author: Beasley, Judge.

text:
    A91A1843.
    JEFF DAVIS HOSPITAL AUTHORITY v. ALTMAN.
    (416 SE2d 763)
   Beasley, Judge.

Pursuant to OCGA § 9-2-61 (a), Altman brought the instant renewal action against Jeff Davis Hospital Authority. Relying on OCGA § 9-11-1 (d), defendant filed a motion to dismiss because plaintiff had not paid all court costs of the dismissed action before refiling. The trial court denied defendant’s motion but certified its order for immediate review. Appeal was permitted under OCGA § 5-6-34 (b).

OCGA § 9-11-41 (d), which governs dismissal of actions and recommencement within six months, requires court costs to be paid in the first suit before an action is recommenced. This is “a condition precedent to filing a second suit,” so that “payment of costs in a previous suit is jurisdictional” with respect to a subsequent suit. Little v. Walker, 250 Ga. 854, 855 (301 SE2d 639) (1983). Without the prior payment of the first suit’s costs, “the second suit is not a valid pending action.” Couch v. Wallace, 249 Ga. 568, 569 (292 SE2d 405) (1982). It was not always so. McLanahan v. Keith, 239 Ga. 94 (236 SE2d 52) (1977).

This monetary requirement precludes for all time a decision on the merits of the plaintiff’s claim in the courts of this state, if the statute of limitation runs in the meantime. That would be the case here. To guard against “a failure of justice,” the court has construed legislative intent to have implied an exception for instances when “costs unknown to plaintiff after a good faith inquiry” remain unpaid. (Emphasis in original.) Daugherty v. Norville Indus., 174 Ga. App. 89, 91 (329 SE2d 202) (1985). It is up to the trial judge, when the validity of the suit before the court is in jeopardy on this point, to determine two facts: whether the costs were unknown and whether plaintiff made a good faith inquiry.

Here the court “considered the full record and all submissions and arguments of counsel” and denied the motion to dismiss the suit. It must have found that the costs were unknown to plaintiff, in this case her attorney, before the second suit was filed. It also must have found good faith on the part of plaintiff’s attorney. We must assume that the court fulfilled its factfinding function in the absence of an order which makes it explicit. “ ‘(T)his court will not presume the trial court committed error where that fact does not affirmatively appear.’ [Cits.]” Green v. Sun Trust Banks, 197 Ga. App. 804, 807 (3) (b) (399 SE2d 712) (1990).

We do not have the full record in the case, although it is appellant’s obligation to provide whatever is necessary for our understanding of it. Salvador v. Coppinger, 198 Ga. App. 386 (1) (401 SE2d 590) (1991). It is undisputed that the costs were not known to counsel before he field the renewed action. The record also demonstrates that he made an effort to ascertain whether there were any, and to pay them.

The suit is one for the allegedly wrongful death of a minor’s baby. It had been pending about three years when it was dismissed for failure of plaintiff or her counsel to appear at the pretrial hearing. The day before the scheduled hearing, counsel was unexpectedly hospitalized and claims that the court was notified. He was not released until three days later, at which time he was able to return to work only part time before resuming his practice full time several weeks later.

His illness necessitated extra reliance on his staff, and when he learned of the dismissal he prepared to recommence the action and had his secretary call the clerk to inquire if the case had in fact been dismissed and if any costs were due. She did so and was told that, in her words, “if any costs were due a bill would be sent.” Seventy-nine dollars had already been paid. Based on the information from the clerk’s office, she “logged the file appropriately.” There is no evidence that a bill was in fact sent, although the dismissal order was received.

About five months after dismissal, counsel refiled the suit. He did not make further inquiry regarding costs beforehand “because . . . inquiry had been made earlier and because no bill of costs had been received,” and also because he understood that it was not even the general practice in the area except this circuit to bill any costs after the initial fees are paid. As soon as he learned by way of the motion to dismiss that there were unpaid costs, he confirmed this with the clerk of court and sent the additional $108 the same day. The motion was filed by defendant about seven months after plaintiff had recommenced the suit.

Decided February 19, 1992

Reconsideration denied March 4, 1992

Fendig, McLemore, Taylor & Whitworth, Philip R. Taylor, Lamar A. Elder, Jr., for appellant.

D. Duston Tapley, Jr., for appellee.

Counsel asserted in his brief before the trial court that plaintiff had “spent in excess of $5,000.00 in pursuing this case, most of the money for expert witnesses and depositions.” If true, this indicated to the trial court that plaintiff was serious about her action.

The circumstances in this case are not so far different from those in Daugherty, supra, and Hiley v. McGoogan, 177 Ga. App. 809 (341 SE2d 461) (1986), that we can conclude as a matter of law that the court erred in finding good faith, in particular, that counsel for plaintiff made a reasonable inquiry under the circumstances. We must give great deference to this, if for no other reason than that the court knew the case’s history, knew the local practices and knew what led up to the point at which it was required to make a decision.

The Civil Practice Act provides that it “shall be construed to secure the just, speedy, and inexpensive determination of every action.” OCGA § 9-11-1. The Supreme Court has said that “[t]o this end the act should be liberally construed and applied.” Ambler v. Archer, 230 Ga. 281, 286 (196 SE2d 858) (1973). The trial court’s ruling did not disserve the purposes of the precondition in OCGA § 9-11-41 (d) by finding that plaintiff exhibited good faith. In denying defendant’s OCGA § 9-11-12 (h) (3) motion, it did not err in concluding that plaintiff came within the narrow exception so that the court did not lack jurisdiction of plaintiff’s lawsuit.

Judgment affirmed.

Carley, P. J., and Judge Arnold Shulman concur.


source: Caselaw Access Project

author: Judge Arnold Shulman.

license: Public Domain

text:
    A91A2058.
    MULLEN v. THE STATE.
    (416 SE2d 784)
   Judge Arnold Shulman.

The appellant was indicted for 28 counts of theft by taking based on allegations that, on 28 separate occasions, she did “unlawfully take [a specified sum] in lawful currency . . ., the property of Columbus Bank & Trust Company, with intent then and there of depriving the owner of said property. ...” She was found not guilty on two of the counts and guilty on the remaining 26. This appeal followed.

The appellant opened a personal checking account with the Columbus Bank & Trust Company on November 13, 1989, and in connection with that transaction was issued an electronic banking card. The purpose of this card was to enable her to use the bank’s automatic teller machines to access both her checking account and a savings account which she had previously opened with the bank, but which at all times pertinent to this case had a zero balance. However, the bank erroneously encoded on the card the savings account number of another customer; and on December 6, 1989, it mailed her a statement showing the activity in that account as well as in her own checking account. The balance in the appellant’s checking account as of that date was only $240, while the balance in the other customer’s savings account was $4,115.45. The social security number listed on the latter account was not the same as the one listed on the checking account.

The bank’s records, which included photographic evidence of the transactions, established that on 26 separate occasions from December 10, 1989, through February 1, 1990, the appellant had used the bank’s automatic teller machines to make withdrawals totalling over $5,000 from the savings account in question. When the owner of the account became aware of these withdrawals and inquired about them, the bank discovered the error, restored his money to him, and unsuccessfully sought restitution from the appellant. The appellant presented no testimony or other evidence in her defense.

1. The appellant contends that the trial court erred in denying her plea in abatement, in which she sought dismissal of the indictment on the ground that “the Grand Jury did not have before it sufficient legal evidence to conclude that all of the elements of the crime of theft by taking [had] been committed by the defendant.” This enumeration of error is without merit. “ ‘[W]here ... it appears that a competent witness or witnesses were sworn and examined before the grand jury by whom the indictment was preferred, a plea in abatement on the ground that it was found on insufficient evidence, or illegal evidence, or no evidence, will not be sustained, because it comes under the rule that no inquiry into the sufficiency or legality of the evidence is indulged.’ ” (Emphasis supplied.) Felker v. State, 252 Ga. 351, 366 (314 SE2d 621) (1984), quoting with approval Summers v. State, 63 Ga. App. 445 (3), 449 (11 SE2d 409) (1940). Accord Foster v. State, 239 Ga. 302, 303 (236 SE2d 644) (1977); Callahan v. State, 148 Ga. App. 555, 556 (2) (251 SE2d 790) (1978); State v. Freeman, 191 Ga. App. 541 (382 SE2d 664) (1989).

