author: Ruffin, Judge.

text:
    A96A1553.
    CHANIN v. THARRINGTON.
    (476 SE2d 651)
   Ruffin, Judge.

Audrey Chanin sued Maybell Tharrington for damages arising out of an automobile collision. Chanin also served a copy of the complaint on her uninsured motorist insurance carrier, Progressive Northwestern Insurance Company (“Progressive”), seeking coverage. Progressive moved for summary judgment on the ground that coverage was not available because Tharrington was not “uninsured” under the terms of Chanin’s policy. The trial court granted Progressive’s motion, and Chanin appeals from that order. For reasons which follow, we affirm.

The facts of this case are not in dispute. At the time of the collision, Tharrington had an insurance policy providing liability coverage with bodily injury limits of $50,000 per person and $100,000 per occurrence. Chanin had uninsured motorist coverage with Progressive. The declaration page of Chanin’s Progressive policy, which is the source of this dispute, contains the following language: “UNINSURED/UNDERINSURED MOTORIST — $15,000 EACH PERSON — $30,000 EACH ACCIDENT — UM PROPERTY DAMAGE $10,000 LESS $250 DEDUCTIBLE.”

Chanin does not argue that Tharrington is “uninsured.” Rather, Chanin contends that Tharrington is “underinsured” because Tharrington’s liability could exceed the limits of her liability insurance policy. Chanin argues that the general reference to “uninsured/ underinsured” on the declaration page is ambiguous and should be construed to provide coverage to the extent that Tharrington is “underinsured” as she has defined that term. We disagree.

“Under Georgia law in attempting to ascertain the intentions of the parties, insurance contracts are governed by the ordinary rules of construction applicable to other contracts.” (Citations and punctuation omitted.) Southeast Atlantic Cargo &c. v. First State Ins. Co., 197 Ga. App. 371, 372 (398 SE2d 264) (1990). Under these rules, “[a]n insurance policy must be construed as a whole, and all of the provisions should be so interpreted so as to harmonize one with the other.” (Citations and punctuation omitted.) Auto-Owners Ins. Co. v. Barnes, 188 Ga. App. 439, 440-441 (1) (373 SE2d 217) (1988). “ ‘[I]f the language is unambiguous and but one reasonable construction is possible, the court will enforce the contract as written. (Cit.)’ ” Id. at 441.

Decided September 25, 1996.

Bonner & Jones, G. Larry Bonner, Timothy J. Jones, for appellant.

Glover & Blount, Nancy S. Gentry, Miller & Towson, Wallace Miller III, for appellee.

Chanin’s argument in this case ignores the policy provisions defining uninsured motorist coverage. The policy does not separately define “underinsured,” but rather includes “underinsured motor vehicle” within the definition of “uninsured motor vehicle.” Under this latter provision, Tharrington’s vehicle is underinsured, and hence uninsured, only if her “bodily injury and property damage liability insurance with available coverages is less than the limits of [Chanin’s] uninsured motorists coverage provided under [Chanin’s] motor vehicle insurance policy.” Reading the policy as a whole, it is clear that the reference to “uninsured/underinsured motorist” in the declaration did not create separate coverage for underinsured motorists as urged by Chanin, but merely stated the general types of coverage which were later specifically defined in the policy. See id. The declaration page even contained cautionary instructions which informed Chanin that “[Coverages are defined in the policy and are subject to the terms and conditions contained in the policy, including amendments and endorsements.”

Accordingly, because Tharrington’s liability insurance exceeded the amount of Chanin’s uninsured/underinsured motorist policy, Progressive was not required to provide coverage. See Dewberry v. State Farm Ins. Co., 197 Ga. App. 248, 249 (398 SE2d 266) (1990). For this reason, the trial court did not err in granting Progressive’s motion for summary judgment.

Judgment affirmed.

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


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A96A1575.
    GILLIS v. AMERICAN GENERAL LIFE & ACCIDENT INSURANCE COMPANY et al.
    (476 SE2d 648)
   McMurray, Presiding Judge.

Mathel Lee Gillis, an independent insurance agent and former representative of American General Life & Accident Insurance Company (“American”), filed an action against American and two of its agents, defendants Alton Lively and Daniel Johnson, alleging defendants Lively and Johnson uttered defamatory statements about her to her (Gillis’s) current and former customers. Gillis sought recovery for slander per se, tortious interference with business relations and intentional infliction of emotional distress. Defendants Alton Lively and Daniel Johnson denied the material allegations of the complaint and filed separate counterclaims, alleging Gillis improperly seized customer lists before leaving American and improperly used this proprietary information to their economic detriment. American responded with a motion to dismiss, contending it cannot be liable under the doctrine of respondeat superior for any alleged defamatory statements uttered by defendants Lively and Johnson. This appeal followed the trial court’s order granting American’s motion to dismiss. Held:

When the sufficiency of a complaint is questioned via a motion to dismiss, the complaint must be construed in the light most favorable to the plaintiff with all doubts resolved in her favor, even though unfavorable constructions are possible. Western Contracting Corp. v. State Hwy. Dept., 125 Ga. App. 376, 379 (1) (187 SE2d 690). “A motion to dismiss should not be granted unless it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of his claim.’ Finch v. City of Atlanta, 232 Ga. 415, 416 (207 SE2d 46) (1974). [In the case sub judice,] [t]he order .of the trial court does not recite the grounds upon which the [motion] to dismiss [was] sustained; however, if the judgment is authorized for any reason, it must be affirmed. Beazley v. Williams, 231 Ga. 137, 138 (200 SE2d 751) (1973).” Murrey v. Specialty Underwriters, 233 Ga. 804, 806 (213 SE2d 668).

In Georgia, a corporation cannot be liable for slanderous remarks unless it can be proved that the corporation expressly ordered and directed an agent to speak the very words in question. Garren v. Southland Corp., 237 Ga. 484, 485 (228 SE2d 870); Behre v. Nat. Cash Register Co., 100 Ga. 213, 214 (1) (27 SE 986). In the case sub judice, Gillis’s complaint alleges that defendants Lively and Johnson uttered disparaging words about her in the business community and that American is liable for the precipitating damages under the doctrine of respondeat superior. The complaint, however, does not allege that American expressly ordered and directed defendants Lively and Johnson to utter disparaging words against Gillis. But this omission is not fatal to Gillis’s cause of action against American.

“ A complaint is not required to set forth a cause of action, but need only set forth a claim for relief. ... If, within the framework of the complaint, evidence may be introduced which will sustain a grant of relief to the plaintiff, the complaint is sufficient.’ Mitchell v. Dickey, 226 Ga. 218, 220 (173 SE2d 695) (1970).” Christner v. Eason, 146 Ga. App. 139, 140 (245 SE2d 489). From this perspective, we cannot say with precise certainty that Gillis’s slander claim against American cannot be sustained. There may well be proof at trial or upon summary adjudication which may authorize a finding that American expressly ordered and directed defendants Lively and Johnson to utter disparaging words about Gillis in the business community. This, of course, is not to say that civil discovery will not dispel any such basis for liability. We hold only that measuring the basis of Gillis’s claims against American at this early stage of the proceedings is premature. Indeed, our examination of the scant record in the case sub judice reveals nothing which authorizes dismissal of Gillis’s claims against American for defamation, tortious interference with business relations and intentional infliction of emotional distress. See Garren v. Southland Corp., 237 Ga. 484, 485, supra; Behre v. Nat. Cash Register Co., 100 Ga. 213, 214 (2), supra; and Davis v. Copelan, 215 Ga. App. 754, 764 (2) (452 SE2d 194). Consequently, the trial court erred in granting American’s motion to dismiss.

