author: Blackburn, Judge.

text:
    A93A2604.
    In the Interest of L. T. W., a child.
    (439 SE2d 716)
   Blackburn, Judge.

The juvenile court determined that appellant, a juvenile charged with three counts of armed robbery and one count of theft by receiving stolen property, should be tried as an adult. Appellant appeals this determination.

1. In his first enumeration of error, appellant asserts that dismissal of the action was demanded as the juvenile court failed to fix a hearing within ten days of the filing of the petitions as required by OCGA § 15-11-26 (a). “However, this court has previously ruled that OCGA § 15-11-26 (a) requires merely that a hearing date be set within 10 days of the filing of the petition and not that the hearing itself be conducted within that period. [Cits.]” Johnson v. State, 183 Ga. App. 168, 169 (358 SE2d 313) (1987). Two petitions were filed against appellant; petition no. 93-0803 was filed on January 29, 1993, and petition no. 93-1467 was filed on March 10, 1993. A process and summons was issued on January 28, 1993, setting a hearing for February 4, 1993, with respect to case no. 93-0803 against appellant. A process and summons was issued on March 10, 1993, setting a hearing for March 17, 1993, with respect to case no. 93-1467 against appellant. Therefore, the juvenile court complied with OCGA § 15-11-26 (a), in that hearing dates were not only fixed within ten days of the filing of the petitions, but the hearings themselves were to be held within that time frame. Furthermore, the continuances obtained from the hearing dates were proper. See Johnson, supra.

2. In his second enumeration of error, appellant contends that the juvenile court failed to balance his interest in treatment in the juvenile system against the community’s interest in treating him as an adult. We do not agree. After a hearing which lasted several days, the juvenile court determined that reasonable grounds existed to believe that “1) the child committed the delinquent acts alleged; 2) the child is not committable to an institution for the mentally retarded or mentally ill; 3) the interests of the community required that the child be placed under legal restraint or discipline; and by fact that the child committed the alleged offenses, by use of a pistol, same being an offense weapon.” The juvenile court determination was based on evidence of the crimes charged, appellant’s prior record of offenses, appellant’s violation of his probation, and the mental evaluation of appellant. Even appellant’s psychologist testified that appellant needed to “take the consequences of his behavior.” In State v. M. M., 259 Ga. 637, 638 (386 SE2d 35) (1989), the Supreme Court noted “that the present transfer statute now requires a juvenile court to determine, in its discretion, whether there are reasonable grounds to believe that: ‘The interests of the child and the community require that the child be placed under legal restraint and the transfer be made.’ OCGA § 15-11-39 (a) (3) (C).” In the present case, the juvenile court properly balanced the interests of appellant and the community in its determination to transfer jurisdiction to the superior court.

3. In his third enumeration of error, appellant contends that the transfer hearing did not comply with the standards of due process and fair treatment. Appellant argues several separate violations of due process.

(a) Appellant asserts that the juvenile court’s denial of his motion to sever was erroneous. Appellant’s arguments with regard to this issue were not presented to the juvenile court; therefore, we are presented with nothing for decision. Peters v. State, 206 Ga. App. 143, 145 (424 SE2d 372) (1992). Furthermore, our review of the record indicates that the juvenile court’s denial of appellant’s motion to sever was not erroneous as the facts presented clearly distinguished between the crimes charged individually and those which implicated more than one defendant.

(b) Appellant next contends that the trial court’s ruling regarding cross-examination of the State’s witnesses was erroneous. It is uncontroverted that most of the State’s witnesses were able to identify only one or two of the defendants as the perpetrators of the specific crime of which the witness was a victim. The trial court ruled that each of the four defendants’ counsel could cross-examine each of the State’s witnesses only where there was some nexus between the witness and the specific defendant which that counsel represented. Essentially, appellant was merely required to show the relevancy of the cross-examination of witnesses which did not identify or implicate him as a perpetrator of a crime. Appellant failed to request cross-examination of any witness which did not identify him as a perpetrator of a crime. Furthermore, appellant never attempted to show a nexus between himself and the witnesses which did not identify or implicate him. Therefore, appellant failed to preserve any error for appeal.

(c) Appellant complains that the juvenile court erroneously allowed Detective Currence to testify as to the victims’ statements he received during his investigation. However, the hearsay statements explained Detective Currence’s conduct during his investigation and in arresting the defendants. Therefore, they were properly admitted. Carson v. State, 208 Ga. App. 534 (4) (431 SE2d 156) (1993).

(d) Appellant’s assertion that evidence of the photographic lineup was inadmissible because appellant’s picture was taken without the consent of a judge, in violation of OCGA § 15-11-60 (f), is without merit. Detective Currence obtained an order allowing the photographic line-up. Furthermore, the victim’s in-court identifications render any error harmless.

(e) Appellant next contends that the trial court erred in denying his motion to dismiss petition no. 93-1467. In his motion to dismiss, appellant argued that no probable cause hearing was held with respect to one of the charges of armed robbery in violation of OCGA § 15-11-23. OCGA § 15-11-23 requires that a court-authorized person determine and endorse upon the petition that it is in the best interest of the public and the child. Petition no. 93-1467 contained the proper endorsement. Furthermore, the subsequent charges of armed robbery were brought as part of a continuing scheme.

Appellant’s remaining arguments on this issue were not presented to the juvenile court and will not be addressed. See Peters, supra.

(f) Appellant next asserts that the trial court erred in failing to allow his counsel to withdraw. However, it is undisputed that the potential conflict upon which appellant’s counsel’s motion to withdraw was based did not arise. Therefore, as there was no conflict, the trial court did not err in denying the motion to withdraw.

Decided December 3, 1993

Reconsideration dismissed December 16, 1993.

Mark R. Pollard, for appellant.

Lewis R. Slaton, District Attorney, Sally Butler, Carl P. Green-berg, Assistant District Attorneys, for appellee.

(g) “OCGA § 15-11-39 (a) (3) ‘requires only that the court find that there are “reasonable grounds to believe” that the child committed the act alleged, not “proof beyond a reasonable doubt” as is required for a conviction. [Cit.]’ In re K. S. J., 258 Ga. 52, 53 (1) (365 SE2d 820) (1988).” In the Interest of R. J., 191 Ga. App. 712, 713-714 (382 SE2d 671) (1989). Therefore, appellant’s contention that no rational trier of fact could have found that he committed the offense of armed robbery is without merit. Furthermore, our review of the record indicates that the juvenile court’s findings were based on reasonable grounds.

(h) Appellant contends that a comment made by the juvenile court judge during a hearing on separate charges against appellant indicated that the court had a preconceived disposition toward appellant on the present case. However, in the present case, the juvenile court commented during the transfer hearing that there would be time to resolve an issue “before this is either tried here or in adult court.” Appellant’s allegation is wholly without merit.

Judgment affirmed.

McMurray, P. J., and Johnson, J., concur.


source: Caselaw Access Project

author: Andrews, Judge.

license: Public Domain

text:
    A93A1106.
    FORSYTH COUNTY v. GREER et al.
    (439 SE2d 679)
   Andrews, Judge.

This court granted interlocutory appeal to Forsyth County to consider the trial court’s denial of the county’s motion to dismiss the Greers’ inverse condemnation suit.

The Greers originally filed suit against named officials and officers of Forsyth County on December 8, 1986. That suit was dismissed by a consent final judgment and decree which obviated any county requirements imposed on the subdivision development after the rezoning resolution of May 27, 1986; ordered the issuing of building permits and certificates of occupancy in the subdivision; and found that no payment beyond $9,000 was due the county for installation of water distribution facilities. The judgment allowed the plaintiffs four years from August 27, 1986, in which to file an “inverse condemnation proceeding” regarding the period of delay in obtaining the needed permits and certificates.

This inverse condemnation suit was brought against Forsyth County only on August 24, 1990, seeking damages for the several months delay encountered in developing the Greers’ subdivision. As stated in the complaint, the plaintiffs alleged that county agents took actions resulting in a “temporary regulatory taking” of property in violation of the Constitution of the United States and of the State of Georgia.

The county moved to dismiss the suit on the ground it was protected by the doctrine of sovereign immunity and, because there was no allegation that the taking was for a public purpose, no valid inverse condemnation claim had been alleged. The trial court issued an order denying the motion to dismiss without any clarification. It then granted a certificate of immediate review “based upon the issue stated by the parties in the pleadings necessitating the Order, particularly whether or not the ruling of the Georgia Court of Appeals in Kelleher v. State of Georgia, 187 Ga. App. 64 (369 SE2d 341) (1988) is a proper statement of the law in view of more recent rulings of the United States Supreme Court concerning temporary takings, and upon the additional ground that interlocutory review may resolve this case without the necessity of a jury trial. ...”

No United States Supreme Court case more recent than 1988 was relied on by any of the parties below or here, although an earlier case, First English Evangelical Lutheran Church of Glendale v. Los Angeles, Cal., 482 U. S. 304 (107 SC 2378, 96 LE2d 250) (1987), was cited for the principle that the passing of an ordinance which prohibited all use of a landowner’s property can result in an inverse condemnation action.

