text:
    A97A1131.
    PADGETT et al. v. CITY OF MOULTRIE et al.
    (494 SE2d 299)
   Smith, Judge.

This case involves an issue of first impression construing the Commercial Real Estate Broker Lien Act, OCGA § 44-14-600 et seq., enacted in 1993. Ga. L. 1993, p. 1490. Appellants Mary L. Padgett and Pineapple, Inc. d/b/a Southeast Realty, a corporation owned by Padgett (collectively “Padgett”), filed an action to foreclose a broker’s lien on property owned by defendant Cambridge Health Care, Inc. (“Cambridge”). Appellees City of Moultrie and Empire Financial Services hold security deeds on the property for loans made to Cambridge. The City and Empire moved for summary judgment, contending that Padgett did not have a valid and enforceable broker’s lien on the property. Padgett likewise moved for summary judgment, contending the lien was valid and enforceable and had priority over the liens of the City and Empire.

The trial court denied summary judgment to Padgett and granted summary judgment to the City and Empire. When we granted Padgett’s application for interlocutory appeal of the denial of her motion for summary judgment, she also directly appealed the grant of summary judgment to the lenders. Southeast Ceramics v. Klem, 246 Ga. 294, 295 (271 SE2d 199) (1980). We agree that the trial court erred in both instances and reverse.

The pertinent facts are not in dispute. Padgett entered into an agreement with Cambridge Health Care Services to facilitate the purchase of the old Hotel Colquitt in downtown Moultrie by Cambridge for conversion into a personal care home. Padgett provided services to Cambridge, including the negotiation and arrangement of the purchase of the hotel property, obtaining financing both from Empire and from the City, site analysis, market feasibility studies, assisting the architect and contractor in renovation of the property, and managing the property after closing. In return, Cambridge agreed that Padgett would receive $100,000 for “real estate and consulting services.” Padgett introduced several letters memorializing this agreement, as well as the testimony of the chief executive officer of Cambridge, Bryson E Hill, Jr. Padgett also received a real estate commission of five percent of the purchase price from the seller of the property, with the contract providing that Padgett’s company had acted as agent for the purchaser and not for the seller. No dispute exists that the five percent commission on the sale of the underlying realty was paid by the seller and was entirely separate from her broker’s agreement with the purchaser. Hill agreed that the seller’s commission was unrelated to the agreement between Cambridge and Padgett.

At closing, the available funds were insufficient to pay all of Padgett’s commission and fee. Part of the fee was paid at closing, and a new written “commission agreement” was executed by Cambridge for $55,420, the balance owed to Padgett. When this sum was not paid, Padgett filed a lien on the property and later filed this action to foreclose the lien.

1. We must first determine whether Padgett’s lien is valid and enforceable under the terms of the relevant statutes, OCGA § 44-14-600 et seq. Padgett contends that her services as a licensed real estate broker were “inextricably intertwined” with her services in obtaining financing, marketing the personal care home, assisting in the renovation of the hotel, and managing the property during the construction and loan phase. The City and Empire contend that some of the services Padgett provided were not services required to be provided by a broker as defined under OCGA § 43-40-1 and were not directly related to the actual sale of the real estate. For these reasons, they contend that a portion of Padgett’s services were not “licensed services” and that as a result none of Padgett’s claim is lien-able under the statute. This narrow interpretation is not supportable under the broad language of the statute creating the lien.

OCGA § 44-14-602 provides: “(a) Any real estate broker who is not an employee or independent contractor of another real estate broker shall have a lien, in the amount of the compensation agreed upon by and between the broker and the landlord or seller or other client or customer, upon commercial real estate or any interest in commercial real estate:

“(1) Arising out of a listing agreement or any other agreement for the management, sale, or lease of or otherwise conveying any interest in the commercial real estate as evidenced by a writing signed by the owner or its expressly authorized agent and with written notice to the party whose property may be liened, if different from the parties to the agreement;

“(2) As to which the broker or broker’s employees or independent contractors have provided licensed services that result in the procuring of a person or entity ready, willing, and able to enter and who actually enters into a purchase or lease or otherwise accepts a conveyance of the commercial real estate or any interest in the commercial real estate upon terms acceptable to the owner as evidenced by an agreement or conveyance signed by the owner or its expressly authorized agent and with written notice to the party whose property may be liened, if different from the parties to the agreement; or

“(3) When a broker having a written agreement with a prospective buyer or tenant to represent the buyer or tenant as to the purchase, lease, or other conveyance of commercial real estate becomes entitled to compensation and with written notice to the party whose property may be liened, if different from the parties to the agreement.”

In construing a lien statute, we must bear in mind the general rule that such statutes are in derogation of the common law and are strictly construed in favor of the property owner and against the lien claimant. Southern Gen. Ins. Co. v. Auto Transformation, 206 Ga. App. 243, 244-245 (1) (424 SE2d 883) (1992) (automobile mechanic’s lien); Browning v. Gaster Lumber Co., 267 Ga. 72, 73 (475 SE2d 576) (1996) (materialman’s lien). But we must also recognize the purpose for lien statutes: the need to protect the claimant’s profession or business. Id.

The general rules of statutory construction are also applicable here. We must give plain and unambiguous language its plain and ordinary meaning, except for words which are terms of art or have a particular meaning in a specific context. OCGA § 1-3-1 (b). We must also seek to make all parts of the statute harmonize and to give a sensible and intelligent effect to each part, presuming that the legislature intended all parts to have meaning. City of Buchanan v. Pope, 222 Ga. App. 716, 717 (1) (476 SE2d 53) (1996).

Construing the statute in this manner, we conclude that a commercial real estate broker’s lien is not limited to those services licensed under OCGA § 43-40-1. The statute is not limited to “licensed services” throughout. That term appears only in subsection (a) (2). This omission “invites the application of the venerable principle of statutory construction expressio unius est exclusio alterius: the express mention of one thing implies the exclusion of another; or the similar maxim more usually applied to statutes, expressum facit cessare taciturn, which means that if some things (of many) are expressly mentioned, the inference is stronger that those omitted are intended to be excluded than if none at all had been mentioned. [Cits.] The omission of any such reference from [the Code subsection] must be regarded as deliberate.” (Punctuation and emphasis omitted.) Dept. of Human Resources v. Hutchinson, 217 Ga. App. 70, 72 (456 SE2d 642) (1995) (express mention of “state officer or employee” in two subsections of statute and omission from third).

Moreover, the statute includes within the definition of lienable contracts a number of items not within the statutory definition of licensed services. For example, OCGA § 44-14-602 (a) (1) permits a lien not only for compensation “[a]rising out of a listing agreement” but also “any other agreement for the management, sale, or lease of or otherwise conveying any interest in the commercial real estate.” (Emphasis supplied.) Id. But OCGA § 43-40-1 was not amended until 1995 to include “property management services” within the definition of licensed activities. OCGA § 43-40-1 (2) (H); Ga. L. 1995, p. 1216. We conclude from this internal evidence that the General Assembly did not intend to limit a commercial real estate broker’s lien strictly to licensed services.

This conclusion is also compatible with the law defining those services for which a broker must be licensed. The law provides that no unlicensed person may provide certain enumerated services connected with real estate, even if the services required to be licensed form only part of the entire transaction: “Any person who, directly or indirectly, with the intention or upon the promise of receiving any valuable consideration, offers, attempts, or agrees to perform, or performs, any single act defined in paragraph (2) of Code Section 43-40-1, whether as a part of a transaction or as an entire transaction, shall be deemed a licensee within the meaning of this chapter. The commission of a single such act by a person who is required to be licensed under this chapter but who is not so licensed shall constitute a violation of this chapter.” (Emphasis supplied.) OCGA § 43-40-30 (a).

Padgett therefore was required to be a licensed broker to facilitate and manage the purchase and conversion of the property, even if some of the activities she undertook in completing the entire transaction did not at the time require a broker’s license. Under the broad language of the lien statute, it is unnecessary and unworkable to distinguish “licensed” and “nonlicensed” services under a contract agreed upon between the broker and client; every lien would be disputed. The General Assembly apparently recognized this difficulty when it provided in OCGA § 44-14-602 that property management was a lienable service, although not at that time a licensed service, and omitted the term “licensed services” from subsections (1) and (3) of the Code section. We conclude, therefore, that a commercial real estate broker’s lien under OCGA § 44-14-602 is not limited to licensed services as defined under OCGA § 43-40-1, so long as it otherwise complies with the requirements of the lien statute.

We also find that the services provided by Padgett may be secured by lien. First, we note that the City and Empire incorrectly seek to treat the three subsections of OCGA § 44-14-602 (a) as conjunctive rather than disjunctive. But the Supreme Court of Georgia has clearly held that a statutory list divided by semicolons and concluding with “or” is disjunctive rather than conjunctive. Flaherty v. Poythress, 263 Ga. 178, 180 (432 SE2d 103) (1993). In order to come within the ambit of the lien statute, Padgett need show only that the agreement with Cambridge falls within one of the three subsections of the statute.

No dispute exists as to the amount of the lien; it is established by the statute “in the amount of the compensation agreed upon by and between the broker and . . . client or customer.” OCGA § 44-14-602 (a). Padgett, the broker, and Cambridge, the client, do not dispute the amount of compensation remaining under their agreement. Nor is there any dispute that Padgett had “a written agreement with a prospective buyer,” Cambridge, “to represent the buyer . . . as to the purchase, lease, or other conveyance of commercial real estate” under OCGA § 44-14-602 (a) (3), although, as noted above, Padgett provided other services to Cambridge under that agreement. It is also undisputed that Padgett in fact “provided licensed services that resulted] in the procuring of a person or entity ready, willing, and able to enter and who actually enter[ed] into a purchase or lease or otherwise accepted] a conveyance of the commercial real estate” within the meaning of OCGA § 44-14-602 (a) (2). Finally, Padgett’s agreement to supervise and assist in the conversion of the hotel to a personal care home can be construed as “any other agreement for the management . . . of. . . commercial real estate” under OCGA § 44-14-602 (a) (1).

