author: Ruffin, Judge.

text:
    A96A0087.
    BANKSTON v. CITY OF BARNESVILLE et al.
    (471 SE2d 543)
   Ruffin, Judge.

Bertha Bankston appeals from the superior court’s order dismissing her claim to proceeds from a condemnation action. In the underlying action, the City of Barnesville (“the City”) condemned property for construction of a police station. A special master valued the condemned property at $70,000 and awarded that amount to the estate of T. R. Bush and the heirs at law of Cleveland Bush (“Condemnees”). In an order dated May 11, 1994, the superior court made the special master’s award the judgment of the court. After the City paid $70,000 into the registry of the court, Bankston, a predecessor in title, claimed she was entitled to the funds, arguing that she never deeded the property to T. R. and Cleveland Bush, her brothers. After a hearing, the superior court dismissed Bankston’s claim and ordered that the funds be disbursed to the Condemnees. For reasons which follow, we affirm the order of the superior court.

The record shows that in establishing title to the property, the City relied on a deed of record conveying the property to T. R. and Cleveland Bush. Bankston testified that she sold the property to the Bushes in 1955 for $10,000, but that they paid only $950 towards the purchase price. Although Bankston acknowledged she never demanded that the Bushes pay the balance of the purchase price, she contended that the deal was never consummated due to their failure to pay. The Bushes operated a cafeteria, pool room, and barber shop on the property for 35 to 40 years. When asked whether she paid any taxes on the property, Bankston responded: “No. Because [T. R. Bush] was in charge and I wouldn’t come up and pay tax on his property.” During the 1970s, the building housing the Bushes’ businesses burned down. The Bushes rebuilt the building at their own expense. Finally, when asked whether she was asking the City to pay her some money, Bankston replied: “No. I am stopping them with that building . . . they do not have a clear title. . . .” She then acknowledged that she did not object to the money being paid to the Condemnees, but that it was not fair because the City did not have clear title.

1. On appeal, Bankston asserts that the trial court erred in dismissing her claim because the Bushes never paid for the property, she never signed a deed to the property, and her brothers’ use of the property was permissive.

We note initially that contrary to the arguments of the Condemnees and the City on appeal, Bankston’s claim to the funds was properly before the superior court. Appellees argued at length in their briefs that because Bankston did not present her claim to the special master, she waived any subsequent claim before the superior court. However, OCGA § 22-2-139 clearly provides that such a claim is not waived by the failure to assert it when the matter was before the special master. Fourth Nat. Bank &c. v. Grant, 140 Ga. App. 78, 83 (2) (230 SE2d 60) (1976).

We also conclude that the superior court did not err in denying Bankston’s claim. The superior court found not only that Bankston failed to show she had title to the property, but also that she “admitted that she does not claim any interest in the funds.” We find that there was sufficient evidence to support the trial court’s finding that Bankston was not entitled to the funds because she did not own the property. See id.

Moreover, it is evident from Bankston’s own testimony that she was abandoning any claim to the funds, and instead challenging the City’s title to the property. That, however, is an issue that was conclusively decided several months earlier when the superior court entered judgment on the special master’s award. See Beck v. Cobb County, 180 Ga. App. 808, 812 (350 SE2d 818) (1986). “The special master method of condemnation is intended to be an expeditious method of arriving at the just and adequate compensation to be first paid a citizen. . . .’ [Cits.]” Id. at 810. See also OCGA § 22-2-101. “Any legal findings evinced by the award of the special master, to which no exceptions raising nonvalue issues were ever filed, have long since been made the judgment of the superior court and the instant case is not an appeal from that judgment. ‘The award and judgment, unexcepted to and unappealed from, is res judicata as to the nonvalue issues.’ ” (Citations omitted.) Id. at 812. The judgment in the condemnation proceeding is, therefore, conclusive as to Bankston’s claim concerning title to the property. See id. Title vested in the City at the time it deposited the funds into the court’s registry. See OCGA §§ 22-2-110 (b); 22-2-114. Therefore, because Bankston waived her claim to title and explicitly abandoned her claim to the proceeds, the trial court correctly resolved the case by dismissing her claim. See Beck, supra.

Decided May 16, 1996.

Martin & Martin, Harold E. Martin, for appellant.

W. Franklin Freeman, Jr., Norman Smith, John L. Strauss, for appellees.

2. Appellee, Betty Bush Wynn moved for attorney fees in this appeal, claiming that Bankston did not have standing to assert her claim to the funds before the superior court. As stated above, this assertion is without merit, and Wynn’s motion is therefore denied.

Judgment affirmed.

McMurray, P. J., and Johnson, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    A96A0272.
    CLEVELAND v. SNOWDROP PROPERTIES, N.V. et al.
    (471 SE2d 542)
   Ruffin, Judge.

On November 23, 1992, Deborah Cleveland suffered a compensable workers’ compensation injury while entering the office building where she worked. On November 22, 1994, Cleveland filed a negligence action against the building owner and management company (collectively “Snowdrop Properties”). On May 15, 1995, the trial court granted Snowdrop Properties’ motion to dismiss the complaint on the ground that Cleveland’s case was time-barred by the one-year statute of limitation contained in former OCGA § 34-9-11.1 (c). Cleveland appealed from that order, arguing that the amended version of OCGA § 34-9-11.1 eliminated the one-year limitation and allowed her to file suit within the statute of limitation applicable to personal injury actions. We agree and reverse.

The issue in this case is controlled by Vaughn v. Vulcan Materials Co., 266 Ga. 163 (465 SE2d 661) (1996). There, our Supreme Court recognized that “[t]he new legislation, enacted April 18, 1995 and effective July 1, 1995, provides that an injured employee must institute a third-party action ‘within the applicable statute of limitations.’ OCGA § 34-9-11.1 (c). The Legislature further provided that this revision to the statute would apply retroactively to all injuries occurring on or after July 1, 1992.” Id. at 164.

Decided May 16, 1996.

Paul R. Vancil, for appellant.

Swift, Currie, McGhee & Hiers, Robin F. Clark, John W. Campbell, for appellees.

Contrary to the arguments raised by Snowdrop Properties below and on appeal, “[t]here is no vested right in a statute of limitation and a ‘legislature may revive a . . . claim which would have been barred by a previous limitation period by enacting a new statute of limitation, without violating our constitutional prohibition against retroactive laws.’ [Cits.]” Id. “Accordingly, because [Cleveland’s] injury occurred in [November] 1992 and the amendment to OCGA § 34-9-11.1 (c) applies ‘retroactively to injuries occurring on or after July 1, 1992,’ it controls in the instant case. [Cit.]” Id.

“The applicable statute of limitation in the present case is two years. OCGA § 9-3-33. [Cleveland] thus commenced the present action within the applicable statute of limitation. The trial court’s order, predicated on the former version of OCGA § 34-9-11.1 (c), fails to comport with the current version of OCGA § 34-9-11.1 (c) as required by OCGA § 34-9-11.1 (e), with the result that it was error to dismiss [Cleveland’s] action as time-barred.” Id. at 165.

Judgment reversed.

McMurray, P. J, and Johnson, J., concur.


text:
    A96A0296.
    DISTRIBUTION CONCEPTS COMPANY et al. v. HUNT.
    (471 SE2d 539)
   Ruffin, Judge.

Anthony Hunt filed a claim for workers’ compensation benefits alleging that on February 18, 1994, he injured his back while employed by Distribution Concepts Company (“Distribution Concepts”). Hunt claimed that the injury occurred when he was unloading a 125 pound bag of tea from a trailer. The administrative law judge (“ALJ”) denied Hunt’s claim, and the Appellate Division adopted the ALJ’s award. On appeal, the superior court found that there was sufficient evidence to support the Appellate Division’s award, but remanded the case to the ALJ for consideration of newly discovered evidence. We granted Distribution Concepts’ application for discretionary appeal and, for reasons which follow, reverse the decision of the superior court.

At the hearing before the ALJ, Hunt testified that after the accident, he told a co-worker, Pat McBride, and his supervisor, Bill Glisson, that he injured his back. Although McBride did not testify at the hearing, Glisson denied that Hunt informed him of the accident. Distribution Concepts’ warehouse manager, James Polcyn, testified that he attended Hunt’s birthday party the evening of the accident and went fishing with him for approximately four hours the next morning. Polcyn stated that Hunt did not mention the injury to him on either occasion. He further testified that Hunt did not appear injured and that they “ran up and down the banks and over the hills and down to the fishing stream.” Based on the foregoing, the ALJ found Hunt’s testimony incredible and denied the claim. Regarding Hunt’s testimony that he told McBride of the accident, the ALJ found “coworker McBride was not brought in to give testimony, so the alleged injury was not corroborated by him.” The superior court remanded the case to the ALJ to consider McBride’s testimony based upon its finding that “the Administrative Law Judge placed upon the claimant a burden which is not required by law: the burden to corroborate his testimony.”

1. We note initially that the record does not support the superior court’s finding that the ALJ placed a burden on Hunt to corroborate his testimony. A plain reading of the ALJ’s award shows that he found Hunt’s testimony incredible. In considering whether McBride corroborated Hunt’s testimony, the ALJ was only determining whether Hunt’s testimony was strengthened by such additional testimony. See Langford v. Royal Indem. Co., 208 Ga. App. 128, 130-132 (3) (c) (430 SE2d 98) (1993). Because the ALJ, as the finder of fact, was responsible for resolving discrepancies in the evidence and determining witness credibility, he did not err in considering whether Hunt’s testimony was strengthened by other evidence. See Young v. Columbus Consolidated Govt., 263 Ga. 172 (1) (430 SE2d 7) (1993).

2. Distribution Concepts asserts that the trial court erred in remanding the case to the ALJ for consideration of McBride’s testimony, which Hunt claimed was newly discovered evidence.

In a motion to the Appellate Division, Hunt claimed that at the time of his ALJ hearing he could not locate McBride to testify, and that ten days after the ALJ issued his award, he saw McBride in a store parking lot. In an affidavit supporting Hunt’s motion, McBride stated that after the accident, Hunt told him and Glisson that he hurt his back. The Appellate Division did not remand the case.

The Appellate Division has discretion as to whether it remands a case for consideration of new or additional evidence, and that discretion will not be disturbed unless it is manifestly abused. Hon Co. v. Dobbs, 165 Ga. App. 654, 655 (302 SE2d 365) (1983). In considering this issue, the Appellate Division “ ‘is directed to apply the law of Georgia regarding the nature and character of newly discovered evidence required for the granting of a new trial. [Cits.]’ [Cits.]” Old Dominion Freight Line v. Anthony, 216 Ga. App. 267, 268 (1) (454 SE2d 574) (1995). One of the requirements for granting a new trial based on newly discovered evidence is that the evidence not be cumulative. Dobbs, supra. “‘Evidence is cumulative when it goes to the fact principally controverted on the former trial, and respecting which, the party asking for a new trial, produced testimony.’ [Cits.] Where the newly discovered evidence consists of more evidence of the same kind and to the same point and would be in support of the testimony of the [employee] and to the discredit of the [employer], it is cumulative and not cause for a new [hearing]. [Cits.]” Baumbach v. Dickens, 213 Ga. 745, 747 (1) (101 SE2d 702) (1958).