Decided September 25, 1996.

Swanson & Cherry, Mark R. Swanson, Diane Cherry, for appellant.

Hawkins & Parnell, Kevin J. Bahr, Lawrence J. Myers, Paul R. Vancil, for appellees.

Judgment reversed.

Johnson and Ruffin, JJ, concur.


author: Eldridge, Judge.

text:
    A96A2113.
    BOWMAN v. THE STATE.
    (476 SE2d 608)
   Eldridge, Judge.

Appellant Bobby E. Bowman challenges his conviction on four counts of aggravated assault with a shotgun on a peace officer and one count of possession of cocaine with intent to distribute, for which he was sentenced to forty-five years in prison.

On November 13, 1991, at 2:15 a.m., detectives and police officers from the Atlanta Police Department went to appellant’s apartment in the East Lake Meadows apartment complex to execute a search warrant. The warrant was based on information that a man was selling cocaine from his apartment and a controlled buy by an informant. The police officers were in uniform, and the detectives wore blue vests with “Atlanta Police” printed on them in large bold letters.

Upon arrival at the apartment, a detective knocked on the door and announced “Police! We have a search warrant.” Almost immediately, a battering ram was used to break into the apartment. The officers repeatedly shouted that they were police while entering the apartment.

A detective saw the appellant jump from his bed in the back of the apartment, wielding a firearm. At that point, a gun battle erupted, during which one officer was wounded and the appellant’s stepson was killed. There is conflicting evidence regarding who initiated the gun battle. However, appellant’s wife testified that appellant used a shotgun to shoot at the police officers, and the injured officer had shotgun pellets embedded in his wounds.

After approximately one minute of gunfire, the defendant jumped through the bedroom window while holding a shotgun and was apprehended quickly by other officers not involved in the raid who saw him with the gun. He told the apprehending officers that “I was shot by guys coming into my apartment . . . dressed like police officers.”

The police officers, utilizing a drug-sniffing dog, searched the apartment and found a pair of men’s pants in the bedroom with 39 packets of cocaine wrapped in small ziplock bags in the pants’ pocket. They also found approximately $2,500 in cash wrapped in $500 increments in a box on the floor and a nine-millimeter handgun on the bed.

Appellant was convicted after a trial by jury and moved for a new trial, which was denied on June 25, 1993. After his attorney failed to file an appeal and subsequently abandoned the appellant, the trial court granted an out-of-time appeal and appointed new defense counsel. An amended motion for a new trial was filed by counsel for appellant, alleging ineffective assistance of counsel. The amended motion was denied on March 21, 1996, and a timely appeal was filed.

1. The first six enumerations of error involve a motion in limine by appellant’s counsel that excluded “similar acts” character evidence related to appellant’s alleged history of drug sales. Specifically, the motion was to exclude evidence relating to a confidential informant who participated in the controlled buy of drugs from the appellant that was the basis for the search warrant, as well as references to the marked city funds that were utilized during the transaction.

In opposing the motion, the State noted that they did not intend to introduce the disputed evidence and that “until the court says that [the evidence] is admissible, we will consider it inadmissible.” The trial court responded to the motion by reserving the right to “rule on [admissibility] at the proper time. Let’s see what the evidence shows”; it instructed the parties that “[i]f it comes up, announce that you have a motion to be heard outside the presence of the jury.”

Appellant asserts that the trial court erred by failing to grant a mistrial after witnesses improperly placed appellant’s character in issue. However, “[t]he decision to grant or deny a motion for mistrial is necessarily a matter within the discretion of the trial court, and the court’s exercise of that discretion will not be disturbed on appeal unless it is apparent that a mistrial is essential to preserve the defendant’s right to a fair trial.” Culbreath v. State, 258 Ga. 373, 376 (369 SE2d 29) (1988), overruled on other grounds, Turner v. State, 262 Ga. 359, 361 (418 SE2d 52) (1992).

“When prejudicial matter is placed before the jury in a criminal case, the trial judge must decide whether a mistrial must be granted as the only corrective measure or whether the prejudicial effect can be corrected by withdrawing the testimony from the consideration of the jury under proper instructions.” Stanley v. State, 250 Ga. 3, 4 (2) (295 SE2d 315) (1982). Further, “in order to preserve an issue for appellate review after curative instructions are given the motion for mistrial must be renewed [or the] issue is barred.” Woodham v. State, 263 Ga. 580, 582 (439 SE2d 471) (1993); Garcia v. State, 207 Ga. App. 653, 657 (428 SE2d 666) (1993); Leary v. State, 206 Ga. App. 191 (424 SE2d 903) (1992).

Notably, the trial court record regarding the motion in limine is unclear, but the transcript indicates that, while a motion was made by the appellant’s counsel, the trial court refused to grant the motion and instead reserved ruling on the admissibility of the disputed evidence individually, as it arose at trial. Such a ruling was appropriate, since the evidence of the prior drug buy and drugs observed on the premises by the informant, which formed the basis for the probable cause to obtain the search warrant, was relevant and material and was admissible. To the extent that the evidence was excluded under the pretext of a motion in limine, this error served only to benefit the appellant. Thus, the infrequent references by witnesses to “a controlled buy,” “marked city funds,” “another informant buy,” or to purchases of drugs by the government informant who participated in the controlled buy were relevant and material to the issue of probable cause, and the admission of such testimony was harmless error. The trial court instructed the jury to disregard such testimony in curative instructions.

Even pretermitting the fact that the motion in limine precluded all evidence regarding the appellant’s previous drug sales, appellant has provided no evidence that the State intentionally violated their agreement regarding the motion. Several of the challenged statements were subsequently ruled to be nonresponsive, and one statement was elicited, without objection, by appellant’s counsel, who now seeks to use it as a basis for a mistrial. Further, appellant’s counsel failed to preserve the motions for mistrial after curative instructions were given to remedy the questionable statements. Finally, appellant has not established harm as a result of the alleged errors, since the remaining, unchallenged evidence supports the verdict, as outlined below.

Therefore, in light of all the evidence, viewed in the light most favorable to the verdict, Rigenstrup v. State, 197 Ga. App. 176, 181 (398 SE2d 25) (1990), this Court finds that there was no abuse of discretion on the part of the trial court in refusing to grant a mistrial and therefore affirms the judgment of the court below on these issues.