2. Having concluded that Padgett is entitled to a lien on the property at issue, we must address the respective priority of the liens of Padgett, Empire, and the City. Empire and the City rely on OCGA § 44-14-603, which provides: “Prior recorded liens and liens for ad valorem taxes shall have priority over a broker’s lien.” But this case presents the additional complicating factor of an agreement in which Empire agreed to subordinate part of its debt to the later-filed lien of the City.

Empire’s deed to secure debt was recorded in the Colquitt County Superior Court on May 14, 1993. Padgett filed her lien on April 5, 1994, and on the same date, she hand-delivered a copy of the lien to the City Manager and to a representative of the Moultrie National Bank, which held a 100 percent participation interest in Empire’s loan. On April 6, Padgett mailed a copy of the lien to Cambridge and Empire. Empire does not contend that it did not receive a copy of the lien. On May 9, 1994, the City recorded its deed to secure debt dated April 6, 1994. Also on May 9, Empire recorded a subordination agreement dated April 11, 1994. That subordination agreement references the deed to secure debt recorded May 14, 1993 and provides that Empire and Moultrie National Bank “subordinate and make subject the lien of the above described security deed on the property described therein to the first $120,000.00 of the $195,000.00 lien and obligations of that certain security deed from Cambridge Health Care, Inc. to the City of Moultrie.”

The priority of these three liens is controlled by the decision of Old Stone Mtg. &c. Trust v. New Georgia Plumbing, 140 Ga. App. 686 (231 SE2d 785) (1976), aff’d, 239 Ga. 345 (236 SE2d 592) (1977). “One who subordinates a first lien to a third lien makes his lien inferior to both the second and the third liens. Thus, where a first mortgagee subordinated his interest to a second mortgagee, the prior mortgage was necessarily inferior to an intervening materialman’s lien: It cannot be questioned that things equal to the same thing are equal to each other, and it is equally true that if B is inferior to A and C is inferior to B, C is also necessarily inferior to A. This rule is especially applicable where, as here, the grantees of the prior security deed had actual knowledge of the intervening materialman’s claim of lien.” (Citations and punctuation omitted.) Old Stone, supra, 140 Ga. App. at 690 (2). At the time the subordination agreement was recorded, Empire had knowledge of Padgett’s lien both through its earlier rec-ordation and receipt of a copy of the lien.

Decided November 20, 1997

Kirbo, McCalley & Forehand, William C. McCalley, for appellants.

Keith F. Allen, Solicitor, Moore & Mangum, Charles E. Moore, Young, Thagard, Hoffman, Scott & Smith, John H. Smith, Jr., Whelchel, Whelchel & Carlton, James C. Whelchel, Hoyt H. Whelchel, Jr., for appellees.

Empire contends that the rule established in Old Stone is inapplicable here because this subordination agreement applies to only a portion of its total loan amount. But as the Supreme Court of Georgia observed in its affirmance of the Court of Appeals, refusal to apply the subordination to the intervening lienholder would operate “to the detriment of the intervening lienholder known to the parties” and “destroy the legal rights of the intervening statutory lienholder.” Old Stone, supra, 239 Ga. at 346. The subordination of Empire’s rights to those of the City without effecting a subordination to Padgett’s intervening lien would operate to Padgett’s detriment, to the extent of that subordination. Moreover, Padgett expressly states that she claims superior lien rights only over the $120,000 which Empire has already subordinated to the City of Moultrie. Empire’s priority therefore changes only as to that part of its claim which has been subordinated. Padgett’s lien has priority over that portion of Empire’s claim which was subordinated to the City of Moultrie after her lien was recorded.

Judgment reversed.

McMurray, P. J., and Beasley, J., concur.

       Cambridge is a defendant below but not a named party to this appeal.

       We note that most real estate brokers in the ordinary course of their business provide services that arguably do not require a broker’s license, such as market analysis, certain types of advertising, and general customer relations. See, e.g., OCGA § 43-40-1 (2) (E) (advertising fees excepted from licensed services in promoting sale of real estate through listing or referral).

       Empire incorrectly asserts that the City filed its deed to secure debt on April 6, 1994, but cites no record authority for that assertion.

       We note that actual knowledge was an issue in Old Stone because the materialman’s lien was not recorded until after the second loan and subordination agreement, but under the law then applicable to materialmen’s liens the lenders were charged with actual knowledge of the claim of lien through their knowledge that the materialman had performed work and was demanding payment. Old Stone, supra, 140 Ga. App. at 688. That circumstance is not present here, because Padgett’s claim of lien was recorded before the second deed to secure debt and subordination agreement.


source: Caselaw Access Project

author: Judge Harold R. Banke.

license: Public Domain

text:
    A97A1783.
    In the Interest of Y. E., a child.
    (494 SE2d 297)
   Judge Harold R. Banke.

After a hearing pursuant to OCGA § 15-11-33 (a), Y. E., a minor, was adjudicated delinquent, upon a finding that she committed two designated felony acts, which, if committed by an adult, would have been aggravated assault and carrying a weapon on school property. On appeal, she enumerates four errors.

This case arose after Y. E. and the victim exchanged insults at school. During gym class, as the victim walked around the track, she neared Y. E., who pulled a box cutter from her slacks and twice cut the victim’s arm.

After hearing the evidence, the trial court adjudicated Y. E. delinquent. It ordered that she be placed in restrictive custody for five years. Held:

1. The trial court’s failure to make written findings on each of the five elements set forth in OCGA § 15-11-37 (c) requires reversal. OCGA § 15-11-37 (b) (requiring “specific, written findings of fact as to each” of subsection c’s elements); In the Interest of N. N. G., 196 Ga. App. 765, 766 (4) (397 SE2d 40) (1990) (reversing for failure to make findings of fact on each element). Specifically, the court’s order of commitment failed to include written findings on the first, and arguably the most important, of the criteria: “[t]he needs and best interests of the juvenile.” OCGA § 15-11-37 (c) (1). This omission is particularly troubling in light of the court’s comment in imposing restrictive custody, that “[t]he needs and best interest of the juvenile, even though we all wish to consider that in a designated . . . [felony] statute, by law it’s a penative [sic] statute. It’s not one to deal necessarily with rehabilitation and treatment.” Compare P. R. v. State of Ga., 133 Ga. App. 346, 347 (1) (210 SE2d 839) (1974) (“ ‘The objective that a child having been subjected to the juvenile process be treated or rehabilitated and returned to society to lead a useful life is . . . fundamental to the entire [Juvenile] Code.’”). The trial court is directed to consider Y. E.’s needs and best interests in light of the Juvenile Code’s objectives. See T. K. v. State of Ga., 126 Ga. App. 269, 274 (1) (190 SE2d 588) (1972) (the Juvenile Code “seeks nonconfinement, rehabilitation, and restoration to parental care wherever possible rather than punishment,”).

2. Y. E. argues that the appointment of her attorney so close to the date of her dispositional hearing restricted her right to meaningful counsel. The record shows that the hearing was held on November 5, 1996, and counsel was appointed on either Friday, November 1 or Monday, November 4. Y. E. was not confined in the town in which her attorney was located and counsel had no access to her until a few minutes before the hearing.

Decided November 20, 1997.

Seals & Whatley, E. Earl Seals, for appellant.

Peter J. Skandalakis, District Attorney, Brett E. Pinion, Assistant District Attorney, for appellee.

Counsel’s failure to request a continuance or otherwise raise the issue below precludes our consideration of it. See Greene v. State, 260 Ga. 472, 473 (1) (396 SE2d 901) (1990). We reiterate, however, that counsel is entitled to a reasonable time to prepare a defense. Lowrance v. State, 183 Ga. App. 421, 422 (1) (359 SE2d 196) (1987) (physical precedent only): see In re B. M. H., 177 Ga. App. 478, 479 (339 SE2d 757) (1986).

3. Y. E.’s claim that OCGA § 15-11-28 (a) is unconstitutional because it denies juveniles the right to a jury trial is foreclosed by Robinson v. State, 227 Ga. 140, 142 (179 SE2d 248) (1971).

Judgment vacated and case remanded with direction.

Beasley and Smith, JJ., concur.

       Y. E.’s first enumeration argues that the trial court failed to properly consider her needs and best interests as required by OCGA § 15-11-37 (c). Our disposition of Division 1 necessarily incorporates that enumeration by requiring the trial court to make written findings on that issue. Because the remaining elements were specifically addressed in writing in the order of commitment, we cannot agree that the court failed to consider them. See In the Interest of C. T., 197 Ga. App. 300, 303 (3) (398 SE2d 286) (1990) (depth of analysis of OCGA § 15-11- 37 (c) criteria a matter of discretion).


author: Blackburn, Judge. Johnson, Judge,

text:
    A97A1338.
    SIEGRIST v. IWUAGWA.
    (494 SE2d 180)
   Blackburn, Judge.

Dr. Harry E. Siegrist III appeals from the trial court’s grant of summary judgment in favor of Augustine Iwuagwa in Siegrist’s suit to collect payment for the rendering of services which were outside the scope of chiropractic treatment. Siegrist, a chiropractor, claims he is entitled to payment from Iwuagwa, a former patient, for massages which are not authorized chiropractic treatment under OCGA § 43-9-16. Siegrist provided the massages to Iwuagwa while treating him for soft tissue injuries sustained in an automobile accident. Because OCGA § 43-9-16 limits the authorized treatments which chiropractors may provide to those modalities listed therein, and because massage is not listed as an authorized treatment modality under the statute, Siegrist is not entitled to recover for the massages.

The facts show that after he was injured in an automobile accident, Iwuagwa presented himself at Siegrist’s office, a health care provider, for treatment of his injuries. According to the patient information form he completed prior to seeing Siegrist, Iwuagwa sought “lasting correction” of the soft-tissue injuries he had sustained in the collision. As a condition of receiving this treatment, he was required to sign, on “Chiropractic Health Clinic” letterhead, a statement guaranteeing payment to Siegrist for all charges incurred. The form made no reference to massages, the fact that services outside the statutory limits for chiropractic treatment might be given, or any indication of the charge for any treatment.

