text:
    A00A2086.
    RIVERA v. THE STATE.
    (545 SE2d 105)
   Smith, Presiding Judge.

A Clayton County jury convicted Laureano Miguel Rivera of trafficking in cocaine. On appeal, he claims that the trial court erred in denying his motion to suppress and that the evidence was insufficient to support his conviction. We disagree and affirm.

Construed to support the verdict, the evidence shows that Rivera arrived in the Atlanta airport on May 4,1998, on a flight from Puerto Rico. After disembarking, he did not follow the other passengers but began wandering aimlessly in the seating area next to the gate. Two Clayton County police officers, Rick Webster and J. J. Stubbs, had been informed that Rivera would be on the flight. The officers were dressed in plain clothes, with no weapons visible. They approached Rivera from behind, and one officer said, “[E]xcuse me, sir, I’m a police officer. Can I talk to you for a minute?” Rivera turned and responded, “Yes,” in English, but when the officers asked him if he spoke English, he smiled and responded in English that he did not. Rivera told the officers, through an interpreter, that he was in Atlanta for personal reasons and that he was employed as a construction worker. Officer Webster asked to see the palms of Rivera’s hands, and he saw that they were smooth and free of calluses. At this point, Rivera began to appear very nervous; his hands shook and he began to sweat.

Webster explained to Rivera that he was a narcotics officer; he asked permission to search Rivera and his luggage, but Rivera agreed to a search of his person only and not of his luggage. When asked why he was hesitant to allow his luggage to be searched, Rivera replied that it contained medical equipment and that he would be embarrassed by a search. Agent Stubbs asked if Rivera would rather have a drug sniffing dog check the luggage for narcotics, and Rivera said that he would rather have a dog check the luggage. They proceeded to baggage claim, where the defendant’s bag was located.

Agent Webster called for a dog from the Tri-City Narcotics Unit. He also told Rivera he was not under arrest. The K-9 unit arrived less than 15 minutes later, and the agents arranged for the dog, named Simba, to check a line of four bags, including Rivera’s luggage. Simba alerted to Rivera’s bag. The officers again asked Rivera if he would agree to a search of the bag. Rivera responded that he would agree only if he could do the search himself, but the officers did not agree to this proposal. Officer Webster then ordered Rivera detained. The officers took him and the bag to the narcotics office, where Agent Torro, who spoke Spanish, informed Rivera of his Miranda rights. The officers obtained a search warrant for the bag. Inside, they found five kilos of cocaine.

1. Rivera challenges the denial of his motion to suppress. He contends that Simba’s drug “alert” to his bag was insufficient to establish probable cause for the issuance of a search warrant. In reviewing the trial court’s ruling on a motion to suppress, we apply the following principles:

First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support it. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment.

(Citations, punctuation and emphasis omitted.) Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994).

“[E]vidence that [a] dog has been trained and certified as a drug detection dog constitutes prima facie evidence of its reliability for purposes of a probable cause determination.” Dawson v. State, 238 Ga. App. 263, 267 (1) (518 SE2d 477) (1999). The State presented evidence that Simba was trained and certified to detect illegal narcotics including methamphetamine, cocaine, marijuana, and heroin. The evidence also shows that at the time Simba alerted to Rivera’s bag, he had previously been involved in ten “live” searches and successfully identified narcotics in all ten instances with no false alerts. Rivera presented no evidence challenging the State’s evidence of the dog’s reliability.

We are not persuaded by Rivera’s reliance on two New Mexico federal district court decisions supporting the proposition that the records of a drug dog’s reliability are required in order to establish probable cause based on a drug dog’s alert. United States v. Kennedy, 955 FSupp. 1331 (D. N.M. 1996); United States v. Florez, 871 FSupp. 1411 (D. N.M. 1994). We first note that Kennedy has been reversed by the Tenth Circuit, United States v. Kennedy, 131 F3d 1371 (10th Cir. 1997), and that the holding in that case appears implicitly to overrule Florez as well. Moreover, “this Court is not bound by decisions of other states or federal courts except the United States Supreme Court.” Rodgers v. First Union Nat. Bank &c., 220 Ga. App. 821, 822 (1) (a) (470 SE2d 246) (1996). This is particularly true in the presence of “pertinent Georgia authority.” Sanchez v. State, 234 Ga. App. 809, 810, n. 1 (508 SE2d 185) (1998). Finally, the defense in Florez presented substantial evidence of numerous “false alerts” by the drug dog, and the dog’s handler acknowledged that he had failed to keep proper records. No such evidence was presented here.

Decided January 29, 2001

Lee Sexton, for appellant.

Robert E. Keller, District Attorney, Staci L. Guest, Assistant District Attorney, for appellee.

The existence of probable cause is determined by whether, “given all the circumstances . . . , there is a fair probability that contraband or evidence of a crime will be found in a particular place.” (Citations and punctuation omitted.) State v. Gilman, 218 Ga. App. 895, 897 (463 SE2d 720) (1995), quoting Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983). Considering not only the drug dog’s alert but the totality of the circumstances, including Rivera’s behavior, demeanor, and responses to the officers’ questions, the trial court did not err in denying Rivera’s motion to suppress. Dawson, supra, 238 Ga. App. at 265.

2. The indictment charged Rivera with knowing possession of over 400 grams of cocaine. See OCGA § 16-13-31 (a) (1) (C). Rivera was in possession of a baggage claim ticket for a bag containing five kilos of cocaine. The bag had an identification card attached to it with the name “Miguel Rivera.” After reviewing the evidence in the light most favorable to the verdict, we find that a rational trier of fact could have found proof of Rivera’s guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Johnson, P. J, and Phipps, J., concur.

       “As a general rule, a search warrant based on a narcotics canine alert will be sufficient on its face if the affidavit states that the dog is trained and certified to detect narcotics. [Cits.]” 131 F3d at 1376-1377.


source: Caselaw Access Project

author: Pope, Presiding Judge.

license: Public Domain

text:
    A00A2559.
    JONES v. THE STATE.
    (544 SE2d 541)
   Pope, Presiding Judge.

On November 30, 1998, Johnny Jones pled guilty to a stop sign violation, obstruction of an officer, a violation of the Georgia Controlled Substances Act, and operating a vehicle after having been declared an habitual violator. Jones was sentenced for these crimes to ten years to serve consecutively to a prior sentence.

Jones did not make application for a sentence review within 30 days. More than six months later, in June 2000, he filed a motion for an out-of-time sentence review. The trial court denied the motion, and Jones appeals.

In his sole enumeration of error, Jones argues that the trial court erred in denying his motion for an out-of-time sentence review. Jones further contends that the court’s denial was arbitrary and capricious. Citing OCGA § 17-10-6 and Brantley v. State, 190 Ga. App. 642 (379 SE2d 627) (1989), he argues that he was entitled to a sentence review and that a sentence review is a “first appeal” as a matter of right.

We reject Jones’ arguments. First, assuming arguendo that OCGA § 17-10-6 even applies to the sentences here, there was no error in the court’s denial of the out-of-time motion. Further, Brantley v. State, 190 Ga. App. 642 (1), is distinguishable from this case and is not controlling. Contrary to Jones’ arguments, nothing in Brantley indicates that its pronouncement regarding an appellant’s first appeal as of right applies to untimely motions for review of sentences imposed as part of a plea agreement. In this regard, unlike the defendant who appealed his conviction in Brantley, Jones does not seek to withdraw his guilty plea. Moreover, although Jones claims that he asked his attorney to file a motion for sentence review on December 23, 1998, there is no ineffective assistance claim so as to mandate remand. See Holt v. State, 205 Ga. App. 40, 44 (4) (421 SE2d 131) (1992).

Accordingly, we find no error in the court’s denial of Jones’ motion.

Judgment affirmed.

Miller and Mikell, JJ., concur.

Decided January 29, 2001.

Johnny Jones, pro se.

Robert E. Keller, District Attorney, Staci L. Guest, Assistant District Attorney, for appellee.

       Although both the court and Jones refer to the prior sentence, the only sentence actually appealed here is the ten-year sentence imposed in this case. There is no record of the other sentence before us. Thus, because the sentence here was ten years and there is no record of the other sentence, it appears that the provisions of OCGA § 17-10-6 would not apply. Nevertheless, during the plea and sentencing the court advised Jones that he could have the “sentence reviewed by the Sentence Review Panel” if he applied within 30 days.

       The State does not raise the issue of whether a motion for a sentence review violates the terms of the plea agreement, and thus we do not address this issue either. See Miller v. State, 241 Ga. App. 397, 399 (2) (527 SE2d 571) (1999).


author: Mikell, Judge.

text:
    A01A0183.
    WALTON v. THE STATE.
    (544 SE2d 540)
   Mikell, Judge.

David Walton was convicted of burglary based on his participation in breaking into a hardware store and stealing 16 guns. During the sentencing phase of his trial, the state tendered into evidence certified copies of Walton’s two prior burglary convictions. Walton offered no evidence in mitigation, and the court sentenced him to 20 years to serve. Walton moved for a new trial as to sentencing only, contending that the trial court erroneously failed to consider probating a portion of his sentence, as required by OCGA § 17-10-7 (a). After a hearing, the motion was denied, and this appeal followed. We affirm.

Walton contends that the trial court erroneously concluded that it had no discretion to consider probation. In sentencing Walton, the trial court stated:

You don’t seem to be getting the message. Breaking into people’s buildings, houses . . . and stealing stuff is against the law. It’s going to end up getting you killed or getting somebody else killed probably somewhere along the line if you don’t quit that kind of stuff. Under the law of this State as I read it I have no choice but to sentence you to twenty years to serve in the State penitentiary, and that’s what I’m going to do.

