author: Birdsong, Presiding Judge. Beasley, Judge,

text:
    A92A0709.
    CONTINENTAL RESEARCH CORPORATION v. REEVES et al.
    (419 SE2d 48)
   Birdsong, Presiding Judge.

Appellant Continental Research Corporation (CRC) appeals from a judgment entered in favor of appellees in a products liability case involving inter alia allegations of improper labeling and a claim for loss of consortium, and from an order denying appellant’s motion for new trial.

Appellee Ed Reeves, who specializes in heating, ventilation, air conditioning and refrigeration repair, was injured when he accidentally sprayed Con-Coil air conditioner cleaner inside a glove and got the product on his hands. Con-Coil contains a hydrofluoric acid and this fact was known to Mr. Reeves. Following the accident, Mr. Reeves read the warning label on the product, and promptly washed his hands and gloves with water; he also washed his hands thereafter repeatedly with soap and water. Mr. Reeves continued to work throughout the day and after a period of time, his hands became red and irritated. He went home and informed his wife of the incident. Mr. Reeves’ condition worsened during the evening and his hands became increasingly painful notwithstanding various home remedies. Mrs. Reeves’ concerns mounted. She read the label on the Con-Coil bottle and, remaining unsatisfied, called Poison Control. Mrs. Reeves was advised to take her husband for emergency medical treatment without delay. The local medical facility was unfamiliar with the nature of Mr. Reeves’ injury and he was referred to a larger facility. Ultimately, he was injected with a medication used to counteract the hydrofluoric acid. Mr. Reeves sustained permanent damage to his hands.

The Con-Coil label did not specifically advise a person to seek medical treatment immediately if his skin came in contact with the product. Neither did the label warn the user that Con-Coil contains a fluoride ion which can cause the substance to penetrate the skin rapidly, and can result in severe injury below the outer skin surface without causing any visible burning, corrosion or damage to the surface of the skin. The need for these warnings was contested. The label did include, inter alia, a graphic. The lower diagonal of the graphic contained the word “CORROSIVE,” and the top diagonal contained two pictorial representations, including a depiction of a hand being eaten away when coming into contact with a substance poured from a vial. The written label stated the product contained certain “HAZARDOUS MATERIAL,” including hydrofluoric acid. It also warned that skin contact can cause severe burns, and to “wash thoroughly with water for both eyes and skin contact. Get medical aid if necessary.” Additionally, the label stated, “it is not harmful to equipment (aluminum or cooper) when used as directed.” Appellees in essence maintain that the label misled Ed Reeves and lulled him into failing to seek immediate medical attention, which would have prevented the permanent injury he sustained. Appellees introduced expert testimony that hydrofluoric acid could penetrate the skin and cause damage below the surface without being apparent to the person injured. The expert also testified that once contact occurred with hydrofluoric acid it was important to obtain immediate medical attention as the damage can be stopped only by the injection of calcium gluconate or other neutralizing substance; and, that while soap and water will neutralize the acid on the skin surface area to some extent, it cannot neutralize acid that has deeply penetrated and that does require specific emergency treatment. Although these contentions were strongly contested, the jury resolved contested issues of fact and rendered a verdict in favor of appellee/plaintiffs. Held:

1. Appellant, a foreign corporation, asserts it was not subject to personal jurisdiction of the court under the Long-Arm Statute of this state and for want of sufficient “minimum contact” to satisfy due process requirements. In resolving this jurisdictional issue, this court may consider all relevant evidence wherever located in the trial record.

At the time of his injury in Georgia, Ed Reeves lived and worked in Georgia; he and his wife subsequently moved to Texas to be close to her relatives. At the time of suit they were Texas residents. CRC is in the business of manufacturing chemical solvents which it sells to air conditioning wholesalers through manufacturers’ representatives. CRC has no registered agent for service of process in Georgia, and has no office, no employees and no property in Georgia. The Con-Coil in question was purchased by Ed Reeves from a Baker Brothers store in Georgia. CRC apparently shipped the Con-Coil originally to its wholesale customer, Baker Brothers of Jacksonville, Florida. CRC officials were aware that Baker Brothers had six or more outlet stores in Georgia, and CRC was aware that Con-Coil would be sold in Georgia. In the normal course of business, CRC sells its products through manufacturer’s representatives who are given a territory. One of those representatives had a territory that included the states of Georgia and Florida. Although CRC does not sell its product directly to individual users in Georgia, a CRC manufacturers’ representative sells and promotes Con-Coil sales to customers in this state, and CRC receives the income from the sale of its products in Georgia. Products are shipped to wholesale customers by CRC and this includes shipments of products to customers in Georgia; however, title to the products transfers to customers at CRC’s shipping dock in Dallas, Texas. Rather than billing the manufacturers’ representative for products shipped, CRC invoices the customer and the customer pays CRC directly; CRC then pays the representative his commission. CRC does advertise in certain so-called national publications, but does not advertise in any publications that are exclusively for the Atlanta or Georgia area. CRC wants its product sold nationwide, including sales in Georgia, and it is not merely coincidental that its products are sold in this state. CRC manufacturers’ representatives take steps to see that the product is sold in Georgia, and CRC instructs the representatives to take steps to so sell the product. CRC wants the manufacturers’ representatives to sell as much of the product as they can in Georgia. CRC has gross sales of about $1,500,000; however, CRC sells less than three percent of the gross sales of its products in Georgia so its president does not consider shipments to be made regularly to the state. It may be reasonably inferred that as CRC sells less than three percent of its gross sales of products in Georgia, it perforce sells more than two percent of such gross sales in this state. Therefore, it may reasonably be concluded that CRC sold annually between $30,000-$45,000 worth of products in Georgia and, in our view, this would constitute “substantial revenue” from CRC goods used or consumed within this state, within the meaning of OCGA § 9-10-91 (3).

The manufacturers’ representative contract CRC entered with Mr. Dunbar in January of 1985 was to sell and promote CRC’s products to wholesale distributors exclusively in a seven-state area, including both Florida and Georgia. CRC considers these manufacturers’ representatives to be independent contractors who may represent other product lines as well and asserts it cannot tell them what to do or require them to give technical data sheets about Con-Coil to their wholesale customers. The representatives are paid a commission on all orders received within their territory whether submitted to CRC by the representative or submitted directly from an area distributor. The contract specified that representatives were independent contractors. It also provided the manner in which commissions would be determined, and granted the company the absolute right to set product prices and the terms governing the sales of CRC products.

Appellant asserts that it was not doing business in Georgia within the meaning of the Long-Arm Statute, OCGA § 9-10-91. OCGA § 9-10-91 pertinently provides: “A court of this state may exercise personal jurisdiction over any nonresident or his executor or administrator, as to a cause of action arising from any of the acts, omissions, ownership, use, or possession enumerated in this Code section, in the same manner as if he were a resident of the state, if in person or through an agent, he: ... (3) Commits a tortious injury in this state caused by an act or omission outside this state if the tort-feasor regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this state. ...” (Emphasis supplied.) The Long-Arm Statute of this state contemplates that jurisdiction shall be exercised over nonresident parties to the maximum extent permitted by procedural due process. Coe &c. Co. v. Wood-Mosaic Corp., 230 Ga. 58, 60 (195 SE2d 399). Regarding the term “agent” in OCGA § 9-10-91 and in the “minimum contact” context hereinafter discussed, “we are not . . . dealing with the traditional ‘principal-agency’ theory of respondeat superior. We are concerned with whether a forum state may exercise personal jurisdiction over a nonresident defendant based upon the ‘minimum contact’ theory of International Shoe Co. v. State of Wash., 326 U. S. 310 (66 SC 154, 90 LE 95). ‘(W)ith the liberalization of the due process criteria [cit.], the jurisdictional distinction between agents and independent contractors has begun to fade. Courts treat persons who derive commission revenue [such as the manufacturers’ representative in this case] not in terms of agents or independent contractors, but they view their activities and status, in a realistic commercial light.’ ” Hollingsworth v. Cunard Line, 152 Ga. App. 509, 513 (263 SE2d 190). The issue is, can appellant CRC place its products in the stream of commerce with the intent of achieving nationwide sales and conduct its commercial activity in support of its sales goals through a contractual process with an independent contractor (who, in accordance with CRC sales policy, promotes the establishment of new distributors and sells CRC products to distributors in various states including both Florida and Georgia) and thereby insulate itself from the jurisdiction of our courts, even though CRC’s out-of-state tortious acts or omissions result in injury within this state, merely because it has maintained a substantial portion of its business contact through the self-chosen medium of an independent contractor. We hold that CRC cannot. Clearly Con-Coil has been placed in the stream of commerce by CRC in various states, including Georgia and Florida. “In our opinion, this systematic and purposeful activity establishes that [CRC], through [its independent contractor, manufacturers’ representative] ‘engages in (a) persistent course of conduct, or derives substantial revenue from goods used or consumed ... in this state.’ OCGA § 9-10-91 (3). The sale of goods in another state, knowing that they will be resold in Georgia, is a purposeful activity sufficient to establish a ‘contact’ with Georgia. See Shellenberger v. Tanner, 138 Ga. App. 399, 412 (227 SE2d 266).” Showa Denko v. Pangle, 202 Ga. App. 245, 247 (1) (414 SE2d 658). Compare Coe &c. Co., supra (statement of facts at Coe &c. Co. v. Wood-Mosaic Corp., 125 Ga. App. 845 (189 SE2d 459) and Timberland Equip. v. Jones, 146 Ga. App. 589 (246 SE2d 709).

