text:
    A97A2038.
    MORETON ROLLESTON, JR. LIVING TRUST v. GLYNN COUNTY BOARD OF TAX ASSESSORS.
    (491 SE2d 812)
   Eldridge, Judge.

Appellant Moreton Rolleston, Jr. Living Trust owned three properties in Glynn County, Georgia: (1) Cottage No. 303, Lots 1072, 1073-1071, 05-00166 0011-10 014-004, Sea Island, Georgia (“Tract One”); (2) Vacant Lot, Lot 1, 2 Blk 65, 05-00176 0011-10 019-001, Sea Island, Georgia (“Tract Two”); and (3) 2225 Bruce Drive, 04-02972, S001-00 006-008,19 & 20 B127, East Beach, St. Simons Island, Georgia (“Tract Three”). In 1995, appellee Glynn County Board of Tax Assessors (“Assessors”) reassessed the property by raising the fair market value (“FMV”) as follows: (1) Tract One from $839,776 to $1,146,375; and (2) Tract Two from $235,000 to $279,000; the raise in FMV of Tract Three was subsequently settled and is not in dispute. Within 45 days of the date of assessment by the Assessors, on September 11,1995, appellant filed a notice of appeal pursuant to OCGA § 48-5-311 (e) (2). The Assessors did not respond to appellant’s notice of appeal for over 180 days, which under OCGA § 48-5-311 (e) (3), should automatically cause the appeals to be referred to the Joint Board of Equalization for hearing upon such failure by the Assessors; this referral has never been made by the Assessors. The Board of Equalization failed to set a hearing date within 15 days of the receipt of the notice of appeal as required by OCGA § 48-5-311 (e) (6) (A) and failed to hold a hearing within 30 days of the notification of the appeal, because no notification was given to them by the Assessors under OCGA § 48-5-311 (e) (6) (A) and (B).

On June 26, 1996, in Civil Action 93-00359, Superior Court of Glynn County, Gary Moore, Glynn County Attorney, acting on behalf of Glynn County Assessors, entered into a settlement with appellant of a prior tax appeal over reassessments of the property. The settlement was made and entered as a consent order and judgment that established the FMV of Tract One at $839,776 and of Tract Two at $235,000, for the ad valorem taxable years of 1992, 1993, and 1994.

On June 17, 1996, appellant filed a complaint against the Assessors in the Superior Court of Glynn County, praying “[tjhat this Court enter an Order declaring that the increase in fair market value of Plaintiff’s property for the years 1995 and 1996 be declared invalid.” The basis for declaring the reassessments invalid is ££[t]he failures of the Assessors and the Board of Equalization [of Glynn County] to follow procedures set forth hereinabove nullifies the increase in fair market values of Tracts One, Two and Three over and above the fair market values established for said Tracts for the tax years [1995 and 1996].” The Assessors answered on August 1, 1996. On August 12, 1996, appellant moved for summary judgment. The Assessors filed their motion for summary judgment on September 9, 1996.

On January 22, 1997, the trial court dismissed the complaint for lack of jurisdiction, finding “that it is without jurisdiction to entertain such motions. The Georgia Supreme Court has held in a number of cases that £as a matter of policy and judicial economy, a Superior Court should not exercise its equitable jurisdiction in tax assessment cases to address issues of valuation, taxability, uniformity, constitutionality, including the constitutionality of appraisal methods, and procedure, which may be reviewed via statutory appeal to a county board of equalization pursuant to OCGA § 48-5-311.’” Appeal was filed to the Supreme Court timely. By order of the Supreme Court of Georgia, this appeal was transferred to this Court.

1. Appellant’s first enumeration of error is that the trial court erred in dismissing the complaint.

Appellant filed a complaint asking the trial court for declaratory relief, i.e., to find that the reassessments by the Assessors for the years 1995 and 1996 were invalid for failure to follow OCGA § 48-5-311 (e) (2), (3), and (6) (A) and (B). While the complaint does not specifically invoke OCGA § 9-4-1 et seq., the complaint sets forth a case of uncertainty, where declaratory judgment is sought to declare the assessments for 1995 and 1996 invalid, because the Assessors have failed or refused to act under a statutory mandate that would otherwise give appellant the right to appeal to superior court.

Declaratory judgments are used to “settle and afford relief from uncertainty and insecurity with respect to rights, status, and other legal relations; and this chapter is to be liberally construed and administered.” OCGA § 9-4-1; Burgess v. Burgess, 210 Ga. 380, 382-383 (2) (80 SE2d 280) (1954); Calvary Independent Baptist Church v. City of Rome, 208 Ga. 312, 315 (4) (66 SE2d 726) (1951); City of Brunswick v. Anderson, 204 Ga. 515 (1) (50 SE2d 337) (1948). The purpose of declaratory relief is to permit a determination of the obligations of the parties before such obligations are repudiated or rights are violated. Rowan v. Herring, 214 Ga. 370, 372-373 (105 SE2d 29) (1958). The goal of declaratory judgment is not to delay the trial of a case in which rights have already vested, but to guide the parties and prevent uncertainty and insecurity with respect to the propriety of some future act or conduct in order not to jeopardize their interests. Pendleton v. City of Atlanta, 236 Ga. 479 (1) (224 SE2d 357) (1976). In the case sub judice, appellant is uncertain as to whether he must continue to follow the statutory appeal procedure under OCGA § 48-5-311 (e) in order to contest the reassessment of his property, or whether such reassessment is void and can be ignored, because the Assessors failed or refused to act under the statutory mandate.

Under OCGA § 9-4-3 (a), “[flurther plenary relief, legal . . . , including [legal injunction under OCGA § 9-4-3 (b) and] mandamus . . . , may be sought in a petition seeking declaratory judgment, and in such case, the action shall be governed as to process, service, and procedure by Code Section 9-4-5. In all such cases, the court shall award to the petitioning party such relief as the pleadings and evidence may show him to be entitled; and the failure of the petition to state a cause of action for declaratory relief shall not affect the right of the party to any other relief, legal or equitable, to which he may be entitled.”

Even if no other relief is set forth in the appellant’s complaint, it appears to have set forth the elements for a mandamus to issue against the Assessors to compel them to do what they are mandated to do, within certain time parameters. OCGA § 48-5-311 (e). “All official duties should be faithfully performed; and whenever, from any cause, a defect of legal justice would ensue from a failure to perform or from improper performance, the writ of mandamus may issue to compel a due performance, if there is no other specific legal remedy for the legal rights.” OCGA § 9-6-20; Wofford Oil Co. of Ga. v. City of Calhoun, 183 Ga. 511 (189 SE 5) (1936). Mandamus is the remedy for official inaction. Coastal Svc. v. Jackson, 223 Ga. 238 (154 SE2d 365) (1967); Touchton v. Echols County, 211 Ga. 85 (84 SE2d 81) (1954). Here, the acts of the Assessors in transmitting the notice of appeal to the Board of Equalization is purely ministerial and requires no exercise of discretion after the passage of 180 days without action on their part. Anderson v. McMurry, 217 Ga. 145 (121 SE2d 22) (1961). Under the plain language of OCGA § 48-5-311 (e), appellant has a legal right to such procedure. In fact, the trial court correctly held that appellant has no right to equitable relief, only relief under OCGA § 48-5-311 (e). City of Atlanta v. North by Northwest Civic Assn., 262 Ga. 531, 535 (3) (422 SE2d 651) (1992).

Under Ga. Const. 1983, Art. VI, Sec. I, Par. IV, and Art. VI, Sec. IV, Par. I, the Superior Court of Glynn County has jurisdiction over both declaratory actions and petitions for writs of mandamus. See also OCGA § 9-4-5. Therefore, the trial court erred in finding that it lacked jurisdiction as it had jurisdiction at law to afford the relief prayed for by declaratory judgment. The court also had equity jurisdiction, but should exercise, judicial restraint in tax cases, under certain circumstances. City of Atlanta v. North by Northwest Civic Assn., supra at 535; Tax Assessors of Gordon County v. Chitwood, 235 Ga. 147, 153-154 (218 SE2d 759) (1975); Vann v. DeKalb County Bd. of Tax Assessors, 186 Ga. App. 208 (367 SE2d 43) (1988). However, appellant did not bring this as an action in equity, and it appears that other possible relief exists, either in declaratory judgment and/ or writ of mandamus, which the trial court has not addressed on the merits. Fulton County Bd. of Tax Assessors v. Jones, 264 Ga. 828 (452 SE2d 99) (1995). Therefore, the trial court’s dismissal for lack of jurisdiction is reversed, and the case is remanded for further consideration not inconsistent with this opinion.

2. Appellant’s second enumeration of error is that the trial court dismissed the complaint seeking the declaration that the Assessors’ reassessment of the property in 1995 and 1996 was invalid under OCGA § 48-5-299 (c), because in a prior appeal of a reassessment for 1992, 1993, and 1994, a consent order was issued fixing the FMV, and the Assessors were without power to reassess the property for two years under such order in 1995 and 1996, absent a showing that the reassessment came within an exception.

Appellant failed to raise this issue in the court below or to perfect the record by putting the consent order in evidence; however, on remand these issues and the construction of OCGA § 48-5-299 (c) must be dealt with in the declaratory judgment action, because proof of the consent order of the superior court on a tax appeal setting FMV for 1992, 1993, and 1994, and establishing the reassessment values for 1992, 1993, and 1994, brings the 1995 and 1996 reassessments into the two-year period of prohibited reassessment. Thus, unless the Assessors can demonstrate an exception under OCGA § 48-5-299 (c), the Assessors acted without authority to reassess this property during the years 1995 and 1996. If appellant prevails on these issues, then the 1995 and 1996 reassessments are illegal and void ab initio, and appellant is entitled to a declaratory judgment to that effect and to such ancillary relief as is necessary to enforce the judgment. Otherwise, the trial court must decide the issues presented in Division 1.

