text:
    A94A2522.
    OLD DOMINION FREIGHT LINE, INC. v. ANTHONY.
    (454 SE2d 574)
   McMurray, Presiding Judge.

This workers’ compensation case was initiated by claimant Anthony’s request for a determination of change of condition. Claimant’s foot was injured in a forklift accident and he received temporary total disability benefits until they were terminated following claimant’s release for return to work by the authorized treating physician.

Claimant has attempted to establish that he suffers from reflex sympathetic dystrophy. To this end some evidence was presented at a hearing before an administrative law judge who rendered a decision adverse to claimant. Claimant appealed to the appellate division and there filed multiple motions for remand to an administrative law judge to take further evidence from named medical practitioners. These motions were partially granted and the appellate division, relying heavily upon the evidence developed on remand, substituted its decision for that of the administrative law judge and entered an award ordering recommencement of total disability benefits. The appellate division’s award was affirmed by the superior court whereupon the employer, Old Dominion Freight Line, Inc., sought and received leave to file this appeal. Held:

1. The employer challenges the appellate division’s consideration of the evidence developed on remand to the administrative law judge. This evidence consists of the records and deposition of Dr. McCluskey. The employer maintains that this evidence was not properly considered because it does not satisfy the criteria for newly discovered evidence required for the granting of a new trial. Claimant responds that those criteria are inapplicable since the board may re-open a record to receive additional evidence at any time before the case leaves its jurisdiction.

“In deciding whether to remand a case to the [administrative law judge] to receive newly discovered evidence, the board is directed to apply the law of Georgia regarding the nature and character of newly discovered evidence required for the granting of a new trial. Rule 103 (d) of the Rules of the State Board of Workers’ Compensation. See also [Hartford Accident &c. Co. v. Snyder, 126 Ga. App. 31, 33 (3) (189 SE2d 919)] [Divisions 8 and 9 disapproved in Brown Transport Corp. v. James, 243 Ga. 701, 702 (257 SE2d 242)].” Franchise Enterprises v. Sullivan, 190 Ga. App. 767, 769 (2) (380 SE2d 68). See also Binswanger Glass Co. v. Brooks, 160 Ga. App. 701, 702 (1) (288 SE2d 61). Pursuant to this authority we conclude that the appellate division’s authority to remand to an administrative law judge for consideration of newly discovered evidence is less than the plenary authority advocated by claimant. The criteria for newly discovered evidence required for the granting of a new trial were applicable to the remand at issue and we proceed to apply those criteria to the facts and circumstances of the case sub judice.

The bases for the grant of a new trial on newly discovered evidence are well known and need not be repeated here. See Cantrell v. Red Wing Rollerway, 184 Ga. App. 506, 508 (1) (361 SE2d 720). It is sufficient to note that one basis for the grant of a new trial on newly discovered evidence is that “it was not owing to the want of due diligence that the moving party did not acquire such evidence sooner.” Id. The contested evidence developed on remand deals with the question of whether claimant suffers from reflex sympathetic dystrophy. However, the question of whether claimant suffers from this affliction arose prior to the original hearing before the administrative law judge and at that hearing claimant presented evidence on this issue but failed to convince the administrative law judge. On appeal to the appellate division, claimant should not have been permitted to obtain a remand to the administrative law judge for the purpose of bolstering or extending his evidence on the question of whether he suffered reflex sympathetic dystrophy. Through the exercise of due diligence claimant could have obtained the evidence developed on remand in a timely fashion. The superior court erred in affirming the appellate division’s award predicated on improperly considered evidence.

2. In its second enumeration of error, the employer seeks reinstatement of the award of the administrative law judge. However, this remains a matter for decision in the first instance by the appellate division upon consideration of a record purged of the improper evidence developed on remand to the administrative law judge. This is particularly the case since the evidence in the corrected record is conflicting and does not demand any specific award, thus invoking a decision of the board as trier of fact.

3. Employer’s third enumeration of error contends the superior court erred in affirming the appellate division award which failed to order suspension of benefits because the claimant refused authorized treatment. This enumeration of error predicated upon OCGA § 34-9-200 (c) lacks merit in that this provision relates only to the refusal of treatment ordered by the board and there was in the case sub judice no such order entered by the board.

Decided February 9, 1995

Greene, Buckley, Jones & McQueen, Daniel A. Angelo, for appellant.

Stephen A. Friedman & Associates, Reyno B. Petree, for appellee.

4. Employer’s final enumeration of error complains of that portion of the appellate division award which required employer to pay for a psychological evaluation to determine whether there was a causal relationship between claimant’s foot injury and certain “jerking episodes.” However, the record shows that the evaluation was “reasonably required in order to make an intelligent and factual disposition of the claim . . . [and] [b]eing reasonably required, the board was authorized to order the employer to make payment for these expenses. [OCGA § 34-9-200.]” Roberson v. Hartford Accident &c. Co., 141 Ga. App. 558, 559 (234 SE2d 145).

Judgment reversed.

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


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A94A2568.
    NEAL v. BAKER’S LIQUOR STORE, INC.
    (453 SE2d 816)
   Birdsong, Presiding Judge.

Aubrey Neal appeals the trial court’s grant of summary judgment to Baker’s Liquor Store, Inc., on his claim against Baker’s Liquor Store, Inc., for damages resulting from injuries he sustained when he was shot on its premises. He also contends the trial court erred by denying his motion to add a party to the case.

Neal was shot at a liquor store located at 1933 Moreland Avenue, Atlanta, Georgia, on July 23, 1991. On July 23, 1993, he filed suit against Baker’s Liquor Store, Inc., and perfected service of process only on Baker’s Liquor Store, Inc. In his complaint, Neal asserted that Baker’s Liquor Store, Inc., owned and operated the liquor store at 1933 Moreland Avenue where he was shot. Baker’s Liquor Store, Inc., answered the complaint and asserted, inter alia, that it was not a proper party to the action, and moved for summary judgment.

The motion for summary judgment was supported by the affidavit of William Baker, Sr., which stated that the affidavit was based upon his personal knowledge as the president of Baker’s Liquor Store, Inc., while it was in existence. The affidavit further stated that Baker’s Liquor Store, Inc., operated a liquor store at 1933 Moreland Avenue until June 4, 1991, when the corporation and William Baker, Sr., “sold the business and all of the assets of this business to Chun Ja Yun, including the land, building and inventory. None of the shares of stock of Baker’s Liquor Store, Inc., were sold to anyone else on June 4, 1991, or thereafter. . . . After June 4, 1991, neither I nor Baker’s Liquor Store, Inc. had or have any ownership interest in the land, building, inventory, or business located at 1933 Moreland Avenue, Atlanta, Georgia 30316.” The affidavit was supported by a closing statement and a warranty deed from Baker’s Liquor Store, Inc., to Chun Ja Yun, both dated June 4, 1991, that were attached to and incorporated in the affidavit. The face of the warranty deed shows that it was filed in the office of the superior court clerk’s office on June 5, 1991. Neal’s response to the motion relied upon the fact that the corporate entity Baker’s Liquor Store, Inc., remained in existence after June 4, 1991, and was in existence on June 23, 1991, when he was shot. Attached to the response were a business license for a “Baker’s Liquor Store,” effective from April 29, 1991, Chun’s application for a license to sell alcoholic beverages, dated March 20, 1991, that showed that she purchased the liquor store from Baker, and also showed that the legal name of the business would be “Baker’s Liquor Store,” and Neal’s affidavit that stated he was doing business with Baker’s Liquor Store, Inc., when he was shot.

Neal was granted several extensions of time in which to respond fully to the motion for summary judgment so that he could conduct further discovery. In this period Neal took the deposition of William Baker, Sr. In his deposition Baker testified that after he sold the business to Chun, he had no dealings with either the business or the new owners.

Subsequently, Neal moved to add “Chun Ja Yun, individually and doing business as Family Beer and Wine Store, and ABC Corporation, name unknown, as party defendants” and amend the complaint to assert allegations against the new defendants. Although not then a party, Chun filed a response to the motion, asserting that she did not become aware of the action against Baker’s Liquor Store, Inc., until August 19 or 20, 1993. The response was supported by affidavits attesting to these facts.

The trial court granted summary judgment to Baker’s Liquor Store, Inc., and denied Neal’s motion to add Chun as a party defendant. This appeal followed. Held:

1. The trial court did not err by granting summary judgment to Baker’s Liquor Store, Inc. The standards applicable to motions for summary judgment are announced in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474). Here Baker’s Liquor Store, Inc., moved for summary judgment based on the fact that it was not the owner of the business or premises on which Neal was shot, and supported the motion with evidence which showed that to be true. As Neal’s allegations against Baker’s Liquor Store, Inc., were based upon its ownership of the premises (see OCGA § 51-3-1), Neal was obligated to “point to specific evidence giving rise to a triable issue [on whether Baker’s Liquor Store, Inc., was the owner or occupier of the premises]. OCGA § 9-11-56 (e).” Lau’s Corp. v. Haskins, supra. He did not do so. Instead, he argued various theories of law that might support a claim against a corporation under other circumstances, e.g., corporation by estoppel, etc., but he pointed to no specific evidence that would give rise to a triable issue on whether Baker’s Liquor Store, Inc., owned the premises or operated the store. Indeed, the evidence he did submit clearly established that at the time he was shot the liquor store was not owned or operated by Baker’s Liquor Store, Inc.

Decided February 9, 1995.

Joseph M. Todd, for appellant.

Mark G. Evans, for appellee.

