text:
    A02A0094.
    PRINTIS v. BANKERS LIFE INSURANCE COMPANY, INC.
    (568 SE2d 85)
   Ruffin, Judge.

Felicia Printis sued Bankers Life Insurance Company, Inc. (Bankers Life), claiming that she was charged illegal, excessive premiums for a credit life insurance policy that she purchased. Printis sought repayment of overpaid premiums, damages for an alleged Racketeer Influenced and Corrupt Organizations Act violation, as well as class action status. Bankers Life moved for judgment on the pleadings, which the trial court granted. This appeal ensued. As the trial court ruled correctly, we affirm.

On a motion for judgment on the pleadings, we treat all wellpled material allegations by the nonmovant as true and all denials by the movant as false. Although such motion is, by definition, limited to the pleadings, a trial court may also consider exhibits that have been incorporated into the pleadings. If, in reviewing these documents, there is a complete failure by the plaintiff to state a cause of action, then the defendant is entitled to judgment as a matter of law.

Viewed in this light, the record demonstrates that Printis purchased a new car for $20,711.45 that she financed with a simple interest loan. The finance charge over the life of the loan was $2,117.95, which brought Printis’ total payments to $22,829.40. In connection with the car loan, Printis purchased credit life insurance through Bankers Life. The insurance premium was based upon the total payments of $22,829.40 rather than $20,711.45, the amount financed. According to Printis, Georgia law prohibits insurers from computing insurance premiums in this manner.

Printis cites OCGA § 33-31-4 (a), which provides that “[t]he amount of credit life insurance shall not exceed the indebtedness. Where indebtedness repayable in substantially equal installments is secured by an individual policy of credit life insurance, the amount of insurance shall not exceed the approximate unpaid indebtedness on the date of death.” According to Printis, with an initial debt of $20,711.45, the most she will ever owe is $20,711.45. Thus, she reasons, Bankers Life should have calculated her credit life insurance premiums on this basis. We disagree.

The cardinal rule in construing statutes is to ascertain the intent of the legislature. In so doing, we look first to the language of the statute. As our Supreme Court has noted,

where ... a statute is plain and susceptible of but one natural and reasonable construction, the court has no authority to place a different construction upon it, but must construe it according to its terms. In other words the language being plain, and not leading to absurd or wholly impracticable consequences, it is the sole evidence of the ultimate legislative intent.

As Printis recognizes, OCGA § 33-31-4 (a) limits the amount of credit life insurance to the amount of “indebtedness.” OCGA § 33-31-1 (5) defines “indebtedness” as “the total amount payable by a debtor to a creditor in connection with a loan or other credit transaction.” The phrase “total amount payable” indicates just that — the total amount a consumer will pay over the course of the loan. Had the legislature intended otherwise, it could easily have defined indebtedness differently — as the amount financed or as principal, for example. Although this is a matter of first impression in Georgia, we are not the first court to interpret “total amount payable” in this manner.

Decided June 18, 2002

Reconsideration denied July 2, 2002

Sidney L. Moore, Jr., for appellant.

Sutherland, Asbill & Brennan, Thomas M. Byrne, Thomas W. Curvin, for appellee.

Moreover, this interpretation is consistent with a rule promulgated by the Insurance Commissioner, which provides that “[t]he term ‘initial insured indebtedness’ shall mean the total payments as that term is defined under the Federal Consumer Credit Protection Act. This Act defines ‘total of payments’ as the amount you will have paid when you have made all scheduled payments.” “The interpretation of a statute by an administrative agency which has the duty of enforcing or administering it is to be given great weight and deference.” Thus, where the administrative agency has interpreted a statute in a manner consistent with the legislative intent, we will defer to that interpretation.

Here, Printis’ complaint is predicated upon her contention that Bankers Life illegally calculated the premium for her credit life insurance policy by including the finance charge with the principal in ascertaining the total amount payable. For the reasons discussed, this contention lacks merit. It follows that the trial court did not err in granting judgment on the pleadings in favor of Bankers Life.

Judgment affirmed.

Pope, P. J., and Barnes, J., concur.

       According to the caption of Printis’ complaint, she seeks “equitable relief.” The body of the complaint, however, does not contain a claim for equitable relief. Rather, Printis alleges she has a legal claim; thus, equity is not invoked. See Southern Healthcare Systems v. Health Care Capital Consolidated, 273 Ga. 834, 836 (6) (545 SE2d 882) (2001) (“A party cannot resort to equity if an adequate legal remedy is available.”).

       See OCGA § 9-11-12 (c); South v. Bank of America, 250 Ga. App. 747, 749 (551 SE2d 55) (2001).

       See Lewis v. Turner Broadcasting System, 232 Ga. App. 831, 832 (2) (503 SE2d 81) (1998).

       See South, supra.

       Specifically, Printis refers to the Motor Vehicle Sales Finance Act, OCGA § 10-1-30 et seq., which limits vehicle retailers’ ability to collect unearned interest.

       See Hollowell v. Jove, 247 Ga. 678, 681 (279 SE2d 430) (1981).

       See id.

       (Citation and punctuation omitted.) Id.

       See, e.g., Vulcan Life &c. Ins. Co. v. United Banking Co., 118 Ga. App. 36 (2) (162 SE2d 798) (1968) (physical precedent only) (“indebtedness” may include costs in addition to amount financed).

       See Liberty Bank & Trust Co. &c. v. Splane, 959 P2d 600, 603 (Okla. App. 1998); Winkle v. Grand Nat. Bank, 267 Ark. 123 (601 SW2d 559, 571) (1980). Compare McCullar v. Universal &c. Ins. Co., 687 S2d 156 (Ala. 1996).

       See Ga. Comp. R. & Regs. r. 120-2-27-.03 (b) (5).

       (Punctuation omitted.) Ins. Dept. of the State of Ga. v. St. Paul Fire &c. Ins. Co., 253 Ga. App. 551, 552 (559 SE2d 754) (2002).

       See id.


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A02A0812.
    WOLFF v. MIDDLEBROOKS.
    (568 SE2d 88)
   Miller, Judge.

Todd Wolff appeals from a general jury verdict against him on Anthony Middlebrooks’s claims for slander per se and intentional infliction of emotional distress, and a verdict against him for punitive damages. On appeal Wolff contends that the trial court erred by failing to grant his motions for a directed verdict or judgment notwithstanding the verdict on plaintiffs slander per se, intentional infliction of emotional distress, and punitive damages claims. We find that the trial court erred by failing to grant a directed verdict on the intentional infliction of emotional distress claim but did not err by denying the motion on the slander per se claim. Since this Court has no way of determining whether any or all of the damages awarded by the jury were related to the emotional distress claim (due to the general verdict form), we reverse the judgment of the trial court and remand for a new trial on Middlebrooks’s slander per se and punitive damages claims.

Viewed in the light most favorable to the plaintiff, the evidence reveals that on December 11, 1998, Wolff called into a popular local morning radio program on the radio station “99X.” During the broadcast, Wolff .(Middlebrooks’s former employer) engaged in the following on-air conversation with the program DJs (Steve Barnes, Leslie Fram, and Jimmy Baron):

Wolff: Jimmy . . . [t]here’s a gentleman running around the Atlanta area claiming to have a love affair with you.
Baron: You know what, I heard about this.
Wolff: Yeah, yeah, you heard about him?
Barnes: What?
Fram: Somebody’s obsessed with you.
Baron: Somebody’s, there’s some dude running around saying that he was gay with me.
Barnes: Really?
Fram: Really?
Wolff: Yeah, he was at the [softball] game.
Barnes: No.
Wolff: Yeah, he was at the game. He was behind one of the dugouts.
Baron: Really.
Wolff: Yes.
Barnes: He claims that he’s your lover?
* * *
Wolff: The gentleman running around is Tony Middlebrooks.
Barnes: Oh, you know the guy?
Wolff: Well, no, I’ve just, uh, I had a friend introduce himself and I asked him what was going on. But it was Tony Middlebrooks that was saying that he was having an affair with you.
Baron: I don’t know who that is.
Barnes: Check that out, Jimmy. Thanks, Tony.
Baron: Tony Middlebrooks. That’s just dumb.

Middlebrooks was listening to the program at the time of the broadcast, as were 40,000 other listeners in the Atlanta area. It is undisputed that Wolff did not make the comments directly to Middlebrooks. Wolff knew that the statements that he made during the radio broadcast were false at the time that he made them.

Middlebrooks sued Wolff for slander per se and intentional infliction of emotional distress based on Wolff’s on-air radio comments and also for punitive damages due to other alleged aggravating circumstances (i.e., just four days before Wolff made the comments, Middlebrooks had filed an employment grievance against Wolff for engaging in inappropriate conduct toward his wife at an office party, and Wolff fired Middlebrooks just one day before making the comments). After the close of Middlebrooks’s case at trial, Wolff moved for a directed verdict on all of Middlebrooks’s claims, which the court denied. The jury returned a general verdict in favor of Middlebrooks, awarding him $30,000 in damages. The verdict form did not indicate whether the jury based its verdict on either the slander per se claim or intentional infliction of emotional distress claim, or both. Finding a specific intent to cause harm, the jury also returned a verdict for punitive damages of $250,000. Wolff moved for a judgment n.o.v. and a new trial, and both motions were denied.