2. In the seventh enumeration of error, appellant asserts that the trial court erred by excluding evidence of the dangerous environment at East Lake Meadows apartment complex. Appellant’s counsel intended to prove the defense of justification by showing that the area surrounding the apartment was so dangerous that appellant was in fear of harm to himself and his family, and that the appellant was acting in self-defense when he shot at police officers who entered his apartment in the middle of the night.

The State submitted a motion in limine to exclude such evidence unless the appellant testified regarding his intent and actual knowledge of the dangerous environment, thereby establishing that he had the requisite state of mind to support a self-defense theory. See OCGA § 16-3-21. The trial court granted the motion, instructing appellant’s counsel that “you will have to show that [appellant] knew” about the dangers before the challenged evidence would be admissible. When appellant’s counsel attempted to introduce testimony regarding a theft ring in the complex, the State successfully objected; appellant’s counsel did not proffer evidence about what the excluded testimony would have included.

This Court has held that a witness’s testimony that referred only to “prior threats . . . and not to any specific threat” made to a defendant in support of a self-defense theory was “too remote and had no probative value” on the question of whether the victim/ defendant actually had the reasonable belief that the attacker was going to harm him. Beck v. State, 211 Ga. App. 125 (438 SE2d 391) (1993). Since the defendant’s state of mind is a critical element of a self-defense claim, OCGA § 16-3-21, then, as a condition precedent to the admissibility of evidence on such issue, the defendant must testify as to his intent and reasonable belief as an essential element of such an affirmative defense, which would then make other evidence as to the “dangerous environment” relevant and material.

Further, by failing to proffer any specific evidence relating to appellant’s state of mind, the issue of justification had not been raised and counsel “failed to show that the [excluded] testimony would have benefited [appellant’s case] or that its rejection was sufficiently prejudicial to warrant a reversal of the conviction(s). [Cits.]” (Punctuation omitted.) Fulton v. State, 205 Ga. App. 353 (422 SE2d 257) (1992); see also Cruz-Padillo v. State, 262 Ga. 629, 631 (422 SE2d 849) (1992). Therefore, this Court affirms the exclusion of the general circumstantial evidence of what might have been the appellant’s state of mind and intent as to “reasonable belief,” absent appellant’s testimony.

Appellant further asserts that the fact that the trial court denied appellant’s request for a jury view of the apartment complex on the basis that the area is too dangerous was inconsistent with the ruling on the motion in limine excluding evidence of a dangerous environment in the complex. However, the trial court conditionally excluded the evidence of the dangers if the defendant was unwilling to testify regarding his state of mind. For the same reason, a jury viewing of the complex would have been irrelevant without the accompanying state of mind testimony as to the “reasonable belief” of the appellant that he was in danger.

3. In the eighth enumeration of error, appellant asserts that the trial court erred by failing to charge on the definition of possession of cocaine with intent to distribute. Appellant’s counsel cites Phelps v. State, 192 Ga. App. 193, 195 (384 SE2d 260) (1989), which states that it is “ ‘ “the duty of the judge, with or without request, to give the jury an appropriate instruction as to the law on each substantive point of issue involved in (a) case” so as to enable the jury to judiciously decide the guilt or innocence of a defendant.’ ” (Citations omitted.)

However, in the case sub judice, the jury was charged on the meaning of “intent” and the different types of drug possession. Charges were also given on drug possession as a lesser included offense of possession with the intent to distribute, and the jury verdict form included an option to find the appellant “guilty of possession of cocaine,” as opposed to possession with the intent to distribute.

Even though there was no specific instruction regarding the intent to distribute, this Court has held that the term “distribute . . . possesses only the ordinary and common dictionary meaning” and, as such, does not need to be specifically defined in a jury charge. Watkins v. State, 206 Ga. App. 575, 578 (426 SE2d 26) (1992). Therefore, this Court finds no error in the failure to specifically charge the jury with a definition of “intent to distribute.”

4. The ninth enumeration of error asserts that the trial court erred in failing to give a charge on circumstantial evidence pursuant to OCGA § 24-4-6 with regard to the conviction for possession of cocaine with intent to distribute. Defense counsel apparently made a written request to charge on circumstantial evidence, which was denied by the trial court.

The trial court charged the jury on the State’s burden of proof and the nature of circumstantial evidence, as well as the definitions of actual and constructive possession, and sole and joint possession. The circumstantial evidence charge under OCGA § 24-4-6 was not given. However, appellant expressly waived the right to raise this issue on appeal by failing to object to the charges and in not expressly reserving the right to raise objections later, even though the trial court specifically solicited objections from trial counsel following the jury instructions; defense counsel responded “No, your Honor,” notwithstanding that his request on circumstantial evidence had been denied. Wilson v. State, 259 Ga. 55, 58 (6) (376 SE2d 676) (1989); Rivers v. State, 250 Ga. 288, 298 (7) (298 SE2d 10) (1982); Jackson v. State, 246 Ga. 459, 460 (271 SE2d 855) (1980). Therefore, appellant’s allegations regarding the jury charge on circumstantial evidence pursuant to OCGA § 24-4-6 will not be considered.

5. In the tenth and eleventh enumerations of error, appellant asserts that the evidence is insufficient to support appellant’s convictions and sentences for aggravated assaults of police officers and possession of cocaine with intent to distribute.

The standard of review of the sufficiency of the evidence to support a conviction is whether the evidence is sufficient to authorize a rational trier of fact to find the defendant guilty beyond a reasonable doubt of the charges against him. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Edwards v. State, 209 Ga. App. 304, 305 (433 SE2d 619) (1993).

The State’s evidence presented at trial included 39 packets of cocaine, in individual ziplock bags, that were found in a pair of men’s pants in the appellant’s bedroom. In addition, $2,711 in cash was found in a box in the bedroom, separated into $500 increments, which is typical of cocaine revenue. There was extensive testimony that the appellant shot at the police officers from the bedroom; that the appellant climbed through the bedroom window armed with a shotgun and pointed the weapon at officers; that one police officer sustained shotgun wounds during the gunfight; and that the only empty shotgun shells found in the apartment were in the appellant’s bedroom. Finally, sufficient testimony was presented to prove beyond a reasonable doubt that appellant knew that the persons entering his apartment were police officers and not roving gangs or other criminals. Witness credibility is an issue for the jury and is not subject to appellate review. Rivers v. State, 265 Ga. 694, 695 (461 SE2d 205) (1995).

Therefore, we find that the evidence presented at trial, when viewed in the light most favorable to the verdict, Rigenstrup v. State, supra, was more than sufficient to support appellant’s conviction for aggravated assault on a peace officer and possession of cocaine with intent to distribute.

6. In the final enumeration of error, appellant asserts that, during a hearing on appellant’s amended motion for a new trial, the trial court erred by deciding on the merits the issue of the effectiveness of trial counsel. Appellant failed to locate the trial attorney, despite extensive efforts, and could not present her testimony at the hearing. Appellant’s newly appointed counsel argued to the trial court that, without such testimony, the court must refrain from ruling on the merits of this issue. However, the trial court, after hearing arguments from each side, concluded that the trial counsel was not ineffective and denied the motion for a new trial.