2. Although Neal’s enumeration of error asserts that the trial court improperly denied and dismissed his motion to amend and add a party, Neal does not argue that the trial court improperly denied his motion on the merits. Instead, his sole argument is that the trial court erred by denying his motion without first conducting a hearing. We find no error. Under Uniform Superior Court Rule 6.3, motions in civil actions shall be decided by the court without oral hearing unless a timely written request for oral argument is submitted. Further, contrary to his contentions, these procedures did not deprive Neal of his opportunity to be heard because he had the right to request a hearing. See Jacobsen v. Muller, 181 Ga. App. 382 (352 SE2d 604). As the record shows that Neal did not request a hearing on his motion, there was no error.

Judgment affirmed.

Blackburn and Ruffin, JJ., concur.


author: Johnson, Judge.

text:
    A94A2832.
    EARNEST v. THE STATE.
    (453 SE2d 818)
   Johnson, Judge.

A jury found Eugene Earnest guilty of burglary. He appeals from his conviction.

1. Earnest bases his first three enumerations of error upon one premise: there can be no burglary conviction where a person is charged with entering the dwelling house of another and the evidence shows that no one resided in the house at the time of the entry. If the owner resides elsewhere, Earnest argues, the house is not a dwelling within the meaning of OCGA § 16-7-1 and cannot be burglarized. Earnest contends, therefore, that there was a fatal variance between the allegata and the probata, the court erred in denying his motion for directed verdict and the evidence was insufficient to authorize the jury to convict him of burglary. The evidence shows that the house sustained fire damage and while it was under repair, the owner, James Elliot, lived in another house. Elliot visited the house six days a week for repair and other purposes. In Hess v. State, 132 Ga. App. 26 (207 SE2d 580) (1974), the defendants were charged with burglarizing a house which was only sporadically occupied and was unoccupied at the time of the unauthorized entry. In that case we noted that “[t]here is no requirement in the law that a house be continuously occupied in order to be a ‘dwelling.’ It is sufficient that it is occasionally occupied for residential purposes and any such lawful occupant has a superior right as against burglars for the purpose of an indictment.” (Citation and punctuation omitted.) Id. at 29 (2) (c). It is clear from the evidence both that the house was occasionally occupied and that Elliot had a superior right to possession as against Earnest. Therefore, there was no variance between the allegata and probata, the court did not err in denying Earnest’s motion for a directed verdict of acquittal, and there was sufficient evidence from which a rational trier of fact could find Earnest guilty beyond a reasonable doubt of burglarizing Elliot’s dwelling house. See McCloud v. State, 210 Ga. App. 69 (1) (435 SE2d 281) (1993); Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided February 9, 1995.

Moore & Dodgen, Andrew C. Dodgen, for appellant.

Douglas C. Pullen, District Attorney, Paul J. Coburn, Assistant District Attorney, for appellee.

2. Earnest challenges the trial court’s charge to the jury on the definition of burglary. Defense counsel did nothing to preserve the alleged error at trial. In fact, when asked by the trial judge if there were any exceptions to the charge, defense counsel shook his head in the negative. Therefore, he has waived his right to assert a charging error on appeal. Toth v. State, 213 Ga. App. 247, 251 (7) (444 SE2d 159) (1994); Tibbs v. State, 211 Ga. App. 250, 252 (3) (438 SE2d 706) (1993). Moreover, even if the charge defining the offense of burglary was error as argued, and had been properly preserved for our review, we find it was harmless given the evidence adduced at trial.

Judgment affirmed.

Beasley, C. J., and Andrews, J., concur.


author: McMurray, Presiding Judge.

text:
    A94A2135.
    WHITE v. ROBERTS et al.
    (454 SE2d 584)
   McMurray, Presiding Judge.

Plaintiffs Vickie Roberts and Benny Roberts, residents of Georgia, purchased a horse from defendants Sandy Camenzind and Jim Camenzind (“Sellers”), residents of Nebraska, paying them $7,000. Alleging that the horse as delivered “was suffering from Bilateral Navicular Disease, a condition which renders the horse lame and worthless as a show horse,” plaintiffs brought suit in the Superior Court of Gwinnett County, Georgia, claiming breach of warranty and fraud. In addition to naming the sellers as defendants, the complaint also alleged that defendants Camenzind and defendant Steven A. White, D.V.M., “conspired to and did defraud the Plaintiffs by inducing them to purchase a lame horse for $7,000.” Specifically, Dr. White allegedly defrauded plaintiffs by assuring them that “the horse was in good condition and telling them that radiographs of the horse’s front feet revealed no significant findings . . . [whereas, at the time Dr. White] possessed full knowledge the horse was not in good health and that radiographs of the horse’s front feet revealed the horse was suffering from Bilateral Navicular Disease.”

By way of a special appearance, Dr. White denied the material allegations. All three defendants moved for dismissal, contending that personal jurisdiction was not afforded under the Georgia Long Arm Statute, OCGA § 9-10-91. The material jurisdictional facts are undisputed. In support of his motion to dismiss, Dr. White submitted his affidavit, deposing that he is a resident of Nebraska, who has “never resided in the State of Georgiaf; . . . has] never had any business contact with the State of Georgia[; . . . and does] not derive any revenue whatsoever from services rendered within the State of Georgia.” He performed a physical exam of the horse at the seller’s Omaha ranch, including “all standard prepurchase tests as well as some tests specifically requested by the potential purchasers of the horse.” The only connection defendant ever had with Georgia was initiated by plaintiffs when they contacted him about the observed lameness. In their answers to interrogatories, plaintiffs confirmed that Dr. White was retained only because “the parties agreed to allow [defendant] Ms. Camenzind to find a vet in Nebraska to examine the horse for the Plaintiffs.”

In opposition, Vickie Roberts deposed that Dr. White sent her a copy of his report and that “in reliance on [that] report, [plaintiffs] purchased the horse from [the sellers] for $7,000.” After the horse arrived in Georgia, Dr. D. B. Connolly, D.V.M., a Georgia veterinarian, diagnosed it as having bilateral navicular disease, whereupon plaintiffs telephoned Dr. White in Nebraska and requested that he send them the x-rays he had examined. Dr. Connolly reviewed Dr. White’s x-rays and informed plaintiffs that these x-rays revealed the presence of bilateral navicular disease. Also, Dr. White mailed a bill for his examination to plaintiffs’ residence in Georgia, although they do not claim to have paid that bill.

The trial court denied Dr. White’s motion to dismiss but timely certified that order for immediate review. Defendant’s application for interlocutory appeal was granted and this appeal followed. Held:

Plaintiffs claimed that the exercise of personal jurisdiction over Dr. White by the Superior Court of Gwinnett County, Georgia, is authorized by either OCGA § 9-10-91 (1) (“[transacts any business within this state”) or OCGA § 9-10-91 (2) (“[c]ommits a tortious act or omission within this state”). Defendant Dr. White contends the denial of his motion to dismiss was erroneous because he did not commit any tortious act or transact any business in Georgia.

1. “ ‘The Due Process Clause protects an individual’s liberty interest in not being subject to the binding judgments of a forum with which he has established no meaningful “contacts, ties, or relations.” (Cit.) . . . “Where a forum seeks to assert specific jurisdiction over an out-of-state defendant who has not consented to suit there, . . . the defendant (must have) ‘purposefully directed’ his activities at residents of the forum, (cit.), and the litigation (must result) from alleged injuries that “arise out of or relate to” those activities. (Cit.)” (Cit.)’ First United Bank of Miss. v. First Nat. Bank of Atlanta, 255 Ga. 505, 506-507 (340 SE2d 597) (1986).” Signet Bank/Virginia v. Tillis, 196 Ga. App. 433, 435 (396 SE2d 54). ‘“[T]his “purposeful availment” requirement ensures that a defendant will not be haled into a jurisdiction solely as a result of “random,” “fortuitous,” or “attenuated” contacts. . . .’ [Cit.]” Behar v. Aero Med Intl., 185 Ga. App. 845, 847 (2), 850 (366 SE2d 223).

In the case sub judice, Dr. White’s sole purposeful contact with Georgia consists of three separate mailings to Georgia: his report; the x-rays he had previously examined; and a bill for his services, which remains unpaid. “Mere telephone or mail contact with an out-of-state defendant, or even the defendant’s visits to this state, is insufficient to establish the purposeful activity with Georgia required by the ‘Long Arm’ statute. E.g., O. N. Jonas Co. v. B & P Sales Corp., 232 Ga. 256 (206 SE2d 437) (1974).” Wise v. State Bd. for Examination &c. of Architects, 247 Ga. 206, 208 (2), 209 (274 SE2d 544). “[W]here nonresidents have executed contracts in other states which have . . . consequences in Georgia, . . . prior negotiations and contemplated future consequences, plus the contract terms and the parties’ actual course of dealing, must be evaluated in determining whether the defendant purposefully established minimum contacts within the forum [state]. [Cit.]” Booksing v. Holley, 210 Ga. App. 869, 871 (2) (437 SE2d 857). The fact that Dr. White intentionally mailed x-rays to plaintiffs represents only a fortuitous contact with Georgia, because he did so only in response to plaintiffs’ demand after they had telephoned him in Nebraska. The unpaid bill is unrelated to the cause of action and so provides no evidence that defendant was transacting any business within Georgia. With all reasonable inferences being drawn in favor of authorizing the exercise of personal jurisdiction, the undisputed evidence shows that Dr. White had only a single attenuated contact with Georgia which was incidental to the completion of his professional services in Nebraska. The denial of defendant’s motion to dismiss cannot be sustained on the ground that he was transacting business within the purview of OCGA § 9-10-91 (1).

2. Nevertheless, plaintiffs contend that personal jurisdiction over the Nebraska veterinarian is authorized by OCGA § 9-10-91 (2), because defendant committed a tort in Georgia under the analysis of Coe & Payne Co. v. Wood-Mosaic Corp., 230 Ga. 58 (195 SE2d 399).

