author: Johnson, Presiding Judge.

text:
    A98A1181.
    KDS PROPERTIES, INC. et al. v. SIMS.
    (506 SE2d 903)
   Johnson, Presiding Judge.

This suit arises from a petition for injunction and complaint for damages resulting from an alleged trespass onto Sims’ land by KDS Properties, Inc. (KDS), a Georgia corporation, and Douglas Hinton. Hinton is the principal stockholder, president, vice-president, secretary, treasurer, and director of KDS. Following a hearing on a motion for interlocutory injunction, the trial court appointed the county surveyor to conduct an independent boundary line survey. After walking the property line and observing the monuments at issue, the county surveyor adopted the findings of Sims’ surveyor and submitted his report to the trial court. After reviewing the surveyor’s report and other evidence, the trial court granted Sims’ motion for an interlocutory injunction to temporarily restrain KDS from certain construction-type activities on Sims’ land.

At trial, the jury returned a special verdict, and judgment was entered which, inter alia: (i) established the true boundary line dividing Sims’ and Hinton’s property in accordance with a plat survey admitted in evidence as P-3-A; (ii) awarded $16,722.50 in damages to Sims against KDS for trespass; (iii) awarded $36,864.94 in attorney fees and litigation expenses to Sims against KDS; (iv) awarded $1 in punitive damages to Sims against Hinton for trespass; and (v) restrained and enjoined KDS and Hinton from grading, bulldozing, leveling, cutting, destroying, or otherwise harming any of the trees and vegetation of the property. KDS and Hinton filed a motion for judgment notwithstanding the verdict or, in the alternative, a motion for new trial. The motion for new trial was denied. The motion for j.n.o.v. was granted as to the punitive damage award against Hinton, but was otherwise denied. KDS and Hinton appeal from the judgment entered in favor of Otis Sims.

1. KDS and Hinton assert the trial court erred in striking that portion of the judgment pertaining to punitive damages because “the verdict and judgment against Appellant Hinton for punitive damages but no general damages was a void verdict” and the judgment had to be set aside in its entirety. They cite H & H Subs v. Lim, 213 Ga. App. 371 (444 SE2d 404) (1994) in support of their argument.

As a general rule, a verdict which is contradictory and repugnant is void, and no valid judgment can be entered thereon. A judgment entered on such a verdict will be set aside. The entry of such a judgment is a ground for granting a new trial. H & H Subs, supra at 372 (1). The verdict in this case, however, is substantially different from the verdict in H & H Subs. There the verdict had numerous defects, and this Court could provide no reasonable construction to uphold the verdict.

As to the trespass claim, the jury reached a verdict in favor of Hinton by awarding no compensatory damages against him. See LDS Social Svcs. Corp. v. Richins, 191 Ga. App. 695, 698 (2) (382 SE2d 607) (1989). No inconsistency in the verdict arises merely by holding KDS liable for the trespass claim while exonerating Hinton. The verdict, however, is inconsistent as to Hinton because he cannot be held liable for punitive damages when the jury did not award compensatory damages against him. This sole inconsistency was readily apparent on the face of the verdict, was readily recognized at trial by the parties and the trial court, and was easily separable from the remainder of the otherwise consistent verdict. The trial court remedied the inconsistency by setting aside the $1 punitive damage award, thereby protecting and effectuating the trial court’s final judgment. A trial court has the constitutional power to enter an order, regardless of its nomenclature, “as necessary ... to protect or effectuate its judgments.” Ga. Const. of 1983, Art. VI, Sec. I, Par. IV.

After the verdict was announced, the attorneys for the parties informed the trial court that the punitive damage award could not be sustained. The trial court decided not to send the issue back to the jury, after hearing the attorneys’ differing views as to remedial options. The attorney for KDS and Hinton did not object to the trial court’s ruling. Although the trial court invited the parties to put any additional arguments regarding the issue on the record, KDS and Hinton merely requested that the jury be polled and otherwise remained silent. Each juror confirmed that the verdict was the same as his or her verdict both during deliberations and at the time of announcement. The jury was then excused without objection. The parties by their conduct and silence acquiesced in the ruling of the trial court and in the dismissal of the jury without its reconsideration of the verdict. A party cannot complain of a verdict, judgment, ruling, or order that his own trial or post-trial procedure aided in causing. See Perryman v. Rosenbaum, 205 Ga. App. 784, 790 (423 SE2d 673) (1992).

2. KDS and Hinton assert that the “true boundary line” set by the jury is not supported by the evidence and violates law governing boundaries. We disagree.

The parties agreed on the location of the following two markers which are shown on all plats: (i) an iron stake locating the true point of beginning and (ii) the wagon axle or corner stake labeled “C.” It is the line between these two marker points that is in dispute. KDS and Hinton maintained that the boundary line between the properties is a straight line between the true point of beginning and point C — the two stipulated markers. Sims contended that there exists an approximate 4.289-acre offset in the boundary line; that is, the true boundary line runs from the point of beginning to a point labeled B then to a point labeled D then to a point labeled A then to point C. The jury resolved this dispute in favor of Sims. Under the “any evidence” standard of review, it cannot be said that there was insufficient evidence to support the jury’s decision. See Martin v. Patton, 225 Ga. App. 157, 160 (1) (483 SE2d 614) (1997).

Sims contends that the boundary line has been firmly established by iron pins, hedge rows, trees, a line gully, and fencing, and that his occupation of that land has been public, continuous, exclusive, uninterrupted and peaceable. The jury was instructed on the law regarding obtaining title by prescription. KDS and Hinton have enumerated no error in the charging of the jury, particularly as to boundary line determination. The jury was also correctly instructed on the following principles of law which apply to boundary determinations: (i) if the corners are established and lines are not marked, a straight line as required by plat shall be run, but an established marked line, though crooked, shall not be overruled; (ii) artificial boundaries include fences, roads, streets, and land lot lines; they are evidence of the points which landowners past or present had in mind in their contractual dealings with one another; (iii) all monuments whether natural or artificial are deemed superior to courses and distances; the superiority of monuments over metes and bounds is limited to those which are referred to in the deed itself; (iv) courses and distances occupy the lowest grade instead of the highest in the scale of evidence as to the identity of land; and (v) boundaries may be proved by hearsay. See generally OCGA § 44-4-5 (3) and (4); Martin, supra at 162-165 (2); see also Dover v. Pritchett, 251 Ga. 842, 844 (309 SE2d 804) (1984).

Sims’ surveyor testified as to the procedure used in conducting his survey. His prepared plat was submitted in evidence. His conclusions as to the boundary lines were supported both by an aerial photograph taken in 1939 and by the testimony of the court-appointed surveyor. This evidence, together with the testimony of Sammy Sims, Joann Sims Collins, and Jean Sims Smith, and documentary evidence, is sufficient to support the jury’s verdict as to the true boundary line. See generally Locke v. Vonalt, 189 Ga. App. 783, 785 (1) (377 SE2d 696) (1989).

The case of Minor v. Fincher, 213 Ga. 365 (99 SE2d 78) (1957), relied upon by KDS and Hinton is distinguishable. There the lay witness who testified gave testimony substantially in conflict with the survey.

As noted, the jury also was instructed, without objection, as to acquiring title by adverse possession or prescription. See generally OCGA §§ 44-5-161; 44-5-164. Evidence was admitted showing that for over 20 years, the Sims family maintained a chicken house within the contested acreage. The old chicken house deteriorated, and a new one was built in 1966. The Sims family kept chickens in the building until about 1989. A fence had been used as a boundary for more than 20 years on a portion of the contested property. The fence was maintained by the Sims family commencing in the early 1960s and was replaced by them in 1972 or 1973. “Acquiescence for seven years by acts or declarations of adjoining landowners shall establish a dividing line.” OCGA § 44-4-6. The jury was authorized to conclude that Sims obtained title to the contested acreage by prescription. See Bell v. Owens, 230 Ga. App. 826, 827 (1) (497 SE2d 591) (1998).

3. The trial court did not err in allowing the jury to enter an award for attorney fees and expenses of litigation against KDS under the provisions of OCGA § 13-6-11. The complaint averred and the jury found that KDS was liable for committing the intentional tort of trespass. This Court has previously held that the intentional tort of trespass will support a claim for expenses of litigation and attorney fees under OCGA § 13-6-11. The legal theory is that the intentional nature of the trespass gives rise to the bad faith necessary for such recovery. Wisenbaker v. Warren, 196 Ga. App. 551, 552 (2) (396 SE2d 528) (1990); Tanner v. Gilleland, 186 Ga. App. 377, 378 (3) (367 SE2d 257) (1988).

There was evidence that after the Sims family notified it that they claimed ownership, KDS intentionally entered and performed construction work on the land in question, including tree removal and grading. The fact that there was a dispute as to the location of the boundary line did not justify the construction work. This conduct alone was sufficient to create a jury issue as to the claim for litigation expenses. KDS elected not to pursue any form of legal recourse. It acted at its peril. See Wisenbaker, supra at 553; Tanner, supra; see also Home Ins. Co. v. Wynn, 229 Ga. App. 220, 223 (3) (493 SE2d 622) (1997).

The cases cited by KDS in support of its argument on this issue are factually distinguishable. They do not involve an intentional tort of trespass occurring after the tortfeasor has been notified that he is encroaching on property claimed by another.

4. KDS and Hinton contend that the trial court erred in failing to apportion attorney fees and litigation expenses because there was no evidence to support the award as against Hinton.