Decided May 16, 1996.

Drew, Eckl & Farnham, John G. Blackmon, Jr., Marion M. Handley, for appellants.

Ray C. Smith, for appellee.

In this case, McBride’s proffered testimony that Hunt told him and Glisson that he hurt his back is purely cumulative of Hunt’s own testimony before the ALJ. See Vinson v. State, 127 Ga. App. 607, 608 (3) (194 SE2d 583) (1972). Accordingly, the Appellate Division did not abuse its discretion in failing to remand the case to the ALJ for consideration of the testimony. See id.; Dobbs, supra.

Moreover, in an appeal to the superior court, the court is without any authority to remand the case on account of newly discovered evidence. Id. “ ‘Of course, if the award were unsupported by competent evidence in the record, the matter could be remanded to the [Appellate Division] for hearing further evidence — whether newly discovered or not — but where there is evidence in the record which does support the award made, neither the superior court nor this court may do so.’ [Cits.]” Id. at 656. In this case, we agree with the superior court that there was sufficient evidence in the record to support the Appellate Division’s award. Id. Therefore, the superior court erred in remanding the case.

Judgment reversed.

McMurray, P. J, and Johnson, J, concur.


text:
    A96A0740.
    DUKE v. KHD DEUTZ OF AMERICA CORPORATION.
    (471 SE2d 537)
   Ruffin, Judge.

John Duke appeals from the grant of partial summary judgment to KHD Deutz of America Corporation (“KHD”), the plaintiff in the underlying action on a guaranty. The trial court found Duke liable to KHD under the guaranty as a matter of law. For reasons which follow, we affirm.

Summary judgment is appropriate when the court, viewing all the evidence and drawing reasonable inferences in a light most favorable to the non-movant, concludes that the evidence does not create a triable issue as to each essential element of the case. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Viewed in that light, the record shows the following: On March 2, 1992, KHD entered into a loan and security agreement naming Prime Commercial Corporation as the borrower. On the same date, Duke executed a guaranty agreement in favor of KHD which named American Alliance Receivables Corporation as the borrower. The guaranty agreement stated as follows: “WHEREAS, American Alliance Receivables Corporation, a Georgia corporation (the “Borrower”), and the Credit issuer have entered into a Loan and Security Agreement of even date herewith. . . .” It is undisputed that the only loan and security agreement entered into on March 2, 1992 was the one between KHD and Prime Commercial Corporation. A stock pledge reflecting Prime Commercial Corporation as the borrower was also executed on March 2, 1992.

Duke contends the trial court erred in granting KHD’s motion for partial summary judgment on the guaranty agreement because the guaranty agreement “identified another loan that was being guaranteed, rather than the one being sued on in this case.” Specifically, Duke alleges that the guaranty agreement names American Alliance Receivables Corporation as the borrower and that parol evidence is inadmissible to prove Prime Commercial Corporation was the intended and actual borrower. We disagree.

Pursuant to OCGA § 24-6-3 (a), “[a]ll contemporaneous writings shall be admissible to explain each other.” The statute does not restrict this particular subsection to admit contemporaneous documents only if there is an ambiguity in the documents. In fact, subsection (b) of OCGA § 24-6-3 deals with the admission of parol evidence to explain ambiguities. In Baker v. Jellibeans, Inc., 252 Ga. 458, 459 (1) (314 SE2d 874) (1984), the Supreme Court declared that contemporaneous writings should be considered even if one of the writings purports to contain “the entire understanding of the parties hereto with respect to the transactions contemplated hereby” and even if the writings are not cross-referenced. As the Court noted, “[contemporaneous written agreements are perhaps one of the surest ways to establish the intent of the parties in entering into each of those agreements.” Id. at 459.

Decided May 16, 1996.

Lokey & Smith, Charles M. Lokey, Malcolm Smith, Jon W. Burton, for appellant.

“Because the guaranty agreement was executed at the same time and in the course of the same transaction as the [loan and security agreement and stock pledge agreement], the [three] instruments should be read and construed together.” Tucker Station, Ltd. v. Chalet I, 203 Ga. App. 383, 385 (2) (417 SE2d 40) (1992). Despite the misnomer of American Alliance Receivables Corporation as the borrower in the guaranty agreement at issue, the other contemporaneous writings, including the loan and security agreement and stock pledge, clearly indicate that Prime Commercial Corporation was the intended and actual borrower. Thus, it was not error for the trial court to correct an obvious error and interpret the guaranty agreement accordingly.

Builder’s Supply Corp. v. Taylor, 164 Ga. App. 127 (296 SE2d 417) (1982), cited by the appellants, is inapposite because it did not involve contemporaneous writings. Moreover, in Taylor there was no ambiguity in the description of the principal debtor; it was omitted altogether. Id. at 128. Accordingly, the document in Taylor failed to satisfy the statute of frauds, and the Court refused to consider parol evidence to correct this deficiency. Id. In the present case, the requirements of the statute of frauds have been met. The guaranty agreement is written and contains all necessary requirements, including the name of the principal debtor. See OCGA § 13-5-30. However, ambiguity arises when the guaranty agreement is read and construed with the contemporaneous writings.

It is the duty of the trial court, as a matter of law, to employ the rules of contract construction and ascertain the intention of the parties unless “there appears to be an ambiguity in the contract which cannot be negated by the court’s application of the statutory rules of construction.” (Citations and punctuation omitted.) Richard Haney Ford v. Ford Dealer Computer Svcs., 218 Ga. App. 315, 316 (461 SE2d 282) (1995); see also OCGA § 13-2-2. The ambiguity created when the guaranty agreement is read and construed in conjunction with its contemporaneous writings was properly resolved by the trial court. Accordingly, we affirm the trial court’s grant of partial summary judgment to KHD on the subject guaranty agreement.

Judgment affirmed.

McMurray, R J, and Johnson, J., concur.

Jones, Day, Reavis & Pogue, Robert M. Martin, Dorothy Y Kirkley, for appellee.


author: McMurray, Presiding Judge.

text:
    A96A0506.
    BROWN v. THE STATE.
    (471 SE2d 527)
   McMurray, Presiding Judge.

Defendant was charged with violating the Georgia Controlled Substances Act by manufacturing marijuana and also misdemeanor possession of marijuana (less than one ounce). He was tried before a jury and found guilty only of manufacturing marijuana. Defendant appeals from the judgment of conviction and sentence entered on the jury’s verdict. Held:

In his sole enumeration of error, defendant contends the trial court erred in denying his motion for new trial on the special ground that the trial court “expressed] an opinion in response to a juror’s question after the court recharged the jury,” in violation of OCGA § 17-8-57.

The transcript shows that, in response to the jury’s request for additional instructions, the trial court recharged the jury on the definition of manufacturing marijuana. The following then transpired:

“[JUROR]: I guess the question that came up was ... if you came to the conclusion that they were aware of it and did nothing about it, is that still considered manufacturing? [THE COURT]: Well, it’s your — the answer to me, that would be yes. I don’t know what, if you let people use your property without doing something about it, to grow marijuana or manufacture, that would be — you have the power to control that; if you don’t, then it becomes, you become a party. [THE JUROR]: That was the question that came up.” The trial court then directly inquired of counsel as to “[a]ny objections to the recharge and to anything I said to the jury during that recharge?” Defense counsel replied, “No objection, your honor.”
“The present rule is that the question of whether OCGA § 17-8-57 has been violated is not reached unless an objection or motion for mistrial is made. In the case sub judice, defendant did not object or move for a mistrial when the trial court [answered the juror’s question about the legal significance of a state of facts hypothesized to be true]. Consequently, defendant failed to preserve for appellate review any alleged violation of OCGA § 17-8-57.” (Citations and punctuation omitted.) Cornelius v. State, 213 Ga. App. 766, 770 (3) (445 SE2d 800). Although defendant, in the case sub judice, further argues that this Court should review his enumeration under the authority of OCGA § 5-5-24 (c), an objection to explanatory comments is not the same as an exception to the substance of the recharge. Grier v. State, 218 Ga. App. 637, 639 (3), 640 (463 SE2d 130). This enumeration presents nothing for review.

Decided May 3, 1996

Reconsideration denied May 17, 1996

William L. Reilly, for appellant.

Roger G. Queen, District Attorney, William B. Britt, Assistant District Attorney, for appellee.

Judgment affirmed.

Johnson and Ruffin, JJ., concur.


text:
    A96A0405.
    JAYSON v. GARDOCKI.
    (471 SE2d 545)
   McMurray, Presiding Judge.

Permission to pursue discretionary appeal from an award of attorney fees was granted under the following circumstances: Plaintiff Roger Paul Gardocki, formerly married to defendant Kathleen Jayson, brought a verified “PETITION FOR MODIFICATION OF CUSTODY AND CHILD SUPPORT PURSUANT TO O.C.G.A. 19-9-1 (a).” The complaint contained the demand: “In the event that Defendant [Kathleen Jayson] contests this action, Plaintiff requests that the Court exercise its discretion to order any psychological testing and evaluation of the parties and [the minor son,] PATRICK CHAPIN GARDOCKI. . . .” The express prayers were for temporary and permanent custody of the minor son; that a rule nisi issue; that psychological testing and evaluation be ordered; that defendant Kathleen Jayson be awarded liberal visitation; that child support be modified in accordance with custody; and such other relief as may be just and necessary. There is, however, no prayer or demand for attorney fees.

Defendant answered and denied the material allegations. At the hearing on plaintiff’s petition, defendant’s counsel announced that defendant “has instructed me to withdraw the Answer and leave the proceeding.” The trial court suggested that this circumstance “should shorten the case.” The trial court nevertheless proceeded with the evidentiary hearing because, in order “to modify and change custody, [there needs to be] evidence in the record to make a determination” that any change is in the best interests of the child. At the close of the evidence, plaintiff’s counsel offered to “review the prayers” for the court. In addition to matters of custody and child support, plaintiff asked for an award of attorney fees “based on modification of child support[.]” Plaintiff’s counsel stated in her place that she had “prepared] pleadings in response to Mr. Jaysons [sic] both filed pleadings and actual conferences^ plus counsel] filed [a] trial memorandum, and we have been here all day long.” Nevertheless, counsel performed “only the absolutely] necessary services. . . .” After the hearing, the trial court awarded sole custody of the minor boy to plaintiff and ordered defendant to pay child support in the amount of 25 percent of her gross income. The trial court further concluded that plaintiff’s attorney fees and expenses of litigation were “reasonable and necessary and were necessitated by the conduct of Defendant and her counsel. . . .”