Regarding the question of due process, appellant, relying on the plurality opinion of Asahi Metal Indus. Co. v. Superior Court of Cal., 480 U. S. 102 (107 SC 1026, 94 LE2d 92), and certain of its lower court progeny, asserts that the “minimum contacts” necessary to satisfy due process requirements have not been met. However, “[j]ust as other courts have done, we conclude the ‘splintered view of minimum contacts in Asahi provides no clear guidance on this issue,’ (Irving v. Owens-Corning Fiberglas Corp., 864 F2d 383, 386 (5th Cir. 1989)) and we choose to apply the stream of commerce analysis set forth by the United States Supreme Court in World-Wide Volkswagen, [444 U. S. 286 (100 SC 559, 62 LE2d 490)] to the facts at hand.” Showa Denko, supra at 250. According to World-Wide Volkswagen, supra at 297, whether the introduction of a product into the stream of commerce establishes minimum contacts with a state in which the product is ultimately sold depends on the foreseeability that the product would be sold there; however, the foreseeability that is critical to due process analysis is not the mere likelihood that the product will find its way to the forum state, rather it is that “ ‘the defendant’s conduct and connection with the forum [s]tate are such that he should reasonably anticipate being haled into court there.’ ” Showa Denko, supra at 248 (2). But, in World-Wide Volkswagen, supra at 297-298, the United States Supreme Court recognized that “ [t]he forum [s]tate does not exceed its powers under the Due Process Clause if it asserts personal jurisdiction over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum [s]tate.” In this case plaintiff Ed Reeves purchased and used appellant’s product in Georgia as a result of appellant’s deliberate and purposeful nationwide distribution attempts, including its express targeting of Georgia as an area for the establishment of distributorships and sale of its product by its independent contractor manufacturers’ representatives. When, as here, a manufacturer from another state sells its product, particularly one with a hazardous potential, to a wholesaler customer from Florida knowing that its product will ultimately be sold in that customer’s wholesale outlets in Georgia, “it should reasonably expect to be haled into court in Georgia for an injury caused in this [s]tate by that product.” Showa Denko, supra, 248. Compare Timberland Equip., supra at 590 (1).

Incidentally, the terms of CRC’s contract with the manufacturers’ representatives for the southern areas, including Georgia and Florida, pertinently provides that: “The company [CRC] reserves the right to direct or conduct, at its own expense, the defense of any suit brought against the Representative by a third person for alleged damage to person or property as a result of use of the Company’s products.” At a minimum, this provision is indicative of CRC’s determination that, under the proper circumstances, it would not consider it too onerous to submit to the jurisdiction of the court suing its manufacturers’ representative in order to protect its own economic interest and the integrity of the product.

Under the attendant circumstances, we conclude that CRC should have reasonably anticipated being haled into court in Georgia. Moreover, in view of CRC’s systematic and purposeful use of manufacturers’ representatives and wholesale distributors to promote and expand its product sales nationwide, including within the boundaries of this sovereign state, we further find that this case would meet the standards for “minimum contacts” established by the plurality in Asahi in addition to those of World-Wide Volkswagen. Compare Showa Denko, supra at 249. Accordingly, we find that, under either theory of “minimum contact,” the trial court had the requisite personal jurisdiction over appellant in this case.

2. Appellant asserts the trial court erred in excluding defendant’s exhibit no. 10, “Symbols for Industrial Safety [NIOSH].” The symbol discussed in the offered exhibit was somewhat similar to but not identical to the corrosive symbol employed in the case at bar. The admission of evidence generally rests in the sound discretion of the trial court. Gene Thompson Lumber Co. v. Davis Parmer Lumber Co., 189 Ga. App. 573, 575 (2) (377 SE2d 15). Viewing the document in its totality, we cannot conclude that the trial court abused its discretion in refusing to admit this exhibit.

Further, appellant asserted in support of its enumeration of error that this exhibit “demonstrated that the National Institute for Occupational Safety and Health had studied and determined that the particular pictogram ... on defendant’s product was the most effective communicator of the hazard.” (Emphasis supplied.) However, one of appellee’s expert witnesses testified affirmatively at trial, by way of deposition, that the diamond symbol that says “corrosive” with those two pictures (of a hand and a rod being eaten by a substance poured from vials) has been passed on by just about everybody as being the best message-giver of a corrosive material. As the pertinent testimony of appellee’s expert conveyed substantially the same information to the jury as contained in the relevant portions of defendant’s exhibit no. 10, we are satisfied that had any error occurred in failing to admit the exhibit, such error would be harmless within the meaning of OCGA § 9-11-61. Nalley Motor Trucks v. Cochran, 200 Ga. App. 487, 488 (408 SE2d 501); see Chester v. State, 162 Ga. App. 10, 14 (290 SE2d 117) (concurring opinion).

3. Appellant asserts the trial court erred in refusing to charge the “open and obvious danger” defense as requested in defendant’s requests to charge nos. 8 and 9. Appellant excepted to the refusal to give these charges on the basis that the “open and obvious” defense is separate from contributory, negligence and different than assumption of the risk, as it is not based upon whether Mr. Reeves knew, but whether “a generic person such as Mr. Reeves should have seen this open and obvious danger.” Pretermitting the accuracy of appellant’s argument is the issue whether his charge requests were adequately adjusted to the evidence and did not create a fair risk of confusing or misleading the jury. Examination of the defendant’s requests to charge nos. 8 and 9 reveals that the requested charges are not adequately adjusted to the evidence. Although the language used by appellate courts in a decision may embody sound law, it is not always proper to employ such language in a charge to the jury. Department of Transp. v. Hillside Motors, 192 Ga. App. 637, 640 (3) (385 SE2d 746). For example, an unadjusted instruction may in view of the other charges given appear ambiguous and mislead the jury as to its application in view of the attendant facts. “A request to charge itself must be correct, legal, apt, even perfect, and precisely adjusted to some principle involved in the case. If any portion of the request is inapt or incorrect, denial of the request is proper.” (Punctuation omitted.) Mattox v. MARTA, 200 Ga. App. 697, 699 (4) (409 SE2d 267). The posture of the evidence of this case, unlike that in Weatherby v. Honda Motor Co., 195 Ga. App. 169, 173 (393 SE2d 64), reflects a factual controversy regarding whether the actual peril confronting Ed Reeves was open and obvious. The existence of any defense based upon the alleged open and obvious nature of the peril was a question for the jury, and the instruction would have to be adjusted to reflect adequately this distinction. For example, the requested charges failed to inform the jury of their duty to determine whether an open and obvious peril existed under the attendant facts. Neither do the charge requests adequately and clearly inform the jury of the legal significance between a factual determination by them whether the peril was latent or patent. It is not error to refuse a charge request that is incomplete. Michelin Tire Corp. v. Crawford, 170 Ga. App. 359, 360 (1) (317 SE2d 336).

■ Additionally, a fair risk exists that the request for charges, as crafted and presented to the trial court, could confuse or mislead the jury into concluding that the trial court had found the danger in fact was open and obvious, and thus that they were required to apply the so-called “open and obvious” rules to the exclusion of the pertinent affirmative defenses charged. The requests for instruction also were confusing as they did not attempt to distinguish this rule adequately from that of the applicable affirmative defenses of which the jury was charged. Thus, Weatherby, supra at 171, admonishes that: “Care should be taken to distinguish between the ‘open and obvious rule’ and the affirmative defenses [when charged] of contributory and comparative negligence and assumption of the risk. . . . While the ‘open and obvious rule’ imposes on a plaintiff the burden of proving that the peril-causing injury is latent, or not patent, the affirmative defenses of contributory and comparative negligence and assumption of the risk require a defendant to prove that a plaintiff’s conduct was unreasonable under the circumstances or that plaintiff knowingly encountered a known danger with appreciation thereof. Thus, jury questions are often presented as to whether the affirmative defenses have been established.” (Emphasis supplied.) Without a tailored instruction which adequately distinguished the “open and obvious” rule from the applicable affirmative defenses, defendant’s request to charge nos. 8 and 9 ran a fair risk of both confusing and misleading the jury. The trial court does not err when it refuses to give a request for charge which, as crafted, creates a fair risk of confusing or misleading the jury when examined in light of the other charges given. See Jones v. State, 200 Ga. App. 519, 521 (2 c) (408 SE2d 823).

4. Appellant asserts the trial court erred in refusing to charge defendant’s request no. 15, “pertaining to the nature of the risk needed to be appreciated under assumption of risk,” after the court had advised counsel the requested charge would be given and defense counsel had argued the case to the jury based upon that information, and the court, thereafter, refused to give the charge.

(a) The charge conference has not been transcribed and attached to the trial record for our examination. Following the charges to the jury, appellant’s counsel took exception to the failure to give charge request no. 15. Appellant asserted that the charge contained a key issue in the case that plaintiff need not know the precise nature of the hazard presented; it is sufficient that he be aware of the hazards in general. Appellant further asserted, “I was under the impression — that could have been in error — that the court was going to charge this.” The trial judge in essence stated on the record that he had gone through the charge requests carefully, had selected the charges he was going to give, and if the court had indicated to counsel the charge would be given it was sorry, as he did not mean to mislead counsel. Appellant thereafter did not contest this explanation on the record. Accordingly, the record before us does not affirmatively establish, as argued by appellant, that the trial court in fact had informed appellant before argument that charge request no. 15 would be given. Without a transcript of the charge conference before us, we cannot resolve this matter. Accordingly, we must presume that the trial court did not erroneously inform appellant that this particular charge would be given verbatim. See generally Nodvin v. West, 197 Ga. App. 92, 97 (3 c) (397 SE2d 581); Hunnicutt v. Hunnicutt, 182 Ga. App. 578, 579 (356 SE2d 679).

(b) Defense charge request no. 15 is based on Whirlpool Corp. v. Hurlbut, 166 Ga. App. 95, 101 (5) (303 SE2d 284), which constitutes physical precedent only. McCurley v. Whitaker Oil Co., 193 Ga. App. 527, 529 (388 SE2d 412). It is asserted in defense request no. 15 that if plaintiff was generally aware the use being made of the product was dangerous he cannot recover from the defendant under either a theory of strict liability or under a theory of negligence, and informed the jury that it was not important that plaintiff knew the precise physical nature of the hazard presented.

A party’s failure to exercise ordinary care to discover the danger is not properly a matter of assumption of the risk, but of the defense of contributory negligence. Beringause v. Fogleman Truck Lines, 200 Ga. App. 822, 824 (4) (409 SE2d 524). Contributory negligence is not a defense to a claim of strict liability for product-caused harm. Deere & Co. v. Brooks, 250 Ga. 517, 518 (1) (299 SE2d 704). Viewing this request to charge in light of the charges actually given and the conflict in the evidence regarding the latent nature of the peril giving rise to the injury, there exists a fair risk that the jury would be confused and misled to believe that contributory negligence is a defense to a claim of strict liability for product-caused harm. Accordingly, the trial court did not err in electing not to give this charge as crafted. Mattox, supra; Jones, supra.