The record does not reflect that Siegrist and Iwuagwa had any discussion or negotiation regarding what specific services Siegrist would provide to Iwuagwa, including what types of treatments Siegrist would administer to Iwuagwa. Nor does the record reflect that the parties ever discussed Siegrist’s provision of massages as part of Iwuagwa’s chiropractic rehabilitation. However, the record does indicate that on 18 of Iwuagwa’s visits to Siegrist’s office for treatment, Siegrist chose to administer massage as part of that treatment at a rate of $22 per massage. Based upon the record before us, throughout Iwuagwa’s treatment with Siegrist, Siegrist selected all of the treatments, including massage, which, in his professional chiropractic judgment, he felt were beneficial to Iwuagwa.

Iwuagwa had insurance which covered the injuries he received in the collision, and this insurance paid the majority of the cost of his treatments with Siegrist. However, when Iwuagwa’s insurer refused to pay for the massages, claiming they were outside the scope of authorized chiropractic treatment, Iwuagwa also refused to pay for the massages, presumably on the same basis. Siegrist thereafter filed suit in magistrate court, and Iwuagwa prevailed. When Siegrist appealed this decision de novo to the state court, both parties moved for summary judgment. Iwuagwa’s motion for summary judgment was granted, and it is from this ruling that Siegrist appeals.

Our standard of review for this contention is well-established. “On appeal from a trial court’s grant of summary judgment, this Court conducts a de novo review of the evidence. In order to prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the rionmoving party, warrant judgment as a matter of law. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).” (Citation and punctuation omitted.) Gentile v. Bower, 222 Ga. App. 736 (477 SE2d 130) (1996).

1. Siegrist argues that the trial court erred in finding that, because massage is not listed in OCGA § 43-9-1 et seq. as a permissible practice for chiropractors, Siegrist was not authorized to perform such service as chiropractic treatment and to charge Iwuagwa for it. Specifically, the trial court found that the chiropractic profession is strictly regulated in Georgia, that the permissible chiropractic procedures are clearly set forth by statute, and that massage is not included in the procedures listed in the statute. Siegrist acknowledges the scope of the chiropractic statutes. He argues however that as anyone can perform massage, his status as a chiropractor should not prevént him from being able to perform massages.

Because the statutes applicable to chiropractors and the practice of chiropractic hold otherwise, Siegrist’s argument is without merit. OCGA § 43-9-1 (2) defines “chiropractic” as “the adjustment of the articulation of the human body. . . . [T]hat separate and distinct branch of the healing arts whose science and art utilize the inherent recuperative powers of the body and the relationship between the musculoskeletal structures and functions of the body ... in the restoration and maintenance of health.” OCGA § 43-9-16 further defines the practice of chiropractic, and sets forth the procedures which chiropractors may and may not utilize in treating patients. It is primarily this section which defeats Siegrist’s argument.

Pursuant to OCGA § 43-9-16 (e), chiropractors may not prescribe or administer medicine, perform surgery, or practice obstetrics or osteopathy. Nor may they use invasive procedures such as venipunc-ture, capillary puncture, acupuncture, and colonics. OCGA § 43-9-16 (f). OCGA § 43-9-16 also contains a detailed list of what specific treatment modalities chiropractors are entitled to use. In addition to manual, electrical, and mechanical adjustments of the human body, chiropractors may utilize the following electrical therapeutic modalities: therapeutic ultrasound, galvanism, microwave, diathermy, and electromuscular stimulation. OCGA § 43-9-16 (b). Massage, which would be a treatment modality, is not included in this list, and it does not appear, either specifically or by implication, anywhere else in the chapter on chiropractic. Because the statutes which govern his profession do not provide that he may administer massages as part of a patient’s chiropractic treatment, it is clear that Siegrist was not authorized, in his chiropractic treatment of Iwuagwa, to provide massages and then charge Iwuagwa for them.

Statutory construction of this sort is so frequently relied upon by this Court and the Supreme Court that its soundness is above question. “The omission of any reference to [massage] from OCGA § [43-9-16]. . . invites the application of the venerable principle of statutory construction expressio unius est exclusio alterius: the express mention of one thing implies the exclusion of another; or the similar maxim more usually applied to statutes, expressum facit cessare taciturn, which means that if some things of many are expressly mentioned, the inference is stronger that those omitted are intended to be excluded than if none at all had been mentioned. The omission of any such reference from OCGA § [43-9-16] must be regarded as deliberate.” (Citations and punctuation omitted.) Dept. of Human Resources v. Hutchinson, 217 Ga. App. 70, 72 (456 SE2d 642) (1995). Accordingly, under the current statutory scheme, chiropractors may not, as a part of their chiropractic services, treat patients with massages for a fee. See also Metoyer v. Woodward, 176 Ga. App. 826 (338 SE2d 286) (1985) (finding that OCGA § 43-9-16, as it existed in 1985, did not permit chiropractors to use the techniques of galvanism and ultrasound diathermy).

The dissent argues that OCGA § 43-9-16, which states that “chiropractic adjustment of the articulations of the human body may include manual adjustments,” is broad enough to encompass the giving of massages. However, this issue was not raised in the pleadings in the trial court or on appeal by Siegrist. There is no transcript showing that Siegrist raised this argument in the trial court, as required to preserve it for appellate review. Inasmuch as “[w]e will not consider the validity of a trial court’s ruling based on a completely different legal issue than timely and specifically raised below,” Siegrist would be barred from asserting such an argument on appeal. Saffar v. Chrysler First Business Credit Corp., 215 Ga. App. 239, 240 (1) (450 SE2d 267) (1994).

While the dissent correctly cites OCGA § 43-9-16 (b) for the proposition that “[t]he chiropractic adjustment of the articulations of the human body may include manual adjustments,” the statute’s use of the term “manual adjustments” is not broad enough to encompass massages. As used in the statute, “manual adjustments” refer to a method for adjusting the “articulations” of the human body. Sted-man’s Medical Dictionary, 23rd edition, states that “articulations” are joints — “the place of union, usually more or less movable, between two or more bones.” “Chiropractic adjustment of articulations,” including “manual adjustments,” therefore means manipulations of the joints of the human body. Massage, by contrast, does not involve manipulations of the joints of the human body. In fact, Siegrist himself defines massage as “a body rub given to improve circulation and relax muscles.” Accordingly, as manual adjustments of articulations refers to joints, and as massage is not a “manual adjustment” of joints, OCGA § 43-9-16 (b) provides no support for the dissent even if the issue had been preserved and was properly before us.

A review of prior chiropractic cases supports our conclusion that massages are not statutorily authorized chiropractic treatment. Foremost among these is Foster v. Ga. Bd. of Chiropractic Examiners, 257 Ga. 409 (359 SE2d 877) (1987), wherein the Supreme Court examined the dispensing of nutritional substances by a chiropractor, Foster, to his patients. The state claimed that Foster was prescribing drugs, which constituted the unlicensed practice of medicine. Foster argued that anyone could sell the nutritional substances at issue, including common merchants, and therefore he should also be able to prescribe and dispense the substances. Id. at 418 (12).

The Supreme Court rejected this reasoning, and found that “[t]he regulation of health professions, for the preservation and protection of public health, is universally regarded as a duty of the State in the exercise of inherent police power.” (Punctuation omitted.) Id. at 419 (14). It noted that the chiropractor did not merely sell vitamins, he “[represented] to a patient who [had] come to him that such vitamins [would] cure a disease or ailment. . . . [T]he chiropractor in a professional capacity advises the patient to take the vitamins for the ailment or disease, charges compensation for such advice, and may cause the patient to think his ailment or disease will thereby be cured. This is the vice condemned.” (Punctuation omitted.) Id. at 418-419.

The same reasoning applies here. The legislature has chosen to regulate chiropractic closely, and has clearly delineated the bounds over which chiropractors may not cross. Unlike a chiropractor, one who gives massages for relaxation or similar purposes does not represent to a patient, for a fee, that massage will cure a disease or ailment. Although anyone may give massages, when a chiropractor gives a massage as part of his rehabilitation or maintenance of a patient’s health, he is representing, based upon his professional judgment, that the massage has medical, rehabilitative benefits. The character of the massage is therefore transformed when it is administered by a chiropractor — from an act anybody can perform to a professionally diagnosed and administered chiropractic procedure which the patient believes will alleviate his pain or cure his disease.

As was the case in Foster, which is binding authority upon us, herein lies the difference between simply providing massages and in providing them as part of a patient’s chiropractic treatment. Although, unlike Foster, Siegrist’s giving of massages does not amount to the unlicensed practice of medicine, the vice condemned is the same. In the same way that Foster unlawfully represented that certain vitamins would assist or cure various conditions in his patients, Siegrist — unlawfully under the statute — represented that massage had chiropractic benefits and administered massages as part of chiropractic treatment to heal and cure. Although massage may indeed have some benefit, that issue is not before us, and only the legislature has the authority to address this issue.

History shows us that this pattern is a common one in Georgia jurisprudence where the scope of the chiropractic statutes is at issue. For example, after the Supreme Court held in Foster that the Code did not authorize Foster to “prescribe or dispense vitamins, minerals, or nutritional substances,” Foster, supra at 417 (10), the Georgia legislature amended OCGA § 43-9-16 to provide that chiropractors “may recommend the use of vitamins, minerals, or food supplements.” OCGA § 43-9-16 (i). Similarly, after this Court held in Metoyer v. Woodward, supra, that OCGA §§ 43-9-1 and 43-9-16 did not permit chiropractors to use the treatment modalities of galvanism and ultrasound diathermy, the Code was amended to add these modalities to the permissible scope of chiropractic treatment. See OCGA § 43-9-16 (b). Foster and Metoyer illustrate that it is the duty of this Court and the Supreme Court to apply the chiropractic statutes as written, and the option of altering or amending the statute rests exclusively with the legislature.