1. Wolff argues that the trial court erred by denying his motions for directed verdict and judgment n.o.v. on Middlebrooks’s claim for slander per se. We disagree.

The standard of review of a directed verdict and a judgment n.o.v. is the same, and “a directed verdict is appropriate only if there is no conflict in the evidence as to any material issue and the evidence introduced, construed most favorably to the party opposing the motion, demands a particular verdict.” (Citations omitted.) St. Paul Mercury Ins. Co. v. Meeks, 270 Ga. 136, 137 (1) (508 SE2d 646) (1998). Here, there is some evidence from which a jury could determine that Wolff’s on-air comments amounted to slander per se.

Slander or oral defamation that is actionable per se, meaning that no special damages need be shown, may consist in “[fimputing to another a crime punishable by law . . . [or] [Charging a person . . . with being guilty of some debasing act which may exclude him from society.” OCGA § 51-5-4 (a) (l)-(2), (b).

A slanderous charge is actionable per se, whether the words directly or indirectly, by intimation or innuendo, contain slander. The slanderous charge is just as effectively harmful, and therefore actionable per se . . . whether the harmful effect results from words which directly and unequivocally make a charge or whether it results from words which do so indirectly or by inference. It is the harmful effect of defamatory language as it is understood which renders it actionable per se, and not its directness or unequivocal nature.

(Citation omitted.) Southland Corp. v. Garren, 135 Ga. App. 77, 79 (2) (b) (217 SE2d 347) (1975), rev’d on other grounds, 235 Ga. 784 (221 SE2d 571) (1976).

In the instant case, Middlebrooks claimed that Wolff’s words imputed to him the crimes of adultery or fornication (had someone listening not known that he was married) or charged him with being guilty of some debasing act that would exclude him from society. Adultery occurs when a married person “voluntarily has sexual intercourse with a person other than his spouse. . . .” OCGA § 16-6-19. Fornication occurs when an unmarried person “voluntarily has sexual intercourse with another person. . . .” OCGA § 16-6-18.

By stating that Middlebrooks, a married man, was going around town professing to have an illicit affair with the radio DJ, Wolff raised the inference that such an illicit affair was taking place. The jury was authorized to draw this inference from the evidence presented and was further authorized to conclude that Middlebrooks’s “having an affair” with the DJ included sexual relations. Baskin v. Rogers, 229 Ga. App. 250, 252 (2) (493 SE2d 728) (1997). The trial court therefore correctly allowed Middlebrooks’s slander per se claim to be considered by the jury. See id.; see also Veazy v. Blair, 86 Ga. App. 721, 723 (1) (72 SE2d 481) (1952).

2. We hold that the trial court erred, however, by denying Wolff’s motion for a directed verdict on Middlebrooks’s claim for intentional infliction of emotional distress. “[E]ven malicious, wilful or wanton conduct will not warrant a recovery for the infliction of emotional distress if the conduct was not directed toward the plaintiff.” Ryckeley v. Callaway, 261 Ga. 828, 829 (412 SE2d 826) (1992). “Defamatory remarks made ... to the public in general are classic examples of conduct that, though harmful to the plaintiff, was directed toward the hearer of the statements, not to the plaintiff, and thus is not actionable as intentional infliction of emotional distress.” Lively v. McDaniel, 240 Ga. App. 132, 134 (2) (522 SE2d 711) (1999). It is undisputed that the comments here were made during a radio broadcast to thousands of people and were not made directly to Middlebrooks. The trial court therefore erred by failing to grant a directed verdict to Wolff on this claim.

3. In light of our holdings in Divisions 1 and 2, and due to our inability to determine upon what basis the jury rendered its verdict on the general verdict form, we also cannot determine the underlying tort theory upon which the jury based its award for punitive damages. If the jury based its award of punitive damages on the underlying claim for which there could be no liability, there could likewise be no recovery for punitive damages. See Groutas v. McCoy, 219 Ga. App. 252, 254 (3) (464 SE2d 657) (1995). Conversely, if the jury based its award on the underlying tort of slander, punitive damages could be recoverable. The award for punitive damages must therefore be reversed, and we remand this case for a new trial on the issues of slander per se and punitive damages.

Decided June 18, 2002

Reconsideration denied July 2, 2002

William G. Leonard, for appellant.

Christopher G. Moorman, for appellee.

We note that this entire question could have been resolved with a specific verdict form for slander per se and intentional infliction of emotional distress.

4. Based on the foregoing, Wolff’s remaining enumeration is moot. As we have a transcript, Middlebrooks’s motion to dismiss the appeal is denied.

Judgment reversed and case remanded with direction. Blackburn, C. J, and Johnson, P. J., concur.


author: Blackburn, Chief Judge.

text:
    A02A1092.
    XULU v. THE STATE.
    (568 SE2d 74)
   Blackburn, Chief Judge.

Solomon Xulu was convicted by a jury of child molestation, and we affirm. He enumerates multiple errors. We set forth below those with some possibility of merit.

1. Xulu questions the sufficiency of the evidence. The evidence shows that on October 6, 1994, the victim, D. M., a four-year-old girl, was playing hide-and-seek with her sister and two other little girls who lived next door. Xulu was also playing in the game. During the game, Xulu grabbed D. M. and pulled her into some bushes behind the house. Here, he removed her underwear and touched her genitals.

Shortly thereafter, D. M.’s mother, Elizabeth, returned from shopping and called for her daughters. At this point, Xulu put his hand over D. M.’s mouth and told her not to tell what had happened. When Elizabeth did not see D. M., she began looking for her. She saw her running up from between the houses with a shocked look on her face and disheveled clothes; Xulu was following closely behind. Elizabeth took D. M. into the house and discovered that her underwear was missing and that there was mud on her buttocks and thighs. When she asked D. M. what had happened, D. M. told her what Xulu had done. The evidence was sufficient to support Xulu’s conviction.

2. Xulu sets forth various grounds for his argument that the trial court erred by denying his several requests for a continuance. There was no error.

Xulu complains that the State did not furnish him a copy of a report of the medical examination of D. M. conducted by a physician, Dr. Patterson, at Grady Hospital. The transcript reveals that the State neither knew of nor was in possession of Dr. Patterson’s report of the medical examination prior to trial. Dr. Patterson found the file at his home; upon discovering the file, he made it available to the State, and the State immediately, and before opening statements, furnished Xulu with a copy.

The State is required under the statute to make available to a defendant only those medical examination reports which it intends to introduce into evidence in its case-in-chief or in rebuttal. Here, the State, unaware of the report, had no intention of using it as either direct or rebuttal evidence until the day before trial.

Secondly, OCGA § 17-16-1 (1) requires that an item be within the possession, custody, or control of the prosecuting attorney or any law enforcement agency involved in the investigation. Here, the report was not in the possession of either the prosecuting attorney or the police, nor was it in the possession of the hospital. As the State had no knowledge of the existence of the statement, it had no reason to seek to obtain same.

Beyond this, the trial judge ascertained that defense counsel had been provided a copy of the report the day before Dr. Patterson’s testimony, and the transcript makes clear that defense counsel had a chance to review the report and made use of it in cross-examining Dr. Patterson. As Xulu can point to no harm that resulted from his being denied a continuance on this ground, we cannot say that the trial court erred in denying same.

Xulu also argues that the State’s failure to produce the statements of two witnesses alleging a similar transaction provided additional grounds for a continuance. The first statement which Xulu claims the State failed to produce is an “exculpatory medical exam” of the child victim in the similar transaction. Xulu assumes that because the child’s mother took her child to the doctor, there must have been a medical examination report and further assumes that the report would have exculpated him.

There is no evidence that any such medical report exists. The trial judge allowed Xulu’s counsel to prepare a court order granting him access to any records the child’s doctor might have and also advised counsel that if he needed to recall the witness, he would be allowed to do so. However, nothing was produced by Xulu establishing that these records actually existed, much less that they were exculpatory. The State is not obligated to do a defendant’s investigatory work for him.

Xulu also claims that a continuance should have been granted because the State failed to turn over to him a copy of D. M.’s videotaped statement. The State was not required to provide Xulu with a copy of the tape but, under the statute, was only required to allow him to view it at an agreed-upon time. When Xulu finally made a request to view the tape, the trial court recessed and the State provided the tape so that he could do so.

Xulu argues that a continuance should have been granted because he did not have enough time to prepare for trial. “A statement by counsel for the defendant that he has not had sufficient time to investigate and prepare the defense is a mere conclusion. Questions of this nature must of necessity be entrusted to the discretion of the trial judge.” Hill v. State. In this case, Xulu’s counsel was appointed, and filed numerous motions, more than seven months prior to trial. The case had been on several previous trial calendars. Xulu’s counsel received discovery more than ten days before commencement of trial. The trial court concluded that Xulu’s counsel had adequate time to prepare for trial. We cannot say that the trial court abused its discretion in this ruling.

3. Xulu contends that the trial court erred in a variety of ways in admitting evidence of a similar transaction.

First, there is no merit to Xulu’s argument that the State failed to satisfy the first prong of Williams v. State because it failed to specify the purpose for which the similar transaction evidence was being offered. The prosecution stated that the purpose for admitting this evidence was to show a course of conduct on behalf of the defendant and his bent of mind. Each of these has been identified as one of the limited purposes for which evidence of similar transactions may be introduced. See Bailey v. State; Turner v. State.