1. We first address the issue of our jurisdiction. Since this case is not a question of interpretation of a constitutional provision, Ga. Const. 1983, Art. VI, Sec. VI, Par. II, but whether certain acts amount to an unconstitutional taking, this case is properly before this court. See Brownlow v. City of Calhoun, 198 Ga. App. 710 (1) (402 SE2d 788) (1991), citing Trend Dev. Corp. v. Douglas County, 259 Ga. 425 (383 SE2d 123) (1989) and Shockley v. Fayette County, 260 Ga. 489 (396 SE2d 883) (1990); compare Kariuki v. DeKalb County, 253 Ga. 713 (324 SE2d 450) (1985).

2. The county’s first and second enumerations are that a) no state cause of action existed for inverse condemnation as a matter of law because no public purpose was put forward for the alleged taking, and b) there is no cause of action under 42 USCA § 1983 because there was not such a taking as denied the landowner all use of his property.

(a) A county is not entitled to the constitutional protection of sovereign immunity where there has been a “ ‘taking for public purpose.’ ” DeKalb County v. Orwig, 196 Ga. App. 255, 257 (395 SE2d 824) (1990), modified on other grounds 261 Ga. 137 (402 SE2d 513) (1991). Here, assuming without deciding that the delays in issuing the permits, etc. involved in this case amounted to a temporary regulatory taking, there is no allegation in the record that such acts were done for a public purpose. Kelleher, supra at 65 (2). The complaint reflects on its face that the majority of the acts which are alleged to have delayed the development were done by county employees without the approval of the board of commissioners of the county, did not occur as part of a comprehensive land use plan, were done with improper motive, bad faith, and were wilful and wanton. Therefore, there is no cause of action for inverse condemnation.

The county argues that since no individuals were named as defendants in this suit, the suit against it was barred by the doctrine of sovereign immunity because “no basis has been asserted upon which the [county] itself, as opposed to its officers, could be held liable for monetary damages on the basis of [the seizure]. Cf. Quern v. Jordan, 440 U. S. 332, 343 (99 SC 1139, 59 LE2d 358) (1979).” Kelleher, supra at 65 (2). We agree.

“Sovereign immunity is not an affirmative defense . . . that must be established by the party seeking its protection. Instead, immunity from suit is a privilege that is subject to waiver by the State, and the waiver must be established by the party seeking to benefit from the waiver. See Kelleher, [supra].Ga. Dept. of Human Resources v. Poss, 263 Ga. 347, 348 (434 SE2d 488) (1993). Here, nothing that would amount to such a waiver, in the absence of an action for inverse condemnation, has been alleged. Id.; accord Collins v. Byrd, 204 Ga. App. 893, 895 (3) (420 SE2d 785) (1992).

(b) There is no allegation that the appellee/owners here were unable to make any use of their property during the administrative processes, only that the completion of their project was somewhat delayed. The complaint reflects that, during the time that the issue of the water supply for the development wás being contested, development proceeded in the subdivision. It is not disputed that all required permits and approvals have now been issued or occurred. This is not sufficient to show a § 1983 violation and appellants specifically disavowed any such intent below. Cobb County v. McColister, 261 Ga. 876, 877 (413 SE2d 441) (1992).

Decided November 24, 1993

Reconsideration denied December 17, 1993

Banks & Stubbs, Robert S. Stubbs III, for appellant.

Lynwood D. Jordon, Jr., for appellees.

Judgment reversed.

Pope, C. J., and Birdsong, P. J., concur.

       The most recent case, Lucas v. South Carolina Coastal Council, _ U. S. _ (112 SC 2886, 120 LE2d 798) (1992), did not deal with a temporary taking but was a total prohibition of use.

       Since the instant suit was filed before the state constitutional amendment of 1991, it is controlled by the 1983 provisions governing waiver of sovereign immunity to the extent of liability insurance coverage. Curtis v. Bd. of Regents of the Univ. System of Ga., 262 Ga. 226 (416 SE2d 510) (1992).


author: Cooper, Judge.

text:
    A93A1195.
    BALL v. COX CABLE MIDDLE GEORGIA, INC.
    (439 SE2d 704)
    Decided December 2, 1993
    Reconsideration denied December 17, 1993.

      Reynolds & McArthur, Charles M. Cork III, for appellant.

      McLain & Merritt, M. David Merritt, for appellee.
   Cooper, Judge.

Appellant brought an action in the Superior Court of Fulton County against appellee for personal injuries she received in an automobile accident. The case was tried before Judge Janice Christian, a Fulton County Magistrate designated pursuant to OCGA § 15-1-9.1 to assist the judges of the Superior Court of Fulton County. The jury returned a verdict for appellee, and appellant appeals from the judgment entered in favor of appellee, contending Judge Christian lacked authority to conduct the trial and enter the judgment.

Appellant raises several challenges to the procedures employed to designate Magistrate Court Judge Christian to assist as a superior court judge. However, the record reflects that appellant made no objection prior to the commencement of trial; nor did appellant move to set aside the judgment. Since appellant failed to object below at the earliest practicable moment, we conclude that the grounds for objection have not been preserved for appellate review. Troncone v. Troncone, 261 Ga. 662 (3) (409 SE2d 516) (1991).

Judgment affirmed.

Beasley, P. J., and Smith, J., concur.


text:
    A93A1252.
    EMPLOYEES RETIREMENT SYSTEM OF GEORGIA v. EVANS.
    (439 SE2d 690)
   Blackburn, Judge.

In late 1990, the appellee, Warren Evans, applied for a retirement pension from the Employees Retirement System of Georgia (ERS). The ERS found him to have 16 years of creditable service, including ten years and nine months of legislative service and approximately five years as Commissioner of Insurance, and awarded him a monthly retirement benefit of $1,036.39, which Evans began receiving in March 1991. However, later that same month, the ERS canceled Evans’ retirement benefits, after being advised by an opinion of the Attorney General that Evans’ years of legislative service could not be credited towards his retirement through the ERS.

Evans subsequently commenced this action seeking reinstatement of his retirement, and the trial court granted summary judgment in his favor. In this appeal by the ERS, the issue is whether the statutory contracts to which Evans was a party entitled him to credit for his years of part-time service as a legislator with the Georgia General Assembly towards a retirement allowance that was based on the full-time position as Commissioner of Insurance he held for approximately five years.

The ERS was statutorily created in 1949, to provide retirement allowances and other benefits for employees of the state and political subdivisions thereof. OCGA § 47-2-20. The Legislative Retirement System (LRS) was also statutorily created in 1967, to provide similar benefits for members of the General Assembly. OCGA § 47-6-20.

Effective May 1, 1971, the two retirement systems were merged, all the membership and assets of the LRS were transferred to the ERS, and all members of the LRS were required to become members of the ERS, although the act creating the LRS was not repealed and it remained a statutory system. All of the above legislation occurred before Evans was elected to the Georgia House of Representatives in 1974. Evans took office in January 1975, at which time he became a member of the ERS in accordance with OCGA § 47-6-41.

In 1979, the General Assembly began reviving the LRS and separating that system from the ERS. Specifically, the act creating the LRS was amended to provide for an election by General Assembly members prior to July 1, 1980, choosing between (1) continuing membership in the ERS, (2) withdrawing from the ERS and becoming a member of the newly revived LRS, or (3) declining membership in either retirement system. The election was irrevocable as long as the person remained a member of the General Assembly. Ga. L. 1979, pp. 931, 932. The trial court relied heavily on the irrevocability of the election language above-described, in determining that Evans had an initial right to transfer his retirement credits, which rights, the court held, were protected from forfeiture by the 1980 amendment hereinafter discussed.

The act was further amended in 1980 to extend the deadline for making such an election until January 12, 1981. The 1980 amendment also added that “ ‘[a]ny member of the General Assembly electing to become a member of this . . . Section [LRS] shall not thereby forfeit any rights or privileges possessed by such member under the Employees’ Retirement System at the time such election is made,, and such rights and privileges shall continue to apply to such member.’ ” (Emphasis supplied.) Ga. L. 1980, pp. 611, 615 (now codified at OCGA § 47-6-42 (d)). It was this non-forfeiture provision upon which the trial court relied heavily in determining that Evans’ part-time legislative service could be transferred as creditable service under the ERS when he became Commissioner of Insurance.

In 1981, the General Assembly passed Senate Bill 157, which amended the ERS to allow for the “transfer [of] all creditable service acquired under the Georgia Legislative Retirement System to the Teachers’ Retirement System or Employees’ Retirement System at such time as a former member of LRS is employed in a position which is covered by TRS or ERS.” Ga. L. 1981, pp. 1938, 1940. This bill, which would have authorized the transfers which the trial court approved, was vetoed by then Governor Busbee, who indicated that the effect of Section 1 of the bill would be to authorize service transfers from the LRS to the ERS or the Teachers Retirement System. Ga. L. 1981, pp. 1938, 1941.

No express statutory authority existed for the transfer of service under LRS to ERS as of 1980, the date of election by Evans.

By amendments passed in 1984 and 1985, the General Assembly eventually precluded any possibility of the use of legislative service as creditable service for any public retirement system other than the LRS, except for some limited situations specified in OCGA § 47-1-9, none of which apply in this case. In 1984, OCGA § 47-6-42 (b) was amended to provide that persons who became General Assembly members between the date of the 1979 statute and July 1, 1984, could still choose between the ERS or the LRS; however, persons who became members of the General Assembly after July 1, 1984, could no longer participate in the ERS. Ga. L. 1984, pp. 758, 759. The 1985 amendment generally prohibited using any legislative service obtained after December 31, 1985, as creditable service for any retirement system other than the LRS. Ga. L. 1985, pp. 1334, 1335.