Decided April 30, 1992.

Swift, Currie, McGhee & Hiers, Stephen L. Cotter, Jonathan M. Engram, for appellant.

Freeman & Hawkins, William H. Major III, Edwin L. Hall, Jr., for appellees.

5. Appellant asserts, consistent with the exception taken at trial, that the trial judge erred in giving plaintiffs’ request to charge no. 22, as it was not a statement of Georgia law, and by instructing the jury to “assume” defendant had certain knowledge and information, it relieved plaintiffs of their burden of proof. The specific grounds advanced at trial for objection or exception to a charge control the extent of appellate review of the charge. Clemons v. Atlanta &c. Institute, 192 Ga. App. 399 (1 a) (384 SE2d 881). The charge was a correct expression of Georgia law per se, as stated and adopted in Greenway v. Peabody Intl. Corp., 163 Ga. App. 698, 700 (1) (294 SE2d 541), cert. den. Examining the charges in their totality to determine if the contested charge contains error (Clemons, supra at 401 (1 b)), as alleged, we conclude that the charge would not shift the burden of proof in the minds of jurors of ordinary understanding. It is not necessary in considering a charge to assume a possible adverse construction, but a charge that is sufficiently clear to be understood by jurors of ordinary understanding is all that is required (Purdy v. Quinn, 104 Ga. App. 385, 387 (121 SE2d 699)); and, a charge, which when viewed with all the charges given, substantially presented issues in such a way as would not likely mislead the jury even though a portion thereof may not be as clear and precise as could be desired, will not prompt a reviewing court to disturb a verdict amply authorized by the evidence (as is the verdict in this case). Taylor v. State, 195 Ga. App. 314, 315 (1) (393 SE2d 690).

Judgment affirmed.

Andrews, J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur in all except the statement in Division 4 (b) for which Beringause v. Fogleman Truck Lines, 200 Ga. App. 822, 824 (4) (409 SE2d 524) (1991), is cited. See the dissent in that case.


source: Caselaw Access Project

author: Birdsong, Presiding. Judge.

license: Public Domain

text:
    A92A0171.
    PARSONS v. CHATHAM COUNTY BOARD OF COMMISSIONERS.
    (418 SE2d 459)
   Birdsong, Presiding. Judge.

Appellant, William J. Parsons, appeals from the final order of the superior court making the action of appellee board of Commissioners of Chatham County (board), which had voted to discharge appellant from his duties as Chief Tax Assessor for Chatham County, the judgment of the court. Held:

1. We will entertain this appeal on its merits, as there currently exists some authority for direct rather than discretionary appeal of a final order of the superior court making the decision of a board of county commissioners the judgment of the court. Compare Geron v. Calibre Cos., 250 Ga. 213, 216 (1) (296 SE2d 602) with OCGA § 5-6-35 (a) (1).

2. Appellant asserts the superior court erred “in selecting the three criteria upon which the commissioners could consider discharge in that there was not one scintilla of evidence to indicate that the Chief Tax Assessor was involved in any way in ascertaining the value of the subject property.” Subject property consists of the three separate pieces of property which appellant was charged with having afforded preferential treatment during re-evaluation for tax purposes. “Without setting forth in detail all of the evidence adduced at the hearing, we have nevertheless reviewed such [direct and circumstantial] evidence, and conclude that it supports [both the findings of the board and of the ruling of the court].” Kirton v. Biggers, 135 Ga. App. 416, 418 (3) (218 SE2d 113). “The board of commissioners, as the appointing authority of the board of tax assessors, necessarily has a certain discretion as to the level of performance which it is willing to tolerate. As long as no abuse of such discretion is shown, this court should not substitute its findings of fact or construction of the evidence for that of the governmental body having appointing and removal power.” Id. at 419.

3. Appellant asserts the superior court erred in ruling that the board was empowered to discharge him from his position as Chief Tax Assessor under the provisions of OCGA § 48-5-295 (b). OCGA § 48-5-295 (b) pertinently provides: “A member of the county board of tax assessors may be removed by the county governing authority only for cause shown for the failure to perform the duties or meet the qualifications imposed upon him by law.”

(a) Appellant’s lack of qualifications is not at issue. Appellant argues the superior court eliminated from consideration for removal any charge except that of favoritism in the evaluation of three pieces of property belonging to a certain taxpayer, and that the only applicable statutory basis for removal is “failure to perform the duties . . . imposed upon him by law.” Appellant then concludes “there is not a single bit of evidence which tends to prove that there was a single duty which was not performed by the Chief Tax Assessor. ...” Appellant’s latter conclusion is not supported by the record. There exists sufficient evidence to support the three findings of the board on which discharge of appellant is based. See Division 1 above. At the outset we note that the “duty imposed by law” requirement of OCGA § 48-5-295 (b) refers to any legal duty imposed upon the office holder whether mandatory or directory in nature. Kirton v. Biggers, supra at 418 (2). The affording of preferential treatment to the said three pieces of property, as averred and found, during tax re-evaluation, clearly is a violation of the duties imposed by law upon appellant as a tax assessor. Ga. Const, of 1983, Art. VII, Sec. I, Par. Ill (a) pertinently provides that “all taxation shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax.” Uniformity cannot be obtained when preferential treatment by favoritism in evaluation of an individual taxpayer’s property occurs. Additionally, OCGA § 48-5-306 (a) pertinently provides that the county board of tax assessors “shall see that all taxable property within the county is assessed and returned at its fair market value and that fair market values as between the individual taxpayers are fairly and justly equalized so that each taxpayer shall pay as nearly as possible only his proportionate share of taxes.” (Emphasis supplied.) And this has been the law of Georgia for more than 50 years. Gullatt v. Slaton, 189 Ga. 758, 761 (1) (8 SE2d 47). Additionally, an inherent duty of tax assessors, as is true of all public officers, is to perform their duties in good faith. In fact, it is presumed that public officials perform their official duties lawfully and in good faith. See Butts v. State, 193 Ga. App. 824, 826 (2) (389 SE2d 395) and cases cited therein. See generally OCGA §§ 48-5-293 and 48-5-299 (a) as to a tax assessor’s statutory obligations to perform his duties faithfully and impartially and to require proper return of property for taxation. The giving of preferential treatment to one taxpayer’s property, as charged and established in this case, clearly violates the long-established laws requiring tax assessors to perform their duties in good faith, and to ensure that the fair market value between individual taxpayers is fairly and justly equalized. See Gullatt, supra; Allen v. Norris, 148 Ga. App. 261 (2) and (3) (251 SE2d 145). Incidentally, “[ejveryone is presumed to know the law, and the law never favors those who misinterpret it.” Cheeley v. Henderson, 261 Ga. 498, 503 (405 SE2d 865).

(b) Also within this same enumeration of error, appellant has cited cases which in essence raise the issue of adequacy of notice. An adequate notice is required by necessary implication in removal actions under the provisions of OCGA § 48-5-295. Kirton v. Biggers, 232 Ga. 223, 226 (1) (206 SE2d 33). This issue, however, is not before us on appellate review for the following various reasons. First, the issue is beyond the reasonable scope of the enumeration of error as crafted. “An enumeration of error cannot be enlarged at the appellate level by statements in the briefs of counsel to include issues not made in the enumeration. One cannot expand the scope of review or supply additional issues through a process of switching, shifting, and mending your hold.” (Citations and punctuation omitted.) West v. Nodvin, 196 Ga. App. 825, 830 (4b) (397 SE2d 567). Secondly, OCGA § 5-6-40 requires that each enumeration of error be set out separately. When more than one error is alleged per enumeration, this court, in the exercise of its sound discretion, may elect to review any one or more of the several assertions of error contained within a single enumeration, and treat the remaining assertions of error therein as abandoned. West v. Nodvin, supra at 830 (4c); Robinson v. State, 200 Ga. App. 515, 518 (2) (408 SE2d 820). Accordingly, we elect not to review the issue of adequacy of notice.

However, in the interest of judicial economy, we conclude that whether the notice specifies the Code section or case citation giving rise to the particular duty imposed by law which is deemed to have been violated by the assessor’s averred conduct is but one factor in determining if the notice is adequate. Notice must be unequivocal, and the reason given for the removal action “ ‘ “must be sufficiently clear to apprise the employee of the nature and circumstances prompting his discharge. [However, i]t is enough if the statement or charges are such that the employee would have sufficient knowledge or reason to know the basis on which his removal is sought.” [Cit.] In other words, the charges must be “in terms sufficiently explicit as to enable (the employee) to make an explanation. . . .” ’ ” (Emphasis supplied.) Kirton v. Biggers, supra 135 Ga. App. at 417. “Mere vagaries or generalities are insufficient, and the notice must be ‘sufficiently specific and detailed to convey to the employee the substantial nature of the charge without requiring speculation on his part as to the precise complaint he must answer.’ ” (Emphasis supplied.) Hughes v. Russell, 148 Ga. App. 143, 144 (251 SE2d 70). The removal petition of the board to the superior court pertinently requested a hearing pursuant to OCGA § 48-5-295 (b). The petition stated that petitioner had determined there exists probable cause that appellant had not discharged his duties in an impartial manner and had otherwise failed to perform obligations required by law, and in paragraph 6 thereof specifically and in detail listed the conduct being relied on regarding the partiality shown in the valuation of taxpayers’ properties in support of the charge of failure to discharge duties impartially. The petition did not expressly list, however, the long-standing law imposing a duty on assessors to cause the fair market value of property between individual taxpayers to be fairly and justly equalized. Appellant filed a formal answer in detail and denied, inter alia, the allegations contained in paragraph 6 of the petition. Subsequently, a formal notice of •hearing was served upon appellant prior to the board’s hearing. This notice includes the substance of all the information provided in paragraph 6 of the petition, but also fails to list the sources of law giving rise to the duty to cause the fair market value of properties of individual taxpayers to be fairly and justly equalized. We find that the notice when examined in its totality establishes appellant received an adequate notice within the meaning of Kirton v. Biggers, supra 135 Ga. App. at 417. Like examination of the petition and answer thereto confirms this finding.