Subsection (c) of OCGA § 48-5-299 was added by Ga. L. 1994, p. 786, § 1. The title of the amendment is “Revenue — Ad Valorem Taxes; Realty; Valuation by Board of Equalization or Superior Court; Investigation Required Before Change for Two Years,” which indicates that an “Investigation [of the subject property is] required before change [in reassessments established by the Board of Equalization or Superior Court] for two years.” The caption of the act, which describes the content and purpose of the amendment as notice to the voting legislators, states: “To amend Code Section 48-5-299 of the Official Code of Georgia Annotated, relating to ascertainment and assessment duties of county boards of tax assessors, so as to provide for conditions under which valuations established or decisions rendered on certain appeals can be changed by such board', to provide an effective date; to provide for applicability, to repeal conflicting laws; and for other purposes.” (Emphasis supplied.)

Thus, the title and caption indicate that the intent of the General Assembly was to limit reassessment of property for two years, except under certain conditions, after a FMV determination has been made on appeal by either the county board of equalization or the superior court. The reason for such change is that some county tax assessors, at the mandate of the law, and the State Revenue Commissioner, who annually must approve the county tax digests, have reassessed property upward each year, even though the county tax assessors compromise, settle, or lose appeals as to such FMV before boards of equalization or superior court, and the assessors have reasserted such same reassessment over and over in subsequent years. This is the “salami slice” approach to reassessment, one small slice at a time; this slicing away at the whole reassessment, even though the assessors may lose most of what they reassess on appeal, get a small reassessment each time, or sooner or later the property owner either will miss a filing deadline for appeal or gives up the fight without an appeal. This approach is costly to the property owner in legal fees, litigation costs, and time. Far worse, it appears to the property owner as a hopeless and endless battle with government to take more taxes than are owed. Therefore, it is little wonder that the General Assembly intended to afford the property owner some relief after a tax appeal, no matter the outcome. The plain and unambiguous language of the amendment grants meaningful tax relief from repeated annual reassessments by the assessors when there has been an appeal, made simply to raise revenue, without the county commissioners, school board, or municipal council having to take a politically unpopular action to increase the millage rate.

Such plain and unequivocal language of a statute is not subject to judicial construction. See OCGA § 1-3-1 (a), (b); City of Jesup v. Bennett, 226 Ga. 606, 609 (2) (176 SE2d 81) (1970). Further, revenue statutes are to be construed liberally in favor of the property owner and strongly against the taxing authority. Telecom*USA v. Collins, 260 Ga. 362, 364 (393 SE2d 235) (1990); Collins v. American Tel. &c. Co., 219 Ga. App. 196, 197 (1) (464 SE2d 642) (1995); Seaboard Coast Line R. Co. v. Blackmon, 129 Ga. App. 342, 344 (199 SE2d 581) (1973).

The language of OCGA § 48-5-299 (c) states plainly that “[r]eal property, the value of which was established by an appeal in any year, . . . may not be changed by the board of tax assessors during such two years for the sole purpose of changing the valuation established or decision rendered in an appeal to the board of equalization or superior court” (Emphasis supplied.) The first exception to this general tax relief is that, where the property owner returns the property at a “different value,” either upward or downward, the tax assessor may reassess the property during the two-year period. “[S]ole purpose of changing the valuation established or decision rendered in an appeal to the board of equalization or superior court” provides the second exception, which would be either sale of the property or a reassessment of a general area or an entire county-wide reassessment. Both of these exceptions are limited in application by the specific conditions which also must be satisfied for the reassessment to be exempted from the general prohibition. “In such cases [of exception to the prohibition against reassessment], before changing such value or decision, the board of assessors shall first conduct an investigation into factors currently affecting the fair market value. The investigation necessary shall include, but not be limited to, a visual on-site inspection of the property to ascertain if there have been any additions, deletions, or improvements to such property or the occurrence of other factors that might affect the current fair market value and a review to determine if there are any errors in the description and characterization of such property in the files and records of the board of tax assessors.” (Emphasis supplied.) OCGA § 48-5-299 (c).

If the property or tax records reflect an incorrect area of land or past improvements to the property have been erroneously indicated in the tax records, then such error can be corrected and the property reassessed, because any prior assessment was based upon error which may have affected the FMV. Likewise, the nature, use, and character of the property may also be in error and permit a reassessment to correct such error.

A generalized factoring upward or downward of all real property in a county is excluded, as is a county-wide reassessment, unless the subject property also had a specific investigation that found certain factors to have changed. OCGA § 48-5-299 (c). The reason that both cannot provide a basis for reassessment is that the appeals process determined the specific FMV of the subject property, while a factoring mandated by the Revenue Commissioner or a county-wide reassessment is for the purposes of general equalization of all property values only and does not take into account the actual FMV of the subject property as determined on appeal or the prohibition against reassessment for two years under OCGA § 48-5-299 (c).

The reassessment of the subject property requires a change in such factors to be investigated specifically as to how the factors affect the FMV of the subject property as a condition precedent to reassessment. Under OCGA § 48-5-299 (c), such factors are stated as: (1) additions to improved realty, (2) deletions from improved realty, (3) improvements to the property, and (4) “the occurrence of other factors that might affect the current fair market value.” (Emphasis supplied.)

What constitutes “the occurrence of other factors that might affect the current fair market value” lacks clarity and is open to different interpretations so that statutory construction is necessary. Frazier v. Southern R. Co., 200 Ga. 590, 593 (2) (37 SE2d 774) (1946); Thompson v. Ga. Power Co., 73 Ga. App. 587, 597 (37 SE2d 622) (1946). The cardinal rule of statutory construction is to find the legislative intent and to effectuate such intent. Miller v. Ga. Ports Auth., 266 Ga. 586, 587 (470 SE2d 426) (1996); City of Roswell v. City of Atlanta, 261 Ga. 657 (1) (410 SE2d 28) (1991); Mullins v. First Gen. Ins. Co., 253 Ga. 486, 487 (322 SE2d 265) (1984); Hollowell v. Jove, 247 Ga. 678, 681 (279 SE2d 430) (1981); Lamons v. Yarbrough, 206 Ga. 50, 55 (1) (55 SE2d 551) (1949).

The General Assembly must be presumed to have enacted this amendment with full knowledge of the tax laws, the application of such reassessments every year after tax appeals, and the hardships such action by county assessors may cause to the property owner. Therefore, it seems apparent that the General Assembly intended to give meaningful tax relief from reassessment following an appeal for the two years after which the appeal fixed the FMV, unless some significant factors cause the FMV to substantially change during such time period. Obviously, the change contemplated by the statute, which would permit reassessment, must be substantial', otherwise, the amendment is rendered meaningless because normal market forces, in most areas of the State, are always changing FMV in small incremental percentages, except in the rare circumstance of economic stagnation. This Court must construe the statute to have a logical meaning in harmony with existing law, and not to create an absurd result with regard to the existing law and the problem that the General Assembly sought to correct by enactment. State of Ga. v. Davis, 246 Ga. 761 (1) (272 SE2d 721) (1980); McPherson v. City of Dawson, 221 Ga. 861, 862 (148 SE2d 298) (1966); Sale v. Leachman, 218 Ga. 834, 836 (1) (131 SE2d 185) (1963); Wigley v. Hambrick, 193 Ga. App. 903, 905 (4) (389 SE2d 763) (1989). Therefore, the fourth factor, “occurrence of factors that might affect the current [FMV],” must be specifically related to the subject property, and not a mere general rise in area or county-wide real estate values. Moreover, the other three specific factors, as well as the correction of errors, deal only with the subject property; therefore, the fourth factor must also relate directly to the subject property.

For “the occurrence of other factors that might affect the current fair market value” to mean general market forces would render the amendment meaningless when inflation or deflation exists, because some change in the real estate market always exists. Such tax relief would be an illusion that the General Assembly did not intend; this amendment was intended to afford some short period of relief from reassessment absent an exception. Thus, the rule of noscitur a sociis applies, i.e., the precise meaning of words are to be derived from other associated words so that the words cannot be separated without impairing or destroying the evident sense the words were designed to convey. Since the General Assembly intended to have a catchall category of the same nature as the foregoing three specific factors, this fourth factor was created to avoid a limited group of factors and to cover unforeseen similar factors that could substantially affect FMV. See Mott v. Central R., 70 Ga. 680, 683-684 (1883); see also McKenzie v. Seaboard System R., 173 Ga. App. 402, 404 (1) (326 SE2d 502) (1985); Royal Indem. Co. v. Agnew, 66 Ga. App. 377, 378-380 (18 SE2d 57) (1941). Likewise, the rule ejusdem generis applies to reach the same result, where the effect of a general term following specific terms confines the general term in its meaning to the specific terms; thus, the general catchall factor is limited in its meaning to the same kind of factors as the specific factors listed before it. Independent Ins. Agents of Ga. v. Dept. of Banking &c. of Ga., 248 Ga. 787, 789 (285 SE2d 535) (1982); Ga. Bd. of Chiropractic Examiners v. Ball, 224 Ga. 85, 89 (1) (160 SE2d 340) (1968); Jenkins v. Jones, 209 Ga. 758, 761 (1) (75 SE2d 815) (1953); Beck v. Wade, 100 Ga. App. 79, 82 (1) (110 SE2d 43) (1959); Gore v. State, 79 Ga. App. 696, 704 (1) (54 SE2d 669) (1949); McGee v. Bennett, 72 Ga. App. 271 (1), 272 (33 SE2d 577) (1945).