On November 30, 1980, pursuant to the 1980 amendment of the LRS, Evans elected to withdraw his membership in the ERS and to become a member of the LRS. He remained a member of the General Assembly until October 1985, when he resigned his position in the House of Representatives to accept his appointment as Commissioner of the Department of Insurance. As Commissioner of that state agency, Evans was required to become a member of the ERS, and at that time the administrator of the ERS transferred Evans’ ten years and nine months of service under the LRS to his account in the ERS. Evans thus received over ten full years of creditable service for retirement purposes under the ERS for part-time, legislative service.

Evans applied for a retirement allowance from the ERS after he was defeated in his bid for re-election as Commissioner of Insurance in 1990. His application was approved, but after he received his first check, the Attorney General issued an opinion providing that a legislator who elected LRS membership in 1979 or 1980 cannot transfer that part-time legislative service to the ERS upon assuming a position that is covered under the ERS. See Op. Atty. Gen. 91-6. As a consequence, the ERS canceled Evans’ retirement benefit, and this action followed.

In granting summary judgment for Evans, the trial court considered separately the credit for legislative service earned by Evans as a required member of the ERS from 1975 until 1980 prior to his election to participate • in the LRS, and for legislative service he earned while a member of the LRS prior to his transfer back to the ERS in 1985. With regard to the first period of service, the trial court emphasized that not only did Evans have the right to have legislative service credited under the ERS, such was actually required under the 1971 statute in effect when Evans took office in 1975. Because the 1980 amendment, pursuant to which Evans elected to transfer to the LRS, provided that a General Assembly member making such an election “shall not forfeit any rights or privileges possessed . . . under the Employees’ Retirement System,” the trial court further concluded that Evans retained the right to have his legislative service count as creditable years of service under the ERS when he left the General Assembly.

With regard to Evans’ legislative service from 1981 through 1985, during which Evans’ retirement contributions were paid into the LRS, the trial court found that there was no necessity of a specific authorization to transfer creditable service under the LRS as creditable service under the ERS upon Evans’ departure from the General Assembly. Rather, the 1980 statutory provision that the retirement system election would be “irrevocable as long as such person is a member of the General Assembly” recognized the possibility that a LRS member could again become an ERS member following service in the General Assembly.

In short, the trial court reasoned, when Evans was required to resume membership in the ERS when he resigned from the General Assembly to accept his appointment as Commissioner of Insurance, his election to be a member of the LRS was revoked, thus restoring his right to credit his legislative service under the ERS. Concomitant with Evans’ ability to revoke his 1980 election for LRS membership, the trial court found that the ERS possessed implicit, if not express, authority to transfer accounts from the LRS and thus credit Evans’ total legislative service back under the ERS when he became Commissioner of Insurance.

On appeal, the ERS contends that the trial court’s determination that Evans retained the right to re-establish legislative service under the ERS was inconsistent with Evans’ election for LRS membership pursuant to the 1980 amendment, and that the transfer into the ERS of legislative service previously credited under the LRS was improper because there was no express statutory authorization for such. We agree.

“Where a statute or ordinance establishes a retirement plan for government employees, . . . the ordinance or statute becomes part of the contract of employment.” Swann v. Bd. of Trustees of Joint Municipal Employees’ Benefit System, 257 Ga. 450, 454 (2) (360 SE2d 395) (1987). In the instant case, Evans’ right to have his legislative service credited to his ERS account thus depends upon the language of the applicable statutes in effect at the time of Evans’ service.

As noted above, when Evans was first elected to the General Assembly in 1974, although the LRS still existed in a dormant state, he was required to participate as a member of the ERS pursuant to OCGA § 47-6-41. However, in 1979, the General Assembly began measures to separate the two retirement systems, requiring General Assembly members to choose between continuing under the ERS, withdrawing from the ERS and enrolling in the newly revived LRS, or not participating in either retirement system.

When Evans made his election on November 30, 1980, to change from the ERS to the LRS, his decision was not made without benefit to him. At that time, he received the benefit of a faster vested retirement, by virtue of the fact that retirement benefits vested under the LRS with only eight years of service (OCGA § 47-6-80), compared to the requirement of ten years of service under the ERS (OCGA § 47-2-110). As an elected official, Evans had no guarantee that he would be re-elected to office so that he could meet the ten-year vesting requirement of the ERS. By his retirement plan election, Evans received the benefit of having his retirement benefits vest in 1983, two years earlier than they would have vested had he elected to remain in the ERS. See Ga. L. 1979, pp. 931, 932. Evans was free to remain in the ERS until 1985, but chose, for a benefit, to become a member of the LRS, and to give up his right to participate in the ERS during his years of legislative service. OCGA § 47-6-42 (a).

OCGA § 47-6-42 (d), stating that General Assembly members who elected to join the LRS “shall not thereby forfeit any rights or privileges possessed” under the ERS, provides no basis for allowing Evans to avoid the consequences of his election or to transfer years of legislative service back into the ERS when he resigned from the General Assembly. In all interpretations of statutes, the courts are to look diligently for the intention of the General Assembly, and to give words their ordinary signification. OCGA § 1-3-1; City of Roswell v. City of Atlanta, 261 Ga. 657 (410 SE2d 28) (1991). “[0]ne proper criterion for determining the meaning of a legislative enactment is to consider the general scheme and purport of the proposed legislation.” Pennington & Evans v. Douglas, Augusta &c. R. Co., 3 Ga. App. 665, 678 (60 SE 485) (1908).

Although both the ERS and the LRS were created for the purpose of providing retirement allowances and other benefits to its respective members, it is clear that the extent of those intended benefits was quite different. The ERS, which defines “member” as an employee whose employment is his primary occupation and involves working at least thirty hours per week and nine months of a year (OCGA § 47-2-1 (23)), was intended to provide an opportunity to establish a full retirement income for its members. Considering the fact that legislators work part-time and presumably do not depend upon a legislator’s salary for a living, and considering the relatively modest retirement allowances under the LRS, it is apparent that the LRS was intended to provide only a supplemental source of retirement income to members with the requisite years of legislative service.

When the General Assembly took measures in 1979 and 1980 to separate the two retirement systems by requiring General Assembly members to choose between the ERS and the LRS, it surely could not have intended that legislators who elected to join the LRS nevertheless retained a right to re-establish their legislative service under the ERS upon their departure from the General Assembly. Such a result would be completely inconsistent with requiring an election in the first place. It also would allow enhancement of a supplemental retirement benefit that otherwise would be due under the LRS for part-time legislative service, by subsequently obtaining employment in a position covered under the ERS, a result that would be contrary to the apparent purpose behind the LRS of providing a supplemental retirement income.

Specifically, in the instant case, allowing such a transfer would result in crediting Evans with ten years of full-time service towards his retirement for part-time work. The General Assembly is charged with the duty of enacting laws that are in the best interest of the citizenry and are “necessary and proper for the welfare of the state,” Ga. Const. 1983, Art. Ill, Sec. VI, Par. I, and the laws enacted by the General Assembly should be so construed. Construction of the retirement laws in question so as to allow the subject transfer would not promote the welfare of the state and only where the statutes expressly provide for such transfers of service and allow no other construction, can they be so construed.

In contending that the retirement statutes did contain express provision for such transfers of service, Evans misplaces his reliance upon a partial transcript of a floor debate in the Georgia House of Representatives concerning the proposed 1985 amendment to the ERS Act, in which Representative Ruldolph Johnson, who sponsored the amendment and who would later become the executive director of the ERS and LRS, stated that although the proposed bill prohibited transfer of legislative service to the ERS after January 1, 1986, prior legislative service would remain creditable under the ERS. This portion of the floor debate cannot be accepted as a comprehensive manifestation of the General Assembly’s interpretation of the prior enactments.

“ Tn construing statutes subsequent acts of the legislature on the same subject may be considered.’ [Cit.] The courts are to be guided by the last expression of the General Assembly on a subject.” Bd. of Trustees of the Policemen’s Pension Fund of Atlanta v. Christy, 246 Ga. 553, 555 (272 SE2d 288) (1980). In this regard, we note that in 1981, the General Assembly passed a bill that would have amended the law to permit the transfer of service sought by Evans, Ga. L. 1981, pp. 1938, 1941, which was vetoed by the governor. If the 1980 amendment had preserved the right to transfer legislative service back from the LRS to the ERS upon the termination of one’s legislative service as argued by Evans, there would have been no need whatsoever for the vetoed 1981 statute that specifically authorized such transfers.

Whatever rights and privileges Evans retained under the ERS when he elected in 1980 to participate in the LRS, they did not include the right to re-establish his prior legislative service towards a retirement allowance under the ERS, as no such right existed in the ERS statute as of the date of that election. Disallowance of Evans’ attempted re-establishment of his legislative service as creditable service under the ERS merely prevents the enhancement of his retirement benefits, and does not result in any forfeiture within the meaning of OCGA § 47-6-42 (d). Where a benefit is simply not allowed to be enhanced, it cannot be said that such disallowance constitutes a forfeiture of a benefit, as the benefit has the same value as it had at the pre-enhancement point.

