text:
    A98A0884, A98A0885.
    SELLERS BROTHERS, INC. v. IMPERIAL FLOWERS, INC. (two cases).
    (503 SE2d 573)
   Blackburn, Judge.

This garnishment action is now in its third appearance before us. The Superior Court of Fulton County dismissed the claims of Sellers Brothers, Inc. in this matter, finding that Sellers had no grounds to rescind a settlement agreement entered into with Imperial Flowers, Inc. and that Imperial, therefore, had no obligation to return the settlement funds. The superior court also awarded attorney fees to Imperial, levying such fees against both Sellers and its attorney, Reuben T. Bussey. Sellers now appeals both actions of the superior court in separate appeals which are consolidated herein. For the reasons set forth below, we affirm, and we also levy penalties for frivolous appeal against both Sellers and Bussey.

The procedural history of this case is both drawn out and complicated. On December 11, 1995, the State Court of Fulton County entered a default judgment in favor of Imperial against Sellers, as garnishee, in the amount of $23,400.42 plus $101 in costs. Contending that a default judgment should not have been entered because it never received proper service, Sellers then applied to this Court for a discretionary appeal, which was denied on April 17, 1996. On April 23, 1996, Sellers filed a motion to set aside the default judgment on the grounds of improper service, and the state court denied this motion on June 4, 1996. On June 10, 1996, Imperial and Sellers entered into a settlement agreement whereby Sellers paid the sum of $21,000 to Imperial.

On June 20, 1996, not knowing that the settlement had been entered into and fully consummated, the state court, sua sponte, reversed its June 4, 1996 order, and it granted Sellers’ motion to set aside the default judgment. On June 28, 1996, however, after being informed about the settlement, the state court vacated its June 20, 1996 order as moot, all issues having been resolved by the parties. Once again, Sellers applied to this Court for a discretionary appeal, alleging that the state court improperly vacated its June 20, 1996 order granting Sellers’ motion to set aside the default judgment.

While this second application for discretionary appeal was pending, Sellers, on August 16, 1996, filed the present action in the Superior Court of Fulton County, seeking to recover the $21,000 settlement payment as well as punitive damages and attorney fees. Subsequently, Sellers’ second application for discretionary appeal was denied on August 22, 1996, and, by order dated October 16, 1996, this Court levied frivolous appeal sanctions against Sellers because, after entering into a settlement of the case, it had no reasonable basis for anticipating a reversal of the trial court’s decision to vacate its order. On June 24, 1997, the superior court dismissed Sellers’ complaint, and on August 25, 1997, the superior court awarded attorney fees in the amount of $5,025 to Imperial against both Sellers and its attorney, Bussey. These two orders are the subject of Sellers’ present appeal.

1. Having exhausted every other means of avoiding the consequences of its settlement in this case, Sellers now attempts to argue, in essence, that such decision was either involuntary or uninformed, thereby allowing rescission of the settlement. Sellers makes its arguments under the guises of fraudulent inducement and the doctrine of money had and received. Both contentions are patently untenable.

(a) Sellers argues that Imperial fraudulently induced it to enter into the settlement agreement. This argument is specious. Fraud is defined as the “[mjisrepresentation of a material fact, made willfully to deceive or recklessly without knowledge and acted on by the opposite party or made innocently and mistakenly and acted on by the opposite party.” OCGA § 23-2-52. Sellers has failed to identify any fraudulent material misrepresentation made to it by Imperial which it relied on in entering the settlement agreement. There is no evidence that Imperial made any material misrepresentations to Sellers about service in the original action to induce it to enter into the settlement. Sellers had full knowledge of whether it had been served and could decide for itself whether such service was proper. Indeed, Sellers was aware of the dispute over service at the time it entered into the settlement agreement, having filed a motion to set aside the default judgment on the basis of the alleged improper service. Having agreed to settle the case, Sellers cannot now avoid the binding nature of this agreement.

(b) Sellers also contends that the settlement agreement should be rescinded based on OCGA § 13-1-13. OCGA § 13-1-13 provides: “Payments of claims made through ignorance of the law or where all the facts are known and there is no misplaced confidence and no artifice, deception, or fraudulent practice used by the other party are deemed voluntary and cannot be recovered unless made under an urgent and immediate necessity therefor or to release person or property from detention or to prevent an immediate seizure of person or property.”

Sellers’ claim for rescission of the settlement based on this law is meritless, as it has shown no mistake or act of duress which would trigger this equitable remedy. Sellers claims that it entered the settlement agreement on the mistaken belief that the state court’s June 4,1996 order sustaining the default judgment was a final order. The order was in fact a final order. The trial court exercised its discretion in setting aside such final order. Sellers was fully aware of the court’s authority to exercise its discretion as a matter of law. At the time of the settlement, Sellers acted on the order of the court as it then stood with full knowledge of all extant facts. Furthermore, although Sellers claims that Imperial threatened it with enforcement of the garnishment judgments it had legally received, thereby causing it to enter into the settlement, Sellers was not under the immediate threat of seizure of property such that OCGA § 13-1-13 would be applicable and Imperial was legally entitled to take the action it threatened. “One may not void a contract on grounds of duress merely because he entered into it with reluctance, the contract is very disadvantageous to him, the bargaining power of the parties was unequal or there was some unfairness in the negotiations preceding the agreement.” (Punctuation omitted.) Graham v. Cook, 179 Ga. App. 603, 605 (2) (347 SE2d 623) (1986).

2. Sellers contends that it received no consideration from Imperial for entering into the settlement agreement, and, as such, the agreement should be rescinded. Once again, Sellers’ argument is patently erroneous, as the settlement agreement compromised a judgment of over $24,000 for $21,000.

3. As this opinion, on its own accord, affirms the order of the trial court below, we need not consider Sellers’ argument that it was improper for the trial court to base its summary judgment decision on an earlier opinion of the Court with regard to the imposition of frivolous appeal damages in the same case. Moreover, a “grant of summary judgment will be affirmed if it is right for any reason.” Deese v. NationsBank, 222 Ga. App. 275, 277 (1) (474 SE2d 18) (1996).

4. Sellers contends that the trial court improperly levied attorney fees against it in the amount of $5,025. We strongly disagree.

Decided May 27, 1998

Reuben T. Bussey, Jr., for appellant.

Loewenthal & Jackson, Gary E. Jackson, for appellee.

OCGA § 9-15-14 (a) allows the imposition of litigation costs and attorney fees against parties and attorneys who have “asserted a claim, defense, or other position with respect to which there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted claim, defense, or other position.” As stated repeatedly in this opinion, Sellers’ claims were patently unfounded. As such, the trial court properly assessed attorney fees and costs against Sellers and Bussey.

5. ‘Where parties enter into an agreement compromising and settling a claim about which there is a bona fide dispute, they are bound by the agreement, even though one of the contentions thereafter appears to be without foundation in law” (Emphasis supplied.) Littlegreen v. Gardner, 208 Ga. 523 (3) (67 SE2d 713) (1951). Sellers has been informed of this law before three different courts in this state, and each time it has failed to heed what it has been told, despite the fact that it has previously been sanctioned for its actions.

This case should have ended on the date of the settlement, June 10, 1996. Now, almost two years later, Sellers and its attorney continue to burden Imperial and our courts with issues it could not reasonably believe to be tenable. Accordingly, we grant Imperial’s motion to assess frivolous appeal damages in this case against both Sellers and Bussey. With regard to the appeal of the trial court’s grant of summary judgment, we assess a penalty of $500 in accordance with Court of Appeals Rule 15 (b). With regard to the appeal from the trial court’s imposition of legal costs and attorney fees, we assess a penalty of $502.50, in accordance with OCGA § 5-6-6. The trial court is directed to issue a judgment consistent with this opinion in favor of Imperial upon receipt of the remittitur.

Judgments affirmed.

McMurray, P. J., and Eldridge, J., concur.


source: Caselaw Access Project

author: Blackburn, Judge.

license: Public Domain

text:
    A98A0992.
    SAMPLE v. THE STATE.
    (503 SE2d 576)
   Blackburn, Judge.

Cazembe J. Sample pled guilty to the crimes of possession of marijuana with intent to distribute and possession of a firearm during the commission of the felony of trafficking cocaine. Subsequently, Sample filed a motion to have the sentence relating to the possession of a firearm nullified. The trial court denied Sample’s motion, and he now appeals. For the reasons set forth below, we affirm.

On February 20, 1996, Sample was indicted by a grand jury on four counts: (1) possession of marijuana with intent to distribute; (2) possession and trafficking of cocaine; (3) possession of a .44 magnum firearm during the commission of the felony of trafficking cocaine; and (4) possession of a .380 caliber firearm during the commission of the felony of trafficking cocaine. Pursuant to a negotiated plea bargain, Sample pled guilty to Counts 1 and 4, and the State agreed to enter a nolle prosequi on the remaining two counts. Sample also agreed to testify against two co-defendants who had been caught in the same “buy and bust” in which Sample participated.

At the May 15, 1996 hearing at which Sample entered his guilty plea, the prosecutor began by listing each of the crimes for which Sample had been indicted. Sample, an educated man who had attended two years of college, admitted that he had read the charges in the indictment and that he understood them completely. Count 4 of the indictment clearly and unequivocally states that the firearm charge was related to the felony of trafficking cocaine, not marijuana. Sample also stated that he understood the sentence that the State had recommended to the court, that his plea was voluntary, and that he was satisfied with the representation that he had received from his attorney.

After Sample made all of these statements, the prosecutor asked: “Did you in fact during the commission of a felony, that being violation of the Georgia Controlled Substances Act possession of marijuana with intent to distribute, did you possess a firearm?” (Emphasis supplied.) Sample answered this question affirmatively. Sample also testified that he attempted to sell marijuana to an undercover officer and that he assisted in setting up a sale of cocaine to the same officer, although he did not intend to conduct that transaction himself. On the same day as the hearing, Sample and his attorney signed a statement on the face of the indictment indicating that Sample was pleading guilty to Counts 1 and 4 therein.

Based on the evidence before it, the court sentenced Sample to ten years on Count 1 and five years to be served on Count 4 consecutively. Sample was to serve two years in jail on Count 1, then five years on Count 4. Eight years of probation would follow Sample’s incarceration. On August 29, 1997, Sample filed a motion for an order nullifying his sentence with regard to the firearm charge, which the court denied. It is this denial which Sample now appeals.