Appellant argues that the appellate courts of this state have held that the merits of a claim of ineffectiveness of trial counsel cannot be heard without the testimony of the counsel and cites case law to that effect. See Williams v. State, 251 Ga. 749, 809 (312 SE2d 40) (1983); Creson v. State, 218 Ga. App. 184, 185 (460 SE2d 83) (1995); Query v. State, 217 Ga. App. 61 (456 SE2d 704) (1995). However, appellant misstates the law regarding these cases. When trial counsel fails to testify at a motion hearing to defend his representation of the client, the merits of the arguments that are dependent on such testimony will not be subject to review by this Court. Williams, supra; Creson, supra; Query, supra. However, the merits of the trial court’s finding on ineffective assistance of counsel are not at issue in the case sub judice; appellant challenges only that the trial court ruled on the ineffectiveness issue without the benefit of testimony from appellant’s trial counsel.

This Court has held that if a claim of ineffective counsel “relates to matters outside of the record, . . . then counsel’s testimony would probably be needed. But where the ‘ineffectiveness’ relates to alleged errors made during the course of the trial as shown by the transcript, then trial counsel’s testimony may not be required; the record speaks for itself.” Dawson v. State, 186 Ga. App. 718, 721 (368 SE2d 367) (1988).

In the case sub judice, the claims of ineffectiveness involved charges that trial counsel failed to raise Batson objections; failed to argue a motion to suppress evidence; and had a conflict of interest in her representation of both the appellant and his wife. These issues could be decided from the record and through the testimony of parties and other witnesses.

Decided September 5, 1996

Reconsideration denied September 26, 1996

To require the testimony of trial counsel as a condition precedent to a determination of the merits of a claim of ineffective counsel when the attorney has died, become disabled, or disappeared would constitute a permanent stay. Such argument, if couched as a motion for a continuance, would not be authorized by the Georgia Code. See OCGA § 17-8-24. In order for the appellant to temporarily avoid a ruling on the merits of the claim of ineffective counsel, appellant would be required to show that the absent attorney is expected to be available to testify in the future. See id.; McLendon v. State, 123 Ga. App. 290, 297 (180 SE2d 567) (1971). By his own admission, appellant’s new counsel has admitted that the trial attorney has disappeared and cannot be found, even through extraordinary efforts.

Therefore, this Court holds that, when a trial counsel is unavailable for a hearing on a claim of ineffective counsel, the trial court shall decide the issue on the record of the case proceedings and other available evidence. Unavailability in this context refers to the death, disability, or disappearance of counsel, and does not refer to temporary unavailability justifying a continuance or to the voluntary non-participation of trial counsel under subpoena requiring an attachment to issue to compel attendance at the motion proceedings. If the trial counsel later becomes available after the final adjudication of the issue, and the movant is able to raise a motion of newly discovered evidence, then an extraordinary motion for a new trial, OCGA § 5-5-41 (a); Bradley v. Bradley, 232 Ga. 717, 718 (208 SE2d 817) (1974), or a writ of habeas corpus, OCGA § 9-14-1 et seq., may be appropriate.

In the case sub judice, the trial court heard arguments from both the appellant’s new counsel and the State, as well as considered excerpts from the record regarding the alleged ineffectiveness of trial counsel, and denied the motion for a new trial. This Court finds no error in the trial court’s adjudication of this issue. Since the ruling of the court is not being challenged in this appeal, we will not reach the merits of the trial court’s decision. See Parker v. State, 220 Ga. App. 303, 307 (469 SE2d 410) (1996); Williams v. State, 214 Ga. App. 106 (446 SE2d 789) (1994).

Judgment affirmed.

McMurray, P. J., and Ruffin, J., concur.

Bernard, Knight, for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, John H. Petrey, Assistant District Attorneys, for appellee.

       The child died after being shot by a police officer during the gun battle.

       This Court disregards the footnote in appellee’s brief that concedes that this motion in limine was granted by the trial court, since no such approval appears in the record.

       The State pointed out that, without appellant’s testimony, the only admissible evidence of his state of mind was testimony by police officers that appellant told them he had shot a police officer who broke into his apartment.


text:
    A96A2121.
    NOLLEY v. MARYLAND CASUALTY INSURANCE COMPANY.
    (476 SE2d 622)
   Eldridge, Judge.

Summary judgment was granted by the trial court to Maryland Casualty Insurance Company (“Maryland Casualty”) on the ground it was not liable to the appellant, Ivie Price Nolley, under the uninsured/underinsured motorist provisions of a policy of insurance insuring Kelley Toyota, Inc. (“Kelley Toyota”), for damages she sustained as a result of a motor vehicle accident in which appellant was driving a loaner car owned by Kelley Toyota.

On September 8, 1993, appellant left her car at Kelley Toyota for repairs and was provided a loaner car for her use. At the time appellant accepted the loaner car, she had to sign a vehicle loaner agreement in which she warranted that she carried minimum liability, uninsured motorist, underinsured motorist, and collision coverage and acknowledged that she would not expect Kelley Toyota to provide any type of liability insurance, uninsured motorist, underinsured motorist, or collision coverage with respect to her use of the loaner vehicle.

On the same day, appellant was hit by defendant, Rodney Hadley, who was also driving a rental car. Hadley is a resident of Colorado.

At the time of the accident, Kelley Toyota was covered by a commercial garage insurance policy issued by Assurance Company of America, a subsidiary of Maryland Casualty. The coverage included uninsured/underinsured coverage, which was to expire January 1, 1994, and which would have covered appellant.

Appellant filed this action on August 9, 1995, under the Georgia Non-Resident Motorist Act, OCGA § 40-12-2, seeking damages for injuries she sustained as a result of the motor vehicle collision. Appellant served Maryland Casualty as the purported carrier of uninsured/underinsured motorist coverage for Kelley Toyota. Maryland Casualty answered and filed a cross-claim against Hadley.

1. In appellant’s fourth enumeration of error, which this Court will address first, appellant alleges “Kelley Toyota used a back door approach to waiving insurance options that violates all notice requirements regarding the waiving of insurance under Georgia insurance law” and that the trial court violated principles of fairness by allowing Kelley Toyota’s vehicle loaner agreement to be used as a waiver of insurance.

Even though the case sub judice involves motor vehicle insurance, it does not involve the construction of a contract of insurance between an insured and his insurer and the mandates of the insurance code, but involves the construction of a bailment contract entered into between Kelley Toyota and appellant in which appellant waived certain rights she would have as a third party beneficiary to a policy of insurance issued to Kelley Toyota by Maryland Casualty in return for the use of the loaner vehicle. In response to the claim by appellant for uninsured/underinsured benefits, Maryland Casualty, as a third party beneficiary of the bailment contract, raised defenses available to Kelley Toyota.

Since this is a bailment contract between appellant and Kelley Toyota, then the contract does not need to meet any conditions imposed by statute or case law on contracts between an insured and his insurer. As long as the wording of the contract is sufficiently clear so that the intentions of the parties can be fairly ascertained and effectuated, it is sufficient to bind the parties where all essential elements of a contract are present. Pierson v. General Plywood Corp., 76 Ga. App. 853 (47 SE2d 605) (1948).