To claim, as Siegrist does, that because anyone can perform massages with little more than a business license, his ability to give massages should not be proscribed, misses the point of the reasoning behind regulating the profession of chiropractic. If chiropractors could perform all services any other person, medical or otherwise, could perform, there would be no need for a statute setting forth those specific treatment modalities which chiropractors are authorized to use to treat or rehabilitate a patient. Siegrist is not barred from giving massages, he is simply not authorized to provide them as chiropractic treatment and then charge for them. The reason for this rule is basic. Chiropractors are limited to providing, and charging for, certain services which are within the scope of their profession. A chiropractor cannot, pursuant to an agreement to pay for services like the one Iwuagwa was required to sign here, perform services which are not authorized as chiropractic treatment and then force a patient to pay for those services by virtue of the agreement to pay.

A chiropractor may provide massage services if he chooses, so long as such massages are not provided in his capacity as a chiropractor rendering chiropractic treatment to a chiropractic patient. In no event could a patient’s guarantee to pay for chiropractic services include the guarantee to pay for any type of non-chiropractic service, including massage. The absence of massage from the current statutory scheme evinces the legislature’s determination that massage is not a proper form of chiropractic treatment at this time. Accordingly, the trial court did not err in granting summary judgment for Iwu-agwa on this issue.

2. Siegrist claims the trial court should have enforced the executed contract for which Iwuagwa received full benefit. As held in Division 1, however, the massages were not authorized by law as chiropractic treatment. Pursuant to OCGA § 13-8-1, “[a] contract to do an immoral or illegal thing is void.” The parties’ contract for massages was therefore void, and the trial court did not err in failing to enforce it. Siegrist having been paid for the rest of his chiropractic services to Iwuagwa, this issue presents nothing further for review. See OCGA § 13-8-1 (regarding the severability of contracts).

3. Siegrist raises several constitutional arguments, and claims the trial court erred in failing to address them. He contends that his due process and equal protection rights will be violated if chiropractors are prohibited from practicing massage. He also claims that barring chiropractors from offering massages unconstitutionally impairs his contract with Iwuagwa. While the trial court’s order does not specifically address these arguments, it implicitly finds them to be without merit. Also, Siegrist’s “contract” with Iwuagwa was nothing more than a general guarantee to pay for chiropractic services. Massages not being chiropractic services, there was no guarantee to pay for such services.

(a) Siegrist argues that chiropractors have a fundamental right to practice massage, and that denial of that right is a violation of equal protection. However, the right to practice massage is not a fundamental right. As Siegrist does not contend that chiropractors are a suspect class, we must therefore determine under the “rational basis” test whether or not the state’s regulation of chiropractors performing massage “bears a reasonable relationship to a legitimate purpose of government. . . . If it is found that the legislative purpose is legitimate and the classification drawn has some reasonable relation to furthering that purpose, the classification passes constitutional muster.” (Punctuation omitted.) City of Atlanta v. Watson, 267 Ga. 185, 187-188 (475 SE2d 896) (1996).

The state’s classification of chiropractors, including its classifications regarding what procedures chiropractors are and are not authorized to use, bears a reasonable relationship to the government’s legitimate purpose of protecting the public’s health. See generally Foster, supra at 419 (14). Preventing chiropractors from prescribing, administering, and charging for massages, in the course of chiropractic treatment, reasonably furthers the state’s purpose in protecting public health and welfare from an activity it has determined is beyond the scope of the practice of chiropractic. The same is true of preventing chiropractors from directly or implicitly representing to the public that massage is an authorized chiropractic treatment. For this reason, Siegrist has failed to show that the state’s legislation “was undertaken with an unreasonable purpose or was arbitrary and capricious,” and he has therefore not shown the existence of an equal protection violation. Watson, supra at 187.

(b) Siegrist contends the taking of his ability to perform massages in connection with his profession amounts to a deprivation of property without due process of law. He correctly asserts that a license to engage in a profession is a property right. See Wills v. Composite State Bd. of Med. Examiners, 259 Ga. 549, 551 (3) (384 SE2d 636) (1989). He is also correct that such a property right “requires the state to afford any person [having such right] due process before depriving him of his property.” Id. However, the performance of massage services is not an act which falls within the scope of chiropractic practice under existing statutes, and therefore no due process violation exists.

Nothing in the statutes governing chiropractic practice precludes a chiropractor, who is otherwise qualified, from providing separate massage services. Siegrist is simply prohibited from doing so and representing massage as chiropractic services and charging his chiropractic patients for such unauthorized procedure.

(c) Siegrist claims the trial court’s ruling impairs his right to contract. “The test is whether there was a vested right. If so, no subsequent legislative Act could impair it; but if not, there is no bar to a change or abolition of it at any time before it becomes fixed by a judgment.” (Punctuation omitted.) Goolsby v. Regents of the Univ. System of Ga., 141 Ga. App. 605, 606 (234 SE2d 165) (1977) (rev’d on other grounds, Donaldson v. Dept. of Transp., 262 Ga. 49, 53 (414 SE2d 638) (1992)).

Although Siegrist argues that he should be allowed to perform chiropractic massages and charge for them, he does not argue that he had a vested right to do so. Nor does anything contained in the record so indicate. See generally S. J. T., Inc. v. Richmond County, 263 Ga. 267, 271 (6) (430 SE2d 726) (1993). The prohibition therefore does not constitute an impairment of contract, and this enumeration is without merit.

4. We need not reach Siegrist’s enumeration that summary judgment should have been granted for him.

Judgment affirmed.

Andrews, C. J., McMurray, P. J, Pope, P. J, Beasley and Smith, JJ., concur. Johnson, J., dissents.

Johnson, Judge,

dissenting.

OCGA § 43-9-16 (b) states that “chiropractic adjustment of the articulations of the human body may include manual adjustments. ...” I dissent in this case simply because I believe massage is a form of manual adjustment within the contemplation of the statute. I do not take issue with Judge Blackburn’s thorough discussion of the rules of statutory construction or the applicability of those venerable principles to the cases upon which his decision relies, Metoyer v. Woodward, 176 Ga. App. 826 (338 SE2d 286) (1985) and Foster v. Ga. Bd. of Chiropractic Examiners, 257 Ga. 409 (359 SE2d 877) (1987), both of which I agree were correctly decided but which are distinguishable from this case. And because I believe that massage falls within the purview of the statute, a contract for such services is not unenforceable as an illegal contract as held in Division 2 of the majority’s opinion.

Decided September 26, 1997

Reconsideration denied November 21, 1997

Suzanne A. Littlefield, for appellant.

Downey & Cleveland, Richard A. Griggs, for appellee.

       Siegrist also suggests that he is entitled to equitable relief so that Iwuagwa will not be unjustly enriched. Though we need not address this argument for Siegrist’s failure to separately enumerate it, “where a contract is illegal only in part, recovery is allowed on a quantum meruit basis for the part of the services which was legal.” (Emphasis supplied.)
        Remediation Svcs. v. Ga. Pacific Corp., 209 Ga. App. 427, 434 (433 SE2d 631) (1993).

       Fundamental rights include “the guarantees of the Bill of Rights, the right to fairness in the criminal process, the right to privacy, the right to travel, the right to vote, freedom of association, and procedural due process rights.” Ambles v. State, 259 Ga. 406, 408 (b) (383 SE2d 555) (1989).


author: Blackburn, Judge.

text:
    A97A1392.
    CSX TRANSPORTATION, INC. v. MONHOLLEN.
    (494 SE2d 202)
   Blackburn, Judge.

CSX Transportation, Inc. (CSX) appeals from a jury verdict in favor of Terrell Monhollen. Monhollen sued CSX, his former employer, under the Federal Employers’ Liability Act (FELA), 45 USC § 51 et seq. Monhollen claimed he was injured as a result of CSX having exposed him to harmful solvents in his workplace. CSX argues that the judgment for Monhollen must be reversed because Monhollen elicited testimony which violated a motion in limine. CSX also claims that the court erroneously admitted evidence of subsequent remedial measures and failed to grant its motion for directed verdict.

1. CSX argues that the jury’s verdict was poisoned because Monhollen elicited testimony from certain witnesses in violation of the court’s order on a motion in limine. The applicable standard of review provides that a violation of a motion in limine alone is not sufficient to establish reversible error. Verde v. Granary Enterprises, 178 Ga. App. 773, 774 (2) (345 SE2d 56) (1986). “The introduction of the evidence must still be shown to be harmful error.” Id. at 774 (2).

The record indicates that CSX filed a pretrial motion in limine seeking to restrict Monhollen from eliciting testimony from his coworkers regarding any physical effects they experienced from exposure to solvents in the workplace. Monhollen and his co-workers repaired diesel locomotive engines for CSX and extensively used chemical solvents to clean the engines. The solvents caused the men to become dizzy, lightheaded, and ultimately pass out, and it was this type of testimony which CSX sought to exclude from any witness except Monhollen. The court heard argument on this motion both before and during trial and made various rulings on the motion over the course of the trial.

(a) CSX claims Monhollen violated the motion in limine when, in opening statement, his counsel referred to physical effects the chemicals had on CSX employees. CSX claims this violated the court’s ruling on the motion in limine because the court had ruled that only employees who worked at the same time as Monhollen doing the same work he did could testify about their subjective physical symptoms, and then only about the symptoms they had specifically reported to CSX. According to CSX, Monhollen’s general reference to physical symptoms violated the specificity requirements of the court’s ruling.

However, the record indicates that at the time of opening statements, the court’s ruling was not as specific as CSX contends. Before opening statements, the court heard argument on the motion, issued a ruling similar to that as stated by CSX, and then changed its mind and reserved ruling on the issue. Just prior to opening statements, the court made the following ruling: “[Concerning the issues of notice [to CSX] and the other acts [meaning the employees’ physical symptoms], I will allow other acts to come in for the limited purpose of notice.”