The meaning of the phrase “the occurrence of other factors that might affect the current fair market value” then can be determined from analysis of the three specific factors directly impacting the value of the subject property and “affecting fair market value.” Such factors “affecting fair market value” during the two-year period would include: (1) a sale of truly comparable property in close proximity, which sales price must reflect a substantial change in FMV over the appeal valuation of FMV of the subject property, such as to cause a substantial increase in the subject property; (2) construction of highways or other public improvements in close proximity; (3) rezoning of the subject property or other property in close proximity; (4) development, subdivision, or improvement of adjacent property; (5) a public or private nuisance effecting a change in the subject property, as reflected in the market; (6) change in the flood plain designation or other substantial change in the exercise of police powers affecting use of the subject property; (7) a natural or man-made substantial change in the surrounding property by disaster or otherwise; or (8) other similar factors which directly and substantially affect the FMV of the subject property during such two-year period.

Factors that occur prior to the two-year period are subsumed to have already affected the FMV as determined specifically as to the subject property by the board of equalization or the superior court on appeal and cannot be redetermined, absent a showing of error or fraud in such reassessment. Thus, reassessment to avoid disparate treatment of other property valuations after an area or county-wide reassessment will not satisfy the specific factors, because the earlier reassessment appealed from has already determined the subject property’s FMV in the county. To construe the statutory language to permit a general reassessment, despite the specific prohibition against reassessment for a period of two years, absent the presence of an exception, would make the legislature’s amendment meaningless, as if never enacted, and would reach an absurd result. Thus, the general increase in FMV of either the subject property or surrounding property cannot serve as a catchall factor, absent the presence of one or more of the foregoing three factors or other similar specific factors. Sirmans v. Sirmans, 222 Ga. 202, 204 (149 SE2d 101) (1966); see also Lamons v. Yarbrough, supra.

Furthermore, the intent of the General Assembly can be derived from the caption of the act; the caption contains the General Assembly’s own interpretation of the purpose and scope of the act in a summary form, which is consistent with the foregoing interpretation. Copher v. Mackey, 220 Ga. App. 43, 45 (5) (467 SE2d 362) (1996); Wilson v. Miles, 218 Ga. App. 806, 808-809 (3) (463 SE2d 381) (1995); Sovereign Camp Woodmen of the World v. Beard, 26 Ga. App. 130, 131 (105 SE 629) (1921).

Decided August 22, 1997

Reconsideration denied September 4, 1997

Moreton Rolleston, Jr., for appellant.

Whelchel, Brown, Readdick & Bumgartner, Terry L. Readdick, Gregory T. Carter, W. Gary Moore, for appellee.

The case sub judice is remanded for determination of petition for declaratory judgment not inconsistent with this opinion.

Judgment reversed and remanded for further determination.

Birdsong, P. J, and Ruffin, J., concur in judgment only.


source: Caselaw Access Project

author: Pope, Presiding Judge.

license: Public Domain

text:
    A97A2158.
    CUMBERLAND DISTRIBUTION SERVICES, INC. et al. v. FUSON.
    (492 SE2d 2)
   Pope, Presiding Judge.

Charles Fuson worked for Cumberland Distribution Services, Inc., from February 6, 1995, until his termination for cause on October 31, 1995. On June 9, 1995, he reported a neck injury at work. Fuson did not miss any work because of the injury and only sought medical benefits before his termination. Afterwards, however, Fuson asserted a disability claim, and Cumberland began paying temporary total disability benefits without an award.

Subsequently, Cumberland discovered that Fuson was working as an “extra” in a movie or television project and suspended benefits on April 9, 1996, based upon a change in condition, i.e., Fuson’s return to work. Soon thereafter, Cumberland’s insurer discovered that Fuson had a history of prior neck problems. In particular, the insurer obtained physician notes concerning Fuson’s seeking treatment for swimmer’s ear on June 5, 1995 (four days before the alleged injury) which record Fuson’s complaint of a chronic neck problem and numbness in his left arm. In light of that newly discovered evidence, the employer/insurer then filed a notice to controvert on May 14, 1996.

Following a hearing on the matter, the administrative law judge (ALJ) concluded that the evidence was insufficient to support suspension of benefits based upon Fuson’s limited work as an “extra.” However, the ALJ found that Fuson had lied about his condition in both this claim and an earlier workers’ compensation claim, and that the newly discovered evidence established that Fuson’s neck problem pre-existed his employment with Cumberland and was not aggravated by that work. The ALJ then found that Cumberland was authorized to suspend benefits on April 9, 1996, based upon the newly discovered evidence and assessed a total of $15,000 in civil penalties against Fuson for having advanced fraudulent claims.

The appellate division upheld the ALJ’s determination, but the superior court reversed, holding that Cumberland’s notice to controvert was invalid under Cartersville Ready Mix v. Hamby, 224 Ga. App. 116 (479 SE2d 767) (1996), and Southeastern Aluminum Recycling v. Rayburn, 172 Ga. App. 648 (324 SE2d 194) (1984). This Court then granted Cumberland’s discretionary appeal.

Under OCGA § 34-9-221 (h), ££[w]here compensation is being paid without an award, the right to compensation shall not be controverted except upon the grounds of change in condition or newly discovered evidence unless notice to controvert is filed with the board within 60 days of the due date of first payment of compensation.” In Rayburn and Hamby, this Court construed that Code section to require employers to pay timely all benefits due; otherwise, a notice to controvert filed pursuant to OCGA § 34-9-221 (h) is invalid.

The legislative intent behind OCGA § 34-9-221 was to minimize the hardship on injured employees by requiring employers to act quickly in controverting a claim or pay compensation while they investigate the matter. ££[S]ubsection (h) of the statute is clearly intended to provide some form of protection to the employee’s right to continued receipt of the compensation.” (Citation, punctuation and emphasis omitted.) Hamby, 224 Ga. App. at 118.

Cumberland proposes limiting the rule set forth in Rayburn and Hamby to the situation presented in those cases, i.e., where an employer attempts to controvert a claim within 60 days of the due date of first payment of compensation but fails to pay all benefits due before filing the notice to controvert. However, the need for protecting an employee’s right to continued receipt of compensation is even greater where the employee has depended upon such compensation for a longer period of time. If a notice to controvert filed within 60 days of the first payment is invalid where the employer fails to pay all benefits due, it logically follows that the same rule should apply to the limited situations where an employer may file a notice to controvert after the 60-day period.

In the instant case, however, it does not appear that Cumberland failed to pay all benefits due before filing its notice to controvert. OCGA § 34-9-221 (i) provides that ££[w]here compensation is being paid with or without an award and an employer or insurer elects to controvert on the grounds of a change in condition or newly discovered evidence, the employer shall, not later than ten days prior to the due date of the first omitted payment of income benefits, file with the board and the employee or beneficiary a notice to controvert the claim in the manner prescribed by the board.” Rule 221 (i) (1) of the Rules & Regulations of the State Board of Workers’ Compensation provides that “[suspension of benefits at any time on the grounds of change in condition requires advance notice of 10 days unless the employee has actually returned to work” (Emphasis supplied.)

Decided August 19, 1997

Reconsideration denied September 4, 1997

Zirkle & Hoffman, G. Scott Hoffman, for appellants.

As noted above, Cumberland filed a notice immediately suspending benefits on April 9, 1996, based upon the information that Fuson had actually returned to work, and Fuson requested a hearing on that suspension. During the pendency of the dispute over the suspension, Cumberland’s insurer discovered the evidence of Fuson’s pre-existing complaints of chronic neck pain and numbness in his left arm and filed the notice to controvert based on that newly discovered evidence. Both issues were litigated during the hearing that the ALJ eventually held on July 3, 1996.

Fuson prevailed on the issue of whether Cumberland properly suspended benefits based on his return to work, and that partial victory could have subjected Cumberland to an assessment of attorney fees pursuant to OCGA § 34-9-108 (b) (2) and Board Rule 221 (i) (1). See, e.g., Carr v. A. P. & Harry Jones Logging, 198 Ga. App. 698 (402 SE2d 538) (1991). But there is no authority for finding that the adverse ruling invalidated Cumberland’s notice of suspension.

Inasmuch as Fuson’s benefits were already suspended at the time Cumberland’s insurer discovered the basis for controverting the claim, the ten-day advance notice requirement of OCGA § 34-9-221 (i) was inapplicable. To hold otherwise would require Cumberland to wait until the disposition of the suspension dispute before it could give notice to controvert, which would be contrary to the legislative intent to require an employer to act quickly when it realizes a claim is controvertible. By filing the notice to controvert during the pendency of the suspension dispute, Cumberland conserved the time and resources of all parties, the State Board, and the courts.

In summary, under the circumstances presented in this case, Cumberland was not delinquent on its payment of benefits due at the time it filed the notice to controvert, and the notice was not invalid on that basis. Accordingly, the superior court’s judgment is reversed, and the case is remanded for consideration of other issues Fuson raised in his appeal to the superior court.

Judgment reversed.

Johnson and Blackburn, JJ, concur.

Stephen A. Friedman & Associates, Michael D. Thorpe, for appellee.


author: Ruffin, Judge.

text:
    A97A1112.
    OSBORNE BONDING & SURETY COMPANY v. STATE OF GEORGIA.
    (491 SE2d 837)
   Ruffin, Judge.

Osborne Bonding & Surety Company (“Osborne”) appeals from a final judgment entered against it and Eduardo Mejia on a forfeited criminal appearance bond. For reasons which follow, we affirm.

The record shows that Mejia, as principal, and Osborne, as surety, were jointly and severally liable under the bond. After Mejia failed to appear in Clayton County Superior Court as required by the bond, the trial court forfeited the bond and set a hearing date for Osborne to show cause why final judgment should not be entered on the forfeiture. The trial court held the show cause hearing and, on November 15, 1996, dismissed the case without prejudice. By order dated December 2,1996, the trial court subsequently vacated the dismissal and entered judgment against Mejia and Osborne for the bond amount plus costs.

