author: Ruffin, Judge.

text:
    A98A1670.
    RUTLEDGE v. THE STATE.
    (515 SE2d 1)
   Ruffin, Judge.

A jury found Bobby Rutledge guilty of armed robbery and possession of a knife during the commission of a crime. Pursuant to OCGA § 17-10-7 (b) (2), the trial court sentenced Rutledge to life imprisonment without parole on the first count and five years on the second count, to be served consecutively. Rutledge appeals, asserting numerous grounds. For reasons which follow, we affirm.

1. Rutledge first challenges the trial court’s denial of his motion for directed verdict based upon the insufficiency of the evidence.

The standard of review for the denial of a motion for a directed verdict of acquittal is the same as that for reviewing the sufficiency of the evidence to support a conviction. To sustain the conviction, the evidence must be sufficient to authorize the jury’s finding of the defendant’s guilt of the crime charged beyond a reasonable doubt.

(Citations and punctuation omitted.) Cantrell v. State, 230 Ga. App. 693, 694-695 (1) (498 SE2d 90) (1998).

[0]n an appeal following a conviction, the evidence must be viewed in a light most favorable to the verdict, and appellant no longer enjoys a presumption of innocence; moreover, on appeal this Court determines evidence sufficiency, and does not weigh the evidence or determine witness credibility.

(Punctuation omitted.) Webb v. State, 228 Ga. App. 624, 625 (2) (492 SE2d 312) (1997); see also Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Viewed in a light most favorable to the verdict, the evidence demonstrates that on January 26, 1997, a man wearing a tan, fleece-lined coat and a dark cap entered a BP Station in Warner Robins, approached the cashier, April Kroger, and asked for a pack of cigarettes. As Kroger reached for the cigarettes, the man came toward her with an “unfolded” knife and told her “not to try anything.” He took money from the cash register and left the store. As the man fled, Kroger noticed that he ran with a limp. The in-store security camera captured the crime on film, and a composite of still photographs from the tape was introduced into evidence.

Rutledge’s sister, Celestine Brown, testified that the day before the crime was committed, she had given Rutledge “a brown jacket with some white in the collar” and a black hood. Although the quality of the videotape from the in-store camera was poor, Brown was able to identify the man in the pictures as her brother, based upon his clothing and a partial view of his face. Brown further acknowledged that on the night of January 26, her brother showed up at her house with approximately $500 in cash and told her he had taken something that did not belong to him.

Rutledge’s cousin, Dolly Turner, testified that a nervous Rutledge came to her house the evening of January 26 wearing a brown jacket and a black hood. Rutledge gave Turner the coat and hood and a knife and asked her to throw them in the trash. Turner threw away the knife, but she kept the coat and the hood until she handed them over to the police. Kroger testified that the coat Turner gave to the police was the same coat worn by the person who had robbed her at knifepoint.

After meeting with Rutledge, Officer McSwain, who investigated the crime, confirmed that Rutledge, like the perpetrator, walked with a limp.

Despite ample evidence linking him to the crime, Rutledge argues that this is a case of mistaken identification. To support his position, he points to conflicts in the evidence, including (1) Kroger’s equivocation in identifying him from the “mug books”; (2) a dispute regarding the amount of money taken from the gas station; and (3) the type of knife used in the robbery. However, it is the function of the jury to resolve conflicts in the evidence. Kapua v. State, 228 Ga. App. 193, 195 (491 SE2d 387) (1997). Since there was ample evidence from which the jury could have concluded that it was Rutledge who committed the robbery through the use of a knife, “fw]e . . . conclude that the evidence, construed in a light most favorable to support the verdict, was sufficient to authorize a rational trier of fact to find [Rutledge] guilty beyond a reasonable doubt of both offenses. [See OCGA §§ 16-8-41 and 16-11-106.]” Abrams v. State, 229 Ga. App. 152, 154 (3) (493 SE2d 561) (1997).

2. Rutledge asserts that his motion for new trial should have been granted because his trial counsel was ineffective. After conducting a hearing on the issue, the trial court concluded that Rutledge received effective assistance of counsel at trial. “A trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous.” (Punctuation omitted.) Hassan v. State, 231 Ga. App. 783, 784 (1) (500 SE2d 644) (1998).

To establish a claim of ineffective assistance of counsel, Rutledge

must show that his counsel’s performance was deficient and that the deficient performance was prejudicial to his defense. To meet the first prong of this test, a defendant must overcome the strong presumption that counsel’s performance fell within a wide range of reasonable professional conduct and that counsel’s decisions were made in the exercise of reasonable professional judgment. The reasonableness of counsel’s conduct is examined from counsel’s perspective at the time of trial and under the circumstances of the case. The second prong requires the defendant to show there is a reasonable probability that, absent counsel’s unprofessional errors, the result of the trial would have been different.

(Citations and punctuation omitted.) Brown v. State, 268 Ga. 354, 357 (4) (490 SE2d 75) (1997). Here, the trial court was authorized to find that Rutledge received effective assistance of counsel at trial.

Rutledge contends that his attorney failed to call certain witnesses, did not confer with him regarding jury selection, and failed to question a witness about another possible suspect. However, all of Rutledge’s “claims of ineffectiveness are grounded in matters of trial tactics and strategy and do not provide a basis for finding counsel lacking. Such tactical decisions do not equate with ineffective assistance of counsel.” Harper v. State, 232 Ga. App. 224, 227 (2) (d) (501 SE2d 591) (1998). Contrary to Rutledge’s contentions, his attorney testified that he did confer with his client about the case and that the decision not to call witnesses was made because the witnesses either knew nothing about the. case or could not be located. In addition, the attorney testified that he and his client discussed several individuals on the jury panel during the selection process. Accordingly, the trial court’s finding that Rutledge was afforded effective assistance of counsel was not clearly erroneous. See Sewell v. State, 229 Ga. App. 685, 687 (1) (494 SE2d 512) (1997) (which witnesses to call, whether and how to conduct cross-examination, and what jurors to accept or strike constitute the exclusive province of the attorney after consultation with his client).

3. In two enumerations of error, Rutledge contends the trial court erred by allowing into evidence the photographic lineup and by permitting Kroger to identify him in court. However, Rutledge waived these objections since he failed to object during the trial either to the introduction of the lineup or to Kroger’s in-court identification. See Brewer v. State, 219 Ga. App. 16, 18 (2) (463 SE2d 906) (1995); Slaughter v. State, 217 Ga. App. 449, 450 (1) (459 SE2d 168) (1995).

4. Rutledge also complains that the trial court erred in admitting into evidence his statement to Officer McSwain because it was taken after he had invoked his right to an attorney. In addition, Rutledge suggests that he was under the influence of drugs at the time the statement was taken and, as such, the statement was not voluntary. We note at the outset that “[t]he trial court’s findings as to factual determinations and credibility relating to the admission of in-custody statements will be upheld where . . . they are not clearly erroneous.” Barrs v. State, 202 Ga. App. 520, 521 (3) (414 SE2d 733) (1992).

At the Jackson-Denno hearing, McSwain testified that Rutledge’s statements were made after he was read his Miranda rights. At trial, McSwain testified that he did not question Rutledge after he invoked his right to an attorney. In addition, McSwain stated that when he took the statement, Rutledge did not appear to be intoxicated or under the influence of any drugs. Based on this testimony, the trial court concluded that Rutledge’s statement was freely and voluntarily given and admitted the statement for the limited purpose of impeaching the defendant to the extent he contradicted himself on the stand. Under these circumstances, we cannot say that the trial court’s decision was clearly erroneous. See Barrs, supra.

5. Rutledge contends the trial court erred by refusing the jury’s request during deliberations to have read the testimony of Tawana Davis, a witness who supported his defense of mistaken identification. Rutledge asserts that he was treated unfairly, since the trial court acquiesced to the jury’s request to have read a portion of the testimony of one of the police officers.

“The rule in this state is that the trial judge, in his discretion, may permit the jury at their request to rehear in the defendant’s presence the requested testimony after beginning deliberation.” Johns v. State, 239 Ga. 681, 683 (2) (238 SE2d 372) (1977). Likewise, “[t]he court may also, in its discretion, refuse such a request.” Byrd v. State, 237 Ga. 781, 783 (1) (229 SE2d 631) (1976). “Of course, jury requests should not be arbitrarily or capriciously denied.” Williams v. State, 205 Ga. App. 445, 446 (2) (422 SE2d 309) (1992).

In this case, the trial court agreed to the jury’s request to have read a limited portion of the police officer’s testimony. Shortly thereafter, the jury requested to have all of Davis’ testimony read. Although the judge refused this request, he advised the jurors that if they could point to a specific portion of Davis’ testimony, he would reconsider. The jurors never provided a specific portion of Davis’ testimony that they wanted to hear. Under these circumstances, the trial court did not abuse its discretion in refusing to read back all of Davis’ testimony. See Haynes v. State, 180 Ga. App. 202 (1) (349 SE2d 208) (1986).

6. Rutledge asserts that the trial court erred by failing to remove a juror who had perjured himself during voir dire. This contention is without merit. During the trial, Rutledge’s attorney informed the trial court that he had represented one of the jurors in two prior cases — one involving the violation of a city ordinance and another involving a juvenile offense. The juror did not mention these matters during voir dire, although potential jurors had been asked about criminal histories. However, Rutledge’s attorney never requested that the juror be removed either during voir dire or afterwards. To the contrary, the attorney testified that he did not seek to remove the juror because he “thought he would vote for [him]. [He] figured the [juror] would give [him] the benefit of the doubt.”

Since Rutledge failed to object to the juror remaining on the panel, he is precluded from raising this issue on appeal. See Grogan v. State, 230 Ga. App. 876 (497 SE2d 589) (1998). “ A party cannot ignore what he thinks to be error, take his chance on a favorable verdict, and complain on appeal.’ ” Id. at 877.

7. Rutledge contends the trial court erred by sentencing him to life without parole under the recidivist statute, OCGA § 17-10-7 (b) (2), based upon a certified copy of his 1975 guilty plea for burglary and armed robbery. Rutledge objected below to the use of the prior conviction, arguing that the plea was not voluntarily made. Although no transcript of the plea hearing was offered into evidence, the trial court rejected Rutledge’s objection and admitted the conviction. Rutledge now argues that the State failed to prove the voluntariness of the plea.

In Pope v. State, 256 Ga. 195 (345 SE2d 831) (1986), our Supreme Court held that

[a] plea of guilty that is invalid under Boykin [v. Alabama, 395 U. S. 238 (89 SC 1709, 23 LE2d 274) (1969)] may not be used to enhance punishment in a subsequent trial. . . . [0]nce the defendant raises the issue of intelligent and voluntary waiver with respect to prior guilty pleas, the burden is on the state to establish a valid waiver. Boykin states that “(p)resuming waiver from a silent record is impermissible.” Id. at 242.