2. In appellant’s first enumeration of error, she alleges that “the trial court erred when it determined, as a matter of law, that autodealer (sic) Kelley Toyota’s vehicle loaner agreement constituted a contract.”

Under OCGA § 9-11-56, for the moving party to prevail they must show “there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

In the case sub judice, the undisputed facts show that appellant, in order to obtain a loaner vehicle, signed a vehicle loaner agreement in which she warranted that she carried minimum liability, uninsured motorist, underinsured motorist, and collision coverage and acknowledged that Kelley Toyota would not provide any of these types of insurance with respect to her use of the loaned vehicle.

The burden rests on Maryland Casualty, the party asserting the bailment contract, to prove the existence of such contract by showing “there [were] parties able to contract, a consideration moving to the contract, the assent of the parties to the terms of the contract, and a subject matter upon which the contract can operate.” OCGA § 13-3-1; Workman v. McNeal Agency, 217 Ga. App. 686 (458 SE2d 707) (1995). Here, Kelley Toyota let appellant borrow or use its vehicle in consideration of her promise to carry minimum insurance coverage on such vehicle and her agreement that Kelley Toyota would not provide any insurance coverage. The promises made by appellant were conditions precedent to Kelley Toyota performing under the terms of the bailment agreement. Once appellant had signed the vehicle loaner agreement, Kelley Toyota, in return for such consideration, provided appellant with a loaner vehicle for her use and the bailment contract between the parties was fully executed.

3. Appellant further argues that it was error for the trial court to find as a matter of law that the vehicle loaner agreement was a valid waiver of uninsured/underinsured motorist coverage by the appellant.

In summary judgments involving contract cases, the construction of a contract is a question of law for the trial court “where the language of a contract is clear and unambiguous and capable of only one reasonable interpretation as applied to the subject matter, but if any matter of fact is involved, such as the proper reading of an obscurely written word, the jury should find the fact.” Bress v. Keep-Safe Indus., 155 Ga. App. 544, 545 (271 SE2d 867) (1980).

In the case sub judice, when appellant signed the vehicle loaner agreement, she expressly agreed that Kelley Toyota would not provide her with “any type of liability insurance, uninsured motorist, underinsured motorist, or collision coverage” in connection with appellant’s use of the loaner vehicle. It is not necessary for a particular word to be used for the trial court to determine the intent of the parties to a contract; it is only necessary that the intent of the parties be clear. See Batson-Cook Co. v. Ga. Marble Setting Co., 112 Ga. App. 226 (144 SE2d 547) (1965). There is no other possible construction of this provision of the bailment contract other than that appellant rejected or waived any insurance coverage Kelley Toyota had on the vehicle and that such waiver extended to Maryland Casualty as third party beneficiary of such contract. The fact that the words “waive” or “waiver” do not appear in the contract does not prohibit the trial court from construing such provision as a matter of law since the language of the contract as written is clear, unambiguous, and capable of only one reasonable interpretation.

Under Georgia law, the owner of any vehicle must carry a minimum coverage of liability insurance. OCGA §§ 33-34-3; 33-34-4. Georgia law does not require an owner of a vehicle to purchase a minimum amount of uninsured/underinsured motorist insurance coverage. Uninsured/underinsured motorist insurance is not mandatory and therefore can be waived or rejected in writing by the insured to the insurer. OCGA § 33-7-11 (a) (3). Since Kelley Toyota was not required by law to carry uninsured/underinsured motorist insurance, then it could not be required as a matter of law to offer such insurance to appellant. Appellant, when she signed the vehicle loan agreement, effectively waived any such coverage that would have been available to her as a third party beneficiary of Kelley Toyota’s contract of insurance with Maryland Casualty.

4. In the third enumeration of error, appellant alleges that the trial court erred when, under the guise of construing and enforcing the contract, it struck out the words “liability insurance” from the vehicle loaner agreement, effectively revising the contract to provide appellant with mandatory liability insurance, and finding the remainder of the contract valid and enforceable.

Contracts are void in this state which are in violation of a statute or are against public policy. OCGA § 13-8-2. Liability insurance, to be procured by the owner of any vehicle, is mandatory by statute and cannot be waived by the insured. OCGA §§ 33-34-3; 33-34-4. However, as this Court has previously discussed in appellant’s second enumeration of error, uninsured/underinsured motorist coverage can be waived by the insured, and there is no obligation on the owner of a vehicle to provide such coverage to a driver of his vehicle. Any coverage of this nature can also be waived by a third party beneficiary of the policy. Likewise, since an owner of a vehicle is not mandated by statute to carry collision insurance, such coverage may also be waived by a third party beneficiary.

The question before this Court is whether or not the vehicle loaner agreement can be severed to eliminate the waiver by appellant of Kelley Toyota’s liability insurance, which would violate both statute and public policy, and allow the remainder of the contract, which does not violate a statute or public policy, to remain enforceable. Under OCGA § 13-1-8 (a), a contract may be severed if “the failure of a distinct part does not void the remainder.” “In determining whether the contract is entire or severable, the criterion is to be found in the question whether the whole quantity, service or thing — all as a whole — is of the essence of the contract.” Burns v. Mitchell, 55 Ga. App. 862 (191 SE 870) (1937). “A contract based on legal and binding consideration and containing an attempted waiver of a right which cannot be waived because contrary to public policy, which waiver is wholly incidental to the purposes of the contract, is sever-able, and the part which is legal is nevertheless enforceable.” Adams v. Trust Co. Bank, 206 Ga. App. 554, 555-556 (426 SE2d 36) (1992) citing Brenau College v. Mincey, 68 Ga. App. 137, 138 (22 SE2d 322) (1942). In the case sub judice, the consideration for the agreement was that appellant would waive any insurance coverage Kelley Toyota had to which she would be a third party beneficiary. Even with the trial court severing from the contract appellant’s waiver of liability insurance, the consideration for the contract would remain essentially the same; such consideration is now appellant’s waiver of any insurance that Kelley Toyota is not required to provide, but had provided to her as a third party beneficiary. Kelley Toyota had fully performed under the terms of the contract; to sever the portion of the contract, which is void by public policy, would effectuate the intent of the parties, i.e., the waiver by appellant of any insurance that Kelley Toyota had, which could be legally waived, was now given in consideration for the use of the loaner vehicle.

Decided September 9, 1996

Reconsideration denied September 26, 1996

James Brantley, for appellant.

Long, Weinberg, Ansley & Wheeler, Kenneth M. Barre, Sharon B. Austin, for appellee.

Judgment affirmed.

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

       Appellant, within her third enumeration, alleges the trial court erroneously relied on Adams, supra. While the facts in Adams are not on all fours with the case sub judice the relevant law necessary to deciding this case is applicable to both fact patterns.


text:
    A96A1166.
    In the Interest of C. D. F. et al., children.
    (476 SE2d 654)
   Ruffin, Judge.

Sonya Foster appeals from an order of the juvenile court terminating her parental rights to her son, C. D. F, born January 24, 1990, and her daughter, K. D. F, born December 29, 1988. For reasons which follow, we affirm.

