text:
    A97A0379.
    PETERS v. THE STATE.
    (481 SE2d 898)
   Blackburn, Judge.

Joseph R. Peters appeals his conviction of two counts of child molestation. On appeal, Peters contends that the trial court erred in several evidentiary rulings, that the verdict is contrary to the evidence, and that his trial counsel was ineffective.

The evidence viewed in the light most favorable to the verdict indicates that while the ten-year-old victim attended a sleep-over party at Cheryl Fincher’s home, Peters molested her. The victim testified that she was sleeping on the living room floor by the couch when Peters twice put her hand on his “private part” and moved it up and down. She testified that his “private part” was soft. After she removed her hand, he fell from the couch onto the floor beside her, with his “private part” in her face. The victim testified that Peters then rubbed up and down on her leg and private part with his hand. The victim moved to the other side of the room and nothing further occurred. The next morning, the victim told her friend who had also been sleeping on the living room floor. The victim also told Cheryl Fincher’s mother, Brenda Fincher. Brenda Fincher told the victim not to tell her mother. After she got home, the victim told her mother what had happened, and her mother called the police.

Detective Lee testified that the victim told him what had happened. The victim’s statement was consistent with what she told her mother and another officer. Detective Lee testified that Brenda Fincher stated she did not know whether to believe the victim. Detective Lee further testified that he talked with Peters, who was intoxicated, and Peters vehemently denied the allegations. Peters also told Detective Lee that due to a medical condition it was impossible for him to achieve an erection.

Sergeant Hart testified that the victim’s statement to him was consistent with her previous statements. He further testified that Peters denied the allegations, and stated that even had he done the acts, he would deny them. Peters denied being intoxicated when he talked to Detective Lee. Peters testified that he did not molest the victim. He admitted that he drank beer until he was drunk. He testified that he did not even know the girls slept in the same room with him until the next morning. Additionally, Peters testified that even if he had committed the alleged acts of molestation he would not admit it to the jury.

1. By two enumerations of error, Peters questions the sufficiency of the evidence; first, on general grounds, and second specifically regarding lack of evidence of intent. Peters’ challenge in both regards fails.

As an appellate court, we determine only sufficiency of the evidence, and we do not “weigh the evidence or determine witness credibility. The jury is the arbiter of all conflicts in the evidence, and having resolved such issues against the defendant, if there is evidence to support the verdict, the trial court does not err in rendering final judgment on the verdict.” (Citations and punctuation omitted.) Platt v. State, 211 Ga. App. 721, 722 (440 SE2d 495) (1994). See also Patterson v. State, 222 Ga. App. 166, 167 (473 SE2d 255) (1996) (rules for determining witness credibility same for child witnesses). Having viewed the evidence in the light most favorable to the verdict, we find that a rational trier of fact could have found Peters guilty of two counts of child molestation beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Peters contends that the State failed to prove intent, arguing that his voluntary intoxication precluded him from forming the requisite intent. “To establish a voluntary intoxication defense, [Peters] would have had to show that the intoxication had ‘resulted in the alteration of brain function so as to negate intent. Even then, the brain function alteration must be more than temporary.’ Horton v. State, 258 Ga. 489, 491 (371 SE2d 384) (1988).” Bright v. State, 265 Ga. 265, 273 (455 SE2d 37) (1995). Although the evidence indicates that Peters had been drinking on the night of the incident and even perhaps that he was drunk, no evidence sufficient to support a voluntary intoxication defense was presented. This enumeration is without merit.

2. Peters asserts that the trial court erred in allowing the victim’s mother in the courtroom during the victim’s testimony, in violation of the rule of sequestration.

The rule of sequestration is expressed in OCGA § 24-9-61 which “plainly allows latitude in its application. . . . [T]he trial court is vested with the discretion to make exceptions to this rule; and unless the discretion is abused, the decision will not be reversed on appeal.” Chastain v. State, 255 Ga. 723, 724 (342 SE2d 678) (1986).

In the present case, the victim became upset while testifying. The State requested that the victim be excused as a witness so that the victim’s mother could testify and then remain in the courtroom while the victim finished her testimony. However, Peters objected to interrupting the victim’s testimony. Therefore, the trial court exercised its discretion and allowed the victim’s mother in the courtroom during the victim’s testimony. The trial court also gave a cautionary instruction to the jury regarding the mother’s testimony. Under these circumstances, we find no abuse of discretion.

3. Peters contends his trial counsel was ineffective because he did not investigate prior molestation charges brought by the victim. The record on appeal does not contain a transcript of the motion for new trial hearing. Therefore, “we must presume that [Peters] failed to meet his burden of proving the ineffectiveness of his trial counsel.” Sorrells v. State, 267 Ga. 236, 241 (476 SE2d 571) (1996).

4. By two enumerations of error, Peters contends the trial court erred in limiting his cross-examination of the victim. First, Peters contends the trial court erred in denying him the opportunity to cross-examine the victim about her prior allegedly false allegations of molestation made against other men. Second, Peters contends the trial court erred in failing to allow him to cross-examine the victim regarding her distrust of men. This issue is related to the court’s ruling regarding evidence of prior false allegations, because the questions asked by Peters’ counsel were designed to elicit such information.

In Smith v. State, 259 Ga. 135, 137 (377 SE2d 158) (1989), the Supreme Court of Georgia determined that OCGA § 24-2-3, the rape-shield law, “does not prohibit testimony of previous false allegations by the victim.” However, the court held that “the trial court must make a threshold determination (outside the presence of the jury) that a reasonable probability of falsity exists.” (Punctuation omitted.) Id. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Punctuation omitted.) Humphrey v. State, 207 Ga. App. 472, 476 (428 SE2d 362) (1993). In Humphrey, we determined that the trial court’s rejection of evidence of a previous false molestation allegation by the victim was erroneous without holding a hearing “on the reasonable probability of falsity.” Id.

In the present case, the trial court did not allow the cross-examination because Peters failed to offer any evidence that the prior allegations were false. The trial court stated that a hearing would not be conducted because no motion was filed and there had not been a “threshold showing” that the previous molestation allegations were false.

Peters was not required to make a threshold showing before he was entitled to a hearing. A hearing is required so that the court can determine from the evidence presented therein whether or not a reasonable probability of falsity exists. Id. See also Smith, supra. As Peters was entitled to a hearing on this issue, we remand the case and direct the trial court to conduct a hearing to determine if the evidence was admissible under the proper standard. If the trial court determines that the evidence was admissible, Peters is entitled to a new trial; however, if the trial court determines that the evidence was not admissible, a new trial is not necessary, and Peters’ conviction is affirmed. Peters is granted leave to file a new appeal within 30 days of a trial court’s decision adverse to Peters on this issue. See Shelton v. State, 196 Ga. App. 163, 164 (4) (395 SE2d 618) (1990).

Decided February 25, 1997.

Carolyn E. Moller, for appellant.

J. Gray Conger, District Attorney, Alonza Whitaker, Mark A. Casto, Assistant District Attorneys, for appellee.

Judgment affirmed on condition, otherwise reversed.

Pope, P. J., and Johnson, J., concur.


source: Caselaw Access Project

author: Blackburn, Judge.

license: Public Domain

text:
    A97A0421.
    CITY OF ATLANTA v. BANKHEAD ENTERPRISES, INC. et al.
    (482 SE2d 466)
   Blackburn, Judge.

This case arises out of the City of Atlanta’s rejection of a contractor’s bid for a city construction contract. The city’s initial determination that the bid failed to comply with the equal business opportunity provisions of the city code was reversed by an administrative hearing officer. The superior court affirmed the hearing officer’s decision. We granted the city’s discretionary appeal, and affirm the superior court’s order.

In August 1995, the city solicited sealed bids for a construction project. The Atlanta City Code requires that contractors bidding on a project obtain a certain level of minority participation in the project, or else obtain a waiver of such requirements. City Code Section 5-5170. Only minority subcontractors certified by the city are credited toward this minority participation requirement.

Bankhead Enterprises, Inc. (Bankhead) submitted a bid on August 30, 1995. In preparing its bid, Bankhead obtained from the city a list of certified minority subcontractors. However, Bankhead was unable to locate enough qualified subcontractors from that list to satisfy the city’s minority participation requirements, and therefore requested a waiver. Although Bankhead’s was the lowest bid received, the city’s Office of Contract Compliance (OCC) determined that it did not comply with the city code, and denied Bankhead’s request for a waiver.

Bankhead appealed this decision to an OCC hearing officer, who was authorized by the city code to conduct an evidentiary hearing and affirm, alter, or reverse the OCC decision. City Code Section 5-5178. At the initial hearing on the appeal, it was discovered that the list of certified minority subcontractors that had been provided to Bankhead by the city was an incomplete list. Accordingly, the hearing officer, with the consent of the city’s attorney, continued the hearing and allowed Bankhead to submit a revised bid utilizing the complete list. Bankhead was able to locate additional qualified minority subcontractors, and submitted a revised list of such subcontractors which the city admitted complied with its minority participation requirements. However, when the hearing was renewed, the city announced that it would not consider the revised bid, since it was submitted after bidding had closed. At this point, the hearing was continued for a second time.

Following a third hearing, the hearing officer reversed the OCC decision and found that Bankhead was in compliance with the city code for two reasons. First, he found that the bid as originally filed was compliant because Bankhead had exercised good faith in attempting to meet the minority participation requirements, and was thus entitled to a waiver. Second, he found that the bid as revised was in compliance and should be considered.

1. The city contends the hearing officer erred in finding that Bankhead’s original bid was compliant. The city argues that such finding was erroneous because Bankhead did not provide sufficient documentation of its good faith efforts to satisfy the city’s minority participation requirements. On appeal, the superior court’s order affirming the hearing officer’s decision must be affirmed if there was any evidence to support the decision of the hearing officer. See Emory Univ. v. Levitas, 260 Ga. 894, 897-898 (401 SE2d 691) (1991).

The city code requires a waiver request to contain evidence of the bidder’s good faith efforts to satisfy the minority participation requirements, and specifies certain documentation which shall be included. City Code Section 5-5170 (2), (3). However, the code does not state that the failure to provide any of the items listed absolutely precludes a finding of good faith or the granting of a waiver request. It is apparent that many of the items listed will not be applicable to all waiver requests. The code itself recognizes that strict compliance with the documentation requirements is not necessary for the granting of a waiver request, by stating that “the [OCC] may declare the bid or offer nonresponsive where the director determines a bidder . . . [flails to meet the requirements for a total or partial waiver.” (Emphasis supplied.) City Code Section 5-5171 (5) (d). Furthermore, the appellate procedures set forth in the city code expressly grant the hearing officer the authority to affirm, alter, or reverse the OCC’s finding.