The State also established the second and third prongs of the Williams test. The State informed the trial court that the child victim in the similar transaction identified Xulu as the person who touched him, calling him Uncle Sky, as did the victim in the case-in-chief and other children in the neighborhood. Xulu does not dispute this identification. Evidence of such facts establishes that the accused committed the independent offense. As to sufficient similarity, the transaction the State sought to introduce involved a four-year-old child who lived in the same neighborhood as D. M. and who was molested behind his or a neighbor’s house; the defendant pulled the child’s pants down and placed his hand on his genitals. We believe that sufficient similarity was clearly set forth. Moreover, it is the established rule in Georgia that “the sexual molestation of young children, regardless of sex or type of act, is sufficient similarity to make the evidence admissible.” (Punctuation omitted.) Adams v. State

Xulu complains that the trial court did not view the videotaped statement of the child victim of the similar transaction before ruling on the admissibility of the similar transaction.

While a defendant has a right to a hearing on the similarity of other transactions sought to be admitted into evidence, it need not be a full evidentiary hearing and it is sufficient if the prosecutor shows the requisite similarity of the previous transaction by stating in his place the nature of the evidence to be given regarding the similar transaction.

Johnson v. State.

As to any inconsistencies in the evidence, the State correctly argued that Xulu had the right to cross-examine the witness regarding the similar transaction and that any inconsistencies went to the weight rather than the admissibility of the evidence.

4. Xulu contends that the trial court erred by refusing to hear his evidence at a requested pre-trial Gregg v. State hearing before admitting out-of-court child hearsay, and by admitting the out-of-court child hearsay without sufficient indicia of reliability.

As to Xulu’s contention that the trial court was required to conduct, at his request, a pre-trial evidentiary hearing pursuant to Gregg v. State, the decisions make clear that “OCGA § 24-3-16 does not require a hearing to determine Indicia of reliability’ be held prior to receiving the testimony.” Reynolds v. State. Moreover, there is no requirement that the trial court make a specific finding of “sufficient indicia of reliability” in order for the out-of-court statements of child victims to be admissible.

Xulu also argues that the trial court erred in admitting the hearsay evidence because the out-of-court statements of the two child victims did not in fact contain sufficient indicia of reliability. Review of the trial court’s admission of the hearsay statement is under the clearly'erroneous standard.

Xulu objects first to the statements made by D. M. to Dr. Patterson and Detective Davis. As to Dr. Patterson, the record shows that D. M. was taken to him for an examination shortly after her mother discovered that she had been molested. The only other person present at the examination was the victim’s mother. Dr. Patterson stated that, in conducting his examination of D. M., he avoided steering or coaching her into saying something that did not happen. His notes indicated that she was cooperative and did not appear to be in any distress. He also testified that she was able to articulate what had happened to her. In addition to telling Dr. Patterson what had happened, D. M. also used anatomically correct dolls to indicate to him what had been done. Under these circumstances, there were sufficient indicia of reliability for the trial court to admit Dr. Patterson’s testimony.

As to the out-of-court statement made by D. M. to Detective Davis, we find little in the record which would have allowed the trial judge to conclude that the circumstances surrounding that statement provided sufficient indicia of reliability. The trial transcript reveals only that Detective Davis interviewed the victim at his office shortly after she was molested and that he typed out her story as she related it to him.

Assuming that the out-of-court statement was inadmissible, any error was harmless. Detective Davis testified that D. M. told him that Xulu took off her panties and touched her vaginal area. Dr. Patterson also testified that D. M. told him that Xulu pulled down her panties and touched her private part, and the victim’s mother likewise testified that her daughter had told her that Xulu had pulled down her panties and touched her. Thus, Detective Davis’s testimony was merely cumulative of other testimony presented at trial. Kelly v. State.

Further supporting the admissibility of D. M.’s out-of-court statements to both Dr. Patterson and Detective Davis is the fact that D. M. took the stand and testified. Xulu had the opportunity to, and did, in fact, cross-examine her about the out-of-court statements.

Xulu argues that the out-of-court statements made by the child victim in the similar transaction incident do not possess sufficient indicia of reliability. The first person to whom this child spoke was his mother. The mother indicated that one evening after she had fed and bathed her child, she asked him, as he lay in her bed, whether Xulu, or “Uncle Sky,” had ever touched him. The child told his mother that Xulu had touched him in a variety of places such as on his head, arms, and legs. When his mother asked him if Xulu had touched him anywhere else, he told her that Xulu had touched his “weewee” and his “booboo,” meaning his penis and his rectum. He also told his mother that he had not told her earlier because he was afraid of Xulu.

Decided June 13, 2002 —

Reconsideration denied July 2, 2002.

William S. Callahan, Steven E. Phillips, for appellant.

While the indicia of reliability with respect to this out-of-court statement are minimal, we find, because the similar transaction child victim took the stand at trial and Xulu cross-examined him, that the trial court’s admission of the statement was not clearly erroneous.

Xulu also objects to this victim’s statement to Detective Davis. The victim told Detective Davis that Xulu touched his “weewee” and his rectum, the same thing he told his mother. Any error in admitting the statement made to Davis is harmless because it is cumulative of other testimony adduced during the trial.

Xulu’s primary basis for arguing that the out-of-court statements of both children lack sufficient indicia of reliability is that there are inconsistencies between their out-of-court statements and their testimony at trial. Any inconsistencies in the statements were a matter for the jury’s consideration in weighing the evidence, not a matter of admissibility.

5. Xulu’s next argument is that there was a fatal variance between the allegations of the indictment and the evidence at trial. Xulu contends that because the indictment specified that the offense was committed by his “removing her panties and placing his hands upon and near the female sex organ,” while the victim’s testimony at trial was that she had had vaginal intercourse with him, there was a fatal variance between the allegations and the proof.

D. M.’s mother, Dr. Patterson, and Detective Davis all testified that D. M. told them that Xulu had pulled down her panties and placed his hand on her vaginal area. Since “the allegations and the proof in the case at bar substantially corresponded, such that it cannot be said that [Xulu] was misled or prejudiced,” any variance was not fatal. Winter v. State.

Judgment affirmed.

Johnson, P. J., and Miller, J., concur.

Paul L. Howard, Jr., District Attorney, Marc A. Mallon, Christopher M. Quinn, Assistant District Attorneys, for appellee.

        Hill v. State, 161 Ga. App. 346 (1) (287 SE2d 779) (1982).

        Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991).

        Bailey v. State, 207 Ga. App. 283, 284 (427 SE2d 612) (1993).

        Turner v. State, 245 Ga. App. 476, 478 (538 SE2d 125) (2000).

        Adams v. State, 208 Ga. App. 29, 32 (430 SE2d 35) (1993).

        Johnson v. State, 204 Ga. App. 453 (1) (419 SE2d 741) (1992).

        Gregg v. State, 201 Ga. App. 238 (411 SE2d 65) (1991).

        Reynolds v. State, 257 Ga. 725 (2) (363 SE2d 249) (1988).

        Kelly v. State, 197 Ga. App. 811, 814 (399 SE2d 568) (1990).

        Winter v. State, 171 Ga. App. 511, 512 (1) (320 SE2d 233) (1984).


author: Ruffin, Judge. Barnes, Judge,

text:
    A02A0031.
    PITTS v. CITY OF ROME et al.
    (568 SE2d 167)
   Ruffin, Judge.

On October 16, 1997, Major Oscar Vernon Pitts suffered a stroke at his job with the City of Rome Police Department. He subsequently filed a workers’ compensation claim against the City, asserting that work-related stress contributed to his stroke. The City contested coverage. On February 12, 1999, Major Pitts died from complications relating to the stroke, and his widow, Sue Pitts, pursued the workers’ compensation claim, seeking total disability payments until the date of his death, as well as death benefits.

Following a hearing, the administrative law judge denied the requested benefits. The Appellate Division of the Workers’ Compensation Board adopted the ALJ’s findings, and the superior court affirmed that decision. We granted Sue Pitts’ application for discretionary appeal, and for reasons that follow, we affirm.

1. In reviewing a decision of the State Board of Workers’ Compensation, we construe the evidence

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. Neither the superior court nor this court has any authority to substitute itself as a fact-finding body in lieu of the board; an appellate body is bound by the “any evidence” standard of review, and is not authorized to substitute its judgment as to weight and credibility of witnesses.

Viewed in this manner, the record shows that Major Pitts worked for the Rome Police Department for almost 31 years before his stroke. On October 16, 1997, the day of his stroke, he held the title of Major in charge of the department’s technical service bureau. In that position, Major Pitts had various responsibilities, including overseeing the training center, coordinating the department’s fleet vehicles, issuing uniforms and other equipment, and generally taking care of technical services. Major Pitts also served as a bomb technician and hostage negotiator. Between February 1997 and October 16, 1997, however, his job duties focused primarily on supervising construction of a firing range and a new public safety building.