1. Sample’s contentions are based entirely on the prosecutor’s slip of the tongue during the plea hearing, when he referred to marijuana instead of cocaine while questioning Sample about the factual basis underlying his guilty plea on Count 4 of the indictment. Because of this slip of the tongue, Sample contends that he pled guilty only to the nonexistent crime of possessing a firearm while also possessing marijuana, not cocaine. Sample further argues that, under Georgia law, marijuana is not considered a controlled substance, and, as such, the firearm charge, which depends on the trafficking of a controlled substance, was unfounded. See Asberry v. State, 220 Ga. App. 40 (467 SE2d 225) (1996).

Based on the transcript, however, Sample’s argument is misplaced. In essence, Sample suggests that, despite the facts that Count 4 unambiguously referred to trafficking in cocaine, that both he and his attorney read the clearly worded Count 4 before entering his plea, that Sample testified that he understood the indictment completely, that Sample testified that his plea was voluntary, that Sample and his attorney signed a plea of guilty on the face of the indictment, and that the plea itself was the result of a negotiated agreement, his sentence should be nullified because the prosecutor misspoke during the hearing, mentioning marijuana rather than cocaine. Based on his own testimony, Sample read the indictment and knew that he was being charged with possession of a firearm while trafficking cocaine. Notwithstanding the prosecutor’s misstatement, there was ample ground to find a factual basis for Sample’s guilty plea to Count 4 when the proceeding as a whole is reviewed. The State elected not to prosecute the cocaine trafficking charge based on Sample’s acceptance of the unambiguous negotiated plea. The evidence will be viewed in a light most favorable to upholding the sentence imposed. We find no error in the holding of the trial court.

2. Sample further contends that he could not plead guilty to possession of a firearm during the commission of a felony when the State entered a nolle prosequi on the underlying felony itself. As support for this contention, Sample cites Strong v. State, 223 Ga. App. 434 (477 SE2d 866) (1996). Strong, however, is inapplicable here. In Strong, the defendant was indicted on two counts of aggravated assault, possession of a firearm during the commission of a felony, and discharge of a firearm on or near a public highway. A jury found the defendant not guilty on the counts of aggravated assault, the underlying felony, but guilty of the firearm charges. This Court reversed the conviction for possession of a firearm during the commission of a felony, stating: “A conviction of possession of a weapon during the commission of a felony must stand or fall in conjunction with the underlying felony upon which the charge is predicated.” (Emphasis supplied.) Id. at 435. As no jury has acquitted Sample of the underlying felony of trafficking cocaine, Strong provides no precedential value here. Furthermore, “[a] nolle prosequi does not adjudicate either the innocence or guilt of the accused unless the accused has been placed in jeopardy.” (Emphasis in original.) Hunter v. State, 104 Ga. App. 576, 577 (2) (122 SE2d 172) (1961). Simply because the State used its discretion to nolle prosequi the cocaine trafficking claim pursuant to a negotiated plea does not mean that the felony was not committed. Moreover, in general, a knowing and voluntary plea of guilty acts as a waiver of all defenses, known or unknown. See, e.g., Edmond v. State, 214 Ga. App. 707 (448 SE2d 775) (1994). Again, we find no error.

Decided May 27, 1998.

Timothy T. Herring, for appellant.

Daniel J. Porter, District Attorney, Dan W. Mayfield, Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Eldridge, J., concur.

       Sample has not challenged the plea he gave nor the sentence he received with regard to the charge of possession of marijuana.


text:
    A98A1310.
    DUFFEY v. THE STATE.
    (498 SE2d 816)
   Blackburn, Judge.

Emmanuel Duffey was charged with aggravated assault and burglary. With respect to the aggravated assault charge, the jury was instructed on both aggravated assault and the lesser included offense of simple assault. The jury then found Duffey guilty of simple assault and burglary. In his sole enumeration of error, Duffey contends that there was an insufficient factual basis to instruct the jury on aggravated assault. However, as Duffey was not convicted of aggravated assault, but of the lesser offense of simple assault, any error in charging the jury on this crime was harmless. Marks v. State, 210 Ga. App. 281, 283-284 (5) (435 SE2d 703) (1993). Duffey does not assert as error that the trial court erred in charging on simple assault.

In his brief, Duffey attempts to enlarge his enumeration by arguing that it was inconsistent to convict on both simple assault and burglary. However, this issue was not raised in his enumerations of error and will not be addressed. Brown v. State, 191 Ga. App. 76, 79 (4) (381 SE2d 101) (1989) (“[a]n appellant cannot expand his enumerations of error by brief to include issues not raised in the enumerations of error”).

Decided May 27, 1998.

Lloyd J. Matthews, for appellant.

Tommy K. Floyd, District Attorney, Thomas R. McBerry, Mary Evans-Battle, Assistant District Attorneys, for appellee.

Judgment affirmed.

McMurray, P. J, and Eldridge, J., concur.


author: McMurray, Presiding Judge.

text:
    A97A1235.
    HARDEMAN v. SPIRES.
    (503 SE2d 588)
   McMurray, Presiding Judge.

This is the second appearance of this slip and fall case, the Supreme Court of Georgia having granted a writ of certiorari, vacated this Court’s judgment in Hardeman v. Spires, 228 Ga. App. 723 (492 SE2d 532), and remanded the case for reconsideration of the merits of plaintiff Laurie Ann Hardeman’s appeal in the light of Robinson v. Kroger Co., 268 Ga. 735 (493 SE2d 403).

Laurie Ann Hardeman was seriously injured while working as a pizza-delivery person when she slipped on wet tile outside the entry-door of Esther Spires’ home. After Hardeman handed Spires a pizza, she turned, stepped down the open porch’s unrailed stairway and fell. While it was drizzling rain when Hardeman fell, she did not know the ceramic tiles on Spires’ front porch would be so slippery. Spires, on the other hand, was warned by the person who installed the tile that the porch’s surface would become slick when wet. In fact, Spires was aware before Hardeman fell that at least one other person had slipped and fallen on the tile. Hardeman contends she was injured due to the slippery condition of the tile flooring on Spires’ entrance porch, combined with the lack of hand rails or other protective devices. Held:

In Robinson v. Kroger Co., supra, the Supreme Court of Georgia held that “in order to recover for injuries sustained in a slip-and-fall action, an invitee must prove (1) that the defendant had actual or constructive knowledge of the hazard; and (2) that the plaintiff lacked knowledge of the hazard despite the exercise of ordinary care due to actions or conditions within the control of the owner/occupier. However, the plaintiff’s evidentiary proof concerning the second prong is not shouldered until the defendant establishes negligence on the part of the plaintiff — i.e., that the plaintiff intentionally and unreasonably exposed self to a hazard of which the plaintiff knew or, in the exercise of ordinary care, should have known.” Robinson v. Kroger Co., 268 Ga. 735, 746 (2) (b), 748-749, supra.

In the case sub judice, Hardeman met the first prong of this test by proffering evidence that Spires was actually aware of the hazard her ceramic tile porch posed when wet. Hardeman went further, however, by filing an expert’s affidavit which shows that Spires did not comply with the building code requirement that a guardrail or handrail be installed on her front porch “to prevent accidental falls from the porch.” Hardeman’s expert opined that this safety requirement became even more relevant after Spires installed ceramic tile on her house’s entrance porch, a material which the expert found to be considerably more slippery than the porch’s previous surface. The expert concluded that the porch posed an unreasonable hazard and that plaintiff’s injuries could have been avoided had Spires not violated this safety code standard. This evidence not only meets Robinson’s first prong that there be some indication that Ms. Spires had actual knowledge of the hazard, but is also sufficient to authorize a finding that Spires was negligent or even negligent as a matter of law in maintaining her porch. The only question, then, is whether Spires has met her burden on summary judgment of establishing that Hardeman failed to exercise ordinary care for her own safety. Id. at 746 (2) (b), 748-749, supra.

In this regard, Spires points to Hardeman’s admission that she had delivered pizza to Spires’ home before the day she fell; that she was aware that Spires’ front porch did not have a railing, and that she was aware of the rainy conditions while she was traversing Spires’ front porch. Spires argues that this proof establishes, as a matter of law, that Hardeman understood the danger posed by the tile and railing deficiencies on Spires’ front porch, but that she decided to traverse the hazard anyway. We do not agree. Although Hardeman obviously knew that it was raining when she delivered Spires’ pizza and was familiar that Spires’ tiled porch did not have a handrail, we cannot say (as a matter of law) that Hardeman failed to exercise ordinary care for her own safety by taking a pizza to the entry door of Spires’ home. On the contrary, we find proof which would support a finding that Spires had “superior knowledge” of the alleged hazard posed by the ceramic tile on her front porch. Specifically, the person who installed the tile on Spires’ front porch warned Spires before Hardeman’s fall that the porch’s tile surface would become slick when wet. This person also informed Spires that he had slipped on the porch’s tile surface.

Inasmuch as genuine issues of material fact remain for jury resolution, we find that the trial court erred in granting Spires’ motion for summary judgment. “[T]he ‘routine’ issues of premises liability, i.e., the negligence of the defendant and the plaintiff, and the plaintiff’s lack of ordinary care for personal safety are generally not susceptible of summary adjudication, and . . . summary judgment is granted only when the evidence is plain, palpable, and undisputed.” Robinson v. Kroger Co., 268 Ga. 735, 746 (2) (b), 748, supra.

Decided May 28, 1998.

Buzzell, Graham & Welsh, Neal B. Graham, for appellant.

Martin, Snow, Grant & Napier, Robert R. Gunn II, Thomas R Allen III, for appellee.

Judgment reversed.

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


author: Pope, Presiding Judge.

text:
    A98A0427.
    POTTS v. ROLLER.
    (503 SE2d 587)
   Pope, Presiding Judge.

Plaintiff Bonnie S. Potts brought suit against defendant Amanda Sue Roller, seeking to recover damages for injuries she allegedly suffered when the truck she was driving was rear-ended by Roller. The jury returned a verdict in favor of the defendant, and the trial court denied plaintiff’s motion for new trial. Plaintiff appeals, arguing that since defendant admitted her negligence in causing the accident, and since there was undisputed evidence that plaintiff suffered at least some injury in the accident, the trial court erred in denying her motions for directed verdict, j.n.o.v., and new trial. We agree and reverse.

There is no question that defendant’s negligence caused the collision in this case. Defendant admitted at trial that she failed to keep her eyes on the road and thus was unable to stop in time to avoid hitting plaintiff, who was stationary because the traffic in front of her had stopped. The investigating officer of the accident testified that he measured 112 feet of skid marks left by defendant’s vehicle. Nevertheless, defendant argues, the jury’s verdict should not be overturned because in order to establish liability plaintiff must also prove that the accident was the proximate cause of her injuries. See Dietz v. Becker, 209 Ga. App. 678, 679 (2) (434 SE2d 103) (1993).