In its original bid package, Bankhead provided written information regarding its efforts to locate qualified minority subcontractors, utilizing forms provided by the city for this purpose. At the hearings, Bankhead provided testimony that its failure to locate sufficient minority subcontractors was due solely to the fact that the city had provided Bankhead with an incomplete list of certified subcontractors. Accordingly, as there was documentary and testimonial evidence to support the hearing officer’s finding of good faith, such finding will not be reversed on appeal. See Southern Business Machines v. Norwest Financial Leasing, 194 Ga. App. 253, 258 (390 SE2d 402) (1990) (where good faith is contested, existence of good faith is a question of fact for the factfinder).

2. The city contends the hearing officer erred in considering evidence that Bankhead’s was the lowest bid, arguing that the only issue for consideration was whether the bid complied with the applicable code provisions regarding minority participation. This argument is without merit, as the record clearly shows that the hearing officer’s decision was not based on the amount of Bankhead’s bid, but on its good faith in attempting to comply with the code.

3. Our holding above renders it unnecessary to address the city’s contention that the hearing officer erred in admitting Bankhead’s revised bid.

4. In City of Richmond v. J. A. Croson Co., 488 U. S. 469 (109 SC 706, 102 LE2d 854) (1989), the United States Supreme Court held that the Fourteenth Amendment requires strict scrutiny of all race-based action by state and local governments, regardless of whether such action is intended to benefit a minority group. 102 LE2d at 881-882; see also Adarand Constructors v. Pena, 515 U. S._(115 SC 2097, 132 LE2d 158, 178-179) (1995) (extending holding in Croson to action by federal government). To withstand such strict scrutiny, racial classifications “must serve a compelling governmental interest, and must be narrowly tailored to further that interest.” Adarand Constructors, 132 LE2d at 187.

Applying Croson, the Supreme Court of Georgia struck down a 1982 Atlanta ordinance similar to the present one, holding that the city had not shown a strong basis in evidence for its conclusion that remedial action was necessary and that the ordinance was not narrowly tailored to remedy prior discrimination. American Subcontractors Assn. v. City of Atlanta, 259 Ga. 14, 17-21 (376 SE2d 662) (1989). The city adopted the current ordinance in an attempt to comply with Croson and American Subcontractors.

Decided February 25, 1997.

Clifford E. Hardwick IV, Rosalind A. Rubens, Rory K. Starkey, for appellant.

Hopkins & Gresham, Thomas P. Gresham, Michael A. Penn, for appellees.

Given the similarity between the ordinance in the present case and those struck down in Croson and American Subcontractors, it is questionable whether the present Atlanta ordinance could meet constitutional muster. However, as this issue has not been raised below, and as this Court has no jurisdiction to determine the constitutionality of an ordinance, we do not rule on such issue. Braden v. Bell, 222 Ga. App. 144, 146 (473 SE2d 523) (1996).

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.

       The city code provides that, if a contractor is successful on appeal, it will be found in compliance and permitted to submit a bid in response to the city’s solicitation. The code further states that the hearing officer’s decision on appeal shall be rendered before the contract is awarded. City Code Section 5-5178 (5). However, notwithstanding Bankhead’s appeal of the initial OCC decision, the city subsequently awarded the contract to another bidder, and the project has apparently been completed. Accordingly, it appears that Bankhead’s rights following the resolution of this appeal will be limited to seeking recovery of damages from the city. Bankhead asserted a counterclaim in superior court seeking such damages, and it appears from the record that such counterclaim remains pending.


author: Birdsong, Presiding Judge.

text:
    A96A0896.
    BOYETT v. WEBSTER.
    (482 SE2d 377)
   Birdsong, Presiding Judge.

Following the grant of a discretionary appeal, Lois W. Boyett appeals the grant of Jesse C. Webster, Jr.’s motion in limine to exclude all evidence regarding Webster’s prior drunk driving incident during the first phase of a bifurcated personal injury and punitive damage trial. Boyett contends the trial court’s refusal to admit evidence of Webster’s previous DUI deprived her of a fair trial and resulted in the jury’s decision not to award punitive damages. We agree and reverse.

Webster made a left-hand turn with his car and struck Boyett’s car. At the time, Webster was grossly intoxicated; he registered a BAC level of .32 on the Intoximeter 3000 one hour after the accident. Webster pleaded guilty to DUI in connection with this incident.

Boyett’s suit for compensatory and punitive damages alleged that Webster’s actions in driving while grossly intoxicated were wilful, wanton and showed a conscious disregard for the foreseeable consequences of his actions. This allegation, if proven by clear and convincing evidence, would authorize imposition of punitive damages. OCGA § 51-12-5.1. Although Boyett sought to introduce evidence of a prior DUI in which, according to Boyett’s motion for a new trial, Webster’s BAC level was .28, Webster moved to exclude this evidence during the first phase of the bifurcated trial. Despite Boyett’s assertions that the prior DUI was directly relevant to the jury’s determination of whether Webster’s driving with a .32 BAC level was wilful, wanton, malicious, fraudulent, oppressive or showed a conscious disregard for the foreseeable circumstances, the trial court granted Webster’s motion. Subsequently, the jury returned a verdict for compensatory damages, but declined to assess punitive damages. This appeal followed. Held:

1. Because admission of evidence, including ruling on a motion in limine, is a matter resting within the sound discretion of the trial court, appellate courts will not disturb the exercise of that discretion absent evidence of its abuse. Whisnant v. State, 178 Ga. App. 742, 743 (344 SE2d 536). For the reasons stated below, however, we find that the trial court abused its discretion by excluding the evidence of Webster’s prior DUI when only the amount of punitive damages was severed from the other issues to be tried.

2. In punitive damages cases, OCGA § 51-12-5.1 mandates that the amount of punitive damages be determined separately from the determination of liability. Gen. Motors Corp. v. Moseley, 213 Ga. App. 875, 887 (447 SE2d 302), citing City of Monroe v. Jordan, 201 Ga. App. 332, 334-335 (411 SE2d 511). Thus, in the first phase of a bifurcated trial three issues must be resolved: (1) liability for damages incurred; (2) compensatory damages, if any, to be awarded; and (3) liability for punitive damages. If the trier of fact finds the defendant is liable for punitive damages, the amount of punitive damages is determined in the second phase of the trial. Nothing in OCGA § 51-12-5.1, however, prevents the trial court from ordering a further severance of the issues to avoid prejudice to either party. OCGA § 9-11-42 (b); Hanie v. Barnett, 213 Ga. App. 158, 160 (444 SE2d 336).

Further, under Georgia law, for punitive damages to be authorized, there must be evidence of wilful misconduct, malice, fraud, wantonness, or oppression, or that entire want of care which would raise the presumption of a conscious indifference to consequences. Colonial Pipeline Co. v. Brown, 258 Ga. 115, 118 (365 SE2d 827). Negligence alone, even gross negligence, is not sufficient to support a punitive damage award (Associated Health Systems v. Jones, 185 Ga. App. 798, 802 (366 SE2d 147)); something more than the mere commission of a tort is always required. “ ‘ “There must be circumstances of aggravation or outrage, such as spite or ‘malice,’ or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that the conduct may be called wilful or wanton.” ’ ” Cullen v. Novak, 201 Ga. App. 459, 460 (411 SE2d 331), citing Colonial Pipeline, supra at 121. Nevertheless, in suits for negligence generally, evidence of similar acts or omissions on other and different occasions is not admissible. Thompson v. Moore, 174 Ga. App. 331 (329 SE2d 914), aff’d in part and rev’d in part on other grounds, Moore v. Thompson, 255 Ga. 236 (336 SE2d 749). From these competing interests arises the dilemma inherent in these cases.

In this case, the trial court originally planned to balance these interests by severing the issues of liability and damages for the underlying tort from the issues of liability and amount of punitive damages. Upon defense counsel’s objection, however, the trial court bifurcated the trial with only the amount of punitive damages severed from the other issues. Although Boyett’s counsel consented to the bifurcated procedure, he did so with the opinion that Webster’s prior DUI should be admissible in the first phase of the trial. Subsequently, the trial court granted Webster’s motion in limine and excluded evidence of his previous DUI in the liability phase because Webster’s prior offense might prejudice the issue of Webster’s liability for the underlying tort.

We find this was an abuse of the trial court’s discretion. An exception to the general rule regarding excluding evidence of similar acts or omissions allows admission of this evidence when the defendant’s driving under the influence in the incident at issue is an aggravating circumstance which would authorize the trier of fact to impose punitive damages. Holt v. Grinnell, 212 Ga. App. 520, 521 (441 SE2d 874), citing Moore v. Thompson, 255 Ga. at 237. In that circumstance, the extent of the defendant’s wilful misconduct, wantonness and entire want of care in driving under the influence cannot be gauged solely by focusing on the single incident in issue and disregarding other incidents of similar conduct. See Holt, supra at 522. Consequently, evidence that the defendant previously drove under the influence on another occasion is admissible in the liability phase of a bifurcated trial because such evidence is relevant to the issue of whether punitive damages should be awarded. Moore v. Thompson, 255 Ga. at 237, 238. Even though the danger of prejudice is a reason to exclude this evidence, in balance, this evidence’s relevance on liability for punitive damages outweighs any prejudice if the jury is fully charged that this evidence goes only to liability for punitive damages and not to the issues of liability or damages in the particular incident on trial. Holt, supra at 522, citing Thompson v. Moore, 174 Ga. App. at 333. Because Holt was decided based on the admissibility of the pleas of nolo contendere generally under OCGA § 17-7-95 (c) and the admissibility of other DUI evidence in the phase of the trial dealing with the amount of punitive damages, the Holt court did not address directly whether evidence of prior DUIs was admissible in the first phase of a bifurcated trial. Further, Georgia law favors the admission of any relevant evidence, no matter how slight its probative value. Evidence of doubtful relevancy or competency should be admitted and its weight left to the jurors. Dept. of Transp. v. Swan son, 191 Ga. App. 752, 754 (382 SE2d 711), citing Weathers v. Cowan, 176 Ga. App. 19, 20 (1) (335 SE2d 392). Where evidence is offered and objected to, if it is competent for any purpose, it is not erroneous to admit it. Dept. of Transp., supra at 754.