Defendant’s application for discretionary appeal was granted by this Court and a timely notice of appeal was filed. Defendant appeals from the final modification order, requiring her to pay attorney fees. Held:

1. In her second enumeration, defendant contends the trial court erred in awarding attorney fees “in a default proceeding where the issue of [attorney] fees had never been alleged, averred, or prayed for, and where there had been no notice whatsoever to [defendant] that the issue of [attorney] fees would arise.” We agree. We do not quarrel with plaintiff’s argument that attorney fees can be authorized by OCGA § 19-6-2 under a petition to modify child support ancillary to a change in custody. See McDonogh v. O’Connor, 260 Ga. 849 (400 SE2d 310). The fundamental obstacle to any such award in the case sub judice, however, is the want of notice to the defendant that such a claim would be pursued by plaintiff.

Due process of law requires that a party in a divorce or modification action be entitled to notice of issues not raised in the complaint or by proper amendment, which are to be decided by the court, “notwithstanding the fact that no answer has been filed. Lambert v. Gilmer, 228 Ga. 774 (187 SE2d 855) (1972). This is so because the complaint does not put the opposing party on notice that he will have to defend against these issues.” Harris v. Harris, 258 Ga. 496 (371 SE2d 399). See generally Flint River Steamboat Co. v. Foster, 5 Ga. 194, 201 (3), 202 and cits. OCGA § 9-11-5 (a) provides in part: “[T]he failure of a party to file pleadings . . . shall be deemed to be a waiver by him of all notices, including notices of time and place of trial, and all service in the action, except service of pleadings asserting new or additional claims for relief, which shall be served as provided by [OCGA § 9-11-5 (b)].” (Emphasis supplied.) See also Teamsters Local 515 v. Roadbuilders, Inc. of Tennessee, 249 Ga. 418, 419 (1), 420 (291 SE2d 698); Cross v. Cross, 230 Ga. 91 (195 SE2d 439).

In the case sub judice, when defendant withdrew her answer before the evidentiary hearing, she was in default. OCGA § 9-11-55 (a). “A judgment by default shall not be different in kind from or exceed in amount that prayed for in the demand for judgment.” OCGA § 9-11-54 (c) (1). “ ‘Plaintiff’s relief in a judgment by default is strictly limited in nature and degree to that specifically demanded in the complaint, even though the allegations or the proofs, or both, would justify, other, additional, or greater relief, as under a prayer for general relief.’ [Cits.]” Dempsey v. Ellington, 125 Ga. App. 707, 708 (2) (188 SE2d 908). “To the extent that a judgment by default exceeds the amount prayed for, it is a nullity. Orkin Exterminating Co. v. Townsend, 136 Ga. App. 50[, 52] (2)[, 53] (220 SE2d 14) (1975); see Dempsey v. Ellington, 125 Ga. App. 707 (2)[, supra].” Jones v. Cooke, 169 Ga. App. 516 (2), 517 (313 SE2d 773). A concluding prayer for “general relief” is not sufficient to put a defendant in default on notice of any intent to assert a claim for attorney fees based on the modification of child support obligations ancillary to a successful petition to change child custody. Such an argument is “innovative but not persuasive.” Wilkins v. Wilkins, 234 Ga. 404, 406 (216 SE2d 302). See also Preferred Risk Ins. Co. v. Boykin, 174 Ga. App. 269, 275 (7) (329 SE2d 900), holding that a “general prayer for ‘such other just and equitable relief as this Court may deem proper and necessary[,]’ . . . was not sufficient to state a claim for attorney fees,” under OCGA § 13-6-11. Compare Floyd v. First Union Nat. Bank &c., 203 Ga. App. 788 (1), 789 (417 SE2d 725) (defaulting defendant liable for an open-ended award of punitive damages and attorney fees under OCGA § 9-11-54 (c) (1) where those plaintiffs “specifically prayed for both ... in an amount to be determined at trial”). Moreover, a defendant in default and not present at the trial of the case cannot be held, under OCGA § 9-11-15 (b), to have consented to an amendment of the pleadings to conform to the evidence presented in his absence. Ticor Constr. Co. v. Brown, 255 Ga. 547, 548 (2) (340 SE2d 923); Stroud v. Elias, 247 Ga. 191 (1), 192 (275 SE2d 46); Lambert v. Gilmer, 228 Ga. 774, 776, supra. In the case sub judice, when defendant Kathleen Jayson authorized her attorney to withdraw her answer, she had no notice from the complaint (or any properly served amendment) that plaintiff Roger Paul Gardocki would demand attorney fees under OCGA § 19-6-2 or any other provision of law. The default judgment awarding attorney fees exceeds the nature of the relief prayed for and that award is, therefore, vacated as a nullity. Jones v. Cooke, 169 Ga. App. 516, 517 (3), supra. See also First Nat. Bank &c. v. Blackburn, 254 Ga. 379, 380 (2) (329 SE2d 897).

2. Defendant’s remaining enumerations as to the changes in visitation and the transfer of property belonging to the child have been considered and are found to be without merit.

Judgment affirmed in part and vacated in part.

Johnson, J., concurs. Ruffin, J., concurs in the judgment only.

Decided May 17, 1996.

Ronald P. Jayson, for appellant.

The Outlaw Firm, Shelby A. Outlaw, Scott M. Kaye, for appellee.


author: Judge Harold R. Banke.

text:
    A96A0047.
    GRANTHAM et al. v. AMIN et al.
    (471 SE2d 525)
   Judge Harold R. Banke.

Kevin Grantham, individually, and as permanent administrator of the estate of Brenda Grantham, deceased, sued Sandoz Pharmaceutical Corporation (“Sandoz”), Mahendra G. Amin, and Dr. Mahendra G. Amin, M.D., PC. (“Amin”) alleging that the combined negligence of Sandoz and Amin caused the death of Brenda Grantham, age 25. Grantham seeks to reverse summary judgment granted in favor of Amin.

Summary judgment is appropriate when the court, viewing all the evidence and drawing reasonable inferences in a light most favorable to the non-movant, concludes that the evidence does not create a triable issue as to each essential element of the case. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Viewed in that light, the record shows the following. On August 15, 1992, Brenda Grantham, a patient of Dr. Mahendra Amin, gave birth to Kelly Nicole Grantham. After the delivery, Amin prescribed the drug Parlodel in order to dry up her breast milk. On October 3, 1992, about seven weeks after giving birth, Brenda Grantham died unexpectedly. Grantham alleged that the ingestion of Parlodel was the cause of death, that Amin was professionally negligent in prescribing the drug, and that Amin failed to fully inform Brenda Grantham of Parlodel’s possible side effects including headaches, dizziness, strokes, and seizures.

Grantham’s medical expert testified that Amin should have warned of the potential side effects of Parlodel but did not testify that Amin was negligent in prescribing Parlodel. The expert testified that “this drug could have been a significant contributing cause to the death of Brenda Grantham and this determination can only be verified if an autopsy is performed.” No autopsy was ever performed.

It is undisputed that Brenda Grantham obtained 24 tablets of Parlodel on August 16. If taken at the prescribed rate of two per day, she would have exhausted her supply of the drug on August 28,1992. She died between 33 and 36 days after she was scheduled to have taken the last tablet. Held:

Decided May 2, 1996

Reconsideration denied May 20, 1996.

Preston & Preston, Robert H. Preston, for appellants.

Grantham’s sole enumeration is that summary judgment was improperly granted. At summary judgment, a party who will not bear the burden of proof at trial need not conclusively prove the opposite of each element of the non-moving party’s case. Rather, the movant must demonstrate by reference to evidence in the record, as Amin did here, that there is an absence of evidence to support at least one essential element of the non-moving party’s case. Lau’s Corp., 261 Ga. at 495.

“To establish liability in a medical malpractice action, a plaintiff must prove three elements: the duty inherent in the doctor-patient relationship; breach of that duty by failure to exercise the required standard of care; and that this failure is the proximate cause of the plaintiff’s injury. Hawkins v. Greenberg, 166 Ga. App. 574, 575 (1) (a) (304 SE2d 922) (1983).” Copeland v. Houston County Hosp. Auth., 215 Ga. App. 207 (450 SE2d 235) (1994).

Even assuming arguendo that Grantham could prove a negligent act or omission, proving the cause of death presents an insurmountable hurdle. “[NJegligence alone is insufficient to sustain recovery for wrongful death in a medical malpractice action. It must be proven that the death of a patient proximately resulted from such want of care or skill. A bare possibility of such result is not sufficient. [Cits.] Further, there can be no recovery in a wrongful death action based on medical negligence where there is no showing to any reasonable degree of medical certainty that the patient’s death could have been avoided. See Goggin v. Goldman, 209 Ga. App. 251, 252 [(433 SE2d 85)]; Parrot v. Chatham County Hosp. Auth., 145 Ga. App. 113, 115 (243 SE2d 269).” (Punctuation omitted.) Dowling v. Lopez, 211 Ga. App. 578, 579-580 (2) (440 SE2d 205) (1993). In the absence of autopsy results, the absence of evidence that Brenda Grantham was still ingesting the drug near the time of her death, and the absence of any evidence that Parlodel was present in her system at the time of her death, it cannot be said that her death proximately resulted from Amin’s act of prescribing Parlodel and said with any degree of medical certainty that her death could have been avoided. Dowling, 211 Ga. App. at 580 (2). Because Amin successfully pierced Grantham’s pleadings and demonstrated the absence of evidence supporting the element of proximate cause, Amin was entitled to judgment as a matter of law. Copeland, 215 Ga. App. at 207; Lau’s Corp., 261 Ga. at 495.

Judgment affirmed.

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

Oliver, Maner & Gray, William, R Franklin, Jr., Tillman, McTier, Coleman, Talley, Newbern & Kurrie, Wade H. Coleman, Edward F. Preston, Keith H. Solomon, for appellees.

       Sandoz is not a party to this appeal.


author: Per curiam.

text:
    A96A0116.
    ADKINS v. THE STATE.
    (471 SE2d 896)
   Per curiam.

William Bradford Adkins appeals his conviction for misdemeanor stalking. He contends he was entitled to a directed verdict of acquittal because he merely delivered a letter to the victim and was thus not doing an act which served “no legitimate purpose,” and that his acts did not constitute a “knowing and wilful course of conduct” under OCGA § 16-5-90. He also contends the evidence is insufficient to support the conviction because his acts were not “threatening,” and that he was acting within his constitutionally protected freedom of speech. Held:

OCGA § 16-5-90 defines “stalking” as being when a person “follows, places under surveillance, or contacts another person . . . without the consent of the other person for the purpose of harassing and intimidating the other person. . . . [T]he term ‘harassing and intimidating’ means a knowing and willful course of conduct directed at a specific person which causes emotional distress by placing such person in reasonable fear of death or bodily harm to himself or herself or to a member of his or her immediate family, and which serves no legitimate purpose. This Code section shall not be construed to require that an overt threat of death or bodily injury has been made.”

Conduct found to be in violation of this law is not among the “constitutionally protected” freedoms. See Johnson v. State, 264 Ga. 590 (449 SE2d 94).