In his amended motion for new trial, Walton argued that the trial court had misconstrued OCGA § 17-10-7 (a), which provides that

any person convicted of a felony offense in this state . . . and sentenced to confinement in a penal institution, who shall afterwards commit a felony punishable by confinement in a penal institution, shall be sentenced to undergo the longest period of time prescribed for the punishment of the subsequent offense of which he or she stands convicted, provided that, unless otherwise provided by law, the trial judge may, in his or her discretion, probate or suspend the maximum sentence prescribed for the offense.

Decided January 29, 2001.

Franklin & Hubbard, Brooks S. Franklin, Mary E. Lysak, for appellant.

Walton contended that when the trial court stated it had no choice other than to sentence him to imprisonment, the court meant that it had no discretion under the statute. However, at the hearing on the motion for new trial, the judge explained that when he used the term “no choice,” he was not referring to the statute. Rather, the court felt that it had no alternative other than to sentence Walton to confinement because “he wasn’t getting the message.” The court further stated that even if this Court remanded for a new sentencing hearing, the trial court would decline to probate a portion of Walton’s sentence.

On appeal, Walton makes the same argument that he made before the trial court, namely, that the trial court failed to consider probating a part of his sentence, in violation of OCGA § 17-10-7 (a).

As we recently noted in Henderson v. State, 247 Ga. App. 31 (543 SE2d 95) (2000), remand for resentencing is appropriate when a trial court has sentenced a recidivist to the maximum penalty under the mistaken belief that it had no discretion to probate any part of the sentence. However, as we also pointed out in Henderson, remand would be an “exercise in futility” where, as in the case sub judice, the trial court explains at a post-sentencing hearing that notwithstanding the discretion granted to the court in sentencing pursuant to OCGA § 17-10-7 (a), the court would decline to exercise that discretion to probate any part of the defendant’s sentence. Accordingly, Walton “has no cause for complaint that the court, in the exercise of its discretion, declined to probate ... a portion of the recidivist sentence.” Muhammad v. State, 242 Ga. App. 540, 542 (2) (529 SE2d 418) (2000).

Finally, we note that the trial court inquired about mitigating evidence before imposing the maximum sentence. Clearly, the court would not have done so unless it intended to consider that evidence in connection with probation. Knight v. State, 221 Ga. App. 92, 93 (470 SE2d 486) (1996); Cox v. State, 205 Ga. App. 375, 376 (2) (422 SE2d 68) (1992). As Walton concedes that his sentence is within the statutory limits, OCGA § 16-7-1, this Court will not disturb it. Scott v. State, 240 Ga. App. 586, 588 (3) (524 SE2d 287) (1999).

Judgment affirmed.

Blackburn, C. J., and Pope, P. J., concur.

Peter J. Skandalakis, District Attorney, Anne C. Allen, Assistant District Attorney, for appellee.


text:
    A01A0255.
    STEPHENS v. THE STATE.
    (545 SE2d 325)
   Mikell, Judge.

Timothy Stephens was convicted after a bench trial of nine counts of misdemeanor cruelty to animals (OCGA § 16-12-4). Stephens was sentenced to serve six months for each count, 135 days in confinement and the remainder on probation. As a condition of probation, Stephens was forbidden from owning any dogs. On appeal, Stephens challenges the sufficiency of the evidence and the denial of his motion for a new trial. He also contends that the trial court erred by depriving him of possession of the dogs that the court found he did not treat cruelly. We affirm.

On appeal from a criminal conviction, the evidence is viewed in a light most favorable to the verdict. We do not weigh the evidence or determine witness credibility but only determine whether the evidence is sufficient under the standard of Jackson v. Virginia. This same standard applies to our review of the trial court’s denial of Stephens’ motion for new trial. The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

So viewed, the evidence shows that on January 18, 2000, after receiving several complaints of barking dogs and of an odor coming from Stephens’ backyard, Officer Harold Race of Cobb County Animal Control visited Stephens’ home. Stephens was not home, but Officer Race observed the dogs from Stephens’ neighbor’s backyard. Officer Race saw several pit bull dogs chained around Stephens’ backyard. He testified: “The dogs were in puddles of water probably approximately an inch and a half to two inches deep. The dog houses were full of mud and water. The dogs had no way of getting out of the mud and water.”

Officer Race reported his findings to his supervisor, who instructed him to contact Stephens to obtain permission to inspect the dogs and their living conditions. On the following day, with Stephens’ permission, Officer Race returned to Stephens’ home, accompanied by several other officers. Officer Race recalled that it had rained during the previous days and that the temperature was in the thirties. Chained in Stephens’ backyard were sixteen pit bull dogs and one boxer, all of which are extremely short-haired dogs, making them more susceptible to the cold. The dogs were living in feces and urine-soaked soil. Some of the dogs had houses, while others lived under boards that were propped against the fence. Officer Race testified that the dogs had no dry place upon which to lie, nor could they escape the cold. He opined that the environment in which the dogs lived was not healthy for any type of animal, especially given the weather.

While in Stephens’ backyard, the officers also located a pit that Officer Race opined had been used for pit bull fighting. Officer Race testified that because pit bull dogs are very strong, boards are used to reinforce the pit so that the dogs can be contained when they are fighting. The boards used to reinforce this pit were splattered with bloodstains, and there were bloodstains on the carpet in the pit. The officers also located bite sticks, which are used to unlock a pit bull’s jaws after it has bitten another animal while fighting. A first aid kit was also found in the pit area. The license plate on Stephens’ truck displayed two pit bull dogs fighting and read “to death do us part.” Finally, some of the dogs had abrasions and neck scars that appeared to be healing.

Officer Race explained that they confiscated all of the dogs because of the conditions they were forced to endure. The dogs lived in extremely muddy conditions in very cold temperatures. Officer Race testified that dog excrement and urine had mixed with the mud. Because the dogs lived in the mud and water, the water they drank was probably contaminated. Three other officers testified consistently with Officer Race. More than 100 pictures of the dogs, the pit, and the surrounding scene were admitted into evidence.

1. Stephens argues that the evidence was insufficient to sustain his conviction for cruelty to animals. In pertinent part, OCGA § 16-12-4 provides that a person commits the offense of cruelty to animals when he or she causes death, or unjustifiable physical pain or suffering, to any animal by an act, an omission, or wilful neglect. In this case, there is evidence to support the trial court’s finding that the dogs were subjected to unjustifiable physical pain and suffering.

The evidence showed that the conditions were wet and the temperature was in the thirties. The dogs lived in metal drums, plastic igloos, or under boards, and none of them had adequate shelter from the elements or bedding. Also, most of them lived in what the trial court called a “virtual sea of mud.”

Decided January 29, 2001.

Tina M. Smith, for appellant.

Though Stephens has not been charged with dogfighting, there was strong circumstantial evidence that he bred the dogs for this purpose. The evidence shows that when pit bull dogs engage in combat, they will fight to the death. The officers found a pit that was reinforced with bloodstained boards, bloodstains on the carpet, bite sticks, and a first aid kit in the pit area. Several of the animals had neck scars and other abrasions, consistent with dogfighting. Finally, Stephens’ license plate supports the sport of dogfighting.

In light of the evidence in this case, any rational trier of fact could have found the elements of cruelty to animals beyond a reasonable doubt. Therefore, we affirm Stephens’ convictions for cruelty to animals and the denial of his motion for a new trial.

2. While in the custody of Cobb County Animal Control, the dog referenced in Count 1 of the accusation gave birth to nine puppies. As a condition of Stephens’ probation, the trial court forbade Stephens to own any dogs or live at a residence where dogs were present. In his remaining enumeration of error, Stephens argues that the trial court erred by depriving him of the nine puppies, and the eight dogs that the court found that he did not treat cruelly. We disagree.

“A trial judge has broad discretion in imposing conditions of probation, and in the absence of express authority to the contrary, there is no reason why any reasonable condition of probation should not be approved.” Furthermore, “[t]here is a presumption that a sentence was correctly imposed, and the burden of showing that a sentence was not correctly imposed is with the party who asserts its impropriety.” Stephens has failed to carry this burden, and his enumeration is without merit.

Judgment affirmed.

Blackburn, C. J, and Pope, P. J., concur.

Barry E. Morgan, Solicitor, Thomas E. Griner, Assistant Solicitor, for appellee.

       Stephens was charged with 17 counts of cruelty to animals based on his abuse of 17 dogs that were confiscated from his backyard.

        Shabazz v. State, 229 Ga. App. 465 (1) (494 SE2d 257) (1997).

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

        Griffin v. State, 212 Ga. App. 411, 412 (441 SE2d 897) (1994).

        Barber v. State, 235 Ga. App. 170 (509 SE2d 93) (1998).

       Officer Joseph Pacpaco testified that he had visited Stephens’ home on March 31, 1999. He observed several pit bull dogs chained to the fence, but found no evidence of unsanitary conditions.

       A person commits the offense of dogfighting when he causes or allows a dog to fight another dog for sport or gaming purposes or maintains or operates any event at which dogs are allowed or encouraged to fight one another. OCGA § 16-12-37 (a).

       See Jackson v. Virginia, supra.

        Dudley v. State, 242 Ga. App. 53, 57 (3) (527 SE2d 912) (2000).

       (Punctuation omitted.) Sirmans v. State, 244 Ga. App. 252, 257 (534 SE2d 862) (2000).


text:
    A01A0297.
    PARKER v. THE STATE.
    (544 SE2d 542)
   Mikell, Judge.

A jury convicted Karen Parker of theft by taking, and she appeals. Parker contends that the court erred by denying her motion for a directed verdict of acquittal. We disagree and affirm the conviction.

Viewed in the light most favorable to the verdict, the evidence shows that on the afternoon of October 18, 1996, between 12:00 and 2:00 p.m., $1,200 disappeared from the customer service cash register of a Kroger grocery store in Lawrenceville. According to Kroger’s records, Christine Greene was the employee responsible for the register on that day. Greene testified that she stocked the register with $2,200 at approximately 12:00 p.m. and that she placed the currency beneath a tray in the cash drawer of the register according to company policy. Greene left the customer service desk periodically, and she took a 30-minute break at approximately 1:00 p.m. Shortly after her return, Greene discovered that $1,200 was missing from the register, and she reported the discrepancy to her supervisor.