The statutory interpretation of former Code. Ann. § 24-113.1 (b) (now codified at OCGA § 9-10-91 (2)), has been superseded as of the effective date of Ga. L. 1970, p. 443, which added subsection (c) (now codified at OCGA § 9-10-91 (3)). The Supreme Court of Georgia has since held that “the relative merits of a ‘New York rule’ or an ‘Illinois rule’ [are not dispositive]. The rule that controls is our statute, which requires that an out-of-state defendant must do certain acts within the State of Georgia before he can be subjected to personal jurisdiction. Where ... it is shown that no such acts were committed, there is no jurisdiction.” Gust v. Flint, 257 Ga. 129, 130 (356 SE2d 513).

The plain language of OCGA § 9-10-91 (2) authorizes the exercise of personal jurisdiction only when the non-resident defendant “[c]ommits a tortious act or omission within this state. . . .” See McDonnell v. Roy E. Beatty & Assoc., 203 Ga. App. 807, 808 (1) (418 SE2d 95). In the case sub judice, it is undisputed that defendant was never in Georgia at the time any alleged fraud was committed. Accordingly, OCGA § 9-10-91 (2) is not applicable as a basis for exercising personal jurisdiction over Dr. White. Furthermore, the unrebutted evidence that Dr. White does not solicit business in Georgia or derive substantial revenue from services performed in Georgia precludes the application of OCGA § 9-10-91 (3) (“[c]ommits a tortious injury in this state caused by an act or omission outside this state”). The trial court erred in denying defendant’s motion to dismiss for lack of jurisdiction over the person. OCGA § 9-11-12 (b) (2).

Decided February 10, 1995.

Swift, Currie, McGhee & Hiers, Stephen L. Cotter, Timothy J. Buckley III, for appellant.

Webb, Tanner & Powell, Anthony O. L. Powell, Garner & Still, James W. Garner, for appellees.

Judgment reversed.

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

       In answers to interrogatories, plaintiffs stated they had not “alleged any malpractice and/or negligence on the part of Steven A. White, D.V.M. . . .”


author: Smith, Judge.

text:
    A94A2298.
    A94A2299.
    A94A2300.
    A94A2301.
    STEELE v. THE STATE. BURKE v. THE STATE. MATTHEWS v. THE STATE. STANFORD v. THE STATE.
    (454 SE2d 590)
   Smith, Judge.

Johnny Lee Steele, Worth Talmadge Matthews, Robert Lee Burke, and Michael Bernard Stanford were indicted for the murder of Mary Carswell and convicted by a jury of voluntary manslaughter. OCGA § 16-5-2. Motions for new trial were made and denied as to all four defendants and they appeal.

1. Matthews enumerates as error the trial court’s failure to direct a verdict of acquittal in his favor. Construed to support the jury’s verdict, the evidence showed that an argument over a pool game in a nightclub escalated into a gun battle in the club’s parking lot. A stray bullet travelled through the wall of the club and severed an artery in the victim’s leg, causing her death from loss of blood. Matthews did not fire his pistol, but Stanford asked for and obtained Matthews’ pistol to fire at Steele. A ballistics expert testified that a bullet from Steele’s pistol killed the victim.

Matthews sought a directed verdict on the basis that he did not “directly cause” the victim’s death, citing Hill v. State, 250 Ga. 277, 279-280 (1) (b) (295 SE2d 518) (1982). As noted in Scott v. State, 252 Ga. 251 (313 SE2d 87) (1984), Hill is easily distinguished, because in that case an innocent bystander was killed by police returning the defendant’s fire, and the homicide was not committed by the defendant or “ ‘by someone acting in concert with him.’ [Cit.]” 252 Ga. at 251-252. The Hill court also acknowledged the potential responsibility of a “party to the crime” under OCGA § 16-2-20 (formerly Ga. Code Ann. § 26-801), but held that Code section did not apply to the facts before it. 250 Ga. at 280, n. 3.

In contrast to the situation in Hill, Matthews was acting in concert with the other participants in the gunfight by providing a pistol to Stanford. While mere presence at the scene of a crime alone does not support a conviction, “presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred.” (Citation and punctuation omitted.) Kimbro v. State, 152 Ga. App. 893, 894 (264 SE2d 327) (1980). Participation in mutual combat by providing a weapon to one of the other parties is sufficient to support a conviction for voluntary manslaughter as a party to the crime under OCGA § 16-2-20 (b) (3). See Coker v. State, 209 Ga. App. 142 (433 SE2d 637) (1993); Shehee v. State, 167 Ga. App. 542 (307 SE2d 54) (1983).

Matthews contends he is entitled to a directed verdict because Stanford’s testimony regarding his participation in the gunfight was uncorroborated. “In Georgia, a defendant may not be convicted on an accomplice’s uncorroborated testimony. The required corroboration must be independent of the accomplice’s testimony and it must connect the defendant to the crime or lead to the inference that he is guilty. . . . However, OCGA § 24-4-8 provides that corroborating circumstances may dispense with the necessity for the testimony of a second witness. Slight corroborative evidence from an extraneous source is all that is required to support the verdict, and it may be by circumstantial evidence. It is for the jury to decide whether the evidence offered as corroboration is sufficient to support a conviction, and if the verdict is founded on slight evidence of corroboration connecting the defendant with the crime, it can not be said as a matter of law, that the verdict is contrary to the evidence.” (Citations and punctuation omitted.) Fain v. State, 211 Ga. App. 399, 400-401 (439 SE2d 64) (1993).

In Matthews’ statement to the police he admitted he took his pistol from his pocket and said “I have a gun” when Stanford asked if anyone had one. He also told Stanford the pistol would not work while the safety was on after Stanford unsuccessfully attempted to fire it. While Matthews now argues that Stanford snatched the pistol away from him and his comments were merely in the nature of a protest, this issue was for the jury to decide. There was evidence, including corroboration, from which a reasonable trier of fact could conclude that Matthews’ participation in the gunfight was sufficient to support a conviction for voluntary manslaughter beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). But see Foster v. State, 264 Ga. 369, n. 2 (444 SE2d 296) (1994), questioning “whether a charge on voluntary manslaughter is even authorized under the circumstances presented here,” in the absence of provocation by the victim. However, in deciding Foster, the Supreme Court assumed the charge was correct, and relegated its query on the authorization of the charge to a footnote. Under these circumstances, we decline to follow the dicta in Foster with respect to the sufficiency of the evidence. See Coker v. State, 209 Ga. App. 142, 143 (433 SE2d 637) (1993).

2. All four defendants enumerate as error the refusal of the trial court to grant a new trial based upon the conduct of a juror during deliberations. The jurors requested a recharge on the definitions of felony murder and voluntary manslaughter shortly before ending deliberations for the evening. During the overnight recess, one juror copied a portion of the 1971 World Book Encyclopedia containing definitions of manslaughter, voluntary manslaughter, involuntary manslaughter, and a statement of the “usual penalty in the U. S.” for these offenses, which differs from the penalty in Georgia. The juror read from her notes to the other members of the jury, and other jurors testified they relied on that information in reaching their verdict. At least one juror testified she specifically relied upon the information regarding sentencing.

“There is a presumption of prejudice to the defendant when an irregularity in the conduct of a juror is shown and the burden is on the prosecution to prove beyond a reasonable doubt that no harm has occurred. [Cit.]” Lamons v. State, 255 Ga. 511, 512 (340 SE2d 183) (1986). “There is no question that the juror’s study of ‘law’ other than that charged by the trial court was misconduct and though it was honest in its intent, it was nevertheless intentional. . . . The question to be determined here is whether such study or gathering of extrajudicial law was ‘so prejudicial that the verdict must be deemed “inherently lacking in due process.” ’ [Cit.] Under the particular facts of this misconduct, in light of the trial evidence, we are compelled to hold that it was.” Moore v. State, 172 Ga. App. 844, 845-846 (324 SE2d 760) (1984).

As in Moore, the jurors were thoroughly examined as to the circumstances of the verdict and the juror’s study of other law and communication of that law to the other jurors. From their testimony, “[w]e can only conclude that the entire jury was subjected to the charge of extrajudicial ‘law.’ ” 172 Ga. App. at 846. Compare Tate v. State, 198 Ga. App. 276 (1) (401 SE2d 549) (1991) and Jordan v. State, 207 Ga. App. 710 (429 SE2d 97) (1993), in which the information was not communicated to other jurors. The extrajudicial law offered to the jury in this case was prejudicial, particularly as it pertained to sentencing. This is true not only because the information was not in accord with Georgia law (see OCGA § 16-5-2) but because sentencing is a matter outside the purview of the jury. See Howard v. State, 213 Ga. App. 542, 543 (1) (b) (445 SE2d 532) (1994). Therefore, we cannot say it was highly probable the verdict was not affected by the jury misconduct. Under these circumstances, the use of extrajudirial law was so prejudicial as to be inherently lacking in due process. This jury misconduct cannot be ignored, and it requires a reversal of the jury’s verdict and a new trial.

3. Burke enumerates as error the trial court’s denial of his motion to sever. This enumeration is controlled by Chandler v. State, 213 Ga. App. 46, 47 (1) (443 SE2d 679) (1994). The relevant evidence against the co-defendants was unambiguous, the applicable law was straightforward, and there was no evidence of “spillover” effect from one co-defendant to another. The existence of antagonistic defenses, the inculpatory testimony of Stanford, or the loss of the right to make opening and closing statements to the jury do not constitute a showing of prejudice amounting to a denial of due process. “ ‘Absent a showing that (the defendant) was in some way prejudiced by the refusal to sever, no abuse of discretion is demonstrated, and the trial court’s ruling will be upheld. (Cits.)’ [Cit.]” Id. at 47.