4. Appellant asserts the superior court erred in allowing irrelevant evidence which is patently prejudicial. The contested evidence includes, inter alia, testimony regarding appellant’s intoxication and conduct while attending certain county-financed activities, his conduct regarding certain female personnel who were employed in his office, and his attempted display of a jar of dog testicles to a female employee. This testimony was relevant at the hearing conducted by the board to matters reasonably included within the scope of the notice. Georgia law favors the admission of any relevant evidence no matter how slight its probative value; and admission of evidence rests in the sound discretion of the trial court. Whisnant v. State, 178 Ga. App. 742 (1) (344 SE2d 536). Even evidence of doubtful relevancy or competency should normally be admitted and its weight left to the factfinder. See Gene Thompson Lbr. Co. v. Davis Parmer Lbr. Co., 189 Ga. App. 573, 575 (2) (377 SE2d 15). The trial court did not abuse its discretion in allowing the board to hear this testimony. The contested evidence had some relevancy to establish whether appellant had violated a duty imposed on him by law, and accordingly was admissible. For example, tax assessors, as county officials, are subject to the Code of Ethics for Government Service, OCGA § 45-10-1, which establishes certain ethical duties albeit broad and directory in nature. See Pope v. Propst, 179 Ga. App. 211, 213 (345 SE2d 880). Likewise, members of the county board of tax assessors are subject to the more specific ethical duties established by OCGA § 45-10-3, which pertains to “each member of all boards, commissions, and authorities created by general statute. . . .” The county board of tax assessors is established by general statute. OCGA § 48-5-290 et seq. One of the duties expressly prescribed by OCGA § 45-10-3 (8) is that each member of the board shall “[n]ever engage in other conduct which is unbecoming to a member or which constitutes a breach of public trust.” (Emphasis supplied.)

Further, assuming arguendo error occurred in allowing the board to consider this testimony at its hearing, such error was rendered harmless when the trial court reviewed the board’s findings and conclusions and directed the board that they could only discharge appellant for certain specific grounds unrelated to the evidence here contested. This portion of the court’s order had the same effect as a curative instruction not to consider the evidence of appellant’s excessive drinking and harassment of female employees in determining the ultimate issue of removal. Moreover, the resolution of the board clearly reflects the board’s recognition of the trial court’s holding that discharge of appellant could be based only upon paragraphs 1, 2, and 3 of the board’s findings and conclusions. These particular findings related to preferential treatment only and not to appellant’s drinking and harassing conduct. Accordingly, we are satisfied beyond a reasonable doubt that the admission of the contested evidence did not contribute to the board’s decision to dismiss appellant, or otherwise violate appellant’s due process right to a fair hearing. Cf. Moore v. State, 254 Ga. 674, 677 (333 SE2d 605) (harmless error test for error of constitutional magnitude).

5. Appellant asserts the superior court erred in not providing a forum under the auspices of the court, but ordered the parties to conduct the hearing before a tribunal of commissioners who had previously voted to discharge the chief tax assessor without a hearing. The hearing procedure utilized in this case met the requirements of law. Compare Kirton v. Biggers, supra 135 Ga. App. at 416 (1) and Smith v. Turner, 764 FSupp. 632, 640 (9) (N.D. Ga.). Moreover, the superior court expressly provided in its order of February 15, 1991, that the board “shall state specifically the grounds for removal, but shall not act upon the same until [appellant] has had an opportunity to have a hearing before this court as required by OCGA § 48-5-295 (b) should he request one. . . . Should [appellant] seek a hearing before this court on the findings and recommendations of the Commission, then this court will arrange the same. The evidence will be confined to the record . . . unless, for good cause shown, additional evidence should be heard by the court." (Emphasis supplied.) The record does not reflect that appellant thereafter requested a formal hearing within ten days after receiving the findings of the commissioners, as provided for in the superior court’s order. We find the procedure directed by the superior court to be in substantial compliance with the provisions of OCGA § 48-5-295 (b) that “[n]o member of the board who is also employed by the county as a staff appraiser . . . may be removed . . . until the member has been afforded an opportunity for a hearing before the judge of the superior court . . . regarding such removal.” See OCGA § l-3-l(c).

6. Appellant asserts the superior court erred in directing the board to base its final determination upon circumstantial evidence which tended to prove either side of the case when there was no direct evidence to substantiate the decision reached by the commissioners and when there was direct evidence refuting the circumstantial evidence. There exists in the record, as to each of the three findings which the superior court determined would justify the board’s decision to discharge appellant, both direct and circumstantial evidence within the meaning of OCGA § 24-1-1 (3) and (4). Appellant’s enumeration of error as crafted is without merit; appellee did not rely solely on circumstantial evidence. Although conflicting evidence was introduced as to appellant’s breach of duty by giving preferential treatment to taxpayers’ properties, in the absence of an abuse of discretion by the board in its decision-making process, this court should not substitute its findings of fact or construction of the evidence for that of the very governmental body having appointment and removal powers of the chief tax assessor (who incidentally also served as and assumed the duties of chief tax appraiser and receiver). Kirton v. Biggers, supra, 135 Ga. App. at 419.

Decided May 1, 1992.

Karsman, Brooks & Callaway, Charles C. Brooks, for appellant.

Emily E. Garrard, George H. Chamlee, for appellee.

Appellant’s other assertions are without merit.

Judgment affirmed.

Beasley and Andrews, JJ., concur,


author: Birdsong, Presiding Judge.

text:
    A92A0342.
    In the Interest of S. H. et al., children.
    (418 SE2d 454)
   Birdsong, Presiding Judge.

The natural mother appeals the order of the superior court terminating her parental rights to her minor children.

The children, two girls and a boy, originally were placed in a shelter following allegations of sexual abuse of the girls by both their natural parents. Subsequently, an adjudicatory hearing was held; the court found the children deprived and ordered custody with the county DFCS. This order was not appealed. Appellant mother thereafter entered a guilty plea to a total of 14 counts, pertaining to the two female children, consisting of enticing a child for indecent purposes, child molestation, aggravated sodomy and incest. The mother, as to most of these counts, had aided, abetted and watched her husband; but, as to some counts she was a perpetrator. She is currently in prison serving a twenty-year sentence, sixteen years to serve and four years probation. The children’s natural father, who also is in prison, voluntarily and knowingly relinquished his parental rights at the termination hearing.

At the termination hearing, appellant mother testified that she had been a mental case and had suffered from severe depression and delusional compulsion in the acts of molestation; that she is taking medicine for her depression and is receiving mental health counseling; that although she had engaged in sexual activity in the presence of the minor, female children, her husband had forced her to do so and it was not of her will; that she also had engaged in sexual acts with her children; that the same pattern of sexual conduct with her watching while her husband molested her older daughter (the half-sister) was the same pattern of sexual conduct which existed when she pled guilty to the counts relating to her minor, female children; that she did not contest DFCS’ right to child custody; that she did not intend to have the children live with her after her projected parole date in June 1997; that the children will be of grown age when shfe reaches her projected parole date of June 1997; that she cannot currently provide support for the children but she would if she could; that she has 37 college hours and is studying to be a cosmetologist so she can work and earn her RN degree when she gets out of prison; that she does not know if her guilty pleas were voluntary as she was in a state of mental depression at the time; that she would lapse into severe states of mental depression twice a year before being incarcerated, but she has experienced depression more often since being locked up; and, that she is “not asking that [the children] be placed back with [her. Her] only concern was that [she] wanted to be able [for the children] to visit [her] while [she] was in prison . . . because [she] loves them.”

Physical examination, conducted prior to the deprivation hearing, revealed that one of the female, minor children had warts in the vaginal area and chlamydia of the vagina and rectum; another female, minor child had chlamydia orally and in the vagina and rectum.

The half-sister of the minor children who was married and then age 20 testified at the deprivation hearing regarding how she had been molested by her father in her mother’s presence. Her 11-year-old half-sister told her that the father had once hit the girl in the nose with his fist; she also was told by a half-sibling that the father “beat” the male minor child after he had observed his father in bed with his sister. At the termination hearing, the half-sister again testified her father had molested her, and her mother had been present most of the time. She also testified the father had molested her older brother. In her opinion, her minor, half-siblings should never be allowed to go back home with the mother. She further opined that her mother engages in a fantasy life about having lots of money, a big house, and that one day they would all live as a big, happy family. Even when the father is not around, the mother had boyfriends who would drink; they were alcoholics. If the children are returned home, their mother will continue in the same lifestyle and pattern of conduct. The half-sister also testified she would be in a position to take these children and to care for them.

The foster mother testified at the termination hearing as to how the children’s behavior has improved and how they have adjusted well in their foster home; that the female children do not want to live with their mother; and that she believes termination of parental rights is in the best interest of the children, as the sexual acts in which they were involved with their mother have had a definite impact on them. She also testified that she was willing to keep the children. However, she currently is not willing to adopt them as she does not know how the children might feel about it later and because of their older sister’s interest in the children. She considers the important thing to be that the children have a good home in which to live; she loves the children and wants them to remain in her home.

The caseworker who interviewed the children testified at the deprivation hearing as to the various statements the girls made regarding how their father and mother had molested them and how they had been subjected to repeated acts of sodomy. The abuse continued on a weekly basis at random time periods. The minor male child informed her he had never been molested; however, he once saw his father in bed naked with his sister for which he was subsequently whipped. The boy, however, does know what has been going on sexually because his sisters told him. The mother subsequently denied being aware of the sexual abuse of the minor, female children, but admitted she was aware of the abuse of her oldest daughter. The children have adjusted to foster care, and the girls have consistently received As and Bs in school. At the termination hearing, this caseworker testified that this is one of the worst cases of child abuse “we have ever had at the agency”; and strongly recommended termination of the mother’s parental rights.