2. The appellant contends that there was a fatal variance between the allegata and the probata in that the indictment alleged an unlawful taking, whereas the evidence established an unlawful appropriation of money lawfully obtained. Either act constitutes theft by taking pursuant to OCGA § 16-8-2, which provides as follows: “A person commits the offense of theft by taking when he unlawfully takes or, being in lawful possession thereof, unlawfully appropriates the property of another with the intention of depriving him of the property, regardless of the manner in which the property is taken or appropriated.” However, in Walker v. State, 146 Ga. App. 237 (1) (246 SE2d 206) (1978), this court held that where the indictment charges an unlawful taking, the conviction cannot be predicated on evidence showing an unlawful appropriation of property lawfully obtained.

In the present case, unlike Walker v. State, supra, the court did not charge the jury that theft by taking could consist of the unlawful appropriation of property lawfully obtained, and thus there is no possibility that the jury based its verdict on that theory rather than the theory alleged in the indictment. Moreover, the state’s evidence, construed in favor of the verdict, was amply sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that at the time she made the withdrawals at issue, the appellant was well aware that she was obtaining funds which did not belong to her and which she had no right to receive. See generally Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). We accordingly hold that there was no variance between the allegata and the probata with respect to any of the 26 counts of which the appellant was convicted.

3. The appellant contends that the trial court erred in failing “to take judicial notice that the sole purpose of the prosecution was to collect a debt.” This enumeration of error presents nothing for review, inasmuch as it is not directed to any ruling of the trial court and we have previously held that the evidence was sufficient to support the convictions.

4. The appellant contends that the trial court erred in charging the jury on circumstantial evidence. Much of the state’s evidence was in fact circumstantial. Moreover, it is not generally considered reversible error to charge on circumstantial evidence where none is present, since such an instruction is favorable to the accused. Sanford v. State, 196 Ga. App. 103, 104 (3) (395 SE2d 373) (1990). Accordingly, this enumeration of error is also without merit.

Judgment affirmed.

Carley P. J., and Beasley, J., concur.

Decided February 21, 1992

Reconsideration denied March 4, 1992.

William J. Wright, for appellant.

Douglas C. Pullen, District Attorney, Edward C. Carter, Assistant District Attorney, for appellee.


author: Birdsong, Presiding Judge.

text:
    A92A0186.
    MANLEY v. JONES et al.
    (416 SE2d 744)
   Birdsong, Presiding Judge.

Carolyn Durham Manley appeals from the judgment of the Superior Court of DeKalb County dismissing her complaint against Eugene Jones, individually, and as executor of the will of Jessie Durham. Manley contends the lower court erred by dismissing her complaint, by ruling her complaint was an unauthorized collateral attack on the judgment of the probate court of another county, and by refusing to transfer the action to the appropriate jurisdiction.

The record shows that Manley brought this action against Jones and the Probate Judge of Ben Hill County seeking to “set aside the dismission of said Eugene Jones as executor under said will in common form and further to require that the same be probated in solemn form in the Probate Court of Ben Hill County, Georgia.” Subsequently, by stipulation the parties dismissed the action against the probate judge.

Thereafter, finding that Manley’s claim was a collateral attack on a judgment rendered in the Probate Court of Ben Hill County and that there are no provisions in law authorizing such an action, the superior court granted Jones’ motion to dismiss the complaint because it failed to state a complaint upon which relief could be granted. This direct appeal followed. Held:

Pretermitting whether the trial court properly dismissed Manley’s complaint is whether this court has jurisdiction to consider this appeal. “It is not only the right but the duty of a reviewing or appellate court to raise the question of its jurisdiction in all cases in which there may be any doubt as to the existence of such jurisdiction.” (Citation and punctuation omitted.) Atlantic-Canadian Corp. v. Hammer, Siler &c. Assoc., 167 Ga. App. 257 (306 SE2d 22).

Examination of Manley’s complaint shows that, although allegations of fraud were made against Jones, the relief sought was to set aside the judgment of the probate court granting letters dismission to Jones. In particular, the complaint did not assert that the judgment of the probate court was void on its face. Therefore, although framed as an unauthorized complaint in equity (see OCGA § 9-11-60 (e)), Manley’s complaint was an effort to set aside the judgment of the probate court because of fraud. As such efforts are properly brought as motions to set aside the judgment under OCGA § 9-11-60 (d) (2), and as it is the substance and function of the pleadings which are determinative (Holloway v. Frey, 130 Ga. App. 224, 227 (202 SE2d 845)), we must treat Manely’s complaint as a motion to set aside the judgment in which relief was denied.

Decided February 11, 1992

Reconsideration denied March 4, 1992

Walbert & Hermann, Paul D. Hermann, William K. Day, Mills & Chasteen, Ben B. Mills, Jr., for appellant.

Love & Willingham, Robert P. Monyak, Jay, Sherrell & Smith, John E. Smith III, for appellees.

Appeals from the denial of motions to set aside judgment, however, must be brought under the discretionary appeals procedures. OCGA § 5-6-35 (a) (8); State Farm Mut. &c. Co. v. Yancey, 258 Ga. 802 (375 SE2d 39). Further, although no longer authorized for this purpose, OCGA § 5-6-35 (a) (8), as amended, specifically includes “[ajppeals from orders . . . denying relief upon a complaint in equity to set aside a judgment” as one of the appeals which must be brought under the discretionary appeals procedures. Under these circumstances there is no doubt that the legislature required the discretionary appeals procedures for appeals from orders or judgments denying relief in cases seeking to set aside judgments. See State Farm Mut. &c. Co. v. Yancey, supra.

Since Manley brought this appeal pursuant to a direct appeal, it must be dismissed. Boyle v. State of Ga., 190 Ga. App. 734 (380 SE2d 57); Court of Appeals Rule 32 (d).

Appeal dismissed.

Beasley and Andrews, JJ., concur.


author: Pope, Judge.

text:
    A90A1084.
    HUBERT v. SOUTHERN GENERAL INSURANCE COMPANY.
    (416 SE2d 538)
   Pope, Judge.

Carolyn Hubert appeals from the trial court’s grant of summary judgment to Southern General Insurance Company (Southern General) and the denial of her motion for summary judgment.

The parties have stipulated the material facts. Hubert was injured while riding as a passenger in a car which was involved in an accident. She made a claim with the driver’s insurance company and recovered $2,500 for medical expenses under the personal injury protection (PIP) provisions of that policy. Because her medical expenses exceeded $5,000, she filed a claim for an additional $2,500 PIP benefits from her insurer, Southern General. Southern General denied the claim on the basis that Hubert was seeking to stack PIP benefits in a manner not permitted by law, and filed a petition for declaratory judgment to determine its liability to Hubert under the policy. Relying on Cannon v. Lardner, 258 Ga. 332 (368 SE2d 730) (1988), the trial court determined that Hubert was not entitled to “stack” basic PIP benefits provided by her policy and this appeal followed. We now affirm.

Based on a perceived conflict between the holdings in Cannon and Smith v. Southeastern &c. Ins. Co., 258 Ga. 15 (365 SE2d 105) (1988), this court certified to our Supreme Court the question of whether Hubert, the named insured under the policy, was entitled to recover basic PIP benefits from her carrier when she was neither occupying nor using the insured vehicle and was not injured by a non-insured vehicle.

In Hubert v. Southern Gen. Ins. Co., 261 Ga. 227, 228-229 (403 SE2d 802) (1991), the Supreme Court resolved the certified question by finding no conflict between the cases. The court went on to state that “[t]hese cases hold that an insured as described in OCGA § 33-34-2 (5) may recover benefits for injuries received while occupying the insured vehicle (or, if a pedestrian, struck by the insured vehicle) or when occupying or struck by a vehicle not similarly insured.” (Emphasis supplied.) Id. at 229.