4. Burke and Matthews contend the trial court erred in allowing a police investigator to remain at counsel table during trial before being called as a witness for the State. This contention is without merit. No abuse of discretion by the trial judge was shown. Thayer v. State, 189 Ga. App. 321, 325 (3) (376 SE2d 199) (1988).

5. Burke and Matthews also contend the trial court erred in refusing to allow them to cross-examine co-defendant Steele without giving up their right to open and close the concluding arguments to the jury. “However, the right of a defendant introducing no evidence at trial to open and close the final argument is not absolute.” Rogers v. State, 205 Ga. App. 739, 744 (6) (423 SE2d 435) (1992). The cross-examination of a witness in the case constitutes the “introduction of evidence” within the meaning of OCGA § 17-8-71. Lackey v. State, 246 Ga. 331, 337 (10) (271 SE2d 478) (1980). Burke and Matthews were not denied the right to cross-examine witnesses or the right to open and close under OCGA § 17-8-71. They were required to choose, and they did so. This enumeration of error is without merit.

6. Burke and Matthews also complain that the trial court failed to give their requested charge on involuntary manslaughter and that the trial court’s charge on voluntary manslaughter constituted an erroneous “sequential” charge under Edge v. State, 261 Ga. 865 (414 SE2d 463) (1992). Because the propriety of the charges to the jury will depend upon the facts developed in the retrial of the case, we do not address the issue of the court’s charges in the first trial. However, we note in this regard the recent decisions of Foster v. State, 264 Ga. 369 at 370 (1), Shaw v. State, 263 Ga. 88 (428 SE2d 566) (1993), and Waugh v. State, 263 Ga. 692 (2) (437 SE2d 297) (1993).

7. We have examined appellants’ remaining enumerations of error and find that they either are unlikely to recur upon retrial or are without merit.

Decided February 10, 1995.

Merrill, Stone & Parks, George R. Parks, Jr., for appellant (case no. A94A2298).

Reeves & Palmer, Kathy S. Palmer, for appellant (case no. A94A2299).

Lovett Bennett, Jr., for appellant (case no. A94A2300).

Thomas J. O’Donnell, for appellant (case no. A94A2301).

Richard A. Malone, District Attorney, for appellee.

Judgments reversed.

McMurray, P. J., and Pope, P. J., concur.


author: Andrews, Judge.

text:
    A94A2310.
    HERITAGE ON LANIER, INC. et al. v. AKINS et al.
    (454 SE2d 172)
   Andrews, Judge.

In November 1989, Heritage on Lanier, Inc., d/b/a Carriage Nissan (“Heritage”) and Roger Akins entered into a series of agreements concerning the sale of Akins’ automobile enterprise to Heritage. In conjunction therewith, Roger Akins executed an employment contract under which he was to receive $25,000 per year for a period of eight years to act as a consultant to Heritage. Also in connection with the sale, Charlsie Akins executed a lease agreement permitting Heritage to occupy premises she owned from April 2, 1990 until March 31, 2000. Charlsie Akins covenanted to maintain the premises in good and useable repair.

On March 9,1992, Heritage sent a letter to Charlsie Akins notifying her that it considered her to be in default because of three defaults under the lease. Heritage claimed that the roof leaked, that the property housed underground fuel tanks in which hazardous materials were stored in violation of state and federal environmental regulations, and that Akins’ representation that the property was not subject to easements and encumbrances was incorrect. Heritage stated its intent to terminate the lease pursuant to its rights under the “Default Clause” if the defaults were not cured within 30 days. On April 10, Heritage terminated the employment contract. On April 11, it vacated the premises and moved the car dealership to a new location.

On May 8, 1992, Charlsie and Roger Akins filed a complaint alleging that Heritage breached both the lease and employment contracts. Heritage answered and counterclaimed, seeking to recover for damages it claimed to have suffered as a result of Akins’ breach of the lease agreement. Heritage also sought to recover monies it paid for necessary major repairs, which it claimed were Akins’ responsibility.

On May 27, 1993, the Akinses amended the complaint and added Jeffrey Carmichael as a defendant. Carmichael had signed both the lease and the employment contract as a representative and personal guarantor for Heritage.

On August 23, 1993, the Akinses filed a motion for partial summary judgment. In it, they argued that Heritage breached both the lease and employment contracts and that no conduct on their part justified the breaches. Heritage and Carmichael filed a cross-motion for summary judgment arguing that Heritage was authorized to terminate the agreements. With the motion, they filed several affidavits, including Michael Barron’s in which he stated that Heritage sought assurances from Akins that she had a fee simple estate in the leasehold which was subject to no encumbrances. Barron also swore that Heritage had demanded assurances from the Akinses that no hazardous or toxic substances were on the premises. Both Roger and Charlsie Akins’ depositions were also made part of the record.

In a detailed order, the court granted the Akinses’ motion on the employment contract claim and denied both motions concerning the business lease. Here, Heritage and Carmichael appeal.

1. In their first enumeration, Heritage and Carmichael argue thát the court erred in denying their motion for summary judgment on the employment contract claim because the contract was terminable at will. In their second enumeration, Heritage and Carmichael contend that at least a factual issue exists regarding this contract.

The employment contract provided that in exchange for yearly advance payments of $25,000 beginning in 1990 for a period of eight years, Akins would serve as a consultant to Heritage. The contract provided that “[u]pon the payment to Employee, by Employer, the sum of $200,000, under the terms of this contract, such payment shall constitute full performance, and this employment agreement shall terminate.” The document provided that Akins agreed to be available for consultation concerning the automobile sales business, but that he had no fixed or weekly duties. In addition, the contract gave Heritage certain rights if Roger Akins reentered the new car retail sales market before 1994. The contract provided that if Heritage sold the franchise prior to fulfilling its obligations “all monies due under the contract shall become payable immediately.” Notably, there is no provision that if Heritage moved or ceased doing business that the unpaid balance was not due. If either of those events occurred, the unpaid balance was payable as provided in the agreement.

Citing OCGA § 34-7-1 and Harris County v. Penton, 211 Ga. App. 498 (1) (439 SE2d 729) (1993), Heritage and Carmichael argue that the employment contract was insufficiently definite as to duration, was terminable at will and will not support the Akinses’ action for wrongful breach. Heritage and Carmichael’s argument is based on the contract language which states that it was to last “no more than eight years.”

In Harris County, supra, the court found that the employment contract established a maximum duration, but that within the maximum duration period the employment duration was indefinite. The court concluded that the “term of employment under this contract could not be more than 24 months, but it could be less; it therefore was indefinite and terminable at will.” Id. at 500. Accordingly, the court held that Penton’s firing was not actionable.

Here, we agree with the superior court’s conclusion that this contract was distinguishable from that in Harris County and that it was sufficiently definite. The fact that the duration of Akins’ employment contract was tied to his compensation did not render its duration indefinite. As the court below stated: “the duration of employment is simply to be determined by the length of time it takes for Heritage to pay Akins the contract amount of $200,000 under the various contingencies contemplated.” The employment term is for eight years, unless the payment is made sooner.

Accordingly, the terms of the contract were sufficiently definite and the contract was not terminable at will. The superior court’s grant of summary judgment on this issue in favor of the Akinses was appropriate. See generally Wojcik v. Lewis, 204 Ga. App. 301 (1) (419 SE2d 135) (1992). Heritage and Carmichael’s first two enumerations are without merit.

2. Heritage and Carmichael contend that the court erred in denying their motion for partial summary judgment on the Akinses’ claim under the lease agreement. They argue that Charlsie Akins’ failure to timely repair the roof authorized the termination of the lease under the default clause. The default clause of the lease provides that “[djefault in the performance of any covenant, agreement, obligation or condition herein, or breach of any warranty or representation herein on the part of the Lessor . . . shall entitle Lessee ... to terminate this lease, if after giving notice to the Lessor of such intention to terminate, setting forth the ground thereof, the Lessor does not within thirty (30) days cure such default or ground for termination, unless such default cannot be cured under any circumstance within such 30-day period and Lessor promptly institutes action to cure such default and diligently pursues such cure to completion.”

There was evidence that Charlsie Akins initiated roof repairs within 30 days. The court found that factual issues remained regarding whether the repairs could not be completed within 30 days; regarding whether Akins promptly undertook her action to cure the default; and regarding whether she diligently pursued such cure to completion.

Heritage and Carmichael argue that the leaky roof made the premises untenable and that the lease terminated pursuant to the “Destruction of or Damage to Premises” clause. In response, the Akinses contend that the destruction clause was intended for catastrophic events and that a leaking roof is not covered under this.

Decided February 10, 1995.

Uine & Niedrach, Edward Hiñe, Jr., McClellan & Pangborn, Bret J. Pangborn, for appellants.

Carey, Jarrard & Walker, James C. Weidner, for appellees.

The court below found that the “Destruction of or Damage to Premises” clause did not intend to include the processes of deterioration or wear and tear at issue here. We have reviewed the clause and agree with the superior court’s conclusion.

Heritage and Carmichael argue that Heritage was entitled to terminate the lease because Charlsie Akins refused to cure her misrepresentation concerning encumbrances to the property. They also argue that Heritage was entitled to terminate the lease because of Charlsie Akins’ misrepresentation concerning the existence of hazardous substances on the premises. The Akinses argue that neither of these issues interfered in any manner with Heritage’s use of the property. They also contend that Heritage had notice of the encumbrances on the property and that the representations regarding hazardous substances were not material to the agreement.

The superior court determined that it was unnecessary to address these arguments since factual issues remained regarding the roof and its repair. Clearly, these remaining two arguments present factual issues for determination by a jury and the superior court properly denied Heritage and Carmichael’s summary judgment motion as to the lease agreement.