Several witnesses testified that problems with these construction projects caused Major Pitts some frustration. Yet, despite the problems, Pitts enjoyed supervising the projects. According to these witnesses, the primary stressor in Pitts’ life during the months preceding the stroke involved his son’s conviction for drug trafficking. Pitts believed that the arresting officers had tampered with the evidence and that the ten-year sentence his son received was too harsh. He also blamed his son’s arrest and the sentence on his position with the Rome Police Department.

Mrs. Pitts testified that, for several months before his stroke, her husband had not felt well, was often tired, and increased his smoking habit from one and one-half packs of cigarettes per day to two or more packs daily. He also had a history of medical problems, including heart attacks in 1982 and 1983, heart by-pass surgery, congestive heart failure, a ventricular aneurysm, high blood pressure, high cholesterol, and high triglycerides. Dr. Joseph Biusco, the internist who treated Major Pitts over the ten years preceding the stroke, prescribed numerous medications for him, including Coumadin, a blood thinner given to prevent blood clots that can cause a stroke. At some point during the two weeks before the stroke, Pitts failed to take his Coumadin for a one-week period.

Medical evidence showed that Major Pitts’ stroke resulted from a cardiac embolism — a blood clot from his heart that traveled to his brain. Dr. Raymond Capps, the neurologist who treated Pitts following the stroke, testified that stroke risk factors “include advancing age, high blood pressure, heart disease, diabetes, smoking, and ... a genetic history as well as a previous history of vascular disease.” Dr. Capps agreed that Pitts had several risk factors at the time of his stroke. He further testified, however, that Major Pitts’ “‘massive stroke! 3 was exaggerated by his job as a police captain [sic] with extreme stress and fatigue from this position. His blood pressure and heart condition were also worsened by these work-related factors. In all, Mr. Pitts was at risk for major cardiovascular events given his high stress occupation.’ ”

The City presented medical evidence refuting Dr. Capps’ conclusion. According to the City’s expert, Dr. Michael Ware, it is impossible to state that job stress contributed to Major Pitts’ stroke. He testified that, even assuming Major Pitts suffered from work-related stress, that stress could not be tied to his stroke, especially given that Pitts “had missed about a week or so of his blood thinner.” In Dr. Ware’s view, any conclusion that job stress — or any particular stress — contributed to the stroke would be speculative. Dr. Biusco also testified that, although stress can contribute to a stroke, he could not say whether stress had anything to do with Major Pitts’ stroke.

As defined by the Workers’ Compensation Act, the term “injur/’ does not include

heart disease, heart attack, the failure or occlusion of any of the coronary blood vessels, stroke, or thrombosis unless it is shown by a preponderance of competent and credible evidence, which shall include medical evidence, that any of such conditions were attributable to the performance of the usual work of employment.

The ALJ concluded that Major Pitts was under stress at the time of his stroke. But, after reviewing the evidence, including the testimony of all three doctors, the ALJ determined that Mrs. Pitts showed “only a possibility that this stress contributed to the onset of the stroke and, thus, to the eventual death.” Finding that Mrs. Pitts did not sufficiently prove her claim, the ALJ denied the requested benefits. The appellate division adopted the ALJ’s conclusions, and the superior court affirmed that decision.

We find no error. As our Supreme Court has recognized, in “heart attack” cases, “it is often difficult for the trier of fact to find the line between a noncompensable heart injury that is a symptom of an existing disease merely manifested during job exertion, and a compensable heart injury to which the job exertion was a contributing precipitating factor.” Although this case involves a cardiac embolism, rather than a heart attack, we find that this same difficult line must be drawn here. And once the trier of fact locates and draws that line, we are required to affirm if any evidence supports the factfinder’s determination.

The evidence linking stress to Major Pitts’ stroke was conflicting. Dr. Capps cited work-related stress as a contributing factor. Dr. Ware, however, found no basis for such a causal link and testified that tying stress to the stroke would be mere speculation. Dr. Biusco also refused to draw a causal connection in this case. The testimony from Dr. Ware and Dr. Biusco, as well as evidence that Major Pitts’ medical history placed him at risk for a stroke, supported the conclusion that stress — whether job-related or otherwise — did not contribute to his condition. Although Mrs. Pitts presented competing medical testimony, the factfinder resolved the evidentiary conflict against her, as it was entitled to do, and found that any effort to tie her husband’s stroke to stress fell within the realm of possibilities and speculation.

We are bound in this case by the “any evidence” standard. Despite the dissent’s arguments, the evidence supported the factfinder’s determination that Mrs. Pitts failed to prove by a preponderance of credible evidence that Major Pitts’ stroke was “attributable to the performance of the usual work of employment.” Accordingly, the superior court did not err in affirming the denial of workers’ compensation benefits.

2. Mrs. Pitts also challenges the ALJ’s alternative ruling that, even if some type of stress contributed to the stroke, her claim would not be compensable because the primary stress Major Pitts experienced involved his son and was not job-related. The dissent similarly finds error in the ALJ’s conclusion that work duties must be the primary cause of stress contributing to the injury. Given our decision in Division 1, however, we need not consider whether the ALJ erred in its alternative ground for denying benefits.

Judgment affirmed.

Pope, P. J., Andrews, P. J., Johnson, P. J., and Mikell, J., concur. Barnes and Phipps, JJ, dissent.

Barnes, Judge,

dissenting.

In my opinion, the administrative law judge applied an incorrect standard of review in his order denying benefits, and therefore I respectfully dissent from the majority opinion.

The ALJ stated in his opinion that the evidence showed only a possibility that the decedent’s job stress contributed to his stroke and resulting death, instead of a probability that it did so. The ALJ also held that such a claim is compensable only if the evidence demonstrates that (1) stress contributed to the onset of the injury; (2) the stress was attributable in part to work-related duties; and (3) the duties were the primary, rather than a secondary, contributing cause of the stress.

Regarding the ALJ’s conclusions about the amount of evidence presented, the issue is not whether the evidence showed a possibility versus a probability that job stress contributed to the decedent’s stroke. Rather, the issue is whether a preponderance of evidence shows that it was “attributable to the performance of the usual work of employment.” OCGA § 34-9-1 (4). The facts in this case differ from those in AFLAC, Inc. v. Hardy, 250 Ga. App. 570 (552 SE2d 505) (2001), in which the claimant presented no medical evidence at all that her stressful job contributed to her underlying heart disease. A physician’s report in that case stated only that a stressful work environment can play a role in exacerbating the symptoms of the disease, but could not be clearly implicated for that claimant. Id.

In this case, by contrast, the treating neurologist testified that

[h]is condition, a massive stroke, was exaggerated by his job as a police captain [sic] with the extreme stress and fatigue from this position. His blood pressure and heart condition were also worsened by these work related factors. In all, Mr. Pitts was at risk for major cardiovascular events given his high stress occupation. In addition, his recovery would also be compromised by this degree of physical and emotional load.

While a physician who reviewed the decedent’s records, but never examined him, testified that it was impossible to state that job stress contributed to the stroke, he also testified that one can almost never say stress directly causes a stroke. He further testified that, while stress would not directly cause the embolism that led to the decedent’s stroke, it could affect factors that lead to the formation of an embolism.

As to the ALJ’s conclusion that work stress must be the primary cause of the stroke, we have held to the contrary that “work need be only a contributing factor to a heart injury [or stroke] in order for that injury to be compensable.” (Emphasis supplied.) Phillips Correctional Institute v. Yarbrough, 248 Ga. App. 693, 695 (548 SE2d 424) (2001). The ALJ’s statement in this case that work duties must be the primary cause of the stress that contributed to the injury is clearly incorrect, and I would reverse the superior court’s decision affirming the board, which affirmed the ALJ’s denial of benefits.

Decided July 2, 2002.

Mundy & Gammage, Miles L. Gammage, for appellant.

Brinson, Askew, Berry, Seigler, Richardson & Davis, Kristy L. Gordie, for appellees.

I am authorized to state that Judge Phipps joins in this dissent.

       See OCGA §§ 34-9-261; 34-9-265.

       We note that the brief submitted by Mrs. Pitts’ attorney violates Court of Appeals Rule 27 (c) (1). Although the brief raises three enumerations of error, it lumps together the arguments into one long section, without any indication as to how the argument relates to the various enumerations. Furthermore, the brief does not comport with Rule 23 (e), regarding page length, and it contains no adequate citations to the appellate record, in violation of Rule 27 (a) (1) and (c) (3) (i). This utter failure to comply with the rules has made our review of this appeal extremely difficult.

       (Punctuation omitted.) Sutton v. B & L Express, 215 Ga. App. 394, 395 (1) (450 SE2d 859) (1994).

       OCGA § 34-9-1 (4).

       (Emphasis supplied.)

        See AFLAC, Inc. v. Hardy, 250 Ga. App. 570, 572 (552 SE2d 505) (2001) (mere possibility that job stress was a factor in causing heart attack is generally insufficient to sustain a claimant’s burden of proof in a workers’ compensation case).

        Guye v. Home Indem. Co., 241 Ga. 213, 215 (244 SE2d 864) (1978).

       See id. at 218; Phillips Correctional Institute v. Yarbrough, 248 Ga. App. 693, 695 (548 SE2d 424) (2001).

       See Henry Gen. Hosp. v. Stephens, 189 Ga. App. 619, 620-621 (2) (376 SE2d 705) (1988).