“In certain circumstances, however, that bifurcated procedure may be inadequate to avoid confusing the jury in its determination of the issues of compensatory damages and punitive damages. That is, evidence appropriately admitted to show the propriety of punitive damages may influence the jury in deciding the issue of liability for compensatory damages.” Gen. Motors Corp., supra at 887 (9). Considering the trial court’s authority to further sever the issues to avoid prejudice, this problem should not be solved solely by excluding from the jury in the liability phase evidence of other acts of driving under the influence or other similar acts. So doing might assure defendants a fairer trial on liability for the underlying negligence at issue, but doing so in a bifurcated trial virtually assures that plaintiffs are denied fair trials on liability for punitive damages.

In this case, by merely bifurcating the trial and then excluding evidence of Webster’s prior DUI, the jury was precluded from hearing the very information needed to determine whether Webster showed wilful misconduct, malice, wantonness, oppression or an entire want of care sufficient to authorize punitive damages. Here, evidence that Webster had previously driven under the influence of alcohol was relevant to his liability for punitive damages that was decided in the first phase of the bifurcated trial, regardless of the potential prejudice on the underlying negligence, and notwithstanding that this evidence also may be relevant ultimately on the determination of the amount of damages sufficient to deter, penalize, or punish the defendant in light of the circumstances of the case. See OCGA § 51-12-5.1 (d) (1) and (2). Because even gross negligence is not sufficient to authorize punitive damages, it is unlikely that one act would be sufficient to show wilful misconduct, malice, wantonness, oppression or that entire want of care sufficient to authorize punitive damages. Consequently, without introduction of other similar acts when liability for punitive damages is determined, it is unlikely that the jury will ever consider the amount of punitive damages to be awarded. Accordingly, we find it an abuse of discretion to both exclude this evidence from the issue of liability and to refuse to sever the issues of liability and damages for the underlying tort and liability for punitive damages.

Although we recognize there may be situations in which the probative value of the similar acts may be such that severance of these issues is not required, nevertheless, in most cases trial courts should “employ a trifurcated procedure, wherein compensatory damages are litigated in the first phase of the trial; the propriety of punitive damages is litigated in the second phase; and the amount of punitive damages to be awarded is litigated in the third phase of the proceeding.” Gen. Motors Corp., supra at 887 (9). Despite counsel for appellant’s arguments to the contrary, an admission of liability is not required to trifurcate proceedings. See Hanie v. Barnett, supra. If the trial court had trifurcated these proceedings, the jury would have had the opportunity to determine whether Webster should be assessed punitive damages with the benefit of all relevant evidence, but without possible prejudice to his liability for the underlying tort. Instead, this jury was deprived of the vital evidence necessary to determine whether Webster should be liable for punitive damages.

Decided December 16, 1996

Reconsideration dismissed February 5, 1997 and Reconsideration denied February 26, 1997

'William J. Mason, for appellant.

Hatcher, Stubbs, Land, Hollis & Rothschild, William B. Hardegree, Self, Mullins, Robinson, Marchetti & Kamensky, Richard A. Marchetti, for appellee.

Goldner, Sommers, Scrudder & Bass, Henry E. Scrudder, Jr., amicus curiae.

Further, we do not find Goss v. Total Chipping, 220 Ga. App. 643, 645 (3) (469 SE2d 855) inconsistent with this result. Although Goss affirmed the judgment in a bifurcated case in which evidence relevant to liability for punitive damages was excluded because it might be prejudicial on liability for the underlying tort, it did so because it found that the exclusion of the evidence was likely harmless error. Further, Goss recognized that the better practice is to try liability for the underlying tort separate from liability for punitive damages. 220 Ga. App. at 646.

Accordingly, the part of the trial court’s judgment holding that punitive damages are not awarded must be reversed and the case remanded for proceedings consistent with this opinion. As appellant asserted no error affecting the award of compensatory damages, that part of the judgment is affirmed.

Judgment affirmed in part and reversed in part with direction.

Beasley, C. J., and Blackburn, J., concur.


text:
    A96A1737.
    ELLIOTT et al. v. McDANIEL.
    (483 SE2d 104)
   Blackburn, Judge.

Jerry C. McDaniel, Sr., sued James D. Elliott, Jerry Ann Elliott, and J & J Landfill, Inc. for fraud and misrepresentation, breach of fiduciary duty, and misappropriation of corporate opportunity. McDaniel also sued to have one lease set aside and for specific performance of another lease. The jury returned a verdict for McDaniel on all counts, and the Elliotts appeal.

The evidence shows that in November 1991, James Elliott and Jerry Ann Elliott sued Forsyth County to obtain a permit to operate an inert landfill. While the suit was pending, James Elliott approached McDaniel, a long-time friend and sometimes business partner, about the possibility of going into the landfill business together. When Forsyth County awarded James Elliott the landfill permit in late 1993, he and McDaniel agreed to form a corporation to operate the new business. J & J Landfill, Inc. (J & J) was subsequently incorporated on February 8, 1994. By allocation of stock, James Elliott owned 45 percent of the company, McDaniel 40 percent, and Glyndon Pruitt, an attorney who had represented the Elliotts in obtaining the permit, 15 percent. James Elliott served as president, McDaniel as vice-president, and Pruitt as treasurer. All three were directors.

Located on property leased by James Elliott from Jerry Ann Elliott for $1 per year, the landfill began operating in March 1994. The landfill’s initial lease was dated November 30, 1993, and had been made from Jerry Ann Elliott to James Elliott for the purpose of obtaining the landfill permit. According to McDaniel, he and the Elliotts agreed that the landfill would operate on Jerry Ann Elliott’s land for 20 years, and that J & J would sign a lease on the land for $1 per year for the 20-year time period. Pursuant to his agreement with James Elliott, McDaniel cleared and graded the site, obtained the necessary permits, and provided cash for start-up expenses.

As time passed and no lease was drawn up, McDaniel became concerned. He repeatedly asked both Elliotts and Pruitt to draft the long-term, low-cost lease. James Elliott had represented to McDaniel that Jerry Ann Elliott was his wife, that the land was in Jerry Ann Elliott’s name as a mere formality, and that there would be no problem in executing the lease. However, no such lease was ever executed.

McDaniel continued to insist that the lease be drawn up, and in October 1994, Jerry Ann Elliott was voted in as vice-president of J & J. However, instead of executing the lease McDaniel asserts the parties agreed to, Jerry Ann Elliott informed the corporation that she would not be renewing the lease to James Elliott that she had provided to assist him in obtaining the landfill permit. She instead presented J & J a one-year lease for $3,000 per month with no option to renew. On November 28, 1994, James Elliott and Glyndon Pruitt adopted this lease over McDaniel’s objection. James Elliott later informed McDaniel that Jerry Ann Elliott would be issuing no more leases, and that J & J would be shut down to “get [McDaniel] out of it.” McDaniel filed suit, and some months later, Jerry Ann Elliott ordered J & J to vacate the premises at the expiration of the $3,000 per month lease.

1. James Elliott, Jerry Ann Elliott, and J & J allege in their first two enumerations of error that the trial court erred in failing to grant their motions to dismiss. Jerry Ann Elliott also alleges that the trial court erred in failing to grant her subsequent motion for summary judgment.

The record indicates that the trial court converted the motions to dismiss into motions for summary judgment. See OCGA §§ 9-11-12 (b); 9-11-56. Although the trial court issued a certificate of immediate review of its denial of these four motions for summary judgment, this Court denied interlocutory review. “Once a case has been submitted to the jury and a judgment rendered on its verdict, the denial of a summary judgment motion is a moot issue.” (Citations and punctuation omitted.) Metromedia Steakhouses Co. v. Ray, 219 Ga. App. 716, 717 (466 SE2d 618) (1995). The first two enumerations of error thus present nothing for appellate review.

2. In enumerations of error 3 through 5, James Elliott, Jerry Ann Elliott, and J & J enumerate as error various charges given by the court. Each contested charge was properly preserved by objection.

The Elliotts and J & J first argue that the trial court erred in charging the jury on an agent’s apparent authority. McDaniel presented evidence that when James Elliott negotiated the 20-year oral lease for $1 per year, he was acting as Jerry Ann Elliott’s agent. Before an agent may enter into an oral contract to procure a lease on land, as McDaniel alleges James Elliott did, the agent must possess his principal’s written authority to do so. See East Piedmont 120 Assoc., L.P. v. Sheppard, 209 Ga. App. 664, 665 (434 SE2d 101) (1993). The Elliotts and J & J contend that James Elliott had no written authority from Jerry Ann Elliott to enter into the lease. In light of this fact, they allege that no charge on apparent authority should have been given. The record shows that the trial court charged the jury on both apparent authority and the necessity of an agent’s written authority.

With respect to James Elliott’s written authority, contrary to the Elliotts and J & J’s contentions, there was evidence adduced at trial of the written authority for James Elliott’s agency. Specifically, the complaint filed by the Elliotts in Forsyth County to obtain the landfill permit names both James Elliott and Jerry Ann Elliott as “the owners and/or authorized agent of the owner” of the landfill property. Additionally, James Elliott had furnished McDaniel with a copy of these pleadings before McDaniel entered into the agreement with James Elliott to operate and lease the landfill. The jury would be authorized to find from this evidence that McDaniel entered into the contract with James Elliott, acting as agent for Jerry Ann Elliott, pursuant to Jerry Ann Elliott’s written authority.

Although the charge on apparent authority may not have been authorized by the evidence, the jury was properly charged that an agent must possess the written authority of his principal before entering into a contract involving land. In light of the fact that there was evidence of James Elliott’s written authority for agency, and reviewing the other evidence in the case and the jury charge as a whole, we find that any error in charging on apparent authority was harmless. This enumeration is therefore without merit.

The Elliotts and J & J’s fourth enumeration of error alleges that the trial court erred in instructing the jury on actual and constructive fraud and misrepresentation. Although not indicated on appeal, the objection to these charges was made only as to Jerry Ann Elliott. Therefore, our review of this enumeration is limited accordingly.