The current caseworker testified at the termination hearing that the children had not expressed a desire to visit their mother in the prison. She believes it is in the children’s best interest that the mother’s parental rights be terminated. The caseworker would seek permanent placement for the children if parental rights were terminated either in their current foster home or with a relative; in permanent placement the children would be eligible for adoption by someone. If there is no termination, DFCS will have to seek motions for extensions of custody every two years until all children reach 18 years of age; and every two years, thus the matter concerning the molestation events would have to be “opened up again.” There could be no permanent placement plan for these children if parental rights were not terminated, the only alternative then being to keep the children in foster care until they are 18 years of age. And, in her opinion, as long as their mother is in jail and cannot take care of them, their deprivation is likely to continue.

At the termination hearing trial, the then 13-year-old, female child testified she was doing all right in her foster home and does not ever want to live with her mother again. Each of the then nine-year-old twins testified that their foster parents were good to them, and they did not want either to see or to live with their mother again. The twin boy also testified that he did not like his parents anymore because of what they had done to his sisters.

The superior court found by clear and convincing evidence that the children are deprived and deprivation will continue; that due to their incarceration the natural parents can neither care for nor support the children; that the mother suffers from severe depression at times and in the past has been under the care of Satilla Mental Health Services in Ware County; and that the parental rights of both parents should be terminated in accordance with the court’s order. Held:

1. Pursuant to OCGA § 15-11-81 (a) there exists a two-step process in considering the propriety of termination of parental rights. First, the court shall determine whether there exists clear and convincing evidence of parental misconduct or inability; secondly, if such clear and convincing evidence exists, the court shall then consider whether termination of parental rights is in the best interest of the child, “after considering the physical, mental, emotional, and moral condition and needs of the child . . . including the need for a secure and stable home.” (Emphasis supplied.) OCGA § 15-11-81 (a). With certain exceptions not here applicable, the court may terminate parental rights if the court determines parental misconduct or inability by finding that: the child is a deprived child within the meaning of OCGA § 15-11-2 (that finding was made previously and was not appealed in this case); the lack of proper parental care or control by the parents in question is the cause of the child’s status as deprived; such cause of deprivation is likely to continue or will not likely be remedied; and the “continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child.” (Emphasis supplied.) OCGA § 15-11-81 (b) (4) (A) (iv). OCGA § 15-11-81 (b) (4) (B) provides, inter alia, that in determining whether the child is without proper parental care and control, the court shall consider, without being limited to, the following: a medically verifiable deficiency of the parent’s physical, mental, or emotional health of such duration or nature as to render the parent unable to provide adequately for the physical, mental, emotional, or moral condition and needs of the child; conviction of the parent of a felony and imprisonment therefor which has a demonstrated negative effect on the quality of the parent-child relationship; and, egregious conduct or evidence of past egregious conduct of the parent toward the child or toward another child of a physically, emotionally, or sexually cruel or abusive nature.

The various criteria above discussed can be established by either direct or circumstantial evidence of record.

2. Initially, it is noted that appellant has been convicted of felony offenses involving her two minor daughters as victims. The very nature of these offenses would, as a matter of law, negatively impact upon the parent-child relationship both now and in the future. Further, “ ‘[although imprisonment alone does not always compel a termination of parental rights,’ it will support such a ruling when adequate aggravating circumstances are shown to exist.” In the Interest of S. K. L., 199 Ga. App. 731, 733 (1) (405 SE2d 903). The nature of and circumstances surrounding appellant’s convictions per se establishes the requisite aggravating circumstances in this case.

3. Notwithstanding appellant’s incarceration, as discussed in Division 2 above, there exists a totally independent basis for termination of parental rights. The posture of this record conclusively establishes that the children were deprived; that the parents’ lack of proper care and control (by virtue of their criminal sexual misconduct toward their children) is the cause of the children’s status as deprived. Moreover, there exists evidence of record, particularly regarding the nature of the mother’s sexual conduct toward the children and the recurring pattern of such conduct directed toward the minor, female children, from which it could be reasonably inferred that the cause of deprivation is likely to continue or will not likely be remedied. In this regard, “ ‘while . . . past deprivation is not sufficient for termination without a showing of present deprivation, the past conduct of the parent is properly considered by the court in determining whether such conditions of deprivation are likely to continue.’ ” In the Interest of S. K. L., supra at 733 (1). Moreover, the mother during her testimony made admissions in judicio regarding her continuing severe mental depression and the counseling and medication she currently was receiving for the same. This mental state, particularly when viewed in light of appellant’s alleged submission to the demands of her husband that she participate in the recurring sexual violation of her children, provides further evidence from which it can be inferred that the existing deprivation is likely to continue or, at least, will not likely be remedied.

4. “ ‘If there is clear and convincing evidence of [statutorily required] parental misconduct or inability, the court shall then consider [as was done here] whether termination is in the best interest of the child, after considering the physical, mental, emotional and moral condition and needs of the child, including the need for a secure and stable home. (Cit.)’ [Cit.]” In the Interest of R. L. H., 188 Ga. App. 596, 597 (373 SE2d 666). “ ‘Obviously, those same factors which show the existence of parental misconduct or inability can also support a finding that the termination of parental rights of the defaulting parent would be in the child’s best interest.’ ” In the Interest of S. K. L., supra at 733-734 (1). Once the trial court makes its determination “ ‘[t] he appropriate standard of appellate review ... is whether after reviewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody were lost. . . .’ [Cit.] ‘The reviewing court is to defer to the lower court in the area of factfinding and should affirm unless the appellate standard of review is not met.’ ” In the Interest of S. K. L., supra at 734 (1); accord In the Interest of E. P. N., 193 Ga. App. 742, 748 (388 SE2d 903); In the Interest of A. T., 187 Ga. App. 299, 300 (370 SE2d 48). Applying these standards we find the trial court did not err in terminating appellant’s parental rights. “It would be nothing short of draconian for this court to usurp the trial court’s lawful functions by re-weighing evidence and re-deciding witness credibility, when as a result we are subjecting [these children] to the likelihood ... of continuing emotional [and moral] harm. . . .” In the Interest of E. P. N., supra at 748-749 (2c). “Our state constitution provides ‘(p)rotection to personfs] and property is the paramount duty of government.’ (Emphasis supplied.) Ga. Const, of 1983, Art. I, Sec. I, Par. II. This constitutional right of protection extends equally to children as well as adults. ‘In the United States, the parens patriae function belongs with the states.’ [Cit.] We should not pay mere ‘lip service’ to this grave obligation by preserving in legal fiction an already harmful and deteriorated parent-child relationship.” In the Interest of E. P. N., supra at 749 (2c).

Decided May 1, 1992.

McGee & McGee, J. B. McGee, Jr., for appellant.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Margot M. Cairnes, Staff Attorney, C. Deen Strickland, for appellee.

Judgment affirmed.

Beasley and Andrews, JJ., concur.


author: Pope, Judge.

text:
    A92A0071.
    CHATHAM v. THE STATE.
    (418 SE2d 374)
   Pope, Judge.

Defendant David Chatham appeals his conviction for public indecency. The jury was authorized to find that when Gwinnett County police officers responded to a report of a suspicious person in the parking lot of an Ingle’s food store, they found defendant sitting in a pickup truck in the parking lot with his pants unzipped and his penis exposed.

Decided April 8, 1992.

Reconsideration denied May 4, 1992.

Harrison & Harrison, G. Hughel Harrison, Samuel H. Harrison, for appellant.

Gerald N. Blaney, Jr., Solicitor, for appellee.

1. Defendant first asserts as error that the trial court improperly admitted into evidence several adult magazines and a pair of binoculars found in the truck with defendant. This enumeration is without merit. The record reveals that the trial court did not admit the magazines or the binoculars into evidence.

2. Defendant argues that the trial court improperly and incompletely charged the jury as to circumstantial evidence. The record reveals, however, that the State’s case against defendant was not based on circumstantial evidence. The only witnesses called by the State were the arresting officers who testified they observed defendant in a public place with his penis exposed; thus their testimony was direct, not circumstantial evidence. For that reason, the trial court’s charge does not run afoul of the Georgia Supreme Court’s recent decisions in Postell v. State, 261 Ga. 842 (412 SE2d 831) (1992) and Robinson v. State, 261 Ga. 698 (410 SE2d 116) (1991) as defendant contends. Accordingly, this enumeration of error must fail.

Judgment affirmed.

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


author: Johnson, Judge.

text:
    A92A0250.
    STOKES v. THE STATE.
    (418 SE2d 419)
   Johnson, Judge.

Vincent D. Stokes (Stokes) appeals from his conviction of possession of cocaine with intent to distribute and the denial of his motion for a new trial.

1. Stokes asserts that the trial court erroneously replaced two jurors with alternate jurors. We agree.

“OCGA § 15-12-172 authorizes the trial court to replace a juror who ‘dies, becomes ill, upon other good cause shown to the court is found to be unable to perform [his] duty, or is discharged for other legal cause. . . .’ The statute implicitly authorizes the trial court to exercise its discretion with regard to excusing a juror from the panel.” Baptiste v. State, 190 Ga. App. 451, 453 (2) (379 SE2d 165) (1989). In the instant case, the jury sent a message to the judge after approximately 30 minutes of deliberations. The jury was brought into the courtroom and the foreperson stated that two jurors “cannot or will not make a decision because they feel that there has not been enough evidence either way.” The court sent the jury back to the jury room and told them to write down their question. The jury sent back a note stating, “Jurors will not make a decision as to the innocence or guilt of the defendant.” The judge called the jury back to the courtroom and instructed them that each juror must vote, but if the two jurors in question would not vote, the court would replace them with the two alternate jurors. The jury returned to the jury room and the two jurors indicated they still would not vote. The court then dismissed those two jurors and replaced them with the two alternates. The court did not give any sort of further charge or instruction to the jury with its two replacements. Eight minutes later the jury returned with a guilty verdict.

Decided April 24, 1992.

Reconsideration denied May 4, 1992.

James A. Yancey, Jr., for appellant.

,W. Glenn Thomas, Jr., District Attorney, Joanna Temple, Assis tant District Attorney, for appellee.