In this case Hubert was occupying a vehicle which was “similarly insured” at the time she received her injuries. However, she seeks to distinguish Cannon on the basis that she, unlike the injured party in Cannon, is the named insured of the policy under which she is seeking to recover. We are constrained to disagree that such a distinction can be made. In Georgia American Ins. Co. v. Burnsed, 196 Ga. App. 626, 627 (396 SE2d 793), cert. denied, 196 Ga. App. 908 (1990), this court, applying the holding in Cannon, found that a named insured injured while occupying a similarly insured vehicle “cannot be considered an insured under his personal policy in this instance” and thus could not stack basic no-fault benefits provided by his own policy. Such is the situation in the case at bar. Consequently, the trial court’s order granting summary judgment to Southern General and denying summary judgment to Hubert is affirmed. See also Slack v. Superior Ins. Co., 198 Ga. App. 281 (401 SE2d 307) (1991); Capes v. Bretz, 195 Ga. App. 467 (1) (393 SE2d 702) (1990); cf. Thomas v. Ga. American Ins. Co., 193 Ga. App. 260 (387 SE2d 401) (1989).

Decided March 4, 1992.

Dallas, Fowler & Wills, Samuel A. Fowler, Jr., for appellant.

Glover & Blount, Percy J. Blount, for appellee.

Judgment affirmed.

Beasley and Andrews, JJ., concur.

         Although Hubert argues that, notwithstanding the statutory definition of insured relied on by the court in Cannon, supra, she is an insured as that term is defined in her policy and thus entitled to benefits under that policy, the record shows that she did not assert that argument in the court below nor has she included a copy of the insurance policy on which she is now relying in the record on appeal. Consequently, we need not address the merits of this argument.


author:
Birdsong, Presiding Judge.
      Pope, Judge,

text:
    A91A1599, A91A1600.
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. JINKS; and vice versa.
    (416 SE2d 539)
   Birdsong, Presiding Judge.

This is a suit against an insurer for bad faith claims, attorney fees and punitive damages for failure to pay PIP insurance claims within 30 days and 60 days pursuant to OCGA § 33-34-6. Plaintiff Mary Lou Jinks had an automobile collision on August 18, 1986. There was no police report of an injury. Jinks continued her activities of the day, and did not consult a health care professional until two weeks later. She did not file claims under her no-fault insurance coverage for medical expenses and lost wages until December 19, 1988, two years and four months after the collision. She had sustained other accidents in 1985 and 1987. The claims for medical expenses totalling $2,983.95 were attended by lists of medical expenses and prescription drugs showing expenses from January 1986, before this accident, to June 1988. The insurer on January 11, 1989, replied that the claim shows Jinks’ medical expenses were paid by a Health Maintenance Organization (HMO) and that the insurer was required to pay only those expenses “incurred” by Jinks; the insurer asked for a re-submittal based on the expenses which Jinks “incurred” for this accident. The insurer also stated its records showed Jinks had been involved in other auto accidents on October 1985, and February 1987; the insurer asked the attorney to “please submit incurred expenses generated by the 8-18-86 accident only.”

The record shows that the attending physician of the HMO left the practice in 1988 and apparently could not be found and consequently could not attest to Jinks’ disability as required by the insurer for proof of lost wages. Also, Jinks’ place of employment and her employment records were destroyed in a fire after this 1986 accident.

The trial court granted summary judgment to Jinks as to medical expenses in the claim amount of $2,983.95, plus bad faith penalties of 25 percent and attorney fees pursuant to OCGA § 33-34-6 (b), and punitive damages pursuant to OCGA § 33-34-6 (c), with the question as to amount reserved for trial. The trial court denied Jinks’ motion for summary judgment as to State Farm’s failure to pay her entire lost wages claim within 30 days. The trial court also denied State Farm’s motion for summary judgment as to all claims. Both parties appeal. Held:

Case No. A91A1599

1. OCGA § 33-34-6 (b) in effect when these claims were made provides: “Benefits required to be paid without regard to fault shall be payable monthly as loss accrues. The benefits are overdue if not paid within 30 days after the insurer receives reasonable proof of the fact and the amount of loss sustained. ... In the event the insurer fails to pay each benefit when due, the person entitled to the benefits may bring an action to recover them and the insurer must show that its failure or refusal to pay was in good faith, otherwise the insurer shall be liable for a penalty not exceeding 25 percent of the amount due and reasonable attorney’s fees.” We have held that the burden of proof to show unreasonableness of the claims, or a good faith reasonable ground for contesting the claim, is on the insurer. Bituminous Cas. Corp. v. Mowery, 145 Ga. App. 45 (244 SE2d 573); Gillem v. MARTA, 160 Ga. App. 393 (287 SE2d 264).

The trial court found the sole reason State Farm declined to pay medical expenses was that they were not “incurred” by Jinks but were paid by the HMO; the trial court found this excuse to be without merit and concluded the failure to pay was in bad faith, for “the reasonableness of proof of medical bills in an amount exceeding $2,000 has not been disputed.”

This latter finding is not supported by the record. State Farm declined to pay medical expenses not merely because the expenses were paid by an HMO, but because the lists of medical expenses and prescriptions obviously included expenses incurred prior to and long after the date of this accident, and were confused; and because the costs of the services provided by the HMO were mere “estimates” inasmuch as the services provided to Jinks were paid directly by the HMO.

The insurer asserts that expenses paid by an HMO are not “incurred” by the insured even if the insured has paid a fee or premium payment to obtain the HMO membership. We are inclined to think that an HMO membership for which the insured or her employer pays a premium is not different in principle from an ordinary medical insurance policy for which a premium is paid, but there is reason to debate the matter in view of the legislature’s use of the word “incurred” in § 33-34-6 (b) and in view of the fact that with an HMO, medical services are “provided” and no liability actually is “incurred” in the sense that because the medical services are provided by the HMO, the HMO member is not liable to pay for those services. Since the member pays a fee (premium) to join an HMO, it cannot really be said the services paid by an HMO are free of cost, as was the case in United States of America v. Travelers Indem. Co., 253 Ga. 328, 329 (320 SE2d 164), but neither is the full cost for the individual services really “incurred.” The matter can be debated, and it is sufficiently unclear that the legislature may wish to address it, so it cannot be said that as a matter of law the insurer acted in bad faith to raise this issue in defense of Jinks’ claims. The jury may decide this question.

As to the other reasons the insurer did not pay in 30 to 60 days, it is a fact evident on the face of the record that Jinks’ claims are confused, multiplicitous and mingled with expenses which were as easily attributable prima facie to Jinks’ other collisions in 1985 and 1987. State Farm complains also that although technically Jinks’ claims were not untimely under the contract of insurance, her great delay in submitting claims for the accident of August 18, 1986, put State Farm at a disadvantage in verifying her claims. We do not doubt this is so. That this claim was so long in being filed could only increase the practical dilemma faced by the insurer in having to pay in 30 days.

On the claim form submitted by Ms. Jinks for the 8-18-86 accident, she simply said “see attached” in answer to the question “amount of medical bills to date.” Attached is a welter of expenses, some dating before the 8-18-86 accident as well as after the February, 1987 accident. Moreover, on the form signed by her to authorize medical providers to disclose information, she left this statement blank entirely: “This information is authorized to permit processing of a claim I have made against [insurer] arising out of an accident or occurrence on-, 19--” State Farm promptly replied to Ms. Jinks’ attorney: “Our records indicate Ms. Jinks has been involved in multiple auto accidents, Oct. 1985, Aug. 1986, and Feb. 1987. Please submit incurred expenses generated by the 8-18-86 accident only. Expenses for other accidents should be sent to the appropriate claim representatives handling those files.” In reply to this request for clarification, Ms. Jinks’ attorney wrote: “Please be advised that all of the documentation we have provided relates to Mrs. Jinks’ accident of August, 1986. She had recovered from the earlier accident as of that date, and it is my understanding that the subsequent accident in 1987 did not involve any personal injury. I believe if [State Farm] had bothered to review the medical documentation we provided . . . [you] would have figured that out.”

We have reviewed the documentation submitted by Jinks’ attorney and we have not “figured that out.” The lists of medical expenses contained items from July 29, 1985, long before the 8-18-86 accident, and most of the expenses including HMO visits appear to have occurred after the February 1987 accident. No attempt seems to have been made by Jinks’ attorney to plainly distinguish and submit only claims for the 8-18-86 accident, except the attorney’s adjuration to “figure it out”; no support by reasonable proof was submitted, except the attorney’s “understanding” that the medical expenses appearing after February 1987, were not engendered by the February 1987 accident. We do not find in these medical claims any statement or notation by a health care professional that the vast majority of these expenses, which were sustained after March 2, 1987, had nothing to do with the February 1987 accident which State Farm’s records showed had occurred. Such a conclusion could not reasonably be made from the fact that Jinks had not filed a claim for medical expenses and wages for the February 1987 accident, for she did not file this claim for her August 1986 accident until more than two years had passed. Conceivably Jinks might, years hence, file claims for the February 1987 accident and say this attorney’s “understanding” that she sustained no physical injury in that accident was wrong, and thereupon seek to hold the insurer liable for not verifying that “understanding” years before.