But review of the transcript in this case shows that plaintiff presented undisputed and unrefuted evidence that she was injured in the accident — specifically that she suffered a whiplash injury and a broken coccyx (tailbone). Although defendant vigorously contested plaintiff’s claim that she had suffered a permanently disabling injury entitling her to lost wages and requiring long-term medical care, defendant never suggested that plaintiff’s “minor” injuries were not proximately related to the accident. To the contrary defendant’s attorney acknowledged during argument to the jury that plaintiff had suffered some minor compensable injuries. Under these circumstances, we agree with plaintiff that she was entitled to a directed verdict of liability, “and remand the case to the trial court with direction that the issue of damages only be resolved in a new trial.” Thomas v. Kite, 206 Ga. App. 80 (424 SE2d 305) (1992); Todd v. City of Brunswick, 175 Ga. App. 562, 563 (2) (334 SE2d 1) (1985); cf. Dietz, 209 Ga. App. at 678 (1).

Decided May 28, 1998.

Finch, McCranie, Brown, Hendrix & Sullivan, Richard W Hendrix, for appellant.

Downey & Cleveland, Y. Kevin Williams, Tara M. Waller, for appellee.

Judgment reversed.

Beasley and Ruffin, JJ, concur.


author: Andrews, Chief Judge.

text:
    A98A0632.
    In the Interest of A. D. B., a child.
    (503 SE2d 596)
   Andrews, Chief Judge.

The mother of A. D. B., a three-year-old child, initiated a petition in the superior court to terminate the parental rights of the child’s legal father. The mother had custody of the child pursuant to a divorce decree between the parties. After a hearing, the superior court granted the father’s motion for a directed verdict and denied the petition. The mother appeals from the court’s order.

Pursuant to OCGA § 15-11-5 (a) (2) (C), the juvenile court has “exclusive original jurisdiction over juvenile matters and shall be the sole court for initiating action: . . . [flor the termination of the legal parent-child relationship . . . other than that in connection with adoption proceedings under Chapter 8 of Title 19, in which the superior courts shall have concurrent jurisdiction to terminate the legal parent-child relationship. . . .” Since the present termination petition was not in connection with adoption proceedings, the superior court lacked subject matter jurisdiction to consider the petition. Alexander v. Guthrie, 216 Ga. App. 460, 462 (454 SE2d 805) (1995); Cothran v. Cothran, 237 Ga. 487, 488 (228 SE2d 872) (1976).

Although the parties consented at the hearing to the jurisdiction of the superior court, the consent of the parties cannot confer subject matter jurisdiction on a court. Gray v. Gray, 229 Ga. 460, 461 (192 SE2d 334) (1972). “When a court has before it a matter where it has no jurisdiction of the subject matter, no legal judgment can be rendered except one of dismissal; and when this court discovers from the record on appeal that a judgment has been rendered by a court having no jurisdiction of the subject matter, it will of its own motion reverse the judgment.” Id. at 461. “[W]hen a trial court enters a judgment where it does not have jurisdiction, such judgment is a mere nullity; but an appeal from such an illegal judgment will not be dismissed but instead, the void judgment will be reversed.” Darden v. Ravan, 232 Ga. 756, 758 (208 SE2d 846) (1974); Pope v. Jones, 79 Ga. 487, 488 (4 SE 860) (1888). Because the superior court was only authorized to dismiss the petition, its order addressing the merits of the petition is reversed.

Decided May 28, 1998.

Walters, Davis & Pujadas, J. Harvey Davis, for appellant.

Starling & Starling, Donald A. Starling, for appellee.

Appellee’s motion for imposition of a penalty under Court of Appeals Rule 15 (b) is denied.

Judgment reversed.

Blackburn and Eldridge, JJ, concur.


text:
    A98A0652.
    SMITH v. BROWN STEEL, GEORGIA ASSOCIATED GENERAL CONTRACTORS SELF-INSURERS TRUST FUND.
    (503 SE2d 592)
   McMurray, Presiding Judge.

We granted the discretionary appeal in this workers’ compensation case to determine if the superior court exceeded the lawful scope of its review in reversing the State Board’s award for the employee.

On April 27, 1994, Ronny Smith sustained a compensable back injury in the course of his employment as a welder for Brown Steel. Subsequently, Smith underwent a lumbar laminectomy and diskectomy in August 1994 and an anterior cervical diskectomy and fusion in January 1996. After the surgery, Smith’s condition improved to the point that his treating physician released him for light work. The employer Brown Steel suspended benefits unilaterally on August 20, 1996, based, upon Smith’s alleged return to work.

At the hearing before the administrative law judge (“ALJ”), Brown Steel also attempted to establish that Smith had experienced a change in condition for the better. Viewed in the light most favorable to the party prevailing before the administrative factfinder, the evidence adduced showed that Smith had visited construction sites of two contractors he knew and during those visits he had occasionally helped workers lift objects. Smith denied working and explained that he visited those project sites for the purpose of learning building codes so that some day he could be a contractor. He further explained that construction work was the only type of work he had ever done, and that no light duty construction work existed. There was also some evidence regarding Smith’s leisure activities that indicated some physical capacity, including regular golfing with his children and deer hunting with a bow and arrow, and occasional activities such as winning a dance contest and riding a jet ski.

The ALJ concluded that, although the evidence established that Smith was capable of doing some type of work, Smith had not in fact returned to work as alleged. Further, as Smith had not been released to return to regular duty work and Brown Steel had failed to show the availability of other suitable work for Smith, the ALJ found that Brown Steel had not proven a change in condition for the better and had improperly suspended benefits. The appellate division adopted the ALJ’s award, but the superior court reversed. Held:

1. With regard to the issue of whether Smith had actually returned to work, the ALJ’s finding as affirmed by the appellate division must be upheld on appeal to the superior court if it is supported by any evidence. Bankhead Enterprises v. Beavers, 267 Ga. 506, 508 (480 SE2d 840); Bennett-Murray, Inc. v. Barnes, 222 Ga. App. 137, 138 (1), 139 (473 SE2d 166). Here, this inquiry involved both Smith’s subjective intent as well as his outward conduct. Smith’s testimony and the testimony of the contractors involved, indicating that Smith frequented the project sites for the purpose of learning the construction trade, supported the administrative factual finding that Smith had not returned to work. Accordingly, OCGA § 34-9-105 (c) (4) provides no authority to set aside this finding. Logan v. St. Joseph Hosp., 227 Ga. App. 853, 859 (3) (490 SE2d 483).

2. In order to show a change in Smith’s condition for the better that authorized the employer’s suspension of benefits, Brown Steel had to establish “(1) a physical change in the claimant for the better, (2) an ability to return to work because of the change, and (3) the availability of work to decrease or terminate loss of income.” (Punctuation omitted.) Hercules, Inc. v. Adams, 143 Ga. App. 91, 92 (237 SE2d 631). Accord Freeman v. Continental Baking Co., 212 Ga. App. 855, 856 (1) (443 SE2d 520). The basis for the award reinstating Smith’s benefits was that Brown Steel had not satisfied the third prong of that burden of proof. Review of the record reveals that Smith was only released for light duty work, and Brown Steel made no evidentiary showing as to the availability of light work suitable for Smith. Consequently, the ALJ’s conclusion was authorized.

In reversing the administrative determination, the superior court found “as a matter of law that the employer/self-insurer has established that the claimant is able to work and has undergone a change in condition for the better,” but did not address the third prong of Brown Steel’s burden of proof. The AL J’s award, in addition to being supported by evidence, also was based on the proper burden of proof applicable to an employer in a change in condition case. In our view, the superior court erred in failing to affirm the award for the employee in the case sub judice.

Decided May 28, 1998.

Bennie H. Black, for appellant.

Goodman, McGuffey, Aust & Lindsey, Kathryn A. Cater, for appellee.

Judgment reversed.

Blackburn and Eldridge, JJ, concur.


author: Beasley, Judge.

text:
    A98A0659.
    McCONNELL et al. v. MOORE.
    (503 SE2d 593)
   Beasley, Judge.

The question is whether a motion for attorney fees under OCGA § 9-15-14 was timely. In July 1995, appellee Don Moore offered Jane Ware McConnell’s will for probate in solemn form in the Probate Court of Rabun County. In response, appellants William McConnell, her nephew, and Jane Alexander, her niece, filed a caveat. By consent order the case was transferred to superior court. On September 9, 1996, the court granted Moore’s motion for summary judgment on the caveat. The caveators sought review of that decision in the Supreme Court and the decision was affirmed.

After the remittitur was returned, the superior court entered an order on June 18, 1997 admitting the will to probate. Forty-four days later, and over ten months after summary judgment was entered, Moore filed a motion for attorney fees under OCGA § 9-15-14. Caveators responded and filed their own OCGA § 9-15-14 motion on the ground that Moore’s motion was frivolous in that it was time-barred because it was filed more that 45 days after final disposition of the caveat in the trial court. The court denied Moore’s motion as time-barred and denied the caveators’ motion without any stated reason. We granted the latter’s application for a discretionary appeal of the denial of their motion. Moore does not appeal.

A motion for fees under OCGA § 9-15-14 may be filed “at any time during the course of the action but not later than 45 days after the final disposition of the action.” Pivotal is whether final disposition of the action occurred at the granting of Moore’s motion for summary judgment or at entry of the order admitting the will to probate.

In Fairburn Banking Co. v. Gafford, the Supreme Court held that “final disposition of the action” under OCGA § 9-15-14 is equivalent to final judgment as defined in OCGA § 5-6-34 (a) (1). The court determined that final disposition did not include the normal appellate process after final judgment in an action. In harmony with that decision, the Court of Appeals held that when the trial court has directed final judgment under OCGA § 9-11-54 (b) on one or more but fewer than all of the claims or parties, it is a final disposition of the action for purposes of OCGA § 9-15-14 (e). The Court of Appeals distinguished the appealability of non-final grants of summary judgment as “ ‘an exception to the finality rule.’ ”

Appellants argue that the rule in Fairburn Banking is controlling in this case. Their reasoning is backwards. In essence they contend that because they have already directly appealed the grant of summary judgment, it must have been a final judgment, and a motion for fees cannot be filed after the appeal of a final judgment. However, the direct appeal of the loss of their caveat on summary judgment was specifically authorized by OCGA §§ 5-6-34 (a) (8) and 9-11-56 (h), not by OCGA § 5-6-34 (a) (1). Even though the grant of summary judgment was directly appealable, there is no reason to construe the Supreme Court’s consideration of it as a final judgment under OCGA § 5-6-34 (a) (1). In fact it was not, as subsequent events in the history of the case showed. Fairburn Banking did not hold that “final disposition” under OCGA § 9-15-14 means any order that may be directly appealed in accordance with subsections (2) through (8) of OCGA § 5-6-34 (a). The appealability of the grant of summary judgment, provided for in the law of summary judgment, is merely a practical accommodation; the losing party has the option of appealing then or after final judgment. Recognizing it as an exception to the rule requiring final judgment in order to appeal demonstrates its character as interlocutory and not a final judgment, when the trial court certifies it as such under OCGA § 9-11-54 (b). Culwell v. Lomas & Nettleton Co., 242 Ga. 242 (248 SE2d 641) (1978); Jones v. Walker, 209 Ga. App. 532, 534 (1) (433 SE2d 726) (1993). That was not done in this case.