1. Osborne first argues that the trial court erred in dismissing the case on November 15, 1996, without prejudice because the parties and the court agreed that the dismissal would be with prejudice. Osborne, however, has pointed to no evidence of such an agreement in the record. To the contrary, the dismissal order clearly shows that the State agreed to dismiss the case only without prejudice. Accordingly, we find no error here.

2. Osborne further claims that the trial court erred in vacating the dismissal order on December 2, 1996, and entering a final judgment of forfeiture. The trial court initially dismissed the action because the required hearing on the bond forfeiture was held outside the statutory period set forth in OCGA § 17-6-71 (a). Upon further review, however, the trial judge determined that the State’s failure to hold the hearing within the statutory period did not excuse Osborne from its obligations under the bond. Thus, the trial court vacated the dismissal and entered final judgment of forfeiture.

On appeal, Osborne argues that (a) the trial court improperly concluded the bond was subject to forfeiture, and (b) the trial court had no authority to vacate the prior order of dismissal. We disagree.

(a) OCGA § 17-6-71 (a) provides that “[t]he judge shall, at the end of the court day, upon the failure of the principal to appear, forfeit the bond and order an execution hearing not sooner than 120 days but not later than 150 days after such failure to appear.” (Emphasis supplied.) It is undisputed that the execution hearing was held over 150 days after Mejia failed to appear. The trial court and the State calculate the delay as only three days, while Osborne apparently contends that the hearing was held four days late. Nevertheless, all agree that the hearing was untimely.

Decided September 4, 1997

Stephen E. Boswell, for appellant.

Citing this delay, Osborne argues that the State’s failure to hold the hearing within the statutorily mandated 150 days precludes bond forfeiture. As we have previously held, however, “[a] surety must show harm as well as error before it will be relieved of liability based on failure to conduct an execution hearing within the time prescribed by OCGA § 17-6-71 (a). [Cit.]” U. S. Bonds v. State of Ga., 224 Ga. App. 758, 759 (481 SE2d 887) (1997). The trial court specifically determined that Osborne suffered no harm from the hearing delay. We similarly find that Osborne has not presented any evidence of harm caused by the delay, which the parties agree was only a matter of days. Accordingly, the trial court did not err in entering judgment against Osborne on the forfeited bond.

(b) We further find no error in the trial court’s decision to vacate its prior dismissal order. “A trial judge has the power during the same term of court at which a judgment is rendered to reverse, correct, revoke, modify or vacate the judgment in the exercise of his discretion. [Cit.]” Bank of Cumming v. Moseley, 243 Ga. 858 (257 SE2d 278) (1979). By vacating a judgment, the trial court returns the case to the posture it occupied prior to that judgment. Id. See also Daza v. State of Ga., 224 Ga. App. 383, 384 (480 SE2d 622) (1997). The trial court’s exercise of this inherent power will not be reversed absent manifest abuse of discretion. Young Constr. v. Old Hickory House #3, 210 Ga. App. 559, 561 (2) (b) (436 SE2d 581) (1993).

The terms of the Superior Court of Clayton County commence on the first Monday in February, May, August, and November. OCGA § 15-6-3 (10). The order of dismissal was entered during the November 1996 term. See id. The trial court vacated the dismissal later in that same term, on December 2, 1996. As noted above, we found no error in the trial court’s conclusion that the case should not be dismissed because Osborne remained liable under the terms of the bond, despite the hearing delay. Accordingly, the trial court did not abuse its discretion in vacating the November 15, 1996 order of dismissal. Bank of Cumming, supra; Young Constr., supra.

Judgment affirmed.

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

Robert E. Keller, District Attorney, Donald M. Comer II, Brian J. Amero, Assistant District Attorneys, for appellee.


author: Judge Harold R. Banke.

text:
    A97A1137.
    PIEFER v. THE STATE.
    (491 SE2d 836)
   Judge Harold R. Banke.

Jason John Piefer was convicted of one count of armed robbery. Enumerating two errors, Piefer challenges the in-court identification procedure and a jury instruction.

On appellate review, the evidence which follows must be viewed in a light most favorable to the verdict. Cline v. State, 221 Ga. App. 175 (471 SE2d 24) (1996). At gunpoint, Piefer and his co-defendant, Michael Dodge, robbed a convenience store clerk. Piefer placed a weapon on the end of the victim’s nose and demanded cash. A juvenile, who remained outside as the getaway driver, testified that he overheard Piefer yell, “Give me the f-king money.” During their escape, Piefer and Dodge tossed some of their clothing out a car window. Investigators subsequently recovered a hat, a sweatshirt, and a flannel shirt, which the victim recognized as being worn by the perpetrators. The victim was not able to identify either assailant but remembered their attire and mannerisms.

According to the juvenile, Piefer was wearing the blue checked, long sleeve flannel shirt and a Mighty Ducks hat, and Dodge was wearing a pullover sweater and an Atlanta Braves hat. He further testified that Piefer had the gun in his hand when he entered and when he exited the store. Dodge, who pleaded guilty to robbery by intimidation, identified Piefer as both the instigator and the gunman. The testimony of Dodge and the juvenile was corroborated by several other witnesses, including the detective who initially solved the case when interviewing the juvenile for unrelated crimes. According to Dodge’s mother, on the night of the robbery, she overheard the young men on the porch of her home discussing the details of what transpired. A mutual friend of the perpetrators testified that when they visited his home, they bragged about committing the armed robbery. During their visit, Piefer reenacted how he had held the gun on the victim. Over objection, the prosecutor had Piefer try on the Mighty Ducks hat and the flannel shirt. At that point, the victim still was unable to identify Piefer as one of the robbers, testifying only that his appearance seemed “in the ballpark.” The victim readily conceded that “a thousand or a million other people” could be in that ballpark. Later, at the request of defense counsel, the juvenile tried on the same clothes, and Dodge tried on the shirt. Held:

1. Piefer contends that his constitutional protection against self-incrimination was violated when the State compelled him to try on the clothes found near the crime scene. He claims that the State forced him to give evidence against himself. OCGA § 24-9-20 (a). See Hambrick v. State, 204 Ga. App. 668, 670 (3) (420 SE2d 308) (1992) (requiring an accused to submit to act distinguished from requiring an accused to perform an act). Pretermitting whether compelling Piefer to put on the hat and shirt constituted constitutional error, we find that any such error was harmless beyond a reasonable doubt. Brown v. State, 262 Ga. 833, 836 (10) (426 SE2d 559) (1993). As the record makes plain, after Piefer donned the shirt and hat, the victim was still unable to identify him as the gunman. In light of the overwhelming evidence of Piefer’s guilt, including his confession to others, his reenactment of the robbery at gunpoint to a friend, and the corroborating testimony of his two accomplices, we hold there is no reasonable possibility that the compelled display contributed to Piefer’s conviction. Id. at 837 (10).

Decided September 4, 1997.

Alan J. Baverman, for appellant.

Thomas J. Charron, District Attorney, James E. Albertelli, Debra H. Bernes, Michael S. Moody, Nancy I. Jordan, Assistant District Attorneys, for appellee.

2. Piefer contends that the trial court erred in its instruction by requiring the jury to reach a unanimous verdict as to the offense of armed robbery before considering the lesser included offense. Although it is error to require a jury to unanimously agree on the greater offense before considering a lesser offense, the trial court imposed no such requirement in this case. Cantrell v. State, 266 Ga. 700, 703 (469 SE2d 660) (1996); Brewer v. State, 224 Ga. App. 656, 658 (3) (481 SE2d 608) (1997). The record shows that the trial court did not insist on unanimous agreement by the jury before it could proceed to the lesser included offense of robbery by intimidation. Cantrell, 266 Ga. at 703. Having examined the instruction as a whole, we find no error.

Judgment affirmed.

Johnson and Blackburn, JJ, concur.


text:
    A97A1240.
    SOUTHERN GUARANTY INSURANCE COMPANY v. SINCLAIR et al.
    (491 SE2d 843)
   Ruffin, Judge.

On December 31, 1993, Havard Sinclair and Kevin Riggins suffered personal injuries in an automobile collision with Sheniqua Durham. Sinclair and Riggins were minors at the time of the collision, and the car in which they were riding was owned by Sinclair’s mother, Irene Sinclair. Irene Sinclair insured the car under a policy issued by Southern Guaranty Insurance Company (“Southern”). Southern paid $1,405 in medical payments coverage under the policy for Havard Sinclair’s medical treatment and $1,440 for Riggins’ medical care. Havard Sinclair and Riggins subsequently settled their personal injury claims against Durham for $4,750 and $3,750, respectively. Southern filed this action against Sinclair and Riggins for reimbursement of the medical care expenses it paid under the medical payments provision of the policy. The parties filed cross-motions for summary judgment, and Southern appeals the trial court’s denial of its motion and grant of the defendants’ motion. For reasons which follow, we affirm.

The reimbursement clause in Irene Sinclair’s insurance policy with Southern provides that upon Southern’s disbursement of medical coverage payments under the policy, the insurance company “shall be entitled, to the extent of such payment, to the proceeds of any settlement or judgment that may result from the exercise of any rights of recovery which the injured person or anyone receiving such payment may have against any person or organization. . . .” (Emphasis supplied.) Southern asserts that this provision entitles it to reimbursement of the payments it made for Sinclair’s and Riggins’ medical treatment, and the trial court therefore erred in denying its motion and granting the defendants’ motion. In deciding these issues we must review the evidence cited by the parties and determine whether genuine issues of material fact remain to be tried or whether Southern or the defendants are entitled to judgment as a matter of law. See Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991) .

Sinclair and Riggins contend that Southern is not entitled to reimbursement for medical expense payments because their settlement with Durham did not include compensation for medical expenses. Specifically, the defendants argue that because they were minors when they were treated for their accident injuries, they were not liable for payment of the medical expenses and therefore had no right to personally recover such damages from Durham. We agree.