3. Finally, Heritage and Carmichael argue that Carmichael “is entitled to the same relief which it seeks in its appeal.” It argues that as a personal guarantor, Carmichael is vested with all of the affirmative defenses available to Heritage. No “relief” has been afforded Heritage by this appeal; accordingly, Carmichael, as guarantor, is not entitled to relief either.

Judgment affirmed.

Beasley, C. J., and Johnson, J., concur.


author: Pope, Presiding Judge.

text:
    A94A2388.
    CUNNINGHAM v. THE STATE.
    (454 SE2d 176)
   Pope, Presiding Judge.

Defendant David Cunningham was convicted following a bench trial of driving under the influence of alcohol in violation of OCGA § 40-6-391 (a) (1), and appeals.

1. In his first enumeration defendant argues that there was no probable cause to warrant his arrest for driving under the influence, and therefore, that the trial court erred in denying defendant’s motion to dismiss. We find this argument to be meritless. The record in this case shows that on July 17, 1993, Officer Gay of the Millen Police Department was dispatched to The Country Store in response to two calls the police department received, which indicated that someone was driving a red truck in a dangerous manner near the store. The red truck was not at the store when Officer Gay arrived. While Gay was speaking with some people at the store, however, a red truck driven by defendant pulled into view and made a wide turn, driving up onto the sidewalk. The people Gay was talking to indicated that this was the same man who had been there earlier. Based on this information and his own personal observation of the wide turn, Officer Gay stopped defendant.

Officer Gay testified that after he stopped defendant, he observed defendant stumble upon getting out of the truck. Gay also testified that before he arrested defendant, Gay tried to have a conversation with defendant, during which Gay noticed a strong odor of alcohol on defendant’s breath; that defendant slurred his speech; was unsteady on his feet; and that defendant had red, glassy eyes. Based on the above, we reject defendant’s contention that the stopping of his truck was unlawful as being without probable cause. The record clearly indicates that there was at least reasonable and articulable suspicion sufficient to authorize the stop. See Terry v. Ohio, 392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968). Additionally, the facts set forth above demonstrate that Officer Gay had probable cause at the time he arrested defendant to believe that defendant was driving under the influence of alcohol to the extent that it was less safe for him to be driving. See Griggs v. State, 167 Ga. App. 581 (307 SE2d 75) (1983). Consequently, we conclude that the trial court did not err in denying defendant’s pre-trial motion to dismiss.

2. In his second enumeration, defendant contends that the trial court erred in failing ito grant his first oral motion to exclude the results of his Intoximeter 3000 test. Specifically, defendant argues that the results should have been excluded because the test was improperly and incompetently administered. We disagree. Officer Gay, who performed the test, testified that he was certified to operate the machine and that he followed the guidelines for testing. Additionally, Gay testified that the Intoximeter 3000 had been checked periodically by the Georgia State Patrol. This testimony provided a proper foundation for the admission of the test results. See Harris v. State, 199 Ga. App. 457 (405 SE2d 501) (1991). “The defendant’s challenge to the reliability of the test results did not affect their admissibility under these circumstances, but went merely to the weight to be placed on them by the [trier of fact]. Dotson [v. State, 179 Ga. App. 233 (345 SE2d 871) (1986)]. Accord Burks v. State, 195 Ga. App. 516 (2) (a) (394 SE2d 136) (1990).” (Punctuation omitted.) Harris, 199 Ga. App. at 459. Therefore, the trial court properly denied defendant’s first motion to exclude the test results.

Decided February 10, 1995.

Jerry M. Daniel, for appellant.

R. H. Reeves III, for appellee.

3. Defendant also contends that the trial court erred in failing to exclude the Intoximeter 3000 test results because he was not properly advised of his implied consent rights. This argument is also meritless. Although Officer Gay admitted that he did not recite the statutory provisions of Georgia’s implied consent law to defendant verbatim, Officer Gay’s undisputed testimony shows that he sufficiently notified defendant of his implied consent rights prior to defendant taking the Intoximeter 3000 test. See Howard v. Cofer, 150 Ga. App. 579, 580 (258 SE2d 195) (1979). Consequently, we conclude that the trial court did not err in denying defendant’s second oral motion to suppress.

Judgment affirmed.

McMurray, P. J., and Smith, J., concur.


text:
    A94A2539.
    ALTO PARK SUPER MART, INC. v. WHITE.
    (454 SE2d 580)
   Smith, Judge.

Gary White brought suit against Alto Park Super Mart, Inc. (“Alto”), seeking damages for injuries allegedly suffered in a slip and fall on Alto’s premises. A jury returned a verdict in favor of White, and Alto appeals, enumerating as error the trial court’s grant of a motion in limine and an instruction to the jury. We affirm.

1. Alto first contends that the trial court erred in granting White’s motion in limine regarding his 1988 plea of nolo contendere in the State of Florida. An exemplified copy of the plea in the record shows that White entered a plea of nolo contendere to a charge of perjury by contradictory statement in an official proceeding, and the trial court entered an “Order Withholding Adjudication of Guilt and Placing Defendant on Probation.”

The Georgia statutory provision governing the use of a plea of nolo contendere is straightforward: “Except as otherwise provided by law, a plea of nolo contendere shall not be used against the defendant in any other court or proceedings as an admission of guilt or otherwise or for any purpose.” OCGA § 17-7-95. However, several limited exceptions to this rule have been established by the decisions of this court and the Georgia Supreme Court. For example, a witness in a civil action may be impeached by the witness’s prior plea of nolo contendere to a felony or other crime involving moral turpitude. Jabaley v. Mitchell, 201 Ga. App. 477 (411 SE2d 545) (1991); Tilley v. Page, 181 Ga. App. 98, 99 (4) (351 SE2d 464) (1986). Compare State v. Rocco, 259 Ga. 463 (384 SE2d 183) (1989) (such impeachment not permitted in a criminal prosecution). Perjury is a felony under the laws of both Florida and Georgia. OCGA §§ 16-10-70, 16-1-3 (5); Fla. Stat. Ann., § 837.02 (1) (West 1994).

The Supreme Court, however, has refused to permit civil impeachment using a guilty plea with disposition under the Georgia first offender statute. Upon completion of the terms of probation under the first offender statute, a defendant is “discharged without court adjudication of guilt” and “shall not be considered to have a criminal conviction.” OCGA § 42-8-62 (a). “This provides the person who successfully completes his probation under the first offender statute protection against the stigma of a criminal record. Because there was a guilty plea rather than a conviction . . . evidence of that guilty plea is not admissible for the purpose of impeaching the witness by showing him to have been convicted of a crime involving moral turpitude.” Witcher v. Pender, 260 Ga. 248, 249 (392 SE2d 6) (1990). It follows that a plea of nolo contendere with disposition under the Georgia first offender statute is also inadmissible for this purpose. See Bentley v. B. M. W., Inc., 209 Ga. App. 526, 529 (3) (433 SE2d 719) (1993).

Therefore, we must consider whether the Florida court’s order withholding adjudication of guilt and placing White on probation is the equivalent of a disposition under the Georgia first offender statute. The relevant Florida statute, F. S. A. § 948.01 (2) (West Supp. 1995), provides in part: “If it appears to the court upon a hearing of the matter that the defendant is not likely again to engage in a criminal course of conduct and that the ends of justice and the welfare of society do not require that the defendant presently suffer the penalty imposed by law, the court, in its discretion, may either adjudge the defendant to be guilty or stay and withhold the adjudication of guilt; and, in either case, it shall stay and withhold the imposition of sentence upon such defendant and shall place him upon probation.”

Decided February 10, 1995.

Kinney, Kemp, Pickett, Sponcler & Joiner, Henry C. Tharpe, Jr., Tracey S. Witt, for appellant.

Bennett & Hamilton, Lindsay H. Bennett, Jr., L. Hamilton Bennett III, for appellee.

The Florida Supreme Court has noted that the purpose of this provision is to provide “a powerful tool because, by withholding adjudication of guilt, the court can avoid creating a criminal record for someone with good prospects for rehabilitation. [Cit.]” Sanchez v. State, 541 S2d 1140, 1141 (2) (Fla. 1989). The statute itself, its application, and the intended result show it to be the functional equivalent of the Georgia first offender statute. Therefore, a plea of nolo contendere and order withholding the adjudication of guilt under F. S. A. § 948.01 (3) is inadmissible to impeach a witness by showing conviction of a felony, and the trial court did not err in granting White’s motion in limine.

2. Alto also complains that the trial court’s charge on White’s future earnings was not adjusted to the evidence. As a general rule, all future earnings or diminished future earnings are uncertain and difficult to determine. However, a plaintiff may nevertheless recover if there is evidence from which the jury can estimate or reasonably infer the loss or decrease in the earning capacity. Evidence of the permanency of a plaintiffs injury, its effect on earnings, and the amount of earnings will support a jury charge on the loss of future earnings. Super Discount Markets v. Coney, 210 Ga. App. 659, 660 (1) (436 SE2d 803) (1993). “The quantum of evidence sufficient to support a charge and resulting verdict for loss of wages need not be substantial or even direct. It is enough if there is slight evidence which may give rise to an inference from which lost wages as damages may be drawn and computed. [Cit.]” Robert & Co. Assoc. v. Tigner, 180 Ga. App. 836, 844 (2) (351 SE2d 82) (1986). See Strickland v. Howard, 214 Ga. App. 307 (447 SE2d 637) (1994). White presented evidence that his injury was severe and progressively worsening, to the extent that eventually he would be unable to work at his present employment. He testified he was unable to work as many hours per day as he could before the injury and was losing approximately $200 in earnings per work day. The trial court did not err in charging the jury on future earnings.

Judgment affirmed.