Although we have held repeatedly that the burden of proving reasonableness of a failure to pay such claims rests upon the defendant insurer in a suit for penalties and attorney fees under § 33-34-6, the statute places the initial burden on the insured to submit claims supported by “reasonable proof,” and the duty to pay accrues only when such “reasonable proof of the fact and the amount of the loss sustained” is submitted by the insured. Jones v. State Farm &c. Ins. Co., 156 Ga. App. 230, 235 (274 SE2d 623). The date such reasonable proof is received is the “date upon which the insurer receives sufficient proof from the insured to enable the insurer to verify or disprove, through the exercise of reasonable diligence, the basic components of the insured’s claim.” Id. at 235.

Moreover, while on the insurer’s motion for summary judgment, the insurer as movant has the burden to establish the non-existence of any genuine issue of fact, when the insurer makes a prima facie showing that it is entitled to summary judgment as a matter of law, the burden of proof shifts to the respondent insured (Jinks) to come forward with rebuttal evidence or suffer adverse judgment. Leonaitis v. State Farm &c. Ins. Co., 186 Ga. App. 854, 855-856 (368 SE2d 775).

This record establishes that “the fact and the amount” of losses claimed for medical expenses is in dispute as well as being unsupported by reasonable proof as required by OCGA § 33-34-6(b) in the first instance. Jinks did not submit a claim supported by reasonable proof when she sent a welter of confusing lists of costs as easily attributable on their face to other accidents, and then telling the insurer to “figure it out.” The insurer’s duty to verify or disprove the claim with reasonable diligence (Jones, supra; see State Farm &c. Ins. Co. v. Ainsworth, 198 Ga. App. 740, 744 (402 SE2d 759)) arises only after the insured submits reasonable proof of the fact and the amount of loss sustained. Jones, supra; State Farm &c. Ins. Co. v. Ainsworth, supra. This necessarily means, in this case, the insured had to submit reasonable proof not only of the amount claimed for the August 1986 accident, but of the fact that those amounts claimed arose out of the August 1986 accident and not from the 1985 accident or the February 1987 accident. An issue of material fact remains as to the reasonableness of the insurer’s failure to pay upon such claims in this case.

By finding that the reasonableness of proof of medical bills “in an amount exceeding $2,000” has not been disputed, the trial court proved its own uncertainty, for evidently it was unable to express an opinion as to precisely what amount and which expenses the insurer could safely have paid $2,000 for the August 1986 accident so as not to be penalized for failure to pay within 30 to 60 days a claim supported by reasonable proof. The insurer cannot be expected to guess what the trial court cannot ascertain, and certainly the jury is not required to guess. State Farm &c. Ins. Co. v. Ainsworth, supra.

We note that OCGA § 33-34-6 prefaces itself by stating that “[p]ayment of benefits . . . must be made periodically on a monthly basis as expenses are incurred. . . .” (Emphasis supplied.) Id. at subparagraph (a). It then asseverates that its purpose is to ensure that “[b]enefits required to be paid without regard to fault shall be payable monthly as loss accrues” (Emphasis supplied.) Id. at subparagraph (b). The statute is intended to provide a continuous contemporaneous 30-day source of compensation “as loss accrues.” In this case, the insured made a barrage of claims more than two years after the accident, accompanied by confusing lists of expenses apparently related to other accidents; the insured did not make a claim for compensation “as loss accrues.” But for the fact that the statute does not restrict the penalty to cases where the claims are made contemporaneously to the losses as they accrue, we would say the reason for awarding a penalty and damages for failure to pay, within 30 and 60 days, a claim made up to two-and-one-half years after the first “loss accrued” diminishes almost to the point of extinction.

Since there is a jury question as to whether Jinks’ claims were supported by reasonable proof, we reverse the judgment awarding 25 percent penalty for failure to pay within 30 days under OCGA § 33-34-6 (b); and we reverse the award of punitive damages under OCGA § 33-34-6 (c) for failure to pay within 60 days.

2. The trial court erred in denying State Farm’s motion for summary judgment as to lost wages under the cases cited above. In the first instance, the claimant has the duty to submit reasonable proof of her lost wages claim; otherwise, the insurer’s duty to pay never arises. See OCGA § 33-34-6 (b). The facts offered by each party in the exercise of their respective burdens of proof on appeal are in complex dispute, as evidenced by the amount of argument and space they devote to the advancement of their assertions of fact. Within 30 days of the original claim date, the insurer by letter of January 11, 1989, stated: “In order to consider your client’s wage loss claim we will need the attached Wage and Salary forms completed by the respective employers. We will also need statements of disability from her attending physician for the time period claimed.” Jinks did not return these forms until March 16. On April 6, State Farm sent Jinks a check for $145.35, representing 38 hours lost from Jinks’ second place of employment from February 1987, to May 1987. State Farm declined to pay for wages lost immediately after the accident because the statement by Jinks’ employer at her first place of employment (which burned down after the accident) could not be verified without a statement of disability by the attending physician; nevertheless, State Farm said: “We will be glad to consider payment of these lost wages upon receipt of disability confirmation.” It seems that Jinks could not provide a statement of disability because in 1988, two years after the accident, the physician removed herself to parts unknown. Therefore, Jinks’ remaining claims for lost wages were not supported by reasonable proof and no issue of fact remains as to the reasonableness of the insurer’s failure to pay them. State Farm is entitled to summary judgment on this issue.

Case No. A91A1600

For the reasons stated as to Case No. A91A1599, entitling State Farm to a jury trial as to the issue of failure to pay medical expenses and that it was entitled to summary judgment as to failure to pay lost wages, it follows that Jinks was not entitled to summary judgment on any of her claims.

Judgments reversed and cases remanded for trial.

Sognier, C. J., Beasley, Cooper, and Andrews, JJ., concur. Carley, P. J., Pope, and Johnson, JJ., concur in part and dissent in part. McMurray, P. J., disqualified.

Pope, Judge,

concurring in part and dissenting in part.

1. The majority has reversed the trial court’s order granting summary judgment to plaintiff on her claim against State Farm for reimbursement of medical expenses in the amount of $2,983.95. Yet the majority’s opinion fails to address the issue raised by State Farm in this appeal as to whether a no-fault insurer is liable for medical expenses incurred by an insured at an HMO. (The majority states they are “inclined to think that an HMO membership for which the insured or her employer pays a premium is not different in principle from an ordinary medical insurance policy for which a premium is paid,” but this dicta falls short of answering the issue raised by State Farm in its appeal.) This issue must be addressed before this case is remanded for trial.

State Farm relies on United States v. Travelers Indem. Co., 253 Ga. 328 (320 SE2d 164) (1984) to support its assertion that no-fault carriers are not liable for the reasonable value of medical services incurred by an insured at an HMO. In Travelers, the United States attempted to recover from the no-fault carriers of insured servicemen the reasonable value of medical care provided the servicemen and their families after they had been treated in military hospitals following motor vehicle accidents. The Supreme Court concluded that the legislature intended a no-fault carrier to be required to pay only those expenses which are “incurred” by an insured. Thereafter, the Supreme court provided a definition of “incurred,” by stating: “In order for an insured to incur medical expenses which would trigger the no-fault carrier’s duty to pay, he must have either paid them or have become liable for them. [Cits.]” Id. at 329. Because the United States provided medical treatment to the insured servicemen and their families without any cost to the servicemen, the court concluded the insured servicemen had not “incurred” expenses within the meaning of OCGA § 33-34-1 et seq. Thus, the no-fault carriers in Travelers were not liable for the payment of no-fault benefits under these circumstances.