Jerry Ann Elliott’s only argument as to this enumeration is that the fraud and misrepresentation charges were erroneous because McDaniel suffered no damages. No recovery may be had for fraud without proof of damages. See Centennial Life Ins. Co. v. Smith, 210 Ga. App. 194, 195 (435 SE2d 498) (1993). Although he conceded that he received back from J & J more than his initial investment, he presented some evidence of damages. For example, McDaniel’s share of corporate profits was reduced when the business entered into the lease for $3,000 per month instead of the low-cost lease McDaniel testified the parties agreed to. Additionally, McDaniel was damaged by relying on the existence of a long-term lease because the business could not continue in existence without it. Based on this evidence, charges on theories of fraud and misrepresentation were authorized, and this enumeration is without merit. See Goss v. Total Chipping, 220 Ga. App. 643, 646 (469 SE2d 855) (1996) (“to justify a charge on any given subject . . . [i]t is sufficient if some evidence exists from which the jury may engage in a legitimate reasoning process to reach an inference on that point”).

Finally, the Elliotts and J & J enumerate as error the trial court’s charge to the jury on breach of fiduciary duty and misappropriation of corporate opportunity. The record reveals that objection to the charge was made only as to breach of fiduciary duty and only with respect to Jerry Ann Elliott. We limit our review accordingly. See Fidelity-Phenix Ins. Co. v. Mauldin, 123 Ga. App. 108, 111 (179 SE2d 525) (1970) (“[rjeview of a charge on appeal is limited strictly to the grounds of objection stated at the trial”).

According to McDaniel, the landfill property was initially leased from Jerry Ann Elliott for $1 per year. Before J & J entered into its second lease with Jerry Ann Elliott, she had become vice-president of the company. Therefore, Jerry Ann Elliott was vice-president of J & J — and thus a fiduciary — when the company signed with her as lessor a $3,000 per month lease for one year with no renewal. Because the evidence shows that while she was a corporate officer and fiduciary, Jerry Ann Elliott rejected a lease she had purportedly already agreed to in favor of a lease more expensive for the corporation and more economically beneficial to herself, the charge on breach of fiduciary duty with respect to Jerry Ann Elliott was authorized. The trial court committed no error in so charging.

3. In enumerations of error 6 and 8, the Elliotts and J & J contend the trial court erred in recharging the jury and sending it back to the jury room for further deliberations as to fraud and breach of fiduciary duty after the first verdict was returned. The first verdict was for McDaniel on all counts. On the fraud count, McDaniel was awarded attorney fees in the amount of “all dollars,” expenses of litigation, and punitive damages. No award of actual damages was made to support the award of punitives. With respect to breach of fiduciary duty, McDaniel was awarded expenses of litigation, attorney fees, and punitive damages, as well as general damages in the amount of “[40] percent of all defendants’ legal fees.” No testimony had been adduced at trial as to what the amount of defendants’ legal fees might be.

The court declined to accept the verdict and opted to recharge the jury. The jury was instructed as to actual damages and was told that any award made needed to be in a specific dollar amount. The jury was also told to consider the damages charge together with the other charges, not to give undue weight to the damages charge, and that the court was making, “no inference, no suggestion to you as to whether or not there should be any award or if there is an award, what amount that should be. That is all entirely within the province of the jury and the Court makes no suggestion to you as to what that should be or if it should be.. . . I’ll ask you to recommence your deliberations and return a verdict which speaks the intent of the jury.” The second verdict awarded McDaniel $14,400 in actual damages for fraud and $25,000 attorney fees for fraud. McDaniel was also awarded $25,000 damages for breach of fiduciary duty, although the second time the jury declined to award attorney fees for breach of fiduciary duty.

The Elliotts and J & J contend that giving the recharge was error, as it amounted to directing a verdict for damages in some amount. We disagree. The practice of recharging the jury where attorney fees and punitive damages are awarded but actual damages are not has previously been upheld. See Northside Motors v. O’Berry, 167 Ga. App. 155, 157-158 (305 SE2d 894) (1983). Additionally, “it is not only the right but the duty of the trial judge, when a verdict as returned is ambiguous or indefinite, to call the attention of the jury to the faults of the verdict, ask them what they mean by the verdict or answers returned, and, upon ascertaining what is meant, to direct them to return to [the jury] room and correct the verdict so as to make it speak their meaning. A judge has supervision of the whole case, and is not merely a figurehead to sit by and see injustice done or allow the reception of an ambiguous or indefinite verdict which is likely to give rise to more litigation or to result in another long and weary trial.” (Punctuation omitted.) Wadlington v. Wadlington, 235 Ga. 582, 583-584 (221 SE2d 1) (1975).

No error appearing from the charge itself, and no error resulting from the recharge and additional deliberations of the jury, these enumerations are without merit.

4. The Elliotts and J & J’s seventh enumeration of error contests the award of specific performance with respect to the $1 per year lease. Jerry Ann Elliott was ordered to execute and convey a lease for $1 per year for 20 years to J & J. The Elliotts and J & J contend J & J never sought such relief, and that specific performance is contrary to the statute of frauds and not justified by the evidence.

With respect to the propriety of our reviewing an appeal from a judgment for specific performance, “[t]his court is without jurisdiction to consider a claim sounding in equity unless the relief sought is merely incidental to an underlying legal question.” (Emphasis in original.) Akron Pest Control v. Radar Exterminating Co., 216 Ga. App. 495, 498 (455 SE2d 601) (1995). In this action, McDaniel sued for damages for fraud, misrepresentation, breach of fiduciary duty, and misappropriation of corporate opportunity. These counts turn on the existence and enforceability of the contract entered into between James Elliott and McDaniel, issues which the jury found for McDaniel and which we have determined as a matter of law on appeal. As specific performance of the lease is incidental to these legal questions, this case is proper for our review.

With respect to the contention that J & J never sought specific performance of the lease, McDaniel clearly brought a shareholder’s derivative suit on behalf of J & J as to some counts, and in that suit McDaniel requested specific performance of the lease. This argument is therefore without merit, and it will not bar specific performance of the lease.

As regards the statute of frauds and the evidence supporting the decree of specific performance, the jury was instructed as to the requirements for awarding specific performance on an oral contract for land. The jury was charged in part that, “[sjpecific performance of a parol contract as to land shall be decreed ... if the contract has been so far executed by the party seeking relief and at the instance or by the inducements of the other party that if the contract were abandoned he could not be restored to his former position.” OCGA § 23-2-131. There is ample evidence in the record to support a finding that McDaniel executed most or all of his portion of the contract, which he testified included establishing the landfill and procuring the lease, and that he did so at the instance or inducements of James Elliott. Whether or not McDaniel could be restored to his former position with an award of money damages, however, presents another issue. The award of damages which the jury made to McDaniel in this case notwithstanding, McDaniel testified that he had been paid back for all the money and services he invested in commencing the landfill. McDaniel does not argue on appeal that an award of money damages is insufficient, and in light of all the evidence adduced at trial, we cannot say that money damages did not restore McDaniel to his former position. Therefore, the award of specific performance was not merited and must be reversed.

5. The Elliotts and J & J contend the evidence did not authorize or justify the jury’s award of punitive damages. In the second portion of the bifurcated trial, the jury awarded McDaniel $650,000 in punitive damages for fraud and $250,000 each for breach of fiduciary duty and misappropriation of corporate opportunity. As between breach of fiduciary duty and misappropriation of corporate opportunity, McDaniel elected to receive the punitive damages award for the latter.

“Clear and convincing evidence of a defendant’s willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences is required to warrant the imposition of punitive damages. OCGA § 51-12-5.1 (b).” (Punctuation omitted.) Bartja v. Nat. Union Fire Ins. Co. &c., 218 Ga. App. 815, 818 (463 SE2d 358) (1995). The evidence showed that although James Elliott had a landfill permit, he used McDaniel to obtain cash, equipment, and specialized knowledge to get a landfill started. The jury could conclude that once the landfill became profitable, James Elliott decided he no longer needed McDaniel and took steps to oust him from the business. There was also sufficient evidence for the jury to find that by manipulating the lease of her property, James Elliott and Jerry Ann Elliott sought to close down the landfill, eject McDaniel from the business, and reopen the landfill without him. This evidence supports an award of punitive damages. The evidence in support of the punitive damage award notwithstanding, the amount of punitive damages awarded must be addressed. “Punitive damages shall be awarded not as compensation to a plaintiff but solely to punish, penalize, or deter a defendant.” OCGA § 51-12-5.1 (c). OCGA § 51-12-5.1 (g) limits awards of punitive damages by the imposition of a $250,000 cap for such awards for “any tort action” not provided for by subsection (e) (products liability actions) or subsection (f). See Johnson v. Raatz, 200 Ga. App. 289, 292 (407 SE2d 489) (1991).

The Georgia law of punitive damages contemplates the division of such damages into those involving products liability actions on which there is no cap for the amount of the award of such damages (OCGA § 51-12-5.1 (e)) and any other tort action for which there is a $250,000 cap on the amount of the award of such damages (OCGA § 51-12-5.1 (g)).

Georgia law further exempts from the cap limitation of OCGA § 51-12-5.1 (g), which would otherwise be applicable to such cases, those tort actions in which the trier of fact finds that the defendant acted, or failed to act, with the specific intent to cause harm to the plaintiff. See OCGA § 51-12-5.1 (f). OCGA § 51-12-5.1 (f) and OCGA § 51-12-5.1 (g) both provide punitive damages for the same general category of torts. The subsections differ, however, in that subsection (g) with its $250,000 cap is the subsection generally applicable to non-products liability actions in which punitive damages are authorized, while subsection (f) is applicable only to such actions in which it is found that the defendant’s specific intent to harm the plaintiff authorizes the exemption of such action from the application of subsection (g) and its $250,000 cap.

Decided November 13, 1996

Reconsideration denied February 26, 1997

Robert E. Andrews, for appellants.

James D. Sexton, Giles D. Sexton, for appellee.

In order to authorize the application of subsection (f) and the removal of the $250,000 cap on punitive damages in this non-products liability action, there must be a finding by the trier of fact that the defendant acted, or failed to act, with specific intent to cause harm. While such finding might be inferred where the evidence and the verdict would permit no other result, the finding of specific intent to harm in this case involves the weighing of evidence by the jury. The specific intent to harm may not be inferred by the trial court based on the amount of the award inasmuch as the jury may not be informed of the cap on punitive damages. See Uniroyal Goodrich Tire Co. v. Ford, 218 Ga. App. 248, 254 (461 SE2d 877) (1995).