The defendant, Parker, normally worked in the floral department of the store; however, she was trained to operate a cash register and covered the customer service counter on occasion when other employees were taking a break. The “detail tape,” which is a transaction history recorded by the cash register, indicated that Parker’s identification code was used to open the customer service register seven times between 12:17 and 1:00 p.m. on the date in question. Each of Parker’s entries was classified on the detail tape as “No Sale Open Cash Drawer,” which means that the cash drawer was opened, but no transaction occurred. Robert Burchfield, the store manager, testified that each employee has a personal identification code for access to cash registers and that the codes are confidential. Burch-field further testified that it was unusual to have so many “no sale” cash drawer openings in such a short period of time.

After reviewing the detail tape, Burchfield spoke with Parker about the missing cash. Burchfield testified that he “did not feel good about [Parker’s] answers,” so he decided to review the store’s surveillance video. According to Burchfield, the video confirmed that Parker opened the register a number of times and that she was often alone at the customer service counter. Burchfield testified that the video revealed two occasions when Parker looked right and left, lifted the tray inside the cash drawer, and reached beneath it where the larger bills were located. At trial, the videotape was played for the jury.

Burchfield further testified that the tape depicted Parker in line at the NationsBank branch in the Kroger store at 1:19 p.m., moments after she left the customer service register. Bank records established that Parker deposited $1,000 into an account she shared with her husband and $100 into an account held by her son.

During an internal investigation of the incident by Kroger, Parker stated that her husband made the deposit, and she merely met him in line at the bank. When confronted with the video footage depicting her alone in line, however, Parker changed her story and claimed that her husband brought cash from an insurance settlement to her in the Kroger parking lot and that she deposited it. During cross-examination by the prosecution, Parker’s husband admitted that on the day he allegedly brought the cash to his wife, he made a separate deposit into the same joint account in which Parker deposited the $1,000.

In her only enumerated error, Parker contends that the court erred in denying her motion for a directed verdict. This argument is patently without merit.

On appeal, we view the evidence in the light most favorable to support the verdict, and Parker no longer enjoys a presumption of innocence. Paul v. State, 231 Ga. App. 528 (499 SE2d 914) (1998). Furthermore, an appellate court does not weigh the evidence or determine witness credibility but only determines the sufficiency of the evidence. The standard for reviewing the denial of a motion for a directed verdict of acquittal is whether under the rule of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense. Mills v. State, 244 Ga. App. 28, 29-30 (2) (535 SE2d 1) (2000). See also Espinoza v. State, 244 Ga. App. 96, 99 (5) (534 SE2d 824) (2000).

OCGA § 16-8-2 provides that a person is guilty of theft by taking when he or she “unlawfully takes or, being in lawful possession thereof, unlawfully appropriates [the] property of another with the intention of depriving him of the property, regardless of the manner in which the property is taken or appropriated.”

We conclude that the evidence summarized above was sufficient for the jury to find Parker guilty of theft by taking beyond a reasonable doubt. Therefore, the court did not err in denying her motion for a directed verdict of acquittal.

Judgment affirmed.

Blackburn, C. J., and Pope, P. J., concur.

Decided January 29, 2001.

W. Keith Davidson, for appellant.

Daniel J. Porter, District Attorney, James M. Miskell, Assistant District Attorney, for appellee.


text:
    A01A0598.
    ROMERO v. THE STATE.
    (545 SE2d 103)
   Mikell, Judge.

Ernesto Romero was convicted of burglary by a Lowndes County jury. On appeal, Romero contends the trial court erred by admitting into evidence two fingerprint cards, which had not been produced in discovery. We disagree and affirm.

“In reviewing a trial court’s decision whether to impose sanctions or take other corrective action as a result of the State’s failure to comply with its discovery obligations, the appropriate standard of review is whether the trial court abused its discretion.”

The record shows that at approximately 10:30 p.m. on July 10, 1997, Deputy Sheriff Jeff Culpepper discovered a burglary in progress and observed two suspects running away from the scene. During the investigation, fingerprints were lifted from the driver’s side door of the van used in the burglary and from a cardboard box that was located at the scene. Romero and his co-defendants were arrested on July 11, 1997.

Upon Romero’s arrest, the intake supervisor at the Lowndes County jail took his fingerprints and palm prints. When the state sought to introduce the fingerprint cards at trial, defense counsel objected on the grounds that the cards had not been provided during discovery. The prosecutor explained that Romero’s prints had been at the sheriff’s office since his arrest. Romero’s counsel did not dispute the fact that he knew the prints existed; he simply argued that he had not seen them. He stated: “I didn’t know he was getting the one from the jail. ... I didn’t know that those would be the ones that were used for comparison.” Romero’s counsel also maintained that if Romero’s expert witness had reviewed the cards before leaving the courtroom, he would have been able to determine whether they were of sufficient quality to compare to the other prints admitted into evidence. After lengthy arguments from the state and Romero’s counsel, the trial court overruled the objection. After the cards were admitted, the state’s fingerprint comparison expert matched them to those taken from the cardboard box and the van door.

Romero contends that the trial court erred by admitting the fingerprint and palm print cards because they had not been provided during discovery. Consequently, Romero argues, his expert, who did not testify in the case, was not able to review the cards. Finally, Romero maintains that the error was prejudicial since the prints were the main evidence that linked him to the crime scene.

OCGA § 17-16-4 (a) (3) directs the state to permit the defendant to inspect and copy papers and tangible objects that are “within the possession, custody, or control of the state or prosecution and are intended for use by the prosecuting attorney as evidence in the prosecution’s case-in-chief or rebuttal at the trial. . . .” Should the prosecutor fail to do so, the trial court may order the state to permit the discovery or inspection of the papers or object, interview the witness, grant a continuance, or, upon a showing of prejudice and bad faith, prohibit the state from introducing the evidence not disclosed. In addition to the foregoing, OCGA § 17-16-6 authorizes the trial court to enter any order it deems just under the circumstances to remedy the discovery violation.

In enacting [OCGA § 17-16-6], the legislature did not impose a rigid formulation or grant an exclusive remedy for a defendant or a fatal consequence to the State for failure to comply with the discovery mandates. Instead, it cloaked the trial court with the discretion to use its own judgment to ensure a fair trial.

Romero’s counsel knew that the prints had been at the jail since Romero’s arrest 11 months earlier. The trial court noted that since the state had an open file policy, defense counsel could have reviewed Romero’s prints at any time prior to trial. Further, defense counsel did not object to the testimony that Romero’s fingerprints had been taken, nor did he move to exclude the fingerprint comparison charts when they were introduced into evidence. Also, Officer Walter Jackson testified that the prints had been made available to Romero’s expert and to all defense counsel at a meeting held during the week before the trial.

Decided January 29, 2001.

John D. Holt, for appellant.

J. David Miller, District Attorney, Robert T. Gilchrist, Assistant District Attorney, for appellee.

In compliance with OCGA § 17-16-6, the trial court allowed defense counsel the opportunity to interview the state’s fingerprint comparison expert prior to the witness’ testimony. The trial court also offered Romero’s counsel the opportunity to have his expert return to court, which Romero’s counsel declined. Also, the transcript reflects that the trial court did not limit Romero’s ability to call other witnesses to challenge the fingerprint evidence.

Before the harsh sanction of excluding evidence will be imposed by the trial court under OCGA § 17-16-6, the defendant must show both that he was prejudiced and that the state acted in bad faith. Romero did not make either showing. Consequently, the trial court did not abuse its discretion, under OCGA § 17-16-6, when it admitted the prints over defense counsel’s objection.

Judgment affirmed.

Blackburn, C. J, and Pope, P. J., concur.

        Williams v. State, 226 Ga. App. 313, 314 (1) (485 SE2d 837) (1997).

       Two of Romero’s three co-defendants, Caesar Fuentes and Alexi Monteagudo, were also convicted of burglary and appealed their convictions. We affirmed Fuentes’ conviction at Fuentes v. State, 239 Ga. App. 672 (521 SE2d 698) (1999), which contains a full recitation of the facts. Monteagudo’s appeal is pending.

       OCGA § 17-16-6.

       (Citation omitted.) Rooks v. State, 238 Ga. App. 177, 178 (1) (518 SE2d 179) (1999).

       See Roberts v. State, 244 Ga. App. 330, 333 (3) (534 SE2d 526) (2000) (disputed evidence was properly admitted because state had an open file policy and the defendant failed to inspect the evidence).

        Brown v. State, 236 Ga. App. 478, 481-482 (3) (512 SE2d 369) (1999).


author: Miller, Judge.

text:
    A00A1808.
    SMITH v. MR. SWEEPER STORES, INC. et al.
    (544 SE2d 758)
   Miller, Judge.

In this workers’ compensation appeal, the sole question is whether Betty L. Smith or her employer/insurer bore the burden of proof of establishing that Smith’s claim for continued medical treatment (after years of the employer paying for medical treatment for a work-related aggravation of a preexisting injury) was directly related to her work-related injury. After review, the superior court affirmed the appellate division of the State Board of Workers’ Compensation which found that Smith, not her employer, had that burden. We agree.

On August 2, 1990, while on company business for her employer (Mr. Sweeper Stores, Inc.), Smith was involved in an automobile accident. She sought and obtained medical benefits only. About seven years later, her employer, its insurer (State Auto Insurance Company), and the servicing agent refused to pay for continuing treatment for Smith’s headaches and hypertension on the basis that such treatment was not related to the August 2, 1990 automobile accident and duly notified her doctors. Notice was sent to Smith, Dr. Warren Davis, Dr. Gary Myerson, and to the Board that the right to compensation was being disputed for these reasons: “1. Blood pressure medication is not related to 8-2-90 accident. 2. Current medical treatment and prescriptions are due to preexisting conditions and are not related to the specific 8-2-90 auto accident.”