Accordingly, Monhollen’s counsel’s comments during opening statements did not violate the court’s ruling on the motion in limine as it stood at that time. The court had ruled that the physical symptom evidence was admissible and, after having reserved its ruling, had not otherwise qualified the admission of such evidence in the ways that CSX contends. Even assuming arguendo that a violation occurred, reversal is not warranted. Within the context of the nearly 2,000 pages of transcript from the trial of this case, the statements CSX complains of do not rise to the level of harmful error.

(b) CSX argues that the testimony of Phillip Girdner violated the motion in limine. Specifically, CSX claims Monhollen improperly elicited testimony from Girdner regarding physical symptoms which Girdner did not report to CSX. At the time Girdner testified, the trial court’s ruling permitted fellow employees who worked at the same time period as Monhollen doing similar work to testify regarding their physical reactions to the solvents, provided the employees had reported these same reactions to CSX at the time that they occurred. This same ruling remained in effect for the remainder of the trial.

Girdner’s testimony was not harmful error, and the notice to CSX which CSX claims is lacking in his testimony was established by his statement that he informed his supervisor that the fumes from the solvents made him dizzy. On one occasion Girdner’s testimony did exceed the bounds of the court’s ruling, but when he repeated this exact same testimony a short time later, the court sua sponte gave a curative instruction to the jury to disregard that testimony. It also granted CSX’s motion to strike the testimony and again instructed the jury not to consider it. CSX’s contention is accordingly without merit.

(c) CSX asserts that Donnie Adkins’ testimony violated the motion in limine. Adkins testified that it was standard practice for CSX employees to take “fresh air breaks,” ostensibly to escape the solvent fumes. CSX argues that because Adkins never informed CSX that he needed to take fresh air breaks, his testimony constituted evidence of physical symptoms of which CSX had no notice.

Adkins’ testimony did not violate the motion in limine because it contained no reference to any physical effects which solvent fumes had on him. While his testimony that he took fresh air breaks might have allowed the jury to deduce the fact that the solvent fumes physically affected him, he did not testify as to what those physical effects were, and a fresh air break itself is not a physical symptom. Moreover, as evidence of fresh air breaks taken by employees had already been properly admitted through the testimony of Phillip Girdner, Adkins’ testimony was merely cumulative and could therefore not result in reversible error. See Henry v. Watkins, 219 Ga. App. 80, 82 (2) (464 SE2d 215) (1995).

(d) In closing argument, Monhollen’s counsel argued that “people” were getting dizzy and drunk from solvent fumes at CSX’s facility. CSX argues that this broad comment violated the specificity of the court’s order on the motion in limine. However, Monhollen presented admissible testimony from four different witnesses which supported his counsel’s statements. “While counsel should not be permitted in argument to state facts which are not in evidence, it is permissible to draw deductions from the evidence.” (Punctuation omitted.) Miller v. Coleman, 213 Ga. 125, 130 (6) (97 SE2d 313) (1957). Monhollen’s counsel’s statement was therefore within the scope of permissible argument, and CSX’s contention is without merit.

2. CSX claims the trial court erred in admitting evidence of subsequent remedial measures and alternatively claims that Monhol-len’s use of such evidence violated the court’s ruling on that issue and impermissibly influenced the jury’s verdict. We review a trial court’s decision on the admissibility of subsequent remedial measure evidence under the abuse of discretion standard. See Ratliff v. CSX Transp., 219 Ga. App. 53, 55 (1) (b) (464 SE2d 1) (1995). Additionally, “[ejvidénce of a subsequent modification should not be admitted if the potential for prejudice in the admission of the evidence substantially outweighs its probative value.” (Punctuation omitted.) Id.

The evidence shows that a contested issue throughout the trial was whether or not CSX had respirators available for its employees to use, so as to limit their inhalation of harmful solvent fumes. Monhollen’s evidence on this issue showed that under Occupational Safety & Health Association (OSHA) requirements, CSX was required to have a respirator program in place. His other evidence indicated that respirators either were not provided to CSX workers or were defective if provided. His evidence further showed that had respirators been properly provided to him, the brain damage he suffered from years of solvent exposure would not have occurred.

CSX’s witness on the respirator issue, Thomas Hedrick, testified that CSX did make respirators available to its workers. While cross-examining Hedrick, Monhollen’s counsel attempted to elicit testimony from him that no respirator program (as required by OSHA) was actually in place at CSX until April 19, 1991, after Monhollen had left CSX’s employ. Hedrick had written a letter stating that the respirator program was introduced on April 19, 1991, and when Monhollen’s counsel attempted to show Hedrick this letter, the jury was taken out and the court heard argument on the admissibility of the subsequent remedial measure evidence. The court ruled that the evidence was admissible “concerning this respirator program,” as the steps CSX took to provide a safe workplace, including the use of respirators, was a controverted issue in the trial. The letter, however, was not introduced into evidence and is not contained in the record.

“Evidence of subsequent remedial measures generally is inadmissible in negligence actions. . . . However, there are several exceptions to that rule, such as when the subsequent repair, change, or modification tends to prove some fact of the case on trial (other than belated awareness of negligence, of course), to show contemporary knowledge of the defect, causation, a rebuttal of a contention that it was impossible for the accident to happen in the manner claimed, and so on.” (Punctuation omitted.) Royals v. Ga. Peace Officer Standards &c., 222 Ga. App. 400, 401 (1) (474 SE2d 220) (1996).

In this case, the subsequent remedial measure evidence falls within the exception of proving a material fact, i.e., that CSX failed to comply with OSHA’s respirator program requirements while Monhollen was employed with CSX. The materiality of this fact is illustrated by the extensive charge the jury received on the OSHA respirator requirements. Additionally, inasmuch as one of Monhol-len’s witnesses testified that had CSX complied with OSHA’s requirements, its employees would have been protected from the harmful effects of the solvents, this evidence also bears upon the causation exception to the subsequent remedial measures rule. The trial court therefore did not abuse its discretion in admitting such evidence, and CSX’s contention that Monhollen’s counsel exceeded the scope of the court’s ruling with respect to this issue is not supported by the record.

CSX also argues that the court failed to give an appropriate limiting instruction in connection with the remedial evidence, as suggested by Stuckey’s Carriage Inn v. Phillips, 122 Ga. App. 681, 687 (178 SE2d 543) (1970). However, CSX made no request for such an instruction. “[I]n the absence of an oral request for a limiting instruction at the time the evidence is introduced, or a proper written request to so charge the jury at the conclusion of the case, it is not reversible error to fail to give a specific instruction limiting the relevancy of the evidence.” Patterson v. Lauderback, 211 Ga. App. 891, 893 (2), n. 1 (440 SE2d 673) (1994), overruled on other grounds, Warren v. Ballard, 266 Ga. 408, 410 (467 SE2d 891) (1996).

3. CSX alleges that the trial court erred in failing to grant its motion for directed verdict, as Monhollen presented no evidence of foreseeability of harm. “A reasonable foreseeability of harm is an essential ingredient of FELA negligence.” (Punctuation omitted.) Bagley v. CSX Transp., 219 Ga. App. 544, 545 (1) (465 SE2d 706) (1995). With respect to the standard of review for this enumeration, “[i]n a FELA case, a directed verdict is possible only when there is a complete absence of probative facts supporting the nonmovant’s position.” (Punctuation omitted; emphasis in original.) Id. at 546 (1).

In support of his contention that CSX failed to supply him with a safe workplace, Monhollen’s experts testified that due to his years of exposure to a degreasing solvent known by the trade name Dowclene, Monhollen contracted a disease known as toxic encephalopathy. The experts defined this disease as irreversible, incurable brain damage. In response to this evidence, CSX’s witnesses testified that toxic encephalopathy was unknown or unsubstantiated in science during the time Monhollen was working with solvents at CSX, and therefore CSX could not be charged with knowledge, either actual or construe-five, that exposure to solvents could cause toxic encephalopathy. This being so, CSX argues, a directed verdict was demanded because it had no foreseeability of Monhollen’s specific harm.

We cannot agree. The federal law in this area does not require, as CSX argues, foreseeability of the specific harm which resulted from the tortfeasor’s negligent act in order for liability to attach. “It is widely held that for a defendant to be liable for consequential damages he need not foresee the particular consequences of his negligent acts: assuming the existence of a threshold tort against the person, then whatever damages flow from it are recoverable.” Gallick v. Baltimore & Ohio R. Co., 372 U. S. 108, 120 (83 SC 659, 9 LE2d 618) (1963). “To recover, the plaintiff must prove that the [defendant] railroad, with the exercise of due care, could have reasonably foreseen that a particular condition could cause injury.” Davis v. Burlington Northern, 541 F2d 182, 185 (8th Cir. 1976).

In this case, Monhollen presented evidence that CSX’s negligent act consisted of maintaining working conditions which continuously exposed him to dangerous chemicals without adequate safeguards for his health and safety. Monhollen’s evidence also showed that although CSX might not have known that toxic encephalopathy could result from solvent exposure, CSX did know that the solvents its employees were using were dangerous and were toxic to the central nervous system, and for this very reason exposure to the solvents was regulated by CSX itself and by OSHA. In accordance with Gal-lick, supra, this exposure constitutes “the existence of a threshold tort against [Monhollen, so that] whatever damages flow from it are recoverable.” Gallick, supra at 120.

Monhollen’s evidence of CSX’s negligence in this regard was ample. He showed that CSX did not institute and maintain a respirator program as mandated by OSHA to protect its employees from harmful solvent fumes and, in many cases, did not provide respirators at all. He demonstrated that CSX knew that employees were complaining of dizziness and drunkenness from the solvent fumes, but did not monitor the air in the workplace to assess the level of fumes present to make sure workers were not exceeding the permissible exposure levels for the chemicals. Additionally, CSX failed to read or abide by the manufacturer’s warnings regarding physical effects of exposure to Dowclene as contained on the side of the Dow-clene barrels and failed to enforce its own safety regulations in this regard.

Decided October 28, 1997

Reconsideration denied November 24, 1997

Casey, Gilson & Williams, James E. Gilson, Matthew H. Roane, for appellant.