       OCGA § 34-9-1 (4).

         See Yarbrough, supra at 695-696; Bibb County v. Higgins, 241 Ga. App. 161, 162-163 (1) (526 SE2d 379) (1999); Sutton, supra at 396 (2) (in determining whether job caused or aggravated claimant’s heart disease, “the board would be authorized to consider whether [the claimant’s] existing risk factors alone caused his heart disease, whether any of those risk factors were caused by his employment, or whether any job-related conditions aggravated those risk factors to cause the heart disease”).

       Mrs. Pitts contends that the stress Major Pitts experienced about his son was job-related because he believed his job somehow exacerbated the son’s situation.

       See Southmark Corp. v. Trotter, Smith & Jacobs, 212 Ga. App. 454, 457 (442 SE2d 265) (1994).


author: Barnes, Judge.

text:
    A02A0104.
    FOCUS ENTERTAINMENT INTERNATIONAL, INC. v. BAILEY et al.
    (568 SE2d 183)
   Barnes, Judge.

Focus Entertainment International, Inc. was cited more than 200 times for violating three Union City ordinances, including an ordinance prohibiting the operation of a sexually oriented business without a license. The municipal court denied the company’s motion for a jury trial. Following a bench trial, the court convicted the company of all offenses and assessed a fine of $22,300. The Superior Court of Fulton County then granted Focus Entertainment’s petition for a writ of certiorari and, after oral argument, affirmed the municipal court convictions, but did not address Focus Entertainment’s constitutional challenge. We granted the company’s application for discretionary appeal and affirm the superior court’s ruling.

Focus Entertainment contends on appeal that the municipal court’s refusal to bind its case over for a jury trial violated its constitutional rights to due process and equal protection. Nothing in the record, however, indicates that the company argued these constitutional grounds before the municipal court, which made no ruling on them. In its pre-trial argument before the municipal court on its motion for a jury trial, the company argued only that it had a right to a jury trial pursuant to Georgia statutes. It contended that, under OCGA § 36-32-3, a municipal court judge has “the same powers and authorities as magistrates in the matter of and pertaining to criminal cases of whatever nature in the several courts of this state.” OCGA § 15-10-61 provides that, upon written demand for a jury trial, a magistrate must bind a criminal case over to the state or superior court. Therefore, reading the two statutes together, the company argued, a municipal court judge must also bind over a criminal case upon demand for a jury trial. The municipal court judge denied Focus Entertainment’s motion for a jury trial without elaboration.

Decided July 2, 2002.

Begner & Begner, Alan I. Begner, Robert M. Adelson, for appellant.

McNally, Fox & Grant, Dennis A. Davenport, for appellees.

The Supreme Court of Georgia recently addressed a similar issue in Smith v. Greene, 274 Ga. 815 (559 SE2d 726) (2002), and considered the denial of a petition for a writ of mandamus, seeking to require the removal of a prosecution for county ordinance violations from recorder’s court to state court for a jury trial, pursuant to OCGA § 15-10-61. The Supreme Court noted that “the plain language of Article 4 [of Title 15], and OCGA § 15-10-61 in particular, addresses itself to magistrate courts. And the Recorder’s Court of Gwinnett County simply is not a magistrate court.” Id. at 817. Therefore, as this case arose in municipal court, not magistrate court, Focus Entertainment was not entitled to have the charges against it bound over to state court.

“The writ of certiorari shall lie for the correction of errors committed by any inferior judicatory or any person exercising judicial powers.” OCGA § 5-4-1. While Focus Entertainment argued constitutional errors to the superior court in its petition for a writ, the superior court did not rule on its constitutional challenge. Therefore, this issue was not preserved for appeal because the constitutional issue was not raised and ruled on below. In re L. C., 273 Ga. 886, 889 (2) (548 SE2d 335) (2001). Further, transfer of this appeal to the Supreme Court of Georgia is not warranted because that court “does not have exclusive appellate jurisdiction over a case where the constitutional issue asserted on appeal has not been raised in and ruled upon by the trial court. [Cit.]” Atlanta Independent School System v. Lane, 266 Ga. 657, 658 (1) (469 SE2d 22) (1996).

Accordingly, we affirm the superior court’s order.

Judgment affirmed.

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


author: Ruffin, Judge.

text:
    A02A0167.
    QUADRON SOFTWARE INTERNATIONAL CORPORATION et al. v. PLOTSENEDER.
    (568 SE2d 178)
   Ruffin, Judge.

Hans P. Plotseneder sued Quadron Software International Corporation (“Quadron”) and Fischer International Systems Corporation (“Fischer International”) alleging that they breached various employment-related agreements. The trial court granted Quadron and Fischer International summary judgment on all but two of Plotseneder’s claims. Quadron and Fischer International appeal the trial court’s denial of summary judgment on Plotseneder’s two remaining claims, and for reasons that follow, we affirm in part and reverse in part.

To prevail on their motion for summary judgment, Quadron and Fischer International must show

that there is no evidence sufficient to create a jury issue on at least one essential element of [Plotseneder’s] case. If there is no evidence sufficient to create a genuine issue as to any essential element of [Plotseneder’s] claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial.

On appeal from a trial court’s grant of summary judgment, we conduct a de novo review of the evidence and construe that evidence and all reasonable inferences in favor of the nonmoving party.

Viewed in favor of Plotseneder, the evidence shows that he was the president and chief executive officer of a company called Blue Rainbow Software International (“Blue Rainbow”). In February 1993, Plotseneder met with Addison Fischer, the owner of Fischer International, to discuss a possible acquisition of Blue Rainbow by Addison. During the meeting, the parties also discussed the possibility of Plotseneder continuing to work for Blue Rainbow if the deal was consummated.

In the fall of 1993, Addison Fischer purchased Blue Rainbow and formed Quadron to hold the newly acquired assets and market the products. In February 1994, Fischer International hired Plotseneder to engage in business development and marketing. This appeal concerns two agreements entered between Quadron and Plotseneder while Plotseneder worked for either Quadron or Fischer International.

The first agreement, executed in May 1994, was embodied in a memorandum prepared by Plotseneder and signed by Quadron’s managing director, Julie Wright (“Sales Agreement”). The Sales Agreement provided in part:

1. You agree with the proposal I submitted to you and Mark Merenda in April (not dated, see attachment) with the understanding that the projected expenses have not been approved yet. Independent of the actual numbers submitted, you agree with the approach to take the same percentage of the overall expenses of Quadron (here taken from Randall King’s business plan) for determining the appropriate numbers for European Sales and other territories outside of North America. — Depending on changes of the projected expenses, the revenue projection will change. 2. I will receive a commission of 10% for all revenues from direct sales (license and maintenance fees) and 5% as an override for sales closed by a third party (for example distributor, agent or other employee). This includes single licenses as well as volume sales. . . . My current base compensation plan as offered and approved by Randall King will remain unchanged. — Should Fischer [International] and Quadron agree to sell each other’s products, revenues for Fischer [International] products will be compensated under the same 10% and 5% scheme. 3. My sales territory encompasses all countries except the USA, Canada, and Mexico. ... 5. Initially, this agreement shall commence on June 1, 1994, for an initial period of 19 months. After the first 19 months it should continue unless and until terminated by either party giving to the other not less than 1 months’ [sic] written notice.

The second agreement was executed by Wright and Plotseneder on October 3, 1994 (“Development Agreement”). The Development Agreement obligated Plotseneder to fix flaws in two software products owned by Quadron and Fischer International. Under the Development Agreement, the two companies were to provide funding for Plotseneder’s remedial work, and when the products were fully developed, Plotseneder had the exclusive right to market them under Quadron’s name and from its offices. Quadron and Fischer International were required to pay Plotseneder 50 percent of the net revenues from the sales proceeds. The Development Agreement provided for an initial term of three years, “regardless of the employment situation between [Plotseneder and Quadron],” and was automatically renewed unless cancelled by either party.

It appears that the parties’ relationship rapidly deteriorated, and on November 28, 1994, Quadron terminated Plotseneder’s employment. Plotseneder subsequently filed the instant complaint against Quadron and Fischer International. Among other claims, Plotseneder contended that Quadron owed him $6,030 for breaching the Sales Agreement. Plotseneder also sought specific performance of the Development Agreement, and in his deposition, he testified that, in the alternative, he wanted $500,000.

Quadron and Fischer International moved for summary judgment on all of Plotseneder’s claims. The trial court granted the motions on all the claims except those arising out of the Sales Agreement and the Development Agreement. In its order, the trial court also noted that, “[a]lthough Plaintiff initially sought damages in the alternative on [his claim under the Development Agreement], he . . . informed the court at oral argument that he will only seek specific performance on said agreement.” This appeal ensued.

1. Appellants point to several alleged ambiguities in the Sales Agreement and argue that it was too indefinite to be enforceable. Thus, they assert, they are entitled to summary judgment on Plotseneder’s claim for commissions due under the Sales Agreement. We disagree.