Smith disagreed with this action and filed a request for an administrative hearing on the matter of payment. Pursuant to Smith’s request, an administrative law judge (“ALJ”) conducted a hearing to resolve whether Smith was still entitled to medical services. The parties stipulated that no temporary total disability benefits had ever been paid in the case. The employer/insurer (collectively “employer”) agreed that the August 1990 automobile accident had aggravated Smith’s preexisting problems with headaches and hypertension. But the employer contended that the aggravation had resolved so that it had no liability for Smith’s current treatment. Smith countered that since it was the employer who was asserting that her medical problems had subsided, it was the burden of Mr. Sweeper to prove she had undergone a change in condition.

Rejecting Smith’s argument, the ALJ noted that it was Smith who had the burden of proving her injury was compensable. After considering the testimony and examining Smith’s medical records, the ALJ found: “Even if the August 2, 1990, injury aggravated the employee’s high blood pressure and migraine headaches, I find that any aggravation has resolved and that stress from various sources is the cause of the employee’s hypertension and migraine headaches.” Having determined that Smith failed to sustain her burden of proof, the ALJ denied Smith’s claim for continued medical treatment. After observing that the employee bore the burden of proof “to show the relatedness of her hypertension and headaches,” the appellate division adopted the award as its own. The superior court affirmed, and Smith was granted permission to pursue this discretionary appeal.

1. Smith contends that the superior court committed legal error in affirming an award that incorrectly assigned the burden of proof to her rather than to her employer. Relying upon OCGA § 34-9-105 (c) (5), she claims that the award must be set aside because it is contrary to law. While conceding that she had the initial burden of proving that her injury was compensable, Smith contends that the burden shifted to her employer to show that continued treatment was not related to the original accident. Smith argues that since an employer has the burden of proof in claims relating to an intervening cause of disability, then logically, an employer should shoulder the burden of proof when the employer wishes to discontinue a course of treatment being provided by authorized physicians.

As a general rule, the claimant bears the initial burden of proof in workers’ compensation cases. When medical services are sought, then the claimant must prove that those services are directly related to a work-related injury. This tenet embodies the basic principle that “[t]he burden of proof generally lies upon the party asserting or affirming a fact and to the existence of whose case or defense the proof of such fact is essential.”

Here the parties, without an award, agreed that the initially requested medical services were compensable as an aggravation of a preexisting injury, and the employer so paid for seven years. After seven years the employer deemed that the aggravation was resolved and refused to pay for further medical services on the grounds they were unrelated to the work-related accident. Smith as employee then requested a hearing and as the requestor bore the burden of proof. Smith had to prove that her ongoing health problems with high blood pressure and migraine headaches related directly to her August 1990 automobile accident.

This is consistent with Workers’ Compensation Rule 205 (3) (c), which provides:

If medical treatment is controverted on the ground that the treatment is not reasonably necessary, the burden of proof shall be on the employer. If the treatment is controverted on the grounds that the treatment is either not authorized or is unrelated to the compensable injury, the burden of proof shall be upon the employee.

It is undisputed that Smith requested an administrative hearing on the issue of her entitlement to continued payment for medical services. Since liability for the medical treatment was being disputed on the basis that it was not related to the 1990 automobile accident, Smith, not her employer, had the burden of proof.

Despite Smith’s efforts to transform the underlying action into a “change in condition” case, she cannot do so. A claimant cannot have a “change in condition” unless there has been a previous award or an agreement approved by the Board granting compensation. Here, there was neither an award nor an agreement approved by the Board. On the contrary, the central issue was Smith’s entitlement to continue receiving medical services. Smith cites no applicable authority and we know of none that imposes the burden of proof on the employer in these circumstances.

The interpretation of a statute by the agency charged with enforcing or administering its provisions is to be given great weight and deference, unless contrary to law. We hold that the superior court did not err in affirming the Workers’ Compensation Board’s interpretation of the statute to allocate the burden of proof to the employee in these circumstances.

. 2. Smith asserts that the award of the Board as affirmed by the superior court violates her due process rights. She argues that had her employer filed a Board Form WC-14 and requested a hearing on a change in condition, then her employer would have had the burden of proof. Smith complains that it is fundamentally unfair to shift the burden of proof to her solely on the basis that her employer filed a Board Form WC-3, instead of a WC-14 document. We disagree.

It is undisputed that Smith moved for the administrative hearing. As the party asserting that the ongoing medical treatment was, in fact, attributable to the August 2, 1990 automobile accident, Smith bore the burden of proof on that issue.

Decided January 30, 2001

Clements & Sweet, John F. Sweet, for appellant.

Drew, Eckl & Farnham, David A. Smith, for appellees.

Smith misperceives the applicability of due process concerns. “Due process safeguards only those interests in property ‘that a person has already acquired in specific benefits.’ [Cit.]” Smith cites no authority and we know of none which endowed her with a vested property right to obtain continuing medical services for health problems determined to have been unattributable to her 1990 work-related injury.

Moreover, procedural due process requires that the State provide notice and an opportunity to be heard before depriving a person of a protected property interest. Here, it is undisputed that Smith requested the hearing, received notice of it, and fully participated in the hearing. Established procedures authorized Smith to file all relevant documents, affidavits, depositions, and all other evidence bearing on her health problems. In addition, judicial review of the Board’s decision was obviously available to her. In these circumstances, Smith did not establish the abrogation of a constitutionally protected right.

Judgment affirmed.

Pope, P. J., and Mikell, J, concur.

       Smith serves as the president of Mr. Sweeper Stores, a family-owned business, and is majority owner.

       In 1996, the employer filed a notice to controvert Smith’s effort to have her gallbladder surgery linked to the August 2, 1990 work-related automobile accident.

       See Holt Svc. Co. v. Modlin, 163 Ga. App. 283, 285 (1) (293 SE2d 741) (1982).

       Medical records indicate that Smith’s problems with hypertension existed in 1985 and that her difficulties with chronic headaches dated back to 1988.

       See Williams v. Crompton Highland Mills, 190 Ga. App. 621, 625 (3) (379 SE2d 622) (1989).

        Argonaut Ins. Co. v. King, 127 Ga. App. 566, 567 (1) (194 SE2d 282) (1972).

        Berry College v. Storey, 199 Ga. App. 298, 299-300 (2) (404 SE2d 640) (1991).

       OCGA § 24-4-1.

       Cf. Holt Svc. Co., supra, 163 Ga. App. at 285-286 (1); see generally OCGA § 34-9-203 (c) (imposing penalty for not paying valid medical services claim).

       Under OCGA § 34-9-1 (4), as amended in 1994, the definition of a compensable “injur/’ encompasses the aggravation of a preexisting condition, “but only for so long as the aggravation of the preexisting condition continues to be the cause of the disability.” This codification does not appear to have changed then-existing law. See Leatherby Ins. Co. v. Hubbard, 142 Ga. App. 476 (236 SE2d 168) (1977) (when temporary aggravation of a preexisting condition has resolved, it cannot form the basis for subsequent claim on an underlying condition).

       Rule 205 (3) (c), Rules & Regulations of the State Board of Workers’ Compensation, Vol. 26 OCGA Appendix.

       Id.

       See OCGA § 34-9-104 (a).

        Paideia School v. Geiger, 192 Ga. App. 723, 724 (2) (386 SE2d 381) (1989); see Northbrook Property &c. Ins. Co. v. Babyak, 186 Ga. App. 339, 341 (367 SE2d 567) (1988); Williams v. Morrison Assurance Co., 138 Ga. App. 191, 195 (3) (225 SE2d 778) (1976).

       Compare Ga. Pacific Corp. v. Wilson, 225 Ga. App. 663, 664 (1) (484 SE2d 699) (1997) (when employer moves for hearing as to change in condition, employer has burden of proof since prior award continues as res judicata until new award entered).

       See Wier v. Skyline Messenger Svc., 203 Ga. App. 673, 675 (2) (417 SE2d 693) (1992) (medical treatment for a compensable injury in a medical only claim is not subject to the change in condition statute).

        Environmental Waste Reductions v. Legal Environmental Assistance Foundation, 216 Ga. App. 699, 702 (2) (455 SE2d 393) (1995).

       OCGA § 34-9-105 (c) (5).

       See Copeland v. Continental Kewitt, 218 Ga. App. 305, 306 (3) (461 SE2d 277) (1995) (claimant in workers’ compensation proceedings has burden of proof to show the injury is compensable); Holt Svc. Co., supra, 163 Ga. App. at 285 (1).

       (Emphasis in original.) K-Mart Apparel Corp. v. Temples, 260 Ga. 871, 872 (1) (401 SE2d 5) (1991).

       Id.

       See Scott v. Tremco, Inc., 199 Ga. App. 606, 608 (1) (405 SE2d 347) (1991).

       See Subsequent Injury Trust Fund v. James, 261 Ga. 548, 549 (406 SE2d 77) (1991).


author: Blackburn, Chief Judge.

text:
    A00A1858.
    BRIDGES v. MANN et al.
    (544 SE2d 755)
   Blackburn, Chief Judge.

In this contract dispute over payment for landscaping services, plaintiff Harold Bridges appeals the trial court’s grant of partial summary judgment to defendants John Mann, individually and d/b/a J. B. M. Construction, and Martha Denise Hair and Willard Hair, Jr., individually and d/b/a Willard Hair Center. Bridges contends that the trial court erred by: (1) granting the defendants’ motion to open default pursuant to OCGA § 9-11-55 (b) and (2) finding that his complaint against the defendants was barred by the doctrine of accord and satisfaction. For the reasons set forth below, we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

Matjoulis v. Integon Gen. Ins. Corp.