It is the trial court which must determine as a matter of law, whether subsection (f) or (g) applies, based upon the specific finding of the jury. The interpretation of a statute is a question of law, not a question of fact. New Era Publishing Co. v. Guess, 231 Ga. 250, 254 (201 SE2d 142) (1973).

The jury’s resolution of the specific intent to harm issue could be determined by a special verdict form or by the use of special interrogatories. In this case, no finding of specific intent to harm was made by the jury or communicated to the trial court and is not demanded by the evidence and the verdict. No request for such finding was made by the plaintiff who stood to benefit by the removal of the subsection (g) cap and whose burden it was to seek such determination. In this case, absent a finding by the jury of a specific intent by the defendants to harm the plaintiff, the trial court would have no basis to apply subsection (f) and allow the capless punitive damages award to stand. Therefore, subsection (g) applies and the punitive damage award must be limited to the $250,000 cap provided by OCGA § 51-12-5.1 (g). On remand, the trial court is directed to amend its judgment to conform with this opinion.

Judgment affirmed in part, reversed in part, and remanded with direction.

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

       The Elliotts and J & J moved to dismiss on two grounds: the oral lease contract was void under the statute of frauds, and McDaniel failed to give the corporation written notice before instituting a shareholder’s derivative suit. See OCGA § 14-2-742.

       The trial court charged the jury in pertinent part as follows: “The authority of an agent in a particular instance need not be proved by an express contract. It may be established by the principal’s conduct and course of dealing, and if one holds out another as his agent and by his course of dealing indicates that the agent has certain authority and thus induces another to deal with his agent as such, he is estopped to deny the agent has any authority which, as reasonably [deduced] from the conduct of the parties, the agent apparently has. However, one entering into such a contract executed by an agent [on] behalf of a purported principal is charged with notice that the agent’s authority to execute the agreement is required by law to be in writing and is under a duty to inquire and ascertain whether such written authority exists and what the limits of the authority are, and such person is guilty of negligence in failing to make such an inquiry. It is a question to be decided under the facts of each case as to whether the complaining party is barred from obtaining relief because of his or her negligence in not ascertaining whether an agent, imbued by the principal with apparent authority, had actual written authority to enter into the contract.”

       McDaniel consented to elect between the punitive awards for misappropriation of corporate opportunity and breach of fiduciary duty in order to avoid a double recovery, as both awards were premised upon the same acts or omissions by the Elliotts.


text:
    A96A2426, A96A2427.
    BROWN v. WEBB et al. (two cases).
    (482 SE2d 382)
   Birdsong, Presiding Judge.

On May 24, 1993, Deatrict Brown was involved in an automobile accident with a car owned by James Loupe and driven by Jeremy Webb. After attempts to settle the claims failed, Brown filed a complaint against Loupe and Webb in the State Court of DeKalb County on May 24, 1995. Although DeKalb County is apparently the county in which Webb is domiciled, he was never served with process. Defendant Loupe was served with process at his residence in Gwinnett County on June 5, 1995.

Thereafter, the defendants moved to dismiss Brown’s complaint against them; Webb asserted that the trial court lacked personal jurisdiction over him because he had not been served with a copy of the summons and complaint, and Loupe contended that the service on him was ineffective because it was made outside the period of limitations and Brown had failed to exercise due diligence in perfecting service. Thus, they asserted the complaint should be dismissed because the two-year statute of limitation had expired without proper service of process. After argument, the trial court signed an order granting summary judgment to Webb and Loupe on September 8, 1995, that was filed on September 11, 1995.

On October 9, 1995, Brown attempted to file a notice of appeal in this case appealing from a judgment on Webb and Brown’s motion to dismiss on August 29, 1995. As no such order exists in the record, we assume that Brown was attempting to appeal the grant of summary judgment which was filed on September 11, 1995. Nevertheless, although the clerk’s office stamped the notice of appeal as having been “received” on October 9, 1995, the notice of appeal was not filed because Brown did not pay the fee associated with the filing of a notice of appeal.

Earlier on September 13, 1995, Brown filed a motion for reconsideration of the trial court’s dismissal of the action and a motion for an extension of time in which to file a notice of appeal until 15 days after the trial court ruled on Brown’s motion for reconsideration. On November 9, 1995, however, the trial court denied Brown’s motion for reconsideration and the motion for an extension of time in which to file a notice of appeal. Later, Brown filed an affidavit of indigency on December 15, 1995. Thereafter, on June 4, 1996, the trial court denied Brown’s affidavit of indigency.

On June 13, 1996, Brown eventually filed the notice of appeal in Case No. A96A2426 and on July 16,1996, filed the notice of appeal in Case No. A96A2427. Brown contends the trial court erred by granting summary judgment to Webb and Loupe. Held:

Webb and Loupe have moved to dismiss these appeals because the notices of appeal were not “filed within 30 days after entry of the appealable decision or judgment” (OCGA § 5-6-38 (a)) which Brown seeks to appeal. We agree and dismiss both appeals.

Decided January 21, 1997

Reconsideration denied February 26, 1997

Kunle Ogundele, for appellant.

Sharon W. Ware & Associates, Jay L. Drew, for appellees.

“The proper and timely filing of the notice of appeal is an absolute requirement to confer jurisdiction upon the appellate court.” (Citations and punctuation omitted; emphasis in original.) Sharpe v. State, 198 Ga. App. 381, 382 (401 SE2d 586). Even though a notice of appeal was ultimately filed in these appeals, they were not timely filed. Further, having someone in the clerk’s office stamp a pleading as received is not the same as filing the pleading. “A paper is said to be filed when it is delivered to the proper officer, and by him received to be kept on file, and a certificate of the clerk, entered upon the paper at the time it is filed, is the best evidence of such filing.” (Citation and punctuation omitted.) Bailey v. Bonaparte, 125 Ga. App. 512, 514 (188 SE2d 119). Additionally, the time for filing a notice of appeal is not extended by filing a motion for reconsideration. Dougherty County v. Burt, 168 Ga. App. 166, 167 (308 SE2d 395); Anton v. Garvey, 160 Ga. App. 157 (286 SE2d 493).

In Case No. A96A2427, Brown seeks to appeal the denial of the pauper’s status. As the notice of appeal was not filed until July 16, 1996, and the trial court’s order was filed on June 4, 1996, this notice of appeal was clearly untimely. Additionally, as we have dismissed the appeal in Case No. A96A2426, any issue concerning Brown’s status as a pauper is moot.

Appeals dismissed.

Beasley and Blackburn, JJ., concur.


author: Andrews, Chief Judge.

text:
    A96A1791.
    SUTTON et al. v. SUMNER.
    (482 SE2d 486)
   Andrews, Chief Judge.

Richard Sutton was injured while he was a spectator in the pit area at an automobile race held at Interstate Raceway, a business owned at the time by Ben Sumner. Sutton was hit and injured by a race car being towed by a wrecker in the pit area. He sued Sumner claiming the wrecker driver was Sumner’s employee and that Sumner was vicariously liable for the injury caused by the driver’s negligent operation of the wrecker. Sutton’s wife brought a loss of consortium claim against Sumner based on the injury. In addressing Sumner’s motion for summary judgment, the trial court found that a factual issue existed as to whether the wrecker driver was Sumner’s employee. Nevertheless, the trial court granted summary judgment in favor of Sumner concluding that Sutton knew the dangers of watching the race from the pit area and assumed the risk of the injury he incurred. The Suttons appeal.

Sutton was an experienced automobile racing spectator. When he attended races at Interstate Raceway, he usually paid an extra admission fee which entitled him to watch the race from the pit area inside the oval race track instead of from the usual spectator area in the grandstands located outside the race track. He testified on deposition that he had on previous occasions signed a waiver form to release the raceway from liability for any personal injuries he might receive in the pit area, but he did not sign such a waiver form prior to entering the pit area on the day he was injured. He was well aware that the pit area of the raceway was a place of continuous activity where race cars enter and exit to be serviced and repaired during the race. He testified that when he watched a race from the pit area, he expected to be in close proximity to race cars coming and going and to all the pit area activities and that he knew the risk of being hit by a race car was greater in the pit area than it was in the spectator grandstands. Sutton testified that it was common to observe damaged race cars being towed by a wrecker into the pit area for repairs. He further testified that, he commonly saw race cars lifted from the rear while being towed, leaving only the front wheels on the ground, and that when cars were towed in this position he observed that a driver would remain in the car to steer the front wheels. He knew that when a race car was being towed in this position, it was necessary for someone to remain in the car and steer the front wheels in order to ensure that the car followed the wrecker in a straight line.

On the date of the injury, Sutton was watching a race from the pit area and saw a race car being towed by a wrecker from the rear into the pit area. He observed that, as usual, the race car was being steered by a driver as it was being towed. He watched the wrecker come to a stop a short distance from him and then turned away from the wrecker to speak to another driver. While Sutton had his back turned to the wrecker, the driver got out of the race car, and the wrecker driver pulled the race car forward. Without anyone to steer the front wheels of the race car, the front end of the car moved sideways as it was pulled forward and hit Sutton in the back, causing the injury at issue.

In granting summary judgment to Sumner on the basis that Sutton assumed the risk of incurring the injury, the trial court ruled that “Sutton knew of the danger of being hit by a car in the pit area. . . .” In order for the defendant in a tort claim to establish the defense of assumption of the risk, the defendant must show that the plaintiff: “(1) had actual knowledge of the danger; (2) understood and appreciated the risks associated with such danger; and (3) voluntarily exposed himself to those risks.” (Footnote omitted.) Vaughn v. Pleasent, 266 Ga. 862, 864 (471 SE2d 866) (1996). In assessing whether a plaintiff had the requisite knowledge of the danger and appreciation of the risks, a subjective standard applies, that is, what the particular plaintiff knew, understood and appreciated. Id. at 864; Beringause v. Fogleman Truck Lines, 200 Ga. App. 822, 824 (409 SE2d 524) (1991). A plaintiff lacking such subjective knowledge of the danger will not be taken to have assumed the risk even though his conduct may be deemed contributory negligence for his failure under an objective knowledge standard to discover the danger by exercising the ordinary care required of a reasonable man. Id. at 824.