We also disagree with the trial court’s conclusion that the ERS had implicit authority to transfer accounts from the LRS back into the ERS. An administrative body created by the legislature “has only such powers as the legislature has expressly, or by necessary implication, conferred upon it.” (Emphasis supplied.) Bentley v. State Bd. of Med. Examiners of Ga., 152 Ga. 836, 838 (111 SE 379) (1922). The ERS statute contains no express authorization for such transfers from the LRS to the ERS after a LRS member leaves the General Assembly and rejoins the ERS as a requirement of subsequent employment. OCGA § 47-6-42 (e), relied upon to some extent by the trial court, expressly authorized only transfers of LRS accounts to the ERS to effectuate the 1971 merger of the two retirement systems, but it does not bestow upon the ERS the express authority to make future transfers of LRS accounts back into the ERS and contains nothing which authorizes an implied authority to do so, especially in view of the fact that at the time it was enacted, the intent of the General Assembly was to divorce the two systems and discontinue the acceptance of part-time legislative service as creditable service under the ERS.

In summary, when Evans elected to join the LRS on November 30, 1980, pursuant to OCGA § 47-6-42 (a), he was bound by that choice, and the years of his legislative service may be credited only under the LRS. Although he was not obligated to remain in the LRS upon leaving the General Assembly because the election was irrevocable only as long as he was a member of the General Assembly, neither the ERS statute nor the LRS statute allows re-establishment of legislative service, previously credited under the LRS pursuant to his election in 1980 to withdraw from the ERS and join the LRS, as creditable service under the ERS. To hold otherwise yields a result that is contrary to the intendment of the respective retirement systems, and one that is especially inconsistent with the legislative intent to disallow crediting of such part-time legislative service under the ERS, as manifested by the amendments to the LRS statute beginning in 1979.

Accordingly, we conclude that the trial court erred in granting summary judgment for Evans on the grounds that Evans was statutorily entitled to have his legislative service credited under the ERS following his resignation from the General Assembly, which ruling was made despite his election in 1980 to withdraw from the ERS and join the LRS. Further, ERS would be entitled to judgment on its cross-motion for summary judgment, if no other issues remained in the case. However, in granting summary judgment for Evans, the trial court noted but found it unnecessary to address three other bases for summary judgment asserted by Evans, i.e., estoppel, re-establishment of service credit under OCGA § 47-2-92, and the constitutionality of the 1980 statute. Accordingly, this case must be remanded for determination of those remaining issues.

Judgment reversed and case remanded.

Cooper and Smith, JJ., concur. McMurray, P. J., and Johnson, J., disqualified.

Decided December 1, 1993

Reconsideration denied December 17, 1993

Michael J. Bowers, Attorney General, Jeffrey L. Milsteen, Senior Assistant Attorney General, Susan L. Rutherford, Assistant Attorney General, for appellant.

Chilivis & Grindler, Nickolas P. Chilivis, John K. Larkins, Jr., for appellee.

G. Stephen Parker, Joshua R. Kenyon, amici curiae.


author: Smith, Judge.

text:
    A93A1288.
    DANIEL v. THE STATE.
    (439 SE2d 720)
   Smith, Judge.

Michael Eugene Daniel was convicted after a jury trial of two counts of aggravated assault, OCGA § 16-5-21 (a); carrying a concealed weapon, OCGA § 16-11-126 (a); and possession of cocaine, OCGA §§ 16-13-30 (a) and 16-13-26 (1) (D). He appeals following the denial of his motion for new trial.

1. Daniel enumerates as error the admission of a prior conviction for misdemeanor obstruction of a law enforcement officer pursuant to OCGA § 16-10-24 (a). At trial, defense witness Calvin Leroy Bonner was asked whether Daniel had a “reputation for starting fights or beating people up.” Bonner replied, without objection from the State: “No, sir, not to my knowledge. I’ve never seen it.” Defense counsel then asked about Daniel’s reputation generally. Bonner replied: “He’s a nice going guy. Just a neighborhood guy that works on everybody’s car for them. He didn’t actually bother anybody. . . . And other than that, I never have known him or seen him to provoke anybody, as far as any actions, to harm them or hurt them or distract them in any way.”

Prior to cross-examination, and outside the presence of the jury, the State moved to introduce the prior obstruction conviction for impeachment purposes. Defense counsel responded that the prior conviction “doesn’t mean a violent act.” The court observed that Daniel’s character had been placed in issue and overruled the objection without commenting on its substance.

The jury returned, and the State then asked Bonner whether he was aware of the prior obstruction conviction. Bonner replied that he was aware of the accusation from “the news media” but was not aware of the conviction. The State then asked, without objection: “Now with the knowledge that prior to this incident that he’s been found guilty by a jury, February 1, 1991, of obstruction of a police officer, does that change your opinion about his propensity for violence in the community?” Bonner replied: “No, because that’s just one little matter of time versus almost a lifetime of actually knowing the guy. You don’t know what could happen to you within a period of time. They might have provoked him. I don’t know what the circumstances was. Just because a sentence was given upon him I don’t know that it was what actually happened.”

The State then tendered certified copies of the verdict form, sentence, and the indictment “charging Michael Daniel with the offense [of] obstruction of an officer.” Defense counsel renewed his previous objection.

(a) Daniel first argues that the prior conviction was for misdemeanor obstruction, which involves neither violence nor moral turpitude, and was therefore inadmissible for impeachment purposes. OCGA § 16-10-24 (a); Harris v. State, 173 Ga. App. 787, 788-789 (2) (328 SE2d 370) (1985). We agree and reverse.

The rationale behind prohibiting the admission of evidence of other crimes committed by the accused except under very narrow circumstances is that “[a]n accused is ‘entitled to be tried for the offense charged in the indictment, independently of any other offense not connected with the transaction upon which the indictment was based. [Cit.]”’ Williams v. State, 261 Ga. 640, 641-642 (2) (a) (409 SE2d 649) (1991). To render such evidence admissible, the State must show that it seeks to introduce it “not to raise an improper inference as to the accused’s character, but for some appropriate purpose which has been deemed to be an exception to the general rule of inadmissibility.” Id. at 642 (2) (b). See USCR 31.3 (B).

The State did not seek to introduce the evidence in question to show identity, motive, or intent, as is often the case, see id. at 642 (2) (b), n. 2, but “to directly impeach what this witness has said. That indeed this defendant has been found guilty by a jury of a violent obstruction against an individual.” USCR 31.3 (E) provides that nothing in the rule “is intended to alter the rules of evidence relating to impeachment of witnesses.” The prior crime evidence was admissible, therefore, only if it comported with the rules of evidence relating to impeachment, and we find that it did not.

The State sought to impeach Bonner by disproving his testimony. “A witness may be impeached by disproving the facts testified to by him.” OCGA § 24-9-82. Even assuming that a prior conviction for felony obstruction involving violence could properly have impeached Bonner’s testimony, however, the document showed on its face that it was for misdemeanor obstruction which, unlike felony obstruction, does not involve the element of violence. OCGA § 16-10-24 (a), (b). See Duke v. State, 205 Ga. App. 689 (423 SE2d 427) (1992). Although defense counsel’s objection may not have been crystal clear in distinguishing between misdemeanor and felony obstruction or in failing to bring to the attention of the trial court that Daniel’s conviction was for the lesser included misdemeanor offense, the burden was on the State to show that the evidence was being introduced for a proper purpose. Williams, supra at 642 (2) (b); USCR 31.3 (B). The State failed to carry this burden. It follows that the trial court improperly admitted this evidence. Because the improperly admitted evidence impermissibly bore upon Daniel’s character, his conviction must be reversed and a new trial ordered. See generally Williams, supra at 643 (2).

Decided December 3, 1993

Reconsideration denied December 17, 1993

Julian M. Treadaway, for appellant.

Thomas J. Charron, District Attorney, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

(b) For the same reasons, the indictment in the prior crime should not have been admitted. It alleged a violent act of obstruction against a police officer, but Daniel had been convicted only of the lesser included misdemeanor.

2. Our holding in Division 1 renders unnecessary consideration of Daniel’s other enumerations of error.

Judgments reversed.

Beasley, P. J., and Cooper, J., concur.


text:
    A93A1337.
    WILSON v. THE STATE.
    (439 SE2d 685)
   Cooper, Judge.

Kenneth Scott Wilson was tried before a jury and found guilty of child molestation and aggravated child molestation for acts committed against his two-and-one-half-year-old daughter. A timely notice of appeal followed the denial of his motion for new trial and Wilson appeals from the judgments of conviction and sentences entered by the trial court on the jury’s verdicts of guilt.

1. Appellant moved to exclude from evidence incriminating statements he made to the police, claiming that they were the product of custodial interrogation conducted before he had been cautioned of his right to remain silent and of his right to have counsel present. After a Jackson-Denno hearing on the voluntariness of appellant’s statements, the trial court admitted them into evidence. This evidentiary ruling is enumerated as error.