Id. at 209-210 (17).

After the decision in Pope, however, the United States Supreme Court clarified its holding in Boykin, stating that “Boykin does not prohibit a state court from presuming, at least initially, that a final judgment of conviction offered for purposes of sentence enhancement was validly obtained.” Parke v. Raley, 506 U. S. 20, 30 (113 SC 517, 121 LE2d 391) (1992). Thus, the U. S. Supreme Court held that “the Due Process Clause permits a State to impose a burden of production on a recidivism defendant who challenges the validity of a prior conviction under Boykin.” Id. at 34.

In Nash v. State, 233 Ga. App. 75 (503 SE2d 23) (1998), cert, granted, this Court considered the effect of Parke on the Supreme Court of Georgia’s decision in Pope. Because Pope was based on an interpretation of the United States Constitution, and the U. S. Supreme Court had subsequently interpreted the Constitution in a different manner, a unanimous Court of Appeals held that Parke was controlling, and that, when considering the admissibility of a prior guilty plea for purposes of recidivist sentencing, a trial court is “authorized to . . . apply the presumption of regularity which is deeply rooted in our American jurisprudence and in Georgia is codified in OCGA § 24-4-24 (b) (1).” (Punctuation and footnote omitted.) Nash, supra at 79.

In this case, despite Rutledge’s testimony to the contrary, the trial court found that Rutledge was represented by an attorney when he pled guilty. This is supported by the fact that the conviction was signed by Rutledge’s attorney. Rutledge admitted that, when he signed the guilty plea, he understood that he was admitting to having committed the crimes with which he had been charged. Although the State did not introduce a transcript of the plea, the trial court was entitled to rely on a presumption of regularity and to conclude that Rutledge’s testimony was not sufficiently credible to overcome that presumption. Accordingly, this enumeration is without merit.

8. Next Rutledge asserts that the trial court erred by allowing the State to introduce evidence that two of its own witnesses had been compelled to testify. However, by failing to object to the introduction of this evidence at trial, Rutledge has waived his right to appellate review. “Matters not objected to at trial cannot be raised for the first time on appeal.” (Punctuation omitted.) Richards v. State, 232 Ga. App. 584, 586-587 (1) (502 SE2d 519) (1998).

9. Rutledge maintains that the trial court erred by allowing the State to impeach him on a collateral matter. “While a witness may be impeached on a collateral issue which is indirectly material to the issue in the case, a witness may not be impeached because of a discrepancy as to a wholly immaterial matter.” (Punctuation omitted.) Cook v. State, 221 Ga. App. 831, 834 (4) (472 SE2d 686) (1996).

During the trial, Rutledge testified that on the evening of January 26, he had gone to a hospital in Macon, but was refused entry. To refute this testimony, the State called the custodian of records for the hospital to determine if there was any record of Rutledge’s having sought treatment on January 26. Clearly, testimony regarding Rutledge’s whereabouts on January 26 is material to the issue of his guilt. Consequently, the trial court did not abuse its discretion in allowing the State to impeach Rutledge on this issue.

Decided March 15,1999

Reconsideration denied March 31,1999

Sonya C. Popken, for appellant.

Kelly R. Burke, District Attorney, A. James Rockefeller, Assistant District Attorney, for appellee.

10. In his final enumeration of error, Rutledge contends that the trial court erred by refusing to allow him to question Officer McSwain regarding another possible suspect. We note that “Questions of the relevancy of evidence are within the trial court’s discretion; the right of cross-examination is not abridged where the examination is limited by the trial court to relevant matters by proper questioning.” Nichols v. State, 210 Ga. App. 134,137-138 (5) (435 SE2d 502) (1993).

In this case, Rutledge wanted to ask McSwain about a man named Johnson who had robbed the same BP station that Rutledge was charged with robbing. The trial court questioned McSwain outside the presence of the jury and heard evidence that Johnson was significantly younger than Kroger’s attacker and did not walk with a limp. Since Rutledge and Johnson did not resemble each other, the trial court concluded that allowing Rutledge to question McSwain about Johnson would establish only that the BP station had been robbed before. Accordingly, the trial court excluded the testimony. Under these circumstances, the trial court did not abuse its discretion in refusing to allow Rutledge to question McSwain about Johnson.

Judgment affirmed.

Pope, P. J., and Beasley, P. J., concur.

       Although the Supreme Court’s decision in Mize v. State, 269 Ga. 646, 657 (15) (501 SE2d 219) (1998), implicitly calls into question our decision in Nash, the Supreme Court did not overrule Nash in that case, nor did it consider the U. S. Supreme Court’s decision in Parke. Accordingly, and in light of the fact that the Supreme Court has granted certiorari in Nash, we adhere to our unanimous decision in Nash. See OCGA § 15-3-1 (unanimous whole-court decision may not be “overruled or materially modified except with the concurrence of all the Judges”).


source: Caselaw Access Project

author: Smith, Judge.

license: Public Domain

text:
    A98A2361.
    SOUTH FULTON MEDICAL CENTER et al. v. JAYA PRAKASH.
    (514 SE2d 233)
   Smith, Judge.

In this case, South Fulton Medical Center initiated peer review of the actions of Dr. Bangaru Jaya Prakash, a gastroenterologist, with regard to Jaya Prakash’s failure to arrive at the hospital emergency room for almost two and one-half hours after agreeing to see a critically ill patient in consultation. Two hospital committees recommended suspending Jaya Prakash’s admitting privileges for 28 days, but an appeal, as provided for in the hospital bylaws, to a body known as the “Ad Hoc Committee” resulted in reversal and no loss of privileges. Notwithstanding his exoneration, Jaya Prakash brought suit against South Fulton Medical Center and various members of its medical staff (collectively “South Fulton”), alleging that he had been damaged by the peer review process. The defendants’ motion for summary judgment was denied by the trial court, and we granted South Fulton’s application for interlocutory appeal. Because we agree with South Fulton that it was entitled to immunity under the provisions of the Health Care Quality Improvement Act (“the Act”), 42 USC §§ 11101-11152, we reverse the denial of summary judgment.

The Act was designed “to facilitate the frank exchange of information among professionals conducting peer review inquiries without the fear of reprisals in civil lawsuits.” (Footnote omitted.) Bryan v. James E. Holmes Regional Med. Center, 33 F3d 1318, 1322 (11th Cir. 1994). Under its provisions, professional review bodies and the individuals comprising them are insulated from damage actions for their activities under both federal and state law if their activities meet certain standards set forth in the Act. 42 USC § 11111 (a) (1). The professional review actions must have been taken “(1) in the reasonable belief that the action was in the furtherance of quality health care, (2) after a reasonable effort to obtain the facts of the matter, (3) after adequate notice and hearing procedures are afforded to the physician involved or after such other procedures as are fair to the physician under the circumstances, and (4) in the reasonable belief that the action was warranted by the facts known after such reasonable effort to obtain facts and after meeting the requirement of paragraph (3). A professional review action shall be presumed to have met the preceding standards necessary for [immunity] unless the presumption is rebutted by a preponderance of the evidence.” 42 USC § 11112 (a). This rebuttable presumption sets up “a somewhat unusual standard” for summary judgment. Austin v. McNamara, 979 F2d 728, 734 (5) (9th Cir. 1992). See also Davenport v. Northeast Ga. Med. Center, 237 Ga. App. 252, 254 (515 SE2d 162) (1999). The trial court is required to determine, viewing the facts in the light most favorable to the plaintiff, whether a reasonable jury could conclude that the plaintiff has shown by a preponderance of the evidence that the peer review activities did not meet the standards set forth in the Act. Id.

1. The trial court concluded that Jaya Prakash had “provided sufficient evidence to permit a jury to find that he had overcome, by a preponderance of the evidence, the presumption that the hospital’s disciplinary action was taken in the reasonable belief that it would further quality patient care.” South Fulton contends this finding was in error. We agree.

The incident giving rise to the professional review activities involved a patient who presented at the emergency room at South Fulton in critical condition. He was suffering from cirrhosis of the liver and was vomiting copious amounts of blood. The attending emergency room physician took steps to stabilize the patient, but the patient required hospital admission and did not have a personal physician on the staff of the hospital. The hospital does not permit emergency room doctors to admit patients. The task of the emergency room doctor therefore, beyond stabilizing the patient, is to use the resources at his disposal to call in those who can admit and treat the patient properly.

The emergency room physician, Dr. Ronald Weed, testified on his deposition that he telephoned the physician designated as the medical backup for that day for internal medicine. When that doctor returned the call, she requested that Jaya Prakash’s partner be called, which was done, but Jaya Prakash answered that call. Weed first spoke with Jaya Prakash at 6:00 p.m. He testified that Jaya Prakash indicated he could not admit the patient, but that he would come in to see the patient in consult. Weed then called back the medical backup doctor, who asked him to call another doctor to arrange for admission. When Weed made the call, he apprised the doctor of the patient’s condition. This doctor said he would come in, but he was at a meeting at another hospital, as was Jaya Prakash, and he would see the patient in about an hour’s time. Although Weed believed the patient could not wait one hour, he made no further attempts to call another doctor. He testified that even though he had been told the two doctors were at a meeting, because he had communicated the patient’s dire condition, he “anticipated that they would arrive shortly.” That did not happen. Jaya Prakash appeared after the arrival of the other doctor and after that doctor had arranged the patient’s admission. Prakash arrived two and one-half hours after telling Weed he would come in to see the patient. He treated the patient vigorously after his arrival and remained at the hospital until 2:00 a.m. Despite Jaya Prakash’s best efforts, the patient died.

The crux of Jaya Prakash’s claim is that the hospital and the individual doctors on the peer review committees could not have had a reasonable belief that their review would further quality health care, and that because they were motivated by their own economic competition with him, they pursued peer review activities in bad faith. His claim focuses on the fact that at the time of this incident he had only “courtesy staff” privileges at South Fulton, which under hospital bylaws limited his hospital admissions to two per year. He could not admit any more patients because he had already reached his limit. He could not treat the patient until the patient had been “admitted.” And once the patient was admitted, he began treatment within a reasonable time. Jaya Prakash relies upon Islami v. Covenant Med. Center, 822 FSupp. 1361 (N.D. Iowa 1992), to support his contention that the peer review action violated the hospital’s own bylaws and thus could not have met the standard set forth in the Act.