The trial court abused its discretion in replacing the two jurors. There was no showing that the jurors were in any way incapacitated or unable to fulfill their duties and no other legal cause was shown. The court made no attempt to inquire into the jurors’ reasons for not voting. In fact, the only reason reflected in the record is the foreperson’s statement that they felt there was “not enough evidence either way.” This statement indicates that those two jurors either had reasonable doubt about Stokes’ guilt or were confused about the meaning of reasonable doubt. The court should have either recharged the jury as to the burden of proof and continued deliberations or declared a mistrial. Instead, the court took the extraordinary step of simply replacing two jurors who may have harbored reasonable doubt. This error was clearly prejudicial to Stokes, particularly in light of the fact that he was convicted only eight minutes after their dismissal. “[Alternate jurors do not serve to substitute for minority jurors who cannot agree with the majority.” Peek v. Kemp, 746 F2d 672, 681 (7) (11th Cir. 1984). This error requires a reversal.

2. Because of our decision in Division 1, we need not address Stokes’ remaining enumerations of error.

Judgment reversed.

Carley, P. J., and Pope, J., concur.


author: Beasley, Judge.

text:
    A90A1668, A90A1669.
    GILLIS v. GOODGAME; and vice versa.
    (418 SE2d 470)
    Decided May 4, 1992.

      Berrien L. Sutton, Ronald W. Hallman, for appellant.

      Beckmann & Pinson, William H. Pinson, Jr., for appellee.
   Beasley, Judge.

The decision of the Court of Appeals in Case No. A90A1668 having been reversed by the Supreme Court, Gillis v. Goodgame, 262 Ga. 117 (414 SE2d 197) (1992), the decision in Gillis v. Goodgame, 199 Ga. App. 413 (404 SE2d 815) (1991), is hereby vacated insofar as it relates to Case No. A90A1668 and the judgment of the Supreme Court is made the judgment of this Court. That part of the Court of Appeals decision relating to Case No. A90A1669 is affirmed.

Judgment reversed in Case No. A90A1668 and affirmed in Case No. A90A1669.

Sognier, C. J., McMurray, P. J., Birdsong, P. J., Carley, P. J., Pope, Cooper, Andrews and Johnson, JJ., concur.


text:
    A92A0130.
    BETHCO, INC. et al. v. CINEMA ’N’ DRAFTHOUSE INTERNATIONAL, INC. et al.
    (418 SE2d 467)
   Pope, Judge.

In 1983 plaintiff Bethco, Inc., a Kentucky corporation, entered into a franchise agreement with Cinema ’N’ Drafthouse, Inc., a Florida corporation (“CDI-Florida”), for the operation of a theatre in the Louisville, Kentucky area. The agreement contained an assumption agreement whereby CDI-Florida agreed to assume the operation of the theatre upon certain terms and conditions. In 1986 Bethco and its owners filed suit in Kentucky against CDI-Florida and its owners, defendants James and John Duffy, alleging breach of the assumption agreement. The record shows the clerk of the Kentucky trial court issued summons against each of the Kentucky action defendants by mailing a copy to the Kentucky Secretary of State. Pursuant to the provisions of the Kentucky Long-Arm Statute, K. R. S. § 454.210 (3) (b), the Kentucky Secretary of State mailed copies of the summons and complaint by certified mail to each defendant at the address given in the complaint.

The complaint provided a Roswell Road, Atlanta, Georgia address for each of the three defendants in the Kentucky action. The record shows, however, that CDI-Florida had notified Bethco approximately nine months before the suit was filed that its new address was at North Druid Hills Road in Atlanta and plaintiff Beth R. Welch, on behalf of Bethco, had corresponded with James Duffy at that address prior to the filing of the suit. The Kentucky Secretary of State issued a return of service to the clerk of the trial court indicating that an undelivered summons had been returned marked “Undelivered” for all three defendants. A subsequent attempt at service upon CDI-Florida was made to an address which had at one time been the address of CDI-Florida’s registered agent in Florida but which, at the time the summons was mailed, was no longer the address of the registered agent. The Kentucky Secretary of State issued a return of service indicating the return receipt for this summons showed it had been received. According to the undisputed evidence, neither the Duffys nor CDI-Florida ever had actual notice that the complaint had been filed against them in Kentucky until after the default judgment was entered against them.

Once plaintiffs obtained a default judgment on the Kentucky action, a complaint was filed in Georgia against defendants John and James Duffy and Cinema ’N’ Drafthouse, Inc., a Georgia corporation (hereinafter “CDI-Georgia”), to collect the judgment. The trial court denied plaintiffs’ motion for summary judgment on the complaint and, on its own motion, granted judgment to defendants. Plaintiffs appeal.

1. Plaintiffs first argue the trial court erred in granting judgment to defendants since defendants filed no motion for judgment. Plaintiffs argue the judgment was tantamount to a grant of summary judgment on the court’s own motion arid they were denied their right, pursuant to OCGA § 9-11-56 (c), to have 30 days in which to respond to such a motion. Even though only plaintiffs moved for summary judgment, the motion addressed all the issues in the case, both plaintiffs’ claims for relief and the defenses raised by defendants. Since the undisputed facts show defendants are entitled to judgment, the trial court did not err in awarding judgment to the non-moving party. See Massey v. Consolidated Equities Corp., 120 Ga. App. 165 (1) (169 SE2d 672) (1969). For the reasons explained in Division 2 of this opinion, as a matter of law the foreign court lacked personal jurisdiction over the defendants to issue the default judgment. Consequently, the trial court did not err in granting summary judgment to defendants on the court’s own motion. See Signet Bank/Virginia v. Tillis, 196 Ga. App. 433 (396 SE2d 54) (1990).

2. The remaining four enumerations of error relate to plaintiffs’ argument that issues of material facts remain regarding defendants’ defenses, including the defense of insufficient service of summons in the Kentucky action, and the argument that the trial court erred in concluding that service in the Kentucky action was insufficient. We disagree.

A copy of the Kentucky Long-Arm Statute was properly submitted in the record. The statute, K. R. S. § 454.210 (3) (b), provides for substituted service upon a non-resident defendant by certified mail from the secretary of state to the defendant “at the address given in the complaint.” It is unnecessary for this court to address the constitutionality of the Kentucky statute. Instead, we hold that service of the complaint in the Kentucky action was insufficient due to the acts of the plaintiffs in this case. The address given in the complaint was known by the plaintiffs not to be the current address of the defendants. Moreover, the Kentucky judgment was against CDI-Florida, while the Georgia action to collect the judgment was against CDI-Georgia. Defendants submitted evidence that the two corporations were separate and distinct and that CDI-Georgia had never assumed the contractual responsibilities of CDI-Florida. Even when plaintiffs provided a Florida address for CDI-Georgia, the address still was not that of the currently registered agent of CDI-Florida in that state.

“An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. . . . [Wjhen notice is a person’s due, process which is a mere gesture is not due process. The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it." (Emphasis added.) Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306, 314-315 (70 SC 652, 94 LE 865) (1950). Here, plaintiffs apparently had less desire to notify defendants of the pendency of the Kentucky action than they previously exhibited in directing routine correspondence to defendants at the proper address. We agree with the United States District Court in Murphy v. Helena Rubinstein Co., 234 FSupp. 893 (D.C.N.J. 1964), in which it held that token compliance with a state statute for substituted service, when it is known and apparent that such service did not result in actual notice to the party, does not satisfy due process. “Moreover, the plaintiffs’ post judgment conduct amply demonstrates the relatively simple manner in which defendants could have been notified of this suit. Plaintiffs had no difficulty in reaching the defendants in [Georgia] when they sought to perfect their judgments by collection.” Id. at 896.

“A judgment founded upon a suit in which the court had no jurisdiction of the defendant is void. [Cit.] A judgment against a party

Decided May 4, 1992.

Andersen, Davidson & Tate, Thomas T. Tate, William M. Ray II, Larry C. Oldham, for appellants.

Kitchens, Kelley, Gaynes, Huprich & Shmerling, Don C. Huprich, William J. Berg, for appellees.

where there was no valid service upon him, and no waiver of service, is void. [Cits.]” Foster v. Foster, 207 Ga. 519, 522-523 (63 SE2d 318) (1951). Accord Milner v. Gatlin, 139 Ga. 109 (76 SE 860) (1912). “In the absence of personal jurisdiction over [defendants], the [Kentucky] default judgment. . . was void. [Cit.] The trial court correctly refused to domesticate the void judgment and properly granted summary judgment in favor of [defendants].” Signet Bank/Virginia, 196 Ga. App. at 436.

Judgment affirmed.

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


text:
    A92A0265.
    BERGER & WASHBURNE INSURANCE AGENCY, INC. v. COMMERCIAL INSURANCE BROKERS, INC.
    (418 SE2d 640)
   Johnson, Judge.

Commercial Insurance Brokers, Inc. (CIB) brought suit against Berger & Washburne Insurance Agency, Inc. (Berger & Washburne) seeking to recover an alleged account indebtedness in the approximate amount of $21,000, representing a deficiency between amounts which CIB had billed Berger & Washburne for casualty insurance policies it had procured for the latter’s customers over a period of several months, and the total payments which Berger & Washburne had made to CIB on the account. Berger & Washburne denied liability and counterclaimed to collect a $4,500 loan which it had allegedly made to CIB, as well as to recover actual and punitive damages for CIB’s alleged conversion of certain payments it had received from Berger & Washburne from which it was to have paid the premiums on certain insurance policies which it had procured for Berger & Washburne’s customers, which monies it had instead allegedly misappropriated to its own use. Following a non-jury trial, the lower court entered judgment for CIB on both the main claim and the counterclaims, and Berger & Washburne filed this appeal from that judgment. Although it failed to raise the issue during the trial of the case, Berger & Washburne now contend that the evidence does not support the trial court’s judgment because CIB failed to establish its compliance with state licensing requirements applicable to insurance brokers.