The burden is on the prosecution to show the voluntariness of a custodial statement by a preponderance of the evidence. High v. State, 233 Ga. 153 (1) (210 SE2d 673) (1974). “Factual and credibility determinations of this sort made by a trial judge after a [voluntariness] hearing must be accepted by appellate courts unless such determinations are clearly erroneous. [Cits.]” Johnson v. State, 233 Ga. 58 (209 SE2d 629) (1974). Although appellant testified that he responded to custodial questions asked before he was given his Miranda warnings, the arresting officer testified as follows: pursuant to a warrant, appellant was formally arrested in his home and placed in a police car. Before being questioned, he was informed of his Miranda rights. He initially waived his right to silence and his right to have an attorney present and responded to one question concerning whether his daughter might have been exposed to movies or other matter which could have prompted her allegations that appellant had molested her. Appellant then invoked his right to silence until he had consulted with an attorney, after which the police made no further inquiry directed to him nor engaged in any conversation designed to elicit a response from him. Thereafter, while still in the police car, appellant made additional spontaneous statements. The officer further testified that appellant had not been threatened, coerced, or otherwise induced by the police to make any additional statement after he invoked his rights.

Reviewing this evidence in the light most favorable to the prosecution, a rational trier of fact could reasonably have found by a preponderance of the evidence that, having first been informed of his rights, appellant knowingly and voluntarily waived those rights with respect to the first statement made in response to custodial questioning. See Gates v. State, 244 Ga. 587 (1) (261 SE2d 349) (1979). The evidence also authorized the conclusion that appellant’s subsequent statements were spontaneous voluntary remarks, not made in response to any custodial interrogation, Brown v. State, 183 Ga. App. 476 (2) (359 SE2d 233) (1987). The trial court did not err in permitting evidence of appellant’s voluntary custodial statements to be presented to the jury.

2. Appellant’s second enumeration contends that the trial court “erred by ignoring Defense counsel’s oral motion to consider evidence at sentencing impeaching the jury’s verdict.” He alludes to a post-verdict letter from a juror to the presiding judge stating that the juror felt coerced during deliberations by the court’s Allen charge.

“It would seem that some questions cannot be considered as settled by judicial decision.” Rutland v. Hathorn, 36 Ga. 380, 387 (6) (1867). “The affidavits of jurors may be taken to sustain but not to impeach their verdict.” OCGA § 17-9-41. “This is well settled.” (Emphasis supplied.) Coleman v. State, 28 Ga. 78, 85 (1859). This juror’s letter is incompetent to impeach the verdict of guilt assented to by the jurors in open court, although that is exactly what appellant argues in brief. This argument, in substance, asks for a new trial although no enumeration of error directs this court to the overruling of any such motion by the trial court. This unenumerated argument presents nothing for review and may not be considered. Hibbert v. State, 146 Ga. App. 887 (3) (247 SE2d 554) (1978). The language of the charge is not enumerated as error. Compare Dortch v. State, 204 Ga. App. 822 (3) (420 SE2d 778) (1992). The sole enumeration of error is that the trial court “failed to consider” this otherwise wholly incompetent evidence, presumably in mitigation of sentence. This enumeration is not supported by either the arguments or citations of authority presented in the brief and is deemed abandoned pursuant to Court of Appeals Rule 15 (c) (2). Kosal v. State, 204 Ga. App. 708 (5) (420 SE2d 621) (1992).

Decided November 30, 1993

Reconsideration denied December 17, 1993

John D. J. Bloodworth, for appellant.

Daniel J. Porter, District Attorney, Brenda J. Bernstein, Assistant District Attorney, for appellee.

Judgment affirmed.

Beasley, P. J., and Smith, J., concur.


text:
    A93A1362.
    MARTIN v. LAPORTE et al.
    (439 SE2d 704)
   Cooper, Judge.

We granted this discretionary appeal from a superior court order affirming a decision of the Civil Service Board requiring appellant to take a one-year unpaid leave of absence.

Appellant was terminated from her position as an accountant with the City of Atlanta for excessive absenteeism, job abandonment, absence without leave and negligence in the performance of her job. She appealed her termination to the Civil Service Board, and the board converted appellant’s termination to a one-year leave of absence without pay for the period between June 26, 1989 and June 19, 1990. Appellant appealed the board’s decision to the Superior Court of Fulton County, and the superior court remanded the case to the board to conduct an evidentiary hearing on whether appellant was unable to work during the period for which the leave was required. After hearing evidence, the board found that appellant was unable to perform her duties during the period from June 26, 1989 through June 19, 1990 and affirmed its earlier decision ordering the one-year leave of absence. Appellant sought review of the board’s decision through a petition for writ of certiorari to the Superior Court of Fulton County, and the superior court affirmed the board’s order, concluding that there was substantial evidence to support the board’s decision.

1. Appellant contends that the superior court erred in finding that the board’s ruling was supported by substantial evidence. “In ruling on a petition for certiorari to an inferior judicial body, such as a civil service board, the superior court is required to apply the substantial evidence test. OCGA § 5-4-12 (b); [cits.].” City of Atlanta v. Lambright, 205 Ga. App. 558, 559 (1) (423 SE2d 265) (1992).

At the evidentiary hearing before the Civil Service Board, appellant testified that her health was good and she was able to work during the period from June 26, 1989 through June 19, 1990. Appellant also testified that she received unemployment benefits from October 1989 through January 1990, during which time she actively sought employment through the State Department of Labor’s unemployment office. There was evidence that prior to June 26, 1989, appellant filed a claim for workers’ compensation benefits, claiming injury due to work-related stress. Between May 1989 and September 1989, appellant saw Dr. David Lyon for depression and anxiety related to her work. Her visits with Dr. Lyon were once a week for 30 minutes to an hour. Also, between May 1989 through mid-November, appellant received weekly physical therapy from a doctor as a result of injuries she sustained in a car accident. The board also considered evidence that as of June 19, 1989, appellant had exhausted all of her sick leave and had requested advance sick leave for the sixth time in a three-year period. On July 10, 1989, appellant sent a written note to the employee benefits administrator informing that her doctor had advised against returning to the stressful conditions of appellant’s job. The record before the board also included two letters from Dr. Lyon, dated May 4, 1989 and June 6, 1989, respectively. The May 4 letter stated that appellant felt much stress at work and was willing to take a leave without pay, and the June 6 letter indicated that the stress of appellant’s job was a significant factor in her illness. There was also evidence that appellant requested a leave of absence without pay through a minister in June 1989 and through her attorney on June 26, 1989.

Appellee argues that appellant’s work history immediately preceding her termination and the fact that appellant had exhausted all of her sick leave during a time when she was under the care of two physicians for a minimum of one hour per week exclusive of travel time supports the board’s conclusion that she was unable to work during the period in question. We agree. Although appellant testified that as of October 1989 she was actively seeking employment and able to work, there is uncontradicted evidence that shortly before her termination she repeatedly sought a leave of absence through a minister and her lawyer and that the stress of her job was an important factor in her illness. We conclude that there was substantial evidence to support the board’s conclusion that appellant was unable to work from June 26, 1989 through June 19, 1990, and the trial court did not err in affirming the board’s decision. See City of Atlanta v. Lambright, supra at 560.

Decided December 2, 1993

Reconsideration denied December 17, 1993.

Mallard & Minor, William D. Mallard, Jr., for appellant.

Michael V. Coleman, Terry Ellis-Brown, for appellees.

2. In appellant’s second enumeration of error she argues that the trial judge was influenced by his concern over whether appellant’s petition for writ of certiorari was timely filed. Appellant relies on a portion of the superior court’s order which states: “There is a serious question as to whether petitioner’s petition for writ of certiorari was filed timely.” However, appellant omits the following sentence which states: “However, assuming that it was timely filed, after hearing in open court and after consideration of all papers of record, this court has concluded that the decision rendered by the Board is supported by substantial evidence.” We conclude that the superior court’s order was based on evidence in the record, and we find no merit to appellant’s argument that the court was influenced by concerns over the timeliness of her petition for certiorari.

Judgment affirmed.

Beasley, P. J., and Smith, J., concur.


author: Beasley, Presiding Judge.

text:
    A93A1383.
    ABC HOME HEALTH SERVICES, INC. v. GEORGIA DEPARTMENT OF MEDICAL ASSISTANCE.
    (439 SE2d 696)
   Beasley, Presiding Judge.

This appeal, which we permitted under OCGA § 5-6-35 (a) (1), is from a decision of the superior court affirming a final administrative decision of the Georgia Department of Medical Assistance (DMA). At issue is the DMA’s authority to assign a different classification to various locations of ABC Home Health Services, Inc. (ABC), for purposes of reimbursement under the Georgia Medicaid program, than had been designated by the federal Health Care Financing Administration (HCFA) and the Department of Human Resources (DHR) for purposes of Medicare.

The Medicaid program is a response by both governments, federal and state, to the need for health care for some of those who cannot afford it, each government recognizing its responsibility to provide this service. Our federal form of government, and the similar duty which each sovereign has in this area of social welfare, complicates the administration of the program. As illustrated in this case, there is further complexity inherent in congressional delegation of administrative authority from the federal executive to agencies outside the federal government, and in state legislative delegation not only of that administrative authority but also state administrative authority to a state-created agency. It is a successful symbiotic relationship, but it carries enormous administrative costs.