Following the charge to the jury, KDS and Hinton took exception to the charge regarding expenses of litigation on the sole ground that there was insufficient evidence as a matter of law to support a verdict in favor of Sims. This is the same general claim that KDS and Hinton asserted in a motion for directed verdict as to expenses of litigation. However, KDS and Hinton failed: (i) to submit a request to charge as to other litigation expenses, (ii) to object timely to the sufficiency of the verdict form for failing to address allocation of attorney fees and other litigation expenses, and (iii) to take a specific exception to the sufficiency of the jury charge as to allocation of attorney fees and litigation expenses. See generally Simms v. State, 223 Ga. App. 330, 332 (1) (477 SE2d 628) (1996). A party cannot ignore what he thinks to be an injustice, taking his chances on a favorable verdict, and complain later. See Kelley v. Austell Bldg. Supply, 164 Ga. App. 322, 324 (1) (297 SE2d 292) (1982).

To preserve this issue for appellate review, it should have been raised and ruled upon by the trial court before the jury was dismissed. It was not timely raised in the motion for j.n.o.v. or in the motion for new trial. “An issue not raised during the trial in any form calling for a ruling will not be considered by this court.” Sanders v. State, 134 Ga. App. 825, 826 (1) (216 SE2d 371) (1975); see Starr v. State, 229 Ga. 181, 183 (1) (190 SE2d 58) (1972); Chesser v. State, 228 Ga. App. 164, 165 (1) (a) (491 SE2d 213) (1997).

Further, prior to charging the jury, the trial court asked if the attorneys were “comfortable as far as the verdict form is concerned” regarding expenses of litigation and attorney fees. The attorneys for KDS and Hinton responded affirmatively. This response was made even though KDS and Hinton were aware that Sims’ attorney had not submitted any charge request as to how the expenses and fees were to be apportioned and that the trial court was concerned about the evidence necessary to enable the court to apportion attorney fees. A party cannot complain of a result which he aided in causing. See Perryman, supra at 790; Hawkins v. State, 195 Ga. App. 739 (2) (395 SE2d 251) (1990).

Furthermore, the jury in effect apportioned the award of attorney fees and litigation expenses when it found that Hinton, in his individual capacity, was not liable for any compensatory damages, attorney fees, or litigation expenses, but that the corporate entity, KDS, was so liable. The verdict is consistent with the jury’s implicit determination that the corporate shield protected Hinton from liability.

5. KDS and Hinton also contend the trial court erred in allowing the attorney fee award to stand as there initially was no binding fee agreement between Sims and his counsel.

OCGA § 13-6-11 does not specifically require that allowable litigation expenses be incurred pursuant to an existing oral or written contract. Such a requirement would not be compatible with existing law. Once the evidence supports a finding that a defendant has acted in bad faith, has been stubbornly litigious, or has caused unnecessary trouble and expense, as required by OCGA § 13-6-11, the jury may award reasonable attorney fees. All that remains to support such an award is evidence which establishes the reasonable hourly rate and the reasonable number of hours spent in preparing for and conducting the litigation. As discussed in Division 3, there exists evidence from which a finding of bad faith could be made.

The evidence, as construed to support the verdict and judgment, shows that this suit was brought by Otis Sims by and through his daughter and legal guardian, Jean Sims Smith. It is uncontested that the attorney’s standard hourly rate was $175 per hour. Evidence was also introduced as to the number of hours billed by Sims’ attorney. We also note that while examining the attorney regarding his fees, the attorney for KDS and Hinton made the following admission in open court: “I don’t dispute the fact that $175 is not an unreasonable rate for an attorney of your experience, and that is not an issue right here.”

The question of attorney fees under OCGA § 13-6-11 is a question for the jury. There exists some evidence to support the award. See generally Sass v. First Nat. Bank &c., 228 Ga. App. 7 (491 SE2d 76) (1997) (any evidence standard). KDS and Hinton’s fifth enumeration of error, as crafted, is without merit.

6. Sims’ motion to remand this case for a determination of the costs incurred on appeal is denied.

Decided September 16, 1998.

Edward F. Danowitz, for appellants.

Charles A. Mullinax, Glynn R. Stepp, for appellee.

Judgment affirmed.

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


source: Caselaw Access Project

author: Beasley, Judge.

license: Public Domain

text:
    A98A1418.
    WAL-MART STORES, INC. et al. v. HARRIS.
    (506 SE2d 908)
   Beasley, Judge.

We granted this discretionary appeal to determine whether an employer is responsible for temporary partial disability benefits where the employee refuses the employer’s offer of full-time suitable work and instead accepts a part-time position with another employer.

Brenda Harris, who was hired as a stocking clerk by Wal-Mart Stores, Inc. in September 1996, was injured at work on December 12. After she was released for light-duty work, Wal-Mart made such work available to her. Harris returned to Wal-Mart on January 17, 1997, but left the job after two hours because of pain and discomfort. She never returned to work at Wal-Mart. On April 14 she accepted a part-time, light-duty position as a sitter for an elderly woman.

Harris sought temporary total disability benefits for the time she was out of work until she began the sitter job plus temporary partial benefits thereafter. Following an all issues hearing, the ALJ awarded Harris temporary total disability benefits from the date of injury until the date of return to Wal-Mart. The ALJ found Harris to be capable of performing light-duty work, and that Wal-Mart has continued to offer her such work since January 17, 1997. The ALJ found Harris’s refusal of suitable light-duty work to be unjustified and denied any benefits from the day of short-lived work resumption until the day Harris accepted the sitter job. Up to this point the findings are not in dispute in this appeal. The rub comes because temporary partial disability benefits from the latter date were awarded and continue, due to Harris’s reduction in earnings in the part-time sitter job.

The appellate division upheld the award but also assessed a 15 percent penalty on the accrued temporary total disability benefits and the temporary partial disability benefits through the date of the ALJ’s award. The superior court affirmed the award based on the any evidence rule.

OCGA § 34-9-240 (a) provides that “[i]f an injured employee refuses employment procured for him or her and suitable to his or her capacity, such employee shall not be entitled to any compensation at any time during the continuance of such refusal unless in the opinion of the board such refusal was justified.” An employee’s unjustified refusal of suitable work does not forever bar compensation if the proffered work becomes unavailable, but the disqualification lasts the duration of the refusal.

Wal-Mart contends that inasmuch as it offered suitable work to Harris when she became capable of it and has never withdrawn that offer, Harris’s continued and unjustified rejection disqualifies her for any income benefits as of that date. Wal-Mart argues that it is inconsistent with the statutory intent of OCGA § 34-9-240 (a) to allow an employee to refuse an employer’s offer of full-time suitable work at a pre-injury wage, accept a part-time position with another employer instead, and require the employer to subsidize the income difference by payment of partial disability benefits. That is so. The finding of partial disability after April 14 is wholly inconsistent with the finding of no compensable disability between January 17 and April 14.

“[T]he discretion afforded the board under OCGA § 34-9-240 to determine that an employee’s refusal of proffered work is justified must relate to the physical capacity of the employee to perform the job; the employee’s ability or skill to perform the job; or factors such as geographic relocation or travel conditions which would disrupt the employee’s life.” An “employee’s refusal to accept employment must relate, in some manner, to [her] physical capacity or [her] ability to perform the job in order for [her] refusal to be justified within the meaning of OCGA § 34-9-240.” Harris’s acceptance of a part-time position with another employer thus provided no basis for avoiding or ending the statutory disqualification for benefits. The choice was hers.

As it is uncontroverted that Harris was capable of performing fight work, that Wal-Mart offered her such work at her pre-injury wage on January 17, 1997, and that Wal-Mart never withdrew that offer, the superior court erred in affirming the State Board’s determination that Harris became entitled to temporary partial disability benefits as of April 14, 1997. The employer is not liable for wage loss when there is no diminution of earning capacity.

Judgment reversed.

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

Decided September 16, 1998.

McLain & Merritt, Jeffrey E. Hickcox, Alba M. Roman, for appellants.

C. Suzette Ellis-Hoyle, for appellee.

        Universal Ceramics v. Watson, 177 Ga. App. 345, 347 (2) (339 SE2d 304) (1985); Argonaut Ins. Co. v. Marshall, 144 Ga. App. 217 (240 SE2d 767) (1977).

        City of Adel v. Wise, 261 Ga. 53, 56 (401 SE2d 522) (1991).

       Id. at 55.


author: Eldridge, Judge.

text:
    A98A2040, A98A2041.
    PROVIDENT INDEMNITY LIFE INSURANCE COMPANY et al. v. JAMES et al.; and vice versa.
    (506 SE2d 892)
   Eldridge, Judge.

Defendants/appellants Provident Indemnity Life Insurance Company and its parent company, Provident American Corporation (herein collectively referred to as “Provident”), appeal the denial of the company’s motion to dismiss a RICO claim filed by plaintiffs/ cross-appellants Doris E. James and Elmer W. James (the “James family”). The James family filed a cross-appeal which challenges the trial court’s determination that it lacked subject matter jurisdiction over their tort claims against Provident and the court’s dismissal of such claims. Because we find that the trial court had subject matter jurisdiction over all of the claims, we reverse the trial court’s dismissal of the tort claims and remand the case for further proceedings.

The complaint by the James family asserted that, in August 1995, Mark Hunter Harrison, an agent of Provident, induced them to purchase medical insurance from Provident, thereby causing the James family to cancel their existing medical insurance plan, which covered all of their pre-existing medical conditions. The James family paid premiums to Provident and, in April 1996, submitted claims for medical expenses to Provident for payment. Such claims were denied by Provident, allegedly on the basis that no benefits were available for payment of expenses resulting from the treatment of pre-existing conditions. As a result, the James family incurred substantial, unreimbursed medical expenses that would have been paid by their former insurance company if they had not cancelled their previous plans in reliance upon Harrison’s assurances that Provident would cover their pre-existing conditions.

The James family filed suit against Provident and Harrison in September 1997. Their complaint alleged that the defendants violated Georgia’s RICO statute, OCGA § 16-14-4 (a), (b), and (c). The James family also asserted that Provident (1) violated OCGA § 51-6-1 by making fraudulent representations with the intent to deceive and defraud them; (2) intentionally breached express and implied covenants of fair dealing; (3) tortiously breached their insurance contract; and (4) wrongfully interfered with their property rights. As to the tort claims, the James family requested compensatory and punitive damages, as well as attorney fees.