Burge & Wettermark, E Tucker Burge, James H. Wettermark, Van K. McCombs II, for appellee.

“[UJnder the FELA, the test of a jury case is simply whether the proofs justify with reason the conclusion that employer negligence played any part, even the slightest, in producing the injury.” (Punctuation omitted; emphasis in original.) Harbin v. Burlington Northern R. Co., 921 F2d 129, 131 (7th Cir. 1990). Monhollen has presented evidence both that CSX’s negligence played a part in producing his injury, and that the possibility of injury was foreseeable to CSX. Inasmuch as a directed verdict is possible only when there is a complete absence of probative facts supporting the nonmovant’s position, the trial court did not err in denying CSX’s motion for directed verdict.

Judgment affirmed.

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

       FELA is a federal cause of action, but the admissibility of evidence in such a case is governed by state law. See Central Vermont R. Co. v. White, 238 U. S. 507, 509-510 (35 SC 865, 59 LE 1433) (1915).

       CSX sets forth in its brief four instances where it claims Monhollen violated the motion in limine, and because we will not cull the record in search of error, see Vitner v. Miller, 223 Ga. App. 692, 693 (1) (479 SE2d 1) (1996), we restrict our review of the alleged violations to those four instances.

       While CSX’s version of the court’s ruling is not incorrect, it was not made until the testimony of the second witness in the trial, well after opening statements were delivered.

       CSX also makes a vague argument that testimony from co-workers of Monhollen who did not have the same job as he violated the motion in limine. However, the court’s order on the motion in limine did not require witnesses to share the same job. It only required the witnesses to have used the solvents to degrease train parts.

       It is this knowledge which CSX had of the risks associated with the use of solvents and of their toxicity to the central nervous system which distinguishes this case from Bagley v. CSX Transp., supra, cited by CSX for the proposition that Monhollen had to show foreseeability of toxic encephalopathy itself. While the plaintiff in Bagley had to show that the defendant knew that his exposure to asbestos dust placed him at risk for contracting the specific disease asbestosis, the decision in that case centered on the defendant railroad’s ignorance of the risk of exposure to asbestos and its resulting medical consequences. In this case, CSX was charged with knowledge that Dowclene was toxic to the central nervous system, and therefore any resulting injury from that toxicity was foreseeable without proof of foreseeability of the specific disease of toxic encephalopathy.


text:
    A97A1953.
    PARRIS et al. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al.
    (494 SE2d 244)
   Blackburn, Judge.

Plaintiffs Dale D. Parris and Brian G. Lamoy appeal from the trial court’s grant of summary judgment in favor of State Farm Mutual Automobile Insurance Company (State Farm) and State Farm claim specialist Robert Bronaugh on plaintiffs’ claim for damages for failure to furnish certain insurance coverage information as required by OCGA § 33-3-28, fraud and false swearing.

“In reviewing [a] grant or denial of summary judgment, this Court conducts a de novo review of the evidence.” Goring v. Martinez, 224 Ga. App. 137, 138 (2) (479 SE2d 432) (1996). “To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the non-moving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c).” (Punctuation omitted.) Goring, supra at 138 (2).

Parris and Lamoy contend that summary judgment in favor of Bronaugh and State Farm was improper because (1) they breached their duties with regard to disclosure of coverage under OCGA § 33-3-28; (2) they defrauded plaintiffs by withholding such policy information; and (3) they falsely swore with regard to the disclosure of policy coverage.

Under OCGA § 33-3-28 (a) (1), “[e]very insurer providing liability or casualty insurance coverage in this state and which is or may be liable to pay all or a part of any claim shall provide, within 60 days of receiving a written request from the claimant, a statement, under oath, of a corporate officer or the insurer’s claims manager stating with regard to each known policy of insurance issued by it, including excess or umbrella insurance, the name of the insurer, the name of each insured, and the limits of coverage.” The statute also provides that after such information is disclosed, if additional or inconsistent facts are discovered, the insurer must amend the information provided to reflect this fact. See OCGA § 33-3-28 (d).

The facts show that on September 10, 1992, Parris and Lamoy were injured when the car in which they were riding collided with a car driven by State Farm’s insured, Steven Evans. Following the collision, Parris and Lamoy sent State Farm a request, in accordance with OCGA § 33-3-28, seeking certain insurance coverage information. In response to Parris and Lamoy’s request, State Farm timely provided a sworn certificate of coverage indicating that Steven Evans’ car was insured under a policy issued to Ralph Evans, Steven’s grandfather, and that the limits of liability on the policy were $25,000 per person and $50,000 per accident. Settlement discussions then ensued.

State Farm later advised claim supervisor Tony Sampson on February 28, 1994, that two additional policies of insurance issued to Steven’s father existed, but, it was not clear at that time whether or not the policies actually provided coverage for the subject collision. It is undisputed that by March 1994, Parris and Lamoy had been notified of the existence of the additional policies.

Suit was filed on June 7, 1994, and in response to interrogatories, State Farm confirmed that all three policies provided coverage for the subject collision. The coverage limits identified to plaintiffs on the two additional policies were $20,000 per accident and $50,000 per person. These figures, however, were inaccurate, as the limits of both of Glenn Evans’ policies were actually $50,000 per person and $100,000 per accident. State Farm then amended its certificates of coverage on February 10, 1995, to reflect the proper coverage amounts. Thereafter, both Parris and Lamoy settled their injury claims with State Farm with full knowledge of all available coverage. On March 20, 1995, Parris settled his case for $16,500, and on May 22, 1995, Lamoy settled his case for $40,000.

Plaintiffs’ settlement with Evans through State Farm satisfied Evans’ duty to plaintiffs and State Farm’s duty to Evans for this action. Left unresolved by the specific terms of the settlement is any duty State Farm may have had to plaintiffs arising from this matter.

Plaintiffs contend that OCGA §§ 51-1-6 and 51-1-8 provide for recovery in tort for breach of a legal duty arising from the above relationship with State Farm, entitling them to at least nominal damages under OCGA § 51-12-4 for State Farm and Bronaugh’s failure to comply with OCGA § 33-3-28. The language of OCGA §§ 51-1-6 and 51-1-8 does not confer a separate cause of action in tort upon one who has suffered a breach of a legal or a private duty. OCGA § 51-1-6, standing alone, creates no cause of action. Rather, it simply authorizes the recovery of damages for the breach of a legal duty otherwise created. City of Buford v. Ward, 212 Ga. App. 752, 755 (443 SE2d 279) (1994).

This Court has not previously addressed the issue of whether a breach of OCGA § 33-3-28 creates a cause of action and the right to seek damages under OCGA §§ 51-1-6 and 51-1-8. The language of OCGA § 33-3-28 does not specifically create any cause of action for a breach thereof. While the legislature easily could have specifically created a cause of action for a breach of OCGA § 33-3-28 by its terms, it did not choose to do so. This failure strongly indicates the legislature’s intention that no such cause of action be created by said statute. City of Jesup v. Bennett, 226 Ga. 606, 608-609 (2) (176 SE2d 81) (1970) (cardinal rules of construction). The trial court did not err in its ruling in this regard.

We now review plaintiffs’ other contentions under the facts and pleadings of this case. Plaintiffs have failed to point to any damages flowing from the defendants’ actions, however, and therefore their other claims must fail because recovery under fraud, negligence, or false swearing requires a showing of damages. Strickland v. Vaughn, 221 Ga. App. 636, 637 (472 SE2d 159) (1996) (in a negligence action damages must be shown); Allen Decorating v. Oxendine, 225 Ga. App. 84, 88 (1) (483 SE2d 298) (1997) (in an action for fraud damages must be shown); Peters v. Imperial Cabinet Co., 189 Ga. App. 337 (375 SE2d 635) (1988) (in an action for false swearing damages must be shown). The error in reporting the coverage limits notwithstanding, the uncontroverted evidence shows that both Parris and Lamoy settled their cases with full knowledge of the existence of all three policies and the correct limits of coverage. They therefore suffered no injury and no damages from the alleged breach of duty.

Plaintiffs argue that they were damaged because State Farm and Bronaugh’s actions delayed their settlement of the case. This Court has previously addressed this issue and held: “We disagree with [plaintiffs] that the delay in their receipt of settlement sums from the tortfeasor’s insurance carriers . . . constituted damages to them. ... In the case sub judice, there is no evidence indicating that the insurance carriers would have produced settlement sums at an earlier time had [defendants initially disclosed all applicable coverage and policy limits].” Whitehead v. Cuffie, 185 Ga. App. 351, 352 (2) (364 SE2d 87) (1987). Given the complete lack of such evidence, plaintiffs’ claims must fail. Id.

Plaintiffs also claim they were damaged because they would have filed suit sooner had they been aware of all the coverage information. They have, however, presented no evidence that the outcome would have been different had they filed suit sooner. Plaintiffs further argue they would have pursued the suits differently had all the coverage information originally been disclosed. Given plaintiffs’ voluntary and informed settlement of their claims with full knowledge of all insurance coverage, any argument regarding how much more they might have realized had they had such information earlier is purely speculation.

Finally, plaintiffs’ contention that they should receive nominal damages under OCGA § 51-12-4 is without merit. Pursuant to that Code section, “[i]f an injury is small or the mitigating circumstances are strong, nominal damages only are given.” However, as stated above, no evidence of any injury has been shown. “[W]here there is no evidence of injury accompanying the tort, an essential element of the tort is lacking, thereby entitling the defendant to judgment in his favor.” Whitehead, supra at 353 (2). For all of the foregoing reasons, summary judgment was therefore properly granted to State Farm and Bronaugh.

While the legislature is free to provide a right of claim to plaintiffs for failure to comply with OCGA § 33-3-28, to date it has not done so. This opinion turns on the issue of damages and does not stand for the proposition that an insurance company will be protected from liability as long as full disclosure of insurance coverage precedes a settlement. Such a rule would emasculate any duties created by OCGA § 33-3-28, the laws of fraud, and the laws of false swearing. Contrary to State Farm’s assertion in this case, it is not a universal truth in insurance disclosure matters that all is well that ends well. Improper insurance reporting may result in liability under a proper factual scenario. That case, however, is not before us.