“Medicaid is a State-administered program to provide payment for medical services to clients of certain public assistance programs and other needy individuals at the State’s option.” State Medicaid Manual (issued by U. S. Dept. of Health & Human Services, HCFA) § 2084 (B). “The Medicaid program [codified in 42 USC § 1396 et seq., Title XIX of the Social Security Act, as amended] was created ... for the purpose of providing federal financial assistance to States that choose to reimburse certain costs of medical treatment for needy persons.” Harris v. McRae, 448 U. S. 297, 301 (100 SC 2671, 65 LE2d 784) (1980). It is “jointly financed by the Federal and State governments and administered by States. Within broad Federal rules, each State decides eligible groups, types and range of services, payment levels for services, and administrative and operating procedures. Payments for services are made directly by the State to the individuals or entities that furnish the services.” 42 CFR § 430.0.

Participation by a state is optional, but in order to receive federal funds a state plan for medical assistance must comply with federal requirements as set forth in the Code of Federal Regulations, Title 42, Chapter IV.

Title XIX provides for designation of a single state agency to administer or supervise the Medicaid program. 42 CFR § 431.10. The DMA of Georgia is an administrative agency created in 1977 by OCGA § 49-4-142 (a) (Ga. L. 1977, p. 384) to meet that requirement and fulfill that function. It is authorized to “adopt and administer a state plan for medical assistance in accordance with Title XIX of the federal Social Security Act of 1935, as amended. . . .” OCGA § 49-4-142 (a).

As the “single state agency” required by the federal statute and rules to administer or supervise the Medicaid program (42 CFR § 431.10 (a)) the DMA is authorized “to establish the amount, duration, scope, and terms and conditions of eligibility for and receipt of such medical assistance as it may elect to authorize pursuant to” the Georgia Medical Assistance Act of 1977. OCGA § 49-4-142 (a). It establishes the rules and regulations for executing the state plan, ibid, and for receiving “the maximum amount of federal financial participation available.” OCGA § 49-4-157. “Provider of medical assistance” means a person or institution which is qualified to participate in the state plan, that is, to receive Medicaid reimbursement for medical services provided to persons eligible for medical assistance (Medicaid) under the state plan. OCGA § 49-4-141 (6), (7).

Under Section 601.9 of the DMA’s Policies and Procedures for Home Health Services, a criterion or condition of participation in Medicaid is that: “Parent agencies, sub-units, and branch offices must meet the guidelines outlined in the Rules and Regulations for Home Health Agencies Chapter 290-5-38-.06 from the Department of Human Resources.”

In creating the DMA in 1977 to adopt and administer the state Medicaid plan, the legislature reserved to the DHR the function of “establishing and maintaining certain standards for [those] seeking to become or remain providers and shall finally determine and certify whether [they] meet such standards.” OCGA § 49-4-154. It also reserved to DHR the function of “[djetermining and certifying the eligibility of” persons for Medicaid and the function of prescribing regulations assuring that certain notice to applicants be clear. Id. Nothing else, with respect to the Medicaid program, was assigned to DHR. Thus, as related to the providers, it simply retained authority to license and inspect them for health, safety, and the other concerns listed in OCGA § 31-7-153. Otherwise, DMA succeeded to all the rules, regulations, policies, procedures, and administrative orders of DHR relating to functions transferred to DMA. OCGA § 49-4-155. These separate functions are entirely consistent with 42 CFR § 431.610, which addresses the relations between the state agencies. Under subsection (b), a state plan must designate a state agency for maintaining health standards for Medicaid participants (DHR). Under subsection (c), a state plan must designate a state authority for maintaining standards other than those relating to health for Medicaid providers (DMA).

ABC provides nursing and medical services to home bound patients under the Home Health Services Program of the Georgia Medicaid program. In 1988, ABC operated seven home health agencies in each of the following cities: Albany, Atlanta, Brunswick, Dublin, Macon, Milledgeville and Valdosta. Each agency is enrolled and participates in Medicare and Medicaid. Each signed a statement of participation which incorporates by reference the DMA’s Policies and Procedures for Home Health Services Manual. The relationship between the DMA and the agency is contractual. State of Ga. v. Stuckey Health Care, 189 Ga. App. 126 (375 SE2d 235) (1988). See also Briarcliff Haven v. Dept. of Human Resources, 403 FSupp. 1355 (N.D. Ga. 1975). Each was assigned a Medicare number by the HCFA and a separate Medicaid number by the Provider Enrollment Unit of the DMA. Under Medicaid rules and regulations, each operated as a “parent” provider, possessing a separate license, certificate and provider number.

In late 1988, ABC sought and subsequently obtained approval from the HCFA to consolidate five of the seven “parent” provider agencies into “branches” for Medicare purposes. The DMA was not involved in making this change, since it has no authority in connection with Medicare.

DHR is the state agency “responsible for establishing and maintaining health standards” for both Medicare and Medicaid eligibility. 42 CFR § 431.610 (b). The DHR Division of Standards & Licensure certified ABC under the specific configuration consisting of two parent companies, one for north Georgia (Atlanta) and one for south Georgia (Valdosta), each serving multiple branches in their respective enlarged geographical areas. Under that system, ABC billed the DMA for services performed in the branch cities at the higher rates assigned by DMA to the parent cities.

ABC billed Medicaid under its Atlanta and Valdosta parent provider numbers in January 1989 and received reimbursement. During February through July 1989, it inadvertently billed Medicaid under the seven previous provider numbers, and thereafter requested retroactive reimbursement from the DMA under the two regional provider numbers.

The DMA refused reimbursement, disallowed further billing under the two provider numbers and notified ABC of its intent to void and recover approximately $1,340,000 in payments previously made under the two-number system. DMA’s stated reason was that ABC’s parent-branch structure did not meet the DMA’s criteria for a branch office. It cited noncompliance with Section 601.9 of the DMA’s Manual of Policies and Procedures for Home Health Services. That provision refers to Rule 290-5-38-.06 of the Rules and Regulations for Home Health Agencies of the DHR for guidelines as to branch and parent office criteria. Failure to comply would result in the suspension or termination of all seven ABC agencies from participation in the Home Health program.

ABC requested administrative review of the DMA’s decision (1) prohibiting ABC from using only the Atlanta and Valdosta provider numbers to bill the DMA, and (2) requiring ABC to refund the difference between what it was paid under the two-number system for the months of January through November 1989, and what it would have been paid during that period under seven parent provider numbers. When it failed to obtain administrative relief, ABC filed a petition for review in the superior court under OCGA § 50-13-19 of the Administrative Procedure Act.

The superior court ruled that the grant of corrected licenses and certification by the DHR is not inconsistent with the DMA’s authority to refuse reimbursement under the two-number parent-branch provider structure since the DMA has responsibility and obligation for ensuring that the reimbursement rate for ABC’s services, based on the published reimbursement rates for various geographical areas of the state, reflects its actual cost of operations.

1. ABC enumerates as error the superior court’s affirmance of the DMA’s decision to disallow its participation in the Medicaid program through an organizational structure approved by the DHR. It contends that the DHR is the exclusive state agency permitted to certify organizations for participation in the Medicare and Medicaid programs and the DMA had no statutory authority to make such a decision. ABC misconceives DHR’s role in the Medicaid scheme.

In order to enroll in the Home Health Services Program as a provider of services to home-bound Georgia Medicaid recipients, a home health agency such as ABC, must (i) be currently licensed; (ii) be currently certified to render services in the Medicare program; and (iii) have a Certificate of Need (if established after June 30, 1979). State Medicaid Manual, Sections 601.1A through 601.1C. The license issued by DHR designates on its face the counties in which an agency is authorized to do business in Georgia. Licensing is performed by DHR under authority of OCGA § 31-7-150 et seq., an article under the Health Code, whereas Medicaid reimbursement is provided by DMA under authority of OCGA § 49-4-140 et seq., an article under the Public Assistance Code.

The DHR licenses home health agencies based on its standards for “the care, treatment, health, safety, welfare, and comfort of patients served . . . and for the maintenance and operation of [the] agencies which will promote safe and adequate care and treatment of the patients.” OCGA § 31-7-153. It periodically inspects the licensed agencies to assure compliance with the standards. OCGA § 31-7-154. Such agencies may not be operated in Georgia without a DHR-issued license, OCGA § 31-7-151, a prerequisite for which is a certificate of need from the State Health Planning Agency. OCGA § 31-7-155.

The rules adopted by DHR for Home Health Agencies are for the purpose of implementing DHR’s authority “to establish the licensing procedures and standards of operation” for such agencies. DHR Rule 290-5-38-.01. Within those rules, Rule 290-5-38-.06 (c) defines an organizational structure comprised of “parents” and “branches” for operation of a home health agency. As defined in DHR Rule 290-5-38-.06 (c): “ ‘Branch Office’ means a location or site identified in the application or endorsement thereto from which a Home Health Agency provides services within a portion of the total geographic area served by the parent agency. The branch office is part of the Home Health Agency and is located sufficiently close to share administration, supervision, and services in a manner that renders it unnecessary for the branch independently to meet the requirements of these rules and regulations.”

Subsection (q) defines “Parent Home Health Agency” as “the agency that develops and maintains administrative controls of subunits or branch offices.” These definitions are for the purpose of the DHR’s licensing and regulation of standards of operation, as stated in Rule 290-5-38-.01. They are substantially identical to the definitions imposed by OCGA § 31-7-150 for the purpose of implementation of Article 7, which governs the regulation of home health agencies under the Health Code.