The trier of fact weighed the evidence and assessed the witness’s credibility. Upon the finding of guilt, the presumption of innocence no longer applies, and on appeal, we construe the evidence in favor of the findings of the trier of fact; we do not weigh the evidence or determine witness credibility but merely determine the sufficiency of the evidence. Weldon v. State, 211 Ga. App. 602 (440 SE2d 57).

The evidence shows that appellant’s sister and the victim were very good friends. The victim sometimes spent the night at her girl friend’s house where appellant also lived. Appellant, who is about ten years older than the victim, owns a mechanic shop. He and the victim became good friends. He helped her get her first car; they went to a restaurant for dinner once and he helped her move. They never “dated” but on one occasion they went to a movie because they had “some time to kill.” She called him “once in a blue moon, just to see how he was doing. . . . He’s not a bad person. We always got along fine. It’s just the way he felt toward me. He really started scaring me and my family.” She began to be afraid of him and got nervous around him. He would appear at her place of work, and once he broke into her car or used a key which he may have had made and left a rose on the car seat. After she spent a night at her girl friend’s house, appellant wrote a letter to the victim’s parents and “went into detail that he had done a bunch of things sexually to me while I was sleeping and he realized that I was asleep.” She was not interested in him romantically and when she realized that he believed he loved her, she began to shy away from him and ceased doing things with his sister. However, appellant refused to believe she did not love him and he determined that they would have a love relationship. He went to the phone company and found a telephone book which he thought proved she had lived with her boyfriend instead of with a roommate, and he wrote her a letter insinuating that her mother would find this out. He called her parents until they changed their telephone number. He wrote letters to the victim and would sometimes send copies of those letters to her parents; he also wrote her parents, her uncle and her boyfriend, expressing “concern” about her and attempting to dictate her activities and her future. She never answered these letters and as their frequency and insistence increased, she became afraid.

The letters and evidence show appellant knew the victim did not requite his “love” but that he tried to intimidate her and frighten her into meeting him and acceding to his demand that they have a relationship, and that he used his “concern” and the fact that he had helped her get a car to intimidate and exert control over her. He described how he had almost committed suicide because she did not return his love and how he had to give his gun to a friend so he would not shoot himself. After the victim did not answer one letter, he wrote another, saying “I hope we have talked before you get this [or] you may find me waiting for you on your doorstep one day. This is a [coupon] to have one sunroof [installed] in your Honda. There are some conditions that must be [met] first. This will be done at my [discretion]. We must first have a talk about our relationship. This will also be done on my [terms]. That is not on the phone or with any of your friends or mine around to [interfere].” Appellant was charged with stalking after he drove from Marietta to Gwinnett County and delivered a letter to the victim at her workplace, which caused her such distress that her supervisor called the police.

We have examined the evidence and the letters in the record. The content of the letters is such that in the circumstances they were threatening, harassful and intimidating, the more so because appellant’s threats and hints of violence and danger were only thinly veiled and laced with declarations of love and selfless concern.

Decided April 17, 1996

Reconsideration denied May 20, 1996.

Robertson & Walker, Charles T. Robertson II, for appellant.

Gerald N. Blaney, Jr., Solicitor, Richard E. Thomas, Assistant Solicitor, for appellee.

Appellant contends that because the victim acted friendly and politely toward him when she visited his shop near her father’s shop shortly before appellant delivered this letter, and because he never hit her, he cannot be accountable for stalking under OCGA § 16-5-90. However, the statute makes no such allowance. The fact that the victim acted in a friendly and polite manner toward appellant may in the circumstances more plainly reflect her fear than any remonstration would have done. Moreover, the statute expressly provides that it “shall not be construed to require that an overt threat of death or bodily injury has been made.” OCGA § 16-5-90. The fact that he delivered a letter in a public place is not an act which served a “legitimate purpose” so as to exonerate that act as “stalking” within the meaning of OCGA § 16-5-90. Moreover, his delivery of this letter was not the only act constituting the State’s proof; it was merely part of appellant’s wilful course of harassful and intimidating conduct.

There is no verdict in a bench trial; the issue is simply whether the evidence is sufficient to support the conviction. Blair v. State, 216 Ga. App. 545, 546 (455 SE2d 97). The evidence is amply sufficient to persuade a reasonable trier of fact of his guilt of the criminal offense of stalking, beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

Division Per Curiam.

All the Judges concur.


author: Blackburn, Judge. Beasley, Chief Judge,

text:
    A96A0371.
    YOUNG v. THE STATE.
    (471 SE2d 523)
   Blackburn, Judge.

Mario Leselle Young appeals his conviction of aggravated battery.

1. In his first enumeration of error, Young contends the trial court erred in denying his motion for mistrial when the State’s witness placed his character in issue.

In response to Young’s testimony that he tried to turn himself in to the police, the State introduced the testimony of Detective Andrews who testified regarding the warrant he obtained for Young’s arrest, his attempts to locate Young, and finally how he found Young in jail on other charges. Young’s counsel moved for a mistrial, arguing that the State had improperly placed Young’s character into evidence. The trial court denied the motion for mistrial and gave the jury the specific curative instruction requested by Young’s counsel.

Pretermitting whether Detective Andrews’ testimony was otherwise admissible to rebut Young’s testimony, we find that in light of the overwhelming evidence against Young, the trial court did not abuse its discretion in refusing to grant a mistrial. “The granting or refusing of a motion for mistrial is necessarily a matter largely within the discretion of the trial judge, and unless it is apparent that a mistrial is essential to the preservation of the right to a fair trial, the exercise of the judge’s discretion will not be interfered with.” (Punctuation omitted.) Pemberton v. State, 220 Ga. App. 253, 255 (469 SE2d 233) (1996).

2. In Young’s second enumeration of error he contends that the trial court erred in failing to grant a mistrial when another of the State’s rebuttal witnesses put his character into evidence by testifying that someone purchased drugs from him. The record reveals, however, that no objection or motion for mistrial was made with respect to this evidence; therefore, this enumeration was waived. See Al-Beti v. State, 210 Ga. App. 312 (2) (436 SE2d 50) (1993).

3. In his third enumeration of error, Young contends the trial court erred in its charge on reasonable doubt. Young specifically complains of the trial court’s use of the following phrase with regard to reasonable doubt on the crime charged and its lesser included offenses: “if after a consideration of the evidence or from a lack of the evidence or from the testimony of the defendant alone there rests upon your minds a reasonable doubt as to the guilt of the defendant of the crime. . . .” Young asserts that the highlighted language amounts to a statement that the jury could only consider Young’s testimony, when in fact, Young’s defense included other witnesses and evidence.

We cannot agree with Young’s interpretation of the charge. When construing charges to determine whether they contain reversible error, we must consider the charge as a whole. See Slaughter v. State, 217 Ga. App. 449 (3) (459 SE2d 168) (1995). In the present case, considering the whole charge, it is clear that the trial court instructed that the jury was to consider the evidence which includes the defendant’s evidence as well as the State’s, when determining whether reasonable doubt existed. We cannot say that the trial court’s charge as a whole contained reversible error.

4. Young contends the trial court erred in failing to charge on malice. Young’s counsel submitted the charge: “Maliciously means that someone acts with an abandoned and malignant heart with total and wanton disregard for the consequences.” After the trial court agreed to give this charge, Young’s counsel sought to amend it. The trial court did not agree with the changes, but proposed to give the following charge: “Malice may, but need not be, implied where no considerable provocation appears and where all of the circumstances of the [injury] show an abandoned and malignant heart. It is for you, the jury, to decide whether or not the facts and circumstances of this case show malice.” Young’s counsel then objected to the trial court’s charge as too complicated and stated that if the court would not give his charge then there should be no charge given on malice. The trial court stated that it was going to give the charge on malice over the defendant’s objection. Thereafter, Young’s counsel withdrew his request to charge on malice, and the trial court did not give any charge on malice.

First, we note that the trial court’s charge was a correct statement of the law. Next, we find that this issue was waived. A defendant cannot complain of a decision his conduct aided in causing. See Hawkins v. State, 195 Ga. App. 739 (2) (395 SE2d 251) (1990).

5. By amendment to his enumerations of error, Young sought to raise an additional issue. Young’s amended enumeration of error was filed over 20 days after this case was docketed. Therefore, we cannot reach the additional issue raised. “Enumerations of error may not be amended after the original filing time has expired.” (Punctuation omitted.) Ramirez v. State, 217 Ga. App. 120, 124 (456 SE2d 657) (1995).

Judgment affirmed.

Birdsong, P. J., concurs. Beasley, C. J, concurs specially.

Beasley, Chief Judge,

concurring specially.

I agree with all except the interpretation of the judge’s charge on reasonable doubt, which is ruled on in Division 3. In the sentence, the judge distinguished between “the evidence,” that is, the body of evidence, and “the testimony of the defendant alone,” that is, only the defendant’s testimony. The judge was making plain to the jury that regardless of all the other evidence which might point to guilt, and even if the jury rejected the other evidence defendant presented, if the defendant’s own testimony raises a reasonable doubt, the jury must find him not guilty. In other words, the defendant himself, by what he says, may create a reasonable doubt in your mind.

That charge is very favorable to defendant, and I do agree that it was not error. Considering this single charge, or the charge as a whole, it means the same thing.

Decided May 2, 1996

Reconsideration denied May 20, 1996

Daniel B. Kane, for appellant.

Mario L. Young, pro se.

Lewis R. Slaton, District Attorney, Carl R Greenberg, Assistant District Attorney, for appellee.


author: Birdsong, Presiding Judge.

text:
    A96A0278.
    GREENFOREST BAPTIST CHURCH, INC. v. SHROPSHIRE et al.
    (471 SE2d 547)
   Birdsong, Presiding Judge.

Lewis Shropshire filed this personal injury suit for injuries received in October 1993 when he stepped on a nail protruding from a two-by-four board on the premises of Greenforest Baptist Church, Inc. Shropshire was hired to tear down a barn on church property. He contends that church employees were negligent in dismantling the structure surrounding a doorway adjacent to the barn. The church contends Shropshire was knowledgeable of the inherently dangerous conditions of such sites, that his own testimony shows he was aware church employees were dismantling the structure near him and he was aware there might be nails protruding from dismantled boards, and that he had no right to assume all such dangerous conditions had been removed. Thus, the church contends Shropshire had equal or superior knowledge of the dangerous condition and did not exercise ordinary care for his own safety, as required for a plaintiff to recover damages in an action of this kind. See Alterman Foods v. Ligon, 246 Ga. 620 (272 SE2d 327); Brown v. Carlisle, 214 Ga. App. 483 (448 SE2d 256); Motes v. 6 “S” Co., 186 Ga. App. 67 (366 SE2d 358); Beard v. Fender, 179 Ga. App. 465 (346 SE2d 901).