Provident responded and moved to dismiss the complaint for lack of subject matter jurisdiction on November 21, 1997. The trial court granted the motion as to the tort claims, but denied the motion as to the RICO claims. Both parties appeal. Held:

Case No. A98A2040

In its solé enumeration, Provident alleges that the trial court wrongfully denied its motion to dismiss the James family’s RICO claims, asserting that the claims were nonjusticiable for failure of the James family to exhaust administrative remedies prior to pursuing a civil suit. We disagree.

Under OCGA § 16-14-6 (c), “[a]ny person who is injured by reason of any violation of Code Section 16-14-4 shall have a cause of action for three times the actual damages sustained and, where appropriate, punitive damages.” See also State of Ga. v. Shearson Lehman Bros., 188 Ga. App. 120, 121 (2) (372 SE2d 276) (1988). Such plaintiff is also entitled to attorney fees and costs of litigation. OCGA § 16-14-6 (c). Further, under OCGA § 16-14-6 (a), a plaintiff may institute a civil proceeding to enjoin further violations of OCGA § 16-14-4. See OCGA § 16-14-6 (b).

In their civil complaint, the James family alleged that they were harmed when Provident acted illegally in violation of OCGA § 16-14-4. In support of such allegation, the complaint claimed that Provident repeatedly appropriated property belonging to the James family “with intent to deprive them of their property in violation of OCGA § 16-8-2 (theft by taking) . . . [and] OCGA § 16-8-3 (theft by deception).” In addition to these and numerous other allegations, the James family asserted that Provident violated the Georgia Insurance Code, OCGA § 33-6-4 (b) (1), (2), (8), and (9), and various Georgia Department of Insurance regulations.

For the purposes of this appeal, we do not have to decide whether such alleged Insurance Code violations rise to the level of a “predicate act” under RICO. See Security Life Ins. Co. v. Clark, 229 Ga. App. 593, 599 (1) (b) (494 SE2d 388) (1997); Olukoya v. American Assn. of Cab Cos., 219 Ga. App. 508, 509 (465 SE2d 715) (1995). We find that simply alleging Insurance Code violations does not transform a civil RICO complaint into a cause of action which must be pursued exclusively through administrative channels, particularly when numerous other predicate acts are alleged in the complaint, including fraud. See generally id.

Accordingly, the trial court was correct in finding that the James family was not required to exhaust all administrative remedies prior to asserting their RICO claims. Further, since there exists a possible state of facts that may be shown at trial upon which relief may be granted, then there was no error in the trial court’s refusal to dismiss the James family’s RICO claims. Maddox v. Southern Engineering Co., 216 Ga. App. 6, 7-8 (2) (453 SE2d 70) (1994).

Case No. A98A2041

The James family, as cross-appellants, assert in their sole enumeration of error that the trial court erred in dismissing their tort claims for lack of subject matter jurisdiction. We agree.

The complaint alleges that Provident was involved in a “fraudulent scheme” which involved forming a non-functioning, illusory trust so that Provident-could issue “bogus” life, health, and accident insurance policies. The James family also asserted that Provident “engaged in fraudulent and illegal ‘post-claims’ underwriting — a practice by which they do not make a reasonable investigation of the insured’s medical history . . . prior to issuing coverage,” then conduct such investigation after claims are submitted “for the purpose of ridding themselves of the insureds by drastically increasing premiums in an effort to cause non-renewal, and/or by rescinding the policy.” In addition, the complaint alleges that, in furtherance of the fraudulent scheme, Provident’s agent, Harrison, met with the James family “for the purpose of soliciting them to purchase major medical health insurance coverage.” Harrison convinced the James family to purchase Provident’s plan. Two months later, Provident mailed an insurance certificate to the family evidencing the terms of their coverage. Then, “[¡justifiably relying on the representation of Defendants that the Policy had been issued and they were covered under the [Provident] Plan,” the James family terminated their prior medical insurance coverage. However, when they submitted claims under the Provident policy, Provident “failed and refused to pay such claims, contending that benefits are not available.”

According to the complaint, as a direct result of this wrongful conduct, the James family was induced to purchase several substantial, but “worthless,” insurance policies; the family incurred significant, unreimbursed medical expenses and was left uninsured, and uninsurable, for future medical expenses; incurred substantial litigation expenses; and sustained humiliation, embarrassment, frustration, etc. Based upon these allegations, the James family requested compensatory and punitive damages, as well as litigation costs. Notably, the family did not seek equitable relief based upon allegations of Insurance Code violations as part of their tort claims.

However, the trial court, in its order ruling upon Provident’s motion to dismiss, repeatedly characterized the complaint as being “based” on violations of the Insurance Code, specifically OCGA § 33-6-4. While it is true that the complaint alleges such violations, as well as numerous other allegations of fraudulent behavior, the tort claims presented in this case are separate and distinct causes of action from an administrative proceeding directed solely at violations of the Insurance Code. Compare OCGA § 51-6-1 with OCGA § 33-6-4 (b). This conclusion is supported by the fact that it does not matter whether the James family is able to prove at trial that Provident, in fact, violated the Insurance Code, as such proof is not dispositive of the case. Other evidence, including actions by Provident’s agent, may be sufficient to establish and prove the essential elements of fraud and the other tort claims. Under such facts, the tort causes of action in this case had fully vested as a legal action and not as an administrative action, which tort actions could be brought directly in the trial court, and not by appeal from an executive branch action under the Administrative Procedures Act (“APA”).

As such, this case is clearly distinguishable from that relied upon by Provident, First Union Nat. Bank &c. v. Independent Ins. Agents &c., 197 Ga. App. 227 (398 SE2d 254) (1990), where administrative remedies were sought improperly in court. In First Union, a Georgia corporation comprised of an association of insurance agents (“the corporation”) filed suit against certain banking interests (“the banks”), seeking a judicial determination of whether the banks were violating the Insurance Code by marketing and selling certain insurance products. The corporation also sought to enjoin the banks from such activities in the future. The suit followed a determination on the same issues by the Insurance Commissioner, obtained through administrative channels pursuant to the Insurance Code, that the banks were not violating the Code; such administrative determination was not appealed by the corporation, as mandated by the APA. The banks moved to dismiss the suit based upon the court’s lack of subject matter jurisdiction as to executive branch exclusive jurisdiction, which was due to the corporation’s failure to exhaust administrative remedies prior to filing the suit for purposes of equity jurisdiction, declaratory judgment, and an appeal under the APA. The trial court denied the bank’s motion to dismiss. This Court reversed the trial court’s ruling, finding that, “[u]nder OCGA § 33-2-1 et seq., the Insurance Commissioner has exclusive authority to enforce the Insurance Code.” Id. at 228 (1). Therefore, the corporation was required to exhaust all administrative remedies unless “the remedy exacts a price which causes it to be no remedy at all.” Id. Such exhaustion of administrative remedies and appeal through the APA were the exclusive means by which the superior court could obtain jurisdiction.

First Union clearly requires that, if a party chooses to pursue administrative remedies based upon Insurance Code violations, it must exhaust such remedies before it can appeal under the APA. In the process, the party will be barred from pursuing alternative routes to court from executive branch action or inaction, i.e., when proceedings have been commenced before the Insurance Commissioner. However, this Court does not accept Provident’s broad interpretation of First Union as requiring every party that alleges damages resulting, at least in part, from an Insurance Code violation to pursue administrative relief prior to filing a civil complaint when the legal action has already vested. See OCGA §§ 33-2-25; 50-13-2 (2); 50-13-13 (a) (1); see also Parris v. State Farm Mut. Auto. Ins. Co., 229 Ga. App. 522 (494 SE2d 244) (1997) (holding that a defendant’s violation of the Insurance Code may result in tort liability when the plaintiff can demonstrate damages caused by the violation of a duty imposed by the Code); Hunnicutt v. Ga. Power Co., 168 Ga. App. 525, 526 (1) (309 SE2d 862) (1983). “The mere existence of an . . . administrative remedy does not, standing alone, afford a defendant an absolute defense to the institution of a legal action. Decisions to the effect that a failure to invoke administrative remedies precludes or renders premature a resort to the courts are based upon statutes which by express terms or necessary implication give to the administrative [agency] exclusive jurisdiction or which make the [pursuit or] exhaustion of administrative remedies a condition precedent to judicial action. A litigant is not required to [pursue] an optional administrative process before seeking redress to the courts.” (Citations and punctuation omitted; emphasis in original.) Id. With the exception of the unsupported statement in First Union, supra at 228 (1), that “the Insurance Commissioner has exclusive authority to enforce the Insurance Code,” we have found no Georgia statute or case law “from which it might be inferred that the [Insurance Commissioner] has exclusive or even primary jurisdiction” over such vested legal disputes. Hunnicutt v. Ga. Power Co., supra at 526; but see Turpeau v. Fidelity Financial Svcs., 936 FSupp. 975 (N.D. Ga. 1996) (holding that a party alleging damages that directly resulted from a violation of OCGA § 33-31-4 must exhaust administrative remedies under the Insurance Code), aff’d, 112 F3d 1173 (11th Cir. 1997). Cf. Mayor &c. of Savannah v. Savannah Cigarette &c., 267 Ga. 173, 174 (476 SE2d 581) (1996) (reaffirming a previous Supreme Court ruling that a party challenging rezoning must petition local authorities for relief prior to asking a court of equity to declare a zoning ordinance unconstitutional); Bailey v. Wilkes, 162 Ga. App. 410, 412-414 (291 SE2d 418) (1982) (determining that the legislature specifically established that the State Personnel Board had “special knowledge and experience” and, therefore, primary jurisdiction to resolve employee grievances and other employment controversies). Such cases deal with executive branch action or inaction, which are not appealable until there is an exhaustion of administrative remedies, which is a condition precedent to subject matter jurisdiction. Absent exhaustion of administrative remedies, no legal or equitable action vests.