McMurray, P. J., and Pope, P. J., concur.

       A party need not tender copies of all applicable foreign law in order to rely upon it. The party need only provide timely notice of an intention to rely on foreign law, by means of pleadings or other written notice. OCGA § 9-11-43 (c); Fortson v. Fortson, 204 Ga. App. 827, 828 (1) (421 SE2d 106) (1992). White’s presentation of the exemplified copy of the Florida court’s order, its inclusion in the pretrial order, and the filing of White’s motion in limine constituted sufficient notice of White’s intention to rely upon the relevant law. Moreover, in the absence of proof of foreign law we presume it is the same as that of Georgia. Id. at 828-829.


author: Blackburn, Judge.

text:
    A95A0604.
    JILES et al. v. PETERS.
    (454 SE2d 178)
   Blackburn, Judge.

The appellants/plaintiffs, Hope Jiles and her husband Bernard Jiles, appeal from the judgment entered on the jury’s verdict in favor of the appellee/defendant, Thomas F. Peters, in this personal injury action. In two separate enumerations of error, the Jileses challenge the trial court’s instructions to the jury.

The evidence viewed in the light most favorable to the jury’s verdict shows that at approximately midnight on September 18, 1990, Hope Jiles was a passenger in a vehicle driven by Franchester Townsend northbound on Interstate 1-75. Townsend exited the interstate at the Delk Road exit in Cobb County. The exit ramp was under construction and construction barrels lined the ramp. Townsend stopped her vehicle at the yield sign at the end of the ramp to discuss dining plans with her passengers. It is undisputed that there were no cars in front of Townsend’s vehicle at the time that the vehicle approached the end of the ramp. However, the evidence was in dispute as to whether there were vehicles traveling on Delk Road which would have prevented the entry of a vehicle going eastbound onto Delk Road. Peters saw Townsend’s vehicle stopped at the yield sign as he approached Delk Road from the exit ramp. He applied his brakes and decreased his speed, but ran into the rear of Townsend’s vehicle.

1. Initially, the Jileses maintain that the trial court erred in charging the jury on OCGA § 40-6-184 (a), as requested by Peters, after specifically ruling that it would not charge said Code section. Specifically, the Jileses assert that the court erred in charging the jury that “[n]o person shall drive a motor vehicle at such a slow speed as to impede the normal and reasonable movement of traffic, except when reduced speed is necessary for safe operation.” OCGA § 40-6-184 (a). The Jileses contend that the trial court misled counsel and violated OCGA § 5-5-24 (b) in so charging the jury.

OCGA § 5-5-24 (b) requires a trial court to inform counsel of its proposed actions on requested charges prior to argument to the jury. The trial court violated this statute in giving said charge contrary to its ruling at the conference without notice to the parties or an opportunity to be heard. See Harris v. State, 202 Ga. App. 618 (4) (414 SE2d 919) (1992). However, at no time did the Jileses’ counsel request to reargue the facts in light of the charge given. “If [plaintiffs’] counsel had been misled as to the intended charge, the remedy was to request to reargue the facts in light of the charge given. [Cits.]” Gadd v. Wilson & Co. Engineers, 193 Ga. App. 713, 715 (3) (388 SE2d 875) (1989). See Hudson v. State, 150 Ga. App. 126, 127 (257 SE2d 312) (1979). Since this issue was not properly preserved for appellate review, the trial court did not err in denying their motion for new trial on this ground.

Decided February 10, 1995.

Coppedge, Goddard & Leman, Warren N. Coppedge, Jr., for appellants.

Downey, Cleveland, Parker, Williams & Davis, G. Lee Welborn, for appellee.

2. Next, the Jileses argue the trial court erred in charging the jury that Peters “was either solely negligent or that he was guilty of concurrent negligence equal to the negligence of the driver of the vehicle in which the plaintiff was riding, if you find that vehicle driver was negligent.” They assert that the trial court, in giving this charge, eliminated the concept of joint and severable liability, and the court did not correctly charge the jury on the principle of concurrent negligence.

Our review of the transcript shows that the trial court charged the jury on the principles of proximate cause, concurrent negligence, and joint and severable liability prior to its instruction to the jury on the above-quoted charge. The charge was not given “standing alone,” but was part of an extensive and complete charge to the jury on concurrent acts of negligence which can proximately cause an injury, and the charges given were adequate to inform the jury of the pertinent principles of law. See Jackson v. Lynch, 203 Ga. App. 244 (1) (416 SE2d 564) (1992). Accordingly, we cannot say that the charge in question, considered in light of the charge as a whole, was erroneous. Id.

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.


text:
    A94A2274, A94A2275.
    SOUTHERN MEDICAL CORPORATION v. LIBERTY MUTUAL INSURANCE COMPANY; and vice versa.
    (454 SE2d 180)
   Birdsong, Presiding Judge.

We granted both parties’ separate applications for interlocutory appeal to review the trial court’s order denying both parties’ cross-motions for summary judgment seeking to enforce a settlement agreement in an action to collect premiums for workers’ compensation insurance. As the appeals arise from the same action below, the parties’ appeals are consolidated for disposition. Both parties contend the case was settled by Southern Medical’s agreement to consent to judgment, that the attorneys had authority to enter into the settlement agreement, and that the settlement agreement should be enforced.

The record shows that after Liberty Mutual sued Southern Medical to recover approximately $65,000 unpaid premiums for workers’ compensation insurance on the hospital’s employees, the case was placed on a trial calendar. Counsel for the parties then began settlement negotiations.

These negotiations culminated in a letter from Liberty Mutual’s counsel that outlined the agreement between the parties. According to the letter, Southern Medical agreed to a consent judgment for the full amount sought in Liberty Mutual’s suit in return for Liberty Mutual’s agreement that the judgment would be entered when Southern Medical ceased operation. The relevant portions of the letter state as follows: “Please accept this letter as confirmation of our discussions . . . regarding [this case]. After discussion and negotiation we determined that the best interest of our clients rested in administratively closing this action before Toombs County until such time as your client’s last facility is closed. Upon the cessation of operations by your client you have agreed to enter into a consent judgment against the corporation in the entire amount sued upon.” The terms of the agreement were announced later in open court and the case was removed from the trial calendar.

Subsequently, the particular attorney who negotiated the agreement left the firm representing Liberty Mutual and another attorney assumed responsibility for the case. The new attorney then requested that the case be placed on the calendar of a trial term. When Southern Medical moved to enforce the settlement agreement, Liberty Mutual also moved to enforce the settlement agreement contending that Southern Medical had ceased operations, and responded to Southern Medical’s motion with a certificate of fact from the Office of the Secretary of State of Georgia that stated: “Southern Medical Corporation a domestic profit corporation was mailed a notice in accordance with Title 14 of the Official Code of Georgia Annotated and was involuntarily or administratively dissolved or revoked by the Office of the Secretary of State on [July 1, 1993] for failure to file its annual registration. This certificate is issued pursuant to Title 14 of the Official Code of Georgia Annotated and is prima-facie evidence of the existence or nonexistence of the facts stated herein.” This certificate was filed on January 31, 1994. In response, Southern Medical, on the day of the hearing on the motions, filed an affidavit that stated that the affiant had “personal knowledge of the facts set forth herein. I am an officer of Southern Medical Corporation and I hereby confirm that Southern Medical Corporation continues in business and Southern Medical Corporation’s last facility has not been closed.” After the trial court denied both motions, these appeals followed. Held:

1. Although whether a settlement agreement is enforceable as a contract is a question of law for the court to decide (Gray v. Higgins, 205 Ga. App. 52, 53 (421 SE2d 341)), the lower court elected to consider the enforceability of this agreement on cross-motions for summary judgment. Therefore, we will apply summary judgment law in deciding these appeals.

2. “ ‘Under Georgia law, an agreement alleged to be in settlement and compromise of a pending lawsuit must meet the same requisites of formation and enforceability as any other contract. In this regard, it is well settled that an agreement between two parties will occur only when the minds of the parties meet at the same time, upon the same subject matter, and in the same sense.’ (Citations and punctuation omitted.) Wilkins v. Butler, 187 Ga. App. 84, 85 (369 SE2d 267) (1988).” Johnson v. Gwinnett County, 215 Ga. App. 79, 80 (449 SE2d 856). Further, the “compromise of a dispute is binding on the parties. The law favors compromises, and a promise made in extinguishment of a doubtful claim is sufficient to support a valid contract. Where parties to litigation have entered into a definite, certain, and unambiguous settlement agreement, which is not denied, the trial court should make the agreement the judgment of the court, thereby terminating the litigation.” (Citation and punctuation omitted.) Smith v. Haverty Furniture Co., 173 Ga. App. 447, 448 (326 SE2d 812). Here, as both parties have moved to enforce the settlement agreement there are no issues concerning the authority to enter into the agreement or the terms of the agreement. The only question concerned whether the time for enforcement of the agreement had arrived, i.e., whether Southern Medical Corporation had ceased operations.

Although there is some question whether the certificate of the Secretary of State and the affidavit by the Southern Medical officer were timely filed under OCGA § 9-11-56 (c), the trial court has discretion to consider untimely affidavits. Brown v. Williams, 259 Ga. 6, 7 (375 SE2d 835); Splish Splash Waterslides v. Cherokee Ins. Co., 167 Ga. App. 589, 595 (307 SE2d 107). As the trial court clearly considered both documents, we must conclude that it did so through the exercise of its discretion, and will conduct our review accordingly. Moreover, we note that other affidavits and statements filed in the trial court referred to matters which were clearly hearsay. Of course, “hearsay testimony is not only inadmissible but wholly without probative value, and its introduction without objection does not give it any weight or force whatever in establishing a fact.” Higgins v. Trentham, 186 Ga. 264 (1) (197 SE 862). Therefore, hearsay contained in the affidavits cannot be considered.