Jaya Prakash’s reliance upon Islami is misplaced. In that case, the hospital violated provisions in its bylaws regarding the peer review process by failing to give the doctor the notice and hearing procedures outlined in the bylaws. Id. at 1377. The federal district court held that under those circumstances, summary judgment was improper on the issue of immunity, the doctor having presented sufficient evidence to create a fact question as to whether a reasonable jury could find that the hospital was entitled to the benefit of the presumption that the requirements of the Act were met.

No such evidence was presented here. The hospital bylaws are relevant in this case only on the question of whether Jaya Prakash had the right to admit the patient in question. That question is irrelevant to the issue addressed by the peer review process in this case. Weed testified that he was dealing with a critically ill patient who was not improving with time. Weed felt that “if he deteriorated any more it would be to death.” His testimony was that “admitting” the patient is merely a paper procedure, but that often the “consultant” is the doctor who treats the patient. And Jaya Prakash himself admitted that “probably” he could have left his meeting and seen the patient even “before the admitting physician arrived.”

The United States circuit courts interpreting the Act have applied an objective standard in determining whether a peer review activity met the “reasonableness” standard in 42 USC § 11112 (a). Wayne v. Genesis Med. Center, 140 F3d 1145,1148 (8th Cir. 1998); see Austin, supra at 734. Applying an objective standard, we find it is “reasonable” for a hospital to believe that addressing the delay in treatment of a critically ill patient would further quality health care. Certainly, if some conflict or confusion exists in the provision in the bylaws governing patient responsibility in a case such as this, then that, too, is a proper subject for peer review action. In our view, therefore, Jaya Prakash has not presented sufficient evidence to permit a reasonable jury to find that he has overcome, by a preponderance of evidence, the presumption that a hospital and doctors in South Fulton’s position would reasonably have believed their action was warranted by the facts.

We note as well Jaya Prakash’s contention that certain doctors on the initial investigative committees were in economic competition with him. This fact is insufficient to rebut the presumption of fairness. The Act prohibits physicians in direct competition with the doctor whose actions are being reviewed only from serving as hearing officers or as members of a hearing panel. 42 USC § 11112 (b) (3) (A) (ii) & (iii). “ ‘[I]t imposes no such requirement on participants in other phases of the peer review process.’ ” Mathews v. Lancaster Gen. Hosp., 87 F3d 624, 636 (3rd Cir. 1996). Moreover, Jaya Prakash has presented no evidence that anticompetitive considerations entered into the process; he merely states that several doctors on the committees were in competition with him. As in Mathews, this showing is insufficient to rebut the presumption. Id. “Peer” review, by its very definition, would almost always raise such concerns about competitors. If, as we have found, using an objective standard, the evidence supports the conclusion that South Fulton was motivated by a legitimate concern for quality health care, any other motivation is irrelevant. Bryan, supra at 1335 (III) (C) (1). Because South Fulton was entitled to immunity under the Act, the trial court erred in denying its motion for summary judgment.

Decided March 10,1999

Reconsideration denied March 31,1999.

Hall, Booth, Smith & Slover, Rush S. Smith, Jr., Phillip E. Friduss, for appellants.

Shaw & Evans, Howard R. Evans, for appellee.

2. Given our determination in Division 1, we need not consider South Fulton’s contention that it was entitled to summary judgment because Jaya Prakash never lost privileges and never suffered economic loss.

Judgment reversed.

Johnson, C. J., and Barnes, J., concur.

       Jaya Prakash’s partner was Dr. Hari Piyasena. Jaya Prakash answered the call “on behalf of Dr. Piyasena.”

       Jaya Prakash’s care of the patient after arriving is not questioned, and no party suggests that the patient would have survived had Jaya Prakash arrived earlier.


author: Andrews, Judge.

text:
    A98A2413.
    COOK v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al.
    (514 SE2d 48)
   Andrews, Judge.

Howard Cook appeals from the trial court’s grant of summary judgment to State Farm Mutual Automobile Insurance Company (State Farm) and Progressive Preferred Insurance Company (Progressive), carriers of uninsured/underinsured coverage applicable to an automobile accident involving Cook and Crawford.

Cook was injured when struck in the rear by Crawford’s car on March 31, 1995, while he was stopped on an exit off Interstate 75. Crawford’s liability coverage with Graward General Companies was for only $15,000 and Cook claimed damages in excess of that.

It was Cook’s intention to settle with Crawford and his insurer and then pursue uninsured/underinsured coverage under his policy with State Farm and his employer’s with Progressive. On December 26, 1996, Cook signed a release which he contends was that limited release provided for in OCGA § 33-24-41.1 and the insurers contend was a general release also precluding coverage by their policies.

The document entitled “General Release” and subtitled “Release of All Claims” states that, in consideration of payment of Crawford’s policy limits, “I, Howard Cook, . . . having been fully compensated for all claims arising out of the incident described below, have released and discharged, and by these presents, . . . release, acquit, and forever discharge Miranda Crawford, Billy Crawford, and Graward General Companies and any and all of their heirs, legal representatives and assigns, Generali — U. S. Branch and Graward General Companies, and any of their subsidiaries, agents or employees, [and any and all other persons, firms and corporations of and] from any and all actions, causes of actions, claims or demands for damages,... or any other thing whatsoever on account of, or in any way growing out of, any and all known and unknown personal injury and property damage resulting or to result from an occurrence that happened on or about March 31, 1995 at Interstate 75, Cobb County, Georgia.”

The portion of the release in brackets and underlined was stricken and initialed by Cook. It is this alteration which Cook says preserves his rights against State Farm and Progressive.

The trial court granted the underinsured motorist and the two insurers summary judgment, relying on Rodgers v. St. Paul Fire &c. Ins. Co., 228 Ga. App. 499 (492 SE2d 268) (1997) and Darby v. Mathis, 212 Ga. App. 444 (441 SE2d 905) (1994).

First, it cannot be disputed that, pursuant to the language of the release, Cook released all claims against Crawford, without reservation, thereby entitling Crawford to summary judgment based on the release. No appeal has been taken from that summary judgment, entered on February 20, 1998, which found the release “clearly absolves Defendant Crawford of any further liability.”

Pursuant to Kent v. State Farm &c. Ins. Co., 233 Ga. App. 564 (1) (504 SE2d 710) (1998), the issue then is whether the release was limited sufficiently to maintain Cook’s rights pursuant to OCGA §§ 33-7-12 and 33-24-41.1 against the insurers.

In Kent, while the Kents executed a limited release with language maintaining their right to pursue their uninsured/underinsured carrier, they also dismissed with prejudice their lawsuit against the tortfeasor.

OCGA § 33-24-41.1 provides that the injured party may execute a limited release of the tortfeasor and its insurer, relieving them from all liability, and “still retain the right to pursue his own insurer for other available coverage,” here, underinsured motorist coverage. Rodgers v. St Paul Fire &c. Ins. Co., 228 Ga. App. 499, 500 (1) (492 SE2d 268) (1997). However, the injured party must establish legal liability of the defendant driver of an underinsured vehicle before recovery is allowed under the [injured party’s] uninsured motorist coverage. OCGA § 33-7-11 (a) (1). Legal liability is defined as the securing of a judgment against the underinsured motorist in order to collect underinsured/uninsured motorist benefits from the carrier. Continental Ins. Co. v. Echols, 145 Ga. App. 112, 113 (243 SE2d 88) (1978). “A judgment obtained against the uninsured motorist is a condition precedent to recovery against an automobile liability carrier under the provisions of uninsured motorist coverage. (Cit.)” Id. at 113. See also Boles v. Hamrick, 194 Ga. App. 595, 596 (391 SE2d 418) (1990). An injured party who executes a limited release under OCGA § 33-24-41.1 “may still proceed to judgment against the tortfeasor. Such a release under those conditions would not bar proceeding against the uninsured motorist carrier. The limited release therefore does not affect the injured party’s ability to obtain a judgment against the tortfeasor, but merely limits the tortfeasor’s personal liability in the amount of available insurance coverage.” Rodgers, supra at 501.

(Emphasis supplied.) Kent v. State Farm &c. Ins. Co., supra.

Both State Farm’s and Progressive’s policies of insurance also contain the “legally entitled to recover” language in their sections on uninsured/underinsured coverage.

In Kent, the Kents were operating under a mistake of law as to the effect of the dismissal with prejudice on their claim against their underinsured motorist carrier. That, however, did not preclude the entry of summary judgment in favor of the insurer. “ ‘ “The rule is well settled that a simple mistake by a party as to the legal effect of an agreement which he executes, or as to the legal result of an act which he performs, is no ground for either defensive or affirmative relief.” (Cit.)’ [Callan Court Co. v. Citizens &c. Bank, 184 Ga. 87, 128129 (3) (190 SE 831) (1937)].” Kent, supra at 566.

Cook contends this case is controlled, instead, by Superior Ins. Co. v. Dawkins, 229 Ga. App. 45 (494 SE2d 208) (1997) in which a mutual mistake of law under OCGA § 23-2-22 regarding the effect of an act of the legislature was found sufficient to prevent summary judgment for the insurers. Here, however, Cook has shown no such mutual mistake concerning the import of the release, only his belief that the release did not preclude suit. While the affidavit submitted by Cook’s counsel states his understanding of the opinion of the tortfeasor’s insurer concerning the release, such a statement is at best hearsay.

Decided March 8,1999

Reconsideration denied March 31,1999.

N: William Pettys, Jr., for appellant.

Downey & Cleveland, Rodney S. Shockley, for appellees.

“Evidence offered on motion for summary judgment is held to the same standards of admissibility as evidence at trial, and evidence inadmissible at trial is generally inadmissible on motion for summary judgment. Hearsay is never admissible and has no probative value unless it comes within a recognized exception to the rule.” [Cit.]

Hardee’s Food Systems v. Green, 232 Ga. App. 864, 866 (1) (502 SE2d 738) (1998).

Here, no such exception is shown and that evidence is not probative on the issue of mutual mistake. No affidavit from the adjuster involved for Crawford’s insurer is contained in the record, unlike in Kent.

Further, the judgment entered on Crawford’s summary judgment is in his favor and unappealed, making the legal effect indistinguishable from the dismissal with prejudice in Kent.

Even considering the four corners of the release here, however, we conclude that Cook has failed to take those steps which would have indicated, without equivocation, that his release of Crawford was intended to allow him to retain his right to sue the insurers on their derivative liability. Rodgers v. St. Paul Fire &c. Ins. Co., supra at 499-502; Darby v. Mathis, supra at 444-445 (1), (2).

Judgment affirmed.