DMA contends that DHR’s certification is to ensure that a provider meets federal health and safety standards for purposes of enrollment, but that DMA looks to the license and certificate of need to determine the geographical area served. It asserts that notwithstanding DHR’s certification as a two-parent organization, ABC’s “branches” do not meet the applicable criteria because they are not within the geographical area specified on the Atlanta and Valdosta licenses and are not sufficiently close to the parent to share administration and supervision. DMA contends that it is not bound by DHR’s two-parent certification in administering the Medicaid program.

Each of ABC’s seven agencies is separately licensed and each license specifies the area within which the agency may provide services. ABC’s agencies in Dublin, Macon and Milledgeville are not within the approved service area for the Atlanta agency as specified on the licenses. ABC’s agencies in Albany and Brunswick are not within the approved service area for the Valdosta agency as listed on the licenses. An agency may not operate a branch which is outside the total geographic area served by the parent agency. DHR Rule 290-5-38-.06.

Each of ABC’s seven Statements of Participation in the Georgia Medicaid program provides that it “establishes the means and terms of reimbursement between [DMA] and the [agency].” Those documents incorporate by reference, and require compliance with, DMA’s Policies and Procedures Manual. Each can only operate a branch which is within the geographic area served by the parent and which is close enough to share administration, supervision and support services. Because these requirements were not satisfied by ABC’s two-parent structure, DMA was authorized to disallow reimbursement on that basis.

2. ABC contends that the trial court erred in affirming DMA’s decision because there was no finding that it failed to meet the DHR definition of a “branch” under DHR Rule 290-5-38-.06. The relevant inquiry is whether ABC’s licenses authorized the two-parent operation for Medicaid reimbursement. As we concluded, billings uhder the Atlanta and Valdosta provider numbers exceeded the permissible scope of the licenses and were not based on the actual costs, to which ABC was bound by its contract.

Decided December 1, 1993

Reconsideration denied December 17, 1993

Phears & Moldovan, H. Wayne Phears, Victor L. Moldovan, Rebecca L. Laymon, Bishop & Lindberg, James A. Bishop, for appellant.

DHR designates parent/branch for its own licensing and inspection purposes. Since it does not administer the Medicaid funds, its parent/branch classification is not intended for Medicaid reimbursement purposes. That is within the authority of DMA, which is responsible for disbursement of those federal and state funds in a manner and in amounts which come within the appropriations. “All payments to providers of services must be based on the ‘reasonable cost’ of services covered under title XVIII of the [Social Security] Act and related to the care of beneficiaries. ...” Provider Reimbursement Manual, § 2100. “The [DMA] will reimburse each Home Health Agency a specific rate per visit for covered services. The specific rate per visit is the total of the agency’s inflated base rate, any efficiency incentive applicable to the agency, and a supply rate.” State Plan Attachment 4.19B. “The cost per visit is based on the Medicaid cost reports for each agency’s fiscal year. . . .” Manual § 1001.1 “Each provider in a chain organization, or other group of providers, . . . must file a separate, individual cost report.” Provider Reimbursement Manual, § 2414.5.

The fact that all three agencies (HCFA, DHR, and DMA) use the same definition for “branch” and “parent” agency does not require DMA to apply the definition to a given situation in the same manner as the others do. Each performs a different function and applies the definition for a different purpose based on separate authority. DHR’s certification to DMA that ABC qualifies for Medicare merely establishes one of the prerequisites for Medicaid reimbursement eligibility. The fact that ABC is paid under the Medicare program on a two-member, two parents/five branches provider structure does not control DMA’s independent authority and obligation to reimburse under the Medicaid program based on a prescribed and published rate for the locality for which the agency is licensed and has a certificate of need.

Judgment affirmed.

Cooper and Smith, JJ., concur.

Michael J. Bowers, Attorney General, Kathryn L. Allen, Grace E. Lewis, William C. Joy, Mary F. Russell, Senior Assistant Attorneys General, for appellee.


text:
    A93A1404.
    HARRISON v. FEATHER et al.
    (439 SE2d 706)
   Smith, Judge.

This is the second appearance of this case in this court. In 1983, appellant Vernice Harrison was a plaintiff in an action against appellees James Feather and his employer, Buffalo Rock Pepsi Cola Bottling Company of Newnan, for injuries allegedly sustained as the result of an automobile collision that occurred in 1982. For further background, see Harrison v. Feather, 178 Ga. App. 35 (342 SE2d 1) (1986) (“Harrison I”). The appeal in Harrison I followed a jury trial which resulted in a verdict for the defendants. This court reversed that judgment, finding as error the failure to direct a verdict for plaintiff Harrison “as to liability for this collision in this case.” Id. at 36. Harrison subsequently moved for summary judgment as to liability based on Harrison I, which was granted. She then moved for summary judgment on the issue of special damages, also based on Harrison I. That motion was denied. A second jury trial ultimately was held in 1991. In the second trial, the jury returned a verdict for Harrison. However, as in the first trial, no damages were awarded to her. The trial court denied her motion for new trial, and this appeal followed.

1. As the basis for several of her enumerations of error, appellant argues that Harrison I established that appellees’ negligence was the “proximate cause” of her injuries. This is incorrect. As related in Harrison I, appellant was involved in another accident immediately prior to the collision with the truck driven by appellee Feather. It is clear that, at most, Harrison I merely held, as a matter of law, that appellee Feather was negligent with regard to the collision and that “he collided with [Harrison] because of his [negligent] miscalculation.” Id. at 36. If it were later proved that Harrison was injured as the proximate result of that collision, appellees would then be liable in damages for those injuries. Id. at 36. The opinion stated that “[t]he facts in evidence in this case amount to a ‘confession of negligence’ as a matter of law,” citing Hughes v. Newell, 152 Ga. App. 618 (263 SE2d 505) (1979). Id. That means only that the tort elements of duty and breach have been established. This focuses only on the act, or failure to act, of the defendant who has a duty. It is to be distinguished from “liability.” Unfortunately, however, the court in Harrison I, supra at 36, went on to state that “[t]he trial court should have directed a verdict for the plaintiff as to liability for this collision in this case.” (Emphasis supplied.)

As clarified in Hughes, supra at 620, a “trial court should not [use] the word ‘liability’ when directing the verdict as to negligence only, for to find ‘liability’ it contains both negligence and that this negligence was the proximate cause of the plaintiffs’ injuries or damages.” The only thing left for proof in such cases is the fourth element of tort, damages, i.e., the nature of the injuries and the pecuniary amounts attributable to them. See Samuelson v. Lord, Aeck &c., 205 Ga. App. 568, 572 (2b) (423 SE2d 268) (1992). Unlike Dilworth v. Boeckler, 187 Ga. App. 241 (370 SE2d 17) (1988), relied upon by appellant, in which a directed verdict on “liability,” a composite of elements, was supported, Harrison I did not address the questions of proximate cause of the claimed injuries and pecuniary losses. These elements remained to be proved and decided by the jury, and in context, it is clear that what was meant was that negligence had been established. The remaining elements of proximate cause and damages were subject to proof. Appellees therefore were not precluded from arguing at trial that although the collision was their fault, it did not cause the injuries of which appellant complains. See Purvis v. Toole, 207 Ga. App. 189 (1) (427 SE2d 565) (1993). The trial court therefore did not err in denying appellant’s motion for summary judgment on the issue of special damages, nor did the trial court err in later refusing to direct a verdict in favor of appellant as to medical expenses and lost wages.

2. Appellant argues that since the prior accident would not show any pre-existing condition or establish any prior damage sustained by her, testimony or questioning regarding that incident should not have been permitted. Appellant cites no authority supporting her contention, and we are aware of none. As observed in Division 1, the question whether appellant’s personal injuries flowed from the collision between appellant and appellee Feather was not answered in Harrison I. Appellees were certainly entitled to offer evidence showing that prior incidents were more likely to have caused appellant’s injuries than the collision between appellant and appellee Feather. This contention is without merit.

3. Relying upon Cochran v. Lynch, 126 Ga. App. 866, 868 (2) (192 SE2d 165) (1972), appellant argues that the verdict was contrary to the law and to the evidence. We do not agree.

In Cochran a verdict had been directed as to liability. There was no question, therefore, that the plaintiff’s injuries were proximately caused by the defendant’s negligence. In this case only negligence was established.

In Cochran, the testimony of the plaintiff and her doctor “was contradicted by neither testimony nor circumstances.” Davis v. Mc Cray, 127 Ga. App. 281, 282 (193 SE2d 200) (1972). See Purvis v. Toole, supra. In this case, however, appellees introduced evidence of another accident that occurred immediately before the collision in question. Appellees also introduced testimony suggesting that the truck was moving very slowly, that the collision was too inconsequential to result in personal injury to Ms. Harrison, and that Ms. Harrison did not appear to be injured at the time of the incident. Evidence was introduced from which a jury could have concluded that the entire injury resulting from the collision consisted of the loss of a portion of a rubber strip from appellant’s front bumper. “In light of this and additional evidence adduced by appellee regarding the source of appellant’s injuries, it cannot be said that the jury arbitrarily discounted the testimony of appellant or the opinion of her expert[s].” Purvis v. Toole, supra at 189. We find no error.