3. The standards applicable to motions for summary judgment are announced in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474). In considering whether the affidavit of the Southern Medical officer was sufficient to warrant the trial court’s deferring the enforcement of the agreement by entry of the consent judgment until some future date, we note that the affidavit sets forth such facts that would be admissible in evidence, and shows affirmatively that the officer was competent to testify to the matters stated in the affidavit. OCGA § 9-11-56 (e). Therefore, the affidavit was sufficient to establish that Southern Medical continued in operation and that its last facility had not closed. This was sufficient to rebut Liberty Mutual’s motion for summary judgment.

Decided February 13, 1995.

Newton, Smith, Durden, Kaufold & Rice, William R. Rice, Liggin & Winkler, H. James Winkler, for appellant.

Lamb & Associates, W. L. Henderson, for appellee.

Although Liberty Mutual relied upon the certificate from the Secretary of State’s office to establish its case, the certificate was insufficient for its purposes. Under OCGA § 14-2-128 (c) the matters stated in the certificate were conclusive unless rebutted. Here the affidavit was sufficient to rebut the certificate. Moreover, the certificate did not satisfy Liberty Mutual’s objection to establish that Southern Medical’s last facility had closed.

Therefore, although we find that the agreement embodied in the letter from Liberty Mutual’s former counsel was the consent agreement between the parties, the trial court did not err by refusing to enforce the consent agreement at this time. Therefore, the order of the trial court denying both parties’ motions for summary judgment must be affirmed.

Judgments affirmed.

Blackburn and Ruffin, JJ., concur.


text:
    A94A2121.
    BARTON et al. v. BARTON et al.
    (454 SE2d 155)
   McMurray, Presiding Judge.

This is an appeal from an order granting a final judgment canceling a deed to secure debt in a quia timet action under the provisions of OCGA § 23-3-40 et seq. Held:

1. Contrary to appellees’ suggestion, this appeal in an equity case is not subject to transfer to the Supreme Court, but is within the jurisdiction of this court since only issues of law are raised by appellants’ enumerations of error and there is no substantive issue of equity presented. Beauchamp v. Knight, 261 Ga. 608, 609 (2) (409 SE2d 208).

2. The trial court did not err in denying defendant W. F. Barton’s motion for a continuance of the trial date due to health reasons. The recital of facts in this motion did not suggest that this defendant was expected to improve so as to be available for trial at a later date or that the defendant’s case could not be adequately presented in his absence. Allen v. Brookshire, 169 Ga. App. 391 (1) (312 SE2d 862).

Decided February 1, 1995

Reconsideration denied February 14, 1995.

W. F. Barton, pro se.

Barbara Barton, pro se.

Dye, Tucker, Everitt, Wheale & Long, John B. Long, for appellees.

We also note that a subsequent motion for continuance due to medical reasons by both of the defendants is also meritless. This later motion was not filed until after the date of the trial sought to be continued.

3. The final judgment being appealed, which is the sole order or ruling of the trial court in the record, was entered following a non-jury trial. This order includes rulings upon several pre-trial motions and indicates that the evidence at trial was considered in connection with the motion rulings. Each of the remaining enumerations of error submitted on appeal is dependent upon consideration of the evidence heard by the trial court. The pro se appellants have failed to include in their notice of appeal a statement, as required by OCGA § 5-6-37, indicating whether any transcript of evidence and proceedings is to be transmitted as a part of the record on appeal. No transcript being included in the record on appeal, we must rely upon the presumption in favor of the regularity of all proceedings in a court of competent jurisdiction and assume that the evidence was sufficient to authorize the final judgment entered in the trial court. Burnette v. McCarter, 211 Ga. App. 781, 783 (3) (440 SE2d 488); Bennett v. Executive Benefits, 210 Ga. App. 429 (436 SE2d 544); Prada v. Small Business Admin., 208 Ga. App. 710 (432 SE2d 274).

Judgment affirmed.

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


text:
    A94A2635.
    COFFEE COUNTY SCHOOL DISTRICT et al. v. SNIPES.
    (454 SE2d 149)
   Andrews, Judge.

Appellee’s five-year-old child fell while playing at school and severely fractured her elbow. On behalf of the child, appellee sued the Coffee County School District, Hierling, a school teacher, and Johnson, a paraprofessional teacher’s aide. The individual defendants were employed by the school district and were in charge of the child’s class at the time of the fall. The defendants moved for summary judgment on grounds that the school district was entitled to sovereign immunity and the individual defendants were entitled to official immunity. We granted the defendants’ application for an interlocutory appeal from the trial court’s denial of their motion for summary judgment.

Since the present cause of action accrued on August 30,1991, this case is governed by the 1991 amendment to Art. I, Sec. II, Par. IX of the Georgia Constitution of 1983 applicable to causes of action accruing on or after January 1, 1991. Curtis v. Bd. of Regents, 262 Ga. 226 (416 SE2d 510) (1992). The 1991 amendment provides in part that: “(a) The General Assembly may waive the state’s sovereign immunity from suit by enacting a State Tort Claims Act, in which the General Assembly may provide by law for procedures for the making, handling, and disposition of actions or claims against the state and its departments, agencies, officers, and employees, upon such terms and subject to such conditions and limitations as the General Assembly may provide. . . . (e) Except as specifically provided in this Paragraph, sovereign immunity extends to the state and all of its departments and agencies. The sovereign immunity of the state and its departments and agencies can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver.”

We conclude that the 1991 amendment extending sovereign immunity “to the state and all of its departments and agencies” includes county-wide school districts, such as the Coffee County School District, created pursuant to Art. VIII, Sec. V, Par. I of the 1983 Georgia Constitution and OCGA § 20-2-50. Like the counties within which they are created, such school districts are political subdivisions of the state entitled to the sovereign immunity extended to the state. Cotton States Mut. Ins. Co. v. Keefe, 215 Ga. 830, 834 (113 SE2d 774) (1960); Towns v. Suttles, 208 Ga. 838, 840 (69 SE2d 742) (1952); Pinion v. Walker County School Dist., 203 Ga. 99, 102-103 (45 SE2d 405) (1947); see Gilbert v. Richardson, 264 Ga. 744 (452 SE2d 476) (1994) (1991 amendment extends sovereign immunity to counties as political subdivisions of the state); compare City of Thomaston v. Bridges, 264 Ga. 4 (439 SE2d 906) (1994) (concluding that municipalities are not entitled to sovereign immunity under the 1991 amendment); Thomas v. Hosp. Auth. of Clarke County, 264 Ga. 40 (440 SE2d 195) (1994) (holding that a hospital authority is not an entity entitled to sovereign immunity).

Prior to the 1991 constitutional amendment, the Georgia Constitution of 1983 extended sovereign immunity to the state in language virtually identical to that used in the 1991 amendment. The pre-1991 sovereign immunity provisions were construed to apply to political subdivisions of the state including counties, county boards of education and county school districts. Thigpen v. McDuffie County Bd. of Ed., 255 Ga. 59 (335 SE2d 112) (1985); Sisson v. Douglas County School Dist., 181 Ga. App. 77, 78 (351 SE2d 272) (1986). Since the 1991 amendment was proposed and ratified with full knowledge of the construction placed upon the existing sovereign immunity provisions, and there is no evidence that the similar language of the 1991 amendment was not intended to apply to county school districts, the extension of sovereign immunity “to the state and all of its departments and agencies” under the 1991 amendment applies to county school districts. See Gilbert, supra.

Under the authority of the 1991 constitutional amendment, the General Assembly subsequently enacted “The Georgia Tort Claims Act” (OCGA § 50-21-20 et seq.), applicable to causes of action accruing on or after January 1, 1991. The Georgia Tort Claims Act provides for a limited waiver of the state’s sovereign immunity for the torts of its officers and employees, but it expressly excludes school districts from the waiver. OCGA § 50-21-22 (5); see Daniels v. Decatur County, 212 Ga. App. 378, 379 (441 SE2d 790) (1994). Although the 1991 amendment does not restrict the legislature’s authority to waive sovereign immunity to the Georgia Tort Claims Act, any such waiver must be by a “legislative act which specifically provides that sovereign immunity is waived and the extent of such waiver.” Gilbert, supra at 748.

Appellee suggests for the first time in his appellate brief that the Coffee County School District waived sovereign immunity to the extent that liability insurance was purchased covering the damages at issue. See Gilbert, supra; OCGA § 20-2-991. Despite the fact that the 1991 amendment eliminated the constitutional provision that sovereign immunity was waived to the extent of liability insurance protection, the Supreme Court in Gilbert, supra, concluded that the county’s purchase of liability insurance pursuant to OCGA § 33-24-51 constituted a waiver of sovereign immunity because OCGA § 33-24-51 (b), which states that “governmental immunity shall be waived to the extent of the amount of insurance so purchased,” provides both a waiver of sovereign immunity and the extent of such waiver as contemplated by the 1991 amendment. By contrast, the provisions of OCGA § 20-2-991 concerning the purchase of liability insurance covering the school district do not provide for a waiver of sovereign immunity as contemplated by the 1991 amendment. In the absence of a waiver in compliance with the 1991 amendment, it is irrelevant that OCGA § 20-2-992, providing that the purchase of such insurance shall not be construed as a waiver of immunity, was declared unconstitutionally void. Thigpen, supra at 59; Gilbert, supra. In any event, the record in this case does not show that appellee raised the issue of insurance in the trial court and there is nothing in the record showing that liability insurance exists. See Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Since there is no legislative act specifically providing that the sovereign immunity of the school district is waived and the extent of such waiver, the Coffee County School District is entitled to summary judgment on the basis of sovereign immunity.