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

       The notice of appeal states that it is from “the Order of the State Court of Cobb County dated and filed June 8, 1998, granting summary judgment to State Farm Mutual Automobile Insurance Company and Progressive Preferred Insurance Company.” Compare Padgett v. City of Moultrie, 229 Ga. App. 500, 501 (494 SE2d 299) (1997), citing Southeast Ceramics v. Klem, 246 Ga. 294, 295 (271 SE2d 199) (1980).


author: BEASLEY, Presiding Judge.

text:
    A99A0452, A99A0472.
    OSOFSKY v. BOARD OF MAYOR & COMMISSIONERS, CITY OF AVONDALE ESTATES; and vice versa.
    (515 SE2d 413)
   BEASLEY, Presiding Judge.

Commissioner Howard Osofsky lost his position on the Board of Mayor and Commissioners of the City of Avondale Estates when the Board declared his seat vacant as a result of his moving outside the city limits. On appeal to the superior court he lost the residence issue and was ordered to pay a portion of the Board’s attorney fees based on an OCGA § 9-15-14 motion.

In Case No. A99A0452 he appeals the attorney fees award on three grounds: (1) OCGA § 5-3-31, not OCGA § 9-15-14, applies to motions for attorney fees in appeals to superior court; (2) it was inconsistent to find he had a justifiable reason to seek court review as to residence and impose attorney fees for frivolous litigation; and (3) he did not unnecessarily expand the proceedings below. In its cross-appeal (Case No. A99A0472), the Board contends the court should have awarded its entire request for attorney fees because the appeal to the superior court was patently frivolous.

Case No. A99A0452

1. Incorrect is Osofsky’s contention that OCGA § 5-3-31 provides the exclusive remedy for imposition of sanctions for appeals to the superior court. This statute provides:

If upon the trial of any appeal it shall appear to the jury that the appeal was frivolous and intended for delay only, they shall assess damages against the appellant and his security, if any, in favor of the appellee for such delay, not exceeding 25 percent on the principal sum which they shall find due, which damages shall be specially noted in their verdict.

Butlerhouse Maintenance Co. v. Greeson held that OCGA § 5-3-31 is the vehicle for awarding attorney fees in de novo appeals to superior court. Pursuant to OCGA § 5-3-29, Osofsky’s appeal was de novo, with original evidence heard and evaluated by the court. But the statute presumes a money award as a basis to calculate the frivolous appeal damages. So it is applicable “only to cases of appeal wherein the jury returns a verdict for a sum of money.” Because the ruling that Osofsky vacated his office by moving outside Avondale Estates resulted in no money award, the statute did not apply.

Instead, OCGA § 9-15-14 supplied authority. The year after Butlerhouse the General Assembly enacted this Code section, which provides independent guidelines for attorney fees ££[i]n any civil action in any court of record.” This language is plainly all-inclusive. Contract Harvesters v. Clark held that the statute “may be applied when the superior court is sitting in an appellate capacity,” whether or not the proceeding is de novo.

2. Invoking OCGA § 9-15-14 (b), the court concluded that Osofsky unnecessarily expanded the proceedings by (i) denying he was a resident of Atlanta and entering into a sham lease to show he was a resident of Avondale Estates, and (ii) filing two suits — the appeal from the Board’s decision and a writ of certiorari from that decision.

(a) As to the first finding, the court stated that although Osofsky had a justifiable reason to seek the court’s determination of his domicile and his status as commissioner based on alleged ambiguities in the laws of Avondale Estates, he had no right to mislead the court and expand the proceedings by improper conduct. Osofsky argues that the court could not award attorney fees since it found he had justifiable reason to seek the superior court appeal. He ignores that it was not his pursuit of appeal that motivated the attorney fees award; it was his taking absurd positions and relying on sham documents. This approach forced the Board to expend time, effort, and money to investigate and disprove.

(b) Osofsky also challenges the evidentiary basis for the two findings of unnecessary expansion. “OCGA § 9-15-14 (b) is discretionary and the standard of review is abuse of discretion.”

With regard to his submission of the sham document, evidence supported an award of attorney fees. According to the Charter for Avondale Estates, a commissioner’s office is vacated “by the incumbent ceasing to be a resident. . . .” Although “residence” is defined as domicile, domicile requires that a person not only have the intent to reside in the locality permanently, but also that the person have an actual physical residence there.

The issue before the superior court was whether Osofsky’s alleged intention to remain a resident of Avondale Estates meant he was domiciled there, even though he had no physical residence there for a period of at least three months. On July 14, 1997, Osofsky sold his home in Avondale Estates (DeKalb County) and purchased a condominium located in the City of Atlanta (Fulton County), to which he moved shortly thereafter. On October 30, Osofsky received notice that the Board intended to consider a resolution to declare his commissioner position vacant because he had moved outside Avondale Estates and had since maintained no residence in the city.

The next day Osofsky signed a lease for a bedroom from a friend who maintained a residence in Avondale Estates. He presented this lease to the Board as proof that he maintained a physical residence in the city. At the superior court hearing in March 1998, he again relied on this lease, but he conceded he had not slept in the bedroom since the first of December. All his furniture and belongings were at the Atlanta condominium, where he lived and slept regularly.

To rebut the lease, the Board was forced to investigate and present evidence showing Osofsky resided regularly at the Atlanta condominium and that the circumstances surrounding the lease were suspect at best and fraudulent at worst. The court did not abuse its discretion in concluding Osofsky’s improper conduct unnecessarily enlarged the case.

Begarding the filing of two separate suits, the court did err. It awarded the Board its attorney fees incurred in investigating a separate action brought by Osofsky as a writ of certiorari to review the same Board decision. Pursuant to agreement of the parties, this action was dismissed within days of its filing, and no motion for attorney fees was filed.

The research regarding the propriety of filing a petition for writ of certiorari in another suit does not apply to the present action since the parties agree this action was procedurally proper. If the Board wished to recoup legal expenses resulting from Osofsky’s filing a petition for writ of certiorari in addition to an appeal to superior court, it had to do so by timely motion in the certiorari suit following Osofsky’s voluntary dismissal. Those expenses were not incurred in the present action and were not relevant to it. Because the award does not designate how much is attributable to this matter, the award is vacated and the case remanded for the court to subtract from the award the fees associated with certiorari.

Decided March 31,1999.

George Spears, for appellant.

Wilson, Morton & Downs, Robert E. Wilson, Bryan A. Downs, for appellee.

Case No. A99A0472

3. In its cross-appeal, the Board argues it should have been awarded all its attorney fees, not just a portion. It claims the entire matter completely lacked any justiciable issue of law or fact and was frivolous as a matter of law under OCGA § 9-15-14 (a).

The standard of review for court findings under OCGA § 9-15-14 (a) is the “any evidence” rule. Evidence supported the court’s finding that many issues Osofsky brought for judicial resolution were “legally justified.” On the residence issue Osofsky had a draft letter from the city attorney stating that his move to Atlanta did not disqualify him from his commissioner’s office; the DeKalb Board of Registrations & Elections found that despite his move to the Atlanta condominium (inside Fulton County) he was qualified to vote in DeKalb County; and the city charter language was ambiguous as to what locality it was referring when it stated that ceasing to be a resident caused a position to be vacated.

The Board emphasizes that after the superior court ruling Osofsky signed a tax-exemption certificate declaring that he had been a resident of Fulton County since January 1,1998. Though this may be evidence which would support a finding of lack of any justiciable issue, it is not conclusive and may represent a conscious decision by Osofsky to domicile in Fulton County after the court found that for at least a period of time he was not a domiciliary of DeKalb County and Avondale Estates.

The court did not err in refusing to award total attorney fees under OCGA § 9-15-14 (a).

Judgment vacated and remanded with direction.

Blackburn and Barnes, JJ, concur.

       OCGA § 5-3-31.

       174 Ga. App. 637, 638 (331 SE2d 46) (1985).

        Adams v. Carnes, 111 Ga. 505, 509 (3) (36 SE 597) (1900).

       OCGA § 9-15-14 (a), (b).

        Dept. of Transp. v. Woods, 269 Ga. 53, 55 (1) (494 SE2d 507) (1998).

       211 Ga. App. 297, 299 (2) (439 SE2d 30) (1993).

       See Vulcan Materials Co. v. Pritchett, 227 Ga. App. 530, 532 (3) (489 SE2d 558) (1997) (applying OCGA § 9-15-14 to appeal of workers’ compensation decision).

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

       Charter of the City of Avondale Estates, § 1-310 (c); Ga. L. 1995, p. 3504, § 2; see generally OCGA §§ 21-2-217 (6); 45-5-1 (5).

       OCGA § 21-2-2 (32).

        Williams v. Williams, 226 Ga. 734, 736 (2) (177 SE2d 481) (1970), overruled on other grounds, Ogden Equip. Co. v. Talmadge Farms, 232 Ga. 614 (208 SE2d 459) (1974); Avery v.
        Bower, 170 Ga. 202, 204 (1) (152 SE 239) (1930) (“[t]here must be a concurrence of actual residence and the intention to remain, to acquire a domicile”). Compare Haggard v. Graham, 142 Ga. App. 498 (236 SE2d 92) (1977) (establishing new physical residence elsewhere does not change domicile where physical residence also maintained at old location and intent to reside at old residence continues).

       See OCGA §§ 5-4-1 et seq.; 15-6-8 (4) (certiorari available to review municipal corporation’s judicial decision); City of Cedartown v. Pickett, 193 Ga. 840, 842 (1) (20 SE2d 263) (1942); see generally Ga. Const, of 1983, Art. VI, Sec. IV, Par. I.

       Accord Gist v. DeKalb Tire Co., 223 Ga. App. 397, 399 (2) (477 SE2d 616) (1996).

        Bd. of Regents, supra, 257 Ga. at 527 (4) (c).

       Charter of the City of Avondale Estates, § 1-310 (c); Ga. L. 1995, p. 3504, § 2.


author: Beasley, Presiding Judge.

text:
    A99A0501.
    DRISKELL et al. v. CRISLER.
    (515 SE2d 416)
   Beasley, Presiding Judge.

Annabelle Crisler, the nearly destitute widow of Thomas Crisler, was awarded $193,000, the amount she sought, as year’s support. Her application had been challenged by the co-executors, who were the daughter and son-in-law of Mr. Crisler. Annabelle was Thomas’ second wife and stepmother to his daughter. The daughter, along with her two daughters, were the beneficiaries of the estate along with Mrs. Crisler. They contend that the award should be about $3,200, the amount of annual income reduction resulting from testator’s death. The executors’ four somewhat interrelated enumerations of error are presented on appeal from the probate court’s judgment, reached after a bench trial at which the only evidence was Mrs. Crisler’s testimony.