1. In two enumerations of error, Foster asserts that the State did not prove by clear and convincing evidence that her parental rights should have been terminated under OCGA § 15-11-81 (b).

On appeal, we must view the evidence in a light most favorable to the judgment of the juvenile court and determine whether any rational trier of fact could have found by clear and convincing evidence that Foster’s rights to custody were lost. In the Interest of D. T., 221 Ga. App. 328, 329 (1) (471 SE2d 281) (1996).

Viewed in this light, the evidence showed that Foster has a long history of hospitalization for mental illness. In 1985, when Foster was 23 years old, she entered the hospital for one month complaining that she was hearing voices and that “people [were] after her and out to get her.” After experiencing similar problems in June 1987, Foster was again hospitalized for approximately three weeks. Only three days after being discharged, Foster re-entered the hospital for approximately two weeks suffering from paranoid delusions. Foster’s mental illness continued, and she entered the hospital a total of 13 times between 1985 and September 1993.

In August 1992, Foster placed physical custody of C. D. F. with her cousin. The cousin returned C. D. F. to Foster in March 1993. Later that month, while K. D. F. was living with Foster’s parents, Foster, who was now homeless, lived with C. D. F. in a hospital emergency room for two days. A police officer took custody of C. D. F, and on April 12, 1993, the juvenile court entered an order finding C. D. F. deprived.

The juvenile court provided Foster with several reunification plans between April 1993 and September 1994. Under the first reunification plan, the court required Foster to submit to a psychological evaluation. The evaluating psychologist testified that Foster “was not in touch with reality and that she was delusional and . . . psychotic at the time of the interview[ ]” in August 1993. Foster told the psychologist that drug pushers were following her and out to kill her. Foster also told the psychologist that she would not leave her home without a disguise and that she carried a shotgun on the street when she had her son with her. The psychologist concluded that Foster’s “ability to take care of her child . . . was grossly impaired and would likely cause trauma to the child, as well as possible physical harm. . . .”

Despite submitting to the psychological evaluation, Foster failed to comply with several other requirements contained in the reunification plans. While receiving welfare and social security benefits, Foster never paid the $5 in monthly support for C. D. F. as required by the plans. Foster also failed to complete the parenting classes required by the plans. Although the plans required Foster to remain drug and alcohol free and participate in a substance abuse program, Foster contended she did not have a drinking problem and did not attend the program. Foster did not find stable, adequate, and safe housing as required by the plans. The evidence showed that Foster was evicted from public housing for failing to pay rent and that she lived with several different relatives. Foster did not notify her Department of Family & Children Services (“DFCS”) caseworker of her changes in address, which was also required by the plans. Foster did not obtain stable employment as the plans required. Finally, Foster failed to comply with the requirement that she continue mental health treatment and take her prescribed medications.

Because Foster failed to continue treatment and take her medications, she often became delusional and had to be readmitted into the hospital. Foster entered the hospital for approximately three weeks in February 1995 after a police officer found her wandering the streets, walking in traffic, and stating that someone was going to kill her. Foster asked the officer to shoot her. When Foster was admitted to the hospital, she asked the admitting physician whether she should shoot another patient in the waiting room. Foster re-entered the hospital for a one-month period on March 13,1995, after a violent episode at her sister’s house during which Foster pulled a knife on her sister. Both episodes were attributed to Foster’s failure to obtain treatment and take prescribed medication, which Foster admitted she takes only “when she feels like it.” Although Foster was admitted to a group home for the mentally ill after being discharged from the hospital, she remained there for only 24 hours.

On April 4,1995, the juvenile court determined that K. D. F. was also deprived. The court’s deprivation order contained a reunification plan that, among other things, required Foster to pay $10 per month in child support for K. D. F.

The evidence at K. D. F.’s deprivation hearing showed that for the 18 months preceding the hearing, Foster had difficulty caring for K. D. F. In February 1994, Foster’s parents, who had custody of K. D. F. for the preceding year, returned her to Foster. In August 1994, Foster visited her DFCS caseworker and informed her that she wanted to place K. D. F. for adoption because “the drug lords were after her and . . . she needed to leave.” Foster subsequently abandoned K. D. F. in the DFCS lobby. DFCS placed K. D. F. and C. D. F. with Foster’s sister. Foster’s sister returned the children to DFCS in March 1995 after Foster appeared at her apartment, intoxicated, and became violent. The sister testified that Foster became “real violent . . . broke up the glasses . . . and she broke out the big old wall unit.” This was the same violent episode that precipitated Foster’s hospitalization on March 13, 1995. Foster admitted at K. D. F.’s deprivation hearing that she was not in a position to care for the child.

The foregoing constituted clear and convincing evidence that Foster’s parental rights to K. D. F. and C. D. F. were properly terminated due to her inability to care for the children. See OCGA § 15-11-81 (b) (4) (A). The unappealed orders of the juvenile court dated April 12, 1993, and April 4, 1995, established that the children were deprived. In the Interest of A. M. B., 219 Ga. App. 133, 134 (464 SE2d 253) (1995). Furthermore, although Foster may love her children and there is no evidence that she was ever violent towards them, the clear and convincing evidence shows that her mental disability has rendered, and continues to render, her incapable of furnishing the “‘proper parental care and control necessary for the [children’s] physical, mental and emotional health and that these conditions and causes of deprivation are likely to continue for the foreseeable future.’ ” In re S. R. J., 176 Ga. App. 685, 686 (337 SE2d 444) (1985). Finally, it is clear that Foster’s conduct is likely to cause the children serious physical, mental, or emotional harm. The children are at risk if they are present while Foster is roaming through traffic or wandering the streets armed and experiencing delusions, if she turns violent to those around her, or if she abandons them in a public place because she feels she can no longer care for them. “The trial court’s order contained detailed findings which supported the conclusions necessary to justify the termination of [Foster’s] parental rights. Those findings were supported by clear and convincing evidence.” (Citations and punctuation omitted.) In the Interest of J. H., 210 Ga. App. 255, 258 (1) (435 SE2d 753) (1993).

2. Foster further contends the trial court erred in terminating her parental rights because her failure to pay the child support ordered in the reunification plans was not wilful or wanton and, in the case of K. D. F., in excess of one year. See OCGA § 15-11-81 (b) (2). However, the juvenile court did not terminate Foster’s parental rights under OCGA § 15-11-81 (b) (2), and Foster’s failure to pay child support was but one of many factors the court considered in determining whether Foster was able to care for the children. See In the Interest of A. M. B., supra at 135-136. Accordingly, we find no error.

3. Similarly, the trial court did not err in terminating Foster’s parental rights absent a showing that she failed to comply with K. D. F.’s reunification order for a period of one year or longer prior to the filing of the petition for termination of parental rights. See OCGA § 15-11-81 (b) (4) (C). The juvenile court was not limited to terminating Foster’s parental rights under OCGA § 15-11-81 (b) (4) (C), and a showing supporting the factors listed in that subparagraph was not mandatory. In the Interest of A. M. B., supra at 136. Accordingly, we find no error.