To be enforceable, a contract’s language must be

sufficiently plain and explicit to convey what the parties agreed upon. . . . [I]t is unnecessary that a contract state definitively and specifically all facts in detail to which the parties may be agreeing, but as to such matters, it will be sufficiently definite and certain if it contains matters which will enable the courts, under proper rules of construction, to ascertain the terms and conditions on which the parties intended to bind themselves. We must look to the actions of the parties to determine whether they intended to be bound by the terms of their agreement.

The law does not favor “the destruction of contracts on the ground of uncertainty if it is possible in the light of the circumstances under which the contract was made to determine the reasonable intention of the parties.”

The Sales Agreement in this case was sufficiently definite to be enforceable. Under its terms, Quadron agreed to pay Plotseneder a ten percent commission if he sold one of its products directly and five percent if the sale was closed by a third party. The agreement provided for an identical commission structure if Plotseneder sold Fischer International products, but only if Quadron and Fischer International first agreed to sell each other’s products. Finally, the Sales Agreement contained a commencement date, provided for an initial term of 19 months, and was limited to sales outside of North America. Thus, the agreement stated the nature of the services to be provided, the place those services were to be provided, the compensation to be paid for those services, and the term of the agreement. There is no evidence that appellants ever rejected, or even questioned, these provisions. To the contrary, the evidence shows that Quadron paid Plotseneder commissions under the Sales Agreement. Thus, viewing the evidence in a light most favorable to Plotseneder, we conclude that the Sales Agreement sufficiently conveyed what the parties agreed upon.

Appellants nevertheless argue that it is unenforceable because the first numbered paragraph references a “proposal” concerning expenses, and Plotseneder has not produced or adequately explained the proposal. Plotseneder testified in his deposition, however, that the provision concerning expenses was not an important part of the agreement, and appellants have not pointed to any evidence showing it was an essential term. Moreover, as stated above, Quadron had paid Plotseneder commissions under the Sales Agreement, thus indicating that the parties did not consider the proposal essential in determining when Quadron was obligated to pay commissions or the amount of the commissions. “The construction placed upon a contract by the parties thereto, as shown by their acts and conduct, is entitled to much weight and may be conclusive upon them.” Accordingly, this argument is without merit.

Appellants also argue that the Sales Agreement was unenforceable because it did “not identify the products the sale of which would generate the specified commissions.” Neither, however, did the Sales Agreement restrict the scope of such products. While appellants apparently urge that the agreement was limited to sales of only certain Quadron products, they have cited no evidence supporting such restriction, and the contract language does not indicate that the parties intended to limit its scope in this manner. Accordingly, we do not find that the Sales Agreement was unenforceable because it lacked such an essential term.

Finally, we also disagree with appellants’ argument that the Sales Agreement was unenforceable because the parties left certain terms to be negotiated in the future. In support of this assertion, appellants point to a crossed-out provision in paragraph two of the agreement, which states that the commissions also apply to certain sales of products by Fischer International. The omitted provision is accompanied by a handwritten annotation reading “to be determined,” and appellants contend that this reflects that the term was left to future negotiations. But this uncertainty does not preclude a finding that the parties agreed that Quadron would pay Plotseneder commissions for the other sales addressed in paragraph two of the agreement. And, although appellants further assert that the proposal referenced in paragraph one also reflects that terms were left to future negotiations, as discussed above, evidence shows that the expense proposal was not a material term of the agreement. Accordingly, there is sufficient evidence from which a jury could find that the parties entered an enforceable contract, and the trial court did not err in partially denying appellants’ motion for summary judgment on this basis.

2. Appellants next assert that the trial court erred in denying summary judgment on Plotseneder’s claim for breach of the Sales Agreement because he failed to produce any evidence that they breached the alleged agreement or that he suffered damages. We disagree.

During Plotseneder’s deposition, appellants questioned him about the commissions he was claiming under the Sales Agreement. Plotseneder testified that he was seeking $6,030 for “European sales” activity. Later in his deposition, appellants questioned Plotseneder about a letter he sent to Quadron’s president concerning commissions for European sales. The letter reflects three “European Sales” totaling $60,300 and Plotseneder’s claim for a ten percent commission of $6,030. Plotseneder testified that this letter represents the commissions he is claiming under the Sales Agreement. From this evidence, a jury could reasonably find that Plotseneder completed these European sales and is owed $6,030 in commissions under the Sales Agreement. Thus, summary judgment was properly denied on this claim.

3. The trial court erred, however, in failing to grant appellants summary judgment on Plotseneder’s claim for specific performance of the Development Agreement.

Specific performance of a contract, if within the power of the party, will be decreed, generally, whenever the damages recoverable at law would not be an adequate compensation for nonperformance. OCGA § 23-2-130. Accordingly, when there is a mere breach of a personal contract, for which the defendant is liable in damages, and it is not shown that irreparable injury will result, unless the contract be specifically performed, a Court of Equity will not decree such specific performance.

In this case, appellants assert that Plotseneder has not shown that he would be irreparably injured unless the Development Agreement is enforced. Moreover, they point out, Plotseneder testified in his deposition that money damages would adequately compensate him for the alleged breach. In the cited testimony, Plotseneder stated that he had calculated the damages he would suffer if appellants fail to perform under the Development Agreement: “I have made certain assumptions based on business case numbers, projections from market research institutes, and it’s approximately $500,000.”

In response, Plotseneder does not argue that such damages would be inadequate. Neither does he point to evidence showing that he would be irreparably injured if the agreement is not enforced. Indeed, Plotseneder failed to address the irreparable harm requirement when the issue was raised below, and in his appellate brief, he merely argues that summary judgment was properly denied because the agreement is enforceable. That is hardly sufficient to withstand appellants’ motion for summary judgment.

Where, as here, a defendant has moved for summary judgment and demonstrated that there is “an absence of evidence to support the plaintiff’s case[,] . . . the plaintiff cannot rest on his pleadings, but rather must point to specific evidence giving rise to a triable issue.” Considering Plotseneder’s total failure to address the issue, and in light of his deposition testimony, we cannot say that he

has taken [himself] out of the general rule that when there is a mere breach of a personal contract, for which the defendant is liable in damages, and it is not shown that irreparable injury will result, unless the contract be specifically performed, a Court of Equity will not decree such specific performance.

Decided July 2, 2002.

Paul, Hastings, Janofsky & Walker, John G. Parker, Joseph C. Sharp, Nicole L. Day, for appellants.

Sabiston & Smith, Eric P. Sabiston, for appellee.

Accordingly, the trial court erred in denying appellants summary judgment on this claim.

Judgment affirmed in part and reversed in part.

Pope, P. J., and Barnes, J., concur.

       (Citation and punctuation omitted.) Hansen v. Cooper, 253 Ga. App. 533, 535 (559 SE2d 740) (2002).

       See id. at 533.

       In his deposition, Plotseneder testified that he was initially employed by Fischer International. But his testimony also shows that, at some unspecified time, he began working for Quadron.

       Plotseneder also appealed the trial court’s partial grant of summary judgment to Quadron and Fischer International, but his appeal was dismissed because he failed to file a brief and enumerations of error. See Plotseneder v. Quadron Software Intl. Corp., Case No. A02A0166 (order entered November 19, 2001).

       (Citations and punctuation omitted.) Pacrim Assoc. v. Turner Home Entertainment, 235 Ga. App. 761, 764 (1) (510 SE2d 52) (1998).

       (Punctuation omitted.) Gram Corp. v. Wilkinson, 210 Ga. App. 680, 681 (1) (437 SE2d 341) (1993).

       See Pacrim Assoc., supra at 765 (observing that, in Touche Ross & Co. v. DASD Corp., 162 Ga. App. 438,440 (2) (292 SE2d 84) (1982), the Court held that “the contract’s broad language as to the scope of work to be accomplished by the defendant was not found too indefinite or vague, because the parties ‘entered into performance of the contract without raising any question as to its legal significance, and continued for a period of approximately five months’ ”); Wilkinson, supra at 681-682 (holding that “[w]here, as here, the parties abided by the terms of the contract without dispute for approximately two years, it was not error to find it to be enforceable”).

       See Pacrim Assoc., supra; Toncee, Inc. v. Thomas, 219 Ga. App. 539, 540 (2) (466 SE2d 27) (1995).

       (Punctuation omitted.) Id. at 541.

       See Pacrim Assoc., supra at 766.

       See id.; Toncee, supra at 542; Wilkinson, supra.

       (Punctuation omitted..) Eickhoff v. Eickhoff, 263 Ga. 498, 500-501 (2) (435 SE2d 914) (1993), overruled on other grounds, Lee v. Green Land, Co., 272 Ga. 107, 108 (527 SE2d 204) (2000).

        Kaylor v. Atwell, 251 Ga. App. 270, 272 (2) (553 SE2d 868) (2001).

       (Punctuation omitted.) Eickhoff \ supra at 502.

       See id.


text:
    A02A0173.
    DEMPSEY v. BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA.
    (568 SE2d 154)
   Miller, Judge.

A plaintiff injured by employees of a State agency failed to notify the State of her claim in writing prior to filing suit against the agency. Following the dismissal of her suit, plaintiff appeals, contending that she substantially complied with the ante litem notice requirements in that an agency employee (on plaintiff’s behalf) notified the State through a letter sent by first class mail. Substantial compliance, however, is inadequate. Since the letter was inadequate notice and was not sent via approved means, the trial court correctly dismissed the suit.