The issues arose in the following context. The Crislers married in March 1972, when Mr. Crisler was already retired and his daughter had achieved majority. He made his will in 1976 at a time when he had a comfortable amount of assets, including a home, savings, rental property, and stock in a paper company. He had sold his two grocery stores when he retired. Up until 1991 the Crislers shared an easygoing lifestyle, devoting a large amount of their time to expanding and tending their large flower garden, traveling by car for a number of days fairly regularly each month, frequently eating at restaurants and attending movies.

Mr. Crisler developed Alzheimer’s disease or dementia and was finally institutionalized in April 1992 because Mrs. Crisler could no longer care for him independently. She visited with him nearly every day, except when she did not feel well or the weather was stormy. She was no longer able to garden to the extent they had, eat out, go to movies, or travel. She was unable to buy all medicines prescribed for her or to replace her clothing or shoes during this period, although she had dressed well during their marriage as her husband liked her to dress “elegantly.” She could no longer afford a dry cleaner or hairdresser. She lived in the home (debt-free) that had been hers and had been rented out until they sold his home, but now it was in disrepair and in addition needed handicap access for her. The car, his 1985 Chevrolet Caprice, had logged over 185,000 miles, and the household appliances were old or inadequate for her to use without difficulty because of her physical condition. She could no longer manage housecleaning or yardwork by herself.

Their liquid assets, which had included the $12,000 saved for their funerals, became almost completely depleted because of the care Mr. Crisler needed in the four and one-half years he spent in the nursing home. They sold his home, in which they had been living, in 1991, and also sold his rental properties and used the proceeds. The only significant asset remaining was a parcel of real property left solely to Mr. Crisler’s daughter and granddaughters. He died in October 1996, when she was age 76. She herself has numerous physical ailments and has been unable financially to arrange for needed eye surgery or dentures.

In mid-January 1998, Mrs. Crisler timely applied for year’s support from the estate, which was valued at about $584,000 plus the car and some household furnishings. Since her husband’s death, her only income was $544 per month social security benefits. To help, her daughter supplied an additional $500 to $1,000 monthly for groceries, prescriptions, and items of that nature.

Under Georgia law, provision for “the support of the family” is regarded as one of the “necessary expenses of administration,” and it is to be “preferred before all other debts” except as provided in the statute. Although it contravenes the theory that every competent person should be free to dispose of property at death as the individual desires, public policy imposes a protective system so that the widow or widower and minor children are not left out. Consequently, upon application, “a sufficiency from the estate for their [spouse and minor children] support and maintenance for the space of 12 months from the date of death of the testator” is to be set aside and assigned to them, plus “a sufficient amount of the household furniture.” The statutory minimum is $1,600, barring certain contingencies.

How is the entitlement to be determined? The law imposes the burden on the applicant to prove “the amount necessary for a year’s support,” and the factfinder is to ascertain “an amount sufficient to maintain the standard of living that the surviving spouse . . . had prior to the death of the testator.” To determine what is “sufficient,” the factfinder is instructed by the statute to take into consideration the support available to the applicant other than the year’s support and “[s]uch other relevant criteria as the court deems equitable and proper.”

There are two important principles underlying this scheme. One is that entitlement to year’s support is attributable to status. The other is that the amount to be set apart is governed in part by dependency. One criterion required to be taken into account in determining the amount is available support from other sources. There is no issue of entitlement in this case. As the executors recognized, Annabelle Crisler was Thomas Crisler’s surviving spouse. The issue is the amount to which she is entitled.

If no one objects to the amount requested in the application, after due notice is given, then “the judge shall enter an order setting aside as year’s support the property or money or both applied for, as set out in the application.” If there is objection from someone authorized to object, “the judge of the probate court shall determine the money or property or both to be set aside according to the standards set out in Code Section 53-5-2.”

It is evident from the court’s order that it took into account Mrs. Crisler’s “standard of living during her marriage to Testator,” in the court’s words, and did not limit consideration to the year or years immediately preceding Mr. Crisler’s death, as appellants argue the court was compelled to do. The co-executors contend that the widow is only entitled to maintain the nearly destitute standard of living she experienced while her husband was expensively institutionalized. Taking into account the stark reality that carving out a year’s support from the testator’s solemn instructions for distribution deprives the beneficiaries of some of what they would otherwise inherit, the law nevertheless insists on the humane purpose served by the provision for the obligatory year’s support. It, too, is to be examined realistically.

Nothing in the law requires a mechanical measurement or the exclusion of relevant factors or time periods when the probate court must exercise discretion in assessing what is “equitable and proper.” Each case will stand on its own unique circumstances. Precise mathematical formulas have little utility in these instances.

The court did not legally err in weighing into the balance the standard of living which Mrs. Crisler was able to maintain during her marriage to the testator before the life-altering, terminal disability which deprived them both of their accustomed lifestyle. First, the statute does not limit consideration to the year before the death or any particular time other than “prior to the death of the testator or intestate.” Second, the right to year’s support is founded on status, and Mrs. Crisler enjoyed the status of spouse from 1972 to 1996. All of those years, if otherwise relevant, could be considered in ascertaining standard of living.

Third, the court need not be blinded to the fact that the greatly reduced standard of living was occasioned by the very circumstance which rendered Annabelle Crisler urgently needy in the 12 months subsequent to her husband’s death. Had his illness not sapped their financial resources as well as their physical strength and well-being, the standard of living which she had maintained during the first 20 years of marriage would have remained basically the same. Support for a year may be estimated according to the circumstances and standing of the family previous to the death. The court could restore her for the year to what her standard would have been but for the testator’s debilitation.

Turning to what was necessary for “support and maintenance” of the widow in her first year of widowhood, the court recognized that she did not actually incur expenses for the items she testified she needed. She was relegated to maintaining the frugal standard of living she had endured during her husband’s illness because there was no money to spend. This circumstance is different from that in Richards v. Wadsworth, for example, where Richards had substantial resources to live as he chose and apparently maintained the same standard of living he had known while his wife was alive.

Provision for reasonable medical attention to the surviving spouse during the year following testator’s death, where it is necessary and the circumstances and standing of the family before the death would warrant it, may be considered in fixing the amount of year’s support. So the medical services and supplies Mrs. Crisler described, based on her experience and her consultation with her physicians, did not have to be excluded just because the need had accumulated over a period of time and she had learned to live with the deprivations. She forwent this care because of her husband’s needs, and some of it became more acutely urgent due to the passage of time and the deterioration of her own health. It was not legal error to include amounts for this care in the year’s support.

Similarly, the probate court was not forbidden by law to accommodate the need, in the year following testator’s death, for one-time purchases, repairs and expenses which would restore his spouse’s standard of living during marriage. As the court put it, year’s support was authorized “to make her home habitable and accessible, her furniture adequate for her current needs, and her automobile safe.” She was not required to wait until the distribution of the estate (at which time she would receive virtually nothing) or seek other means (none of which have surfaced) to live in accordance with what had been her accustomed standard of living before the testator’s assets were depleted for his care. It would be ludicrous for the law to be that, because she did not maintain the before-Alzheimer’s standard of living during her husband’s institutionalization and thereby relegate him to public welfare, she herself must be relegated to the near-pauper financial condition she endured after her husband’s debilitation occurred.

The specific list of needed items and services which the court included in determining the amount of the award is justified by the evidence and authorized as “equitable and proper”; they did not raise her to a higher standard than she had in the years when she enjoyed the status of wife, which gave her the right to year’s support in the first place. Because her needs were greater due to her own aging and new or worsening physical ailments, the resources for the year’s support may have been greater than would have been needed to maintain the standard of living experienced before Mr. Crisler’s condition and needs supervened. That does not require them to remain unmet.

The court was obligated to take into consideration other support available to Mrs. Crisler. It is evident that the court did so. Her needs for the year following her husband’s death are greater because she will not receive any sizeable amount in administration and thus cannot delay the repairs, replacements, and medical care past the year in issue. That is, her short-term needs are exacerbated and increased because of the certainty that she cannot meet these needs long-term. And she has no “other support available” except welfare, which she has not sought, and her daughter’s voluntary contributions from her own personal assets. These resources need not be weighed in the mix of the statute’s contemplated “support available.”

The court expressly took into account and respected the solvency of the estate ($587,000 plus accruing interest), as it was bound to do. The estate would not be exhausted by the award of the approximately one-third which the widow sought. There would still be a substantial amount for the testator’s daughter and two granddaughters.

The court also expressly respected and measured into the equation “the clear testamentary intent” of the testator, who in his will and by his behavior throughout his marriage to Amnabelle shared with her the same standard of living he practiced for himself and, at the time he made his will, provided for her financial security in the event he predeceased her. She was to share in most assets equally with the daughter, except as to the parcel of real estate he had inherited. This was an appropriate factor in measuring what share of the estate “was to be a year’s support, calculated to fit the particular circumstances,” taking into account that “ [a] year’s support’ was to be the yardstick for the statutorily-mandated ‘bequest’ to the surviving spouse.”

The probate court did not abuse its discretion in-its determination of what was “equitable and proper.” The determination of the amount of year’s support was “limited to the circumstances and standing of the family ‘as affected’ by the estate of the deceased. [Cit.]” Based on our review of the record and of the law, the court did not err in ordering an excessive award; it did not compensate Mrs. Crisler for “personal sacrifices” but instead considered the effect of this manner of living on Mrs. Crisler’s standard of living and on the consequent needs of Mrs. Crisler in the year following her husband’s death; the court was authorized to include “non-transitional” expenses which had accumulated and become necessary items for repair or replacement to restore her to her traditional standard of living. Items such as surgery, which would by their nature benefit her long-term, did not lose their character as needed to maintain her health in the one-year period. Finally, Crisler did not fail to satisfy her statutory burden of proof because she testified as to each item needed for restoration and estimated the cost. Absolute precision is not required. Thus, none of the executors’ four enumerations has merit.

Decided March 31,1999

Hodges, Erwin, Hedrick & Coleman, David W. Orlowski, King & Spalding, Frank C. Jones, Letitia M. Brown, John A. Wallace, for appellants.

Donaldson, Hall, Martin & Bell, Michael C. Hall, for appellee.

Judgment affirmed.

Blackburn and Barnes, JJ, concur.

       The applicable law is that which preceded the statutory changes enacted by the legislature in 1997 and effective January 1, 1998. See Editor’s notes at the beginning of Chapter 3 of Title 53, Georgia Code.

       OCGA § 53-5-2; see also Smith v. Sanders, 208 Ga. 405, 406 (67 SE2d 229) (1951) (year’s support is an encumbrance higher than any debt); Rogers v. Woods, 63 Ga. App. 195, 198 (10 SE2d 404) (1940) (year’s support is an absolute right to be preferred to any other claim, except as provided by law).