Decided December 2, 1993

Reconsideration denied December 17, 1993

Word & Flinn, Maryellen S. Mitchell, Jack F. Witcher, for appellant.

Tisinger, Tisinger, Vance & Greer, Kevin Buice, for appellees.

Judgment affirmed.

Beasley, P. J., and Cooper, J., concur.


text:
    A93A1633.
    MICHAELS et al. v. GORDON.
    (439 SE2d 722)
   Cooper, Judge.

Appellant-plaintiffs Brandon and Terri Michaels are the parents of two minor children. As part of an investigation of a report of possible child molestation, the Gwinnett County Department of Family & Children Services (DFACS) placed the children in the temporary custody of a foster family and referred one child, appellant-plaintiff C. J. M., to appellee-defendant, Dr. Mary Gordon, a licensed psychologist, for evaluation. After two interviews, including a psychological evaluation, Dr. Gordon formed the professional opinion that C. J. M. had been sexually molested. Based in part upon statements made by the child, Dr. Gordon further believed that the perpetrator of the suspected molestation was C. J. M.’s father. At a hearing before the juvenile court on a petition of deprivation, Dr. Gordon testified as to her professional opinion that C. J. M. had been sexually molested. The juvenile court, however, determined that the evidence adduced did not support a finding that C. J. M. had been abused by his father or that he was at risk at home. Therefore, custody was returned to the parents. Appellants subsequently initiated the instant action for medical malpractice on behalf of themselves and the two minors. Their complaint is supported by the expert testimony of Dr. Larson, a Florida psychologist, who was of the opinion that the manner and method of Dr. Gordon’s interviews and evaluations fell below the standards of professional conduct, leading to an erroneous opinion that C. J. M. had been molested by his father. After extensive discovery, Dr. Gordon moved for summary judgment, based in part upon a claim of immunity from liability as provided by the child abuse reporting statute, OCGA § 19-7-5. This motion was granted by the trial court and appellants appeal.

1. Appellants contend that the immunity provisions of OCGA § 19-7-5 do not apply to Dr. Gordon because she was not a “mandatory reporter” under that statute. In this regard, they argue that since suspected child abuse already had been reported to DFACS before it referred C. J. M. to Dr. Gordon for evaluation, Dr. Gordon cannot be a reporter.

Certain specified persons, including licensed psychologists, who have reasonable cause to believe that a child has been abused, shall report that abuse to a child welfare agency or to the appropriate police authority. OCGA §§ 19-7-5 (c) (1) (D); 19-7-5 (e). “Child abuse” within the meaning of this Code section includes sexual abuse of a child. OCGA § 19-7-5 (b) (3) (C). OCGA § 19-7-5 (f) provides: “Any person . . . participating in the making of a report... or participating in any judicial proceeding or any other proceeding resulting [from such a report of suspected child abuse] shall in so doing be immune from any civil or criminal liability that might otherwise be incurred or imposed, provided such participation pursuant to this Code section ... is made in good faith. Any person making a report, whether required by this Code section or not, shall be immune from liability as provided in this subsection.” (Emphasis supplied.)

The statutory grant of immunity is not absolute, for it is conditioned on the good faith of the participant. Nevertheless, this qualified immunity protects any person participating in the making of a report to a child welfare agency and also any person participating in judicial or other proceedings arising as a result of a report of suspected child abuse. The statutory language “participating in the making of a report” presupposes the involvement of more than one person and so includes acts beyond the initial communication of child abuse suspected because of a visual inspection of the child, or observed behavior, or the child’s statement. Appellants’ contention that Dr. Gordon is not afforded immunity because she did not make the initial report of suspected child abuse is without merit. The grant of qualified immunity covers every person who, in good faith, participates over time in the making of a report to a child welfare agency.

The acts which constitute “making” the report include the good faith clinical investigation of the bases for suspecting child abuse as well as any participation in subsequent judicial proceedings. The qualified immunity from “any civil or criminal liability that might otherwise be incurred” provided by OCGA § 19-7-5 (f) includes immunity from liability premised upon alleged medical malpractice by a licensed psychologist arising out of a psychological evaluation of a child performed as part of the investigation of suspected child abuse made by a child welfare agency. Other jurisdictions, interpreting substantially identical statutory grants of qualified immunity to reporters of suspected child abuse, also have concluded that alleged acts of medical malpractice resulting in an erroneous medical opinion of child abuse are afforded qualified immunity from any civil liability. See Maples v. Siddiqui, 450 NW2d 529 (Iowa 1990) (immunity afforded to physician who, after allegedly improper diagnosis of malnutrition, recommended child be placed in temporary foster care); Awkerman v. Tri-County Orthopedic Group, P.C., 373 NW2d 204 (Mich. 1985) (immunity afforded to physician who, after erroneously ruling out diagnosis of “brittle bone” disease, reported suspected abuse of child who had sustained five bone fractures in four-month period). Compare Austin v. State, 179 Ga. App. 235 (345 SE2d 688) (1986) (OCGA § 19-7-5 (f) immunity is not available to the actual molester who turned himself in). Although we disagree with appellants that Dr. Gordon would not be a mandatory reporter of any child abuse she reasonably suspected after conducting her independent evaluation of a child referred to her by DFACS, since OCGA § 19-7-5 (f) affords immunity to all who in good faith participate in the making of a report of suspected child abuse, “whether required by [OCGA § 19-7-5] or not,” appellants’ argument that Dr. Gordon is not a mandatory reporter is irrelevant. It is undisputed that C. J. M. was referred to Dr. Gordon by DFACS as part of an investigation of reported child abuse. The trial court correctly determined that OCGA § 19-7-5 (f) good faith immunity applies to any alleged medical malpractice committed by the psychologist arising out of that investigation of suspected child abuse under OCGA § 19-7-5.

2. Asserting that Dr. Gordon’s good faith remains a question of fact, appellants contend that the grant of summary judgment was erroneous. In support of her motion for summary judgment, Dr. Gordon submitted her affidavit detailing the psychological tests she employed to evaluate C. J. M. The evidence she relied upon in formulating her professional opinion that the boy had been sexually molested included statements about C. J. M.’s unusual behavior given by the foster parents, his behavior as observed in the interviews, as well as statements by the boy himself. Dr. Gordon swore that her interviews and evaluations of C. J. M. were conducted honestly and in good faith. In opposition to this evidence, appellants relied upon the affidavit of Dr. Larson, wherein he opined that Dr. Gordon failed to act in good faith. This opinion was based on the same factors that led him to conclude that Dr. Gordon’s evaluation of C. J. M. fell below the standard of care generally, namely, her failure to acquire an adequate history, her reliance upon hearsay, her misuse of psychological testing, her use of outdated materials, and her failure to maintain her notes and records after she testified at the deprivation hearing.

(a) Pretermitting whether a mandatory reporter of suspected child abuse, subject to criminal sanctions for failing to report, is entitled to an evidentiary presumption of good faith for steps taken in compliance with the child abuse reporting statute, (but see Ga. Cas. Co. v. McRitchie, 45 Ga. App. 697 (3) (166 SE 49) (1932)), we note that Dr. Larson’s affidavit is not itself competent evidence of the lack of good faith on the part of Dr. Gordon. “While opinion evidence of state of mind or mental condition may be admissible, [cit.], usually opinion evidence as to one’s motives or intent is not. [Cits.] ‘Intent is something which exists in the human mind and can be manifested only by external acts from which an inference of intent will arise.’ [Cit.] . . . Since . . . the opinion testimony would be no stronger or more persuasive than the facts on which the opinions were based we . . . consider them [only].” Cohen v. Hartlage, 179 Ga. App. 847, 849-850 (348 SE2d 331) (1986).

(b) “ ‘[B]ad faith’ [is] ‘[t]he opposite of “good faith[,”] generally implying or involving actual or constructive fraud[;] or a design to mislead or deceive another[;] or a neglect or refusal to fulfill some duty . . . , not prompted by an honest mistake as to one’s rights or duties, but by some interested or sinister motive.’ ” Edwards-Warren Tire Co. v. Coble, 102 Ga. App. 106, 115 (2) (115 SE2d 852) (1960). “ ‘Bad faith’ is not simply bad judgment or negligence, but it imports a dishonest purpose or sonje moral obliquity, and implies conscious doing of wrong, and means breach of known duty through some motive of interest or ill will. [Cit.]” Vickers v. Motte, 109 Ga. App. 615, 619-620 (137 SE2d 77) (1964).

Appellants’ evidence of alleged unprofessional acts and omissions committed by Dr. Gordon would authorize a finding that she was negligent or exercised bad judgment in formulating her professional opinion that the child had been sexually abused. However, this proof of mere negligence or bad judgment is not proof that Dr. Gordon refused to fulfill her professional duties, out of some interested or sinister motive, or that she consciously acted for some dishonest or improper purpose. There being no competent evidence that Dr. Gordon acted in bad faith, the trial court correctly granted appellee’s motion for summary judgment based upon the statutory grant of good faith immunity.

3. Remaining contentions have been considered and are found to be moot.

Decided December 3, 1993

Reconsideration denied December 17, 1993

Peevy & Lancaster, Donn M. Peeuy, for appellants.

Freeman & Hawkins, T. Ryan Mock, Jr., Cullen C. Wilkerson, for appellee.

Judgment affirmed.

Beasley, P. J., and Smith, J., concur.