Under OCGA § 19-7-2, parents are responsible for medical expenses incurred in the treatment of their minor children. See Jarrell v. State Merit System &c., 205 Ga. App. 527, 529 (423 SE2d 1) (1992) . See also Rose v. Hamilton Med. Center, 184 Ga. App. 182, 183 (361 SE2d 1) (1987) (physical precedent only). Because parents have this responsibility, the right to recover damages for medical expenses incurred in such treatment is vested exclusively in a minor child’s parents. Jarrell, supra at 528; Rose, supra. Accordingly, in Jarrell, where a father reached a settlement with third parties compromising his minor daughter’s claims for personal injuries, such settlement was held not to include claims for medical expenses. See Jarrell, supra at 528-529.

Decided September 4, 1997.

Michael L. Wetzel, for appellant.

McKenney, Jordan & Carey, G. McGregor Jordan, Jr., for appellees.

Again, in this case it is uncontroverted that both defendants were minors at the time they received the medical treatment for which Southern claims reimbursement. Accordingly, as stated in Jarrell and Rose, neither defendant was liable for payment of his medical expenses, nor did the defendants have a right of recovery against Durham for the expenses. See Jarrell, supra; Rose, supra. Although Southern cites several factual distinctions between this case and Jarrell and Rose, the relevance of these distinctions is unclear, and after careful consideration, we find the asserted differences immaterial. The fact remains that Southern’s claim for reimbursement of medical expenses under the policy is predicated on the defendants having a right of action against Durham for the expenses. Because it is clear that no such right of action exists, Southern is not entitled to reimbursement, and the trial court did not err in denying Southern’s motion for summary judgment and granting summary judgment to Sinclair and Riggins.

Judgment affirmed.

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


author: Blackburn, Judge.

text:
    A97A1506.
    YOUNG et al. v. MARYLAND CASUALTY COMPANY.
    (491 SE2d 839)
   Blackburn, Judge.

Willene Young and Melvin Young, individually and in their capacities as next friends of Crystal Fondren, appeal the trial court’s grant of summary judgment in favor of their uninsured motorist carrier, Maryland Casualty Company (Maryland Casualty). The Youngs contend that they are entitled to uninsured motorist benefits because the vehicle with which they collided was uninsured. Maryland Casualty sought summary judgment on grounds that the vehicle was not uninsured, and the trial court granted this motion. Because the other vehicle involved in the collision was not uninsured, we affirm the trial court’s judgment.

1. The Youngs contend that the trial court erred in granting summary judgment for Maryland Casualty and specifically erred in doing so on the basis that the other car involved in the subject collision was not uninsured. In reviewing this contention, we apply the summary judgment standard set forth in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

The facts show that the accident which forms the basis of this action occurred when a car driven by Willene Young collided with a car driven by Marc Sayer. Willene Young was injured in the collision, as was her minor granddaughter, Crystal Fondren. Marc Sayer died as a result of the collision.

The Youngs thereafter brought suit against Wayne Sayer, Marc Sayer’s father. This suit was based upon the family purpose doctrine, as the vehicle which Marc Sayer was driving when the collision occurred was owned by Wayne Sayer. The Sayer vehicle was insured by Georgia Farm Bureau Mutual Insurance Company (Georgia Farm) and had a liability limit of $100,000 per person and $300,000 per accident. The Young vehicle had $100,000 in uninsured motorist liability coverage. Without having served their uninsured motorist carrier, Maryland Casualty, with a copy of this first suit, see OCGA § 33-7-11 (d), the Youngs settled the two claims contained in the suit with Wayne Sayer and Georgia Farm for policy limits of $200,000.

After settling the first suit, the Youngs filed the instant action against the estate of Marc Sayer. This suit was served upon Maryland Casualty in accordance with OCGA § 33-7-11 (d). Contending that it had no liability under the uninsured motorist provisions of the Youngs’ policy, Maryland Casualty moved for and received summary judgment. On appeal, the Youngs contend that summary judgment was improper because their settlement with Wayne Sayer and Georgia Farm extinguished the coverage on the Sayer vehicle and rendered it uninsured for purposes of the instant suit. We cannot agree.

“OCGA § 33-7-11 (a) (1) requires an uninsured motorist carrier ‘to pay the insured all sums which he shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle!” (Emphasis supplied.) Tinsley v. Worldwide Ins. Co., 212 Ga. App. 809 (442 SE2d 877) (1994). Pursuant to OCGA § 33-7-11 (b) (1) (D) (i), an uninsured motor vehicle is a vehicle for which there is “[n]o bodily injury liability insurance and property damage liability insurance.” Under subsection (ii) of that Code section, a vehicle is also uninsured if it has “[bjodily injury liability insurance and property damage liability insurance with available coverages which are less than the limits of the uninsured motorist coverage provided under the insured’s insurance policy.” Clearly, the Sayer vehicle does not fall within either of these categories. The Sayer car had $300,000 in coverage at the time of the collision, $200,000 of which the Youngs received in a settlement. Moreover, as the Sayers’ coverage exceeded the Youngs’ uninsured motorist coverage by $200,000, there is no issue of under-insurance. Accordingly, any contention that the Sayer vehicle was uninsured pursuant to either of these subsections is patently without merit.

The Youngs’ attempt to rely upon OCGA § 33-7-11 (b) (1) (D) (iii) is also without merit. That Code section provides that a vehicle is uninsured if “[b]odily injury liability insurance and property damage liability insurance [exist] but the insurance company writing the insurance has legally denied coverage under its policy.” The Youngs claim that after Georgia Farm paid them $200,000 of the available coverage in the first suit, it legally denied coverage under its policy in this second suit based upon that settlement. This legal denial of coverage, the Youngs contend, renders the Sayer vehicle uninsured for purposes of the second suit, and therefore summary judgment should not have been granted for Maryland Casualty, their uninsured motorist carrier.

Such a construction defies both the meaning and intent of the uninsured motorist statute. It would allow every plaintiff who receives policy limits from the liability carrier to then pursue an uninsured motorist claim as the subject vehicle would then be uninsured. The Youngs received policy limits of $200,000 from Georgia Farm in connection with this collision. They cannot now contend they are entitled to uninsured motorist coverage based on Georgia Farm legally denying liability coverage. The reason Georgia Farm denied additional coverage was that it had already paid the policy limits to the Youngs for claims arising from the subject collision. “The purpose of the Uninsured Motorist Statute is to place insureds in the same position they would be in relation to coverage ... if the tortfeasors causing the injuries had obtained at least the minimum prescribed liability insurance.” American Protection Ins. Co. v. Parker, 150 Ga. App. 732 (258 SE2d 540) (1979). That purpose has clearly been served in this case.

Our decision in Knight v. Ga. Farm Bureau Mut. Ins. Co., 184 Ga. App. 312 (361 SE2d 190) (1987) does not require a different result. In Knight, we held that “because the possibility exists that liability coverage . . . might be exhausted by payment of other claims arising from [an] accident[,] thereby preventing payment of appellants’ claim, a legal denial of coverage could result.” (Punctuation omitted.) Id. at 313. Knight, however, is directed towards cases with multiple claimants, where one or several claimants exhaust the available coverage before other claimants get paid, resulting in a denial of coverage. It does not contemplate the situation which occurred in this case, where the Youngs were the only claimants involved and were compensated for their claims in an earlier suit. This is so notwithstanding the fact that the Youngs had multiple claims arising out of the collision.

Decided September 4, 1997

Mills & Chasteen, Ben B. Mills, Jr., for appellants.

Langdale, Vallotton, Linahan & Thelkeld, William P. Langdale III, for appellee.

Accordingly, the Sayer vehicle is not uninsured under any reading of OCGA § 33-7-11. Under Lau’s Corp., supra, the Youngs were required to point to a genuine issue of material fact in order to avoid summary judgment, and this they have failed to do. Therefore, the trial court properly granted summary judgment for Maryland Casualty on this issue.

2. The Youngs maintain that even if the Sayer vehicle is not uninsured, summary judgment for Maryland Casualty was still improper. However, the Youngs fail to argue or cite authority for this contention in their brief, and accordingly have abandoned it. See Court of Appeals Rule 27 (c) (2). This enumeration therefore presents nothing for our consideration.

Judgment affirmed.

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


text:
    A97A2211.
    DUQUE v. THE STATE.
    (491 SE2d 841)
   Judge Harold R. Banke.

James Duque was convicted of trafficking in cocaine and possession of cocaine with intent to distribute. On appeal, he enumerates two errors.

This case arose after officers executing a search warrant on an apartment apprehended Duque, running barefoot out the back door. Price v. State, 222 Ga. App. 655, 657 (2) (475 SE2d 692) (1996) (evidence on appeal must be viewed in a light most favorable to the verdict). While searching a bedroom closet, the officers discovered a brown satchel Duque admitted was his next to several pairs of shoes with bags of cocaine stuffed in their toes. Over 39 grams of cocaine of 76 percent purity were recovered. The satchel contained a scale and several small plastic baggies of the sort commonly used for packaging controlled substances, as well as a price list for various amounts of what an expert testified was cocaine. Officers also found a crack pipe and some crack in the bathroom. Scattered about the sparsely furnished apartment, they found more cocaine and baggies, a jacket with $771 in a pocket, a plate, a spoon, a razor blade, a metal sifter of the type commonly used to mix cocaine, and a digital scale. Three individuals were also apprehended, hiding in the apartment. Held:

1. Persons aggrieved by a purportedly illegal search solely through the introduction of evidence seized from a third person’s premises or property lack standing to assert a Fourth Amendment violation. Ferron v. State, 216 Ga. App. 456 (454 SE2d 637) (1995). Duque testified that he had not previously been to the apartment where the search occurred. Duque explained that when the search began he was waiting in the apartment for its tenant, who had borrowed his car. While admitting the satchel was his, he denied placing any of the drug paraphernalia in it. In effect, he denied having any right of possession or interest in the searched premises or the contraband seized. See Byers v. State, 204 Ga. App. 552, 554 (1) (420 SE2d 23) (1992). This testimony demonstrates that Duque lacked a reasonable expectation of privacy in the searched premises, a necessity for establishing standing to challenge a search. Edwards v. State, 224 Ga. App. 14, 16-17 (2) (479 SE2d 754) (1996). Accordingly, the trial court properly denied Duque’s motion to suppress the evidence seized during the execution of the search warrant.