       “The intent is to protect the family survivors from a reduction in their standard of living while the estate is being settled, at least for one year. It is a ‘transitional allowance.’ ” Richards v. Wadsworth, 230 Ga. App. 421, 424 (4) (496 SE2d 535) (1998).

         OCGA § 53-5-2 (b).

       Id.

       OCGA § 53-5-2 (c).

        Gentry v. Black, 256 Ga. 569, 570-571 (351 SE2d 188) (1987):
      [Entitlement to a year’s support award is a matter of status. This is established by demonstrating the applicant belongs within one of the classes of intended beneficiaries of the year’s support statute.... The statute does not go further to place any requirement that any among those classes demonstrate actual or legal dependency.

        Hunnicutt v. Hunnicutt, 180 Ga. App. 798, 799-800 (350 SE2d 770) (1986) (basis for year’s support is “that each spouse [is] mutually entitled to a portion of the deceased spouse’s estate ... by virtue of the legally-recognized relationship itself”).

       “ ‘[U]nder the 1986 amendments, dependency is clearly a factor in the amount of the award.’ ” Richards, supra at 423 (3); Baker v. Baker, 194 Ga. App. 477, 478 (1) (390 SE2d 892) (1990) (same); see Note, Determining Eligibility for Year’s Support in Georgia: The Tension Between Status & Dependence Requirements, 22 Ga. L. Rev. 1167 (1988).

       OCGA § 53-5-2 (c) (1).

       OCGA § 53-5-8 (b); see Georgia’s New Probate Code, 13 Ga. State Univ. Law Review 605, 661-662 (1997).

       OCGA § 53-5-8 (b).

       OCGA § 53-5-2 (c).

       In a challenge of excessiveness in Dorsey v. Ga. R. Bank &c. Co., 82 Ga. App. 237, 241 (60 SE2d 828) (1950), the court took into account as relevant the standard of living of the couple “for many years” prior to testator’s death.

        Calhoun Nat. Bank v. Slagle, 53 Ga. App. 553 (186 SE 445) (1936).

       Supra at 421.

        Walraven v. Walraven, 76 Ga. App. 713 (47 SE2d 148) (1948); Byrd v. McKinnon, 189 Ga. App. 768, 769 (377 SE2d 686) (1989) (court did not err in accommodating financial needs arising from “various health problems”).

       See Tomlinson v. City of Adel, 169 Ga. 758, 760-761 (151 SE 482) (1930) (giving year’s support reflects the public policy of giving protection to widows and children until they may provide their own support for the future); Ehrlich v. Silverstein, 121 Ga. 54, 61 (48 SE 703) (1904) (temporary allowance is to provide for family during period it may not compel distribution of estate assets); accord Nat. City Bank of Rome v. Welch, 53 Ga. App. 528 (186 SE 596) (1936).

       OCGA § 53-5-2 (c) (1).

       OCGA § 53-5-2 (b).

        Hunnicutt, supra at 800. “The Georgia provision for year’s support has been said to be a branch of the statutes of distribution. . . .” Woodes v. Morris, 247 Ga. 771, 773 (279 SE2d 704) (1981).

       “The public policy behind the statutes awarding a year’s support dictates that the provisions of these statutes be construed in favor of the beneficiaries entitled to support [liberally].” Scott v. Grant, 227 Ga. App. 1, 3 (487 SE2d 627) (1997). Abuse of discretion is proper standard of review of amount awarded. McClure v. Mason, 228 Ga. App. 797, 799 (2) (493 SE2d 16) (1997).

        Gentry, supra at 571.

       See Richards, supra at 424-425 (4) (“[y]ear’s support is not intended to pay the surviving spouse for loss of the relationship or for personal sacrifices made during the marriage”); Blassingame v. Rose, 34 Ga. 418, 421-422 (1866) (services and good conduct of surviving spouse is not to be compensated in year’s support).


author: Blackburn, Judge.

text:
    A99A0538.
    GAMBLE v. THE STATE.
    (515 SE2d 422)
   Blackburn, Judge.

Michael Gamble appeals from his conviction for speeding, following a bench trial, contending that the trial court erred by admitting into evidence the reading of a radar device. Defendant contends that the trial court erred in denying his motion to suppress the radar gun evidence because the State failed to establish that the radar gun was certified annually pursuant to OCGA § 40-14-4. We affirm.

Gamble was charged with speeding on June 16, 1998.* At the bench trial the radar reading was the only evidence of Gamble’s speed. OCGA § 40-14-4 provides that a reading from a radar device is admissible as evidence if “[the] device, before being placed in service and annually after being placed in service, is certified for compliance by a technician possessing a certification as required by the Department of Public Safety.” “Failure of [such] proof. . . results in the evidence of speed gained by use of the speed detection device being inadmissible.” Wiggins v. State, 249 Ga. 302, 304 (2) (a) (290 SE2d 427) (1982). See Hardaway v. State, 207 Ga. App. 150 (427 SE2d 527) (1993).

Decided March 31,1999

Patterson & Patterson, Jackie G. Patterson, Yasma Patterson, for appellant.

Louis J. Kirby, Solicitor, for appellee.

The State presented evidence of the initial certification of calibration in 1993 and subsequent certifications in 1995, 1996, 1997 and 1998; however, the State presented no evidence of certification in 1994. The parties stipulated that the radar gun was placed in service in 1993. Gamble contends that the statute requires the State to show certification for each and every year from the date the radar gun was placed in service and that the State’s failure to establish certification in 1994, four years prior to the use of the radar here, results in the radar reading being inadmissible. We disagree.

“The purpose of testing and certifying the device before it is placed in service and annually thereafter is to ensure the initial and continuing accuracy of the device.” Nairon v. State, 215 Ga. App. 76, 78 (2) (449 SE2d 634) (1994). With this purpose in mind, a reasonable reading of the statute requires proof of certification for the pertinent year, thus ensuring the accuracy of the radar reading at issue. Here, the State met the requirements of OCGA § 40-14-4 by producing a copy of the certificate of accuracy dated within one year prior to the use of the radar in this case. See Nairon, supra. Gamble’s excessively narrow reading of the statute leads to the absurd result that if a radar device were not certified for one year, that radar device could never be used again as all of its subsequent readings would be rendered inadmissible. We decline to adopt such an unreasonable reading. See Alltel Ga. Communications v. Ga. Pub. Svc. Comm., 270 Ga. 105 (505 SE2d 218) (1998).

Judgment affirmed.

Beasley, P. J., and Barnes, J., concur.

       Gamble was also convicted of two counts of driving under the influence, but he raises no issues on appeal with regard to those convictions.


text:
    A98A1725.
    ATLANTA J’S, INC. et al. v. HOUSTON FOODS, INC.
    (514 SE2d 216)
   Ruffin, Judge.

Houston Foods, Inc. sued Atlanta J’s, Inc. (AJI) and Horace Bradford for amounts allegedly due under a lease agreement. AJI and Bradford moved for summary judgment, arguing that the claim was barred by res judicata. The trial court denied the motion, and we granted defendants’ application for interlocutory appeal. Because plaintiff’s claim is barred by res judicata, we reverse the trial court’s order.

On January 26, 1989, defendants and Carl Brackin entered into a ten-year lease agreement with plaintiff for certain commercial property in Clayton County. On December 26, 1990, plaintiff filed this action in the Superior Court of Henry County, seeking to recover amounts allegedly due under the lease, including rent, property taxes, insurance premiums, and certain amounts resulting from construction change orders.

On July 28, 1992, while this litigation was pending, plaintiff notified defendants that the lease was terminated effective August 6, 1992. On August 19, 1992, plaintiff filed a dispossessory action against defendants in magistrate court in Clayton County. In that action, plaintiff asked for issuance of a writ of possession, but expressly noted that it did not seek recovery of past due rent because that was the subject of other litigation. On October 27, 1992, the magistrate court issued a writ of possession, but it issued no order regarding the recovery of past due rents or any other amounts due under the lease.

After the issuance of the writ of possession, defendants amended their answer in the present case to assert the defense of res judicata. Defendants moved for summary judgment on this ground, arguing that plaintiff could have asserted claims for past due rent and other amounts due under the lease in the dispossessory action. The trial court denied the motion for summary judgment, and this appeal followed.

The doctrine of res judicata is codified in OCGA § 9-12-40, which provides that

[a] judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.

“Res judicata prevents plaintiffs from asserting claims arising from the same transaction piecemeal or presenting only a portion of the grounds on which relief is sought and leaving the rest for a second suit if the first fails.” Mobley v. Sewell, 226 Ga. App. 866, 868 (487 SE2d 398) (1997).

“Three prerequisites must be satisfied before res judicata applies — (1) identity of the cause of action, (2) identity of the parties or their privies, and (3) previous adjudication on the merits by a court of competent jurisdiction.” Waldroup v. Greene County Hosp. Auth., 265 Ga. 864, 866 (1) (463 SE2d 5) (1995). The adjudication on the merits must constitute a “final judgment upon the matter in question” for res judicata to apply. Costanzo v. Jones, 200 Ga. App. 806, 810-811 (2) (b) (409 SE2d 686) (1991). Because there was clearly an identity of parties between this case and the dispossessory action, the remaining questions for this appeal are (1) whether the magistrate court was a court of competent jurisdiction, (2) whether the writ of possession constituted a final judgment on the matter in question, (3) whether the writ of possession constituted an adjudication on the merits, and (4) whether there was an identity of the cause of action.

1. Court of competent jurisdiction. Plaintiff argues that the magistrate court was without jurisdiction to consider the issues raised in this case. Plaintiff notes that, under subsection 5 of OCGA § 15-10-2, the magistrate court has jurisdiction over “[t]he trial of civil claims ... in which exclusive jurisdiction is not vested in the superior court and the amount demanded or the value of the property claimed does not exceed $5,000.00.” Because the amount of past due rent and other items at issue in this case exceeds $5,000, plaintiff argues that the magistrate court had no jurisdiction to consider this issue.

This contention is without merit, as subsection 5 is not the exclusive basis for jurisdiction in the magistrate court. Subsection 6 provides a separate basis for jurisdiction, stating that the magistrate court has jurisdiction over “[t]he issuance of summons, trial of issues, and issuance of writs and judgments in dispossessory proceedings and distress warrant proceedings as provided in Articles 3 and 4 of Chapter 7 of Title 44.” OCGA § 15-10-2 (6). This basis for the magistrate court’s jurisdiction is separate and independent from subsection 5. Nothing in the statute suggests that, where the magistrate court acquires jurisdiction under subsection 6, the extent of such jurisdiction is circumscribed by the $5,000 limitation set forth in subsection 5. Indeed, the Code specifically contemplates that judgments in dispossessory actions may exceed $5,000. See OCGA § 15-10-50 (g) (providing that post-judgment discovery procedures of OCGA § 9-11-69 apply in cases involving “judgments in dispossessory or distress warrant proceedings ... in which the judgment exceeds the amount of $5,000.00”). Accordingly, where the magistrate court acquires jurisdiction under subsection 6, the $5,000 limitation of subsection 5 is inapplicable.