Jessica Dempsey, a student at the University of Georgia, was injured in September 1998 when university employees cut a tree limb that fell on her. A university official (Jay Toci) contacted her and told her he would notify the proper authorities, on her behalf, so that her claim would comply with the notice requirements of the Georgia Tort Claims Act (GTCA). See OCGA § 50-21-20 et seq. Three months later, Toci sent a letter via first class mail to the Department of Administrative Services (DOAS) Risk Management Division, telling them of the incident and concluding that there might be future medical treatments for which Dempsey might need compensation. Over the next three months, an insurance adjuster contacted Dempsey, verbally and in writing, to obtain further information on the claim. The parties exchanged no other relevant writings.

In September 2000, Dempsey sued the Board of Regents of the University System of Georgia under the GTCA to recover damages for the injury. The Board moved to dismiss the complaint on the ground that Dempsey had failed to comply with the ante litem notice requirements of OCGA § 50-21-26. The court granted the motion and dismissed the complaint for lack of subject matter jurisdiction. Dempsey appeals, arguing that she substantially complied with the notice requirements. Specifically, she contends that the Toci letter constituted adequate notice under OCGA § 50-21-26 (a).

OCGA § 50-21-26 (a) (1) provides that no person may bring a GTCA action against the State without first giving notice of the claim in writing within 12 months of the discovery of the loss. OCGA § 50-21-26 (a) (2), prior to an amendment applicable only to notices delivered on or after July 1, 2000 (see Ga. L. 2000, pp. 1589, 1608, 1617, §§ 3, 16), mandated the manner of delivering the notice:

Notice of a claim shall be given in writing and shall be mailed by certified mail, return receipt requested, or delivered personally to and a receipt obtained from the Risk Management Division of the Department of Administrative Services. In addition, a copy shall be delivered personally to or mailed by first-class mail to the state government entity, the act or omissions of which are asserted as the basis of the claim.

See Ga. Ports Auth. v. Harris, 274 Ga. 146, 149-150 (2) (549 SE2d 95) (2001).

Paragraph (3) of subsection (a) warns that no action against the State under the GTCA “shall be commenced and the courts shall have no jurisdiction thereof unless and until a written notice of claim has been timely presented to the state as provided in this subsection.” OCGA § 50-21-26 (a) (3). Indeed, “[a]ny complaint filed pursuant to this article must have a copy of the notice of claim presented to the Department of Administrative Services together with the certified mail receipt or receipt for other delivery attached as exhibits.” Former OCGA § 50-21-26 (a) (4) (applicable to this action).

Further, it is clear that the State cannot waive subject matter jurisdiction. “Subject-matter jurisdiction is established by our laws, and there is nothing parties to a suit can do to give a court jurisdiction over a matter that has not been conferred by law.” (Citation and punctuation omitted.) Mitchell v. Mitchell, 220 Ga. App. 682, 683 (2) (469 SE2d 540) (1996). Thus, failure to give the requisite notice routinely results in dismissals for want of subject matter jurisdiction. See, e.g., Howard v. State of Ga., 226 Ga. App. 543, 544-545 (1) (487 SE2d 112) (1997).

Conceding that she herself sent no such notice to DOAS with a copy to the Board, Dempsey contends that the letter sent by Board employee Toci to DOAS fulfilled that requirement. She further argues that the notice was delivered personally to DOAS and that the receipt of that personal delivery was a letter sent to her by an outside insurance adjuster who on behalf of the Board was requesting further information on her medical expenses. She concludes that since the State had actual notice of the claim, and since Toci had assured her that he would send all appropriate notices, the purposes of the notice requirement were met.

Dempsey’s arguments ignore the strong, unyielding language of the statute, of the Supreme Court of Georgia, and of this Court mandating that we strictly interpret the notice requirements of the GTCA and that potential plaintiffs strictly comply with those requirements. The GTCA, “by its own terms, must be strictly construed.” Howard, supra, 226 Ga. App. at 543 (1); accord Harris, supra, 274 Ga. at 150 (2); Kim v. Dept. of Transp., 235 Ga. App. 480, 481 (2) (510 SE2d 50) (1998); see OCGA § 50-21-23 (b). “Substantial compliance with the ante litem notice requirement is inadequate under the Act. [Cits.]” Grant v. Faircloth, 252 Ga. App. 795 (556 SE2d 928) (2001); accord Williams v. Ga. Dept. of Human Resources, 272 Ga. 624 (532 SE2d 401) (2000); McGee v. State of Ga., 227 Ga. App. 107, 108-109 (1) (487 SE2d 671) (1997). “Strict compliance with OCGA § 50-21-26 (a) is required. [Cits.]” Kim, supra, 235 Ga. App. at 481 (2).

Viewed in the light of strict construction and strict compliance, Dempsey’s arguments fail for at least three reasons. First, Toci’s letter to DOAS does not fulfill the notice requirement. This letter, which was not sent by Dempsey or by her attorney, was not a notice of claim based on her “knowledge and belief.” See OCGA § 50-21-26 (a) (5). Rather, it was an intragovemmental letter from one state agency to another regarding the author’s knowledge of the incident and of the status of Dempsey’s resulting injuries. Indeed, the letter does not purport to be a notice of Dempsey’s claim to compensation, but merely observes that “a claim should be initiated just in case future medical treatments are required and there is a need to compensate this student.” (Emphasis supplied.) No “amount of the loss” is set forth as required by OCGA § 50-21-26 (a) (5).

Second, even if the letter were sufficient, it was not sent via certified mail nor was it delivered personally to the DOAS representative. The undisputed evidence shows that the letter was sent via first-class mail with no copy to the Board. This was insufficient. As reiterated by the Supreme Court of Georgia, under the plain language of OCGA § 50-21-26 (a) (2) the notice “must be mailed by certified mail, return receipt requested, or delivered personally to the Risk Management Division of the Department of Administrative Services; and a copy must be mailed or delivered to the state government entity whose acts or omissions serve as the basis for the claim.” (Footnote omitted; emphasis supplied.) Williams, supra, 272 Ga. at 625; accord Norris v. Dept. of Transp., 268 Ga. 192-193 (486 SE2d 826) (1997). Our Court has concurred: “[T]he State Tort Claims Act cannot be considered unclear or at all open-ended about the service aspect of its ante litem notice provision. In fact, it cannot get any more specific. . . .” Howard, supra, 226 Ga. App. at 544 (1). “OCGA § 51-21-26 (a) specifically sets forth the manner in which and to whom the required notice must be given.” (Emphasis supplied.) Kim, supra, 235 Ga. App. at 481 (2). “The explicit ante litem notice provision of the State Tort Claims Act is ignored only at peril to a plaintiff’s cause of action.” Howard, supra, 226 Ga. App. at 545 (1).

Decided July 2, 2002

England & England, J. Melvin England, for appellant.

Thurbert E. Baker, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Loretta L. Pinkston, Senior Assistant Attorney General, J. David Stubins, Assistant Attorney General, for appellee.

Third, Dempsey’s observation that the requisite state agencies had actual notice carries no weight, as this fact has previously been held to be irrelevant. McGee, supra, 227 Ga. App. at 108-109 (1). Nor does the fact that Toci stated he would handle all requisite notices play any role, as a government official may not waive or be estopped from invoking statutory notice requirements. Gillingwater v. City of Valdosta, 177 Ga. App. 241-242 (2) (339 SE2d 287) (1985); see OCGA § 45-6-5; cf. Howard, supra, 226 Ga. App. at 545 (1).

Dempsey failed to comply with the explicit notice requirements of the GTCA. The trial court therefore did not err in dismissing the complaint for want of subject matter jurisdiction.

Judgment affirmed.

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


author: MlKELL, Judge.

text:
    A02A0404.
    ELLIS v. STANFORD et al.
    (568 SE2d 157)
   MlKELL, Judge.

Margarethia G. Ellis and her husband, Clarence Ellis, signed a contract for the sale of their home to William Brent Stanford and Angela Stanford. Shortly thereafter, Mr. Ellis sued Ms. Ellis for divorce. Ms. Ellis refused to close on the sales contract, and the Stanfords sued her for specific performance and attorney fees. The trial court granted the requested relief, and Ms. Ellis appeals. We affirm.

1. Initially, we address the Stanfords’ motions to dismiss this appeal based on the failure of Ms. Ellis’s counsel, Lecora Bowen, to serve a copy of her brief on opposing counsel. Under Court of Appeals Rule 1 (a), “[a]ll filings, documents, motions, briefs . . . shall show that copies have been furnished to opposing counsel. . . . Service shall be made before filing. Any document without a Certificate of Service will not be accepted for filing.” Ellis’s brief, filed on January 18, 2002, contains no certificate of service. The Stanfords’ counsel ultimately obtained a copy through diligent inquiry with the clerk of this Court. Thereafter, counsel was granted an extension of time in which to file a responsive brief. Although Bowen clearly violated this Court’s rule, the Stanfords have not been prejudiced, because we affirm the judgment below. Therefore, the motions to dismiss this appeal are denied.

2. Ms. Ellis enumerates as error the order denying her motion to recuse the trial judge. Additionally, she assigns error to the dismissal of her notice of appeal as it related to that order.