The trial court denied Greenforest Baptist Church’s motion for summary judgment. We granted this interlocutory appeal. Held:

As to evidentiary standards on motions for summary judgment, see Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474). In general, however, negligence issues are susceptible to summary adjudication only in plain, palpable and indisputable cases; the evidence must be construed most favorably to the party opposing the motion, and he must be given the benefit of all favorable inferences and reasonable doubts which may arise from the evidence. Padgett v. M & M Super Market, 195 Ga. App. 799, 800 (395 SE2d 245). Summary judgment may be granted only where, construing all inferences against the movant, it yet appears without dispute that the case can have but one outcome and that outcome must be in the movant’s favor, for where the evidence does not mandate a judgment as a matter of law, a scrupulous sifting and weighing of the evidence by a jury is required. Id.

Thus construing this evidence, we find that genuine issues of material fact remain for jury determination. Construed in favor of Shropshire, the evidence shows his injury was caused by the “active negligence” of church workers. Despite his warning to the church not to allow any persons in the vicinity where he was working, church workers came on the premises and began carelessly discarding two-by-fours in his work area two hours after he started work. Before he began work, Shropshire and his assistant had carefully examined the premises and looked for and removed any dangerous conditions, and they had found no two-by-four boards. Shropshire did not handle any two-by-fours during his work but worked only with plywood he removed from the roof. When church workers, including two supervisors, came onto the scene, Shropshire asked them not to remain where he was working, but they remained and began to throw two-by-four boards haphazardly in his work area. To no avail, he again warned the church workers that he did not want anyone else in the area where he was working, and he reminded them of the dangerous condition they were creating. He requested they clean up their mess and place boards only in a designated pile after bending back protruding nails, but he had to accept the fact that he was not in control of the premises, as the church supervisor told Shropshire not to worry about the church workers’ work, that they would make sure all materials would be picked up and all boards would be placed in the designated pile, and that “[the church] would watch out for its own people and [Shropshire] should just watch out for his own.” While he continued to work on the barn roof, Shropshire tried to notice that the church workers removed the debris they were actively creating. After the church employees left the area, Shropshire had to come down from the barn roof. He had no choice but to alight where he did because the roof he was hired to remove was now gone. Purposefully observing the ground, he did not see any danger where he intended to step. The two-by-four with the protruding nail on which he stepped was not visible to him because it was weather-worn, faded, gray and it matched and blended into the surrounding cement area containing leaves, dirt, grass and shingle dust.

Since Shropshire and his assistant were not working with two-by-fours and had carefully examined the premises for dangerous conditions and had not seen any two-by-fours, Shropshire contends the only reasonable inference is that despite his repeated warnings church workers actively and negligently created this dangerous condition, and that this condition was hidden and was not visible to him despite his exercise of ordinary care for his own safety. He contends his mere knowledge of the possibility that such a dangerous condition might have been created does not necessarily constitute “full appreciation of the risk” involved, for having already searched diligently for dangerous conditions before he began work and having looked carefully before he stepped down from the barn roof, he could not see and did not know of the sharp, object concealed on the ground. See Wade v. Mitchell, 206 Ga. App. 265, 268 (424 SE2d 810); Atkinson v. Kirchoff Enterprises, 181 Ga. App. 139, 140 (351 SE2d 477). He thus concludes the church employees were actively negligent, that he did not have equal knowledge of the dangerous condition they created, and that he exercised ordinary care for his own safety.

Based on the view of the evidence most favorable to Shropshire as respondent on motion for summary judgment, we agree that material issues of fact remain which preclude summary judgment to the church. “A landlord has a statutory duty to keep premises in repair (OCGA § 44-7-13), and he is liable for damages to invitees for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe. OCGA § 51-3-1.” Carey v. Bradford, 218 Ga. App. 325, 326 (461 SE2d 290). It is only where the invitee had equal or superior knowledge of a hazard and failed, to exercise ordinary care for his own safety that the landlord is relieved of liability for that invitee’s injury. Id. Only in clear and palpable cases, where it appears that one recklessly tests an observed and clearly obvious peril, or voluntarily assumes a position of imminent danger, will he be barred from recovery as a matter of law. Fowler v. Campbell, 191 Ga. App. 872 (383 SE2d 163). A jury might reasonably conclude Shropshire did everything ordinarily reasonable to prevent and warn against the injury he later sustained, and that church workers negligently left this two-by-four on the ground where he could not reasonably detect it despite his conscious efforts to detect such a dangerous condition. Moreover, the jury may find he had no reasonable alternative but to alight from the roof where he did. As we recently held in Carey v. Bradford, supra, the doctrine of assumption of risk does not extend to making Shropshire a “captive” on the defendant’s roof by making him prove he “employed every conceivable means” of protecting himself from defendant’s negligence or else be held to have assumed the risk, for this would effectively remove the landlord’s statutory duty to keep the premises safe and in repair.

This case is distinguished from Howell v. Farmers Peanut Market &c., 212 Ga. App. 610 (442 SE2d 904), where the dangers encountered by a plaintiff in hoisting a motor on a peanut elevator were as well known to him as to the owner; moreover, that plaintiff did not exercise ordinary care to look for the particular defect which harmed him.

Decided May 20, 1996.

Goodman, McGuffey, Aust & Lindsey, Edward H. Lindsey, Jr., Leslie S. Sullivan, Joseph M. Maguire, Jr., for appellant.

This case is also distinguished from Elsberry v. Ivey, 209 Ga. App. 620 (434 SE2d 158), where demolition of a roof necessarily loosened nails and created danger which the plaintiff knew of and should have anticipated. In Elsberry, we held that where the injured servant was hired for the express purpose of assisting in demolition, and the unsafe conditions from which injury resulted “arose from or were incidental to the work undertaken, by him” (Louisville &c. R. Co. v. Dunn, 21 Ga. App. 379 (1) (94 SE 661)), the general rule that an owner or occupier of land has a duty to keep his premises safe for workers (OCGA § 51-3-1) does not apply. This is a proper result. However, construing the evidence in this case in favor of Shropshire as respondent on motion for summary judgment, when he entered the work site to tear down this roof there was no other demolition going on, and the injury he sustained was therefore not such as “arose from or [was] incidental to the work undertaken by him.” Elsberry, supra. No one else was supposed to be working in the area where he was demolishing this roof, and of which he supposedly had control. He and his employee examined the site carefully before he began, and he worked carefully. Later, church employees came into the area and began to do demolition work which he warned and advised them against to no avail; he was told to mind his own business. This he did, but not without telling church employees how to be careful in piling their debris. The church employees promised to be careful. The reasonable inference, however, is that they left a hidden danger (a protruding nail) which had not been on the ground before Shropshire climbed on the roof. After church employees had apparently cleaned up and had gone, Shropshire was forced to alight from the roof, and before he did so, he examined the ground carefully for nails or other dangers which were not there when he went up on the roof. He saw none,' either because of the camouflaging leaves and dirt or because of the lighting, but judging the evidence in his favor, his failure to see this nail was not his fault as he acted in the exercise of special care in view of the actions of church employees. Viewing the evidence in this manner, as we are required to do on the church’s motion for summary judgment, there are issues of fact which remain which sharply distinguish this case from Elsberry and any other “demolition site” case.

Accordingly, the trial court correctly denied the church’s motion for summary judgment.

Judgment affirmed.

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

Isenberg & Hewitt, Melvin L. Hewitt, Jr., Sidney M. Weinstein, for appellees.


author: Beasley, Chief Judge.

text:
    A96A0012.
    STEPHENS et al. v. HOWARD et al.
    (471 SE2d 898)
   Beasley, Chief Judge.

Howard’s taxi collided with Stephens, injuring Howard and leading to this action filed to recover for his damages and his wife’s loss of consortium. A jury deciding only the issue of damages awarded him $100,000, including $50,000 in past and future lost earnings, and awarded his wife $1,000. Stephens and the cab company appeal, alleging as error the introduction of evidence and testimony relating to a “functional capabilities assessment” performed by a physical therapist who worked for Howard’s treating physician, Dr. Serrato, but who did not testify at trial.

According to Dr. Serrato, this assessment was a six to eight hofir test requiring Howard to perform “mechanical . . . acts” under the therapist’s supervision, including bending, lifting, stretching, and squatting. After Howard performed the tests, the therapist transferred the results to Dr. Serrato, who approved them. He testified that only a physician could draw any conclusions from these tests. Over objection, Howard introduced into evidence a form based on those tests which listed Howard’s ability to lift certain amounts of weight in terms of “frequently,” “occasionally,” and “never.” Dr. Serrato testified this form represented “guidelines” for Howard to follow in his daily activities.

1. Stephens contends the form constitutes hearsay because it consists of information prepared by a physical therapist who did not testify. But Dr. Serrato testified the document was prepared at his request by his office staff during the course of and for purposes of his treating Howard. See OCGA § 24-3-14 (b). Furthermore, the material contained in the document reflected statements made by Howard for purposes of treatment as well as Dr. Serrato’s recommendations. OCGA § 24-3-1; Southern R. Co. v. Lawson, 256 Ga. 798, 801-802 (3) (353 SE2d 491) (1987). The trial court did not err by admitting the assessment form into evidence or by allowing Dr. Serrato to read from it.

Even if Howard failed to lay a proper foundation for admitting this document, or even if it contains the hearsay opinions of the physical therapist, the court’s failure to exclude it does not merit reversal. Dr. Serrato approved these findings, and Stephens had full opportunity to cross-examine him regarding them. Brinks, Inc. v. Robinson, 215 Ga. App. 865, 868-869 (5) (452 SE2d 788) (1994). The findings were based on representations made by Howard, who testified extensively regarding his injuries. Stephens had opportunity to cross-examine Howard regarding his ability to sit, stand, squat and lift, satisfying the purposes of the hearsay rule. Shelton v. Long, 177 Ga. App. 534, 535 (1) (339 SE2d 788) (1986). Considering the testimony from Dr. Serrato regarding his own observations of Howard’s condition, this report constituted at most cumulative evidence. Brinks, Inc., supra; Smoky, Inc. v. McCray, 196 Ga. App. 650 (3) (396 SE2d 794) (1990).

2. Neither did the trial court err by allowing Dr. Serrato to testify, based on the assessment, that Howard suffered a permanent disability rating of five percent. Even assuming the assessment report constituted hearsay, Dr. Serrato personally observed Howard on numerous occasions and heard his complaints. He also performed an MRI, a CT scan, and an electromyography. He testified he gave the disability rating based upon those tests, Howard’s subjective complaints, and the functional capabilities test. He further testified that although he must rely on physical therapists to perform these mechanical examinations, only he could interpret the results of those tests. Howard and his wife extensively described his physical abilities before and after the accident.