Although the evidence showed that Sutton did not actually see the race car being pulled forward without being properly steered, the trial court ruled that his knowledge of the danger of being hit by a race car in the pit area was sufficient to establish that he assumed the risk of the injury resulting from the wrecker driver’s alleged negligence. We agree that there are certain dangers inherent in the activities of an automobile race and that a spectator who chooses to watch a race from an unprotected pit area in close proximity to the activities of the race risks being injured by those inherent dangers. The danger of contact between persons and race cars is a risk necessary to the pit area where race cars are personally serviced and repaired during a race. Accordingly, it is a danger inherent to watching a race from this area. The record is sufficient to establish that, given Sutton’s experience as a spectator in this sport, especially his experience as a spectator in the pit area, he knew about and assumed the risk of injury from the normal, ordinary dangers inherent in watching a race from the unprotected pit area, including, for example, the danger of being hit by a race car over which the driver has lost control. Tatum v. Clemones, 105 Ga. App. 221 (124 SE2d 425) (1962). The situation is analogous to that of a knowledgeable spectator at a baseball game who sits in an unscreened area of the stadium. Such a spectator knows of the inherent danger of foul balls landing in the area and assumes the risk of injury resulting from such danger. Hunt v. Thomasville Baseball Co., 80 Ga. App. 572 (56 SE2d 828) (1949); compare City of Atlanta &c. Recreation Auth. v. Merritt, 172 Ga. App. 470 (323 SE2d 680) (1984); see also Davis v. Jones, 100 Ga. App. 546, 549-550 (112 SE2d 3) (1959) (experienced timekeeper sitting at ringside of a wrestling match had knowledge that wrestlers thrown or falling from the ring are an inherent danger of the sport; therefore he assumed the risk of being injured by a wrestler falling out of the ring on top of him).

Decided February 26, 1997.

Dozier, Lee, Graham & Sikes, Lester Z. Dozier, Jr., for appellants.

The present record, however, does not show that Sutton was injured as a result of a known danger inherent to watching an automobile race from the pit area. Sutton was hit and injured by a race car as a result of the alleged negligent action of the wrecker driver in improperly towing the car. There is no evidence that the action taken by the wrecker driver was one which an experienced spectator would anticipate and know about as a normal, ordinary danger inherent in watching the race from the pit area. Accordingly, the record does not establish that Sutton assumed the risk of the negligent act which allegedly caused the injury. See Owens-Illinois, Inc. v. Bryson, 138 Ga. App. 78, 79 (225 SE2d 475) (1976). Although Sutton saw the race car come to a stop as it was being towed into the pit area with someone steering the car, and knew it would be dangerous for the wrecker driver to tow the car without someone steering it, he did not see the driver subsequently get out of the race car, nor did he see the wrecker driver pull the car forward without a driver steering it. Sutton’s knowledge of common, inherent dangers which placed him at risk of being hit by a race car in the pit area by other means, and his knowledge of the possibility that the race car could be dangerous if improperly towed, was not sufficient to establish that he assumed the risk of harm from the improperly towed car. See Vaughn, supra at 864. Since the evidence does not show Sutton knew about and voluntarily exposed himself to the danger of being injured by the improperly towed car, he did not assume the risk of the injury he incurred. Turner v. Sumter Self Storage Co., 215 Ga. App. 92, 94-96 (449 SE2d 618) (1994). The trial court erred by applying assumption of the risk as a bar to recovery on the basis that Sutton knew of the danger of being hit by the race car.

We need not address the appellants’ additional claim related to filing of depositions in the trial court.

Judgment reversed.

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

Ellis & Easterlin, George R. Ellis, Jr., for appellee.

       The record reflects that Sutton’s wife did sign a waiver of liability form when she entered the pit area with her husband on the day he was injured. The trial court did not rule on the effect of this waiver on the loss of consortium claim, and the waiver form is not in the record on appeal. Accordingly, we do not address the effect of any waiver form signed by Sutton’s wife.


text:
    A96A1829.
    GORDON v. WALKER et al.
    (482 SE2d 489)
   Andrews, Chief Judge.

Minnie Mae Gordon appeals from the trial court’s dismissal of Counts 3 and 4 of her complaint against MARTA and William Walker, the driver of the MARTA bus which injured her common-law husband, Fred Gordon. The trial court granted the motion to dismiss on the grounds that Counts 3 and 4, which were for medical expenses and pain and suffering, could be maintained only by the personal representative of the estate, and Mrs. Gordon was not the administrator of her husband’s estate when she filed the complaint. Mrs. Gordon argues that defendants’ motion to dismiss became moot when she qualified as administrator of her husband’s estate. We agree and reverse the judgment of the trial court.

This case arose out of an accident which occurred on November 1, 1991, when Fred Gordon was exiting a MARTA bus driven by William Walker. Mr. Gordon died, although apparently not as a result of the accident, and Mrs. Gordon petitioned for, and on June 7, 1993, was granted, an Order from the Probate Court Declaring No Administration Necessary with regard to her husband’s estate.

On November 1, 1993, Mrs. Gordon filed her original complaint, which she later dismissed on October 12, 1994, during a jury trial. Mrs. Gordon filed a renewal action on February 23, 1995. In both the original complaint and the renewal action, Mrs. Gordon filed both as Fred Gordon’s wife and as the administratrix of his estate.

On November 21, 1995, Mrs. Gordon was appointed administrator of her husband’s estate. On December 19, 1995, defendants MARTA and Walker filed a motion to dismiss Counts 3 and 4, contending that Mrs. Gordon had no standing to bring these claims as she was not the administrator of Fred Gordon’s estate. Mrs. Gordon responded, submitting a copy of her Letters of Administration and asserting that since she was now, in fact, the administrator of her husband’s estate, defendants’ motion to dismiss was moot. Nevertheless, the trial court granted defendants’ motion to dismiss.

This case is controlled by Walden v. John D. Archbold Mem. Hosp., 197 Ga. App. 275 (398 SE2d 271) (1990), which apparently was never cited to the trial court. In Walden, we treated the “administrator” as an "indispensable party” who should be joined if possible under OCGA § 9-11-17. The plaintiffs were the purported illegitimate children and siblings of the deceased, and no administrator was named until five months after the trial court’s order dismissing the Complaint. Walden, supra at 277-278. However, we upheld the granting of the motion to dismiss, stating that since the administrator was not among those plaintiffs who initially brought suit, and since the proper party in interest did not exist until five months after the final order was entered, the trial court did not err in granting the motion to dismiss. Id. at 280. Three judges dissented, finding that not only was the administrator of the estate to be treated as an indispensable party under OCGA § 9-11-17 (a), but, since the real party in interest did not exist at the time of the motion to dismiss, the court should have appointed an administrator and substituted him or her to prosecute the claims under OCGA § 9-2-41.

Decided February 26, 1997.

Alvin L. Kendall, for appellant.

Mary L. Davis, for appellees.

Here, at the time defendants’ brought their motion to dismiss, Mrs. Gordon had already been named administrator of her husband’s estate. Therefore, at that point, the action was being prosecuted by the real party in interest. Accordingly, we find the trial court erred in dismissing Counts 3 and 4 of Mrs. Gordon’s complaint.

Judgment reversed.

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

       It appears the trial court relied on Anderson v. Jones, 508 FSupp. 399 (N.D. Ga. 1980), which was argued in defendants’ motion to dismiss as authority for the proposition that Mrs. Gordon’s claims should be dismissed. While a federal trial or intermediate court case can be persuasive authority, Head v. State, 253 Ga. 429, 430 (322 SE2d 228) (1984), Anderson came out ten years before Walden and is distinguishable in that it appears the complaint in that case showed a lack of standing on its face because the plaintiff never brought the action in the name of the administrator.


text:
    A96A1965.
    CARROLL v. RALSTON & ASSOCIATES, P.C.
    (481 SE2d 900)
   Blackburn, Judge.

Randy Carroll appeals the trial court’s order preliminarily enjoining him from competing with the business he previously sold to Ralston & Associates, P.C. (Ralston). Carroll contends that the covenant not to compete, on which the injunction was based, was too broad and ambiguous to be enforceable.

On May 31, 1995, Carroll sold his accounting and bookkeeping business to Ralston. As part of that transaction, Carroll transferred his customer list and client files, among other assets, to Ralston. As part of the sales agreement, Carroll signed a covenant not to compete which provided in pertinent part: “Carroll agrees that he will not, within the counties of Whitfield, Murray, Gordon and Bartow, State of Georgia, directly or indirectly, for the period commencing on [May 31, 1995] and ending seven years from said date, directly or indirectly, own, manage, operate, join, control, assist, participate in or be connected with, any person, professional corporation or other legal entity who is directly or indirectly in competition with the business of [Ralston] in the providing of public accounting or bookkeeping services.”

After completing the sale, Carroll assumed a position with Tax & Accounting Network, Inc., a company owned by his wife and located next door to his former business. In January or February 1996, less than one year after signing the aforementioned covenant, Carroll sent a mailer to his former clients announcing that, in his new position, he would be offering “the same quality tax services as always.” The record reflects that Carroll prepared various tax returns within the specified four-county area after executing the covenant, and that some of these returns were prepared for his former clients. After sending Carroll a notice to cease and desist, Ralston brought the underlying petition for injunctive relief.

On March 5, 1996, after conducting an evidentiary hearing, the trial court entered an injunction, pertaining to the four-county area specified in the covenant, temporarily enjoining Carroll from providing any tax preparation services or from soliciting customers previously transferred to Ralston. Carroll initially appealed to the Supreme Court. Finding that the appropriateness of the equitable relief granted by the trial court was ancillary to the underlying issue of law, the Supreme Court transferred the matter to this Court.

In his only enumeration, Carroll asserts that the trial court erred in issuing the injunction as the covenant it sought to enforce was unreasonably broad because it overprotects any legitimate business on the part of Ralston and unreasonably impacts on Carroll’s livelihood and the public’s ability to choose among different service providers. The reasonableness of such a restraint against competition is a question of law to be decided by the trial court. See Dougherty, McKinnon &c., P.C. v. Greenwald, Denzik &c., P.C., 213 Ga. App. 891, 893 (2) (447 SE2d 94) (1994) (construing reasonableness of restraint in a covenant not to compete associated with an employment contract).

The reasonableness of a covenant not to compete given as part of the sale of a business is analyzed in terms of its limitations on time and territory and its description of the prohibited activity. Drumheller v. Drumheller Bag & Supply, 204 Ga. App. 623, 627 (3) (420 SE2d 331) (1992). On appeal, Carroll does not contend that the covenant was invalid based on its time or territorial limitations. Rather, he asserts that the covenant was overly broad in the activities it prohibited.