Viewed in this light, the record shows that the Hairs hired J. B. M. Construction to improve real property owned by them. J. B. M., in turn, subcontracted with Bridges to landscape the property for $8,360. This contract required acceptance of the work by the owner of the property and the architect supervising the work prior to final payment. Defendants made a down payment at the inception of the contract.

After Bridges landscaped the property, a Clayton County inspector found that the landscaping work did not comply with the county’s code. Bridges and the defendants then disagreed about Bridges’ obligation to bring the property up to code. Bridges argued that his work was completed and that full payment was due, and the defendants contended the opposite. Following this disagreement, the defendants paid another landscaper $2,000 to bring the property into compliance with the Clayton County code.

On July 15, 1998, Bridges filed a materialman’s lien against the defendants’ property, and, the following day he filed a complaint requesting reimbursement under the contract for $7,210 as well as the imposition of a special lien against the defendants’ property. Unaware of the lawsuit, Mann sent a letter to Bridges on July 20, 1998, describing their inability to reach an agreement to finish the landscaping work. Mann informed Bridges that he was going to hire another landscaper to finish the work and that the cost of this landscaper would be deducted from the balance he owed to Bridges. Then, on July 24, 1998, Mann sent Bridges a second letter stating that he was enclosing a check “for the balance of [his] contract.” The enclosed check for $5,310 was labeled “final payment.”

After learning about the lawsuit, Mann called Bridges’ office and discussed the matter with an unidentified woman he thought was Bridges’ wife. Mann asked this woman to tell Bridges to cash the check he had conveyed if the amount was satisfactory in order to settle their dispute. Bridges deposited the check shortly after the date of this phone call. On August 10, 1998, thinking that the matter had been concluded, Mann sent a letter to the trial court asking that the materialman’s lien be removed.

The defendants next received a notice of calendar call on February 16, 1999, and filed an answer to Bridges’ suit, which was still pending, on February 19, 1999. On May 14, 1999, the trial court, on Bridges’ motion, entered a default judgment against the defendants for failure to timely answer Bridges’ complaint. On August 23, 1999, the defendants filed a motion to open the default, which the trial court granted. The defendants then moved for partial summary judgment, contending that Bridges’ claim against them for compensation under the landscaping contract was governed by the doctrine of accord and satisfaction. The trial court granted this motion.

1. Bridges appeals the trial court’s order opening default, specifically arguing that the defendants did not show that their failure to answer his complaint was due to excusable neglect. We disagree.

Under OCGA § 9-11-55 (b), a prejudgment default may be opened on one of three grounds if four conditions are met. The three grounds are: (1) providential cause, (2) excusable neglect, and (3) proper case; the four conditions are: (1) showing made under oath, (2) offer to plead instanter, (3) announcement of ready to proceed with trial, and (4) setting up a meritorious defense. The question of whether to open a default on one of the three grounds noted above rests within the discretion of the trial judge.

K-Mart Corp. v. Hackett.

The trial court did not abuse its discretion in finding that one of the grounds for opening default, excusable neglect, was present in this case. “Excusable neglect has been defined as referring to where there is a reasonable excuse for failing to answer.” (Punctuation and emphasis omitted.) Spikes v. Holloway. In this case, the undisputed evidence shows that Mann sent Bridges a check for “final payment” under the contract, that Bridges accepted and deposited this check, and that Mann, on behalf of the defendants, forwarded proof of payment to the trial court with a request to remove the materialman’s lien. Afterward, the defendants reasonably believed they had settled their case with Bridges and that no further action on their parts was necessary. Under these circumstances, we cannot say that the trial court abused its discretion in opening default.

The trial court also properly found that the four conditions necessary for opening default were present in this case. The defendants (1) made a showing made under oath, (2) offered to plead instanter, (3) made an announcement of ready to proceed with trial, and (4) set up a meritorious defense (see discussion below).

2. Bridges appeals the trial court’s grant of partial summary judgment to the defendants, contending that his acceptance of the payment sent by Mann did not constitute accord and satisfaction. Again, we disagree.

OCGA § 13-4-103 (b) provides:

Acceptance by a creditor of a check, draft, or money order marked “payment in full” or with language of equivalent condition, in an amount less than the total indebtedness, shall not constitute an accord and satisfaction unless: (1) A bona fide dispute or controversy exists as to the amount due; or (2) Such payment is made pursuant to an independent agreement between the creditor and debtor that such payment shall satisfy the debt.

In this case, the defendants, through Mann, mailed letters to Bridges detailing the dispute between them, indicating that they were tendering an amount less than the total indebtedness set forth under the contract, and stating that an enclosed check, marked “final payment,” constituted remuneration for “the balance of the contract.” Bridges accepted this payment without condition. As such,

[Bridges’] acceptance and deposit of the check made upon condition carried with it the acceptance of the condition, and thus worked an accord and satisfaction. The circumstances of [Bridges’] endorsement and deposit of the check did not create an issue of fact as to whether there was an understanding that the payment represented full payment of the debt.

(Citation omitted.) Wood Bros. Constr. Co. v. Simons-Eastern Co.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.

Decided January 30, 2001.

Graylin C. Ward, for appellant.

Jay, Sherrell, Smith & Braddy, Robert E. Sherrell, for appellees.

        Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

        K-Mart Corp. v. Hackett, 237 Ga. App. 127, 128 (1) (514 SE2d 884) (1999).

        Spikes v. Holloway, 212 Ga. App. 653, 655 (442 SE2d 471) (1994).

        Wood Bros. Constr. Co. v. Simons-Eastern Co., 193 Ga. App. 874, 876 (2) (389 SE2d 382) (1989).


text:
    A00A2157.
    MCCARTY v. DELTA PRIDE.
    (545 SE2d 117)
   Miller, Judge.

Randall Scott McCarty contends the superior court erred when it reversed an award entered by the appellate division of the State Board of Workers’ Compensation. We agree and reverse.

Construed in favor of the appellate division’s findings, the evidence showed that while employed by Delta Pride as a construction worker in the Central American nation of Belize, McCarty contracted malaria. McCarty and two other workers prepared and loaded equipment into a van in Georgia, drove the van belonging to Delta Pride from Georgia to Belize, and then remained for six weeks to install irrigation pipes and equipment on a banana plantation. While still in Belize, McCarty first began to experience symptoms of what was subsequently diagnosed as malaria: fever, chills, diarrhea, and lower backache. After returning to Georgia, McCarty was hospitalized for treatment of malaria.

Delta Pride controverted McCarty’s efforts to obtain workers’ compensation benefits. Among its reasons for refusing to pay McCarty’s medical bills, Delta Pride argued that malaria is not an “occupational disease” within the meaning of the workers’ compensation statute, that McCarty was a farm laborer exempt from the Workers’ Compensation Act, and that he performed all his work outside of Georgia.

1. Coverage for an occupational disease is available only if a claimant can satisfy certain conditions. By statutory definition, occupational diseases are “those diseases which arise out of and in the course of the particular trade, occupation, process, or employment in which the employee is exposed to such disease. . . .” In addition to satisfying the standard “arising out of” and “in the course of employment” requirements, the victim of an occupational disease must also prove five essential elements:

(A) A direct causal connection between the conditions under which the work is performed and the disease; (B) That the disease followed as a natural incident of exposure by reason of the employment; (C) That the disease is not of a character to which the employee may have had substantial exposure outside of the employment; (D) That the disease is not an ordinary disease of life to which the general public is exposed; [and] (E) That the disease must appear to have had its origin in a risk connected with the employment and to have flowed from that source as a natural consequence.

At the hearing, the administrative law judge (“ALJ”) admitted the deposition of McCarty’s treating physician, Peter Wrobel, M.D. Dr. Wrobel testified that malaria is an infectious disease that essentially has been eradicated from the United States but still occurs in Central America, Asia, and Africa. Dr. Wrobel attested to a causal connection between McCarty’s work in Belize and the onset of the disease. He also testified that malaria is not considered a disease of life to which the general public in Georgia would be exposed. Ultimately, the ALJ decided that McCarty failed to prove the latter four conditions, (B) through (E). The ALJ concluded that McCarty did not sustain a compensable occupational disease and found that Delta Pride was not liable for the payment of any benefits.

The appellate division, however, modified and amended that award, ultimately reaching the opposite result. The appellate division decided that a “preponderance of the competent and credible evidence [did] not support paragraphs 16 through 20,” and struck those portions of the award entered by the ALJ. The appellate division then substituted its own explicit findings pertaining to subparts (B) through (E) of OCGA § 34-9-280 (2) and determined that McCarty met all of the statutory requirements. The appellate division directed Delta Pride to pay McCarty’s past medical expenses of $5,035.51 and to pay temporary total disability benefits of $300 for one week only.

Delta Pride appealed to the superior court and prevailed. The superior court reversed the appellate division upon finding that McCarty failed to satisfy one of the five elements, specifically subpart (D) of OCGA § 34-9-280 (2). In so finding, the court relied upon the answer of McCarty’s treating physician who had responded affirmatively to the question, “fy]ou would agree, wouldn’t you, that everyone in Belize is exposed equally to this disease, wouldn’t you, whether you’re at work or not at work?” The court also noted that McCarty had agreed with Delta Pride’s counsel who suggested that “just about everybody in Belize gets malaria at some time or other. . . .” The court determined that the appellate division had improperly added to the requirements of the statute “the qualifier that the employee must only prove that the disease is not an ordinary disease of life to which the general public of Georgia is exposed.” In reversing the award, the superior court decided that the appellate division had “no authority to add this qualifier to a statute that is plain on its face.”

In this discretionary appeal, McCarty contends the superior court exceeded its authority by disregarding the findings of the appellate division and substituting its own judgment. We agree.

(a) When considering an appeal from an award or from the denial of workers’ compensation benefits, the superior court may not substitute its findings for the appellate division’s findings of fact. The superior court is bound by the “any evidence” standard of review and may not reweigh the evidence or judge witness credibility. Further, in reviewing a workers’ compensation award, both this court and the superior court must construe the evidence in the light most favorable to the party prevailing before the appellate division. Absent a legal error, review by a superior court is confined to a determination of whether any evidence supported the decision of the appellate division.