Stephens properly states that hearsay generally cannot serve as the basis for expert opinion. “[I]n the realm of medical testimony it is said: ‘Opinion testimony based merely upon records and case history furnished the witness by other doctors and not a part of the evidence in the case is objectionable.’ ” Southern Bell Tel. &c. v. Franklin, 196 Ga. App. 474, 475 (2) (396 SE2d 514) (1990); Buffalo Cab Co. v. Gurley, 134 Ga. App. 167 (1) (213 SE2d 545) (1975). In situations such as this one, however, where the record shows an expert opinion to be supported by substantial evidence of record, we have refused to reverse even though the expert may have based part of his or her opinion on hearsay. See, e.g., Randall Mem. Mortuary v. O’Quinn, 202 Ga. App. 541, 542-543 (1) (414 SE2d 744) (1992); Doctors Hosp. of Augusta v. Bonner, 195 Ga. App. 152, 159-160 (3) (392 SE2d 897) (1990); Zurich Ins. Co. v. Zerfass, 106 Ga. App. 714, 719-720 (3) (128 SE2d 75) (1962). Compare Brown v. State, 206 Ga. App. 800, 801 (427 SE2d 9) (1992), in which the record did not reflect the expert’s opinion could be based solely on his own observations or other facts in evidence.

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.

Decided May 9, 1996

Reconsideration denied May 21, 1996

Sidney L. Moore, Jr., for appellants.

Richard A. Childs, for appellees.


author: Ruffin, Judge. Johnson, Judge,

text:
    A96A0027, A96A0028.
    WACHOVIA BANK OF GEORGIA, N.A. v. UNISYS FINANCE CORPORATION; and vice versa.
    (471 SE2d 554)
   Ruffin, Judge.

Unisys Finance Corporation (“Unisys”) obtained a judgment against Hanover Credit Corporation (“Hanover”). To satisfy its judgment, Unisys filed a garnishment, naming Wachovia Bank of Georgia, N.A., (‘Wachovia”) as garnishee. Although Hanover maintained 17 accounts with Wachovia, Wachovia determined that 15 of the accounts were “trust accounts” and not subject to the garnishment. Accordingly, Wachovia answered the garnishment stating that money found in one of the two remaining accounts was subject to the garnishment. Unisys traversed the answer stating it was untrue. The trial court, sitting as the trier of fact, found that money in the 15 other accounts was subject to the garnishment and entered judgment in favor of Unisys. We granted Wachovia’s application for discretionary review. In Case No. A96A0027, Wachovia appeals the trial court’s finding that the 15 accounts were subject to garnishment. In Case No. A96A0028, Unisys asserts that the court erred by failing to award it pre-judgment interest. For reasons which follow, we affirm the trial court’s judgment in both cases.

Case No. A96A0027

In eight separate enumerations of error, Wachovia contends that the trial court erred because the accounts were fiduciary accounts containing clients’ funds which were exempt from garnishment, and that its investigation of the accounts was sufficient to satisfy its burden under Georgia’s garnishment laws. This latter contention is also asserted in an amicus curiae brief filed by the Georgia Bankers Association. We will address each of these contentions separately.

1. Were these trust accounts subject to garnishment?

The record shows that Hanover is a collection agency which, when the garnishment was filed, maintained 17 separate bank accounts with Wachovia. Wachovia contends that the 15 accounts at issue were maintained by Hanover for depositing money Hanover collected for various clients. Wachovia maintains that it did not subject the accounts to the garnishment because the funds were held in trust for Hanover’s clients. The trial court found that because Wachovia presented insufficient evidence that the accounts were trust accounts, the accounts were subject to the garnishment.

The issue before the trial court on Unisys’ traverse of Wachovia’s answer was whether Wachovia had Hanover’s assets in any of its accounts. W. T. Harvey Lumber Co. v. J. M. Wells Lumber Co., 104 Ga. App. 498 (3) (122 SE2d 143) (1961). “[T]he burden was on [Unisys] to sustain the traverse by a preponderance of the evidence.” Oxford v. Metter Lumber Co., 104 Ga. App. 758, 760 (123 SE2d 156) (1961).

In support of its contention that the accounts were Hanover’s property, Unisys presented copies of several documents used by Hanover to establish the accounts. One of those documents was Hanover’s “Directors’ Resolution Authorizing Corporate Depository.” The resolution listed the accounts and provided that Wachovia “is designated a depository for the funds of [Hanover], . . .” (Emphasis supplied.) The resolution granted Hanover’s executive vice president broad powers to transact business concerning the accounts, which included the ability to draw checks. The resolution requested and authorized Wachovia “to pay or transfer funds or otherwise act in accordance with [the] resolution . . . [and to] honor all checks, drafts, or other orders for the payment of money drawn in [Hanover’s] name on its account(s). . . .” (Emphasis supplied.) The resolution does not indicate that any of the accounts were trust accounts.

In addition to the resolution, Unisys presented evidence showing that during the time the garnishment lien was pending, Hanover drew 42 checks on the 15 accounts, naming Hanover as payee.

In opposition, Wachovia presented copies of signature cards for the accounts which contained the word “trust” in the account titles. Wachovia stipulated, however, that the account titles were selected by Hanover at Hanover’s discretion. The Wachovia branch manager in charge of the Hanover accounts testified that Wachovia names “the account the way the customer asks us to ... to accommodate them.” The Wachovia manager further acknowledged that when Hanover opened the accounts, Wachovia performed “no investigation whatsoever” to determine whether they were trust accounts.

The evidence further showed that while the garnishment was pending, Unisys contacted Wachovia asserting that the 15 accounts were not trust accounts and that Hanover’s own funds were in the accounts. When Wachovia contacted Hanover regarding the accounts, Hanover verbally assured Wachovia that the accounts were trust accounts. Wachovia did not perform any further investigation into the nature of the accounts, and admits that Hanover’s verbal assurance and the signature card account titles were the only information relied on in concluding that the accounts were trust accounts exempt from garnishment.

Although Wachovia argues that trust accounts are generally not subject to garnishment for the trustee’s personal debts, such argument assumes the existence of a trust. See Jackson v. Fulton Nat. Bank, 46 Ga. App. 253 (1) (167 SE 344) (1933). “[T]he question of the establishment of a trust and the ownership of the [15] other accounts was one of fact.” Spivey v. Methodist Home &c., 226 Ga. 100, 102 (2) (172 SE2d 673) (1970). Thus, the issue in this case of whether money in the Wachovia accounts was Hanover’s property, or held in trust by Hanover for its clients, was for the factfinder to decide. See id.; McCann v. McCraine, 228 Ga. 814, 817 (7) (188 SE2d 484) (1972). In this case the trial judge sat as the factfinder. “ ‘On appeal of the judgment of a trial judge sitting without a jury, a judgment will not be disturbed if there is any evidence to sustain it. (Cit.)’ [Cits.]” Travelers Ins. Co. v. Trans State, 172 Ga. App. 763, 765 (3) (324 SE2d 585) (1984). As appellate judges we cannot take cases by their smooth handle. We accept cases on their facts as shown by the record as developed in the crucible of battle below. We cannot change, alter or amend facts; we can only examine them for evidentiary bases. Although conflicting evidence was presented, the corporate resolution concerning the accounts and evidence that Hanover drew checks on the accounts payable to itself were some evidence from which the trial judge could find that the account funds were Hanover’s assets. Accordingly, we find no error.

2. Was Wachovia’s reliance on the signature cards and Hanover’s statement regarding the accounts sufficient to relieve Wachovia of liability in answering the garnishment?

OCGA § 18-4-82 prescribes the requirements for answering a garnishment. That section requires the garnishee to answer the garnishment “describing what money or other property is subject to garnishment. ... If the garnishee shall be unable to answer as provided for in this Code section, his inability shall appear in his answer, together with all the facts plainly, fully, and distinctly set forth, so as to enable the court to give judgment thereon.” This latter provision “is a statutory alternative given the garnishee who is in doubt as to liability to have the court resolve such doubt by presenting every element involved in the matter so that the court can make the determination and the garnishee avoid liability.” C & S Nat. Bank v. Avco Financial Svcs., 129 Ga. App. 605, 608 (4) (200 SE2d 309) (1973).

In this case, Wachovia risked the court rendering a judgment against it if its treatment of Hanover’s accounts was proven erroneous. The fact that Wachovia thought that these were trust accounts because Hanover described them as such on its signature cards did “not relieve it of the responsibility to comply with the foregoing statutory requirements. Banks should . . . take whatever steps are necessary to ensure that they can comply with the garnishment laws of this state. Garnishment proceedings are ‘measured by the strict terms of the statute.’ [Cit.]” Mobile Paint Mfg. Co. v. Johnston, 219 Ga. App. 299, 300 (464 SE2d 903) (1995). If Wachovia doubted who owned the account funds, it could have explained in its answer the basis for this doubt and avoided liability by presenting the matter to the court for determination. Id. at 301. Wachovia blindly relied on the word of its depositor at its own peril. See C & S Nat. Bank, supra at 607.

Case No. A96A0028

In its sole enumeration of error, Unisys asserts that the trial court erred by failing to award it pre-judgment interest from the date of Wachovia’s garnishment answer through the date of judgment against Wachovia. Unisys argues that because its claim under the garnishment was liquidated, it is entitled to the pre-judgment interest under OCGA § 7-4-15. We disagree.

Georgia’s garnishment law provides for a judgment only in the amount claimed in the garnishment, plus costs. OCGA § 18-4-92. This section expressly provides “that the total amount of such judgment shall in no event exceed the amount claimed due by the plaintiff, together with the costs of the garnishment proceeding.” Id. Because “[o]ur garnishment statute is in derogation of the common law and, thus, must be strictly construed,” we conclude that the trial court did not err in denying Unisys’ claim for interest in this case. Baptist Convention of Ga. v. Henry, 187 Ga. App. 551, 552 (370 SE2d 813) (1988).

The record shows that in addition to the amount paid into court with Wachovia’s answer, the trial court awarded Unisys the balance of its claim on the garnishment, plus costs. If the trial court awarded pre-judgment interest, the judgment would have exceeded the amount claimed due in the garnishment in violation of the strict language of OCGA § 18-4-92.

Judgment affirmed.

McMurray, P. J., concurs. Johnson, J., concurs specially.

Johnson, Judge,

concurring specially.

The amicus curiae brief submitted by the Georgia Banking Association queries “must a bank, each time it is served with a garnishment on an account which has been denominated a trust or escrow account for a third party on the signature card . . . determine whether or not the funds are in fact held by its customer in a fiduciary capacity?” The short answer to the Georgia Banking Association’s question is no.

A bank is not required to determine, upon receipt of a garnishment, whether the funds are in fact held by its customer in a fiduciary capacity. But when a garnishment action is filed naming a bank as garnishee, and the defendant has accounts denominated as a trust or any other type of special account, the bank should avail itself of the provisions of OCGA § 18-4-82 and allow the trial court to determine which funds are subject to garnishment and thereby avoid liability such as that imposed here.

We recognize that conducting discovery to determine whether an account denominated as a trust account is in fact being used as such would create a heavy burden in economic terms to a banking institution which has been served with a garnishment action. However, as pointed out in the majority opinion, OCGA § 18-4-82 provides a simple mechanism by which a bank can protect itself from just the kind of liability imposed in this case. “If the garnishee shall be unable to answer as provided for in this Code section, his inability shall appear in his answer, together with all the facts plainly, fully, and distinctly set forth, so as to enable the court to give judgment thereon.”