In support of his argument Carroll cites Singer v. Habif Arogeti &c. P.C., 250 Ga. 376 (297 SE2d 473) (1982) and its progeny for the proposition that, in order to be enforceable, covenants not to compete must be strictly limited to protect only the legitimate interests of the purchaser; otherwise, they violate public policy. However, Carroll’s reliance is misplaced as Singer concerned a covenant not to compete as it pertained to an employment contract. “A different standard is applied in determining the validity of covenants contained in employment contracts and those which are a part of a contract to sell a business. A covenant entered into as a part of a sale of a business can generally be drafted more broadly than one which is entered into as part of an employment contract.” (Citations and punctuation omitted.) Klein v. Williams, 212 Ga. App. 39, 41 (3) (441 SE2d 270) (1994).

“There are valid reasons for this difference in treatment. . . . The vendor [who signs a covenant not to compete when selling a business] receives an equivalent for his partial abstention from that business, in the increased price paid him for it on account of his covenant. . . . [T]he covenant operates to his affirmative pecuniary benefit and against his impoverishment, in that, while being paid for desisting from the particular business in the locality covered by it, he may still enter upon other pursuits of gain in the same locality or upon this one in other localities. Finally, while such covenants preclude the competition of the covenantor, it is ordinarily neither their purpose nor effect to stifle competition generally in the locality . . . for the business in the hands of the purchaser is carried on just as it was in the hands of the vendor, the former merely takes the place of the latter.” (Punctuation omitted.) Jenkins v. Jenkins Irrigation, 244 Ga. 95, 98-99 (2) (259 SE2d 47) (1979); see also Watson v. Waffle House, 253 Ga. 671, 672 (2) (324 SE2d 175) (1985) (non-competition covenant connected to the sale of a business may be more broadly construed than one related to an employment contract because “a contract for the sale of a business interest is far more likely to be one entered into by parties on equal footing”).

This Court has previously held “the reasonableness of any covenant not to compete ancillary to the sale of a business must be measured on the basis of whether the restricted activity protects the purchaser’s legitimate business interests, i.e., the value of the business and its good will. [Cits.]” Drumheller, supra at 627-628 (3). In this case, the restricted activity — Carroll’s participation in any tax-preparation activities — did protect a legitimate interest of Ralston, the purchaser. The record reveals that Carroll was an experienced accountant and was the key man in the operation of the accounting and bookkeeping business he sold to Ralston. It also reflects that in this type of business, client relationships are particularly important, as clients often grow to trust the skill of a particular individual and will continue to seek that person’s judgment on various tax or financial matters. In fact, it was on this very basis that Carroll attempted to solicit his former customers. Therefore, the restriction contained within the covenant which barred Carroll from performing accounting services, including the preparation of tax returns, was reasonable and essential to protect the value of the business that Ralston had purchased as well as the good will of its customer base. Accordingly, the trial court did not err in rejecting Carroll’s contention that the covenant was impermissibly restrictive in the activities it prohibited.

Decided February 26, 1997.

McDonald, Kinnamon & Thames, Gregory H. Kinnamon, for appellant.

Avrett, Ponder & Withrock, John T. Avrett, William B. Barnwell, for appellee.

Carroll also argues that the covenant’s prohibitions were ambiguous and thus the covenant should be construed against Ralston, the party who drafted it. However, Carroll waived his ability to raise this error by failing to include it in his enumeration. See Mom Corp. v. Chattahoochee Bank, 203 Ga. App. 847, 849 (3) (418 SE2d 74) (1992) (appellant cannot use brief to enlarge issues raised in enumeration).

In light of the above, the judgment of the trial court is affirmed.

Judgment affirmed.

Beasley, J., and Senior Appellate Judge Harold R. Banke concur.


text:
    A96A2156.
    PARKER v. PRUDENTIAL INSURANCE COMPANY OF AMERICA.
    (482 SE2d 483)
   Andrews, Chief Judge.

Robert J. Parker sued Prudential Insurance Company of America claiming Prudential breached its contractual duty to pay benefits to him under a group disability insurance policy. Parker appeals from the trial court’s grant of summary judgment in favor of Prudential.

Prudential issued a group policy to the United States Trust Company of New York as Trustee of the American Institute of Certified Public Accountants Insurance Trust providing disability insurance coverage to participating members of the American Institute of Certified Public Accountants. As a member of the American Institute of Certified Public Accountants, Parker applied for and was accepted by Prudential as an insured under the policy in 1984. When Parker was accepted as an insured under the policy, he was employed by Georgia-Pacific Corporation as Director of Information Resources, a high-level management position in which he managed a group of about two hundred fifty people and nine lower level managers and oversaw a large corporate computer system. In 1986, Parker earned in excess of $240,000 in this position.

In 1987, Parker ceased work for Georgia-Pacific as the result of a disabling illness initially diagnosed as chronic brain syndrome and later described as a form of chronic, severe depression which includes frequent, severe migraine headaches, short-term memory loss, and inability to concentrate. Based on this disability, Parker applied for payment of total disability benefits under the Prudential policy. Prudential accepted Parker’s condition as totally disabled under the policy and commenced paying total disability benefits to Parker in October 1987 at the rate of $5,000 per month. During periods of time from 1989 to 1994 Parker requested and Prudential granted him “rehabilitation status” under the policy. While Parker was granted this status, he engaged in various employment in an attempt to reestablish his earning capacity and accepted reduced disability payments according to the amount of monthly income he earned, and Prudential agreed not to challenge his total disability status under the policy. Parker continued to receive benefits under the total disability provisions of the policy until October 1994 when Prudential ceased payment of benefits and informed Parker that, based on his income, it would no longer extend “rehabilitation status” to him and that, because of his employment, he no longer qualified as totally disabled under the policy. At the time Prudential terminated Parker’s disability benefits, the record reflects that Parker was working full-time as a self-employed, sole practitioner certified public accountant (CPA) with a yearly income of less than $45,000.

The applicable policy provisions state that an insured is totally disabled when he is “completely unable to engage in any and every occupation for which he is reasonably fitted by education, training or experience . . . [and when he] is not engaged in any gainful occupation.

In granting Prudential’s motion for summary judgment, the trial court concluded that the disability insurance issued to Parker was a specialized group policy extended by Prudential to members of the American Institute of Certified Public Accountants to insure against loss of earning capacity in the accounting profession and was not intended as disability insurance for general business executives. The trial court found that the policy insured Parker against total disability from the occupation of CPA, not total disability from his occupation as a high-level manager at Georgia-Pacific. Accordingly, the trial court ruled that Parker was not totally disabled because he was substantially able to perform the normal duties and activities of a CPA. The trial court further ruled that Parker’s diminished income level had nothing to do with assessing total disability since loss of income is subject to influence by the economy, marketability of skills, professional competency, and other factors unrelated to disability which Parker was not insured against by the policy. Parker claims the trial court erred in its assessment of coverage under the group policy and in its refusal to consider loss of income as a factor in determining total disability.

1. We cannot agree with the trial court’s assessment that the group policy insured only against disability to engage in the accounting profession. The policy did not require that Parker be employed in the profession of a CPA as a condition of being insured. The policy required only that Parker be a member of the American Institute of Certified Public Accountants, that he request participation in the disability insurance plan on a form satisfactory to Prudential arid furnish evidence of insurability satisfactory to Prudential, and that he be working full-time. That Prudential contemplated issuing the policy to CPAs engaged in occupations other than the accounting profession is further evidenced by the fact that the policy contained a separate definition applicable to insureds engaged in the accounting profession. Under these circumstances, we find that it was within the view and contemplation of the parties at the time the policy was issued that Parker was employed as a high-level manager with Georgia-Pacific and was insured under the disability policy against loss of earning capacity in that occupation. Mut. Life Ins. Co. v. Barron, 198 Ga. 1, 10 (30 SE2d 879) (1944); see Prudential Ins. Co. v. South, 179 Ga. 653, 658 (177 SE 499) (1934).

2. The definition of total disability in the policy shows that it is not an occupational disability policy providing benefits to the insured for disability from engaging in his particular occupation, but rather is a non-occupational policy which provides benefits to the insured only if he is totally disabled from engaging in any gainful work. Barron, supra at 5-6. In determining whether or not an insured is totally disabled under a policy of this nature, we have refused to give a strict and literal interpretation to the policy definition of total disability since to do so would require that an insured be absolutely helpless before qualifying as totally disabled, and “[s]uch an interpretation would not be in keeping with the evident intention of the parties, [construing] the contract in the light of the attendant and surrounding circumstances.” Id. at 9-10. Instead, an insured is considered to be totally disabled only if he is unable to perform “some substantial part of the duties of his profession or of such other work, if any, approximating the same livelihood, as he might be fairly expected to follow in view of his station, circumstances, and physical and mental capabilities.” (Emphasis omitted.) Id. at 8; Equicor, Inc. v. Stamey, 216 Ga. App. 375, 377 (454 SE2d 550) (1995); Franklin Life Ins. Co. v. Stiles, 90 Ga. App. 311, 312 (82 SE2d 898) (1954).

There is evidence in this case that Parker incurred and continues to suffer from a mental disability which has prevented him from resuming employment in the type of business management position he held at Georgia-Pacific when the policy was issued. But he has been able to work on a full-time basis as a sole practitioner CPA. His income as a CPA, however, is less than 20 percent of what it was in his former occupation with Georgia-Pacific. Although the disability policy insures against loss of earning capacity and not necessarily loss of income, Parker’s diminished income as a CPA after incurring the disability is an important factor to be considered, along with the character of the duties performed and the nature and extent of the disability, in determining whether or not his employment as a CPA is sufficient to deny him total disability benefits under the policy. Barron, supra at 12. “Undoubtedly, [Parker’s present income] is in one sense a substantial sum, yet it is less than one-fifth of the amount [he] was earning at [or about] the time the policy was issued, and it may or may not represent [Parker’s] present actual earning capacity. Whether, if it did, such ratio might then be held as a matter of law to represent a substantial part of his former earning capacity, is a question that need not be determined, since, as we have seen, the evidence as to the character of the services rendered, and as to actual disability, should also be considered.” Id. at 13. Since an insured’s income level after incurring a disability may be influenced for better or worse by economic or personal factors which are unrelated to the insured’s loss of earning capacity as a result of the disability, “neither income nor proportion of ordinary income during a period of claimed disability could in all cases be treated as the final criterion” for determining whether or not the insured is totally disabled. Id. at 13. Accordingly, the trial court erred by refusing to consider Parker’s diminished income as a factor in his claim.