Decided November 6, 1997

Reconsideration denied November 24, 1997

Tobin & Hoffspiegel, Thomas W. Tobin, for appellants.

Downey & Cleveland, Y. Kevin Williams, Richard A. Griggs, for appellees.

Judgment affirmed.

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

       Parris’ and Lamoy’s settlement release forms with State Farm in the underlying injury action did not preclude them from bringing the instant suit.

       Contrary to plaintiffs’ assertions, the Supreme Court’s decision in Jankowski v. Taylor, Bishop &c., 246 Ga. 804 (273 SE2d 16) (1980); does not require a different result. Jankowski, unlike this case, dealt specifically with a legal malpractice issue based on the attomey/client relationship. It does not stand for the broad proposition that delay in meeting one’s statutory obligations will, under any set of circumstances, authorize damages. See Whitehead, supra at 352.


text:
    A97A1839.
    THOMPSON v. THE STATE.
    (494 SE2d 306)
   Blackburn, Judge.

King C. Thompson appeals the trial court’s denial of his plea in bar based upon double jeopardy, contending that the $200 restoration fee is punitive. Pursuant to OCGA § 40-5-67, Thompson’s driver’s license was suspended for one year after he was arrested for DUI and a subsequent breath test indicated he had an alcohol concentration of .10 or above. In order to reinstate his driving privileges, Thompson complied with OCGA § 40-5-67.2 (a) (1) by submitting proof of completion of a DUI alcohol or drug use risk reduction program approved by the Department of Human Resources and paying the $200 restoration fee. Thompson contends that the $200 fee he paid in order to have his driver’s license reinstated was punishment for the same conduct for which he is now being criminally prosecuted. Thompson argues that the restoration fee cannot be characterized as a remedial measure and must be considered punitive in nature. However, because the fee for the restoration of his driving privilege was not a fine and was not required to be paid, but was rather a voluntary payment, it cannot be considered punitive or a sanction, and therefore, we need not reach Thompson’s argument.

“The double jeopardy clause of the Fifth Amendment to the United States Constitution provides that no person shall ‘be subject for the same offense to be twice put in jeopardy of life or limb.’ The Georgia Constitution also contains a double jeopardy clause which provides that ‘(n)o person shall be put in jeopardy of life or liberty more than once for the same offense.’ Ga. Const. 1983, Art. I, Sec. I, Par. XVIII. Further, OCGA §§ 16-1-6, 16-1-7, and 16-1-8 also provide limitations on multiple prosecutions, convictions, and punishments for the same criminal conduct.” Nolen v. State, 218 Ga. App. 819, 820 (463 SE2d 504) (1995).

In Nolen, we determined that neither a driver’s license suspension hearing nor the actual suspension of a driver’s license constituted a bar to criminal prosecution for DUI. We found that the suspension of a driver’s license “ ‘is actually the revocation of a privilege voluntarily granted, a traditional attribute of a remedial action.’ ” Id. at 822. We held that “[i]n Georgia, a driver’s license is not an absolute right but rather is a privilege that may be revoked for cause. The right to continue the operation and to keep the license to drive is dependent upon the manner in which the licensee exercises this right. The right is not absolute, but is a privilege. While it cannot be revoked without reason, it can be constitutionally revoked or suspended for any cause having to do with public safety.” (Punctuation omitted.) Id.

“Double jeopardy protects against three types of abuses: (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense.” Id. at 820, citing North Carolina v. Pearce, 395 U. S. 711, 717 (89 SC 2072, 23 LE2d 656) (1969). See also Moser v. Richmond County Bd. of Commrs., 263 Ga. 63 (428 SE2d 71) (1993). As we have previously held that the suspension of a driver’s license is not a punishment implicating double jeopardy concerns, Thompson’s argument that the fee he voluntarily paid to have his driving privileges reinstated constitutes such punishment is somewhat weakened.

Thompson cites State v. Logan, 663 NE2d 425 (Ohio Co. Ct. 1995), in which an Ohio county court determined that the $250 fee charged by the Bureau of Motor Vehicles to have a driver’s license reinstated was punishment for purposes of double jeopardy. Therein, without citation to authority, the court stated that it had “previously held that the $250 reinstatement fee charged . . . has no rational relationship whatsoever to the remedial aspects of the implied consent statute. Thus, this court has already ruled that the $250 reinstatement fee is a punishment and any requirement to pay the $250 by the Bureáu of Motor Vehicles is unconstitutional and violates the Double Jeopardy Clauses.” Logan, 663 NE2d at 429. We are neither bound by an Ohio county court’s interpretation of an Ohio statute, nor are we persuaded by the Ohio court’s cursory treatment of this issue.

Thompson further relies upon the analysis in S. A. Healy Co. v. Occupational Safety &c. Comm., 96 F3d 906 (7th Cir. 1996) wherein the court determined that the assessment of an administrative penalty in a civil case after criminal fines were imposed for the same safety violations was a second punishment forbidden by the double jeopardy clause. However, the civil penalties addressed therein are substantially different from a fee voluntarily paid to obtain a privilege. S. A. Healy Company was required to pay the civil penalties assessed against it or face more serious penalties and fines. In the present case, however, Thompson was not required to pay the reinstatement fee. No state, civil, or administrative action would be taken against Thompson if he chose not to reinstate his driving privileges. Therefore, we find that S. A. Healy does not support Thompson’s position.

For similar reasons, we also find that neither United States v. Halper, 490 U. S. 435 (109 SC 1892, 104 LE2d 487) (1989) nor Dept. of Revenue of Montana v. Kurth Ranch, 511 U. S. 767 (114 SC 1937, 128 LE2d 767) (1994) is controlling in the instant case. In Halper, the United States Supreme Court determined that the imposition of a civil penalty which bore no rational relation to the government’s loss violated double jeopardy after a criminal conviction for the same act. The Supreme Court held that, for purposes of double jeopardy, a civil sanction may constitute punishment if it can only be described as punitive. Id. In Kurth Ranch, the Supreme Court determined that the assessment of a tax on possession and storage of dangerous drugs, in a proceeding separate from the criminal prosecution on drug charges violated the Fifth Amendment’s double jeopardy clause. Unlike the present case, however, in both Halper and Kurth Ranch, the defendants were required to pay the penalty or tax or face the imposition of more severe penalties.

The State clearly had the authority to revoke Thompson’s driving privileges as a remedial measure, without implication of his Fifth Amendment rights. See Nolen, supra. Therefore, it follows that the State can revoke such privileges subject to his ability to reinstate same upon certain conditions. We are not dealing with a civil sanction. Thompson’s actions in reinstating his driver’s license were purely voluntary; therefore, Thompson’s payment of the fee to restore his driving privileges cannot be seen as any punishment inflicted upon him by the State. The trial court did not err in denying Thompson’s plea in bar based upon double jeopardy.

Judgment affirmed.

Andrews, C. J., McMurray, R J., Birdsong, P. J., Pope, P. J., Beasley, Johnson, Smith, Ruffin and Eldridge, JJ, concur.

Decided November 24, 1997

Robert W. Chestney, for appellant.

Ralph T Bowden, Jr., Solicitor, W. Cliff Howard, Eleanor L. Barnwell, Assistant Solicitors, for appellee.

       This case has been decided by the whole court pursuant to OCGA § 15-3-1 (c) (2).


author: Smith, Judge. Beasley, Judge,

text:
    A97A2192.
    RISNER v. BULK EQUIPMENT MANUFACTURING, INC. et al.
    (494 SE2d 304)
   Smith, Judge.

In this workers’ compensation case, the State Board awarded the employee recommencement of benefits following his termination for cause, but the superior court reversed the award on the grounds that the employee failed to establish any loss of earning power attributable to a work-related injury. We granted the employee’s application for discretionary appeal to determine whether the superior court applied the proper legal standard in doing so. Because the superior court based its conclusion solely upon the employee’s termination for cause and not upon any failure by him to show that he was unable to find suitable employment due to his injury, we reverse.

Eddie Risner sustained a compensable back injury on May 30, 1995, while working for Bulk Equipment Manufacturing, Inc. Bulk Equipment accepted the claim and paid income and medical benefits until Risner returned to work in a light duty janitorial position in December 1995. On December 18, 1995, Risner complained about his back hurting and went home early that day. He returned to work two days later and was terminated then because he failed an employer-required drug test. Risner subsequently filed this claim for recommencement of income benefits based upon a change in condition.

The ALJ found that the evidence clearly demonstrated that Ris-ner continued to suffer physical limitations attributable to the back injury and that he had made a diligent but unsuccessful job search since January 12, 1996. Nevertheless, the ALJ denied the claim on the ground that Risner had lost his job for cause and therefore had not shown a diminution in earning power due to his injury. The Appellate Division reversed the ALJ and awarded benefits, holding that an employee who is terminated for cause can still prove a change in condition and entitlement to benefits by showing that as a result of his continuing disability he has been unable to obtain other suitable employment. See Maloney v. Gordon County Farms, 265 Ga. 825 (462 SE2d 606) (1995); Harrell v. City of Albany Police Dept., 219 Ga. App. 810 (466 SE2d 682) (1996).

The superior court, however, reversed the Appellate Division and adopted instead the award of the ALJ. In doing so, the superior court held that the evidence did not support the Appellate Division’s conclusion that Risner had proven a loss of earning power attributable to his injury. The superior court further held: “The claimant has not shown by a preponderance of the evidence that his inability to secure suitable employment has been as a result of his work-relatéd injury. In fact, the claimant had suitable light-duty employment with the employer, but was discharged for failing the drug test.”

