipulation of counsel filed in the action. . . .” [Cit.] A private agreement between counsel extending time to file pleadings is not binding except when in compliance with this code section and it is filed with the court. (Cit.)’ [Cit.]” Fadum v. Liakos, 186 Ga. App. 556 (1) (367 SE2d 843) (1988). Whatever stipulation was reached, it was not binding on the court at the time the order was issued; therefore the court did not err in granting summary judgment to appellee.

2. Appellant next argues that the trial court erred in entering a judgment which included an award of rent and other charges which accrued in the interim between the date of the original complaint and the First Amendment to the dispossessory action. Appellant contends that such claims could only be asserted via supplemental pleading pursuant to OCGA § 9-11-15 (d) under the authority of Nickerson v. Candler Bldg., 156 Ga. App. 396 (5) (274 SE2d 582) (1980). This court in Nickerson held that “ ‘ “[e]ach installment under a contract [for rent] constitutes a different cause of action. . . ’ ” id. at 400, and that successive causes of action that accrue for rent installments falling due after suit is commenced may be brought via supplemental pleadings under OCGA § 9-11-15 (d). Id. at 399. However, the Nickerson court did not state that OCGA § 9-11-15 (d) is the exclusive avenue for pleading new causes of action. It has long been held 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 pre-trial order . . .’ [Cits.] This right to amend is very broad and there is no prohibition against pleading a new cause of action by amendment.” Cooper v. Mason, 151 Ga. App. 793 (1) (261 SE2d 738) (1979). See Bituminous Cas. Corp. v. United Svcs. Auto. Assn., 158 Ga. App. 739, 741-742 (282 SE2d 198) (1981); OCGA § 9-11-15 (a). In the instant case, the First Amendment to the dispossessory action was filed pursuant to OCGA § 9-11-15 (a) before any pre-trial order was issued, and it sought judgment for rent installments that were then overdue. Accordingly, the trial court did not err in granting judgment for the sums prayed for in the First Amendment. See Hines v. Good Housekeeping Shop, 161 Ga. App. 318 (6) (291 SE2d 238) (1982).

Decided March 17, 1992

Reconsideration denied April 2, 1992

Furman Smith, Jr., for appellant.

Wiles & Wiles, John J. Wiles, N. Jackson Cotney, Jr., A. Frank Settlemyer, for appellee.

Judgment affirmed.

Birdsong, P. J., and Pope, J., concur.


author: Carley, Presiding Judge. Beasley, Judge,

text:
    A91A1505.
    McKISSICK v. ROTH COMMUNICATIONS OF SAVANNAH, INC.
    (417 SE2d 696)
   Carley, Presiding Judge.

Appellant-plaintiff voluntarily terminated his employment as an advertising salesman for appellee-defendant. Thereafter, he brought the instant action, seeking to recover commissions that appellee allegedly owed him. Appellee answered and, after discovery, moved for summary judgment. The trial court granted summary judgment in favor of appellee and appellant appeals.

1. Appellant is entitled to recover commissions that he actually earned, while he was employed by appellee. Foreman v. Eastern Foods, 195 Ga. App. 332, 335 (3) (393 SE2d 695) (1990). In support of his claim that he has not been paid the commissions that he earned while employed by appellee, appellant relies upon the following provision of appellee’s employee manual: “All salespeople on ‘commission’ are paid 15% . . .on collections (Not sales orders) received within 90 days of the billing date.” It is appellant’s contention that, pursuant to this provision, he is entitled to commissions on such of his sales orders as were both billed and timely collected at any time subsequent to the termination of his employment. Under this construction, neither billing nor timely collection during appellant’s tenure of employment would be a condition precedent to his entitlement to commissions. Appellee, on the other hand, contends that, pursuant to this provision, it is obligated to pay a commission on only such of appellant’s sales orders as were both billed and timely collected at some time prior to the termination of his employment. Under this construction, both billing and timely collection during appellant’s tenure of employment would be conditions precedent to his entitlement to commissions.