Decided February 26,1997

Davis, Matthews & Quigley, Baxter L. Davis, Ted M. Scartz, for appellant.

Carter & Ansley, Ben Kingree III, Mary K. Pickard, for appellee.

Under the present facts, a jury question is presented as to whether Parker is totally disabled under the policy definition and entitled to benefits. Barron, supra at 13; Stiles, supra at 312; see Jackson v. Kennesaw Life &c. Ins. Co., 116 Ga. App. 107 (156 SE2d 470) (1967); Travelers Ins. Co. v. Hill, 76 Ga. App. 640 (46 SE2d 755) (1948).

Judgment reversed.

Pope, P. J, and Smith, J., concur.

       An amendment to the policy in 1989 also contained the identical requirement that an insured not be engaged in any gainful occupation in order to be considered totally disabled. We need not address which policy applies since the analysis is the same under either policy.
      We find no merit to Parker’s claim that a 1989 letter he received from a senior accounts representative of the American Institute of Certified Public Accountants Insurance Trust altered the policy definition of totally disabled. Even if the letter could be so interpreted, the policy clearly prohibits any such attempt to alter its terms.


text:
    A96A2215.
    DOWNS v. C.D.C. FEDERAL CREDIT UNION et al.
    (481 SE2d 903)
   Andrews, Chief Judge.

Carrie Downs appeals from the trial court’s order denying her motion to set aside the judgment dismissing her claims against the Credit Union and its vice-president, Danny Prewett, for fraudulent misrepresentation and negligent hiring and retention. The sole issue to be decided on appeal is whether the trial court erred in denying Downs’ motion to set aside the judgment under OCGA § 9-11-60 (g). We find that it did and reverse.

1. The Credit Union filed a motion to dismiss this appeal on the ground that Downs did not preserve the issue for appeal because she never moved to correct a clerical mistake under OCGA § 9-11-60 (g) in the trial court. This is incorrect and misstates the record. The record shows that on page 3 of her brief in support of the motion, Downs requested that the judgment be set aside and re-enteréd pursuant to OCGA § 9-11-60 (g) because she never received a copy of the order. Motions to set aside brought on the grounds that the court failed to notify the losing party of its decision are cognizable as motions to correct a clerical error pursuant to OCGA § 9-11-60 (g) and are properly the subject of a direct appeal. Leventhal v. Moseley, 264 Ga. 891, 892 (453 SE2d 455) (1995). Accordingly, the Credit Union’s motion to dismiss is denied.

Decided February 26, 1997.

John A. Roberts, for appellant.

2. The issue then becomes whether the trial court erred in denying Downs’ motion to set aside the judgment. The Credit Union argues that Downs was on notice of the court’s order because the Credit Union’s memorandum in support of its request for attorney fees specifically mentioned that the court had entered final judgment in favor of all defendants. But, the issue is not whether Downs or her counsel had actual knowledge that judgment was entered, but whether the trial court complied with OCGA § 15-6-21 (c). Intertrust Corp. v. Fischer Imaging Corp., 198 Ga. App. 812, 813 (403 SE2d 94) (1991). Here, according to the unrefuted affidavit submitted by Downs’ attorney, neither he nor Downs received notice of the court’s order dismissing Downs’ complaint.

Cambron v. Canal Ins. Co., 246 Ga. 147 (269 SE2d 426) (1980), holds that upon a finding that notice of the order was not provided, the trial court may grant the motion to set aside and re-enter the judgment. If the trial judge finds that notice was sent and received, then he should refuse to set aside the earlier judgment. Id. at 148-149. In order to implement the procedure set forth by Cambrón, the trial court must “first make a finding regarding whether the duty imposed on the court by OCGA § 15-6-21 (c) was met.” Kendall v. Peach State Machinery, 215 Ga. App. 633, 634 (2) (451 SE2d 810) (1994) (physical precedent only).

Here, the order appealed from made no findings of fact, merely stating that the motion to set aside was denied. Therefore, we are unable to determine whether the court’s denial of Downs’ motion to set aside was proper under Cambrón, especially since the unrefuted evidence in the record shows that Downs and her attorney received no notice of the order. Accordingly, the order of the trial court is vacated, and this case is remanded to the trial court with direction that the court make the necessary findings under Cambrón. If the court finds that Downs received no notice of the entry of final judgment, then the motion to set aside must be granted and the judgment re-entered. Cambrón, supra; Kendall, supra.

3. In light of the holding above, we need not address the remaining enumeration of error.

Judgment vacated and case remanded.

Pope, P. J., and Smith, J., concur.

Fisher & Phillips, Roger K. Quillen, Littler, Mendelson, Fastiff, Tichy & Mathiason, Dion Y. Kohler, for appellees.


text:
    A96A2285, A96A2286.
    UNITED FAMILY LIFE INSURANCE COMPANY et al. v. SASSER; and vice versa.
    (482 SE2d 491)
   Blackburn, Judge.

In this workers’ compensation case, the superior court reversed the award of the administrative law judge (“ALJ”) denying Sasser’s “change in condition” claim. The appellate division (the “Board”) had affirmed the ALJ’s award. The superior court found that the ALJ and the Board had applied too strict a standard of proof to Sasser’s claim that the medical problems from which she suffers were caused by a work-related injury. We granted the employer’s discretionary appeal in Case No. A96A2285 to review the superior court’s reasoning. In Case No. A96A2286, Sasser cross-appeals other aspects of the award. We reverse with direction that the superior court reinstate the award of the Board.

While working as a regional manager for United Family Life (“UFL”), Sasser was injured in a work-related automobile accident in March 1991. She returned to work after six weeks and worked for UFL until her full-time position was eliminated in June 1993. She claims that the 1991 accident caused or exacerbated a painful condition called “fibromyalgia.” As a result, she was unable to work at the level she did with UFL and claims she is, therefore, entitled to receive workers’ compensation benefits because of her economic change in condition.

An employee who brings a change-in-condition claim must show that she has suffered a loss of earning power because of a compensable, work-related injury; that she continues to suffer physical limitations related.to that injury; and that she has made a diligent, but unsuccessful, attempt to secure suitable employment following termination. Maloney v. Gordon County Farms, 265 Ga. 825, 828 (462 SE2d 606) (1995); OCGA § 34-9-104. “Regardless of what our findings would.be if we were the factfinders, upon appeal [to the superior court and this Court], the evidence will be construed in a light most favorable to the party prevailing before the board, and every reasonable factual inference and presumption of validity of award should be indulged in by the reviewing court.” (Citation and punctuation omitted.) Dasher v. City of Valdosta, 217 Ga. App. 351, 352 (1) (457 SE2d 259) (1995). This Court, and the superior court, are bound by the facts as found by the ALJ and the Board, and both courts must affirm their award if there is any evidence to support it. Id.

Sasser’s duties with UFL required her to drive long distances to meet with agents and promote the company. The ALJ found that after her accident, Sasser was treated by several doctors, including Dr. Hickey, a neurologist, for pains in her neck, torso, back, and arms. During the time she was treated by Dr. Hickey, however, Sasser continued to work full-time for UFL. No doctor prohibited her from driving a car, which she claims she now has trouble doing. The ALJ concluded that while these injuries were related to the 1991 accident and caused Sasser some pain, they did not disable her from full-time work.

Sasser contends, however, that she suffers from fibromyalgia, an inflammatory disease which causes her pain throughout her body. Dr. Mathews, a rheumatologist who first saw Sasser in February 1992, diagnosed her with this condition and has treated her for it. Sasser claims her fibromyalgia was either caused by or exacerbated by the accident to the point that she can now work only two or three days a week. The ALJ, however, found that the fibromyalgia was not related to the 1991 accident. It is with this conclusion that the trial court took issue, and to address this conclusion we granted the employer’s discretionary appeal in Case No. A96A2285.

Case No. A96A2285

1. In her award, the ALJ noted that Dr. Mathews could not state “to a reasonable degree of medical certainty” that Sasser’s fibromyalgia was related to the 1991 automobile accident. Citing this language, the superior court found the ALJ and the Board had erroneously applied a heightened standard of proof to Sasser’s burden of proving causation. However, nothing in the ALJ’s award indicates that the ALJ applied anything other than the proper preponderance of the evidence standard. Maloney, supra. Dr. Mathews’ testimony addresses only his medical opinion, and it was not the standard applied to the claimant’s burden.

The superior court erred by taking the ALJ’s use of the phrase, “to a reasonable degree of medical certainty,” out of context. This finding was but one fact of several on which the ALJ relied for determining Sasser had not proven a causal relationship between the accident and her medical condition. The ALJ went on to note that several of the symptoms of which Sasser complains, including those affecting her lower extremities, apparently did not appear until months after the accident. Although Dr. Mathews testified that fibromyalgia could be caused by the trauma of an accident, he also opined that symptoms she exhibited before the accident were consistent with this syndrome. Dr. Mathews further testified that while fibromyalgia can be exacerbated by trauma, it will not necessarily be, and its symptoms can worsen in the absence of trauma. There are no known causes of the disease, he stated. Thus, the ALJ was authorized to find that Sasser did not meet her burden of showing by a preponderance of the evidence that the accident either caused or exacerbated her fibromyalgia.

Decided February 26, 1997.

Hunter, MacLean, Exley & Dunn, Kirby C. Gould, for appellants.

Hackel & Hackel, Thomas M. Hackel, for appellee.

Because the superior court was bound to construe the award of the ALJ, as affirmed by the Board, strongly in favor of the prevailing party, it erred by interpreting the ALJ’s recitation of Dr. Mathews’ testimony to be the standard by which the ALJ measured Sasser’s proof of causation. The finding is supported by evidence, and the superior court erred by refusing to accept it. See Dasher, supra. The judgment of the superior court is reversed with direction that it reinstate the award as affirmed by the Board.

2. As the trial court erred in its construction of the award, we need not address UFL’s remaining enumerations of error.

Case No. A96A2286

Because we have affirmed the finding of the ALJ and the Board that Sasser’s disability is not related to a compensable, work-related injury, the enumerations raised in Sasser’s cross-appeal are moot. See Chem Lawn Svcs. v. Stephens, 220 Ga. App. 239, 242 (469 SE2d 375) (1996) (change in condition claim fails where ALJ determines no causal connection between original work-related injury and current disability).

Judgment reversed and remanded with direction.

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