The superior court’s conclusion that Risner failed to establish a loss of earning power appears to have been based solely upon Ris-ner’s termination for cause. However, termination for cause alone does not disqualify an employee for recommencement of income benefits based on a change in condition. Even when an employee is discharged for cause, compensation may be allowed provided the employee meets his burden under Maloney of showing an inability to obtain other suitable employment due to the residual limitations caused by his injury. See Waffle House v. Padgett, 225 Ga. App. 144 (483 SE2d 131) (1997); Diamond Rug & Carpet Mills v. Moses, 221 Ga. App. 807, 808 (472 SE2d 565) (1996). That is, following termination for cause, an employee may prove a loss of earning power by showing the inability to obtain other suitable employment because of a continuing disability attributable to a work-related injury. Ga. Power Co. v. Brown, 169 Ga. App. 45, 49 (311 SE2d 236) (1983).

In this case, there was some evidence of record to support the Appellate Division’s determination that Risner satisfied his burden of proof under Maloney, and the superior court therefore erred in reversing the award and denying Risner’s claim.

Judgment reversed.

McMurray, P. J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

This case is about the use of inferences to supply facts when there is no direct evidence, and in particular about the distinction between the ALJ’s use of inferences and authority of the appellate division of the Workers’ Compensation Board to draw contrary inferences within the scope of its review power under OCGA § 34-9-103 (a).

That Code section, as revised in 1994, instructs the appellate division that “[t]he findings of fact made by the administrative law judge in the trial division shall be accepted by the appellate division where such findings are supported by a preponderance of competent and credible evidence contained within the records.”

When a resumption of disability income benefits is sought by a worker, that claimant has the burden of proving a change in condition by a preponderance of the evidence. Maloney v. Gordon County Farms, 265 Ga. 825, 826 (462 SE2d 606) (1995). The change in condition asserted by Risner is “a change in the wage-earning capacity” for the worse, as provided by OCGA § 34-9-104 (a). The ALJ termed it “a loss of earning power ... a diminution of earning power.” Maloney confirmed that “ ‘[t]he requisite economic change in condition exists when the employee is able to demonstrate that, as a proximate result of his previous work related injury, he is unable to secure suitable employment elsewhere.’ ” Id. at 827. The Supreme Court in Maloney made clear that the proximate cause element, linking work-related injury to job rejection, could be proved by showing a) that the claimant “labored under a continuing disability” and b) that the claimant “made a diligent but unsuccessful search for subsequent suitable employment.” Id. at 827. Recognizing that it would be unrealistic to require the claimant to prove by direct evidence that the reason he or she was not hired by a prospective employer was the job injury disability, the Court reiterated that the fact could be supplied by inferences drawn by the factfinder from the evidence of claimant’s unsuccessful efforts to obtain employment. In that case the worker’s applications for employment disclosed her physical limitations, and she received no job offers. The ALJ drew a reasonable inference that the reason for the lack of success was the job-related injury. The full Board adopted this inference as being established by a preponderance of the evidence.

In Risner’s case, the ALJ refused to draw this inference and found instead that Risner did not suffer a loss of earning power because of his job injury. The ALJ implied that the lack of a job was the result of some other impediment, namely the use of drugs. The appellate division disagreed, drawing instead the inference that the lack of job offers resulted from a diminished physical capacity occasioned by the job injury.

The appellate division was authorized to draw a different inference from the evidence of Risner’s physical condition and unsuccessful job search. According to Bankhead Enterprises v. Beavers, 267 Ga. 506, 507 (480 SE2d 840) (1997), “the appellate division must weigh the evidence and assess the credibility of witnesses and if it determines that the award of the ALJ is supported by a preponderance of admissible evidence, it will be accepted. But, if after assessing the evidence of record, the appellate division concludes that the award does not meet the statutes’ evidentiary standards, the appellate division may substitute its own alternative findings for those of the ALJ, and enter an award accordingly.” To this extent then, the appellate division is a factfinder and, as such, may draw inferences by virtue of this role. And whether or not a later appellate court would view the ALJ’s findings as supported by a preponderance, the appellate division’s substituted findings must be accepted “if there was evidence to support [them].” Id. at 508. Risner’s applications for employment included notice of his physical limitations, and thus there was evidence to support the appellate division’s inference that the reason he received no job offers was the diminished physical capacity brought on by his job injury.

Decided November 24, 1997

Stephen C. Carter, for appellant.

Lowendick, Speed & Cuzdey, Stephen Cuzdey, Lesli R. Seta, for appellees.

In consequence, the superior court exceeded its review bounds in ascertaining that the appellate division’s finding was “unsupported by the evidence” and in concluding that the preponderance of evidence showed a different reason for diminished wage-earning capacity. The law does not allow for denial of workers’ compensation benefits due to drug use unless the work-related injury or death is due to “being under the influence of marijuana or a controlled substance.” OCGA § 34-9-17 (b). Compare the intent and extent of the drug-free workplace law, OCGA §§ 34-9-410 to 34-9-421. If the inability to secure suitable employment is the result of a work-related injury, then the fact that a claimant was discharged by his employer for drug use is irrelevant, under the law. Gilmer v. Atlanta Housing Auth., 170 Ga. App. 326, 327 (316 SE2d 535) (1984).


text:
    A97A2237.
    SNOW v. THE STATE.
    (494 SE2d 309)
   Blackburn, Judge.

Harry Snow, Jr. appeals the trial court’s denial of his motion to acquit based on the State’s failure to grant him a speedy trial, as guaranteed by the Sixth Amendment of the United States Constitution and by the Constitution of the State of Georgia. Snow was arrested on September 5, 1992, and charged with driving under the influence of alcohol, driving with a suspended license, and failure to use his seatbelt. Snow was tried and convicted on November 14, 1996. For the reasons discussed below, we affirm the convictions.

As the evidence is uncontroverted and no question of credibility is presented, the standard of review of the trial court’s application of the law to undisputed facts is a de novo appellate review. Vansant v. State, 264 Ga. 319 (443 SE2d 474) (1994). Snow’s contention that his constitutional right to a speedy trial was violated does not involve the Georgia statutory speedy trial provisions and must be analyzed under the standard set out by the Supreme Court in Barker v. Wingo, 407 U. S. 514, 530 (92 SC 2182, 2192, 33 LE2d 101) (1972). Specifically, the following factors must be considered: (1) the length of the delay; (2) the reason for the delay; (3) assertion by the defendant of his right to a speedy trial; and (4) prejudice to the defendant. Barker, supra at 530. However, “these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process.” (Footnote omitted.) Id. at 533. Absent an abuse of discretion, the decision of the trial court must be affirmed. Brown v. State, 264 Ga. 803, 805 (2) (450 SE2d 821) (1994).

In balancing these factors, it must be remembered that “while the defendant has a right to speedy trial, society has a corresponding equivalent right to bring him to trial; and while the state has a duty to bring him to a speedy trial, the defendant has a responsibility to assert that right. Both parties and interests stand alike at the beginning. . . . But since both parties do stand alike at the beginning, when both parties stand alike in their respective failures to provide and assert the right to speedy trial, then because of the peculiar nature of the individual’s right to speedy trial as one whose deprivation can definitely work to his advantage, the weight of the equities generally lies naturally with society and its right to try the criminal defendant.” (Emphasis omitted.) State v. Lively, 155 Ga. App. 402, 405 (270 SE2d 812) (1980). The trial court did not abuse its discretion in adhering to such weight of the equities in the matter at hand.

Snow’s right to a speedy trial runs from the time of his arrest. Boseman v. State, 263 Ga. 730, 731 (1) (438 SE2d 626) (1994). The filing of a demand for speedy trial is not a prerequisite to a plea in bar for failure to have a speedy trial on constitutional grounds. State v. King, 137 Ga. App. 26 (222 SE2d 859) (1975). Because Snow was not tried until approximately four years after his arrest, the delay is sufficient to trigger a threshold presumption of prejudice to the defendant. Brown, supra at 805. Delay alone, however, does not constitute a violation of the Sixth Amendment, and the other factors in the Barker balancing test must be considered. Doggett v. United States, 505 U. S. 647 (112 SC 2686, 120 LE2d 520) (1992).

The State attributes the delay in this case mainly to the fact that Snow had been incarcerated for a period of time in 1992, thereby preventing the clerk of court from locating him. This reason, if accepted, accounts for only part of the delay, however, leaving the remainder unexplained. “Where no reason appears for a delay, we must treat the delay as caused by the negligence of the State in bringing the case to trial.” Boseman, supra at 733 (1) (b).

Snow did not assert his right to a speedy trial until the filing of his motion to dismiss on February 29, 1996. This four-year delay in asserting his right weighs heavily against Snow’s claim that he has been denied a speedy trial. Barker, supra at 532.

Decided November 24, 1997.

Jane Morrison, for appellant.

June D. Green, Solicitor, Wanda L. Dallas, Assistant Solicitor, for appellee.

The fourth factor in the Barker balancing test requires a consideration of three corollary goals of the right to a speedy trial: (1) the prevention of oppressive pretrial incarceration; (2) the minimization of the anxiety and concern of the accused; and (3) the limitation of the possibility that the defense will be impaired. Brown, supra at 804-805, citing Barker, supra at 532. Snow produced no evidence of pretrial incarceration attributable to the delay of the State in this case and minim al evidence of anxiety caused by the delay.

Snow argues that his defense has been prejudiced by the loss of a witness named Cat who was a passenger in his car on the night he was arrested. Snow contends that he was unable to contact the witness at the time of trial, although he knows generally where she lives, that she got married, and that she changed her name. According to Snow, Cat would have testified that he had not been drinking on the night in question; however, there is no evidence which corroborates this assertion. Furthermore, there is no evidence in the record that Snow made any effort whatsoever to keep track of Cat. See Washington v. State, 243 Ga. 329, 332 (253 SE2d 719) (1979) (no evidence that defendant urged counsel to keep track of alibi witness).

At trial, Snow’s counsel attempted to use the delay in Snow’s trial to his advantage, making numerous arguments to the jury that the arresting officer’s testimony should be discounted due to the passage of time. Applying the Barker balancing test, Snow’s right to a speedy trial was not violated. Accordingly, we find that the trial court did not abuse its discretion in denying Snow’s motion to acquit.

Judgment affirmed.

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