Under subsection 6, the magistrate court has jurisdiction over the “trial of issues” and “issuance of. . . judgments in dispossessory proceedings ... as provided in Articles 3 and 4 of Chapter 7 of Title 44.” OCGA § 15-10-2 (6). Under OCGA § 44-7-55 (a), “judgment [in a dispossessory action] shall be entered against the tenant for all rents due and for any other claim relating to the dispute.” (Emphasis supplied.) Thus, the magistrate court in this case clearly had jurisdiction to enter judgment for all amounts due under the lease, regardless of whether such amounts exceeded $5,000.

2. Final judgment. The next question that we must consider is whether the issuance of the writ of possession constitutes a “final judgment” of the magistrate court. “A judgment is final when it disposes of the entire controversy, leaving nothing for the trial court to do in the case. The effect of a judicial act and not the trial court’s characterization of it determines whether it is a final judgment.” (Citation omitted.) Levingston v. Crable, 203 Ga. App. 16, 18 (416 SE2d 131) (1992).

The only relief requested by plaintiff in the magistrate court was the issuance of a writ of possession, and plaintiff expressly declined to seek judgment for any amounts due under the lease. Accordingly, the issuance of the writ of possession disposed of the entire case in magistrate court, leaving nothing further for the court to do. As such, the writ constituted a final judgment in the dispossessory action. See Diplomat Restaurant v. Anthony, 180 Ga. App. 431-432 (349 SE2d 284) (1986) (issuance of writ of possession constitutes final judgment in dispossessory action where no claim for damages remains to be tried in such action); Officenters Intl. Corp. v. Interstate North Assoc., 166 Ga. App. 93-94 (303 SE2d 292) (1983) (writ of possession constitutes final judgment in dispossessory action where no demand for damages made in such action); Leverette v. Moran, 153 Ga. App. 825, 826-827 (266 SE2d 574) (1980) (same). Compare Costanzo, supra, 200 Ga. App. at 810-811 (issuance of writ of possession did not constitute final judgment where issue of past due rent was raised but not ruled on in dispossessory action and thus remained pending).

3. Adjudication on the merits. We next consider whether the judgment in the magistrate court constitutes an adjudication on the merits as to plaintiff’s claim for amounts due under the lease. In Piedmont Cotton Mills v. Woelper, 269 Ga. 109, 110 (498 SE2d 255) (1998), the Supreme Court considered the issue of “what constitutes an ‘adjudication on the merits’ for res judicata purposes.” It held that

an “adjudication on the merits” does not require that the litigation should be determined on the merits, in the moral or abstract sense of these words. It is sufficient that the status of the action was such that the parties might have had their suit thus disposed of, if they had properly presented and managed their respective cases. Thus, it is only where the merits were not and could not have been determined under a proper presentation and management of the case that res judicata is not a viable defense. If, pursuant to an appropriate handling of the case, the merits were or could have been determined, then the defense is valid.

(Citations and punctuation omitted.) Id.

OCGA § 44-7-55 (a) provides that “judgment [in a dispossessory action] shall be entered against the tenant for all rents due and for any other claim relating to the dispute.” (Emphasis supplied.) The statute “intend [s] for all related claims between the landlord and the tenant to be determinable in the dispossessory proceeding.” (Punctuation omitted.) Twin Tower Joint Venture v. American Marketing &c. Corp., 166 Ga. App. 364, 366 (1) (304 SE2d 493) (1983). At the time the dispossessory action was instituted, the lease had already been terminated by plaintiff. Thus, plaintiff clearly could have pursued a claim for past due rents and other amounts due under the lease in the dispossessory action, but elected not to do so. Under Woelper, therefore, the final judgment of the magistrate court operated as an adjudication on the merits of such claim for purposes of res judicata.

4. Identity of cause of action. In the present case, plaintiff sought to recover various amounts allegedly due under the lease, including unpaid rent, property taxes, insurance premiums, and amounts for construction change orders. Each of these items constituted amounts for which plaintiff could have obtained judgment in the dispossessory action pursuant to OCGA § 44-7-55 (a). Accordingly, there is an identity of cause of action between the two cases. See CenTrust Mtg. Corp. v. Smith & Jenkins, P.C., 220 Ga. App. 394, 396-397 (2) (469 SE2d 466) (1996).

5. Pendency of simultaneous actions. The fact that plaintiff had asserted its claim for amounts due under the lease in this action, which was pending at the time of the final judgment in the dispossessory action, does not prevent the application of res judicata.

The doctrine of res judicata may be applied where actions between the same parties in relation to the same subject-matter are pending at the same time, and a judgment is rendered in one of such actions. It is immaterial whether the action in which the judgment is interposed as an estoppel was commenced before or after the action in which the adjudication was made. This rule is not affected by the failure to plead the pendency of the latter action.

(Punctuation omitted.) Darling Stores Corp. v. Beatus, 199 Ga. 215 (4) (33 SE2d 701) (1945).

Decided March 3,1999

Reconsideration denied April 1,1999.

Schreeder, Wheeler & Flint, David H. Flint, Lynn C. Stewart, Oliver, Duckworth, Sparger & Winkle, G. Robert Oliver, for appellants.

Steven H. Ballard, for appellee.

“Res judicata prevents plaintiffs from asserting claims arising from the same transaction piecemeal or presenting only a portion of the grounds on which relief is sought and leaving the rest for a second suit if the first fails.” Mobley, supra, 226 Ga. App. at 868. By electing to divide its claims into two separate actions, and seeking separate relief in each action, plaintiff ran the risk that a judgment in one action would operate as a bar to the other action. Because the claims asserted by plaintiff in the present suit were barred by the doctrine of res judicata, the trial court erred in denying defendants’ motion for summary judgment. See Taylor v. Bennett, 260 Ga. 20, 21 (389 SE2d 242) (1990).

Judgment reversed.

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

       Brackin was also named as a defendant, but he was apparently not served with the complaint and is not a party to this appeal.

       Although the Attorney General reached the same conclusion in an unofficial advisory opinion issued in 1988, see Op. Atty. Gen. U88-18, that is not the basis of our decision.


author: Judge Harold R. Banke. Blackburn, Judge, Pope, Presiding Judge, Beasley, Presiding Judge,

text:
    A98A1765.
    HERR v. WITHERS.
    (515 SE2d 174)
   Judge Harold R. Banke.

After a rear-end collision, James D. Herr sued Bridget L. Withers, alleging negligence. When the jury awarded Herr $10,000, approximately $3,000 less than his claimed special damages, he initiated this appeal. In his sole enumeration, Herr contends the trial court erred in instructing the jury that to recover, he had to establish within a reasonable degree of medical certainty that the injury was the result of Withers’ negligence.

The evidence on Herr’s damages was hotly contested, primarily because the parties disputed whether a preexisting jaw problem necessitated Herr’s extensive dental work. Besides a neck sprain which was admittedly resolved after fifteen physical therapy sessions, Herr claimed that the collision caused jaw pain requiring forty-two visits to his dentist and eight crowns as well as permanent weakness to the lower left side of his face. Herr’s internist testified that the facial weakness was the result of a central seventh nerve palsy caused by head trauma. Herr’s dentist testified that the accident injured a joint in Herr’s jaw and required crowns to allow him to bite. Withers’ experts vigorously disputed Herr’s claim that the accident caused his oral problems with proof that he had preexisting bite abnormalities. They also testified that trauma did not cause the facial weakness. The record showed Herr had a history of jaw complaints going back to September 1980.

At the close of the evidence, the trial court instructed the jury

that in considering expert medical testimony a verdict cannot be formed on speculation or mere possibilities. In order for a plaintiff to recover damages for an injury arising from the negligence of another, it must be shown within a reasonable degree of medical certainty that the injury was the result of the defendant’s negligence. Speculation and possibilities are to be disregarded.

Herr objected, arguing that the charge incorrectly stated that “a reasonable degree of medical certainty” was the standard of proof for proximate causation. He maintained that the proper standard was a reasonable degree of medical probability. Held:

Without question, the standard of proof required to establish that an injury resulted from a defendant’s negligence is a preponderance of the evidence. Patillo v. Thompson, 106 Ga. App. 808, 811 (3) (128 SE2d 656) (1962). Unquestionably, that well-recognized standard for civil cases is not the functional equivalent of requiring certainty. Sanders v. Cowart, 231 Ga. App. 303, 304 (1) (499 SE2d 103) (1998); see Abdul-Majeed v. Emory Univ. Hosp., 225 Ga. App. 608-609 (484 SE2d 257) (1997); Maurer v. Chyatte, 173 Ga. App. 343, 344-345 (3) (326 SE2d 543) (1985); OCGA § 24-1-1 (5); compare Goggin v. Goldman, 209 Ga. App. 251, 253 (433 SE2d 85) (1993) (although medical malpractice actions require proof of causation to a reasonable degree of medical certainty, in negligence cases, as here, the proper standard is a preponderance of the evidence). To the extent that the charges in Leslie v. Williams, 235 Ga. App. 657, 659 (2) (510 SE2d 130) (1998); Johnson v. Cooper, 234 Ga. App. 753, 756-757 (2) (507 SE2d 559) (1998); Royal v. Davis Hauling Co., 164 Ga. App. 409, 410 (2) (297 SE2d 333) (1982) and Womack v. St. Joseph’s Hosp., 131 Ga. App. 63, 65 (4) (205 SE2d 72) (1974), may hold otherwise, they are disapproved.*

We take issue with the dissent’s contention that we have indiscriminately commingled malpractice and negligence law. On the contrary, we have carefully differentiated the case law to make abundantly clear that the “reasonable degree of medical certainty” language should never be injected into a charge on causation in an ordinary negligence action.

Further, the dissent has overlooked the well-settled legal principle that reversal requires both harm and error. Sparti v. Joslin, 230 Ga. App. 346, 350 (3) (b) (496 SE2d 490) (1998); Gantt v. Bennett,231 Ga. App. 238, 242 (3) (499 SE2d 75) (1998). Despite the error in the charge, Herr won his case. The jury awarded him most, if not all, of the damages he proved. “Where a jury returns a verdict and it has the approval of the trial judge, the same must be affirmed on appeal if there is any evidence to support it as the jurors are the sole and exclusive judges of the weight and credit given the evidence.” (Punctuation omitted.) Johnson v. Cooper, 234 Ga. App. at 753.