Decided September 16, 1998

Troutman Sanders, Herbert D. Shellhouse, Norman L. Underwood, Alan W. Loeffler, Blasingame, Burch, Garrard, Bryant & Ashley, Andrew J. Hill III, for appellants.

In summary, the determination of whether a claim must first be brought through administrative channels still depends upon the nature of the claim and the requested relief. In contrast to the facts presented in First Union, the James family alleged in their complaint that Provident committed various torts against them and that they were damaged thereby. These tort claims only incidentally involve violations of the Insurance Code and are not dependent upon a finding of such violations.

Accordingly, the James family was not required to seek administrative remedies based upon alleged underlying violations of the Insurance Code prior to filing a civil suit in the Superior Court of Clarke County. The trial court erred in granting Provident’s OCGA § 9-11-12 (b) (1) motion to dismiss for lack of subject matter jurisdiction as to the tort claims.

Judgment affirmed in part and reversed in part.

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

Hudson & Montgomery, James E. Hudson, William S. Stone, Kevin jR. Dean, for appellees.

       Georgia Racketeer Influenced & Corrupt Organizations Act, OCGA § 16-14-1 et seq.

       Although named as a defendant in the complaint, Harrison did not appeal the trial court’s order.

       An appeal from the Insurance Commissioner, in the executive branch, comes to the superior court under the Administrative Procedures Act, OCGA § 50-13-19 (a), only after an exhaustion of administrative procedures. A declaratory judgment action, under OCGA § 9-4-1 et seq., will not lie where the cause of action has already vested, as in this case. Equity will not lie if there exists any adequate remedy at law, i.e., unexhausted administrative remedies.

       Notably, an administrative procedure would not toll the running of the statute of limitation upon any vested tort or contract action.


text:
    A98A2148.
    DeKALB COUNTY v. POST APARTMENT HOMES, L.P.
    (506 SE2d 899)
   Eldridge, Judge.

On January 7, 1997, Post Apartment Homes, L.P, plaintiffappellee (“Post”), purchased 32.59 acres in DeKalb County. Previously, on January 24, 1996, DeKalb County, defendant-appellant, through its Board of Commissioners, passed an ordinance rezoning 28 acres of the property to RM-HD and C-l zoning classifications, high-density, multi-family zoning classifications that are subject to development conditions.

Prior to the rezoning, Post negotiated the conditions with a group of neighbors on Arborvista Drive, whose homes backed up to the Post development. The neighbors were concerned with the southeast corner of Post’s property, because there was a dry creek bed, possible wetlands, and a ravine. Initially, Post agreed to construct a 50-foot buffer along the entire eastern boundary line; however, to satisfy concerns by the neighbors, Post agreed to create behind the initial buffer, at the southeast corner, an 80-foot “no build” box behind some of the Arborvista homes, total 130-foot distance from the eastern property line, and an 80-foot by 140-foot space for a “green space” and detention pond in the southeast corner, partially in the “no build” box. Such special rezoning condition was expressed as follows: “no less than a 130-foot setback will exist between all buildings or parking spaces and [the] shared boundary line.” When William and Alicia Gelford, owners of 1216 Arborvista Drive, expressed concern, Post agreed to extend the “no build” box behind their property as well. The rezoning application showed that buildings would abut the “no build” box and that the ravine would not be preserved.

On February 2, 1997, Post filed an application and plans with DeKalb County to obtain a development permit, and on June 25, 1997, DeKalb County issued Post the development permit. On May 29, 1997, Post filed an application and plans with DeKalb County to obtain a building permit, and on July 23, 1997, DeKalb County issued the building permit. The plans showed a building northeast of the Gelford property, which was outside the “no build” box, but within 130 feet measured from an arch from the northwest corner of the Gelford property.

On September 23, 1997, Post commenced construction of the building, which contained 24 apartment units. On January 23, 1998, the Gelfords complained to the Director of Public Works for DeKalb County that the construction of the building fell within 130 feet of an arch from the northwestern corner of the Gelford property. On January 29, 1998, DeKalb County told Post to stop construction on the building until a “reasonable solution” could be reached with the Gel-fords. Post representatives met with the Gelfords, and Mrs. Gelford demanded that two floors be removed from the building already constructed and that she be paid $500,000.

On February 12, 1998, Post brought a declaratory action and sought injunctive relief to prevent DeKalb County from interfering with its rights. DeKalb County answered. DeKalb County admitted in judicio “that the DeKalb County Board of Commissioners rezoned the subject property on January 24,1996, to the RM-HD and C-l zoning classifications.” DeKalb County also admitted issuing the development and building permits. A hearing was held on April 20, 1998, and testimony and evidence were given; however, the trial court ruled against DeKalb County as a matter of law as to the construction of the rezoning ordinance and for Post that the 130-foot setback was a straight line from the boundary line as a “no build” box rather than as an arch measured from any point along the property line. DeKalb County timely filed its notice of appeal.

1. DeKalb County enumerates as error that the trial court erred in ruling that plaintiff can build within the 130-foot arch at the Gelford property line. We do not agree.

“Since statutes or ordinances which restrict an owner’s right to freely use his property for any lawful purpose are in derogation of the common law, they must be strictly construed and never extended beyond their plain and explicit terms. [Cits.]” Duncan v. Entrekin, 211 Ga. 311, 312 (85 SE2d 771) (1955); accord Fayette County v. Seagraves, 245 Ga. 196, 197-198 (264 SE2d 13) (1980). Since the exercise of police power in regulating the use of land infringes upon the landowner’s right to its unfettered use of the land, then such regulation of land use is in derogation of common law, requiring strict construction against the county and liberal construction in favor of the landowner. See Harrison v. City of Clayton, 261 Ga. 513 (407 SE2d 731) (1991); Glynn County v. Palmatary, 247 Ga. 570, 574 (3) (277 SE2d 665) (1981); City of Douglasville v. Willows, Inc., 236 Ga. 488, 490 (3) (224 SE2d 363) (1976); Tuggle v. Manning, 224 Ga. 29, 32-33 (159 SE2d 703) (1968). “Georgia follows a majority of states in holding that zoning ordinances should be strictly construed in favor of the property owner, and ambiguities in the language of zoning ordinances should be resolved in favor of the free use of property.” Fayette County v. Seagraves, supra at 197; accord Glynn County v. Palmatary, supra at 574; City of Cordele v. Hill, 250 Ga. 628 (300 SE2d 161) (1983). Therefore, any ambiguity or uncertainty in a land regulation ordinance must be construed in favor of the free use of the land. Bd. of Commrs. of Henry County v. Welch, 253 Ga. 682 (324 SE2d 178) (1985); City of Cordele v. Hill, supra; Fayette County v. Seagraves, supra.

“The construction of a zoning ordinance, under the facts, is a question of law for the courts, and in construing it the cardinal rule is to ascertain and give effect to the intention of the lawmaking body. [Cit.]” Ervin Co. v. Brown, 228 Ga. 14, 15 (183 SE2d 743) (1971). “In determining the intent of the defendant commission in rezoning the subject property, all of the commission’s words used to effect this revision should be given due weight and meaning; however awkward and unusual the language may be, the legislative intent manifested by it must be ascertained and enforced as the law. [Cits.]” Id. at 15. Thus, testimony by county officers cannot change the plain meaning of an unambiguous ordinance; “[n]either should the county' be allowed to extend the plain, objective intent of [conditions] by testimony that county officers subjectively meant for it to attach to [more than what it plainly stated]. [Cit.]” Russell v. Smokerise Bath & Racquet Club, 243 Ga. 724 (256 SE2d 457) (1979); see also City of Douglasville v. Willows, Inc., supra at 490; Taylor v. Shetzen, 212 Ga. 101, 102 (4) (90 SE2d 572) (1955). “If any such restriction^ i.e., setback distance measured by an arch from any point on the eastern property line,] was intended, it should have been clearly expressed in the ordinance. [Cits.]” City of Douglasville v. Willows, Inc., supra at 490.

The rezoning ordinance states in pertinent part: “no less than 130-feet setback will exist between all buildings or parking spaces and [the] shared boundary line.” A setback line describes a line parallel to a boundary line. The rezoning ordinance plainly describes two equal parallel lines, i.e., the shared boundary line and the setback line, 130 feet away. Since building or parking could not occupy the space in between these two lines, then this describes a rectangle, i.e., a box. When the shared boundary line stops, then the setback line stops, because the ordinance does not describe an arch but describes parallel lines that never intersect; an arch would intersect the shared boundary line. The “no build box” plainly does not include within its meaning both a rectangle and an “arch,” because a rectangle is complete in itself and is an entirely different geometric configuration from an arch, which is dependent upon two undefined points to be determined as the beginning and the end points.

Therefore, “[w]here the language of the [ordinance] is plain and unambiguous, and does not lead to contradictory, absurd, or wholly impracticable results, it is the sole evidence of legislative intent and must be construed according to its terms. [Cits.]” Evans v. Dept. of Transp., 226 Ga. App. 74, 75 (1) (485 SE2d 243) (1997). Thus, the meaning of the restriction “no build box” cannot be reasonably construed to include the contradictory meaning of “arch.”

Corey Outdoor Advertising v. Bd. of Zoning Adjustment &c. of Atlanta, 254 Ga. 221, 222 (1) (327 SE2d 178) (1985), is inapplicable, factually and legally, to this case. In that case, the nature and purpose of the particular ordinance in question were the regulation of signs by size and location in a historic district to prevent visual pollution, which gave a greater public interest to the City of Atlanta’s exercise of police powers than a mere new sign erection. Therefore, under the peculiar language of that sign ordinance, measurement from the nearest portion of the sign to the nearest property line of the historic site was clear, plain, and appropriate, rather than to follow the street line as urged by Corey, the appellant, which would cause the sign to fall outside the prohibited sign-free perimeter of the site. That case did not stand for the legal proposition that all measurements in an ordinance should be made in such fashion. The purpose of that ordinance was to preserve the historic vista of Rhodes Hall from being blocked by a new, giant, three-directional billboard on top of Zesto’s at Peachtree and Spring Streets that would obstruct the view of Rhodes Hall in one direction and act as a background for it from the other.