(b) But here, the superior court rejected the appellate division’s I statutory construction of subpart (D) of OCGA § 34-9-280 (2) and reconsidered the evidence in a light corresponding to the court’s own viewpoint.

In construing a statute, courts must attempt to implement the intent and purpose of the legislature in enacting the law. The Workers’ Compensation Act has long been recognized as a humanitarian measure that should be liberally construed to effectuate its purpose of providing relief to the injured employee and protecting employers from excessive damage awards. And the interpretation of a statute by the agency charged with enforcing or administering its provisions is to be given great weight and deference, unless contrary to law.

The part of the statute at issue, subpart (D) of OCGA § 34-9-280 (2), requires “[t]hat the disease is not an ordinary disease of life to which the general public is exposed .” In analyzing subpart (D), the appellate division found: “that a reasonable and logical interpretation of this section, which is consistent with the intent of the Georgia General Assembly, is for the section to apply to ordinary diseases of life to which the general public of Georgia is exposed.” Construing the statute to mean the general public of Georgia, the appellate division noted that Dr. Wrobel had testified that “there is virtually no possibility of contracting malaria in Georgia, or in the United States.” Based on Dr. Wrobel’s opinion and the record as a whole, the appellate division found that McCarty satisfied subpart (D) because a “preponderance of the competent and credible evidence reveals that malaria is not an ordinary disease of life to which the general public of Georgia, or the United States, is exposed.”

The appellate division’s statutory construction is consistent with both the beneficent purpose of the Act of protecting employees who sustain work-related injuries and with the Georgia Constitution’s limitation upon the General Assembly’s legislative powers for the welfare of the state. The appellate division’s liberal interpretation of the statute plainly corresponds with the humanitarian purpose of the Act. Because some evidence supports the appellate division’s finding and the law allows that finding, the superior court erred in substituting its own finding and in reversing the award.

2. Contending that the superior court judgment should be affirmed as “right for any reason,” Delta Pride argues that the Workers’ Compensation Act did not apply to McCarty in any case because (i) McCarty was a farm laborer under OCGA § 34-9-2 (a) and (ii) all of McCarty’s work took place outside of Georgia. But some evidence supported the findings of the ALJ, as adopted by the appellate division, that McCarty was a construction worker, not a farm laborer, and that more than a small portion of the work was performed in Georgia. We will not disturb these findings.

Decided January 30, 2001.

Hackel & Hackel, Thomas M. Hackel, for appellant.

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

Judgment reversed.

Pope, P. J., and Mikell, J., concur.

        Satilla Regional Med. Center v. Dixon, 238 Ga. App. 619, 620 (1) (518 SE2d 723) (1999).

       McCarty testified that prior to working for Delta Pride in Belize on the irrigation project, he had never been outside of the continental United States.

       OCGA § 34-9-280 (2).

       OCGA § 34-9-280 (2) (A)-(E).

       Delta Pride was assessed a $500 penalty for failing to maintain workers’ compensation insurance.

       OCGA § 34-9-105 (c); Satilla Regional Med. Center, supra, 238 Ga. App. at 620 (1).

       OCGA § 34-9-105 (c) (4); Contract Harvesters v. Clark, 211 Ga. App. 297 (1) (439 SE2d 30) (1993), citing Ga. Cas. Co. v. Martin, 157 Ga. 909, 915 (122 SE 881) (1924).

        Owens-Brockway Packaging v. Hathom, 227 Ga. App. 110, 111 (488 SE2d 495) (1997).

        Southwire Co. v. Molden, 223 Ga. App. 389, 390 (477 SE2d 646) (1999).

        Bankhead Enterprises v. Beavers, 267 Ga. 506, 508 (480 SE2d 840) (1997).

       The only medical testimony came from Dr. Wrobel. But Dr. Wrobel disputed Delta Pride’s premise that “malaria is an ordinary disease of life for anyone who resides in Belize.” Instead, Dr. Wrobel agreed only that people living in Belize are “susceptible to it.”

        City of Waycross v. Holmes, 272 Ga. 488, 489 (532 SE2d 90) (2000).

        Samuel v. Baitcher, 247 Ga. 71, 73 (274 SE2d 327) (1981).

        Environmental Waste Reductions v. Legal Environmental Assistance Foundation, 216 Ga. App. 699, 702 (2) (455 SE2d 393) (1995).

       OCGA § 34-9-105 (c) (5).

       (Emphasis supplied.)

       (Emphasis in original.)

       Compare Fulton-DeKalb Hosp. Auth. v. Bishop, 185 Ga. App. 771, 772 (365 SE2d 549) (1988) (physical precedent only) (hepatitis B is an ordinary disease to which general public is exposed).

       See Baitcher, supra, 247 Ga. at 73; Ga. Const. of 1983, Art. III, Sec. VI, Par. I.

       See Hardee’s v. Bailey, 180 Ga. App. 332, 333 (1) (349 SE2d 211) (1986).

        Guarantee Mut. Ins. Co. v. Wade Investments, 232 Ga. App. 328, 330 (499 SE2d 925) (1998).

       See OCGA § 34-9-242.

        Satilla Regional Med. Center, supra, 238 Ga. App. at 620 (1).


text:
    A00A2238.
    A00A2239.
    TATE v. COASTAL UTILITIES, INC. et al. LAU v. COASTAL UTILITIES, INC. et al.
    (545 SE2d 124)
   Blackburn, Chief Judge.

Alexander H. Tate and Charles Lau filed separate appeals from the grant of summary judgment finding that their respective lawsuits were procedurally barred. In affirming that judgment, we also find that the renewal statute cannot be applied.

On April 6, 1996, Tate and Lau became involved in a multivehicle accident that included a utility truck owned by Coastal Utilities, Inc. (“Coastal”) and driven by Coastal employee Gary Clanton Groover. Three days before the expiration of the applicable statute of limitation, Tate and Lau filed a personal injury action in federal district court against Coastal and Groover. On November 4, 1998, the district court ordered Tate and Lau to provide proof that Coastal and Groover had been served, on or before August 3, 1998, or within 120 days after the filing of the complaint as required by Federal Rule of Civil Procedure 4 (m). On November 23, 1998, after finding that Tate and Lau “failed to provide the required proof of service,” the district court dismissed Coastal and Groover from that litigation. In the meantime, on November 20, 1998, service was effectuated.

The district court, however, entered another order on April 26, 1999, again finding that Tate and Lau “failed to show good cause for their failure to serve defendants within the 120 day service period,” and additionally finding that Tate and Lau “failed to diligently serve defendants Coastal and Groover . . . after the expiration of the statute of limitations as required under Georgia law.” The court further held that Tate and Lau “are guilty of laches because they have indulged in unreasonable delays without excuse.” Although reaffirming its earlier order dismissing the complaint, the court, however, granted the plaintiffs’ “alternative motion to dismiss this action without prejudice because of statutory refiling opportunities accorded under OCGA § 9-2-61.”

Subsequently, in excess of three years after the automobile accident giving rise to their claims, Tate and Lau filed separate lawsuits against Coastal and Groover in the Superior Court of Liberty County on May 12, 1999. Tate and Lau claimed that they were filing their suits within six months as permitted by the renewal statute, OCGA § 9-2-61 (a).

The trial court refused to apply the renewal statute. After noting that the federal action was “void,” the trial court found that Tate’s and Lau’s respective actions were time-barred and awarded summary judgment to Coastal. Tate and Lau filed separate appeals to contest that ruling.

Case No. A00A2238

1. Tate contends that the trial court erred in finding that he had not been diligent in attempting to serve the complaint in the federal action because that ruling is contrary to the order entered in federal court and deviates from existing law.

Generally, a trial court’s determination as to whether a plaintiff exercised diligence in perfecting service after the five-day safe harbor provision of OCGA § 9-11-4 (c) will not be disturbed absent an abuse of discretion. Scott v. Taylor. The mere filing of a complaint does not commence suit unless timely service is perfected as required by law. Ingram v. Grose If reasonable and diligent efforts are not made to ensure proper service as quickly as possible, a plaintiff is guilty of laches, and service will not relate back to the time of the filing of the complaint for the purpose of tolling the statute of limitation. Land v. Casteel,

Tate seeks to avoid these procedural rules by applying the renewal statute, OCGA § 9-2-61. Relying on the fact that the federal action was dismissed and the fact that his case was filed within six months of that dismissal, Tate claims that the subsequent filing in superior court relates back.

The privilege of dismissal and renewal does not apply to cases decided on their merits or to void cases. Patterson v. Douglas Women's Center. Instead, the privilege of dismissal and renewal applies only when the previous action was merely voidable. Id. If service was never perfected, then the original action is void, since the filing of a complaint without perfecting service does not constitute a pending suit. Hobbs v. Arthur. In addition,

[a] suit is also void and incapable of renewal under OCGA § 9-2-61 (a) if there has been a judicial determination that dismissal is authorized. However, unless and until the trial court enters an order dismissing a valid action, it is merely voidable and not void.

Id.; see Allen v. Kahn.

According to subsection (a) of the renewal statute:

When any case has been commenced in either a state or federal court within the applicable statute of limitations and the plaintiff discontinues or dismisses the same, it may be recommenced in a court of this state or in a federal court either within the original applicable period of limitations or within six months after the discontinuance or dismissal, whichever is later, subject to the requirement of payment of costs in the original action as required by subsection (d) of Code Section 9-11-41.

OCGA § 9-2-61 (a). But, here, the federal diversity action had not been commenced within the applicable statute of limitation since service had not been timely perfected. Nor was the federal case dismissed voluntarily at the plaintiffs behest.