In other words, although one may directly appeal the grant of summary judgment, OCGA § 9-11-56 (h), that right exists by law even though the order is not a final judgment; the law does not reclassify the grant of summary judgment while the case remains pending, as a final order. The same holds true for appeal of the dismissal of a caveat under OCGA § 5-6-34 (a) (8). Code § 6-701, the predecessor of OCGA § 5-6-34, was amended in 1957 to include authorization of direct appeals for judgments “sustaining or overruling a general demurrer to a caveat to the probate of a will, which would necessarily be controlling as to the final disposition of the cause.” Before this amendment, an order striking a caveat on general demurrer was not directly appealable.

Under Fairburn Banking, a “final disposition of the action” under OCGA § 9-15-14 means “where the case is no longer pending in the court below.” Moore’s motion for summary judgment on the caveat arises out of an action to probate a will which is a “[c]ourt procedure by which a will is proved to be valid or invalid.” Black’s Law Dictionary, 5th ed., p. 1081. Under Georgia law the meaning is specific: Probate “decides merely upon the factum of the will,” i.e., whether there is a will or not. In such an action, admitting the will to probate is considered the final order.

Moore, as propounder of the will, petitioned the court seeking (1) leave to probate the will in solemn form, (2) notice to heirs, (3) admittance of the will to record, and (4) issuance of letters testamentary. The order granting summary judgment merely stated that Moore’s motion for summary judgment “in the matter of the will of Jane Ware McConnell is hereby GRANTED.” The June 1997 superior court order provided that the will “be admitted to probate,” and the entire file transferred back to the Rabun County Probate Court “for any further proceedings necessary to the probate of the Will . . . and the appointment of Don Moore as Executor.” At that time, the case ceased pendency in the superior court. Because Moore’s motion for fees was filed within 45 days of the superior court order admitting the will to probate, it was timely. Accordingly, appellants’ counter-motion for fees was properly denied.

Decided May 28, 1998

Gary C. Harris, for appellants.

Adams, Clifton, Sanders & Smith, Cecil L. Clifton, Jr., for appellee.

Judgment affirmed.

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

        McConnell v. Moore, 267 Ga. 839 (483 SE2d 578) (1997).

       OCGA § 9-15-14 (e).

       263 Ga. 792 (439 SE2d 482) (1994).

       Id. 263 Ga. at 793.

        Little v. Gen. Motors Corp., 229 Ga. App. 781 (495 SE2d 572) (1997). See also Gist v. DeKalb Tire Co., 223 Ga. App. 397, 398 (1) (477 SE2d 616) (1996) (“final disposition of the action” under OCGA § 9-15-14 is not extended by a post-judgment motion to set aside).

       (Citations omitted.) Little, supra at 782-783.

        Fairburn Banking Co. v. Gafford, supra.

        Whisenhunt v. Allen Parker Co., 119 Ga. App. 813, 816 (1) (168 SE2d 827) (1969).

       Ga. L. 1957, pp. 224, 230.

        Driver v. Sheffield, 210 Ga. 817 (2) (82 SE2d 847) (1954) (without judgment awarding or refusing probate of the will, or dismissing the appeal, but only an order striking the caveat on general demurrer, no appeal maybe taken); Shropshire v. Broome, 207 Ga. 313 (61 SE2d 284) (1950) (without judgment granting or refusing probate of will, the case is still pending in the court below).

       OCGA § 5-6-34 (a) (1).

        Smith v. Davis, 203 Ga. 175 (1) (a) (45 SE2d 609) (1947).

       See, e.g., Dismer v. Luke, 228 Ga. App. 638 (492 SE2d 562) (1997) (order granting petition to probate will and admitting the will to probate which implicitly denied the caveat was a final judgment); Dowdy v. White, 123 Ga. App. 729 (182 SE2d 517) (1971) (order admitting the will to probate considered final order).


author: Judge Harold R. Banke.

text:
    A98A0837.
    CURRY v. GEORGIA DEPARTMENT OF CORRECTIONS.
    (503 SE2d 597)
   Judge Harold R. Banke.

Kizzie Curry commenced this slip and fall action under the Georgia Tort Claims Act against the Department of Corrections (“DOC”). She appeals the trial court’s order granting the DOC’s motion to dismiss for failure to perfect service, enumerating two errors.

The record shows that the cause of action arose on August 20, 1994 when allegedly Curry fell at the Macon Transitional Center after teaching a class. On August 16, 1996, the day she filed her complaint, she also mailed copies of the complaint and acknowledgments of service to Doug Williams at the Risk Management Division of the Department of Administrative Services and Shelton Hill at the DOC. On August 27, 1996, Williams signed the acknowledgment of service in his capacity as the Liability Program Manager. Wayne Garner, Chief Executive Officer of the DOC, was properly served on October 1, 1996. Held:

1. The trial court did not abuse its discretion in dismissing this action. Bible v. Hughes, 146 Ga. App. 769, 770 (2) (247 SE2d 584) (1978) (standard of review). To perfect service in a civil action against the State under the Tort Claims Act, a plaintiff “must both: (1) cause process to be served upon the chief executive officer of the state government entity involved at his or her usual office address; and (2) cause process to be served upon the director of the Risk Management Division of the Department of Administrative Services at his or her usual office address.” OCGA § 50-21-35. The procedural strictures of the Tort Claims Act, like its other terms, are strictly construed. How ard v. State of Ga., 226 Ga. App. 543 (1) (487 SE2d 112) (1997); see Christensen v. State of Ga., 219 Ga. App. 10, 11 (1) (464 SE2d 14) (1995).

Decided May 28, 1998.

Stacy, Sanders & McAlpine, Stroud P. Stacy II, for appellant.

Thurbert E. Baker, Attorney General, Kathleen M. Pacious, Deputy Attorney General, Loretta L. Pinkston, Senior Assistant Attorney General, Lisa S. Siegel, Debra A. Golymbieski, Assistant Attorneys General, for appellee.

The statute of limitation expired on Curry’s claims two years after the cause of action arose, on August 20,1996. OCGA § 50-21-27 (c). When service is accomplished after the statute of limitation has expired, the timely filing of the complaint tolls the statute only upon a showing that the plaintiff acted reasonably and diligently in effecting proper service as quickly as possible. Patterson v. Johnson, 226 Ga. App. 396, 397 (486 SE2d 660) (1997). The plaintiff also bears the burden of showing lack of fault. Sykes v. Springer, 220 Ga. App. 388, 389 (1) (469 SE2d 472) (1996).

It is undisputed that service had not been perfected on the Director of Risk Management at the time this action was dismissed. The record shows that Doug Williams did not purport to be the Director of Risk Management when he signed the waiver of service. Patterson, 226 Ga. App. at 398 (plaintiffs bear the responsibility to investigate and learn where a defendant may be located and served). Further, nothing in the Tort Claims Act permits waiver of service in these circumstances or service by means other than those specified in OCGA § 9-11-4 (c). OCGA § 50-21-35; see Howard, 226 Ga. App. at 544 (1). Notwithstanding Curry’s allegations about Doug Williams’ duplicity, her failure to effectuate service for over a year after filing the complaint, knowing of the DOC’s attack on the sufficiency of service of process, prevents her from establishing a lack of fault for the delay. Sykes, 220 Ga. App. at 389 (1). The trial court did not abuse its discretion in determining that she failed to exercise due diligence.

2. Inasmuch as Curry failed to support her second enumeration with argument or citation of authority, it is deemed abandoned. Court of Appeals Rule 27 (c) (1) and (2).

Judgment affirmed.

McMurray, P. J., and Eldridge, J., concur.

       Curry also arranged for a courier to deliver the complaint after learning it had not been expeditiously received.


author: Birdsong, Presiding Judge.

text:
    A98A1186.
    THE STATE v. HOPKINS.
    (503 SE2d 590)
   Birdsong, Presiding Judge.

The State appeals from the trial court’s order granting Rodney Hopkins’ motion to suppress the results from an Intoxilyzer 5000 test on the grounds that the arresting officer did not read verbatim the implied consent notice mandated by OCGA § 40-5-67.1 (b). We reverse.

The record shows that the arresting officer read the implied consent warning verbatim except for one possible change. The officer might have read the last line as follows: ‘Will you submit to the state-administered chemical test of your breath under the implied consent law?” OCGA § 40-5-67.1 (b) (2) states that the last line should read as follows: Will you submit to the state administered chemical tests of your (designate which tests) under the implied consent law?” The officer testified that because he “was asking for a singular test” of the appellant’s breath only, he may have corrected the grammar and changed the word tests to test. The trial court “reluctantly” granted appellant’s motion to suppress based upon this Court’s decision in State v. Fielding, 229 Ga. App. 675 (494 SE2d 561). Held:

In Fielding, this Court held that “[i]n promulgating the 1995 amendment, the legislature obviously intended to provide a bright line test that clarified the specific language to be given in a warning and to alleviate the need for a case-by-case determination of what warnings are and are not legally sufficient. To hold, as the state suggests in the instant case, that strict compliance with OCGA § 40-5-67.1 (b) does not mean reading the warnings exactly as written, would effectively return us to the state of the law prior to the 1995 amendment. The substance of the implied consent warning would again control over form. We decline to make such a holding absent a clear mandate from our legislature.” Fielding, 229 Ga. App. at 678.

We find, based upon the peculiar facts and circumstances of this case, that the arresting officer did read the specific language of the implied consent warning required by OCGA § 40-5-67.1 (b) (2). The last sentence of the warning specifically requires the officer to designate the tests for which he is requesting consent. The officer is not required to read the words “designate which tests” contained in OCGA § 40-5-67.1 (b). If the officer is requesting consent for only one test, as in this case, correcting the grammar of the sentence by changing tests to test is not a substantive change which alters the meaning of the question. Instead, it makes the critical sentence in the warning, which defines the test for which consent is sought, more understandable.