State Farm argues that just as servicemen are not liable for payment of medical expenses provided by United States military hospitals, HMO members are similarly not liable for payment of medical expenses provided by HMOs. However, this argument clearly ignores the fact that HMO members must pay monthly premium payments for their membership and, in certain circumstances, co-payments at the time medical services are provided. Because medical services are not provided without any cost to HMO members, it simply does not follow that medical services provided by HMOs are received free of cost by members. An HMO member’s premium payments are sufficient to meet the requirement set forth in Travelers that an insured “incur” expenses within the meaning of OCGA § 33-34-1 et seq. State Farm is therefore liable to plaintiff for the reasonable value of medical services provided by her HMO, and a question of fact remains only as to the amount of State Farm’s liability. To the extent the majority’s opinion may be interpreted by State Farm as a determination that it is not liable for any of plaintiff’s medical expenses incurred at the HMO, I must dissent.

2. I also disagree with the majority’s conclusion that State Farm refused to pay plaintiff’s claims because plaintiff failed to provide reasonable proof of medical expenses (i.e., her claims are “confused, multiplicitous and mingled with expenses which were as easily attributable prima facie to Jinks’ other collisions in 1985 and 1987”). The exhibits attached to plaintiff’s claim were medical records and forms prepared by plaintiff’s HMO. Although the HMO documents do contain some charges pertaining to services and medications provided plaintiff prior to the 1986 accident, the record contains letters from plaintiff’s attorney providing State Farm with the clarifications and explanations State Farm requested. Most importantly, however, the record reveals State Farm refused to pay any of the medical claims submitted by plaintiff, even those clearly pertaining to the 1986 accident. OCGA § 33-34-6 (b) provides, that “[i]f reasonable proof is not supplied as to the entire claim, the amount supported by reasonable proof is overdue if not paid within 30 days after proof is received by the insurer.” “Thus, [State Farm] may have been justified in denying or delaying payment for any bills which purported to be for treatment attributable to the [1985 or 1987 accident], but it was not necessarily justified in denying or delaying payment for any other bills which purported to be for treatment attributable to the [August 1986 accident], [Cit.]” Baker v. J. C. Penney Cas. Ins. Co., 192 Ga. App. 134, 137 (2) (384 SE2d 233) (1989). Since State Farm denied all of plaintiff’s medical claims, it is my opinion it must have done so because of its misplaced reliance on Travelers, rather than because the claim forms were confusing. However, I must agree with the majority’s conclusion that the issue of State Farm’s good faith in its refusal to pay plaintiff’s medical claims based upon its reliance on Travelers is one for jury resolution.

3. I must also dissent to Division 2 of the majority opinion determining that State Farm was entitled to summary judgment on plaintiff’s claim for lost wages. The majority contends that because plaintiff could not provide a disability statement from her treating physician as requested by State Farm, her claim for lost wages, as a matter of law, was not supported by reasonable proof. However, “OCGA § 33-34-6 (b) ‘does not require a claimant to submit proof of loss of such exactitude as would verify the claim in and of itself. The proof of loss submitted need only be such as would enable the insurer to verify the basic components of the claim through the exercise of reasonable diligence. (Cit.)’ [Cit.]” Baker v. J. C. Penney Cas. Ins. Co., supra at 136. Plaintiff, therefore, need only have submitted reasonable proof of the fact and amount of her loss sustained, not the exact proof requested by State Farm. Plaintiff having alleged in support of her motion for summary judgment that she submitted reasonable proof to State Farm of her claim for lost wages, the burden shifted to State Farm to establish why the physician’s disability statement was crucial to its consideration of her claim, especially in light of the evidence showing State Farm’s payment of a portion of plaintiff’s lost wage claim (38 hours of lost wages) without the benefit of the requested disability statement. State Farm having failed to meet its burden, a question of fact remains as to whether reasonable proof of plaintiff’s claim for lost wages was properly submitted to State Farm. Accordingly, the trial court did not err in denying plaintiff’s and defendant’s motions for summary judgment on the claim for lost wages.

Decided March 4, 1992.

Harper, Waldon & Craig, Thomas D. Harper, Frank Boucek III, for appellant.

Van Gerpen, Hoffman & Harris, Frank P. Harris, for appellee.

I am authorized to state that Presiding Judge Carley and Judge Johnson join in this opinion.


text:
    A91A2071.
    BARKSDALE v. NUWAR.
    (416 SE2d 546)
   Beasley, Judge.

While employed by a catering company to work at a social function at Nuwar’s home, Barksdale was injured when a patio deck on which he was standing pulled away from the house and collapsed to the ground. He sued the contractors who built the deck and Nuwar for his injuries. He appeals the grant of summary judgment in favor of Nuwar.

In support of his summary judgment motion, Nuwar averred that he had no training or information concerning the construction of a deck; that he had inspected the deck prior to accepting the house which had been built for him, and that it “appeared to be well constructed and sound.” He “noticed nothing wrong with it.” After its collapse, the deck was inspected by the chief building inspector for Fulton County, who determined that it had not been constructed in conformity with building code requirements and that its collapse was due to faulty construction. He conceded that “it would appear to the average untrained eye to be an acceptable deck.” It was his opinion that, had the deck been constructed in conformity with building code requirements, it would have been capable of simultaneously holding 110 people. Plaintiff deposed that approximately 25 to 30 people and some lightweight outdoor furniture, a table, and party supplies, were on the deck when it collapsed, and that the maximum number of people at any one time was 40.

Since plaintiff entered the premises for purposes connected with the business of the homeowner, he occupied the status of invitee. As to such, the owner has a duty to exercise ordinary care in keeping the premises safe. OCGA § 51-3-1; Abney v. London Iron &c. Co., 152 Ga. App. 238 (1) (g) (262 SE2d 505) (1979), aff’d 245 Ga. 759 (267 SE2d 214) (1980). This includes “a duty to inspect the premises to discover possible dangerous conditions of which he does not know and to take reasonable precautions to protect the invitee from dangers which are foreseeable from the arrangement and use of the premises.” Begin v. Ga. Championship Wrestling, 172 Ga. App. 293, 294 (322 SE2d 737) (1984), citing Prosser, Law of Torts (4th ed.) 393, § 61. The true ground of liability in such a relationship is the superior knowledge of the proprietor of the existence of a condition that may subject the invitee to an unreasonable risk of harm. Pound v. Augusta Nat., 158 Ga. App. 166, 167 (279 SE2d 342) (1981).

Nuwar had no actual knowledge of the construction defect, and he established a lack of actionable constructive knowledge by demonstrating that he was incapable of discovering it by means of reasonable inspection. Although plaintiff argues that defendant should have had the deck thoroughly inspected by competent professionals prior to its use in accommodating a large number of people, “ ‘(a) landowner is not an insurer of an invitee’s safety.’ [Cit.]” Id. at 167. The law only requires such diligence toward making the premises safe as the ordinarily prudent person in such matters is accustomed to use. Begin, supra at 294.

Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), held that “[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).” Id. at 491. Normally it is for a jury to determine whether an owner has exercised ordinary care in keeping the premises safe for those invited thereon, DeKalb County Hosp. Auth. v. Theofanidis, 157 Ga. App. 811, 812 (1) (278 SE2d 712) (1981), except in plain and palpable cases where reasonable minds cannot differ as to the conclusions to be reached.

Decided March 4, 1992.

Lokey & Bowden, G. Melton Mobley, for appellant.

Swift, Currie, McGhee & Hiers, Stephen L. Cotter, Eric D. Miller, Chambers, Mabry, McClelland & Brooks, Rex D. Smith, for appellee.

The homeowner has established as a matter of law that he discharged the duty of ordinary care owed to the invitee. Summary adjudication in his favor was authorized.

Judgment affirmed.

Carley, P. J., and Johnson, J., concur.


text:
    A91A2130.
    DAY v. THE STATE.
    (416 SE2d 548)
   Judge Arnold Shulman.

The appellant was tried for six counts of burglary, two counts of rape, and one count each of aggravated assault and possession of a knife during commission of a crime. The jury returned a verdict of guilty on all but the last count, and the case is before us on appeal from the denial of the appellant’s motion for new trial.