Denials of motions to recuse are interlocutory in nature. An appeal of such an order requires compliance with the interlocutory appeal provisions of OCGA § 5-6-34 (b). Ms. Ellis did not comply with those procedures, and the trial court was correct in dismissing the notice of appeal. However, interlocutory orders are reviewable upon appeal from the final judgment. “[OCGA] § 5-6-34 (d) permits an order that, standing alone, would be subject to the application requirements of § 5-6-34 (b) to be added to the appeal of an order that is directly appealable.”

On the merits, however, we find no error in the denial of Ms. Ellis’s motion to recuse. Uniform Superior Court Rule 25.1 requires that a recusal motion be filed and presented to the judge “not later than ten (10) days prior to the hearing or trial which is the subject of recusal or disqualification, unless good cause be shown for failure to meet such time requirements. In no event shall the motion be allowed to delay the trial or proceeding.” In this case, the recusal motion was filed one week after trial and the day before a hearing on the Stanfords’ motion to hold Ms. Ellis in contempt of the trial court’s order requiring her to execute a deed and other documents necessary to convey the property to the Stanfords. It was not brought to the court’s attention until the contempt hearing. The motion, therefore, was untimely filed.

Nevertheless, after Bowen complained that the court had “fast tracked” the case, the court apparently determined that “good cause” had been shown for the delay in filing the motion, because the court permitted Bowen to state the grounds for recusal. Ms. Ellis sought to disqualify the judge because Mr. Ellis, the mayor of Macon, had appointed the judge to serve on a diversity committee comprising 80 members of the community. The judge noted that he had attended one meeting in a crowded city auditorium. The judge also explained that he was not a close personal friend of the mayor and that neither man had visited the other’s home. Finally, the court pointed out that the mayor was not a party to the action.

The Stanfords moved to dismiss the motion, but the judge declined, deciding to refer the matter to the chief judge for a hearing pursuant to USCR 25.3. After a hearing, which was not transcribed, the chief judge denied the motion. Pretermitting whether Ms. Ellis waived appellate review of this issue by failing to provide a transcript, her motion stated no valid ground for recusal. The Code of Judicial Conduct, Canon 3 (E) Disqualification (1), states: “Judges shall disqualify themselves in any proceeding in which their impartiality might reasonably be questioned, including but not limited to instances where: (a) the judge has a personal bias or prejudice concerning a party. . . .”

“Impartiality might reasonably be questioned” means a reasonable perception, of lack of impartiality by the judge, held by a fair minded and impartial person based upon objective fact or reasonable inference; it is not based upon the perception of either interested parties or their lawyer-advocates, seeking to judge shop and to gain a trial advantage, because both of their credibility is suspect from self-interest.

“[K]eeping in mind the reality that any judge will have ‘come to the bench after having had extensive contacts with the community,’ ” we conclude that appointment to a committee of 80 members, without more, is not enough to call into question the trial judge’s impartiality in this case. The limited relationship between the mayor and the judge did not warrant recusal.

3. In her second enumeration of error, Ms. Ellis argues that the trial court erred in denying her “motion to set aside judgment.” However, no such order appears in the record. In her fifth enumeration of error, Ms. Ellis complains that the trial court allowed her insufficient time for discovery. Neither enumeration is supported by reasoned argument or citation to authority. Therefore, each enumerated error is deemed abandoned pursuant to Court of Appeals Rule 27 (c) (2).

4. Ms. Ellis next contends that the trial court erred in denying her constitutional right to trial by jury. We disagree. There is no constitutional right to a jury trial in equity cases, and an action for specific performance lies in equity.

5. We construe Ms. Ellis’s fourth enumeration as a challenge to the sufficiency of the evidence. “Appeals from bench trials, where the trial judge sits as the trier of fact and has the opportunity to assess the credibility of the witnesses, are reviewed under the clearly erroneous standard. And we will not disturb a trial court’s findings if there is any evidence to support them.” In the instant case, ample evidence supports the trial court’s findings that on March 30, 2001, the Stanfords, as well as Mr. Ellis, were ready, willing, and able to close on the property, that they executed the closing documents, and that Ms. Ellis refused to execute the documents because she had learned after signing the sales agreement that Mr. Ellis was divorcing her. Ms. Ellis never attacked the validity of the agreement. Indeed, Ms. Ellis did not appear at trial, and no evidence was presented on her behalf. This enumeration is meritless.

6. Ms. Ellis challenges the trial court’s order awarding $7,000 in attorney fees to the Stanfords under OCGA § 9-15-14 (a). Ms. Ellis first argues that the judgment should be reversed because she was not stubbornly litigious. However, OCGA § 9-15-14 (a) does not require a finding of stubborn litigiousness. Rather, the trial court must award reasonable and necessary attorney fees under this Code section where the offending party’s position displayed “such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept” it. The statute applies to conduct occurring during the litigation. OCGA § 13-6-11, on the other hand, permits an award of attorney fees where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense. It applies to conduct arising from the underlying transaction.

An award based on OCGA § 9-15-14 (a) will be affirmed if there is any evidence to support it. In this case, the trial court made detailed findings of fact, based upon ample evidence of record, which support its conclusion that Ms. Ellis lacked a viable defense to the action. Ms. Ellis claims that she did not close on the property because the survey had not been completed. However, she presented no evidence to substantiate this theory; her brief cites only to arguments of counsel made during the hearing on attorney fees. “ [I] t is a basic principle of evidence law that such argument is not evidence.” The contract, in paragraph 5 (c), does not require a survey. According to the contract, if a survey were performed and it revealed discrepancies, the buyers, not the sellers, could avoid performance. A survey would in no way benefit the sellers. It was frivolous for Ms. Ellis, a seller, to argue that she refused to close because the closing attorney was tardy in ordering a survey.

Ms. Ellis next argues that the amount awarded, $7,000, was speculative. She is correct that a “determination of the amount of attorney fees cannot be based on guesswork or speculation.” However, such was not the case here. At the hearing, held on June 1, 2001, the Stanfords’ lead counsel, L. Robert Lovett, tendered a “prebill” into evidence which reflected fees of $3,582.90 through May 3, 2001. Lovett’s associate, Bridgette M. Cooper, testified that the prebill did not include her time at two hearings and that she arrived at the figure of $7,000 after reviewing time sheets for herself, lead counsel, and a paralegal. Specifically, Cooper testified that she performed 45 hours of work on the case, and her billing rate was $100 per hour. She further testified that Lovett had worked 22 hours at a rate of $155 per hour, totaling $7,910 for the two attorneys. Approximately 15 of Lovett’s hours are documented in the pre-bill. In addition, Cooper submitted an affidavit stating that the Stanfords had incurred legal fees of $5,585 through May 9, 2001. We find this evidence sufficient to support the trial court’s award of $7,000 in fees.

7. The Stanfords request damages for frivolous appeal pursuant to OCGA § 5-6-6. Although we find no merit in the appeal, we cannot conclude it was asserted for purposes of delay only. Accordingly, the motion is denied.

Decided July 2, 2002.

Lecora Bowen, for appellant.

Lovett, Cowart & Ayerbe, L. Robert Lovett, Bridgette M. Cooper, for appellees.

Judgment affirmed.

Andrews, P. J, and Phipps, J., concur.

        Rolleston v. Glynn County Bd. of Tax Assessors, 213 Ga. App. 552, 553 (445 SE2d 345) (1994).

        Martin v. Williams, 263 Ga. 707, 710 (3) (438 SE2d 353) (1994); accord Reliance Ins. Co. v. Cobb County, 235 Ga. App. 685, 686 (510 SE2d 129) (1998).

       Although Ms. Ellis initially filed a cross-claim against Mr. Ellis, she later dismissed it.

        Baptiste v. State, 229 Ga. App. 691, 694 (1) (494 SE2d 530) (1997).

       (Citation omitted.) Sears v. State, 262 Ga. 805 (1) (b) (426 SE2d 553) (1993).

       Id.

        Clayton v. Deverell, 257 Ga. 653, 656 (6) (362 SE2d 364) (1987).

        Cawthon v. Douglas County, 248 Ga. 760, 762 (1) (286 SE2d 30) (1982); A&D Asphalt Co. v. Carroll & Carroll of Macon, 247 Ga. App. 77, 79 (1) (543 SE2d 397) (2000).

       (Citation and punctuation omitted.) Paul Dean Corp. v. Kilgore, 252 Ga. App. 587, 590 (1) (556 SE2d 228) (2001).

       The order holds Ms. Ellis and Bowen jointly and severally liable based upon a finding that the action was “unreasonably defended because of unprofessional legal advice given to [Ms. Ellis] by her attorney. . . .”

        Stone v. King, 196 Ga. App. 251, 253 (3) (396 SE2d 45) (1990).

       Id. We note that the complaint prayed for attorney fees pursuant to both OCGA §§ 13-6-11 and 9-15-14.

        Haggard v. Bd. of Regents &c. of Ga., 257 Ga. 524, 527 (4) (c) (360 SE2d 566) (1987).

        City of Atlanta v. Heard, 252 Ga. App. 179, 182 (1) (555 SE2d 849) (2001).

        Redwine v. Windham, 237 Ga. App. 149, 151 (513 SE2d 13) (1999).