Our decisions in Fielding, 229 Ga. App. at 675, State v. Halstead, 230 Ga. App. 208 (496 SE2d 279) and State v. Barfield, 230 Ga. App. 141 (495 SE2d 622) are distinguishable because, in each of these cases, the changes to the specific words of the implied consent warning altered the meaning of the sentence in which the words appeared. Additionally, the changes in those cases were not made in the last sentence where the legislature has specifically authorized the arresting officer to designate other words. We therefore find that the trial court erred when it concluded that our decision in Fielding mandated that it grant appellant’s motion to suppress the results of the breath test.

Decided May 28, 1998.

Ben F. Smith, Jr., Solicitor, Forrest K. Shealy, Assistant Solicitor, for appellant.

J. Guy Sharpe, Jr., for appellee.

Judgment reversed.

Johnson and Smith, JJ, concur.


author: McMURRAY, Presiding Judge. Eldridge, Judge,

text:
    A98A0155.
    BRINSON v. THE STATE.
    (503 SE2d 599)
   McMURRAY, Presiding Judge.

Defendant was convicted after a bench trial of driving under the influence of drugs. At trial, Officer Mike Patton of the Jefferson County Sheriff’s Department testified that he stopped defendant’s car after observing defendant drive across the centerline of a roadway; that he smelled alcohol and marijuana emanating from defendant and defendant’s car; that he noticed that defendant’s speech was “slurred” and that defendant’s appearance was “sluggish,” and that defendant’s car contained a “small marijuana joint known as a roach.” Officer Patton also testified that defendant failed a field sobriety test, but that defendant’s breath test (“.03 percent”) did not indicate that defendant had been driving under the influence of alcohol. Officer Patton explained that, because of the circumstances indicating that defendant was an impaired driver, he advised defendant of his “implied consent rights” and asked defendant to submit to a “urine test.” Officer Patton testified that, although defendant agreed to submit to a urine test, defendant frustrated the testing procedure by saying that he could not urinate and then by giving him a specimen cup filled with a substance which appeared to be water. Officer Clark Hiebert of the “Drug [Investigations” unit of the Jefferson County Sheriff’s Department testified that defendant informed him that he could not submit to a urine test for the presence of drugs in his body because such a test “will come back positive.”

In response to defendant’s motion for directed verdict, the trial court found the only evidence indicating that defendant was driving under the influence of drugs was defendant’s refusal to submit to a State-administered drug test. To this extent, the trial court rendered the following findings of fact and conclusions of law in open court: “All right, well I of course listened very carefully to all the evidence that’s been presented, and ... I do have the obligation to act as a jury as a fact finder would and to assess all the evidence that’s presented and make a finding. The only evidence that the State has to go on on this charge, the only one left, is the implied consent law, and my ruling has been that the State does have the right to request a second test, and I think under the totality of the circumstances the State was entitled to request that second test because of the strong suspicion that there may be some substance other than alcohol involved.

“I’m going to find that the evidence is sufficient to convict beyond a reasonable doubt. I’m going to find [defendant] guilty of the offense of driving under the influence of drugs. And I’ll say to each party and each counsel that the only evidence is the implied consent law. We don’t have anything else to go on. And it appears to me that there was a failure by the defendant to comply with the implied consent law and that’s the basis for the Court’s ruling on count one. I find that the defendant is guilty.”

This appeal followed the entry of defendant’s judgment of conviction and sentence. Held:

Defendant contends the trial court erred in denying his motion for a directed verdict of acquittal, arguing that the trial court’s verdict was based solely on his failure to comply with Georgia’s implied consent law and that such proof, without more, is insufficient to sustain his conviction for driving under the influence of drugs. We agree.

Although defendant’s refusal to submit to a State-administered urine test was admissible as positive evidence creating an inference that the test would show the presence of the prohibited substance under Brooks v. State, 187 Ga. App. 194 (1) (369 SE2d 801), this evidence, alone, is insufficient to sustain defendant’s conviction of driving under the influence of drugs under the standard prescribed by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment reversed.

Senior Appellate Judge Harold R. Banke concurs. Eldridge, J, concurs specially.

Eldridge, Judge,

concurring specially.

While I concur with the judgment of the majority, I disagree that there was no other evidence that the defendant was driving under the influence of drugs. The arresting officer testified that he observed that the defendant did “kind of have a prop” against the car as he approached the officer, that he was “sluggish, that he was under the influence —,” that he spoke with “slurred” speech, and that he “was fumbling through his wallet” looking for his license. The officer testified that the defendant failed the field sobriety tests. The officer also testified that he smelled marijuana emanating both from the defendant and the car and observed in plain view a “small marijuana joint known as a roach.” The defendant spontaneously made an admission against penal interest that the urinalysis if performed properly “will come back positive.” Investigator Clark Hiebert testified that the defendant “appeared to be somewhat under the influence of something.” Hiebert testified that the defendant’s “eyes were very glassy,” he did not “appear to be alert.” This is some evidence in support of the inference arising from the refusal to cooperate fully with the taking of the urine test. The arresting officer stopped the defendant for crossing the centerline several times on a curvy road but observed nothing else unusual about the defendant’s driving. The state failed to show beyond a reasonable doubt that the defendant was under the influence of drugs and that he was less safe to drive as a consequence of being under the influence of drugs. The state failed to prove beyond a reasonable doubt that the defendant was under the influence of marijuana to such extent that he was a less safe driver under OCGA § 40-6-391 (a) (2). See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided June 1, 1998.

Robert S. Reeves, for appellant.

Michael J. Moses, Solicitor, for appellee.


text:
    A98A0113.
    AGNEW v. GREAT ATLANTIC & PACIFIC TEA COMPANY.
    (502 SE2d 735)
   Beasley, Judge.

While running errands, Gary Agnew, a lawyer, saw a large sign on the front of a grocery store which said “Nobody’s Gonna Beat Us Now. Buy One Get One Free. 1=2 Sale. All This Week. Single Purchases Will be Charged Regular Retail, Second Item Free.” The sign contained no limitations. Agnew entered the store and selected two bags of sugar, two boxes of Rice-A-Roni, and two boxes of crackers. After the cashier rang up the items without a discount, Agnew asked about the promotion and was told the sale only applied to certain items. Agnew then paid the full price.

Based on the incident, Agnew filed a complaint pro se alleging The Great Atlantic & Pacific Tea Company (A&P) engaged in unfair or deceptive business practices in violation of the Fair Business Practices Act, OCGA § 10-1-390 et seq. (FBPA). The court denied Agnew’s motion for partial summary judgment as to liability and granted A&P’s motion for summary judgment thereby terminating Agnew’s case. Agnew appeals both decisions.

“[I]n ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. [Cit.] Nevertheless, a movant for summary judgment who is a defendant may discharge his burden by pointing out by reference to the affidavits, depositions, and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474).”

The FBPA provides a private right of action only to “any person who suffers injury or damages as a result of . . . consumer acts or practices in violation of this part. . . .” Accordingly, “a private FBPA claim has three elements: a violation of the Act, causation, and injury.” Further, the Act “incorporat[es] the ‘reliance’ element of the common law tort of misrepresentation into the causation element of an individual claim,” which in turn means “the claimant is not entitled to recover if he had an equal and ample opportunity to ascertain the truth but failed to exercise proper diligence to do so.”

Aside from whether A&P’s sign violated the Act, in order to survive summary judgment in response to A&P’s assertion that there is no evidence of causation, reliance, diligence or damages, Agnew must point to specific evidence of a triable issue on each of these elements of his case. “If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff’s claim, that claim [falls].”

1. Causation and Damages. Agnew essentially contends A&P’s sign caused two injuries: (1) he was improperly drawn into the store, for which he is entitled to nominal or general damages, and (2) he paid full price for the six items.

The FBPA makes no mention of nominal damages but states that a claimant is entitled to recover “general and exemplary damages sustained as a consequence” of a violation of the Act. “This court. . . has consistently held that in accordance with the statutory requirements of the FBPA, the measure of damages to be applied for an FBPA violation is that of ‘actual injury suffered.’ [Cits.] . . . [T]he general provisions of OCGA § 51-12-2 (a) [damages recoverable without proof of amount] are not applicable.” “[T]reble damages and attorney fees may be awarded for certain egregious or intentional misconduct.”

As to the beckoning sign, Agnew presented no evidence of actual injury upon which damages can be calculated. As to paying full price, Agnew knew before he completed the purchase that the promotion did not apply to the items he selected. He took this action despite his knowledge that the sign did not mean what he originally thought. His deliberate choice, not the sign, was the proximate cause of the payment of full price. The absence of this single element of each part of the claim compelled summary judgment to A&P and correlative denial of judgment to Agnew. Miles Rich Chrysler-Plymouth v. Mass is distinguishable. There the plaintiff proved $1,000 in actual damages. Agnew’s claims for equitable relief (OCGA § 10-1-399 (a)), exemplary damages (OCGA § 10-1-399 (a)), treble damages (OCGA § 10-1-399 (c)) and attorney fees (OCGA § 10-1-399 (d)) were dependent on injury or damage resulting from a violation of the act and thus were properly dismissed.

2. The FBPA provides, in part, that it should be “interpreted and construed consistently with interpretations given by the Federal Trade Commission in the federal courts pursuant to Section 5 (a) (1) of the Federal Trade Commission Act (15 U.S.C. Section 45 (a) (1)), as from time to time amended.” Without addressing OCGA § 10-1-399, Agnew essentially argues this means that because federal court cases hold that causation and injury are not elements of an FTC action for violation of FTC regulations, causation and injury are not required elements of a private right of action under the FBPA in Georgia.

Decided May 7, 1998

Reconsideration denied June 2, 1998

Gary G. Agnew, pro se.

Brock, Clay, Wilson & Rogers, Richard W. Calhoun, John C. Borden IV, for appellee.

Agnew presents no Georgia law for this proposition. The statute itself states that only those “who suffer injury or damages as a result” of a violation may bring an action for damages. Although the FBPA must be interpreted and construed consistently with the specified federal case law, such a construction does not override the express provisions of the statute which the Georgia legislature enacted.

Misleading business practices in the marketplace do not necessarily cause measurable or compensable legal injury or give rise to a private right of action. The FBPA authorizes consumers to file complaints with the Consumer Advisory Board which in turn may take steps to facilitate investigation and corrective action, including cease and desist orders or civil penalties, “whether or not any person has actually been misled.”

Judgment affirmed.

Pope, P. J, and Senior Appellate Judge Harold R. Banke concur.