Similarly, to the extent Hierling and Johnson were sued in their personal capacities for actions taken within the scope of their duties as employees of the school district, they are entitled to summary judgment on the basis of official immunity.

Subsection (d) of the 1991 amendment to Art. I, Sec. II, Par. IX of the 1983 Georgia Constitution extends official immunity to state officers and employees: “Except as specifically provided by the General Assembly in a State Tort Claims Act, all officers and employees of the state or its departments and agencies may be subject to suit and may be liable for injuries and damages caused by the negligent performance of, or negligent failure to perform, their ministerial functions and may be liable for injuries and damages if they act with actual malice or with actual intent to cause injury in the performance of their official functions. Except as provided in this subparagraph, officers and employees of the state or its departments and agencies shall not be subject to suit or liability, and no judgment shall be entered against them, for the performance or nonperformance of their official functions. The provisions of this subparagraph shall not be waived.”

“According to the plain language of subsection (d), state officers and employees and those of its departments and agencies are subject to suit only when they negligently perform or fail to perform their ‘ministerial functions’ or when they act with actual malice or intent to cause injury in the performance of their ‘official functions.’ . . . [T]he term ‘official functions’. . . mean[s] any act performed within the officer’s or employee’s scope of authority, including both ministerial and discretionary acts. Under this definition, the 1991 amendment provides no immunity for ministerial acts negligently performed or for ministerial or discretionary acts performed with malice or an intent to injure. It, however, does provide immunity for the negligent performance of discretionary acts, which is consistent with prior law. This interpretation comports with the purpose of providing immunity from personal liability to government employees who work in positions where they make policy or exercise discretion.” Gilbert, supra at 753.

Decided January 30, 1995

Reconsideration denied February 14, 1995

Young, Clyatt, Thagard & Hoffman, F. Thomas Young, Sherry S. Harrell, for appellants.

Kenneth E. Futch, Jr., Jimmy J. Boatright, for appellee.

Appellee contends that Hierling and Johnson negligently supervised the child during a class recess period in the school gymnasium, and that this supervisory activity was ministerial in nature. There is no allegation that the individual defendants acted with malice or an intent to injure. The affidavit of the school district superintendent provided in support of the motion for summary judgment states that there were no written rules or regulations pertaining to supervision of the recess activities at issue, and that control and supervision of such activities were within the discretion of the defendants. We have previously held that similar supervision and control of students by teachers is a discretionary function. Guthrie v. Irons, 211 Ga. App. 502, 504-507 (439 SE2d 732) (1993); see Lewis v. McDowell, 194 Ga. App. 429, 431 (390 SE2d 605) (1990); Hennessy v. Webb, 245 Ga. 329, 332 (264 SE2d 878) (1980); Hicks v. Walker County School Dist., 172 Ga. App. 428, 429-430 (323 SE2d 231) (1984). Since Hierling and Johnson were performing discretionary functions when the fall occurred, they are immune from personal liability under subsection (d) of the 1991 amendment.

Judgment reversed.

Beasley, C. J., and Johnson, J., concur.

       The Georgia Constitution further provides that: “The General Assembly may waive the immunity of counties, municipalities, and school districts by law.” Ga. Const. 1983, Art. IX, Sec. II, Par. IX.


text:
    A95A0422.
    HARRIS v. THE STATE.
    (454 SE2d 146)
   Blackburn, Judge.

Woodrow Harris appeals his conviction by a jury of driving under the influence of alcohol, hindering a law enforcement officer, no proof of insurance, and improper lane change. On appeal, Harris contends the trial court failed to allow a thorough and sifting cross-examination of the State’s witness with regard to any bias of the witness against black males.

Harris testified that the arresting officer, Officer Shumake, of the University of Georgia Police Department, kicked him while he was on his knees on the ground with handcuffs on his wrists. Subsequent to his arrest, Harris filed a complaint against Officer Shumake for police brutality. Harris’ counsel sought to question Officer Shumake regarding an alleged complaint of police brutality made against him by another black male. In Harris’ offer of proof, outside the presence of the jury, Harris sought to introduce testimony regarding an attorney’s letter sent to the University of Georgia Police Department alleging police brutality by Officer Shumake against a black male and demanding payment in settlement of the claim in lieu of the filing of a complaint. Harris argues that this testimony established Officer Shumake’s bias against black males. The trial court refused to allow Harris’ counsel to question Officer Shumake regarding the alleged previous incident as irrelevant.

Decided January 27, 1995

Reconsideration denied February 14, 1995

Joel N. Shiver, for appellant.

Woodrow Harris, pro se.

Kenneth W. Mauldin, Solicitor, Ralph W. Powell, Jr., Ethelyn N. Simpson, Assistant Solicitors, for appellee.

Harris “had the right to a thorough and sifting cross-examination of any witness called against him. OCGA § 24-9-64. . . . However, the extent of cross-examination can be curtailed if the inquiry is not relevant or material, and such restriction lies within the discretion of the trial court which will not be disturbed on appeal unless manifestly abused. [Cits.]” (Punctuation omitted.) Fletcher v. State, 197 Ga. App. 112, 113 (397 SE2d 605) (1990). “Trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on cross-examination (about possible witness bias) based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant. Delaware v. Van Arsdall, 475 U. S. 673, 679 (106 SC 1431, 89 LE2d 674) (1986). See Lee v. State, 258 Ga. 762 (6) (374 SE2d 199) (1988).” (Punctuation omitted.) White v. State, 201 Ga. App. 53, 55 (410 SE2d 441) (1991).

It is important to note that the trial court did not restrict Harris’ counsel from questioning Officer Shumake regarding any bias he had toward black males, but merely restricted Harris’ counsel from questioning Officer Shumake regarding an alleged prior brutality incident, in which no formal complaint had apparently been filed. Under the facts of this case, we find no abuse of the trial court’s discretion.

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.


text:
    A94A2051.
    MOORE v. LOUIS SMITH MEMORIAL HOSPITAL, INC.
    (454 SE2d 190)
   Pope, Presiding Judge.

Plaintiff is an elderly resident of defendant nursing home. Plaintiff was injured on May 22, 1991, when her foot became caught in a bed rail while a nursing assistant employed by defendant was helping plaintiff get into bed. Plaintiff filed suit against defendant on May 27, 1993, seeking damages for the injuries she suffered in 1991. Defendant filed a motion for summary judgment, contending that plaintiff’s action was barred by the two-year statute of limitation applicable to actions for medical malpractice. OCGA § 9-3-71. The trial court granted defendant’s motion, and plaintiff filed the present appeal to this court.

Plaintiff contends the trial court erred in granting defendant’s motion because her complaint did not allege medical malpractice but instead sought recovery against defendant based upon ordinary negligence and breach of contract. Moreover, she contends, the two-year statute of limitation on her negligence claim was tolled by her mental incompetency, and the statute of limitation with respect to her contract claim is four rather than two years in any case. Defendant argues that under OCGA § 9-3-70 (2), any claim for damages arising out of the “[c]are or service rendered by any public or private hospital, nursing home, clinic, hospital authority, facility or institution, . . .’’is defined as an action for medical malpractice, and that because the periods of limitation applicable to medical malpractice actions are not tolled by mental incompetency, see OCGA § 9-3-73 (b) and Kumar v. Hall, 262 Ga. 639 (423 SE2d 653) (1992), the trial court properly granted summary judgment in this case.

We reject defendant’s argument that any cause of action arising out of care provided by a health care facility is automatically one for medical malpractice. Not all injuries that occur in a hospital, nursing home or other health care facility are the result of professional negligence; they may be solely attributable to ordinary or simple negligence. See Self v. Exec. Comm. &c., 245 Ga. 548 (266 SE2d 168) (1980). For that reason, our appellate courts have consistently looked to the claim stated rather than the entity or person sued when determining whether an action is for professional malpractice or ordinary negligence. “[S] imply because an alleged injury occurs in a hospital setting, a suit to recover for that injury is not necessarily a ‘medical malpractice’ action. [Cit.] Likewise, not every suit which calls into question the conduct of one who happens to be a medical professional is a ‘medical malpractice’ action. A professional malpractice action is merely a professional negligence action and calls into question the conduct of a professional in his area of expertise.” Candler Gen. Hosp. v. McNorrill, 182 Ga. App. 107, 109-110 (354 SE2d 872) (1987). Consequently, we must look to the substance of an action against a medical professional, hospital, or health care facility in determining whether the action is one for professional or simple negligence.

Decided February 14, 1995.

John M. Cullum, for appellant.

Tillman, McTier, Coleman, Talley, Newbern & Kurrie, Wade H. Coleman, Edward F. Preston, for appellee.

In this case, plaintiff was injured while being moved from her wheelchair to her bed. The record does not show and defendant does not suggest that this aspect of plaintiff’s care was required to be performed by a person with medical training or that it involved the exercise of medical judgment or required medical expertise. Accord Candler Gen. Hosp., 182 Ga. App. at 110. “[U]nder all of the evidence of record, the safe movement of [plaintiff] from the [wheelchair to the bed] was merely an act of relative physical strength and dexterity rather than an act requiring the exercise of expert medical judgment.” Id. Because plaintiff’s claim was based on ordinary rather than professional negligence, the running of the statute may be tolled by her mental incompetency. As plaintiff points out, the question of mental capacity is ordinarily one of fact to be determined by the trier of fact. Chapman v. Burks, 183 Ga. App. 103, 107 (357 SE2d 832) (1987). The trial court thus erred in granting summary judgment on plaintiff’s negligence claim.

Moreover, because the statute of limitation on plaintiff’s contract claim is four years, the trial court also erred in granting summary judgment on that claim.

Judgment reversed.

McMurray, P. J., and Smith, J., concur.