This rezoning ordinance is subject to the canons of statutory construction like any other statute as a question of law. Risser v. City of Thomasville, 248 Ga. 866 (286 SE2d 727) (1982); City of Buchanan v. Pope, 222 Ga. App. 716, 717 (476 SE2d 53) (1996); First Union Nat. Bank of Ga. v. Collins, 221 Ga. App. 442, 444 (471 SE2d 892) (1996); Hogan v. DeKalb County, 196 Ga. App. 728, 729 (397 SE2d 16) (1990). All parts of an ordinance relating to the same subject matter must be harmonized to reconcile conflicts, and any section of an ordinance must be construed in relation to the whole ordinance of which it is a part. Gilbert v. Richardson, 264 Ga. 744, 747-748 (3) (452 SE2d 476) (1994); Allison v. Domain, 158 Ga. App. 542, 544 (281 SE2d 299) (1981); Head v. H. J. Russell Constr. Co., 152 Ga. App. 864, 865 (264 SE2d 313) (1980). Meaning must be given “to each part of the statute and to avoid constructions which render a portion of the statute mere surplusage. [Cits.]” Moritz v. Orkin Exterminating Co., 215 Ga. App. 255, 256-257 (450 SE2d 233) (1994); see also Porter v. Food Giant, 198 Ga. App. 736, 738 (1) (402 SE2d 766) (1991). “Language in an ordinance will be given a reasonable and sensible interpretation in order to carry out legislative intent and render an ordinance valid. [Cits.]” Mayor &c. of Hapeville v. Anderson, 246 Ga. 786, 787 (272 SE2d 713) (1980); see also State v. Nix, 220 Ga. App. 651, 652 (1) (469 SE2d 497) (1996). Absent a definition within the ordinance, a reasonable and appropriate definition must be provided by the court. Bell v. Barrett, 241 Ga. 103, 104 (243 SE2d 40) (1978). Thus, the trial court did not err in the construction of the special condition of the rezoning ordinance.

Decided September 16, 1998

Jenkins & Nelson, Kirk R. Fjelstul, John I. Nichols, for appellant.

Glass, McCullough, Sherrill & Harrold, Kathryn M. Zickert, Shea E. Roberts, Donna J. Nance, for appellee.

David D. Blum, amicus curiae.

2. Since the meaning of the ordinance can be determined upon the face of the ordinance without resort to evidence to determine intent, then the second enumeration of error is not addressed as moot.

Judgment affirmed.

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


author: Andrews, Chief Judge.

text:
    A98A1046.
    HAVRON v. THE STATE.
    (506 SE2d 421)
   Andrews, Chief Judge.

Gerald William Havron appeals from the judgment of conviction entered on jury verdicts finding him guilty of aggravated child molestation and child molestation.

1. The State presented testimony from the victim, Havron’s four-year-old stepdaughter, in support of the charges. The child, who was five years old at the time of the trial, testified that on one occasion Havron placed his penis in her mouth, and on one other occasion she rubbed lotion on Havron’s penis after he requested that she do so. OCGA § 16-6-4 (a), (c). The State also presented a videotaped statement and two audio taped statements made by the child.

The videotaped statement was made to Department of Family & Children Services (DFACS) caseworkers on February 13, 1996, when the child was four years old. In the statement the child called Havron’s penis his “do-do” and stated how his do-do looked. The child further stated that she had felt his do-do with her hand about eight times; that Havron put his hand behind her head and wanted her to put her mouth on his do-do and suck it; that she did put her mouth on his do-do; that the do-do was hard at the time, and that it tasted like flowers.

The first audio taped statement was made on May 2, 1996, to Gwinnett County police and a DFACS caseworker when the child was four years old. In that statement, the child stated that her mother told her not to talk about and to forget about what she had previously said in the videotaped statement. When asked about what she had said in the earlier videotaped statement, the child responded that, “Well, all that stuff was a lie.” When asked if what she said in the earlier statement really happened, the child responded, “I don’t know.” The child also stated that what she had told about in the earlier statement was “some really bad stuff” and that she wanted those things to stop. Later in the interview, the child said that she told the truth in the earlier videotaped statement.

On June 18, 1996, the child gave another audio taped statement to the same persons who conducted the May 2, 1996 interview. This time the child, who was still four years old, stated that Havron got her “to suck his private part” four times. The child stated that the private part felt like soap, was hard, and tasted like bananas. She further stated that “yellow stuff” came out of his private part into her mouth.

Havron did not testify and presented no evidence in his defense.

Although the evidence showed that the child made inconsistent statements about the acts of molestation, the credibility of the child was for determination by the jury, which chose to believe the child’s statements that the charged acts of molestation occurred. Cofield v. State, 216 Ga. App. 623, 625 (455 SE2d 342) (1995). This Court does not re-weigh the evidence or determine the credibility of witnesses, but considers only the sufficiency of the evidence. Id. The evidence was sufficient for a rational trier of fact to find Havron guilty of the charged offenses beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Havron claims the trial court erred by denying his motion for a mistrial based on his claim that the prosecutor improperly commented in the opening statement on his right to remain silent and not testify.

In concluding his opening statement on the evidence the State expected to show in support of the charges, the prosecutor stated to the jury that, “[Yjou’ve got to look at it yourself and say do I believe [the victim] or do I believe the Defendant.” Defense counsel objected and moved for a mistrial on the basis that the prosecutor improperly commented on the defendant’s right not to testify. The prosecutor responded that the comment was meant to remind the jurors that their duty was to judge the credibility of the victim against the defendant’s plea of not guilty, and was not intended as a comment on any failure by the defendant to testify.

In Ranger v. State, 249 Ga. 315, 319 (290 SE2d 63) (1982), the Supreme Court concluded that to reverse for an improper comment by the prosecutor related to the defendant’s failure to testify, one of two things must be found: (1) that the prosecutor intended to comment upon the defendant’s failure to testify, or (2) that the remark was of such a character that the jury would naturally and necessarily take it to be a comment on the defendant’s failure to testify. Given the indirect character of the comment at issue, the prosecutor’s explanation for the remark, and the fact that it was given in the opening statement at a time prior to the presentation of any evidence in the case, we conclude under the Ranger v. State test that there was no manifest intent by the prosecutor to comment on the defendant’s failure to testify, and that the jury would not necessarily take it as such an improper comment. Accordingly, we find no error.

3. Havron contends the trial court erred by refusing to give the jury the following charge taken from the Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, p. 17 (2nd ed. 1991), as amended (published by the Council of Superior Court Judges of Georgia): “One of your first duties in the jury room will be to select one of your number to act as foreperson, who will preside over your deliberations and who will sign the verdict to which all twelve of you freely and voluntarily agree. You should start your deliberations with an open mind. Consult with one another and consider each other’s views. Each of you must decide this case for yourself, but you should do so only after a discussion and consideration of the case with your fellow jurors. Do not hesitate to change an opinion if convinced that it is wrong. However, you should never surrender an honest opinion in order to be congenial or to reach a verdict solely because of the opinions of the other jurors.”

Although the above instructions might properly have been given at the option of the trial court, there was no error in the refusal of the trial court to give them. The jury was properly charged as to the State’s burden of proof and as to the necessity of reaching a unanimous verdict. Moreover, since this was not a case where the trial court was charging a split jury to encourage a verdict, there was nothing in the charge given to the jury that could be construed as coercing the jury to reach a unanimous verdict or that could otherwise have tended to cause a juror to surrender his or her honest opinion merely for the purpose of reaching a unanimous verdict or to appease other jurors. Therefore, the requested charge was not necessary to correct any such coercive influence. Adams v. State, 255 Ga. 356, 358-359 (338 SE2d 860) (1986); Wright v. State, 199 Ga. App. 718, 720-721 (405 SE2d 757) (1991); compare Foster v. State, 240 Ga. 858, 859-860 (242 SE2d 600) (1978) (not error to give such charge).

4. During deliberations, the jury requested that the child’s videotaped statement be replayed. The trial court replayed the videotaped statement for the jury in open court and overruled Havron’s objection that the jury should not be allowed to review the videotaped statement again without also rehearing the child’s May 2 audio taped statement. The issue is whether the trial court properly allowed the jury to review only the videotaped statement that it specifically requested, or whether the trial court was also required to replay the May 2 statement to the jury to ensure that no injustice was worked by virtue of undue prominence given to the evidence requested by the jury.

“It has been recognized for more than 100 years that it is permissible for the trial judge, in his discretion, to permit the jury at their instigation to rehear requested parts of the evidence after they have retired and begun deliberations. . . . Our previous decisions have indicated, and we now make plain, that the jury should be permitted to limit what they rehear to what they desire to rehear, absent special circumstances which might work an injustice.” (Citations omitted.) Byrd v. State, 237 Ga. 781, 782-783 (229 SE2d 631) (1976); accord American Bar Association, Standards for Criminal Justice, 2nd ed., 1986 Supp., Vol. III, Trial by Jury, Standard 15-4.2; see also Wilkerson v. State, 165 Ga. App. 14 (299 SE2d 67) (1983); Barrett v. State, 192 Ga. App. 705, 706-707 (385 SE2d 785) (1989); Ware v. State, 191 Ga. App. 896, 897 (383 SE2d 368) (1989) (no special circumstances which required the trial court to replay cross-examination testimony along with the replay of direct examination testimony requested by the jury after deliberations had begun).