       Although Agnew’s notice of appeal only mentioned the grant of A&P’s motion, his enumeration of errors assigns error to the denial of his motion and that issue is properly before this Court. Southeast Ceramics v. Klem, 246 Ga. 294, 295 (1) (271 SE2d 199) (1980).

        Garmon v. Warehouse Groceries Food Center, 207 Ga. App. 89, 91 (1) (427 SE2d 308) (1993).

       OCGA § 10-1-399 (a). See also Zeeman v. Black, 156 Ga. App. 82, 86 (273 SE2d 910) (1980); Attaway v. Tom’s Auto Sales, 144 Ga. App. 813, 815 (242 SE2d 740) (1978) (“A consumer who is damaged thereby has an independent right to recover under the Act... .”).

        Zeeman, supra, 156 Ga. App. at 86-87; Nims v. Otter, 188 Ga. App. 516 (2) (373 SE2d 396) (1988).

       Id.; Lynas v. Williams, 216 Ga. App. 434, 437 (454 SE2d 570) (1995).

        Miles Rich Chrysler-Plymouth v. Mass, 201 Ga. App. 693, 697 (3) (a) (411 SE2d 901) (1991) (jury issue existed as to whether bait and switch scheme was violation of FBPA); Regency Nissan v. Taylor, 194 Ga. App. 645, 647 (2) (391 SE2d 467) (1990) (under FBPA, claimant not required to prove intentional conduct by defendant for general damages, but is so required for treble damages).

        Lau’s Corp., supra, 261 Ga. at 491.

       OCGA § 10-1-399 (a).

        Regency Nissan v. Taylor, supra, 194 Ga. App. at 649 (4); Standish v. Hub Motor Co., 149 Ga. App. 365, 366 (254 SE2d 416) (1979).

        Standish, supra.

       Supra, 201 Ga. App. at 696 (3).

       OCGA § 10-1-391 (b).

       OCGA § 10-1-399.

       See OCGA § 1-3-1 (a) (“the courts shall look diligently for the intention of the General Assembly”); Porter v. Food Giant, 198 Ga. App. 736, 738 (402 SE2d 766) (1991) (“It is contrary to the generally accepted principles for construing statutes to ‘read out’ any part of the statute as ‘mere surplusage’ unless there is a clear reason for doing so”).

       OCGA §§ 10-1-397 (a); 10-1-395 (c), (d), (0.


author: Johnson, Judge.

text:
    A98A0529.
    A98A0530.
    EADY et al. v. CAPITOL INDEMNITY CORPORATION. UDOTO v. CAPITOL INDEMNITY CORPORATION.
    (502 SE2d 514)
   Johnson, Judge.

In Case No. A98A0530, Gilbert Udoto d/b/a Big Daddy’s Liquors and Lounge filed notice of appeal from an order granting summary judgment to appellee Capitol Indemnity Corporation and denying summary judgment to Eldred Eady and Michael Kittles. In Case No. A98A0529, Eady and Kittles filed notice of appeal from the grant of summary judgment to Capitol.

The facts of this case are not in dispute. Eady and Kittles went to Big Daddy’s Liquors and Lounge, which is owned and operated by Gilbert Udoto. Trevor Roberts and a man known only as Lamont were also patrons at Big Daddy’s. Some months earlier, Lamont and two other persons allegedly had attacked Roberts at an unidentified location. Roberts and Lamont exchanged words after which Roberts left Big Daddy’s and went to his car to get a .380 caliber handgun. He returned to the lounge with the gun concealed under his clothes. When Lamont approached Roberts again, Roberts pulled out his gun to get him to “back up.” Lamont grabbed Roberts. As Roberts fell back his finger tightened around the trigger and, according to Roberts, the gun “kept shooting.” Eady, Kittles and two other people in the bar were struck by bullets.

Eady and Kittles sued Udoto alleging Udoto was negligent by: 1) allowing an individual to enter the lounge with a gun; 2) failing to keep the premises and approaches safe for customers; 3) failing to have adequate security; 4) failing to provide adequate lighting; and 5) failing to properly design a security system.

Udoto requested that Capitol Indemnity Corporation, from whom he had purchased a commercial general liability policy, provide a defense and indemnify him in the action. After issuing a reservation of rights letter, Capitol filed this declaratory judgment action, seeking a determination that there is no coverage for this claim under the terms of the policy. Capitol, Eady and Kittles, and Udoto all filed for summary judgment. The trial court granted Capitol’s motion and denied the motions of Udoto and Eady and Kittles.

The policy contains the following exclusion for injuries arising out of assault and battery: “This insurance does not apply to bodily injury, property damage or personal injury arising out of assault, battery, or assault and battery. This exclusion applies to all coverages under this coverage part. Definitions: 1. Assault — A willful attempt or offer with force or violence to harm or hurt a person without the actual doing of the harm or hurt. 2. Battery — Any battering or beating inflicted on a person without his or her consent. 3. Assault and Battery — For purposes of this instance, this term includes assault and battery, and specifically includes the ejection with force or violence, or attempt thereof, of any person from the premises by the insured and his/her/its employees or agents. Certain words or terms underlined in this endorsement have special meaning and are defined either in the policy or in this endorsement.” After taking judicial notice of Roberts’ guilty plea to aggravated assault of Eady, the trial court concluded that Eady’s and Kittles’ injuries arose out of an assault and came within the policy’s assault and battery exclusion.

The trial court relied on four cases which have upheld similar “assault and battery” exclusions: Boomer’s, Inc. v. Whitney, 226 Ga. App. 195 (2) (486 SE2d 59) (1997) (patron shot another patron in a bar); Capitol Indem. Corp. v. L. Carter Post 4472, 225 Ga. App. 354 (484 SE2d 52) (1997) (intoxicated patron who had been asked to leave VFW returned and stabbed another patron); Al Who Enterprises v. Capitol Indem. Corp., 217 Ga. App. 423, 426 (1) (457 SE2d 696) (1995) (insured’s employees got into an altercation with servicemen who were acting aggressively at a nightclub); and Dynamic Cleaning Svc. v. First Financial Ins. Co., 208 Ga. App. 37 (430 SE2d 33) (1993) (physical precedent only) (cleaning service employee allowed an ex-employee into the building who then stabbed the store manager).

In this case, the victims were not the intended targets of the perpetrator’s conduct; their resulting injuries were unintended and unanticipated. In such circumstances, the perpetrator’s liability for any tortious or criminal assault and battery upon the victims is based on a legal fiction known as the doctrine of transferred intent. See, e.g., Happoldt v. State, 267 Ga. 126, 127 (1) (b) (475 SE2d 627). Under the doctrine of transferred intent, when an unintended victim is injured or killed as a result of an unlawful act actually directed against someone else, the law prevents the actor from taking advantage of his own wrong and transfers the original intent from the one against whom it was directed to the one who actually suffered from it. As the cases relied upon by the trial court do not involve the enforceability of an assault and battery exclusion in a situation involving the doctrine of transferred intent they are not controlling. Also not controlling is the holding of this Court in Littrell v. Colony Ins. Co., 228 Ga. App. 552 (492 SE2d 299) (1997) (innocent bystander struck by same bullet as intended victim). Although, Littrell, supra, involves the enforceability of an assault and battery exclusion, the doctrine of transferred intent was not affirmatively addressed by this Court. Issues merely lurking in the record, neither brought to the court’s attention nor expressly ruled upon, have not been decided so as to constitute precedent. Gordy Tire Co. v. Dayton Rubber Co., 216 Ga. 83, 89 (1) (114 SE2d 529) (1960).

Before this Court, Eady and Kittles emphasize that they were not targets of an assault but were merely innocent bystanders who were injured unintentionally. They claim that the assault and battery exclusion at issue is ambiguous regarding its application to their unique situation and that the exclusion therefore must be construed in favor of the insured. Eady and Kittles contend their position is supported by Allstate Ins. Co. v. Justice, 229 Ga. App. 137 (493 SE2d 532) (1997) (stray bullet struck innocent man sitting in a parked car); Brown v. St. Paul Fire &c. Co., 177 Ga. App. 215 (338 SE2d 721) (1985) (wife accidentally shot during altercation between her spouse and another man); and Martin v. Chicago Ins. Co., 184 Ga. App. 472, 474 (361 SE2d 835) (1987) (insured intentionally drove onto sidewalk to hit a woman and injured bystanders). We have examined these cases and are sympathetic to Eady’s and Kittles’ contentions.

Decided May 19, 1998

Reconsideration denied June 2, 1998

Billy C. Mathis, Jr., Caroline A. Cormack, for appellants (case no. A98A0529).

Divine, Dorough & Sizemore, Kermit S. Dorough, Jr., for appellant (case no. A98A0530).

Goodman, McGuffey, Aust & Lindsey, William S. Goodman, Leslie S. Sullivan, Tracy M. Culver, for appellee.

However, the Supreme Court recently has given a very broad interpretation to the words “arose out of” and “to have been caused by” found in the exclusion clauses of different policies and has found no material distinction exists in the duties and obligations imposed by each. Jefferson Ins. Co. v. Dunn, 269 Ga. 213, 216 (496 SE2d 696) (1998). In Jefferson, supra at 215, the Court examined the words “arising out of” found in an exclusionary clause and concluded that, by its express terms, such an exclusionary clause is focused solely upon the genesis of a plaintiff’s claims. If those claims arose out of the excluded culpable conduct, coverage need not be provided. Id. The Court further opined that a claim will be found to have arose out of the excluded culpable conduct if there could be no claim but for that conduct. Id. at 216. Applying the “but for” analysis to this case, as we are required to do, the conclusion is inescapable that but for the assault perpetrated by Roberts there could be no claim by either Eady or Kittles, as the injuries giving rise to their claim would not have occurred.

Accordingly, we are compelled to conclude that the trial court did not err either in granting summary judgment to Capitol or in denying summary judgment to Eady and Kittles. While we have the greatest sympathy for the plight of Eady and Kittles, we are bound by the precedent of the Supreme Court of Georgia. This Court is required to interpret the law and apply it with an even hand; the appellate process affords us no latitude to make adjustments for the ill-earned good fortune of the lucky or, as in this case, the unsolicited and painful misfortune of the unlucky. Bohannon v. State, 230 Ga. App. 829, 835 (1) (498 SE2d 316) (1998).

Judgments affirmed.

Birdsong, P. J., and Smith, J., concur.


text:
    A98A0509.
    FREEMAN v. THE STATE.
    (503 SE2d 601)
   Judge Harold R. Banke.