4. Finally, Foster asserts that the trial court erred in denying her motion for continuance. We disagree.

The record shows that on May 4, 1995, the trial judge granted Foster’s motion seeking funds for a psychological evaluation. The court originally scheduled the termination hearing for June 15, 1995, but continued it from that date to allow Foster to obtain the evaluation. In its order continuing the case, the court rescheduled the termination hearing for July 7, 1995, and specifically required that all mental examinations be concluded by that date.

At the July 7, 1995 termination hearing, Foster moved the court for another continuance contending that she was unable to obtain the psychological evaluation. When the trial judge asked Foster why she did not attend a scheduled appointment for the evaluation, Foster replied: “I had to go to the Sheriff Department the same day. I was taking exam [sic]. As I left there, I tried to find the place and I could not find it.” Foster further explained that although she had the address, she did not ask anyone where it was because she wanted to find it on her own. The court denied the motion for another continuance, finding that it was in the best interests of the children to resolve the matter. The trial judge further stated that if, during the hearing, he felt he could not reach a just decision without the evaluation, he would grant a continuance for an evaluation.

Decided September 26, 1996.

Caesar J. Burch, for appellant.

Michael J. Bowers, Attorney General, William C. Joy, Stephanie M. Baldauff, Senior Assistant Attorneys General, Shalen A. Sgrosso, Assistant Attorney General, Leo G. Beckmann, Jr., for appellee.

Under these circumstances, the trial court did not abuse its discretion in failing to grant Foster’s motion for a continuance. See OCGA §§ 9-10-166; 9-10-167. See also In re C. M., 179 Ga. App. 508, 510 (2) (347 SE2d 328) (1986).

Judgment affirmed.

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


text:
    A96A1186.
    BALLARD v. WILLIAMS.
    (476 SE2d 783)
   Ruffin, Judge.

We granted John Kenneth Ballard’s application for interlocutory appeal to consider whether the trial court erred in denying his motion to enforce settlement. In the underlying action, Williams sued Ballard to recover for injuries he allegedly sustained in an automobile accident with Ballard. Ballard raised the settlement agreement in his answer and subsequently filed a motion to enforce settlement. The trial court denied Ballard’s motion. In Ballard’s sole enumeration of error, he contends that the trial court erred in denying his motion to enforce settlement. We agree.

The issues raised in this appeal are analogous to those in a motion for summary judgment. Southern Med. Corp. v. Liberty Mut. Ins. Co., 216 Ga. App. 289, 291 (454 SE2d 180) (1995). “Our review is de novo. [Cit.]” Bandy v. Mills, 216 Ga. App. 407 (454 SE2d 610) (1995). To prevail, a party must show “the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of the plaintiff’s case.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

In support of his motion to enforce settlement, Ballard filed an affidavit of Regina Bacon, a claims examiner for his insurer, Government Employees Insurance Company (“GEICO”) and a letter from attorney Steve E Freedman, Williams’ original counsel. Bacon testified that on September 13, 1993, she made an offer to settle the claim for $1,200 which was accepted by Freedman on behalf of his client. A review of the record does not indicate whether the offer was made orally or in writing.

Subsequently, GEICO received the letter from Freedman dated January 13, 1994, which stated that “at the time we negotiated the settlement of this claim, I had obtained authorization from Mr. Williams. Opon [sic] our receipt of the settlement paperwork, we had an enormous amount of difficulty in contacting Mr. Williams. Letters were sent and phone calls made and messages left to no avail. Finally, Mr. Williams was contacted and he stated he would come to our office to execute the paperwork. Three letters later . . . and Mr. Williams has still not been to our office.” The letter further stated that “we advised that as a result of his continuing lack of cooperation we would have no other choice but to return the settlement paperwork and resign [from] his case. . . .”

In response to Ballard’s motion, Williams argued that Ballard presented no evidence that Williams’ attorney had authority to settle. He further contended that the affidavit contained only legal conclusions and no facts. According to Williams, the record does not support the existence of a settlement agreement and does not support a finding that the settlement agreement is enforceable. Williams’ argument is simply without merit. Contrary to Williams’ assertion, Bacon’s affidavit recites the facts surrounding the settlement and does not contain legal conclusions.

Williams has not denied the contentions made by his former attorney by affidavit, but rather seems to argue that although there appeared to be ongoing negotiations, the settlement was not final. He argues that “Appellee’s former attorney could not have settled this claim because he did not consult with Appellee about the specific offer of settlement at the time the offer was made.” However, he provides no evidence to support his contention, nor does he cite any portions of the record in his brief.

“Under Georgia law an attorney of record has apparent authority to enter into an agreement on behalf of his client and the agreement is enforceable against the client by other settling parties. Ordinarily, for an attorney to bind his client to a settlement agreement where there is a dispute as to terms, the agreement must be in writing.” (Citations and punctuation omitted.) Tidwell v. White, 220 Ga. App. 415, 417 (2) (469 SE2d 258) (1996). See also Penny Profit Foods v. McMullen, 214 Ga. App. 740, 741 (2) (448 SE2d 787) (1994). The writing requirement may be satisfied by letters or documents prepared by the attorneys showing the terms of the agreement. Id. “A party’s denial that an agreement was reached is, however, immaterial where it is undisputed that the attorney for the party denying the agreement communicated acceptance of the settlement offer.” (Citations and punctuation omitted.) Id. at 742.

Decided September 26, 1996

Alvin L. Bridges, Jr., Robert A. DeMetz, for appellant.

Potts & Badaruddin, James H. Potts II, for appellee.

The letter of Williams’ former attorney stated that a settlement had been reached and that he had authority to settle the claim. The letter was enough to satisfy the writing requirement that an agreement had been reached. Additionally, Freedman stated in his letter that Williams was contacted and agreed to execute the paperwork, but never did. This Court has held that “the parties’ failure to follow through with the agreement [does not] negate the existence of the agreement or render it unenforceable.” Commercial Union Ins. Co. v. Marco Transp. Co., 211 Ga. App. 844, 845 (1) (440 SE2d 730) (1994).

“In this case, when [Freedman] acted on [Williams’], behalf he believed he had received settlemént authority from [Williams] and as he later [indicated in a letter], he had been in . . . contact with his client[, who agreed to execute the agreement]. The fact that [Williams] later had a change of heart is irrelevant as to whether on [September 13, 1993], [Freedman] had settlement authority.” Tranakos v. Miller, 220 Ga. App. 829, 833-834 (470 SE2d 440) (1996). Furthermore, the record is devoid of any evidence that GEICO was made aware that Freedman lacked the requisite authority, to settle. This Court has held that whére the opposing party has no “knowledge of expressed] restrictions oh an attorney’s authority, the opposing party may deal with the attorney as if with the client, and the client will be bound by the acts of his attorney within the scope of his apparent authority.” (Citation and punctuation omitted.) Id. at 834 (1). Accordingly, we find that the trial court erred in denying Ballard’s motion to enforce settlement.

Judgment reversed.

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


text:
    A96A1512.
    MANKER v. THE STATE.
    (476 SE2d 785)
   Ruffin, Judge.