2. Duque waived his argument that the similar transaction evidence presented at trial was offered for an improper purpose and was not sufficiently similar to the instant offense. Jackson v. State, 223 Ga. App. 207, 208 (1) (477 SE2d 347) (1996) (where a Uniform Superior Court Rule 31.3 (B) hearing is held, the failure to object to the introduction of the similar transaction evidence at trial waives the issue). To preserve the issue, Duque was required to object to the admission of the evidence at trial. Id. This he failed to do.

Furthermore, had the issue been properly preserved, we would have rejected Duque’s arguments. In the similar transaction, Duque was apprehended in his car with a sufficient number of individually wrapped packages of cocaine to support his guilty plea on possession with intent to distribute charges. See Bethea v. State, 220 Ga. App. 800, 801-802 (1) (470 SE2d 328) (1996). At the USCR 31.3 (B) hearing, the trial court found that the State sought introduction of the evidence to show course of conduct. The court also determined that the relatively large amount of cocaine and the geographic proximity of the two transactions provided a sufficient connection to satisfy Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991).

These conclusions were not clearly erroneous. Kemp v. State, 218 Ga. App. 842, 843 (3) (463 SE2d 385) (1995). Course of conduct is well established as a proper reason for admitting similar transaction evidence, and the record supported this purpose. Adams v. State, 208 Ga. App. 29, 34 (3) (a) (430 SE2d 35) (1993). Focusing on the similarities of the occurrences, as we must, we find that both involved cocaine, packaged and in amounts significant enough to support distribution charges and they occurred in the same general vicinity. These facts provide a sufficient connection so that proof of the similar transaction tended to prove the offense at issue. White v. State, 225 Ga. App. 74, 75-76 (2) (483 SE2d 329) (1997); see Hatcher v. State, 224 Ga. App. 747, 752 (3) (482 SE2d 443) (1997).

Decided September 4, 1997.

Paul J. McCord, for appellant.

J. Tom Morgan, District Attorney, Benjamin M. First, Priscilla N. Carroll, Assistant District Attorneys, for appellee.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.


text:
    A97A0899.
    DELOACH v. FOOD LION, INC.
    (491 SE2d 845)
   Blackburn, Judge.

Johnnie Mae Deloach sued Food Lion for injuries she sustained when she slipped and fell on a grape in Food Lion’s produce department. Food Lion moved for summary judgment, and the trial court granted the motion. On appeal, Deloach contends that Food Lion had constructive knowledge of the hazard, and that she could not have avoided the hazard in the exercise of ordinary care. For the reasons set forth below, we affirm.

The record before us on appeal is slim. Deloach did not respond to the motion for summary judgment, did not file any affidavits in support of her position, and did not file any depositions for the trial court to rely upon in considering her contentions. Although she designated that the entire record be sent up on appeal, the only evidence in the record consists of uncertified excerpts from various depositions attached to Food Lion’s motion for summary judgment. While we are entitled to consider this evidence, see Jacobsen v. Muller, 181 Ga. App. 382, 383 (3) (352 SE2d 604) (1986) and Bandy v. Mills, 216 Ga. App. 407, 409 (454 SE2d 610) (1995) (McMurray, P. J., dissenting), Deloach’s failure to more fully develop the evidence at the trial level limits her ability to establish the existence of a question of material fact on appeal.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). ... A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

The facts show that Deloach visited Food Lion on June 8, 1993 with friends John and Donna Watson and the Watsons’ children. Upon entering the store, Donna obtained a grocery cart. She walked ahead, pushing the cart, and Deloach and John followed her. While the group was in the produce department, Deloach slipped and fell. The bottoms of her shoes were checked after the fall, and it was determined that she had slipped on a grape which was on the floor. Deloach claims that she did not see the grape because Donna and the shopping cart, in which the Watsons’ two children were riding, blocked her view of the grape. Deloach also deposed that a Food Lion produce boy was in the area, “not very far” away when she fell.

“[T]o state a cause of action in a case where the plaintiff alleges that due to an act of negligence by the defendant he slipped and fell on a foreign substance on the defendant’s floor, the plaintiff must show (1) that the defendant had actual or constructive knowledge of the foreign substance and (2) that the plaintiff was without knowledge of the substance or for some reason attributable to the defendant was prevented from discovering the substance.” (Punctuation omitted.) Coffey v. Wal-Mart Stores, 224 Ga. App. 824, 828 (2) (482 SE2d 720) (1997). With respect to this second requirement, “the customer must exercise ordinary care for his own safety, and must by the same degree of care avoid the effect of the merchant’s negligence after it becomes apparent to him or in the exercise of ordinary care he should have learned of it.” (Punctuation omitted.) Piggly Wiggly Southern v. James, 225 Ga. App. 846, 847 (485 SE2d 223) (1997).

Because she claims Donna and the grocery cart blocked her view of the grape, Deloach has presented a genuine issue of material fact regarding her knowledge of the grape and her exercise of ordinary care to avoid it. However, under present law, she still must show that Food Lion had actual or constructive knowledge of the grape on the floor. Because she does not contend that Food Lion had actual knowledge of the hazard, she therefore relies on Food Lion’s constructive knowledge of the grape to establish its liability.

Constructive knowledge may be shown in one of two ways: by evidence that an employee was in the immediate area of the hazard and could easily have discovered and removed it, or by showing that the owner did not use reasonable care in inspecting the premises. See J. H. Harvey Co. v. Johnson, 211 Ga. App. 809, 810 (440 SE2d 548) (1994). Inasmuch as Food Lion presented affidavits from two store employees setting forth Food Lion’s inspection procedures, and as one such affidavit states that the floor in the produce department was inspected “within 10 minutes” of Deloach’s fall and was found free of debris, Food Lion has established that it used reasonable care in inspecting the premises. See Mazur v. Food Giant, 183 Ga. App. 453, 454 (1) (359 SE2d 178) (1987) (no actionable negligence where proprietor fails to discover a foreign object not present for more than ten to fifteen minutes). Deloach therefore must rely upon the presence of a Food Lion employee in the area to establish Food Lion’s constructive knowledge of the grape.

Deloach argues that because a produce boy was in the area, Food Lion had constructive knowledge of the hazard. However, “there never has been a rule in this state that liability can be shown by nothing more than the fact that the defendant’s employee was in the immediate area of the hazardous substance. In every case, the rule that states that proposition also requires a finding that the defendant’s employee had an opportunity to discover and remove the hazard, which can only be shown by evidence that the hazard existed for a length of time sufficient for the defendant to discover the hazard and remove it.” (Punctuation omitted.) Coffey, supra at 828 (2).

Here, the aisle where Deloach fell had been inspected within ten minutes prior to her fall, and was clear at the time of inspection. Even drawing an inference in Deloach’s favor that the grape was on the floor long enough to be discovered, she still “has failed to present any evidence that would show that the employee had been in a position to see or remove the [grape] from the floor.” Drake v. Kroger Co., 213 Ga. App. 72, 74 (1) (443 SE2d 698) (1994). Deloach testified only that the employee was “not very far away.” As we noted in Coffey, supra, “[t]he employee that [plaintiff] contends was in the immediate area was further away from [the hazard] than [plaintiff] and there is no evidence that [the employee] ever approached the substance.” Id. at 828 (2). “There is no . . . testimony or evidence that [the employee] was in the vicinity of the fall for any particular period of time so as to have ‘an opportunity to discover and remove the hazard.’ ” Fulton-DeKalb County Hosp. Auth. v. Estes, 187 Ga. App. 120, 121 (369 SE2d 262) (1988).

Accordingly, Food Lion’s evidence regarding its constructive knowledge of the grape was sufficient to pierce Deloach’s allegations. Under Lau’s Corp., supra, the burden then shifted to Deloach to come forward with some evidence creating a genuine issue of material fact regarding Food Lion’s constructive knowledge of the grape. Deloach was not free to rest on her pleadings, but was obligated to point to facts giving rise to a triable issue. Because she failed to do so, summary judgment was appropriately granted for Food Lion, and we need not address the parties’ other arguments.

Decided September 5, 1997.

Richard Phillips, for appellant.

Duffy, Feemster & Lewis, George L. Lewis, for appellee.

Judgment affirmed.

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


text:
    A97A0916.
    D. ROBERT AUTREY, JR., P.C. v. BAKER.
    (492 SE2d 261)
   Judge Harold R. Banke.

After handling certain aspects of Elena S. Baker’s divorce, one of her attorneys, D. Robert Autrey, Jr., RC. (“Autrey”), filed the underlying liens on her alimony, equitable division of property and certain personalty pursuant to OCGA § 15-19-14 (a). It is undisputed that on December 5, 1995, Baker made a demand on Autrey to withdraw the lien, contesting the validity of the lien; the demand letter, however, is not of record. On December 21, 1995, Autrey moved to foreclose on the liens. This appeal arises from the trial court’s determination that Autrey’s motion to foreclose was untimely filed. Autrey enumerates four errors.

Autrey’s motion to foreclose alleged that Baker owed over $31,000 in legal fees. Most of the property at issue was placed in an escrow account controlled by Baker’s former husband’s attorney. It remained there by court order.