Terry Joel Freeman was convicted of armed robbery and possession of a firearm by a convicted felon. He enumerates six errors on appeal.

This case arose after a man resembling Freeman entered a convenience store on a hot autumn evening wearing sunglasses, a stocking cap pulled low on his head, and blue coveralls from which he pulled a shotgun. He aimed the gun at the clerk and threatened to kill her if she did not give him money. After she complied, he made her lie on the floor and he left. She then called authorities who apprehended Freeman shortly thereafter hiding under a bush. The officers found the loaded shotgun stuffed down his pants leg and $141, the approximate amount taken from the store. Nearby, they discovered the stocking cap, sunglasses, and a mismatched pair of shoes. Later, the mate to one of the shoes was found at Freeman’s home. Held'.

1. We must reject Freeman’s claim of error under Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986). Although Freeman made out a prima facie case of racial discrimination, the Staté offered racially neutral reasons for striking two African American jurors. Berry v. State, 267 Ga. 605, 608 (5) (481 SE2d 203) (1997). The State based its first strike on the venireman’s acquaintance with Freeman. See Davis v. State, 263 Ga. 5, 8 (10) (426 SE2d 844) (1993). The second man at issue was struck because the district attorney’s office had prosecuted him during the previous year on battery charges and he received a one year probated sentence. See Smiley v. State, 263 Ga. 716, 717 (1) (438 SE2d 75) (1994) (a prospective juror’s criminal history may be a sufficiently race neutral reason to justify a peremptory strike). The trial court did not clearly err in determining that these reasons were sufficient to rebut Freeman’s prima facie showing of discrimination. Id. at 717 (1); King v. State, 224 Ga. App. 400, 401 (2) (480 SE2d 385) (1997) (standard of review).

2. The trial court properly denied Freeman’s motion for discharge and acquittal pursuant to OCGA § 17-7-170, alleging abridgement of his right to a speedy trial. The record shows that Freeman’s first demand for speedy trial was invalid because he filed it before the indictment was returned. Little v. State, 188 Ga. App. 410 (1) (373 SE2d 260) (1988) (OCGA § 17-7-170’s speedy trial protections do not attach until the indictment is returned). Freeman filed his second demand on March 10, 1995, after the time allotted under OCGA § 17-7-171 (a). See Davis v. State, 221 Ga. App. 168, 169 (1) (471 SE2d 14) (1996) (OCGA § 17-7-171 applies to armed robbery). There is no record that he obtained special permission to untimely file his second demand as contemplated by OCGA § 17-7-171 (a). Thus, neither demand was effective. See Ingram v. State, 224 Ga. App. 271, 272 (3) (480 SE2d 302) (1997) (construing similar language in OCGA § 17-7-170). Moreover, he was tried during the April term of court, which by Freeman’s own admission would have been within the statutory time limit had the second demand been valid. OCGA § 17-7-171 (b); see OCGA § 15-6-3 (2) (A).

3. Freeman apparently contends that the trial court erred in admitting similar transaction evidence which was not sufficiently similar to satisfy the requisites of Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991). We disagree.

As in the instant case, both similar transactions involved evening robberies of female cashiers at convenience stores within a five-mile radius. In each robbery, Freeman used a weapon, referred to each of the cashiers as “bitch,” and forced them to lie on the floor while he escaped on foot with the currency. Freeman pleaded guilty to both similar transactions. The State offered the evidence to show identity, course of conduct and bent of mind. We find that the similar transactions were substantially relevant to establish these factors and thus were not admitted simply to malign Freeman’s character. Harris v. State, 222 Ga. App. 52, 54 (2) (473 SE2d 232) (1996).

4. We must reject Freeman’s contention that reversal is required because the State violated Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963). After cross-examination of one of the similar transaction witnesses and outside the jury’s presence, the State announced that the witness had been charged with aggravated assault. The trial court offered to allow Freeman to question the witness but he declined.

The witness’ testimony related solely to a 1983 similar transaction to which Freeman pleaded guilty. Because the information was provided during trial and Freeman failed to demonstrate the positive effect of earlier disclosure or other harm, reversal is inappropriate. Burgeson v. State, 267 Ga. 102, 104 (2) (475 SE2d 580) (1996); Zant v. Moon, 264 Ga. 93, 100 (3) (440 SE2d 657) (1994).

5. Because the fifth and sixth enumerations both challenge the sufficiency of the evidence, we address them collectively. Viewing the evidence in a light most favorable to the verdict, we find it sufficient to establish Freeman as the perpetrator of the offense. The victim identified Freeman as the perpetrator at trial. Freeman was apprehended in possession of a shotgun similar to the victim’s description and an amount of currency corresponding to that taken in the robbery. The sunglasses and hat the victim mentioned when describing the robber were found near the place Freeman was apprehended. In addition, the manner of the robbery was substantially similar to two earlier robberies Freeman committed. In these circumstances, the trial court properly denied Freeman’s motion for new trial urged on general grounds.

Decided June 2, 1998.

John R Howell, for appellant.

Alan A. Cook, District Attorney, William K. Wynne, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

Beasley and Ruffin, JJ, concur.

       In his appellate brief, Freeman did not specify the grounds on which he was challenging the admission of the similar transactions evidence. However, he claimed the similar transactions were not sufficiently similar to the facts in this case in his motion in limine. Moreover, the State offered certified convictions on the similar transactions, thereby obviating any argument on identity.


author: Eldridge, Judge.

text:
    A98A1357.
    JOHNSON v. THE STATE.
    (503 SE2d 603)
   Eldridge, Judge.

A DeKalb County grand jury returned an indictment against appellant Alonso Johnson and two co-defendants, Herbert Maxwell and Dennis Jordan, charging each of them with one count of armed robbery, three counts of aggravated assault, one count of burglary, and two counts of false imprisonment. A jury found all three men guilty of armed robbery, one count of aggravated assault, and two counts of false imprisonment. Here, Johnson appeals, challenging the denial of his motion for directed verdict and alleging three additional errors of law. We affirm.

The evidence in this case shows that in November 1996, at approximately 8:00 p.m., Epimenio Jimenez and his brother-in-law, Ever Aquirre, were in their ground floor apartment located at 4753-A Terrace Garden Apartments, Buford Highway, Chamblee, Georgia. Also present were Jimenez’ three young children and Jimenez’ brother, Albaro. Aquirre heard a knock at the front door. As he opened the door, it was kicked open the remainder of the way. Maxwell entered the apartment along with appellant Johnson and Jordan.

Maxwell and Johnson had guns; Jordan carried a knife. Maxwell put his gun to Aquirre’s head, and Johnson pulled several gold chains from around Aquirre’s neck. Maxwell then hit Aquirre in the head with his weapon. All three of the assailants repeatedly demanded money.

After the initial assault on Aquirre, Epimenio Jimenez rushed into the bedroom to call 911. He held the bedroom door shut as the assailants kicked at it. The police received the 911 call and immediately dispatched officers to the scene. One officer, E. Westbrooks, was on patrol nearby and reached the complex within “seconds” of the 911 call going out. Officer Westbrooks also worked security at the apartments when off-duty, so he was familiar with the precise incident location in the large complex. He pulled in front of the victims’ building and waited for backup assistance.

In the apartment, the assailants were successful in kicking the bedroom door almost all the way in. When they discovered that Jimenez was on the telephone with the police, Maxwell and the co-defendants fled the apartment. They got into a black Acura that had been parked outside the victims’ building and started to leave the parking lot at a high rate of speed with the car’s headlights off. As Officer Westbrooks witnessed this, Albaro Jimenez rushed out into the parking lot yelling and pointing at the fleeing Acura. Westbrooks activated his blue lights and siren and followed the Acura, which then exited the complex from the drive marked “entrance,” almost hitting an entering police car.

Westbrooks and other officers engaged in a high-speed chase of the black Acura down Buford Highway to Clairmont Road. The Acura reached speeds of over 90 mph and continuously changed lanes in order to avoid traffic. The Acura turned onto Clairmont where it hit a pickup truck and was knocked off the road. Westbrooks, close behind, pulled over and immediately approached the vehicle; the driver was attempting to “crank” the car in order to continue to flee. Westbrooks removed the driver from the car. Other officers on the scene removed the passengers. Jordan was the driver, appellant Johnson was the front seat passenger, and Maxwell was in the back seat of the Acura.

Only 20 minutes had elapsed between the time of the initial armed robbery and the stop. Aquirre was brought to the scene on Clairmont Road and identified appellant Johnson, Maxwell, and Jordan as the perpetrators of the armed robbery.

Thereafter, pursuant to a search of the Acura, a brown leather gun holster was found in the back seat floorboard, near where Maxwell had been sitting. The holster was marked “Smith & Wesson Model 29.” Because a gun was not located in the car, officers returned to the victims’ apartment building to search for one. A blue steel Smith & Wesson Model 29 revolver was located in the fire lane of the parking lot nearest the victims’ building. The weapon fit the holster recovered from the Acura.

At trial, the jury heard the 911 tape, which included a terrified Epimenio Jimenez reporting what was happening as it occurred, children crying out in the background, and Jimenez’ attempts to prevent the assailants from breaking in the bedroom door. The jury heard testimony from Jimenez, as well as Aquirre who made an in-court identification of Maxwell, Johnson, and Jordan as the perpetrators of the armed robbery. The jury also heard testimony from the police officers involved, including Westbrooks, regarding the chase, the investigation, and the identification of Maxwell, Johnson, and Jordan as the occupants of the Acura. An officer also testified as to Aquirre’s out-of-court identification of the three men as the perpetrators of the armed robbery at the time of the incident. The jury had before it both the Smith & Wesson Model 29 holster recovered from the back floorboard of the Acura and the Smith & Wesson Model 29 revolver found in the parking lot near the victims’ apartment. Also, the jury heard the statements that Aquirre and Jimenez gave to the police at the time of the incident, which statements did not vary in any material respect from their trial testimony. Neither Maxwell nor the other defendants introduced any evidence at trial. Held:

1. In his first enumeration of error, Johnson contends that he was denied his Sixth Amendment right to a thorough and sifting cross-examination as to statements made to the police by the victims, because the original Spanish translator who took the victims’ statements (a police dispatcher) was not called as a witness at trial, although his name was included on the State’s list of witnesses. This contention is meritless.

(a) The record shows that Spanish translators were provided during trial, and the defense cross-examined both victims regarding their statements to the police and any alleged inconsistencies between their trial testimonies and the contents of those statements. Our review shows that no material discrepancies existed, and in any event, the alleged inconsistencies were before the jury. The impeachment value thereof was properly for the jury’s determination. OCGA § 24-9-80; Duckworth v. State, 268 Ga. 566 (2) (492 SE2d 201) (1997).