In addition, there had been a judicial determination that dismissal was authorized, and the federal court entered highly detailed findings in support of its decision to dismiss the action. The federal court expressly decided that Tate and Lau failed to show “good cause” or the exercise of due diligence in attempting to effectuate service. The court also found that Tate’s and Lau’s “explanations of error and inadvertence fail to meet the standard of excusable neglect.” In crafting its order, the federal court concluded, “[therefore, not only did plaintiffs miss the Georgia narrow gate, they additionally missed the broad door of the federal rules.” Because there had been a judicial determination that dismissal was authorized, the renewal statute cannot be applied here. See Black v. Knight

Nor does the federal court’s decision to order that the case be dismissed without prejudice authorize the application of subsection (c) of the renewal statute. OCGA § 9-2-61 (c) expressly states: “[t]he provisions of subsection (a) of this Code section granting a privilege of renewal shall apply if an action is discontinued or dismissed without prejudice for lack of subject matter jurisdiction in either a court of this state or a federal court in this state.” (Emphasis supplied.) Although the federal court apparently entered an order dismissing the action without prejudice, it did not do so because subject matter jurisdiction was lacking, but because service had not been timely perfected. Since the original court had ruled adversely to Tate on the reasonableness of service prior to the filing of the subsequent lawsuit, Tate could not avail himself of the renewal statute. Allen, supra. Accordingly, the trial court correctly granted summary judgment. See Black, supra.

Decided January 30, 2001

Phillips & Kitchings, Richard D. Phillips, Joseph C. Kitchings, for appellants.

Brannen, Searcy & Smith, David R. Smith, for appellees.

2. Tate asserts that the trial court erred by finding that the costs required by OCGA § 9-2-61 (a) had not been paid, in light of evidence showing otherwise. Having determined that the renewal statute cannot be applied, the issue of proper payment of costs is now moot.

Case No. A00A2239

In his appeal, Lau asserts the same purported errors as set forth in Tate’s appeal. For the same reasons, we necessarily reach the same result.

Judgments affirmed.

Eldridge and Barnes, JJ, concur.

        Scott v. Taylor, 234 Ga. App. 543, 544 (507 SE2d 798) (1998).

        Ingram v. Grose, 180 Ga. App. 647 (350 SE2d 289) (1986).

        Land v. Casteel, 195 Ga. App. 455, 457 (393 SE2d 710) (1990).

        Patterson v. Douglas Women’s Center, 258 Ga. 803, 804 (3) (374 SE2d 737) (1989).

        Hobbs v. Arthur, 264 Ga. 359, 360 (444 SE2d 322) (1994).

        Allen v. Kahn, 231 Ga. App. 438, 439 (499 SE2d 164) (1998).

        Black v. Knight, 231 Ga. App. 820, 822 (499 SE2d 69) (1998).


text:
    A00A2367.
    BROWN v. THE STATE.
    (545 SE2d 114)
   Blackburn, Chief Judge.

Dean DeWayne Brown appeals his conviction of armed robbery, contending that the trial court abused its discretion in allowing the State to improperly bolster the testimony of two State witnesses. For the reasons set forth below, Brown’s conviction is affirmed.

Viewed in the light most favorable to the verdict, the evidence established that Brown entered a Holiday Market with a pocketknife and informed Donald Herring, the clerk, that he was robbing the store. Brown, who was wearing a shirt wrapped around his face, took $120 from the store’s cash register in $5 and $10 denominations. The robbery was videotaped by the store’s videocamera, and the tape was played for the jury.

1. On appeal, Brown contends that the trial court allowed the State to improperly bolster Herring’s veracity by allowing him to refresh his recollection with the investigating officer’s report. At trial, Brown’s counsel did not object regarding the bolstering of Herring’s veracity, but instead contended that because the officer’s report was unauthenticated, the trial court improperly allowed a witness to use it to refresh his recollection. Initially, we note that Brown’s contention on appeal is different from that presented to the trial court. “If counsel desires to preserve an objection upon a specific point, the objection must be on that specific ground.” Wilson v. State. However, even if properly preserved, Brown’s enumeration is without merit.

At trial, the State asked Herring whether he told the investigating officer that Brown was wearing the same clothing as the robber when the officers brought Brown to the store. Herring testified: “Not that I believe so, sir. It’s been —.” Herring’s testimony was interrupted by defense counsel’s objection:

I think the District Attorney is about to attempt to refresh Mr. Herring’s recollection or memory with Sgt. Rofulowitz’s report. Mr. Herring has a statement in the file. If he needs to be refreshed, I think it ought to be refreshed with his statement and not with Det. Rofulowitz’s hearsay report. And I object on that basis.

The trial court determined that the State was allowed to ask the witness whether he recalled telling the investigating officer certain information. Defense counsel then objected by contending that refreshing a recollection with an unauthenticated report was improper. The trial court also overruled this objection.

Although on appeal Brown contends that the State improperly bolstered Herring’s veracity by allowing him to refresh his recollection with the investigating officer’s unauthenticated report, the transcript reveals that Brown was never shown the investigating officer’s report. Instead, the State merely questioned Herring as to whether he remembered telling the investigating officer that Brown fit the description of the offender. And Herring responded that he could not remember what he told the investigating officer. Herring also testified that he could not remember whether he told the investigating officer that Brown was wearing the same white shorts and high-top hiking boots as the robber. After cross-examination and upon redirect examination, the witness did review the investigating officer’s report, but the witness testified that his memory was not refreshed by the report and he was not questioned further.

In Woods v. State the Supreme Court of Georgia determined that, although harmless under the facts of that case, the trial court erred by refusing to allow the witness to refresh his recollection with a police officer’s report. The Supreme Court based its holding on OCGA § 24-9-69, which provides that a witness is allowed to “refresh and assist his memory by the use of any written instrument or memorandum.” It is not required that the written document was prepared by the witness, “so long as the witness testifies from personal recollection.” Woods, supra. Additionally, because the document used by the witness to refresh his recollection was not admitted, it was not required that it be authenticated.

Because an investigating officer’s report could be used to refresh another witness’s recollection, and in the present case, the witness did not testify after reviewing the officer’s report, Brown’s enumeration of error is without merit.

2. At trial the State asked a witness what the witness “could tell about” the robber after reviewing the videotape of the robbery. Brown objected stating that the witness’s opinion was irrelevant. The trial court overruled the objection, and the witness was allowed to review the videotape of the robbery. The witness then testified that he could not tell anything about the robber’s clothes from the videotape. On appeal, Brown contends that the playing of the videotape bolstered the witness’s veracity before the witness’s veracity was attacked. We cannot agree.

Again, Brown’s enumeration of error on appeal is different from his objection in the trial court. At trial, Brown objected on relevancy grounds and on appeal contends that the playing of the videotape improperly bolstered the witness’s veracity. “Because this is a court for review and correction of error, we cannot consider objections to evidence different from those raised at trial.” (Punctuation omitted.) Waddell v. State. See also Wilson v. State, supra.

3. On appeal Brown contends that the trial court erred in allowing the State to use prior consistent statements in order to improperly bolster a witness’s testimony. However, Brown did not object on this basis at trial, and we cannot consider it on appeal. See Waddell, supra.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.

Decided January 30, 2001.

James E. Jarvis, Jr., for appellant.

J. David Miller, District Attorney, Charles M. Stines, Laura E. Anderson, Assistant District Attorneys, for appellee.

        Wilson v. State, 145 Ga. App. 315, 322 (244 SE2d 355) (1978).

        Woods v. State, 269 Ga. 60, 62 (3) (495 SE2d 282) (1998).

        Waddell v. State, 224 Ga. App. 172, 174 (2) (480 SE2d 224) (1996).


text:
    A00A1977.
    GENESIS RESEARCH INSTITUTE, INC. v. ROXBURY PRESS, INC.
    (542 SE2d 637)
   Mikell, Judge.

Genesis Research Institute, Inc. (“GRI”) appeals from the trial court’s dismissal, for lack of personal jurisdiction, of its complaint against Roxbury Press, Inc. d/b/a Mailings Clearing House (“MCH”) for breach of contract and breach of warranty. In its enumeration of errors, GRI argues that the trial court failed to resolve disputes of fact in its favor and, consequently, erred in granting MCH’s motion to dismiss. We agree and therefore reverse.

“On a motion to dismiss for lack of personal jurisdiction, the defendant bears the onus of proving lack of personal jurisdiction.” Further, “any disputes of fact in the written submissions supporting and opposing the motion to dismiss are resolved in favor of the party asserting the existence of personal jurisdiction.” Finally, because the motion was decided on the basis of written submissions, the appellate standard of review is nondeferential.

Viewing the facts in the light most favorable to the exercise of personal jurisdiction, the record shows that GRI, a Georgia corporation owned by Rebecca Uggla, is a direct mail order business. GRI markets dietary supplements through the use of mailing lists it obtains from “list brokers.” MCH, a Missouri corporation, served as GRI’s list broker for the “Strennix List,” which is at issue in this lawsuit. The list broker at MCH with whom Uggla worked is Jane Tansey.

In preparation for GRI’s October 1998 mailing, Tansey included information about the Strennix List in a packet she forwarded to Uggla. Tansey told Uggla that she knew about the Strennix List because it was managed by her daughter’s teacher’s aunt. In November 1998, Tansey attended a trade show in Atlanta, visited Uggla’s home in Suwanee, Georgia, and treated her to dinner. Uggla deposed that during dinner, she and Tansey “hammered out” exactly what would be mailed in GRI’s January mailing, which is the largest mailing each year. Tansey recommended that GRI send mailings to 100,000 names from the Strennix List. When Uggla expressed concerns about mailing to so many people, Tansey assured her that this was a special circumstance because of Tansey’s contact with the list owner. Subsequently, GRI ordered 100,000 names from the Strennix List. Because over 80 percent of the names on the list were not recent purchasers of vitamin supplements, contrary to the terms of the purchase order, GRI filed the instant action.