In its answer, Wachovia simply stated that the sum of $6,262 is subject to garnishment and gave no indication that other funds were on deposit in the name of Hanover Credit Corporation which may or may not be subject to garnishment. By doing so, it usurped the trial court’s right to determine whether such funds were or were not subject to garnishment. To allow banks to simply rely on the nomenclature requested by the customer when they set up an account could make banks unwitting partners to unscrupulous customers who could open any or all of their accounts as “trust accounts,” thereby defrauding their creditors.

I write separately to emphasize that nothing in the majority opinion changes in any way the general rule that trust accounts are not subject to garnishment, nor would it require the banks of Georgia to undertake the sort of burdensome investigation which the amicus brief suggests is feared by the industry. The process of determining whether the funds are subject to garnishment properly involves only the defendant/debtor, the plaintiff/creditor and the court. Had Wachovia, in its answer, informed the parties and the court that the other accounts existed and that it was not in a position to know whether the funds on deposit therein were subject to garnishment, it would have fully discharged its legal obligation without exposing itself to liability. The burden of proving who was entitled to the funds would have thereby appropriately shifted to Unisys and Hanover, leaving the trial court to decide the matter from the evidence they produced.

Decided May 21, 1996

Morris, Manning & Martin, Donald A. Loft, Ann R. Schildhammer, Daniel W. Sweat, Michael E. Ray, Keith W. Smith, for appellant.

J. Christopher Simpson, for appellee.


text:
    A96A0115.
    DANIELS v. THE STATE.
    (471 SE2d 560)
   McMurray, Presiding Judge.

Defendant was indicted for trafficking in cocaine in violation of the Georgia Controlled Substances Act and possession of a firearm during the commission of a felony. The evidence adduced at a jury trial reveals that law enforcement officers executed a search warrant at defendant’s home on April 14, 1993, and found a gun “in one of the bedrooms under a couch . . .” and “ten ounces of rock cocaine [in] the attic.” While at the scene of the search, defendant informed one of the law enforcement officers “that the drugs were his.”

Defendant was found guilty of trafficking in cocaine and not guilty of possession of a firearm during the commission of a felony. This appeal followed the denial of defendant’s motion for new trial. Held:

Defendant challenges the sufficiency of the evidence, arguing that the mere presence of contraband in the attic of the house where he resided is not sufficient to support his conviction for trafficking in cocaine because there is proof that persons other than himself had equal opportunity to commit the crime.

It is true that “[m]erely finding contraband on premises occupied by a defendant is not sufficient to support a conviction if it affirmatively appears from the evidence that persons other than the defendant had equal opportunity to commit the crime. Harper v. State, 85 Ga. App. 252 (69 SE2d 102); Summerville v. State, 66 Ga. App. 61 (17 SE2d 82); Savage v. State, 28 Ga. App. 543 (112 SE 523); Toney v. State, 30 Ga. App. 61 (116 SE 550).” Gee v. State, 121 Ga. App. 41, 42 (1) (172 SE2d 480). In the case sub judice, however, there is more. One of the searching law enforcement officers testified that defendant admitted “that the drugs were his.” This evidence, and proof regarding the quality and quantity of cocaine found in defendant’s home, is sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of trafficking in cocaine in violation of OCGA § 16-13-31 (a) (1). Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). See Harvey v. State, 212 Ga. App. 632, 634 (2) (442 SE2d 478).

Decided May 21, 1996.

Mark T. Phillips, for appellant.

Britt R. Priddy, District Attorney, Jennifer Kolman, Assistant District Attorney, for appellee.

Judgment affirmed.

Johnson and Ruffin, JJ, concur.


text:
    A96A0524.
    HAYGOOD v. THE STATE.
    (471 SE2d 552)
   Birdsong, Presiding Judge.

After a bench trial, Donna E. Haygood was found guilty of violating a local ordinance against possessing animals which create a nuisance. In her dispositive enumeration of error, Haygood, acting pro se, argues that she was denied her right to a jury trial.

This case arose after Haygood’s neighbor complained to the Cherokee County Animal Control Department that Haygood’s dogs had barked continuously at night for approximately one and one-half years. The animal control department issued a citation charging Haygood with creating a nuisance and ordering her to appear in magistrate court.

Haygood filed a request for a jury trial. The case was therefore bound over to state court for a jury trial. On March 3, 1995, the county solicitor issued a notice to Haygood that her case had been set for a non-jury trial on April 26. The solicitor then issued a notice on April 12, continuing the case until June 5. Haygood retained counsel, who filed another demand for jury trial on June 2. On the day of trial, June 5, 1995, Haygood signed a written waiver of arraignment form. However, she crossed out the portion of the form which waived the right to trial by jury. Nevertheless, the case was tried without a jury. The court heard the evidence, adjudicated Haygood guilty, and sentenced her to 60 days incarceration to be suspended upon payment of a $500 fine and two additional $50 fees.

After Haygood filed her initial pro se appeal, she moved to remand to the trial court to make corrections to the record, including portions of the record showing that her counsel moved for a continuance so that she could be tried by a jury and sought the judge’s recusal for bias. This Court remanded the case for an evidentiary hearing under OCGA § 5-6-41 (f).

On remand, the trial court held an evidentiary hearing during which the court reporter who transcribed Haygood’s trial testified that because no one requested her to transcribe the pretrial motion proceedings, they had not been transcribed. The court found no evidence that the transcript of the trial itself was inaccurate. Held:

1. “The Fourteenth Amendment guarantees the right of trial by jury in all state nonpetty criminal cases.” Ballew v. Georgia, 435 U. S. 223, 229 (98 SC 1029, 55 LE2d 234). When questions regarding the denial of this fundamental right arise, the State bears the burden of demonstrating that the right was knowingly and intelligently waived or did not attach. Keith v. State, 218 Ga. App. 729, 730-731 (463 SE2d 51); see Carleton v. State, 176 Ga. App. 399 (336 SE2d 333).

Despite this burden, the State’s response to this enumeration, in its totality, is this single conclusory sentence: “The trial court did not err by proceeding with a nonjury trial on June 5, 1995.” The State presents no evidence or argument that the right to a jury trial did not attach in this case.

Because appellate courts may not take judicial notice of municipal or county ordinances not included in the record and the record does not reveal the maximum allowable punishment for violating the ordinance at issue, we cannot determine whether the offense charged was “nonpetty” (Ballew, supra) and thus not subject to the jury trial guarantee. Hood v. Mayor &c. of Savannah, 247 Ga. 524 (277 SE2d 54); Hernandez v. Bd. of Commrs. of Camden County, 242 Ga. 76, 77 (247 SE2d 870). We particularly will not speculate as to such a matter where the constitutional right to jury trial is involved. Inasmuch as there is no evidence in this record of the calibre of this crime, we will not indulge any presumption that the trial court considered any ordinance to determine whether Haygood was entitled to her demanded right to jury trial under the constitution.

Further, the record conclusively demonstrates that Haygood did not waive her right to a jury trial. Although Haygood’s oral pretrial objections to proceeding with a bench trial were not transcribed, the evidence of record establishes that Haygood twice requested a jury trial. Nor did she waive her right to jury trial when she waived arraignment, for the record shows that at arraignment she crossed out the language on the waiver form waiving the right to a jury trial.

Moreover, OCGA § 15-10-61 required the magistrate court to grant Haygood’s initial written demand for jury trial and remove the case to the state court for a jury trial. It defies logic that § 15-10-61 would include such a mandate if it were proper for the state court to deny a jury trial in a case so removed, where the State has not borne its burden to establish that no such right exists. The State fails to demonstrate to this Court that Haygood was not entitled to a jury trial, and we therefore conclude the state court erred in depriving her of her demanded jury trial.

2. Haygood’s argument that the trial judge improperly denied her motion to recuse is not preserved for appellate review. Haygood has presented no transcript, stipulation, or direction by the court involving this issue. OCGA § 5-6-41 (f). “Where the transcript or record does not fully disclose what transpired at trial, the burden is on the complaining party to have the record completed at the trial court.” Howe v. State, 250 Ga. 811, 814 (2) (301 SE2d 280). This record presents us with nothing to review.

Decided May 21, 1996.

Donna E. Haygood, pro se.

Daniel T. Stringer, Solicitor, Leslie C. Abernathy, Assistant Solicitor, for appellee.

Even if a transcript had been included in the record, Haygood’s argument would fail as a matter of law. She argues that recusal was required because of bias arising from prior proceedings before the same judge. In order to be disqualifying the alleged bias must stem from an extra-judicial source and must result in an opinion on the merits on some basis other than what the judge learned from his participation in the case. McBride v. State, 213 Ga. App. 857, 859 (4) (446 SE2d 193). The record contains no evidence of such bias.

Due to the State’s utter failure to satisfy its burden of proof, we reverse and remand for proceedings consistent with this opinion. In light of this disposition, we need not reach Haygood’s remaining enumerations of error.

Judgment reversed and case remanded.

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


author: Andrews, Judge.

text:
    A96A0530.
    LUDI v. VAN METRE.
    (471 SE2d 913)
   Andrews, Judge.

Pursuant to this Court’s grant of his application for interlocutory review, Dr. Ludi appeals the trial court’s denial of his motion to dismiss in Civil Action No. E-35041, filed as a renewal action of previously dismissed Civil Action No. E-31380. The motion was based on the inapplicability of OCGA § 9-2-61, lack of personal service of the original action, and other grounds. We need consider only the personal service issue in the context of OCGA § 9-2-61 to conclude that the original suit was void and no renewal was possible under OCGA § 9-2-61. We reverse.

1. “When a defendant in a lawsuit challenges the sufficiency of service, he bears the burden of showing improper service.” Murray v. Sloan, supra at 649. Here, the evidence showed that on August 17, 1994, Mrs. Van Metre filed suit against Dr. Ludi, Dr. Seltman, and Internal Medicine Associates of Atlanta, P.C., alleging medical malpractice on behalf of her deceased husband who died while under Dr. Ludi’s care on September 10, 1992.

Hasnain, a private process server authorized by court order to serve process, went to Dr. Ludi’s office on August 22, 1994, within the statute of limitation, to serve him. Upon arriving at the office, he handed the complaint and summons to Ms. Lange. His affidavit states that “Ms. Lange is Dr. Ludi’s Assistant and stated that Dr. Ludi was in surgery, but she was authorized to accept service of process on Dr. Ludi’s behalf. Physicians, because of their schedules, often authorize their assistants to accept process on their behalf.”

Dr. Ludi’s affidavit stated that Ms. Lange was employed as a receptionist for Georgia Surgical Associates, PC., which was not a party to the action, and her “duties are purely ministerial. She has no managerial duties whatsoever. [Ms.] Lange has not been formally designated as an agent for service of Georgia Surgical Associates, P.C., nor has she ever been authorized in any way to accept service on behalf of the corporation. . . . [Ms.] Lange has not been appointed as my agent for service, nor has she ever been authorized in any way to accept personal service on my behalf.”