Here, construing the evidence in the light most favorable to the prevailing party, as we must, we find the evidence of damages supports the $10,000 award. Johnson v. Cooper, 234 Ga. App. at 753. At trial, Herr presented documentation of approximately $10,885.26 in medical specials. Of these expenses, $7,266.38 were for the controversial dental work. Thus, the jury’s award may cover this expense in its entirety notwithstanding the facts that Herr did not seek treatment for his jaw problem until almost four months after the accident and both Herr and his dentist admitted that Herr had received treatment on his jaw for essentially the same condition before the accident.

Herr’s documentation of his lost wages was even less precise. See Super Discount Markets v. Coney, 210 Ga. App. 659, 660 (2) (436 SE2d 803) (1993) (proof of lost wages must be “reasonably certain” and not speculative). He presented no tax returns. Instead, he testified that he averaged about $315 per week “or so” and missed work 47 days. However, after the first week, the days were nonconsecutive. Keplinger v. Cook, 115 Ga. App. 540, 541-542 (1) (154 SE2d 765) (1967). Herr offered no proof that each absence was accident-related. Even so, assuming they were, it is impossible to discern whether the verdict included all or part of the lost wages claim. At trial, Herr explicitly abandoned his request for future medical costs and lost wages.

Given the incomplete and controverted evidence, particularly that undermining Herr’s credibility and that offered to prove lost wages, we must conclude that the verdict was within the range of the evidence. Dept. of Transp. v. 19.646 Acres of Land, 178 Ga. App. 287, 288 (1) (342 SE2d 760) (1986). “We decline to substitute our judgment based upon a cold record for that of enlightened jurors who heard the evidence and saw the witnesses.” (Punctuation omitted.) Annis v. Tomberlin & Shelnutt Assoc., 195 Ga. App. 27, 32 (4) (392 SE2d 717) (1990). The $10,000 award was sufficiently commensurate with the proof of damages to preclude Herr from satisfying his burden of establishing the requisite harm. Dept. of Transp. v. 19.646 Acres of Land, 178 Ga. App. at 288 (1).

This ruling renders moot Withers’ motion to strike.

Judgment affirmed.

McMurray, P. J., and Eldridge, J., concur. Blackburn, J., concurs specially. Johnson, C. J, Andrews and Smith, JJ., concur in the judgment only. Pope, P. J., Beasley, P. J, and Ruffin, J., dissent.

Blackburn, Judge,

concurring specially.

While I concur fully in the majority’s opinion, I write specially to point out that the jury in this case found in favor of the plaintiff despite the fact that the trial court improperly placed a higher burden of proof on him with regard to liability.

[I]t has long been the rule that when a verdict has been returned in favor of the plaintiff, errors in the giving of the charge, in omissions from the charge or in the refusal of requests which go to the matter of liability only are harmless to the plaintiff and afford no ground for reversal at his instance.

Maloy v. Dixon, 127 Ga. App. 151, 155-156 (2) (b) (193 SE2d 19) (1972). In this case, the erroneous charge related only to the issue of liability, not damages. As such, Herr, who received a jury verdict in his favor, was not harmed by the court’s erroneous charge. Marek Interior Systems v. White, 230 Ga. App. 518 (496 SE2d 749) (1998), cited by the dissent, does not change this outcome because there, unlike here, the plaintiff did not receive a verdict in its favor. As such, Marek is distinguishable from this matter.

While it is probably not necessary to overrule the cases cited by the majority, it would clarify the law and reduce future appeals to do so. What we really have is a semantic question, as “a reasonable degree of medical certainty,” is that it is “more likely than not” that the condition sought to be proven resulted from the subject incident.

It serves no purpose to reverse the case because the charge imposed a higher burden than the plaintiff actually had as to liability where the jury finds that the higher burden has been met. To do so would be to return the case to the trial court for another jury to determine whether or not the plaintiff can meet the lower burden. The damages award is unaffected by the charge in this case. Hawkins v. Greenberg, 166 Ga. App. 574, 577 (1) (a) (304 SE2d 922) (1983).

Pope, Presiding Judge,

dissenting.

I respectfully dissent. Although I agree with the majority that the charge was erroneous, I do not agree that the error was harmless. Additionally, I disagree with portions of the majority’s analysis.

As the majority correctly points out, the standard of proof required to establish that an injury resulted from a defendant’s negligence is a preponderance of the evidence. Estate of Patterson v. Fulton-DeKalb Hosp. Auth., 233 Ga. App. 706, 708 (2) (505 SE2d 232) (1998). “Preponderance of [the] evidence means that superior weight of evidence upon the issues involved, which, while not enough to free the mind wholly from a reasonable doubt, is yet sufficient to incline a reasonable and impartial mind to one side of the issue rather than to the other.” (Punctuation omitted.) Id. See also OCGA § 24-1-1 (5).

As the majority also correctly concludes, the court erred in charging the jury that the plaintiff was required to show “within a reasonable degree of medical certainty that the injury was the result of the defendant’s negligence.” It is improper to charge in a civil case that proof must establish the contention to a certainty. See, e.g., Masonic Relief Assn. v. Hicks, 47 Ga. App. 499, 500 (3) (171 SE 215) (1933); Youmans v. Moore, 11 Ga. App. 66 (2) (74 SE 710) (1912). In this connection, OCGA § 24-4-4 sets forth guidelines for determining where preponderance of evidence lies.

I agree with the majority that to the extent that Johnson v. Cooper, 234 Ga. App. 753, 756 (2) (507 SE2d 559) (1998), and Royal v. Davis Hauling Co., 164 Ga. App. 409, 410 (2) (297 SE2d 333) (1982), indicate that causation must be proved with certainty, the charges at issue were incorrect. Although the charge in Womack v. St. Joseph’s Hosp., 131 Ga. App. 63, 65 (4) (205 SE2d 72) (1974), was incorrect, the court resolved the issue in Womack on the basis of appellant’s inadequate objection, and no disapproval of Womack is necessary here.

Despite my agreement with the majority’s position that the charge was erroneous, I am troubled by the majority’s indiscriminate treatment of medical malpractice and ordinary negligence cases. Although, as the majority notes, the court in Estate of Patterson v. Fulton-DeKalb Hosp. Auth. discussed the standard of preponderance of the evidence, that case was one for medical malpractice. In that context, this court stated that “reasonable medical probability” has no greater meaning than a preponderance of the evidence. Nonetheless, it is important to note that the issue in Patterson was whether the medical testimony of plaintiff’s medical expert was sufficient evidence of causation to withstand the motion for summary judgment. The question at issue in Patterson as to whether the plaintiff’s expert’s assertion was legally sufficient to establish causation differs from the question before us in this ordinary negligence case. For this reason, the majority’s reliance on various medical malpractice cases appears misplaced.

The trial court’s erroneous charge incorrectly stated Herr’s burden of proving damages and was harmful. See generally Marek Interior Systems v. White, 230 Ga. App. 518, 521 (3) (496 SE2d 749) (1998). “Where the material issues are close, under the evidence, such erroneous instruction requires a new trial.” Youmans, 11 Ga. App. at 66 (2). Here, the majority concedes that the damages were “hotly contested,” primarily because the parties disputed whether a preexisting jaw problem necessitated Herr’s extensive dental work. Moreover, the majority notes that Withers’ experts vigorously disputed Herr’s claim that the accident caused his oral problems with proof that he had preexisting bite abnormalities. Those experts also testified that trauma did not cause the facial weakness. The jury’s verdict was about $3,000 less than Herr’s special damages. In light of the conflicting evidence regarding Herr’s damages in this case, we cannot conclude that the significantly erroneous charge on the burden of proving those damages was harmless. The charge was fundamental to Herr’s case, and accordingly, the error therein was harmful.

I am authorized to state that Presiding Judge Beasley and Judge Ruffin join in this dissent.

Beasley, Presiding Judge,

dissenting.

I concur fully in the dissent but wish to point out the following with respect to this Court’s jurisdiction of the appeal.

The verdict in this case was for $10,000. Accordingly, the judgment is for $10,000 plus, as usual, costs. Herr took a direct appeal from the judgment and denial of the motion for new trial. OCGA § 5-6-35 (a) (6) requires the discretionary appeal procedure to be followed for “[a]ppeals in all actions for damages in which the judgment is $10,000.00 or less.”

Decided March 19,1999

Reconsideration denied April 1,1999

Hyatt & Hyatt, John M. Hyatt, for appellant.

Bovis, Kyle & Burch, John H. Peavy, Jr., for appellee.

Castleberry’s Food Co. v. Smith, 205 Ga. App. 859, 861 (1) (424 SE2d 33) (1992), construed the statutory directive and held that “for establishing jurisdiction pursuant to OCGA § 5-6-35 (a) (6), a judgment is comprised of principal, plus costs, plus interest at the legal rate accrued from the date of the filing of the judgment until the date of the filing of the notice of appeal.” That means that whenever appeal is sought from a judgment in the neighborhood of $10,000, the court will have to be apprised of the amount of the costs and the amount of interest to the date the notice of appeal happens to be filed within a 30-day period. I presume it will be appellant’s burden to prove this so as to establish the jurisdictional threshold for the direct appeal.

That is problematic, as jurisdiction will in some instances rest on the date the appeal notice is filed and not, cleanly, on the amount of the jury’s verdict reduced to judgment. To be safe, a proposed appellant will have to file both an application and a notice of appeal to leave both routes open in the event the calculations are wrong.

       In Royal, the court charged as follows:
      “[I]f you believe that from the evidence adduced that the cause of any injury or medical condition which may have been suffered by the plaintiff cannot be determined with certainty, but that it is a matter of speculation or conjecture, then in that event you would not be authorized to find a verdict against the defendants in any amount. And in such instance it would be your duty to return a verdict in favor of the defendants,) it being absolutely necessary for the plaintiff in order to recover damages from the defendants to show by a legal preponderance of the evidence that the loss complained of was proximately caused by the negligence of the defendants. In this connection I further instruct you that the law does not permit you to speculate or to guess about the existence of either the negligence or the injury claimed.”

        Id. at 410 (2).

       The trial court’s reliance on Womack, the sheer number of appeals involving similar charges, and the very existence of this appeal refute the dissent’s contention that such disapproval is unnecessary.

       Because some of the documentation is illegible, we cannot set the exact amount with certainty. We subtracted a bill for $130 incurred in October 1995 (the collision occurred in June 1992) for ah office visit at Mulberry Medical Associates, P.C. which involved a urinalysis and CBC.

       Nevertheless, the arguments raised by the appellants in Johnson and Royal did not address the burden of proof, and thus this court did not directly address this issue. Thus, I do not think that it is necessary to disapprove or overrule the cases.