The evidence against the appellant fairly may be characterized as overwhelming. Each of the two rape victims testified that two men had gained entry into her apartment, tied her up, obtained her automated bank teller machine card, threatened to kill her if she did not divulge her access code, and engaged in sexual intercourse with her against her will. The contents of each victim’s purse were later discovered to have been dumped in her toilet. The appellant’s palm print was lifted from inside the first victim’s apartment, and the second victim positively identified him as one of the two perpetrators. The offenses occurred on April 23 and 24, 1989, respectively. The appellant was arrested on April 28, 1989, and at that time was wearing a gold necklace which the second victim identified as having been stolen from her apartment. In addition, it was established by photographic and other evidence that he had used her automatic teller machine card in the interim to remove money from her bank account.

1. The appellant contends that his trial counsel provided ineffective representation by failing to cross-examine the second victim on the issue of whether she and the appellant had a prior relationship, failing to “pursue” certain photographic evidence which would have substantiated the existence of such a prior relationship, failing to present expert testimony rebutting fingerprint and other identification evidence presented by the state, and failing to object to hearsay testimony regarding the statements the victims had given to police officers soon after the rapes occurred. However, the latter testimony was merely cumulative of the victims’ testimony at trial; and the appellant has not, to this date, established that any exculpatory evidence of any kind existed which was not introduced at trial.

“(T)he burden is on the defendant claiming ineffectiveness of counsel to establish (1) his attorney’s representation in specified instances fell below ‘an objective standard of reasonableness’ and (2) there is ‘a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ [Cits.]” Bowley v. State, 261 Ga. 278, 280 (3) (404 SE2d 97) (1991). In view of the overwhelming evidence of the appellant’s guilt, the trial court clearly did not err in concluding that the appellant had failed to meet the second prong of that burden in this case.

2. The appellant contends that the trial court erred in denying his motion to suppress a pick axe and sledge hammer which had been seized from his car at the time of his arrest. He does not argue that the search of the vehicle was itself unlawful but merely that the seizure of these particular items was unauthorized because the warrant on which the search was based neither mentioned them nor contained any information suggesting that they had been used in the commission of a crime. However, even accepting this latter contention as true, it appears that the vehicle was lawfully impounded following the appellant’s arrest and that the tools in question were included in the inventory of the items contained therein. Consequently, this enumeration of error is also without merit. See State v. Gilchrist, 174 Ga. App. 499 (1) (330 SE2d 430) (1985).

3. In his opening statement, defense counsel asserted that the testimony of three witnesses, including the appellant himself, would be crucial to the case; and he urged the jury “to examine them [and] listen to them very closely.” However, the appellant did not testify at trial; and the appellant contends that under the circumstances, the following portion of the state’s closing argument must be viewed as an improper comment on his failure to do so: “I ask you to keep in mind that we told you in opening statement what we thought the State’s evidence would show, and I ask you to think through the evidence . . . and ask yourselves if we did what we said we would do. And I also want you to think back on defense counsel’s opening and ask yourselves if they did what they said they would do.”

This contention is also without merit. Defense counsel additionally predicted in his opening statement that the evidence would show that the second victim knew the appellant intimately prior to the alleged rape and had used her automatic teller machine card previously. Because no such evidence was in fact presented, the jury could reasonably have interpreted the state’s attorney’s comment as a reference to that omission rather than as a reference to the appellant’s failure to testify. “ ‘ “To reverse for improper comment by the prosecutor, we must find one of two things: ‘that the prosecutor’s manifest intention was to comment upon the accused’s failure to testify’ or that the remark was ‘of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.’ (Cits.)” (Cit.)’ [Cit.] . . . ‘Inasmuch as there is another equally plausible explanation for the prosecutor’s statement, we cannot conclude that it was intended to comment on appellant’s failure to testify or that the jury would naturally take it to be such a comment.’ [Cit.]” Givens v. State, 199 Ga. App. 709-710 (405 SE2d 898) (1991). See also Smith v. State, 245 Ga. 205, 207 (264 SE2d 15) (1980).

Decided March 4, 1992.

McGuire, Cook & Martin, John J. Martin, Jr., for appellant.

Robert E. Wilson, District Attorney, Nelly F. Withers, Gregory A. Adams, John G. Guise, Assistant District Attorneys, for appellee.

Judgment affirmed.

Carley, P. J., and Beasley, J., concur in Divisions 1 and 3, and in the judgment.


author: Per curiam.

text:
    A90A1612.
    CALLAWAY et al. v. RYCKELEY et al.
    (417 SE2d 222)
    Decided March 5, 1992.

      Bischoff & White, Dorothy D. Wilcox, for appellants.

      McNally, Fox, Mahler, Cameron & Stephens, R. Mark Mahler, Lokey & Bowden, Malcolm Smith, K. Scott Graham, Beck, Owen & Murray, Richard L. Collier, Frederick A. Johnson, for appellees.
   Per curiam.

It appearing that the decision previously rendered by this court in the present case, reported at 199 Ga. App. 314 (404 SE2d 650) (1991), was reversed by the Georgia Supreme Court in Ryckeley v. Callaway, 261 Ga. 828 (412 SE2d 826) (1992), said decision is hereby vacated; and, in accordance with the decision of the Supreme Court, the judgment of the trial court is hereby affirmed.

Judgment affirmed.

Birdsong, P. J., Cooper and Johnson, JJ., concur.


text:
    A91A1664.
    MOORE et al. v. AMERICAN SUZUKI MOTOR CORPORATION.
    (416 SE2d 807)
   Birdsong, Presiding Judge.

Tony Moore, as successor and former chief executive officer and sole stockholder of Tony Moore Buick-Suzuki-Daihatsu, Inc., appeals from the grant of a directed verdict to American Suzuki Motor Corporation on his claims alleging that Suzuki arbitrarily refused to approve the transfer of his franchise, wrongfully terminated his franchise, and refused to buy back equipment and inventory. Moore also claimed attorney fees because of Suzuki’s bad faith.

The record shows that after presentation of Moore’s case, Suzuki moved for and was granted a directed verdict. The trial court found no evidence that Suzuki arbitrarily denied the transfer of the franchise or terminated the franchise without good cause because apparently the trial court found Moore violated his franchise agreement and OCGA § 10-1-653 by not providing prior written notice of his intent to transfer the franchise, because there was evidence that the proposed location of the transferred franchise was in a less favorable market, and because Moore had violated the terms of his franchise agreement by dissolving the corporation that held the franchise, by permitting his business license to lapse, and by closing his franchise in violation of the terms of his franchise agreement. Because of the decision on the merits, the trial court also granted a directed verdict on Moore’s claim for attorney fees.

In numerous enumerations of error, Moore contends the trial court erred by granting the directed verdict against him because there were issues of fact for the jury since he presented evidence proving his claims and Suzuki presented no evidence. He also asserts the trial court erred by excluding certain evidence, and he asserts the trial judge was not qualified to decide the case. Held:

1. A directed verdict is authorized only when there is no conflict in the evidence on any material issue and the evidence, with all reasonable deductions and construed in favor of the non-moving party, demands a certain verdict. OCGA § 9-11-50 (a); Southern Store &c. Co. v. Maddox, 195 Ga. App. 2, 3 (392 SE2d 268); McCarty v. Nat. Life &c. Ins. Co., 107 Ga. App. 178, 179 (129 SE2d 408). Further, the trial court is not authorized to weigh the evidence or decide issues of fact. Barber v. Atlas Concrete Pools, 155 Ga. App. 118-119 (270 SE2d 471). Therefore, we cannot affirm this grant of a directed verdict if there is any evidence supporting. Moore’s claims.

Although a directed verdict would have been proper if Moore simply failed to prove his case (Collins v. Ralston & Ogletree, 186 Ga. App. 583, 585 (367 SE2d 861)), we are satisfied the evidence is in conflict, and with all inferences that reasonably might be drawn therefrom, does not demand a verdict in favor of Suzuki. OCGA § 9-11-50 (a); see generally Mansour v. McWilliams, 172 Ga. App. 377, 378-379 (323 SE2d 262). Moreover, our law places the burden on Suzuki to prove its refusal to approve the transfer of the franchise was not arbitrary (OCGA § 10-6-653 (a)) and that it had good cause to terminate the franchise. OCGA § 10-6-651 (e).

Although there is evidence which could support a verdict in favor of Suzuki, that is not a sufficient basis for directing a verdict. “[T]here [must be] no evidence of any kind supporting [Moore’s] position.” (Emphasis deleted.) Jenkins v. Gulf States Mtg. Co., 138 Ga. App. 835, 837 (227 SE2d 522). In particular, there is conflicting evidence on whether Suzuki’s decision to refuse Moore’s request to transfer the franchise and terminate Moore’s franchise was arbitrary or was for good cause. Accordingly, it cannot be said that the evidence demanded a verdict for Suzuki.