Responding to Autrey’s allegations, Baker claimed that Autrey’s representation of her had been limited solely to tax matters, she had already paid the firm $7,000, and during its principal’s representation they had engaged in sexual relations which had ceased prior to the submission of the bill. She also raised the timeliness issue, citing Autrey’s failure to file its motion to foreclose within ten days of her demand contesting the validity of the lien.

The trial court determined that Autrey had constructive possession of the funds at issue, which triggered the ten-day limitation period for filing a motion to foreclose under OCGA § 44-14-550 (1). It is undisputed that Autrey filed the motion on the sixteenth day after receiving Baker’s demand. Held'.

1. By failing to provide proof that it raised the issue below, Autrey waived its contention that the trial court erred in finding that Baker made a formal demand. See Aldalassi v. Drummond, 223 Ga. App. 192, 193 (3) (477 SE2d 372) (1996). Under these circumstances, we cannot find error in the trial court’s assumption that demand was made, particularly when the record includes Autrey’s admission that “[o]n December 5,1995, Ms. Baker challenged the validity of the debt that was the basis for the filing of the attorney fees liens.” See Anderson v. Oakley, 133 Ga. App. 758, 759 (1) (212 SE2d 875) (1975).

2. Autrey maintains the trial court erred in finding it had constructive possession of the alimony and equitable division placed in escrow. The court premised this conclusion on the fact that Autrey’s actions prevented Baker from taking possession of those assets.

Constructive possession “may be used to designate the relationship between the owner of property and the property when the owner is not in actual possession thereof, and the general rule seems to be that if the owner knows where the property is, so that he would be able to recover the actual possession when he desired, then he is in constructive possession.” Farmer v. State, 112 Ga. App. 438, 442 (3) (145 SE2d 594) (1965). It is undisputed that Baker’s former husband’s attorney placed the funds at issue in his escrow account after learning of Autrey’s lien. But nothing in the record shows that Autrey controlled the escrow account or could recover its contents at will. Baker’s unsubstantiated claim that Autrey attempted to take possession of the assets by advising her former husband to send all payment to it or to the former husband’s counsel does not alter this fact. Absent some legal authority, Baker’s claim that Autrey’s mere attempt to prevent her from obtaining the assets constitutes constructive possession is unpersuasive. Id. Thus, the trial court erred in holding Autrey to OCGA § 44-14-550 (l)’s ten-day time limit. See Griner v. Foskey, 158 Ga. App. 769, 770 (1) (a) (282 SE2d 150) (1981) (applying the enforcement provisions of a similar lien statute only when the attorney’s struggle is with an innocent third party, and holding that “as to an issue between the attorneys and client only, it is not necessary to show compliance with the lien statutes ... in order to recover”); see Ramsey v. Sumner, 211 Ga. App. 202, 204 (3) (438 SE2d 676) (1993) (as a general rule, between the attorney and the client, “it is not essential to the validity of the lien that it should be filed, or recorded, or enforced by foreclosure”). Because Autrey’s motion was not untimely, we must reverse and remand for further proceedings. In light of the disposition of this appeal, we need not reach Autrey’s remaining enumerations.

Judgment reversed and case remanded.

Birdsong, P. J., and Eldridge, J., concur.

Decided September 5, 1997.

D. Robert Autrey, Jr., Michael K. Biglow, for appellant.

Stephen E. Boswell, Steven C. Teske, for appellee.

       The record indicates that the parties’ written arguments were supplemented by testimony. Because a transcript of that hearing is not included in the appellate record, we will not consider the purported testimony.1


author: Andrews, Chief Judge.

text:
    A97A1150.
    MILBURN v. NATIONWIDE INSURANCE COMPANY.
    (491 SE2d 848)
   Andrews, Chief Judge.

Charles Milburn was injured in the performance of his duties as a Georgia State Trooper when he lost control of his car and crashed into a guardrail while engaged in a high speed chase of a car driven by a criminal suspect. Milburn sued the driver of the car he was chasing to recover for personal injuries he suffered in the crash and served a copy of the action on his uninsured motorist carrier, Nationwide Insurance Company, pursuant to OCGA § 33-7-11 (d). Milburn appeals from the trial court’s grant of Nationwide’s motion for summary judgment which asserted the action was barred by (1) the statute of limitation, and (2) the “fireman’s rule” as applied to police officers.

1. Milburn claims the trial court erred by granting summary judgment to Nationwide on the basis of the statute of limitation.

The high speed chase and accident occurred on January 2, 1994. On December 26, 1995, within the two-year limitation period of OCGA § 9-3-33 applicable to actions for personal injury, Milburn filed an action for his personal injuries arising out of the crash and named as defendant, “John Doe,” the alleged unknown operator of the car he was chasing. Nationwide was served with the action pursuant to OCGA § 33-7-11 (d) as Milburn’s uninsured motorist carrier. After Nationwide answered in its own name, Milburn voluntarily dismissed the action without prejudice on February 12, 1996. On June 3, 1996, Milburn refiled the action, after the expiration of the two-year limitation period, but within six months of the dismissal pursuant to the renewal provisions of OCGA § 9-2-61 (a).

In the renewed action, instead of naming an unknown “John Doe” as defendant, Milburn named Joe Harris as the known defendant who operated the car he was chasing. On June 19, 1996, Milburn amended the renewed action by showing that the defendant, Joe Harris, was also known as Larry Gene Wimberly. Nationwide, which was again served as Milburn’s uninsured motorist carrier in the renewed action, answered in its own name and moved for summary judgment asserting various defenses available to the defendant.

Before Nationwide could be held accountable on its contractual obligation to Milburn to provide uninsured motorist coverage, Mil-burn was required as a condition precedent to “first sue and recover a judgment against the uninsured motorist, whether known or unknown.” (Citations and punctuation omitted.) Boles v. Hamrick, 194 Ga. App. 595, 596 (391 SE2d 418) (1990); Smith v. Phillips, 172 Ga. App. 459, 460 (323 SE2d 669) (1984); State Farm Mut. Auto. Ins. Co. v. Noble, 208 Ga. App. 518, 519-521 (430 SE2d 804) (1993). (The judgment requirement may also be satisfied by the procedural devices of service by publication against a known defendant who cannot be located or by a “John Doe” action against an unknown defendant.) Pursuant to OCGA § 33-7-11 (d), Nationwide was entitled to be served in Milburn’s original and renewed actions against the uninsured motorist and was entitled to answer and present any defenses which would be available to the defendant. Moreover, the filing of pleadings by Nationwide in its own name did not eliminate the requirement that Milburn obtain a judgment against the defendant uninsured motorist. Boles, supra at 596.

Nationwide asserted its statute of limitation defense in the renewed action pursuant to various claims that the action filed on June 3, 1996, after the expiration of the applicable two-year statute of limitation, was not properly renewed under OCGA § 9-2-61 (a) or that service on the defendant was untimely and, therefore, the action was barred.

(a) First, Nationwide contended that the original “John Doe” action was void and incapable of being renewed under OCGA § 9-2-61 (a) because Milburn knew or should have known when he filed the action that Wimberly was the driver of the other car, and a “John Doe” action cannot be brought against a known defendant. State Farm Mut. Auto. Ins. Co. v. Godfrey, 120 Ga. App. 560 (171 SE2d 735) (1969); Kannady v. State Farm Mut. Auto. Ins. Co., 214 Ga. App. 492, 494-495 (448 SE2d 374) (1994).

As a statute remedial in nature, OCGA § 9-2-61 (a) “is construed liberally to allow renewal where a suit is disposed of on any ground not affecting its merits . . . [Dismissal and renewal does not apply to cases decided on their merits or to void cases, but it does allow renewal if the previous action was merely voidable. The original suit is void if service was never perfected, since the filing of a complaint without perfecting service does not constitute a pending suit. A suit is also void and incapable of renewal under OCGA § 9-2-61 (a) if there has been a judicial determination that dismissal is authorized. However, unless and until the trial court enters an order dismissing a valid action, it is merely voidable and not void.” (Citations and punctuation omitted.) Hobbs v. Arthur,. 264 Ga. 359, 360 (444 SE2d 322) (1994).

Assuming, without deciding, that Nationwide could have successfully asserted the known defendant defense in the original “John Doe” action, that action was voluntarily dismissed before any such defense was raised. Milburn’s filing of the “John Doe” action with service on Nationwide pursuant to OCGA § 33-7-11 (d) constituted a valid, pending action on its face, and “unless and until the trial court enters an order dismissing a valid action, it is merely voidable and not void.” Hobbs, supra at 360. Since Milburn’s original action was voidable rather than void, it was capable of being renewed under OCGA § 9-2-61 (a). Nationwide’s additional contention that the original “John Doe” suit was void because Milburn failed to serve the known defendant in that action is merely a restatement of the same defense. These arguments provided no basis for summary judgment in favor of Nationwide.

(b) Second, Nationwide argued that the second action was not a valid renewal under OCGA § 9-2-61 (a) capable of suspending the statute of limitation because it was brought against a known defendant different from the “John Doe” named as defendant in the prior suit. “ ‘[OCGA § 9-2-61] may not be used to suspend the running of the statute of limitation as to defendants different from those originally sued.’ [Cits.]” Reedy v. Fischer, 193 Ga. App. 684, 685 (388 SE2d 759) (1989). Where, however, the defendants in the original and renewed actions, though designated by different names, are substantially the same, the renewal provisions of OCGA § 9-2-61 (a) remain effective. Wofford v. Central Mut. Ins. Co., 242 Ga. 338, 339 (249 SE2d 21) (1978); Sheldon & Co. v. Emory Univ., 184 Ga. 440 (191 SE 497) (1937).