“OCGA § 9-10-91 (1) provides that courts of this state may exercise personal jurisdiction over any nonresident if that nonresident transacts any business within this state.” “Our Supreme Court has construed the term ‘transacting any business’ most liberally to uphold the jurisdiction of the Georgia courts.”

The constitutional touchstone is whether the defendant purposefully established minimum contacts in the forum State, that is, whether the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there. . . . Prior negotiations and contemplated future consequences, along with the terms of the contract and the parties’ actual course of dealing!,] must be evaluated in determining whether the defendant has purposefully established minimum contacts within the forum.

In this case, resolving disputed facts in favor of the plaintiff, we find evidence in the record that while Tansey was in Georgia, she and Uggla negotiated the number of names that GRI would purchase from the Strennix List, after which MCH issued a purchase order to the list owner. We have previously held that in-state negotiations are sufficient “minimum contacts” to support the exercise of jurisdiction, and we find that in-state negotiations transpired in this case.

In support of its argument that the trial court lacked jurisdiction, MCH submitted Tansey’s affidavit wherein she states that no business was transacted. MCH argues that no negotiations occurred in Georgia because Tansey could not negotiate a contract between GRI and the list owner. Thus, it was not possible for them to transact business in this state. This argument, however, is inapposite.

The agreement at issue here is between GRI and MCH, not GRI and the list owner. The fact that Tansey could not negotiate the final cost of the list is not relevant. She could, and, it appears, did, negotiate the number of names that would be ordered from the list, which was essential to GRI’s agreement with MCH and affected MCH’s fee.

MCH contends that this court should apply its decisions in Mayacamas Corp. v. Gulfstream Aerospace Corp. and Beverage Mgmt. Solutions v. Yankee Spirits to affirm the trial court’s grant of its motion to dismiss. We decline to do so because both cases are distinguishable. In Mayacamas, “all that existed were the out-of-state negotiations that led to the signing of the contract. . . . There was no subsequent course of dealing established between the parties as a result of the contract, nor did the future consequences of the contract come to fruition.” In this case, in-state negotiations occurred and the list was ordered, so the consequences of the contract came to fruition. In Yankee Spirits, also, “there were out-of-state negotiations that led to the signing of an agreement.” Here, again, there were instate negotiations that led to the execution and completion of a purchase order.

While we agree with MCH that GRI and MCH’s telephone and mail communications and Tansey’s attendance at a trade show in Georgia are insufficient to establish the purposeful activity required by OCGA § 9-10-91 (1) for the exercise of long arm jurisdiction, this case involves another pivotal factor. The negotiation of the terms of an agreement within the confines of the State of Georgia constitutes transacting business within the meaning of the Georgia Long Arm Statute, OCGA § 9-10-91 (1). Accordingly, we find that MCH’s conduct was such that it should reasonably anticipate being haled into court here.

Decided November 21, 2000

Reconsideration denied January 31, 2001

Schulten, Ward & Turner, David L. Turner, Lea B. Kirschner, for appellant.

Andersen, Davidson & Tate, Thomas T. Tate, Ligia P. Arias, Christopher R. Stovall, for appellee.

Judgment reversed.

Pope, P. J., and Miller, J., concur.

       (Citation sind punctuation omitted.) ETS Payphone v. TK Indus., 236 Ga. App. 713 (513 SE2d 257) (1999).

        HTL Sp. Z O.O. v. Nissho Corp., 245 Ga. App. 625, 626 (538 SE2d 525) (2000).

        Scovill Fasteners v. Sure-Snap Corp., 207 Ga. App. 539, 540 (428 SE2d 435) (1993).

       Strennix is a dietary supplement for erectile dysfunctions. GRI also sells supplements for this problem.

       (Citation and punctuation omitted.) Habersham, Metal Products Co. v. Huntsville Fastener &c., 216 Ga. App. 646, 647 (455 SE2d 356) (1995).

        Shea/Rustin, Inc. v. Home Fashion Guild, 135 Ga. App. 88 (217 SE2d 405) (1975).

       (Citation and punctuation omitted.) Pleats, Inc. v. OMSA, Inc., 211 Ga. App. 643, 646 (3) (b) (440 SE2d 214) (1993).

       There is evidence in the record that before MCH issued its purchase order to the list owner, GRI issued a purchase order to MCH.

       See Shea/Rustin, supra (negotiations about production details in Georgia, which were later confirmed in a purchase order, constituted the required minimum contacts); Delta Equities v. Larwin Mtg. Investors, 133 Ga. App. 382, 384 (1) (211 SE2d 9) (1974) (minimum contacts were established where defendants twice visited Georgia to negotiate a loan, even though final negotiations occurred over the telephone).

       In a reply brief filed in the trial court, MCH acknowledged that the agreement between GRI and MCH provided that GRI would pay MCH 20 percent of the mailing list rental fee for its services in obtaining the list.

       190 Ga. App. 892 (380 SE2d 303) (1989).

       218 Ga. App. 95 (460 SE2d 564) (1995).

        Mayacamas, supra, 190 Ga. App. at 894 (1).

        Yankee Spirits, supra, 218 Ga. App. at 97 (1). The only other act the plaintiff asserted in favor of jurisdiction was the transmission of data necessary to complete the contract, which was held to be an intermediate step toward the performance of the agreement.

        Mayacamas, supra, 190 Ga. App. at 893.


author: Phipps, Judge.

text:
    A00A2570.
    LEWIS v. READY.
    (544 SE2d 502)
   Phipps, Judge.

Palmer Milton Lewis sued Spencer Leland Ready, Jr. for injuries allegedly sustained in an automobile collision. The jury returned a verdict for Ready. Lewis appeals, claiming that the trial court charged the jury on contributory negligence even though there was no evidence to support such a charge. We find no error and affirm.

The collision occurred at the intersection of Broad and Ninth Streets in Augusta. Lewis was driving west on Broad Street, and Ready was driving north on Ninth Street. The traffic light at the intersection was flashing yellow for drivers on Broad Street and flashing red for drivers on Ninth Street. As Lewis entered the intersection, his car struck the right rear corner of Ready’s vehicle. Lewis testified that he did not see Ready coming and had no time to brake. Lewis admitted, however, that there was nothing obstructing his view of Ready’s vehicle, which he described as “a very higher-up Suburban.” Ready did not testify.

The trial court charged the jury on principles of contributory negligence. Specifically, the court stated: “If you should determine from the evidence that the plaintiff failed to use ordinary care and that this failure was the sole proximate cause of the plaintiff’s injuries, then the plaintiff could not recover from the defendant.” The court further stated that “if the plaintiff by the exercise of ordinary care could have avoided the consequences caused by the defendant’s negligence, as stated, the plaintiff is not entitled to recover.”

Lewis does not dispute that these jury instructions were correct statements of the law. He asserts, however, that they should not have been given because there was no evidence that he failed to act with ordinary care or that he could have avoided the consequences of Ready’s negligence. We disagree.

“A trial court has a duty to charge the jury on the law applicable to issues which are supported by the evidence.” If there is some evidence, however slight, on a particular issue, it is not error for the court to charge the jury on the law related to that issue. Such evidence need not be direct; “it is enough if there is something from which a jury could infer a conclusion regarding the subject.”

Here, the evidence showed that as Lewis approached the intersection, the traffic light was flashing yellow. Pursuant to OCGA § 40-6-23 (2), “drivers of vehicles may proceed through the intersection or past such signal only with caution.” Lewis testified that nothing obstructed his view of Ready’s vehicle and that the vehicle was “very higher-up.” Nevertheless, Lewis said that he did not see Ready’s vehicle until he hit it and that he had no time to brake. Because Lewis hit the right rear comer of Ready’s vehicle, Ready must have entered the intersection before Lewis. Under these circumstances, the jury could have concluded that, had Lewis acted with proper caution, he would have seen Ready’s vehicle in sufficient time to brake and avoid the accident.

Lewis cites Moore v. Price, in which we wrote that “[a] driver having the right of way has the right to assume that others will obey the mle of the road and he has a right to proceed at a reasonable speed even though he sees another vehicle approaching.” Due to the flashing yellow light in this case, however, Lewis was legally allowed to proceed through the intersection only if he acted “with caution.” As there was at least some evidence from which the jury could have inferred that Lewis failed to so act, charging on contributory negligence was not error.

Decided January 11, 2001

Reconsideration denied January 31, 2001.

Palmer M. Lewis, pro se.

Hicks, Casey & Barber, Mark A. Barber, Richard C. Foster, Charles Clark III, for appellee.

Judgment affirmed. Johnson, P. J., and Smith, P. J., concur.

       See Garrett v. NationsBank, 228 Ga. App. 114, 118 (491 SE2d 158) (1997).

       (Citation omitted.) Walker v. Bruno’s, Inc., 228 Ga. App. 589, 591 (3) (492 SE2d 336) (1997).

        Sanders v. Moore, 240 Ga. App. 730, 731 (2) (524 SE2d 780) (1999).

       (Citation omitted.) Id.

       See id. at 731 (1); Flournoy v. Brown, 226 Ga. App. 857, 859-860 (1) (487 SE2d 683) (1997).

       158 Ga. App. 566 (281 SE2d 269) (1981).

       (Citation and punctuation omitted.) Id. at 569 (2).

       Although OCGA § 40-6-23 (2) does not provide a definition, proceeding “with caution” must entail, at a minimum, keeping a proper lookout for other vehicles approaching the intersection. Indeed, even if Lewis had an unqualified right of way, he was not entitled to “drive blindly or recklessly across an intersection without regard for the conditions or consequences.” (Citation omitted.) Sanders, supra at 730 (1). Rather, Lewis had a duty to “exercise ordinary care in being alert to observe vehicles approaching the crossing, and to exercise ordinary care in the control, speed, and movements of his car to avoid a collision.” (Citation and punctuation omitted.) Id.