In the May 2 statement, the child made contradictory and inconsistent statements, first stating that the earlier videotaped statement was false but later stating that she told the truth in the videotaped statement. Considering the importance of the child’s credibility under the circumstances of this case, the better practice would have been to grant Havron’s request for replay of the May 2 statement along with the videotaped statement requested by the jury. Compare Byrd and Wilkerson, supra. Nevertheless, we conclude that the trial court’s refusal to replay the May 2 statement, which was not requested by the jury, was not an abuse of discretion nor did it work an injustice requiring reversal of the conviction.

There is no basis for concluding that the replay of the videotape evidence so unduly emphasized this evidence that Havron was prejudiced or denied a fair trial. Before the videotaped statement was replayed to the jury, the trial judge cautioned the jury that “when you do have testimony replayed in this manner, please recall all the other testimony that you’ve heard at trial in making your decision.” See Evans v. State, 148 Ga. App. 422, 423-424 (251 SE2d 325) (1978); Brown v. State, 161 Ga. App. 544, 545-546 (288 SE2d 882) (1982); Akers v. State, 179 Ga. App. 529, 530-531 (346 SE2d 861) (1986) (approving the use of cautionary instructions against undue emphasis on replayed testimony). Moreover, “[i]f... a jury is to be considered intelligent enough to be entrusted with powers of decision, it must be assumed they have sense enough to ask to have their memories stimulated or refreshed only as to those portions of the testimony about which they are in doubt or. disagreement.” State v. Wolf, 207 A2d 670, 675-676 (N.J. 1965). A jury’s request that testimony be replayed to refresh their memories is an indication that there is already an emphasis during deliberations on the requested evidence, so it is unlikely under most circumstances that a replay of such evidence would add emphasis not already present or work an injustice requiring a new trial. United States v. Campbell, 138 FSupp. 344, 347 (N.D. Iowa 1956).

Decided September 4, 1998

Reconsideration denied September 17, 1998.

Edwin J. Wilson, for appellant.

Daniel J. Porter, District Attorney, Nancy J. Dupree, Assistant District Attorney, for appellee.

Judgment affirmed.

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


text:
    A98A0802.
    JIMERSON v. REPUBLIC LAND & INVESTMENT COMPANY, INC. et al.
    (506 SE2d 920)
   Johnson, Presiding Judge.

Lois Jimerson, individually and as executrix of the estate of Hubert Anthony, appeals the order of the superior court granting summary judgment on behalf of Republic Land & Investment Company, Inc. and Richard Katz, individually and as president of Republic.

On May 3, 1990, Hubert Anthony died, leaving his house as his only asset. He was survived by his wife, Mary Anthony, and his only daughter, Lois Jimerson. Mr. Anthony left a will naming his wife as his sole heir and excluding his daughter, Jimerson, from any inheritance. Ms. Anthony was appointed executrix of the estate. On May 10,1991, Ms. Anthony entered a roofing and home improvement contract with Precise Construction Company. To obtain necessary financing, she signed an installment note and deed to secure debt in favor of Precise. The deed contains a grantor’s covenant by Ms. Anthony that she has good and perfect fee simple title in the property.

Ms. Anthony subsequently offered the will into probate. Although she was aware that Jimerson lived at the same address and worked in the same place in Atlanta for over 17 years, she signed a default certificate in effect attesting that Jimerson’s whereabouts were unknown. Jimerson was not given actual notice of the pending probate and estate administration. On July 17, 1991, the Fulton County Probate Court entered a final order admitting the will to probate. On July 23, 1991, Precise assigned the deed to secure debt to Republic. Ms. Anthony made only three of eighty-four required payments under the installment note and was in default. On August 15, 1991, Ms. Anthony, as executrix, executed a deed conveying the premises to herself in fee simple as contemplated by her husband’s will.

After Ms. Anthony’s death in 1993, Jimerson learned of the probate action. In April 1994, Jimerson filed a motion to set aside and vacate probate. This motion remains pending before the probate court, and has not been further prosecuted.

In May 1994, Republic foreclosed on the property at issue and purchased it at the foreclosure sale. In October 1994, Jimerson was appointed as the successor executrix to her father’s estate. Due to the foreclosure, no estate assets remained. Jimerson then filed suit in superior court against Republic and Richard Katz, in his individual capacity and as president of Republic, seeking to set aside the foreclosure of the property. Although this pleading was captioned as a complaint, Jimerson contends on appeal that it was a petition in equity to set aside the foreclosure.

Jimerson filed a motion for summary judgment in superior court. At a hearing on the motion, Jimerson’s counsel asserted the superior court was not being asked to set aside the probate and acquiesced in the superior court’s ruling that it did not have such authority. Rather, Jimerson contended that the will was fraudulently admitted to probate, and that Ms. Anthony gave the deed to secure debt before acquiring fee simple title to the house and before the estate had been probated. Thus, Jimerson asserted, the superior court should set aside the foreclosure even though the probate court’s final order remained in full force and effect. The superior court denied Jimerson’s summary judgment motion. Republic and Katz subsequently filed a motion for summary judgment which the court granted.

1. This Court has appellate jurisdiction over this case. Ga. Const. of 1983, Art. VI, Sec. V, Par. Ill; compare Grebel v. Prince, 232 Ga. App. 361, 364 (501 SE2d 538) (1998).

2. Summary judgment is appropriate where there exists no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). In 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. Moore v. Goldome Credit Corp., 187 Ga. App. 594, 595-596 (370 SE2d 843) (1988).

3. Jimerson asserts that at the time Ms. Anthony executed the deed to secure debt she did not own the property in fee simple absolute but, at most, had only a one-half interest in the property which she shared with Jimerson.

Hubert Anthony did not die intestate. Mary Anthony was the sole beneficiary under his will. Regardless of the property interest vested in Ms. Anthony at the time the deed was executed, Jimerson was not vested with either a legal or an equitable interest in the property. Moreover, although Jimerson contends the probate proceeding was invalid because of lack of required notice, she has elected not to contest the validity of the will in the probate court before attempting to set aside the foreclosure.

At the time the deed to secure debt was executed, Mary Anthony was both the executrix under the will and the sole beneficiary. The will gave her all of the property of the estate. “In the testamentary dispositions of realty, upon the death of the owner of realty, the devisees have an inchoate title in the realty which is perfected when the executor assents to the devise. This interest of a devisee is an assignable property right. It can be the subject of a voluntary conveyance.” (Citations and punctuation omitted.) Williams v. Williams, 236 Ga. 133, 135 (223 SE2d 109) (1976). A voluntary conveyance can be executed prior to the assent of the executrix. When the executrix later assents to the devise, the perfected title inures to the benefit of the grantee of the conveyance deed or his assignee rather than the devisee-grantor. See Walker v. Horton, 184 Ga. 429 (191 SE 462) (1937); Jenkins v. United States, 428 F2d 538, 548 (9) (5th Cir. 1970); compare Todd v. Williford, 169 Ga. 543, 549 (5) (150 SE 912) (1929) (grantor’s subsequently acquired interest immediately inures to benefit of grantee).

Mary Anthony possessed an inchoate title to the realty at the time she executed the deed to secure debt. Jenkins, supra at 548 (9). When subsequently, as executrix, she conveyed the realty to herself in fee simple and assented to the conveyance, her ownership interest therein was perfected. See Oliver v. Irvin, 219 Ga. 647, 648 (1) (135 SE2d 376) (1964); Jenkins, supra at 548 (8). At the time she, as executrix, conveyed the property to herself and assented to the conveyance, the final order of the probate court was in full force and effect. Accordingly, by operation of law, she obtained good and perfect fee simple title to the property which immediately vested in Republic and perfected the ownership interest which Precise assigned to Republic. See generally Walker, supra; Jenkins, supra; Todd, supra. This holding is consistent with the equitable principle that equity regards as done that which ought to be done. OCGA § 23-1-8. As between the parties, Republic has the superior equitable interest and therefore should prevail. OCGA § 23-1-11. As Republic had good and perfect title in fee simple to convey at the foreclosure sale and as the final order of the probate court has not been set aside, there exists no valid grounds to set aside the foreclosure.

Decided September 17, 1998.

Jones & Associates, Joseph Jones, Jr., Saudia L. Crawford, for appellant.

Bovis, Kyle & Burch, William S. Allred, C. Sam Thomas, for appellees.

Unlike the circumstances attendant in Lee v. Lee, 260 Ga. 356 (392 SE2d 870) (1990), this is not a case where equity mandates interference by the superior court in the administration of the estate so as to prevent an unwarranted danger of loss or other injury to Jimerson’s rights or to fully protect the rights of the parties in interest. The superior court did not abuse its discretion in electing not to interfere either directly or indirectly with the probate court’s administration and probate of the estate.

A grant or a denial of summary judgment must be affirmed if it is right for any reason. Gibbs v. Dodson, 229 Ga. App. 64, 69 (2) (492 SE2d 923) (1997); Malaga Mgmt. Co. v. John Deere Co., 208 Ga. App. 764, 767 (5) (431 SE2d 746) (1993). The trial court’s grant of summary judgment to Republic is affirmed.

Judgment affirmed.

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


text:
    A98A1158.
    GREAT WESTERN BANK et al. v. SOUTHEASTERN BANK.
    (507 SE2d 191)
   Beasley, Judge.

Southeastern Bank filed this action for abusive litigation against Great Western Bank, and against the attorneys who represented Great Western, in its suit against Southeastern in the United States District Court for the Southern District of Georgia. Defendants moved to dismiss on the ground that a state action for abusive litigation may not be brought where the plaintiff had the remedy of Federal Rule of Civil Procedure 11 sanctions available in underlying federal litigation. We granted defendants’ application for interlocutory appeal from the trial court’s denial of their motion.

In the prior action in federal court based on diversity of citizenship, Great Western charged an automobile dealership and its owners with violations of the state and federal RICO statutes as a result of a check-kiting scheme carried on between accounts at Great West-em and Southeastern. Southeastern was added as a defendant based on allegations that it had participated in the scheme. Southeastern provided notice that it intended to pursue remedies under Rule 11 and the Georgia abusive litigation statute if the claims against it were not withdrawn. Southeastern’s motion to dismiss was later granted. Rather than seeking relief under Rule 11, it turned to the state court and invoked state law.