(b) Johnson could have subpoenaed the police dispatcher had such witness been deemed necessary to him for impeachment purposes. OCGA § 17-7-191. That the dispatcher’s name was on the State’s witness list does not mean that the State was required to call him. The purpose for the list of witnesses provided by the State is to ensure that an accused is not confronted at trial with testimony against him from witnesses whom he has not had the opportunity to interview prior to trial. OCGA § 17-16-3; Hicks v. State, 232 Ga. 393 (207 SE2d 30) (1974). However, obtaining witnesses to aid in his defense was Johnson’s responsibility.

(c) To the extent that Johnson also complains that the use of Spanish translators during trial impacted negatively on his ability to cross-examine the victims, “[t]he use of an interpreter, and the extent to which the examination will be allowed to proceed through him must necessarily lie within the sound discretion of the trial judge.” (Citation omitted.) Whatley v. State, 197 Ga. App. 489, 490 (398 SE2d 807) (1990). Johnson has shown no abuse of discretion here.

2. In his second enumeration of error, Johnson contends that the trial court erred when it failed to charge the jury on the lesser included offense of robbery. However, in his “Argument and Citation of Authority” in support thereof, Johnson claims only that the evidence was insufficient to support his armed robbery conviction. Johnson presents no argument or citation of authority in support of the error as enumerated. Accordingly, Johnson’s unsupported claim of error number two is deemed abandoned. Court of Appeals Rule 27 (c) (2).

3. Next, Johnson challenges the trial court’s denial of his motion for directed verdict as to the charges against him.

The test established in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), is the proper test to use when the sufficiency of the evidence is challenged, whether the challenge arises from the overruling of a motion for directed verdict or the overruling of a motion for new trial based upon alleged insufficiency of the evidence. Lester v. State, 226 Ga. App. 373, 376 (487 SE2d 25) (1997). Accordingly, on appeal following a conviction, the evidence must be viewed in a light most favorable to the verdict, and Johnson no longer enjoys a presumption of innocence; moreover, on appeal this Court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Webb v. State, 228 Ga. App. 624, 625 (492 SE2d 312) (1997).

Here, contrary to Johnson’s contentions, the evidence showing that Johnson, carrying a gun, burst into the victims’ apartment and pulled gold chains from around Aquirre’s neck demonstrates more than his “mere presence” in the victims’ apartment. It shows Johnson’s commission of an armed robbery. Also, the evidence showed that Johnson was a party to the commission of an aggravated assault, i.e., when Maxwell struck Aquirre in the head with a gun. See OCGA § 16-2-20.

Further, the evidence showed that following the initial armed robbery, Johnson, Maxwell, and Jordan detained the victims at gunpoint while demanding additional money. The fact that Epimenio Jimenez was forced to run to the bedroom to call 911 does not negate the fact that neither victim was free to leave the apartment as long as the perpetrators were present, armed, and intent on violence. Evidence of a detention for any period of time, without authority, against a person’s will, and in violation of his or her personal liberty may support a conviction for false imprisonment. OCGA § 16-5-41. Mayorga v. State, 225 Ga. App. 496 (484 SE2d 292) (1997); compare Webb v. State, 210 Ga. App. 27 (435 SE2d 251) (1993); Butler v. State, 194 Ga. App. 895, 898 (3) (392 SE2d 324) (1990); Gilbert v. State, 176 Ga. App. 561, 562 (2) (336 SE2d 828) (1985).

Decided June 2, 1998.

Dorothy Williams, for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Jeanne M. Canavan, Assistant District Attorneys, for appellee.

Accordingly, the evidence was more than sufficient for a rational trier of fact to have found Johnson guilty beyond a reasonable doubt of the offenses of armed robbery, aggravated assault, and two counts of false imprisonment.

4. We find as meritless Johnson’s contention that the trial court erred in charging the jury that reasonable doubt is not an imaginary doubt, but is a doubt for which a reason may be given. Such charge does not express the trial court’s "opinion” and has been approved by this Court as a correct statement of law. See Lewis v. State, 158 Ga. App. 586, 587 (2) (281 SE2d 331) (1981).

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.

       Spanish is the native language of victims Aquirre and Jimenez.

       Johnson did not submit a written request to charge on the lesser included offense of robbery; further, the evidence did not support such a charge as it was uncontradicted that each of the perpetrators was armed.


text:
    A98A0084.
    RICHARDSON v. DOWNER.
    (502 SE2d 744)
   Andrews, Chief Judge.

Anne Richardson appeals from the judgment entered after a jury awarded Arlene Downer $50,000 on her claim for damages for injuries received in a car accident. For the reasons which follow, we affirm.

This case arose when the car Richardson was driving crossed over the centerline and forced Downer off the road. Richardson admitted negligence and the only evidence at trial was the testimony of Downer and the deposition of her doctor, which was read into the record.

Downer testified that when Richardson crossed over the center-line into her lane, she was forced to move onto the shoulder of the road and into a ditch to avoid a head-on collision. After Downer’s car crossed the ditch, it hit a dirt embankment, became airborne and landed on the bank on the far side of the ditch. Downer testified she felt a sharp, searing pain go through her back when the car landed. Because of the injury to her back, she was unable to open the door and get out of the car and had to be lifted out and put into an ambulance. Downer stated she was in bed for several days after the accident with intense pain.

The orthopaedist who treated Downer testified in his deposition that X-rays showed a mild compression fracture of one of the thoracic vertebrae. The evidence showed that approximately four and a half months after the accident, Downer had improved considerably, but almost any physical activity was still painful.

Downer testified that she and her husband owned a restaurant where they both worked and, as of the date of trial, almost three years after the accident, there were still days when she was unable to work and her husband had to manage the restaurant by himself. Moreover, she stated that on days when she did work, she often had a backache at the end of the day. Downer also testified that she was unable to work in her garden or clean house without pain.

In describing the effect of the injury to her lifestyle and leisure activities, Downer said she had always enjoyed outdoor activities, having worked with Outward Bound for a few years. She enjoyed rock climbing, snow skiing, water skiing, back-packing and canoeing. Downer said she had been unable to participate in any of these activities since the accident and because her back problems were continuing and had not abated over the past three years, she did not know if she would ever be able to do strenuous activities such as skiing or rock climbing again. She also stated that she had been looking forward to introducing her son to these types of outdoor activities when he became a little older.

1. Given the evidence presented at trial, the amount of the verdict was not so excessive as to shock the conscience. “As a general rule, the size of the award for damages in a case such as this is left to the enlightened conscience of impartial jurors, subject to approval of the trial court. The appellate court will not disturb the award absent an award so excessive or inadequate as to shock the judicial conscience.” Light v. Mason, 225 Ga. App. 260, 261 (483 SE2d 685) (1997). Moreover, “[ajfter a verdict, the evidence is construed in its light most favorable to the prevailing party, for every presumption and inference is in favor of the verdict.” Consolidated Freightways v. Futrell, 201 Ga. App. 233, 234 (410 SE2d 751) (1991).

Seaboard System R. v. Taylor, 176 Ga. App. 847 (338 SE2d 23) (1985), relied on by Richardson, is not to the contrary. In Seaboard, the jury returned a verdict of $250,000 for the plaintiff whose special damages totalled $14,000 in lost wages. As in the instant case, the plaintiff in Seaboard experienced back pain after the accident but there was no discernible injury, the doctor testifying at trial that the plaintiff had “dysfunctional low back pattern” meaning “there is something wrong producing symptoms about the lower back,” and “some inflammatory process about the heel.” Seaboard, supra at 847. In that instance, we held the jury award of $236,000 above the amount of special damages was excessive.

Here, the testimony at trial was that Downer, an extremely active young woman whose injury was clearly the result of the automobile accident in question, had suffered disabling back pain for some three years as of the date of trial. There was a discernible injury, a compression fracture of one of the vertebrae. She admitted she did not continue seeing the doctor, but stated that was because she felt there was nothing more he could do for her, especially since she disliked taking prescription medication for her pain. Downer did not produce evidence of lost wages because she and her husband own and manage their own business; however, she did testify that she was still unable at times to help out at the restaurant. Further, Downer presented descriptive evidence of the pain and suffering to which she was subjected as a result of the accident and her inability to engage in her favorite activities as a result of the disabling pain. “The sole measure of damages for pain and suffering is the enlightened conscience of fair and impartial jurors.” Stubbs v. Harmon, 226 Ga. App. 631, 633 (487 SE2d 91) (1997). Accordingly, in reviewing the evidence of pain, inability to work and the loss of her active lifestyle, we cannot say that the verdict was so excessive as to be against the preponderance of the evidence.

2. Next, Richardson contends the trial court erred in failing to give her requested charge on the statutory prohibition against speculation in awarding present and future damages. The charge Richardson requested was as follows: “I charge that you would not be authorized to award damages to the plaintiff upon the basis of mere speculation, or possibility.” The court denied this request to charge and instead gave the pattern charge as follows: “If you find that plaintiffs pain and suffering will continue into the future, you should award damages for such future pain and suffering as you believe plaintiff will endure.”

During the charge conference, the trial court asked Richardson’s counsel where the authority for the requested charge came from and counsel responded that it was from OCGA § 51-12-8. This Code section reads as follows: “If the damage incurred by the plaintiff is only the imaginary or possible result of a tortious act or if other and contingent circumstances preponderate in causing the injury, such damage is too remote to be the basis of recovery against the wrongdoer.” OCGA § 51-12-8.

This Code section does not apply to the evidence in this case. The only evidence at trial was that Downer’s injuries were received in the accident in which Richardson admitted she was negligent. There was no evidence of any other cause of Downer’s injury. Accordingly, this enumeration of error is totally without merit and the trial court did not err in refusing to give the requested charge.

Decided May 21, 1998

Reconsideration denied June 3, 1998.

Bonnie K. Cole, Michael H. Cummings II, for appellant.

James E. Peugh, for appellee.

3. Richardson also claims one of the jurors failed to answer truthfully a material question during voir dire. In support of this enumeration, she has attached to her brief the affidavits of one of the jurors and of trial counsel.

A brief or an attachment thereto cannot be used as a means of adding evidence to the record and may not support a ruling by this Court. CNL Ins. America v. Moreland, 226 Ga. App. 57, 58 (485 SE2d 515) (1997). Because these affidavits are not part of the record below, we are unable to consider them. Champion Management Assoc. v. McGahee, 227 Ga. App. 895, 896 (490 SE2d 215) (1997).

Judgment affirmed.

McMurray, P. J, and Blackburn, J., concur.