“The name ‘John Doe’ is, and for some centuries has been, used in legal proceedings as a fictitious name to designate a party until his real name can be ascertained.” Black’s Law Dictionary 750 (5th ed. 1979); see OCGA § 9-11-10 (a). When a plaintiff voluntarily dismisses a cause of action against a party defendant designated as “John Doe” whose real name is unknown and later discovers the defendant’s true name and renews the same cause, of action against the party defendant designated by his true name, the defendants are in substance identical. In that, case, the renewal action may claim the benefit of the tolling of the statute of limitation for the six-month period set forth in OCGA § 9-2-61 (a). There was no merit to Nationwide’s claim that the second suit was barred by the statute of limitation because Milburn renewed the action against a different party defendant.

(c) Thirdly, Nationwide contended it was entitled to summary judgment because the known defendant substituted in the renewed action for the “John Doe” defendant in the previous action was not served prior to the expiration of the statute of limitation, and there was no evidence that the relation back requirements of OCGA § 9-11-15 (c) had been satisfied to prevent the bar of the statute of limitation.

The previous action designating “John Doe” as defendant was voluntarily dismissed after the expiration of the statute of limitation and timely renewed within the six-month period of OCGA § 9-2-61 (a). Accordingly, the renewed action stood on the same footing as to limitation with the prior action. Atlanta Country Club v. Smith, 217 Ga. App. 515, 516 (458 SE2d 136) (1995). In the place of “John Doe,” the renewal action substituted a known defendant who had not been served within the two-year statute of limitation. Where a defendant is designated as an unknown “John Doe” and not served in an action, and in a subsequent renewal of the action, the defendant is named, substituted in place of “John Doe” and served after the expiration of the statute of limitation, the provisions of OCGA § 9-11-15 (c) govern whether the known defendant may be named and served in the renewal action after the limitation period has expired. Sims v. American Cas. Co., 131. Ga. App. 461, 481-482 (206 SE2d 121) (1974); Brer Rabbit Mobile Home Sales v. Perry, 132 Ga. App. 128 (207 SE2d 578) (1974); see Collier v. Marsh, 203 Ga. App. 322, 323 (416 SE2d 849) (1992), overruled on other grounds, 209 Ga. App. 855, 858 (434 SE2d 748) (1993), reinstated, 264 Ga. 359, 361, n. 3 (444 SE2d 322) (1994).

Section 9-11-15 (c) provides that the substitution of the known defendant relates back to the date of the original pleadings if, within the limitation period, the defendant (1) “has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.” Under these provisions, “[i]n order for [Milburn] to invoke the tolling of the period of limitations, [his] complaint necessarily had to contain an allegation that [the named defendant] was on notice or should have been on notice [that] except for a mistake as to the real party [the action would have been brought against him].” Bailey v. Kemper Group, 182 Ga. App. 604, 607 (356 SE2d 695) (1987). No such allegations were made by Milburn, and the complaint showed on its face that the statute of limitation had run. Moreover, Milburn did not produce any evidence in response to Nationwide’s motion for summary judgment to show notice sufficient to invoke the relation back provisions of OCGA § 9-11-15 (c). “When a complaint shows on its face that the statute of limitation has run and there is no further showing by amendment or by affidavit that a tolling of the statute is possible, a motion to dismiss the barred claims properly is granted.” (Citations and punctuation omitted.) Harper v. Mayor &c. of Savannah, 190 Ga. App. 637, 638 (380 SE2d 78) (1989).

Milburn also alleged in his amended complaint and argues on appeal that the statute of limitation was tolled as to the uninsured motorist because Wimberly concealed his true identity by giving a false name to law enforcement officers when he was apprehended on January 2, 1994. In response to Nationwide’s motion for summary judgment, Milburn filed an affidavit stating that, at the scene of the accident on January 2, 1994, the uninsured motorist told law enforcement officers that his name was Joe Harris and stating that he (Mil-burn) did not discover the true name of the uninsured motorist was Larry Gene Wimberly until the third week of June 1996. The affidavit also acknowledges the existence of ten orders entered by the State Court of Long County on February 8, 1994, on the offenses for which the uninsured motorist was convicted in connection with the high speed chase. In each order, the court found that, although the defendant pled guilty in the name of Joe Harris, his true name was Larry Gene Wimberly. Milburn states in his affidavit that he did not discover the existence of these orders until September 1996.

Although under OCGA § 9-3-96 the defendant’s fraud which debars or deters the plaintiff from bringing an action will toll the period of limitation until the plaintiff’s discovery of the fraud, “[flraud which tolls the statute of [limitation] must be such actual fraud as could not have been discovered by the exercise of ordinary diligence, in the absence of any confidential relation.” (Citations and punctuation omitted.) Gerald v. Doran, 169 Ga. App. 22, 23 (311 SE2d 225) (1983). Milburn failed to present any evidence showing that he exercised diligence to determine the true identity of the uninsured motorist prior to filing his “John Doe” action on December 26, 1995, a few days before the expiration of the statute of limitation. A plaintiff cannot avoid the operation of the statute of limitation by simply alleging, without explanation, that he was in ignorance of the true facts because of fraud until after the expiration of the limitation period. Jones v. Bd. of Regents &c. of Ga., 219 Ga. App. 448, 449 (466 SE2d 869) (1995); Rigdon v. Barfield, 194 Ga. 77, 82 (20 SE2d 587) (1942).

Although Nationwide had the burden on its motion for summary judgment of demonstrating that there was no material issue of fact, the evidentiary burden at trial rested with Milburn as the party seeking to invoke the relation back provisions of OCGA § 9-11-15 (c) and the tolling of the statute of limitation. Harper, supra at 638; Gordon v. Gillespie, 135 Ga. App. 369, 377 (217 SE2d 628) (1975); Sargent v. Dept. of Human Resources, 202 Ga. App. 874, 875 (415 SE2d 918) (1992); Morris v. Atlanta Legal Aid Society, 222 Ga. App. 62, 64 (473 SE2d 501) (1996). CA defendant [moving for summary judgment on an issue] who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). There is no evidence in the record to support a finding that there was notice to the named defendant uninsured motorist sufficient to invoke the relation back provisions of OCGA § 9-11-15 (c) to prevent the action against him from being barred by the statute of limitation. Nor was there evidence sufficient to show that Milburn was entitled to a tolling of the statute of limitation pursuant to OCGA § 9-3-96. In the absence of such evidence, the trial court properly granted Nationwide’s motion for summary judgment. Sims, supra at 483-484; Moulden Supply Co. v. Rojas, 135 Ga. App. 229, 231-232 (217 SE2d 468) (1975); Lau’s Corp., supra. Since Milburn’s claim against the uninsured motorist was barred, this had the ancillary effect of entitling Nationwide to summary judgment in its favor. Boles, supra at 596-597.

Decided September 5, 1997.

John T. McKnight, for appellant.

Whelchel, Brown, Readdick & Bumgartner, Richard A. Brown, Jr., Bradley J. Watkins, for appellee.

2. We need not address Milburn’s remaining enumeration of error related to application of the “fireman’s rule.”

Judgment affirmed.

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

       Although Milbum’s prior “John Doe” action and Nationwide’s answer are not part of the record, these facts appear undisputed in the statement of facts presented by both parties on appeal. Accordingly, we accept them as true. Court of Appeals Rule 27 (b) (1).


text:
    A97A1259.
    CARTER v. THE STATE.
    (492 SE2d 259)
   Judge Harold R. Banke.

Damien Carter was convicted of five counts of aggravated assault. In his sole enumeration of error, he challenges the trial court’s refusal to instruct the jury on reckless conduct.

This case arose as the shooting victim and four of his friends stood in his yard. Price v. State, 222 Ga. App. 655, 657 (2) (475 SE2d 692) (1996) (evidence on appeal must be viewed in a light most favorable to the verdict). After driving past the victim’s home several times, Carter slammed on the brakes, got out of his car, approached the group and asked, “Why are y’all keep sweating me? Why you keep looking at me?” Carter then reached in his pants and pulled out a nine millimeter automatic pistol. Both Carter and his passenger, who exited Carter’s car shortly thereafter, opened fire, returned to the car, and drove away. The victim was wounded in the leg, but his four friends were physically unharmed. Carter was charged with aggravated assault on all five men. Held'.

Decided September 5, 1997.

Neil A. Smith, for appellant.

Lydia J. Sartain, District Attorney, James V. Branch, Assistant District Attorney, for appellee.

The trial court properly declined to charge the jury on reckless conduct. “Reckless conduct is an act of criminal negligence, rather than an intentional act, that causes bodily harm or endangers the bodily safety of another.” Lindsey v. State, 262 Ga. 665, 666 (2) (b) (424 SE2d 616) (1993); OCGA § 16-5-60 (b); Riley v. State, 181 Ga. App. 667, 670 (3) (353 SE2d 598) (1987). Although reckless conduct is a lesser included offense of aggravated assault with a deadly weapon as a matter of law when the victim is actually shot, trial courts need not charge on this lesser included offense absent a factual predicate which reasonably raises it. Cauley v. State, 206 Ga. App. 233, 234 (2) (424 SE2d 822) (1992).

Here, Carter denied having a gun or firing a shot. He maintained that his passenger and one of the men standing in the victim’s yard exchanged shots. Even if the jury rejected Carter’s testimony, there was no evidence from which it could conclude that Carter fired the weapon in conscious disregard of a substantial risk in violation of OCGA § 16-5-60 (b). Rather, the evidence presented only two possibilities: either Carter was unarmed and never fired a shot or he committed aggravated assault by walking toward the men and deliberately opening fire. Absent a factual foundation for the reckless conduct instruction, the trial court properly rejected that request to charge. Cauley, 206 Ga. App. at 234 (2); compare Bowers v. State, 177 Ga. App. 36, 38 (2) (338 SE2d 457) (1985) (failure to give reckless conduct charge required reversal where defendant admitted firing gun intentionally but denied knowledge of victim’s presence).

Judgment affirmed.

Ruffin and Eldridge, JJ, concur.

       One of the witnesses defined “sweating” as “looking at” an individual. To Carter, the term meant mean looks, or picking on someone.