The testimony from Moore and his expert witnesses and the documents concerning the proposed sale and the correspondence with Suzuki were sufficient to create jury issues on the transfer and the termination. In view of the conflicting evidence only the jury could decide if Suzuki gave valid reasons for its actions or, in light of Moore’s evidence, merely gave groundless excuses to justify its decisions.

Although Suzuki claims Moore’s own evidence showed that he violated his franchise agreement and OCGA § 10-1-653 by not giving prior notice of his intention to transfer the franchise until after he had agreed to transfer the franchise, or that Moore took actions which would warrant termination of the franchise under his franchise agreement and OCGA § 10-1-651, these are issues which must be decided by the jury. Moreover, the trial court was not authorized to make these findings because there was evidence from which it could be inferred that the agreement to sell the franchise was made contingent upon Suzuki’s approval of the transfer of the franchise.

Further, OCGA § 10-1-651 (i) (2) provides “[w]ithout limitation as to factors which may constitute or indicate a lack of good cause, no termination shall be considered to be for good cause: If such termination relates to a change in ownership or management and the franchisor has not complied with Code Section 10-1-653.” Therefore, if the jury finds under the evidence the refusal to transfer the franchise was arbitrary, the jury also could find, based upon the evidence presented, the subsequent decision to terminate the franchise was not for good cause.

Moreover, we cannot agree that Moore failed to present evidence on his damages. Even if Moore were not an expert or dealer, as a person experienced in this field with the opportunity to form a correct opinion, Moore was authorized to state his opinion of the value of the various equipment and inventory as well as the profit or loss incurred on the sales of certain automobiles. OCGA § 24-9-66. Additionally, the contract for sale of the franchise which stated the purchase price for equipment and inventory was competent evidence on the damage incurred. Any question about the value actually established by this evidence was for the jury to determine. Accordingly, the trial court erred by granting Suzuki’s motion for a directed verdict.

2. Moore also contends the trial court erred by excluding evidence of an inventory prepared before the sale. Although this issue is unlikely to recur upon a new trial, we note that it is the rule in this state that even evidence of questionable relevance or competence should be admitted and the weight of the evidence be left for the jury. Harris v. State, 183 Ga. App. 219 (2) (358 SE2d 634).

3. Although Moore complains that the trial court granted a directed verdict to Suzuki on his claim for bad faith even though Suzuki did not move for a directed verdict on this count, a motion for a directed verdict is not required if a directed verdict is demanded by the evidence. See Kelly v. Chrysler Corp., 129 Ga. App. 447 (199 SE2d 856). Therefore, had the evidence warranted a directed verdict on the main claims, a directed verdict on the bad faith claim would have been demanded. Since a directed verdict was not warranted, however, the trial court also erred by granting a directed verdict on this issue.

4. Additionally, Moore contends the trial judge was not “otherwise qualified to serve as a judge in the requesting court” because the judge, designated from the recorder’s court of Gwinnett County, was “neither appointed nor elected to sit on the bench in the same manner as constitutionally designated superior court judges.” Moore does not contend that the trial judge was not properly designated under OCGA § 15-1-9.1 or that the trial judge was not qualified under OCGA § 15-6-4. Instead, he contends that judges who have not been appointed or elected to serve as judges in the same manner as superior court judges are not qualified for appointment under OCGA § 15-1-9.1. This contention conflicts with Art. VI, Sec. I, Par. Ill of the Constitution of Georgia (1983): “Provided the judge is otherwise qualified, a judge may exercise judicial power in any court upon the request and with the consent of the judges of that court and of the judge’s own court under rules prescribed by law. The term ‘judge,’ as used in this article, shall include Justices, judges, senior judges, magistrates, and every other such judicial office of whatever name existing or created.” (Emphasis supplied.) Moreover, the legislative history of the Constitution of 1983 shows the drafters were aware that appointed judges of lower courts would be allowed to sit as judges on higher courts, including our Supreme Court, as long as they met the qualifications established for service on the higher court. In this case, those qualifications are stated in OCGA § 15-6-4. Consequently, as it is not contested that this trial judge did not meet the qualifications to serve as a superior court judge, Moore’s challenge to the trial judge is without merit. OCGA § 15-1-9.1 (a) (2); Hornsby v. Odum, 198 Ga. App. 472, 473 (402 SE2d 56); Dominguez v. Enterprise Leasing Co., 197 Ga. App. 664, 666 (399 SE2d 269).

Decided March 5, 1992.

Webb, Tanner & Powell, Anthony O. L. Powell, Andrew R. Mertz, for appellants.

Alston & Bird, T. Michael Tennant, A. McCampbell Gibson, for appellee.

Judgment reversed.

Pope and Cooper, JJ., concur.


author: Sognier, Chief Judge.

text:
    A91A1689.
    ATKINSON et al. v. CITY OF ROSWELL et al.
    (416 SE2d 550)
   Sognier, Chief Judge.

Eleven officers in the City of Roswell Police Department brought suit against the City of Roswell and its mayor and chief of police in their official capacities seeking, inter alia, actual damages, attorney fees, and punitive damages for the defendants’ alleged breach of contract, bad faith acts, and constitutional violations stemming from the defendants’ failure to use an assessment center and to follow personnel rules on notification of job openings when making five promotions within the police department. One plaintiff voluntarily dismissed his suit against the defendants, and the trial court granted the defendants’ motion for summary judgment regarding the claims by the remaining plaintiffs. They appeal.

In January 1989, the position of captain of the detective division came open in the City of Roswell Police Department. Appellants Neal Cobb, Rory Howe, Donald Moss, and John Watson (those appellants eligible for that position) were present at the March 3, 1989 staff meeting when Chief of Police Jerry King announced the opening. On March 20 of that year, King appointed Joan Rolland, the lieutenant in the detective division, to the detective captain position. It is uncontroverted that in making his decision for this position, King considered all the eligible appellants, but chose Joan Rolland over them. No evidence was adduced to contradict King’s testimony that he was cognizant of the qualifications of those officers eligible for the detective captaincy and familiar with all 117 persons employed by the police department. No evidence was adduced that Joan Rolland was not eligible for the detective captaincy, or that King’s decision was based on any bias against those appellants eligible for that position (who are all officers in the uniform patrol division) or in favor of Rolland (who as detective lieutenant had been the senior officer in the detective division).

Rolland’s promotion created an opening for detective lieutenant, which King deposed he filled by promoting the officer in the position directly under detective lieutenant, the detective sergeant. The detective sergeant’s position was in turn vacated, and King deposed that in filling the succeeding openings created by the initial promotion, he “looked at” or considered the candidates who were eligible for those positions (including the applicable appellants), but he did not conduct actual interviews with them. He testified that he would “review everybody [anyway] to try and come up with the best candidate for whatever promotion was available.” King deposed that in filling the challenged positions, he had followed the same procedure he had used since 1981, with one exception he remembered from several years earlier. The record further reflects that appellants did not lose their jobs or experience any detrimental effects in their pre-existing positions as a result of the promotions.

1. Appellants contend the trial court erred by granting summary judgment to appellees on their claims alleging breach of contract, bad faith, and constitutional violations based on appellees’ admitted failure to evaluate and select the applicants for the police department promotions through the use of an assessment center, the creation of which was being contemplated by appellees at the time of the promotions. However, given the uncontroverted evidence that no such assessment center was open, funded, or even approved by appellee City of Roswell at the time the promotions in issue in this appeal were made, we find no merit in appellants’ contention that they were legally harmed when appellee Chief of Police King did not wait until the planned assessment center came into being before filling the challenged positions. Accordingly, the trial court did not err by granting summary judgment in favor of appellees on appellants’ claims arising out of this issue.