The above-quoted provision clearly provides that a salesman’s commission is earned on the basis of appellee’s billings for its actual advertising services, and not on the basis of the salesman’s initial sales order for those services. Only after appellee has provided and billed for its advertising services is the procuring salesman then entitled to expect payment of his commission from collections timely received within 90 days thereafter. Appellant is entitled to those commissions that he actually earned while employed by appellee, but his contract clearly provides that he earns no commission until such time as his sales order has at least generated a bill representing appellee’s potential receipt of advertising revenue. It follows that appellant has no viable claim for any commissions on sales orders for advertising which were not actually billable by appellee until after the termination of his employment. See generally Maine v. Strange, 138 Ga. App. 24 (225 SE2d 484) (1976). Billing by appellee during appellant’s tenure of employment is a condition precedent to its obligation to pay him a commission.

The issue thus becomes whether appellant has a viable claim for any commissions on his sales orders which were actually billable by appellee during his tenure of employment, but which were not timely collected until thereafter.

Nothing in the above quoted provision expressly provides that no commission will be paid for any sales orders which are billable, but uncollected, at the time the procuring salesman’s employment was terminated. The provision does provide that a procuring salesman will be paid his commission only on timely received collections, but this does not necessarily mean that his commission is not otherwise earned unless he remains in appellee’s employ until the collections are timely received. To hold that termination of employment results in a procuring salesman’s loss of his commission on otherwise timely collected bills would be to construe the provision as impliedly authorizing a forfeiture of a commission on such advertising revenues as were actually generated by him for appellee during his tenure of employment. “ ‘While forfeitures, are not unlawful, the law does not favor them, and all ambiguities in a contract are to be resolved against their existence.’ [Cit.]” A. L. Williams & Assoc. v. Faircloth, 259 Ga. 767-768 (1b) (386 SE2d 151) (1989). Accordingly, construing this ambiguous provision most strongly against appellee pursuant to OCGA § 13-2-2 (5), timely collections are the mere subsequent source of payment of commissions that were otherwise previously earned on billable sales of appellee’s advertising services, and the procuring salesman would be entitled to a commission if his sales order has generated a bill for appellee’s advertising services rendered during his employment and that bill is collected within 90 days, regardless of whether or not the termination of the salesman’s employment has intervened.

The trial court correctly granted summary judgment as to those sales orders for advertising services which were not otherwise billable by appellee during appellant’s tenure of employment. The trial court erroneously granted summary judgment as to those sales orders which were otherwise billable by appellee during appellant’s tenure of employment and which were thereafter timely collected by appellee.

2. The trial court correctly granted summary judgment as to appellant’s quantum meruit claim.

“ ‘(O)ne is estopped to recover on quantum meruit where there exists an express agreement. (Cits.)’ [Cit.]” Gilbert v. Edmondson, 193 Ga. App. 593, 594 (1) (388 SE2d 713) (1989).

Judgment affirmed in part and reversed in part.

Sognier, C. J., McMurray, P. J., Birdsong, P. J., Pope, Cooper and Johnson, JJ., concur. Beasley and Andrews, JJ., concur in part and dissent in part.

Beasley, Judge,

concurring in part and dissenting in part.

I concur in Division 2 and in that part of Division 1 which affirms the trial court. I respectfully dissent in that part which reverses the trial court, for I agree with it that defendant employer is entitled to summary judgment also on those sales orders which were billable but not collected before plaintiff employee’s voluntary termination.

It is undisputed that collection of payment on the sales engendered is part of the duties of a salesperson in defendant’s employ. His or her commissions are directly related to the fulfillment of that final duty in the string from calling on someone for a sale to entitlement to commission. According to the affidavit of the business manager, when a salesperson leaves defendant’s employ, his or her accounts are transferred to other employees. It then becomes that person’s responsibility to supervise and monitor collections, a duty left unfulfilled by the terminating salesperson.

Decided March 17, 1992

Reconsideration denied April 3, 1992

Duffy & Feemster, Dwight T. Feemster, Ronald K. Thompson, for appellant.

Karsman, Brooks & Callaway, Stanley E. Harris, Jr., for appellee.

It is clear from the controlling provision in the contract that the salesperson does not earn a commission until and unless he or she completes the job by assuring timely payment from the customer to the employer. Plaintiff left without collecting on all his sales. Under the agreement, he was not entitled to a commission on those.

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