1. In addition to filing this appeal, Berger & Washburne filed a motion in the trial court to set aside the judgment pursuant to OCGA § 9-11-60 (d). The trial court denied that motion; and Berger & Washburne thereafter applied unsuccessfully to this court for discretionary review of that ruling. See generally OCGA § 5-6-35 (a) (8). CIB contends that our denial of Berger & Washburne’s application to appeal the denial of its motion to set aside constitutes a prior adjudication of the merits of the present appeal. This contention is without merit. Under the circumstances, the denial of the application for discretionary review could have been based merely on a determination that the application was rendered redundant and unnecessary by the pendency of the present appeal. Compare Martin v. State, 185 Ga. App. 145 (1) (363 SE2d 765) (1987). Cf. In the Interest of C. D. B., 182 Ga. App. 263 (1), 264 (355 SE2d 759) (1987).

2. OCGA § 33-23-42 (c) specifies that “[n]o insurer or agent doing business in this state shall pay, directly or indirectly, any commissions or any other valuable consideration to any person for services as an agent, broker, solicitor, or adjuster within this state, unless such person shall be duly licensed in accordance with this article.” Under OCGA § 33-23-42 (d) and (e), a partnership or corporation may accept such commissions only if all of its “employees, stockholders, directors, or officers who solicit, negotiate, or effectuate insurance contracts are qualified insurance agents, brokers, counselors, or solicitors holding a currently valid license as required by the laws of this state. . . .” OCGA § 33-23-42 (d).

“Licensure must be proven to exist both at the time services were rendered and at the time recovery is sought. Contracts made in violation of such regulatory statutes are void and unenforceable. [Cit.] Thus, a failure to comply with the statutory scheme governing . . . insurance agents will bar any recovery on the basis of a contractual claim. This strict rule has been held to be necessary to compel compliance with the licensure requirement. [Cit.]” Management Compensation Group/Southeast v. United Security Employee Programs, 194 Ga. App. 99, 101 (389 SE2d 525) (1989). “Accordingly, at whatever stage of the proceedings it appears that the plaintiff is seeking to recover upon a contract permitted to be entered into only by persons holding licenses issued as a regulatory measure, it becomes imperative for the plaintiff to prove that he holds such a license and held such license at the time the contract was entered into in order to authorize a recovery.” Management Search v. Kinard, 231 Ga. 26, 29 (199 SE2d 899) (1973).

The transcript in this case contains no evidence that CIB was in compliance with the above-quoted licensure requirements. It could be argued that CIB was nevertheless entitled to restitution for any premium payments it had actually transmitted to the applicable insurance carriers on behalf of Berger & Washburne’s customers for which it had not been reimbursed. See generally Jennings v. Stewart, 106 Ga. App. 689 (1) (127 SE2d 842) (1962). Cf. Grier v. Employees Financial Svcs., 158 Ga. App. 813, 814 (3) (282 SE2d 342) (1981). However, it is apparent without dispute that a portion of CIB’s billings to Berger & Washburne represented monies which were to be retained by it as commissions rather than passed on to the insurance carriers as premium payments. In the absence of evidence from which the trial court could have determined that the amount awarded to CIB did not include such commissions but constituted instead only reimbursement for premiums it had actually paid out in order to procure coverage for Berger & Washburne’s customers, we must hold that the court erred in entering judgment in CIB’s favor on the account claim. However, the court’s entry of judgment in favor of CIB on Berger & Washburne’s counterclaims is not enumerated as error and consequently stands affirmed.

Decided May 4, 1992.

Mark P. Groves, Cynthia S. Garcia, for appellant.

Cornelison & Associates, Rex P. Cornelison III, Stephen M. Levinson, for appellee.

3. Berger & Washburne’s remaining contentions are rendered moot by the foregoing.

4. CIB’s motion for an assessment of damages against Berger & Washburne pursuant to OCGA § 5-6-6 for filing a frivolous appeal is perforce denied.

Judgment affirmed in part and reversed in part.

Carley, P. J., and Pope, J., concur.


text:
    A92A0363.
    LOWES v. ALLSTATE INSURANCE COMPANY.
    (418 SE2d 465)
   Beasley, Judge.

Plaintiff appeals the grant of summary judgment in favor of defendant Allstate Insurance Company in this action for personal injuries sustained in an automobile accident.

The complaint alleged that plaintiff was injured on April 2, 1988, when an automobile owned by defendant Crye and being operated by defendant Ward collided with his car. Suit was filed on March 30, 1990, three days before the expiration of the statute of limitation. Crye and Ward were named as party defendants, and Allstate was served under OCGA § 33-7-11 (d) as plaintiff’s uninsured motorist carrier.

Service on Crye and Ward was attempted by the sheriff without success on April 2, 1990, at the address shown on the motor vehicle accident report. There was a notation on the return of service to the effect that both defendants had moved to California one year previously.

Allstate answered the complaint “pursuant to the [Georgia] Uninsured Motorist Statute . . . without making its election under said statute to appear and answer in its own name or in the name of the named defendants or both . .. and without waiving its right to appear and answer in the name of the named defendants, as such named defendants have not yet been served with process. . . .’’It asserted defenses of lack of personal jurisdiction over defendants Crye and Ward since neither had been served; that it is without liability since judgment had not been obtained against the named defendants; and that neither defendant is an uninsured motorist as defined by OCGA § 33-7-11. Allstate conducted discovery, but did so specifically without making an election as to appearance under the uninsured motorist statute.

Allstate filed its motion for summary judgment, or alternatively to dismiss, on May 29, 1991, over a year after the sheriff’s information as to whereabouts had been filed. It asserted noncompliance with OCGA § 9-11-4 (c) and the expiration of the statute of limitation, which also occurred over a year earlier.

1. Plaintiff enumerates error in the conclusion that he failed to exercise due diligence in attempting to obtain service on the uninsured defendants.

“ ‘The statute of limitation is tolled by the commencement of a civil action at law. OCGA § 9-11-4 (c) . . . requires that service of a complaint shall be made within five days of the filing of the complaint. If an action is filed within the period of limitation, but not served upon the defendant within five days or within the limitation period, plaintiff must establish that service was made in a reasonable and diligent manner in an attempt to insure that proper service is made as quickly as possible.’ ” Brumbalow v. Fritz, 183 Ga. App. 231, 232 (358 SE2d 872) (1987). If this is not done, laches precludes the tolling of the statute of limitation by way of relation back of service to the filing of the complaint. Ibid.

Plaintiff established merely that defendants no longer reside at the address shown on the accident report and are not listed in the local area city or telephone directories. Following the sheriff’s unsuccessful effort to serve them, not even service by publication was attempted. See OCGA § 33-7-11 (e). There was only a request in plaintiff’s brief in opposition to summary judgment to allow service by publication. Even if the request was in proper form, it was not filed until more than 16 months had elapsed following the expiration of the statute of limitation. It was not an abuse of discretion to conclude that plaintiff failed to establish due diligence in insuring proper service. See Pickens v. Nationwide Mut. Ins. Co., 197 Ga. App. 550 (398 SE2d 792) (1990).

Decided May 4, 1992.

Barbara S. Arthur, for appellant.

Luther, Anderson, Cleary & Ruth, Steven W. Kreitzer, for appellee.

2. Plaintiff contends that service on the named defendants was in any event unnecessary because Allstate failed to elect to answer the complaint in its own name or in that of the known defendants.

OCGA § 33-7-11 (d) provides: “In the case of a known owner or operator of [an uninsured] vehicle, either or both of whom [is] named as a defendant in [an] action [for damages], the insurance company issuing the policy shall have the right to file pleadings and take other action allowable by law in the name of either the known owner or operator or both or itself.” The insurance company is afforded “the status of a party if it so chooses.” Starks v. Robinson, 189 Ga. App. 168, 169 (1) (375 SE2d 86) (1988). But even “filing of an answer or other response by an insurer in its own name pursuant to OCGA § 33-7-11 (d) does not constitute a waiver of any issues regarding the uninsured motorist’s tort liability but merely reflects the insurer’s position that, regardless of the underlying tort liability, the insurer is not liable under the policy of insurance.” Jones v. Cotton States Mut. Ins. Co., 185 Ga. App. 66, 68 (1) (363 SE2d 303) (1987).

Allstate’s answering the complaint without making an election under OCGA § 33-7-11 (d) did not affect plaintiff’s rights. Nor did it affect the plaintiff’s obligation to serve the named defendants. The insurer made its position clear from the beginning and continued to do so throughout the discovery process. Allstate did not waive the condition precedent that judgment first be obtained against Crye and Ward. Accord Boles v. Hamrick, 194 Ga. App. 595 (391 SE2d 418) (1990); Jones, supra.

Judgment affirmed.

Birdsong, P. J., and Andrews, J., concur.


text:
    A92A0504.
    McGUIRE v. THE STATE.
    (418 SE2d 464)
   Johnson, Judge.

Jonathan McGuire (McGuire) was found guilty by a jury of two counts of armed robbery, attempting to elude police, obstruction of police, reckless driving and driving with a suspended license. McGuire appeals from his conviction and the denial of his motion for a new trial.

McGuire’s sole enumeration of error as to all the charges is that there was insufficient evidence at trial to support the guilty verdict. McGuire contends that the State’s evidence was entirely circumstantial and did not exclude his reasonable hypothesis as to the facts.

1. We first note that as to the charges of attempting to elude police, obstruction of police, reckless driving and driving with a suspended license, the State’s case was not entirely circumstantial. It is clear from a review of the record on appeal that the evidence, taken in the light most favorable to the jury’s determination, supports the verdict of guilty on these charges. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. As to the two counts of armed robbery, the State’s case was entirely circumstantial. McGuire’s argument, however, is without merit.

“[I]t is well settled that in an entirely circumstantial case, the question whether there is a reasonable hypothesis favorable to the accused is the jury’s province. Questions as to reasonableness are generally to be decided by the jury which heard the evidence, and finds beyond a reasonable doubt that there is no reasonable hypothesis other than guilt. The appellate court will not disturb that finding, unless the verdict of guilty is insupportable as a matter of law. [Cits.] The appellate courts have no yardstick by which to ordinarily determine what in a given case is a reasonable hypothesis, save the opinion of 12 jurors of rational mind. [Cit.] Moreover, in every case the jury is the arbiter of credibility including as to the defendant’s explanation, and the jury is the body which resolves conflicting evidence, and where the jury has done so, the appellate court cannot merely substitute its judgment for that of the jury. [Cit.]” Adams v. State, 187 Ga. App. 340, 344 (1) (370 SE2d 197) (1988).