2. Appellants contend the trial court erred by granting summary judgment to appellees on their breach of contract claim. This claim was based on appellees’ admitted failure to follow certain city personnel rules which required that a written notice of job vacancies be posted with a description of each vacancy and a list of the job requirements for the position for one week before a vacancy was filled. The trial court implicitly recognized appellants’ right to sue the City for breach of contract, and we agree since there is nothing to distinguish the contractual relationship between the parties to this appeal from the contractual relationship between the police officer and municipality in Precise v. City of Rossville, 261 Ga. 210, 211 (1) (403 SE2d 47) (1991) (municipal immunity not a valid defense to action for breach of contract). We note that in Precise, the Supreme Court reversed the opinion of this court in which we had relied on City of Atlanta v. Fry, 148 Ga. App. 269 (251 SE2d 90) (1978), aff’d 243 Ga. 517 (255 SE2d 48) (1979) (operation of police department, including the promotion and transfer of officers, is a governmental function, not a ministerial function).

Because the resolution which established the personnel rules at issue here, as pled and proved by appellants, was adopted in compliance with the conditions and directions given in the City’s charter, Ga. L. 1971, p. 3289, it was valid and of force. See Toomey v. Norwood Realty Co., 211 Ga. 814, 816-817 (1) (89 SE2d 265) (1955). We agree with the trial court that resolutions are the usual form employed for the enactment of administrative measures of a municipal corporation whereas ordinances are reserved for legislative acts, Allen v. Wise, 204 Ga. 415, 417-419 (1) (50 SE2d 69) (1948), and that nothing in the City’s charter required such personnel rules to be enacted by ordinance instead of by resolution. However, we agree with appellants that the trial court erred by granting appellees’ motion for summary judgment on the basis that the personnel rules did not apply to intradepartmental promotions such as those in issue in this appeal.

It is uncontroverted that appellants are full-time regular employees of the City of Roswell. No evidence was adduced by appellees that appellants are not among those employees subject to the personnel rules. Article IV of the rules, which is expressly applicable to full-time regular employees of the City, provides in Section III (A) that department heads are responsible for notifying the city administrator when positions “are vacant or will become vacant,” and requires the department heads to submit a notice to the city administrator setting forth, inter alia, the job title, pay grade, job duties, and abilities required to perform the job. Under Section III (B), the city administrator then reviews this information “to insure that information necessary for . . . promotion activities is provided” and to determine, inter alia, “[w]hether the position can be filled by promotion or transfer.” Section III (C), which is entitled “Recruitment,” provides that “preference in filling vacant positions shall be given to current City employees over outside applicants. ... To this end, vacancies above the entry level of any occupational category normally shall be announced to the City employees by the posting of appropriate notices on departmental bulletin boards for a period of one week.”

Applying the rules of statutory construction to this municipal enactment, see Snow v. Johnston, 197 Ga. 146, 155-156 (5) (28 SE2d 270) (1943), we agree with appellants that the personnel rules above are clearly applicable to vacancies to be filled by the promotion of any city employee. Thus, we find the trial court misinterpreted the personnel rules when it held that appellees did not have to comply with the procedures set forth in those rules when making the challenged promotions.

Although the record establishes that appellants are not entitled to the actual damages they sought for the breach of contract, in that uncontroverted evidence presented by appellees established that the same persons would have been promoted even had the personnel rules been followed, summary judgment was nevertheless improperly granted to appellees since appellants are entitled to recover nominal damages sufficient to cover the costs of bringing the action. OCGA § 13-6-6; Belcher v. Thomson Newspapers, 190 Ga. App. 466, 467 (379 SE2d 204) (1989).

3. Even assuming, arguendo, that appellants’ bad faith claim as to appellee King (i.e., that he acted intentionally and deliberately when he “circumvent[ed] the employment agreement”) was asserted against King not in his official capacity but in his individual capacity as the officer responsible for not promoting them, see City of Atlanta v. Fry, supra, appellants adduced no evidence to rebut King’s deposition and affidavit testimony explaining that the promotions in issue were made pursuant to the procedure he consistently used throughout his tenure as chief of police and that he promoted the people he considered most eligible for the jobs. Given King’s sworn statements demonstrating that he acted in good faith in making the challenged promotions and the absence of any rebuttal evidence setting forth a genuine issue of fact on appellants’ claim that King acted in bad faith, we find no error in the trial court’s grant of summary judgment to King on appellants’ claim of bad faith. See generally Miller v. Trammell, 198 Ga. App. 27, 28 (1) (400 SE2d 387) (1990).

4. Appellants contend genuine issues of material fact remain whether appellees’ failure to follow the personnel regulations constituted a violation of their procedural due process rights. We do not agree.

It is uncontroverted that the decision regarding which officers should be promoted was a matter vested in the discretion of the chief of police, King, as ratified by the city administrator, and was limited only by those personnel rules requiring equal employment opportunity for all persons without regard to sex, race, color, religion, national origin, political affiliation, age or handicapped status. As noted above, there is nothing in the record to suggest that in following what was basically a seniority system, which was the promotional system King had followed for several years, King acted outside the bounds of the discretion vested in him as chief of police when he promoted Rolland and the other officers, violated the equal employment opportunity personnel rules, or was not acting within the permissible scope of his appointing authority when he failed to promote appellants. See Horne v. Skelton, 152 Ga. App. 654, 660 (4) (263 SE2d 528) (1979).

The personnel rules in issue, as set forth above, address only the procedures to be followed in notifying employees about job vacancies: they do not address who among those so notified is entitled to the job. Thus, the record establishes that even had the personnel rules in issue here been followed, they would only have alerted appellants to the fact that positions were open and the nature of the positions involved, and would not have resulted in appellants’ automatic entitlement to or preference in promotion. Compare Hoffman v. Bd. of Fire & Police Commrs., 529 NE2d 790 (Ill. App. 1988). Therefore, appellants cannot claim that the personnel rules created a property interest in appointment to the vacant positions because promotion to those higher ranks was not a matter of right. See Bigby v. City of Chicago, 766 F2d 1053, 1057 (7th Cir. 1985), citing Board of Regents v. Roth, 408 U. S. 564, 577 (92 SC 2701, 33 LE2d 548) (1972); see also Horne, supra at 660 (4). The evidence of record further reveals that appellees’ failure to follow the notification rules did not prevent appellants from establishing themselves as eligible candidates for the positions, compare City of Tuscaloosa v. Marcum, 218 S2d 254 (Ala. 1969) (due process violated by failure to follow rules requiring use of roster of eligibles for promotion as determined by competitive examinations, interviews, etc.), or deprive them from being fully considered for the promotions. See Deas v. Levitt, 541 NYS2d 958, 962-963 (Ct. App. 1989). Nor does the evidence indicate that the failure to follow the personnel rules resulted in an inadequate review of the eligible candidates by King or in appointments based upon favoritism. Compare Montgomery County v. Anastasi, 549 A2d 753, 757 (Md. App. 1988).

A party is not entitled to procedural due process where the interest which would be impaired by governmental action does not involve that party’s protectible interest in life, liberty, or property. See Smith v. Crim, 240 Ga. 390, 392 (240 SE2d 884) (1977) (no due process claim where there is no protectible property interest); see generally Rotunda, Nowak & Young, Treatise on Constitutional Law: Substance and Procedure § 17.1. See also United States v. McDonald Chevrolet & Oldsmobile, 514 FSupp. 83, 89 (N.D. Ga. 1981). Because the personnel rules which appellees failed to follow did not limit the discretion of King and the city administrator in their decision regarding which officers to promote, and because it is uncontroverted that the failure to follow the personnel rules did not deprive appellants of the benefit of those rules (i.e., did not impair King’s fair and equal consideration of all eligible officers for the promotions), no property interest of appellants was impaired by the making of the challenged promotions, and therefore appellees’ failure to follow the personnel rules did not constitute a violation of appellants’ procedural due process rights. Accordingly, we affirm the trial court’s grant of summary judgment in favor of appellees on this issue.

Decided March 5, 1992.

McKenney & Froelich, William J. McKenney, for appellants.

Polatty & Sullivan, Michael E. Sullivan, Lauren G. Alexander, for appellees.

Judgment affirmed in part and reversed in part.

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

       We do not interpret the language in Section 2.11 of the City’s charter, Ga. L. 1971, pp. 3289, 3308, requiring “[a]ny action of the city council having a regulatory or penal effect” to require personnel rules to be enacted only by ordinance since the regulatory action contemplated by that language relates to those regulatory matters set forth in the corporate powers section of the charter (e.g., public utilities regulations, regulation of the use of public parks and buildings, etc.).