After Dr. Ludi filed his motion for summary judgment in the original action, service was attempted again by Hasnain at Dr. Ludi’s home around 9:40 p.m. on Halloween 1994, outside the statute of limitation. Although Dr. Ludi and his wife were home, they did not open the door. Hasnain left the complaint and summons on the porch and waited in his car until he saw Dr. Ludi open the door and retrieve it.

On November 16, 1994, Van Metre filed her “Voltary (sic) Dismissal, without prejudice to refiling her lawsuit, dismissing her case against Defendant. . . Ludi, M.D. only.”

On December 15, 1994, Van Metre filed her complaint in the renewal action, Case No. E-35041, naming only Dr. Ludi as a defendant, since the original case against the other defendants was still pending. Dr. Ludi filed his motion in this case, contending that the statute of limitation expired on September 10, 1994, and he had never been properly served.

2. OCGA § 9-2-61 (a) provides for renewal only where “any case” has been discontinued or dismissed by the plaintiff. Here, Van Metre did not dismiss all claims against all defendants, but did dismiss all claims against Dr. Ludi.

OCGA § 9-11-41 (a) provides that “an action may be dismissed by the plaintiff, without order or permission of court, by filing a written notice of dismissal at any time before the plaintiff rests his case.” Thereafter, permission of the court and an order are required. Id.

The predecessor of OCGA § 9-11-41 was enacted originally in 1847, Cox v. Berry, 13 Ga. 306 (1853). It was and is a remedial statute and is to be liberally construed. Chance v. Planters &c. Coop., 219 Ga. 1, 3 (131 SE2d 541) (1963); Cox, supra.

Cox, supra, concluded that, for purposes of the renewal statute, a “case” may be interpreted as other than a “suit or action,” and stated that “[w]e are not held to a narrow and technical construction of this Act, but are bound to give effect to the manifest intention of the Legislature. It gives relief in any case which may be brought in any of the Courts of the State. That is, in all instances where the plaintiff is, in the exercise of a proper diligence, attempting by judicial proceeding, to assert his right and enforce his remedy.” Id. at 309.

Therefore, here, all of Van Metre’s “case” against Dr. Ludi was dismissed, leaving her cases against the other defendants remaining. “The intent of the legislature in enacting OCGA § 9-11-41 (a) was to give a plaintiff an opportunity to escape from an ‘untenable position’ and relitigate the case, and thus there is no ‘bad-faith exception’ to the right to dismiss and later relitigate, despite inconvenience and irritation to the defendant. [Cit.]” Lakes v. Marriott Corp., 264 Ga. 475, 476 (448 SE2d 203) (1994).

3. This, however, does not resolve the issue of the adequacy of service on Dr. Ludi in the original action. For the purpose of the renewal statute, the mere filing of the initial suit does not operate to toll the statute of limitation. In order for a case to qualify as a renewal action, “the earlier filing must have been a valid action, with proper service upon [defendant].” Finch v. Weaver, 213 Ga. App. 514, 515 (1) (445 SE2d 289) (1994); Brooks v. Young, 220 Ga. App. 47 (467 SE2d 230) (1996); Wimberly v. Dept. of Corrections, 210 Ga. App. 57, 58 (435 SE2d 67) (1993); Osborne v. Hughes, 200 Ga. App. 558, 559 (409 SE2d 58) (1991).

The cases relied upon by Van Metre deal with service under OCGA § 9-11-4 (d) (1) on a corporation. See, e.g., Floyd v. Piedmont Hosp., 213 Ga. App. 749, 750 (1) (445 SE2d 844) (1994); Murray v. Sloan Paper Co., supra; Whatley’s Interiors v. Anderson, 176 Ga. App. 406 (2) (336 SE2d 326) (1985).

Even in the case of a corporation, it is necessary that the complaint and summons be delivered to a person “whose ‘position is such as to afford reasonable assurance that he will inform his . . . principal that such process has been served upon him.’ [Cit.] Thus, although it is not necessary for the person who is served to be an officer of the corporation, [cit.], service upon a mere receptionist will not suffice. [Cits.]” Bowers v. Economation, 208 Ga. App. 661, 663 (431 SE2d 420) (1993).

Here, in contrast, we are not dealing with service on a corporate agent, since Dr. Ludi’s professional corporation was not named as a defendant in the original action.

OCGA § 9-11-4 (d) (7) requires that a complaint be served upon an individual “personally, or by leaving copies thereof at his dwelling house or usual place of abode with some person of suitable age and discretion then residing therein, or by delivering a copy of the summons and complaint to an agent authorized by appointment or by law to receive service of process.” See Wahnschaff v. Erdman, 216 Ga. App. 355 (454 SE2d 213) (1995).

The affidavit of Dr. Ludi regarding Ms. Lange’s lack of authority to accept service for him or his corporation is unrefuted by Hasnain except for what Hasnain contended Ms. Lange said to him, which is hearsay and proves nothing. OCGA § 24-3-1; Waddington v. Stores Mutual &c. Assn., 52 Ga. App. 331 (183 SE 143) (1935).

Disregarding the hearsay, there is nothing of record to prove personal service upon Dr. Ludi of the original action before the expiration of the statute of limitation. Ameribank v. Quattlebaum, 220 Ga. App. 345, 346 (1) (469 SE2d 462) (1996); Bible v. Bible, 259 Ga. 418, 419 (383 SE2d 108) (1989). That it was Hasnain’s experience that other doctors often appointed their assistants as their agent for service does not prove Dr. Ludi did so. Ameribank, supra.

4. We need not consider the issue of whether the service attempted at the residence was adequate, since that service occurred outside the statute of limitation. Brooks v. Young, supra.

5. Additionally, the fact that Dr. Ludi may have received copies of the suit as a result of the first attempt at valid service or the Halloween attempt does not suffice. Id.; Adams v. Gluckman, 183 Ga. App. 666, 667 (1) (359 SE2d 710) (1987); Bible v. Hughes, 146 Ga. App. 769, 771 (3) (247 SE2d 584) (1978).

Therefore, the trial court erred in denying the motion to dismiss. Yelle v. U. S. Suburban Press, 216 Ga App. 46, 47 (453 SE2d 108) (1995).

Judgment reversed.

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

Decided May 21, 1996.

Long, Weinberg, Ansley & Wheeler, Robert G. Tanner, Stephen R. Chance, for appellant.

Eugene R. Kiser, for appellee.

       Although referred to as a motion for summary judgment, a motion raising the defense of insufficiency of service of process is a plea in abatement and is not properly a basis for a motion for summary judgment. Murray v. Sloan Paper Co., 212 Ga. App. 648, 649 (442 SE2d 795) (1994). Therefore, we consider the case as an appeal from denial of a motion to dismiss.

       While the return of service is prima facie proof of the facts cited therein, it is not conclusive and may be traversed by proof that such facts are untrue. Yelle v. U. S. Suburban Press, 216 Ga. App. 46, 47 (453 SE2d 108) (1995). Except for the issue of Ms. Lange’s authority to accept service, the affidavits of Dr. Ludi and Hasnain regarding the facts of the attempted service are consistent.

        Young v. Rider, 208 Ga. App. 147 (430 SE2d 117) (1993) does not require a different conclusion. There, multiple plaintiffs were involved, not multiple defendants.


text:
    A96A0618.
    MARTINEZ v. THE STATE.
    (471 SE2d 551)
   McMurray, Presiding Judge.

Defendant was charged in accusations with driving without proof of liability insurance, driving under the influence of alcohol, and failure to maintain lane. His blood alcohol level tested .132 grams percent on an Intoximeter 5000. Defendant filed a pretrial plea in bar based on double jeopardy, contending that he could not be criminally prosecuted on these charges because an administrative license suspension hearing had already been held and “resolved in defendant’s favor . . . when the arresting officer failed to appear at the scheduled hearing.”

The trial court denied defendant’s plea in bar and defendant pursued this direct appeal from that interlocutory order. See Patterson v. State, 248 Ga. 875, 877 (287 SE2d 7). Held:

In two related enumerations, defendant contends the trial court erred in denying his plea in bar, arguing that he will be prosecuted twice for the same crime, in contravention of the Fifth Amendment of the United States Constitution, Art. I, Sec. I, Par. XVIII of the Georgia Constitution (1983), and the double jeopardy protections of OCGA §§ 16-1-7 (b) and 16-1-8 (a).

“We recently rejected this same argument in [the whole court decision,] Nolen v. State, 218 Ga. App. 819 (463 SE2d 504) (1995). After a thorough analysis of [defendant’s] arguments, we conclude that ‘the suspension of a driver’s license at an administrative hearing is not punishment, nor is the hearing a prosecution, for the purposes of double jeopardy.’ Id. at 823. Thus, [in the case sub judice] we find no error [in the denial of defendant’s plea in bar].” Kirkpatrick v. State, 219 Ga. App. 307, 308 (464 SE2d 882).

Nor, does administrative suspension of a driver’s license upon conviction for driving under the influence of alcohol or drugs result in impermissible double punishment for a single offense. “ ‘Forfeiture of goods or their value and the payment of fixed or variable sums of money are other sanctions which have been recognized as enforceable by civil proceedings since the original revenue law of 1789. (Cit.) In spite of their comparative severity, such sanctions have been upheld against the contention that they are essentially criminal and subject to the procedural rules governing criminal prosecutions.’ [Helvering v. Mitchell, 303 U. S. 391, 400 (58 SC 630, 82 LE 917) (1938)].” Alexander v. State, 129 Ga. App. 395, 397 (2), 398 (199 SE2d 918). Punishment in a civil forfeiture is against the property, based on the fiction that the property is the offender, and not against the owner as a criminal defendant. Murphy v. State, 219 Ga. App. 474, 475 (465 SE2d 497). “The suspension of an operator’s license for driving under the influence under OCGA § 40-5-67.1 (b) (2) . . . is reasonably related and not disproportional to the State’s longstanding remedial purpose in removing dangerous and habitually negligent drivers from its roadways. . . . Driver’s licenses are suspended by a designated public officer in an administrative setting, rather than as punishment in consequence of a criminal prosecution. See OCGA § 40-5-67.1 (c); Keenan v. Hardison, 245 Ga. 599, 601 (266 SE2d 205) (1980) (regarding suspension of operator’s license for failure to satisfy civil judgment); Williams v. State, 138 Ga. App. 662, 663 (226 SE2d 816) (1976) (regarding automatic suspension of operator’s license as to habitual drunk driver). ‘ “In short, there is a complete absence of any judicial action and no attribute of a criminal case.” ’ Keenan, supra.” Jackson v. State, 218 Ga. App. 677, 678 (462 SE2d 802).

Decided May 21, 1996.

James M. Mullís, for appellant.

Keith C. Martin, Solicitor, Elizabeth A. Baker, Assistant Solicitor, for appellee.

Judgment affirmed.

Johnson and Ruffin, JJ, concur.