In the instant case, the State presented three eyewitnesses to the robberies who testified that McGuire is the same height and build as the masked robber. Those same witnesses also identified a mask and two guns belonging to McGuire as being those used by the robber. Two of these witnesses further identified a pair of pants and a jacket found near McGuire’s abandoned car immediately after the robbery as those worn by the robber.

The state also presented two police officers who identified MeGuire as the person they saw fleeing from the scene of the crime. One officer testified that he saw McGuire driving from the robbery scene and radioed for his backup to follow McGuire. The backup officer testified that he chased McGuire until he pulled over and fled on foot. Both officers were certain about their identifications of McGuire.

Decided May 4, 1992.

J. Michael Mullís, for appellant.

Harry N. Gordon, District Attorney, for appellee.

McGuire testified that about 20 minutes before the robberies in question occurred, he gave a ride to a man he recognized. McGuire claimed that man used a gun to rob him of money, jewelry and his car. McGuire said that after the man forced him out of his car, he ran through some woods for approximately two hours before arriving at his girl friend’s mobile home.

The jury in the instant case heard all of the evidence, including McGuire’s explanation, and decided there is no reasonable hypothesis other than McGuire’s guilt. “The finding is not insupportable as a matter of law, nor is it outside the proven facts.” Adams v. State, supra. Accordingly, reviewing the evidence in the light most favorable to the jury’s verdict, we conclude that a rational trier of fact could have found McGuire guilty beyond a reasonable doubt. Jackson v. Virginia, supra.

Judgment affirmed.

Carley, P. J., and Pope, J., concur.


author: Cooper, Judge.

text:
    A91A1836.
    CHEROKEE INSURANCE COMPANY v. LEWIS.
    (418 SE2d 616)
   Cooper, Judge.

This is the third case arising from the same set of facts to appear before this court. This appeal arises from an award of a bad faith penalty and attorney fees pursuant to OCGA § 33-7-11 (j).

Thomas Lewis (“Lewis”), a garbage collector for the City of Chickamauga, was injured when a car driven by Mary Nelms (“Nelms”) struck the platform on the back of a garbage truck on which Lewis was standing. An action for personal injury was filed against Nelms and the manufacturer of the garbage truck, and complaints were also served on Atlanta Casualty Company (“Atlanta”), Lewis’ automobile insurance carrier, and appellant, Chicamauga’s insurance carrier. In Lewis v. Atlanta Cas. Co., 179 Ga. App. 185 (345 SE2d 858) (1986), an appeal from the trial court’s grant of summary judgment to the truck manufacturer and Atlanta, this court held that Lewis could stack the uninsured motorist coverage provided by Atlanta and appellant; that Atlanta would be primarily liable to Lewis in the amount of $10,000 and that appellant was also liable for $10,000. Thereafter, a jury returned a verdict for Lewis for $150,000 against Nelms. Nelms died during the pendency of the action, and after probate, $97,512.75 remained in the estate for satisfaction of the judgment.

Pursuant to OCGA § 33-7-11 (f), Atlanta and appellant asserted that they were subrogated to Lewis’ rights against Nelms’ estate. The administrator of the estate filed an interpleader action to require Lewis, Atlanta and appellant to interplead their claims to the estate, and all parties filed motions for summary judgment setting forth their claims to the estate. Lewis also filed claims against Atlanta and appellant pursuant to OCGA § 33-7-11 (j) f°r their failure to pay under their respective uninsured motorist policies. The trial court granted Lewis’ motions for summary judgment for bad faith penalties and attorney fees under OCGA § 33-7-11 (j) and denied appellant’s motion with respect to its claims against the estate. Appellant appealed the trial court’s order, and in Cherokee Ins. Co. v. Lewis, 187 Ga. App. 628 (371 SE2d 103) (1988), this court reversed the trial court, determining that Lewis’ demand for payment against appellant was ineffective, having been made prior to the entry of the judgment. Although this court did not specify a date when Lewis’ demand for payment from appellant was made, we noted in our findings that the parties agreed that the demand was made sometime prior to the entry of the judgment on the jury’s verdict. On a writ of certiorari, the Georgia Supreme Court reversed this court in Lewis v. Cherokee Ins. Co., 258 Ga. 839 (375 SE2d 850) (1989). Without specifying exactly when the demand for payment was made, the court held that Lewis’ demand was timely under OCGA § 33-7-11 (j); that a judgment against an uninsured motorist is not a prerequisite for a demand against an insurer; and that OCGA § 33-7-11 (j) contemplates a pretrial demand which would encourage insurers to make good faith examinations of claims and promptly pay all valid claims. The case then returned to the trial court for an assessment of the 25 percent bad faith penalty, attorney fees and interest. After an evidentiary hearing, the trial court found that appellant’s agent acknowledged that the filing of the suit constituted a demand on appellant; that appellant was bound by its agent and that no further demand was necessary. The court awarded Lewis $2,500 as a bad faith penalty, $21,000 in attorney fees and $3,600 in interest, which began accruing 60 days after service of the complaint on appellant. It is from this latest order of the trial court that appellant appeals.

1. In its first three enumerations of error, appellant contends the trial court erred in interpreting its order on Lewis’ motion for summary judgment as a ruling on the merits of the bad faith claim. Appellant argues that a finding of bad faith on its part was incorrect as a matter of law because appellant was entitled to rely on the law as it allegedly existed prior to the ruling of the Supreme Court and further that Lewis waived the issue of bad faith by not presenting evidence in his motion for summary judgment demonstrating appellant’s alleged bad faith. Although the trial court did not assess specific amounts for bad faith penalties and attorney fees in its order on Lewis’ motion for the summary judgment, it set forth the date the judgment on the jury’s verdict was entered; that appellant did not tender payment within 60 days of the judgment; and that Lewis’ motion for summary judgment was granted “as respecting the bringing of an action for interest, penalties and attorney fees,” reserving the assessment of the 25 percent bad faith penalty, interest and attorney fees. The trial court stated further in its order on Lewis’ motion for summary judgment that it considered the argument of counsel, legal briefs and all matters properly of record in reaching its decision. The hearing on the various motions was not transcribed; therefore, there is no record of the hearing. Appellant concedes that Lewis made a claim under appellant’s policy, prior to the trial, which appellant denied. Moreover, both this court and the Supreme Court found that “the trial court entered an order granting Lewis’ motion for summary judgment regarding his entitlement to penalties and attorney fees under OCGA § 33-7-11 (j) against Cherokee and Atlanta Casualty.” Lewis, supra, 258 Ga. at 840. Therefore, we conclude that the trial court did not err in interpreting its order on Lewis’ motion for summary judgment to entitle Lewis to receive a bad faith penalty.

2. Appellant next enumerates as error that the award of attorney fees was contrary to the evidence. Lewis’ attorney testified that he spent 209.4 hours in connection with the entirety of the issues presented in the interpleader action and Lewis’ cross-claims against both appellant and Atlanta. The trial court awarded $21,000 in attorney fees.

Lewis was entitled to recover attorney fees from appellant based on the trial court’s determination that appellant acted in bad faith. However, Lewis “is entitled to recover attorney fees only for that portion of the fees which are allocable to the attorney’s efforts to prosecute the cause of action, against [appellant], on which the prayer for attorney fees is based. [Cits.]” Arford v. Blalock, 199 Ga. App. 434, 439 (10) (405 SE2d 698) (1991). While another attorney testified that the hourly rate charged by the attorney and the amount of hours expended were reasonable to comparable litigation, “[n]o evidence was presented from which the [court] could determine what portion of the total amount of attorney time and litigation expenses incurred in this . . . litigation was attributable to the particular claim against [appellant].” Id. at 439-440; Augusta Tennis Club v. Leger, 186 Ga. App. 440 (5) (367 SE2d 263) (1988). Accordingly, the trial court is directed to strike the attorney fees.

3. Appellant contends appellee failed to establish when a demand was made on appellant for the payment of uninsured motorist benefits; therefore, the trial court erred in awarding prejudgment interest. The trial court found that appellant’s agent acknowledged that the filing of the suit constituted a demand on appellant. The record contains no other document which could be interpreted as such a demand, and the Supreme Court determined that a timely demand was made by Lewis prior to trial. Lewis, supra, 258 Ga. at 841. We find, therefore, that the court did not err in determining that the filing of the complaint on appellant constituted Lewis’ demand and in awarding prejudgment interest.

4. Appellant contends the trial court erred in computing prejudgment interest at the rate of 12 percent. We agree. Prejudgment interest should have been assessed at the legal rate of seven percent. City of Atlanta v. Wright, 159 Ga. App. 809 (2) (285 SE2d 250) (1981). The case shall be remanded for an assessment of a proper award of prejudgment interest.

5. Appellant contends that Lewis’ claim was not liquidated until the judgment was entered against Nelms; therefore, the award of prejudgment interest from the date of service of the copy of the complaint was in error. Appellant argues that it was inappropriate for the trial court to award prejudgment interest for the period of time before appellant’s obligation to Lewis was established. The Supreme Court held that “an insurer is required to pay a valid claim within 60 days of its being made.” Lewis, supra, 258 Ga. at 840. Thus, the obligation to Lewis arose at Lewis’ demand. In Lewis, supra, 179 Ga. App. at 187, this court determined that appellant was liable in the amount of $10,000 in uninsured motorist coverage. Accordingly, the trial court did not err in its award.

6. Finally, appellant enumerates as error the award to Lewis of attorney fees and costs incurred by Nelms’ administrator in bringing the action. Appellant contends that OCGA § 23-3-90 does not authorize the payment'of such costs to Lewis. We disagree. The trial court had already allowed the administrator to recover her costs from the fund deposited in the court. Since OCGA § 23-3-90 allows the court, in its discretion, to determine the amount of such costs and make awards against parties in the interpleader action, the trial court did not err in taxing the costs against appellant and in favor of Lewis, the prevailing party.

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

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

Decided April 3, 1992

Reconsideration denied May 5, 1992

Alderman, Green & Hamby, Brady D. Green, for appellant.

Gleason, Davis & Dunn, John W. Davis, Jr., for appellee.