Two essential questions are raised: (1) Did the Georgia legislature intend our abusive litigation statute to be applied to federal lawsuits? (2) Did the United States Congress intend Rule 11 and other federal statutes to be the exclusive remedy for the abusive assertion of federal claims in federal courts? We begin our analysis by reviewing various state and federal court decisions, statutes, and rules relating to abusive litigation.

The 1989 enactment of this state’s abusive litigation statute was preceded by the passage of OCGA § 9-15-14 in 1986 and the Supreme Court of Georgia decision in Yost v. Torok later the same year. OCGA § 9-15-14 provides for an award of attorney fees and expenses of litigation where there is a complete absence of factual or legal support for a claim, defense or other position or where an attorney or party brought or defended an action that lacked substantial justification. By its terms, OCGA § 9-15-14 only applies to civil actions brought in courts of record in this state.

Shortly before the effective date of OCGA § 9-15-14, the Court in Yost re-defined into a single cause of action the common law torts relative to abusive litigation, i.e., malicious abuse and use of process. Yost adopted the language of OCGA § 9-15-14 but recognized that it governs only two elements of damages for abusive litigation and does not resolve problems relative to other elements of recovery. The Court in Yost stated that the claim it was creating was derivative in nature and had to be brought as part of the underlying proceeding as a compulsory counterclaim or additional claim.

In 1989, the legislature replaced Yost with the abusive litigation statute. It provides for an award of all damages allowed by law against any person who takes an active part in litigation and acts with malice and without substantial justification. Unlike both Yost and OCGA § 9-15-14, the statute creates an independent cause of action and is not procedurally ancillary to the underlying proceeding, except where only attorney fees are sought.

Although the abusive litigation statute applies to civil proceedings generally and does not expressly limit its applicability to actions brought in state court, the statute has an “exclusive remedy” provision, OCGA § 51-7-85, which states: “[N]o claim other than as provided in this article or in Code Section 9-15-14 shall be allowed, whether statutory or common law, for the torts of malicious use of civil proceedings, malicious abuse of civil process, nor abusive litigation. . . . This article [shall be] the exclusive remedy for abusive litigation.”

Nonetheless, we have not held that the abusive litigation statute ousts OCGA § 13-6-11 (authorizing recovery of expenses of litigation by plaintiff where defendant has acted in bad faith, been stubbornly litigious, or has caused plaintiff unnecessary trouble and expense) or OCGA § 9-11-37 (providing sanctions for discovery abuse). And, in 1996, the legislature passed OCGA § 9-11-11.1 (b), which authorizes sanctions for abusive litigation that seeks to chill exercise of certain First Amendment rights.

Rule 11 and OCGA § 9-15-14 are analogous. Rule 11 authorizes the court in which an action is brought to award reasonable attorney fees and other expenses where pleadings or motions are presented for an improper purpose or where claims or defenses are without legal or evidentiary support.

1. Since the abusive litigation claim set forth in OCGA § 51-7-80 et seq. is maintainable as an independent cause of action in a court other than the one in which the underlying litigation occurred, it is a substantive tort. But as a statute which functions as the successor to Yost and operates in tandem with OCGA § 9-15-14, it is also a mechanism for the deterrence of abusive litigation in the courts of this state.

Although the statute is not by its terms limited to state court proceedings, its exclusive remedy provision makes clear that the legislature would not have intended it to apply in another forum in which sanctions are available under a device comparable to OCGA § 9-15-14. Given our legislature’s failure to expressly repeal OCGA § 13-6-11 and its enactment of OCGA § 9-11-11.1 (b), it does not, however, appear that the exclusive remedy section was intended to displace state statutes such as these which apply in limited contexts.

2. Although the question of whether Congress intended federal law to provide the exclusive remedy for abusive federal litigation is moot, we note that our holding in Division 1 is consistent with views espoused by the majority of federal courts which have been presented with claims for abusive litigation under Georgia law.

We have examined seven federal cases in Georgia, consisting of five decisions by United States District Courts for the Northern District (Majik Market v. Best, Union Carbide Corp. v. Tarancon Corp., Thomas v. Brown, A. L. Williams Corp. v. Faircloth, and Chromatics v. Telex Computer Products ), one decision by the District Court for the Middle District (East-Bibb Twiggs Neighborhood Assn. v. Macon-Bibb Planning &c. Co. ), and one decision by the Southern District Court (Westinghouse Credit Corp. v. Hall). All of these cases except Hall involved Yost claims.

Only in Chromatics did the court hold that it had jurisdiction of the Yost claim. There, the court determined that a Yost claim may be brought in federal court because it is a substantive cause of action which replaced common laws torts that were federally cognizable. But in A. L. Williams and Best, the courts characterized a Yost claim as a permissive counterclaim under federal law, thereby holding that they were without subject matter jurisdiction of the claim in a non-diversity case. In Tarancon and Thomas the courts held that a Yost claim may not be raised in federal court even if as a permissive counterclaim it satisfies requirements for diversity jurisdiction, because it is arguably a procedural device which federal courts would not be subject to follow under the Erie doctrine and not a substantive cause of action. The courts in Tarancon, Thomas, and Best reasoned that Rule 11 provides an adequate remedy for abusive litigation in federal courts. The courts reached this conclusion notwithstanding the fact that sanctions available under Rule 11 (c) (2) are more limited than those provided by Yost.

Decided September 17, 1998

Oliver, Maner & Gray, Inman G. Hodges, Patricia T. Paul, for appellants.

Kent, Worsham & Smart, A. Martin Kent, Hugh M. Worsham, Jr., Marvin L. Pipkin, for appellee.

Similarly in East-Bibb the court held that Congress specifically addressed the problem of abusive litigation when it promulgated Rule 11, thereby preempting this entire area of the law. In Hall, the court dismissed an abusive litigation claim on the ground that notice required by OCGA § 51-7-84 (a) had not been provided but questioned whether it lacked jurisdiction of the claim under the principles applicable to OCGA § 9-15-14 and Yost.

According to the Restatement (Second) of the Conflict of Laws, the rights and liabilities of the parties for torts of malicious prosecution or abuse of process are determined by the law of the state where the proceeding complained of occurred unless, with respect to the particular issue, some other state has a more significant relationship. The proceeding in this case took place in a federal district court in Georgia rather than in a court of another state, but the considerations set forth in the Restatement are the same. The court of the forum in which the proceeding occurred has the overriding interest in determining questions concerning the sanctions to be imposed for litigation abuses in that proceeding.

Judgment reversed.

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

       256 Ga. 92 (344 SE2d 414) (1986).

       OCGA § 9-15-14 (a).

       OCGA § 9-15-14 (b).

       OCGA § 9-15-14 (a).

       256 Ga. at 95-96 (9-13).

       See Yost v. Torok, supra, 256 Ga. at 95 (9), (10).

       Id. at 96 (14).

       OCGA § 51-7-80 et seq.

       OCGA §§ 51-7-81; 51-7-83 (a).

        Hallman v. Emory Univ., 225 Ga. App. 247, 248 (483 SE2d 362) (1997) (physical precedent only).

       OCGA § 51-7-81.

       OCGA § 51-7-80 (1).

       Rule 11 (b) (1)-(4).

       See OCGA §§ 51-7-83 (b), (c); 51-7-85.

       684 FSupp. 1089 (N.D. Ga. 1987).

       682 FSupp. 535 (N.D. Ga. 1988).

       708 FSupp. 336 (N.D. Ga. 1989).

       120 FRD 135 (N.D. Ga. 1987).

       695 FSupp. 1184 (N.D. Ga. 1988).

       674 FSupp. 1475 (M.D. Ga. 1987).

       144 BR 568 (S.D. Ga. 1992).

       695 FSupp. at 1186.

       120 FRD at 138 (1), (2).

       684 FSupp. at 1090-1092 (1)-(4).

       682 FSupp. at 544-546 (19).

       708 FSupp. at 338-339 (4).

       682 FSupp. at 545.

       708 FSupp. at 339.

       684 FSupp. at 1092.

       See also Dept. of Transp. v. Franco’s Pizza &c., 200 Ga. App. 723, 728 (5) (409 SE2d 281) (1991).

       674 FSupp. at 1476-1477 (1).

       144 BR at 579 (26).

       Id., n. 2.


text:
    A98A1275.
    MOORE v. THE STATE.
    (506 SE2d 925)
   Andrews, Chief Judge.

James William Moore appeals from the denial of his motion for new trial following his conviction of one count of burglary.

1. Moore’s second enumeration challenges the sufficiency of the evidence while the third one addresses the denial of his motion for directed verdict. We consider them together, as they both deal with the legal sufficiency of the evidence. OCGA § 17-9-1; Martin v. State, 219 Ga. App. 277, 278 (1) (464 SE2d 872) (1995); Towns v. State, 185 Ga. App. 545 (365 SE2d 137) (1988).

Viewed with all inferences in favor of the jury’s verdict, Bowman v. State, 222 Ga. App. 893, 896 (1) (476 SE2d 608) (1996), the evidence was that around 10:00 p.m. on Sunday, October 29, 1995, Mr. and Mrs. Zimmerman were watching television in their home across Ellis Street from Vic’s Harley Shop in Augusta. Mrs. Zimmerman heard a noise and looked out a side window of the house, but saw nothing. Hearing the noise a second time, she walked to a window on the front of the house and saw two men, one white and one black, exiting the gate at the rear driveway of Vic’s where motorcycles were taken in and out of the shop. The gate was pried open enough for the men to slip through. The driveway ran behind Hildebrandt’s, a grocery fronting on Sixth Street at the corner of Ellis Street. The two men walked slowly toward Sixth Street, beside the grocery, looking up and down Sixth Street. The black man was wearing a leather jacket and white cap and was later identified as Moore. He walked all the way to the front of the grocery and then returned. The white male, later identified as Lawson, walked halfway up Ellis toward Sixth. Mrs. Zimmerman testified the two men appeared to be talking to each other after Moore returned and then they both went back inside the gate.

Mrs. Zimmerman called the police while Mr. Zimmerman watched from the front window as Moore, wearing a white baseball cap, walked out of Vic’s driveway directly toward the Zimmermans’ house. He stood momentarily, looked around, and then took off the cap and threw it on the ground near a fence. He then walked down the fence toward Sixth Street and the railroad tracks.

Officers Simmons and Lafferman responded to the “signal 98,” burglary in progress call. Simmons rounded the corner and saw Moore walking down the street right beside the building across from Hildebrandt’s toward Sixth Street. Moore was detained by Simmons while Lafferman proceeded to the rear of the grocery and found Lawson attempting to climb out of a hole in an air conditioning vent with a box of beer and wine. A white ball cap was retrieved by officers from beside the fence next to the Zimmermans’ house.

The owner of the grocery had driven by it on her way home from church about 9:30 p.m. and noticed nothing amiss. Upon arriving after being called by the police, however, she discovered a window broken on the Ellis Street side of the store, in addition to the damaged air conditioner vent. The window had been boarded up on the inside for years and entry could not be obtained there.

Co-defendant Lawson testified that he was in town working with the fair and met Moore that evening at a local bar, where they proceeded to drink until closing time. They discussed getting some “crack and stuff” by breaking into mailboxes to get money and left the bar together. While no mailboxes were plundered, Lawson asked Moore what Hildebrandt’s was and was informed it was a store. Both men proceeded to the drive behind the store, pried open the unlocked gate and entered the alley where Lawson found a pipe and broke out the air conditioner vent. Lawson then got two concrete blocks, stacked them, and crawled through the vent into the store where he assembled the beer and wine in a cardboard box. When he was performing all these acts, Moore was standing there beside him. When, however, he was crawling back out of the vent, Moore was gone.

The evidence was legally sufficient. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Hildebrand v. State, 209 Ga. App. 507, 511 (4) (433 SE2d 443) (1993).

2. Moore’s first enumeration is that the court erred in allowing hearsay into evidence in the form of Lawson’s post-arrest statement to Detective Williams which implicated Moore.

As indicated in Division 1, Lawson testified during Moore’s trial and was subject to cross-examination. During this cross-examination, Moore’s counsel attempted to show his self-interest in testifying because a notice of recidivist treatment originally filed against Lawson had been withdrawn. In attempting to do so, she referred to portions of his interview with Detective Williams in which Lawson used “we” in describing the breaking into the air conditioner vent and crawling into the store. During cross-examination, Lawson clarified that only he did these acts, but also stated that “I told him to watch out for me. He said, okay.”

Thereafter, the State called Detective Williams and proffered the entire post-arrest statement of Lawson, pursuant to Cuzzort v. State, 254 Ga. 745 (334 SE2d 661) (1985) which held that out-of-court statements consistent with in-court testimony are admissible and that “[t]he concerns of the rule against hearsay are satisfied.” Id.

In the trial court, the objection made to introducing the entirety of the statement was “I would object. It would have to be redacted. Again, we have had . . . Mr. Lawson, testify, and have been able to cross examine him. Unless [the State] is trying to put this in under [Gibbons v. State, 248 Ga. 858 (286 SE2d 717) (1982) (holding that a prior inconsistent statement of a witness who takes the stand and is subject to cross-examination is admissible as substantive evidence)], or something like that, claiming it’s totally inconsistent, I don’t see any foundation for it.” An objection was also made on the best evidence rule.

Pretermitting whether the argument made here regarding hearsay was included in the above objection, the statement was admissible under either Cuzzort or Gibbons and the best evidence rule is not applicable to this situation. Boddie v. State, 269 Ga. 5 (494 SE2d 651) (1998); Woodard v. State, 269 Ga. 317 (496 SE2d 896) (1998); Duckworth v. State, 268 Ga. 566 (492 SE2d 201) (1997).

Decided September 17, 1998.

Stanley C. House, for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

3. Finally, Moore contends that the trial court erred in charging on parties to a crime.

The objected to portion of the charge was that “[although the indictment specifically alleges the personal involvement of [Moore], and there is no evidence of such involvement at trial, [Moore’s] actions as an aider and abetter, if you so find, in the commission of the crime, allow him to be convicted of the crime.” It is claimed that this portion of the charge is confusing because “aider” and “abetter” are not defined anywhere in the charge.

Initially, we note that no authority is cited for the proposition that these are technical terms or words of art needing separate definition for the jury and no request for such a charge was made by Moore.

Further, to “abet” is generally defined as “[t]o encourage, incite, or help, esp. in wrongdoing,” while to “aid” is generally defined as “[t]o give help or assistance to.” The American Heritage Dictionary 67, 89 (2nd College Ed. 1985). “Terms of common usage and meaning need not be specifically defined in the charge to a jury. [Cits.]” Philpot v. State, 268 Ga. 168, 171 (3) (486 SE2d 158) (1997).

There was no error. Webb v. State, 228 Ga. App. 624 (1) (492 SE2d 312) (1997).

Judgment affirmed.

Johnson, P. J., and Smith, J., concur.

       This is the wording contained in Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, p. 34 (2nd ed.).


text:
    A98A1279.
    BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA v. PUTNAM COUNTY.
    (506 SE2d 923)
   Andrews, Chief Judge.

The Board of Regents of the University System of Georgia d/b/a the Medical College of Georgia (MCG) appeals from the trial court’s dismissal of its complaint against Putnam County for failure to comply with the ante litem notice statute, OCGA § 36-11-1. We agree with the judgment of the trial court and affirm.

This case arose as a result of a fight between two inmates at the Putnam County jail. One of the inmates, Eric Cooper, was taken to MCG after the fight. When MCG discharged Cooper several months later on December 5, 1995, his medical bills totaled $193,905.82.

On June 4, 1997, MCG filed a claim against Putnam County for the amount due on the bill. Putnam County filed a motion to dismiss, claiming that MCG did not comply with the ante litem notice required by OCGA § 36-11-1. The trial court granted the motion to dismiss and this appeal followed.

OCGA § 36-11-1 provides as follows: “All claims against counties must be presented within 12 months after they accrue or become payable or the same are barred, provided that minors or other persons laboring under disabilities shall be allowed 12 months after the removal of the disability to present their claims.”

1. MCG argues that it was not required to provide ante litem notice to the county because the right to and the amount of the claim are fixed by law, citing to Terrell County v. Albany/Dougherty Hosp. Auth., 256 Ga. 627 (352 SE2d 378) (1987). In Terrell, the court held that the Hospital Care for Pregnant Women Act, which required certain hospitals to provide emergency care to pregnant women in labor, also allowed the hospitals to make a claim for reimbursement of a portion of costs from the patient’s county of residence if the patient was found to be indigent. Terrell, supra at 627. When faced with a claim under this Act, Terrell County claimed the hospital did not comply with OCGA § 36-11-1 in presenting its claim. The court held that the ante litem notice statute applies to claims arising from contract and does not apply to a claim when the right to and amount of the claim are fixed by law. Terrell, supra at 630. The court in Terrell cites Norris v. Nixon, 78 Ga. App. 769 (52 SE2d 529) (1949), which held that claims intended to come under the requirement of ante litem notice were those “claims growing out of contract or breach of duty.” Norris, supra at 774 (2).

MCG contends that because OCGA § 42-5-2 (a) provides that the governmental unit or agency having physical custody of the prisoner must furnish him “any needed hospital attention,” then the right to the payment and the amount of the payment for Cooper’s hospitalization are fixed by law. We disagree.

While the law does provide that the prisoner has a right to any needed hospital attention, there is no law providing that the county must pay the hospital, as was the case in Terrell. The hospital is certainly entitled to demand payment for the services, but the right to the payment and the amount of the payment are not fixed by law in this instance and the county was entitled to ante litem notice of the claim and the amount.

Decided September 17, 1998.

Thurbert E. Baker, Attorney General, James L. Lester, Martin L. Fierman, for appellant.

Huskins Law Firm, Christopher D. Huskins, Dorothy J. Adams, for appellee.

2. Next, MCG contends that even if ante litem notice is required, it complied with the 12-month notice requirement. The record shows that Cooper was discharged from MCG on December 5, 1995. MCG sent a bill for Cooper’s expenses to the Putnam County jail on December 12, 1995. MCG faxed a copy of the bill to the Putnam County attorney on December 6, 1996.

MCG does not argue that sending the bill to the jail was sufficient presentation of the claim > to the county, but does contend that notice to the attorney was sufficient and also that the notice was within the mandated 12-month period. MCG reasons that since its bills are due and payable 30 days from the date the last hospital service was rendered, the bill did not accrue or become payable until January 4, 1996, and the notice sent on December 6 was within 12 months of that date.

Although the hospital, for purposes of billing its patients, provides for a 30-day period in which the patients may pay their bill before it becomes overdue, this provision does not affect the 12-month provision of the statute. The statute provides that all claims must be presented within 12 months “after they accrue or become payable.”

Black’s Law Dictionary defines “accrue,” in pertinent part, as “due and payable;. . . falling due;. . . incurred . . .,” and it defines “payable” as “[cjapable of being paid; suitable to be paid; . . . justly due; legally enforceable.” Black’s Law Dictionary 20, 1128 (6th ed. 1990). Therefore, applying these definitions, the day the bill was justly due or capable of being paid was the day Cooper was discharged from the hospital, December 5, 1996. Thus, MCG’s notice to Putnam County on December 6, 1996, was outside the 12-month period. The trial court did not err in dismissing MCG’s claim for failure to comply with the ante litem notice requirement of OCGA § 36-11-1.

Judgment affirmed.

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