A jury found Ralph Manker guilty of one count each of selling cocaine, possession of cocaine with intent to distribute, and obstruction of a law enforcement officer. The trial court denied Manker’s motion for new trial and sentenced him as a recidivist to 30 years for selling cocaine, 25 to be served in prison, and merged his conviction for possession. The trial court also sentenced Manker to 12 months for the obstruction conviction, to be served concurrently with the sentence for selling cocaine. Manker appeals, challenging the sentence and the sufficiency of the evidence on his conviction for selling cocaine, the admission of certain evidence, the jury charge, and the effectiveness of trial counsel. For reasons which follow, we affirm the convictions, but reverse Manker’s sentence and remand for resentencing.

1. The evidence was sufficient to convict Manker of selling cocaine.

Viewed in a light most favorable to the jury’s verdict, the evidence shows that at 10:30 p.m. on December 11, 1994, members of the Chatham County Counter Narcotics Team were involved in an undercover drug investigation. Team member Agent Thompson was driving a panel van with several “take-down” agents concealed in the rear of the van. Agent Thompson drove the van to an area where Manker was standing and parked it directly below a street light. Manker crossed the street, approached the driver’s side of the van and asked Agent Thompson what he was looking for. Agent Thompson testified he had a full opportunity to view Manker, and that he immediately recognized Manker because he had seen him several times before. Agent Thompson told Manker he wanted to get a “fifty pack,” which he testified was $50 worth of crack cocaine. When Manker left the van for a couple of seconds to obtain the cocaine, Agent Thompson gave the take-down agents Manker’s description. Manker returned to the van, gave Agent Thompson a substance later identified as cocaine, and Agent Thompson gave Manker the money. The take-down agents then exited the van and pursued Manker. As Manker fled, Agent Thompson saw him drop the money in the street. Although the take-down agents were unable to apprehend Manker that night, Agent Thompson learned from people in the area where Manker lived.

Agent Thompson testified that the following morning he talked to a police investigator, identified Manker’s face in a photograph, and obtained a warrant for his arrest. Agent Thompson arrested Manker later that morning in front of his residence.

At trial, Agent Thompson positively identified Manker as the person who sold him the crack cocaine. In addition, one of the take-down agents who pursued Manker testified that from his observations that evening, Manker appeared to be the same person he was chasing.

Manker contends that the evidence at trial was insufficient to identify him as the person who sold cocaine to Agent Thompson. We disagree. On appeal from a criminal conviction, Manker no longer enjoys the presumption of innocence, and we do not weigh the evidence or determine witness credibility. Platt v. State, 211 Ga. App. 721, 722 (440 SE2d 495) (1994). Those were issues for the jury to determine, and we conclude that the evidence produced at trial was sufficient to authorize a rational trier of fact to find Manker guilty of selling cocaine beyond a reasonable doubt. Id.; Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Manker asserts that the trial court erred in denying his motions for mistrial because his character was impermissibly placed in issue on two occasions. We disagree.

On one occasion, Agent Thompson testified that he talked to a police investigator before identifying Manker’s face in a photograph. The mere fact that the testimony showed that the photograph came from police department files did not place Manker’s character in issue. See Hood v. State, 216 Ga. App. 106, 108 (3) (453 SE2d 128) (1995). Furthermore, Agent Thompson’s testimony was contained in a long narrative given in response to a question by the prosecutor concerning what occurred after he paid Manker for the cocaine. “ ‘When a witness gives a non-responsive answer to a question impacting negatively on the defendant’s character, this does not place the defendant’s character in issué under OCGA § 24-9-20 (b).’ . . . [Cit.]” Nelson v. State, 204 Ga. App. 409, 410 (2) (419 SE2d 502) (1992). In light of the nature of the statement and the other evidence presented, the trial court did not err in denying Manker’s motion for mistrial based on this testimony. See id.

During other testimony, one of the take-down agents stated that after they failed to apprehend Manker, Agent Thompson told him “that he knew the guy some past experience from maybe to the jail or something like that, I don’t know [sic].” The jury was removed from the courtroom, and Manker moved for a mistrial. After arguments, Manker refused the trial court’s proposal to instruct the juty concerning the testimony. Because Manker refused to allow the court to repair the alleged prejudice caused by the testimony, he waived the grounds to assert mistrial error on appeal. Scott v. State, 207 Ga. App. 196, 202 (1) (b) (427 SE2d 537) (1993).

3. Manker asserts that the trial court erred in charging the jury concerning parties to a crime because the evidence did not support such charge.

“ Where there is any evidence, however slight, upon a particular point, it is not error to charge the law in relation to that issue.’ . . . [Cit.]” Payne v. State, 219 Ga. App. 318 (1) (a) (464 SE2d 884) (1995). The charge in this case was supported by Agent Thompson’s testimony concerning the reason Manker left the van to obtain the cocaine. Agent Thompson stated that sometimes drug dealers allow other individuals to hold the cocaine to avoid police detection. Accordingly, there was sufficient evidence to support the charge.

4. Manker, who is represented by new counsel on appeal, asserts he received ineffective assistance of trial counsel. However, in violation of Court of Appeals Rule 27 (c) (3) (i), Manker fails to cite any portion of the record in support of his contention. Accordingly, we need not consider this issue. See Capers v. State, 220 Ga. App. 869, 872 (1) (f) (470 SE2d 887) (1996).

Decided September 26, 1996.

Caesar J. Burch, for appellant.

Spencer Lawton, Jr., District Attorney, Ronald M. Adams, Assistant District Attorney, for appellee.

5. Finally, Manker asserts the trial court erred by allowing evidence of a prior guilty plea during sentencing when there was no evidence that the plea was voluntary. We agree.

The record shows that the State presented evidence of a prior guilty plea for possession of cocaine and another guilty plea for possession of a firearm by a convicted felon. Although the evidence supported Manker’s contention that there was no evidence showing his plea for possession of a firearm by a convicted felon was intelligent and voluntary, the trial court admitted evidence of both felonies.

“[0]nce the defendant raises the issue of intelligent and voluntary waiver with respect to prior guilty pleas, the burden is on the state to establish a valid waiver.” Pope v. State, 256 Ga. 195, 209 (17) (345 SE2d 831) (1986). “Absent a showing that [Manker’s] previous guilty plea[ for possession of a firearm by a convicted felon was] knowingly and voluntarily entered, the trial court erred by admitting [it] in evidence over [Manker’s] objections.” Id. at 210.

We disagree with the State that the error was harmless. Although the State is correct that the trial court could have sentenced Manker as a recidivist under OCGA § 17-10-7 with evidence of only a single felony, under that statute the trial judge is vested with discretion concerning whether to “probate or suspend the maximum sentence prescribed for the offense.” OCGA § 17-10-7 (a).

The sentencing transcript in this case clearly shows that the trial judge relied on evidence of the plea at issue in determining that “putting [Manker] on probation is not going to serve any purpose. . . .” Becausé the court relied on inadmissible evidence in sentencing Manker, we cannot conclude that the error was harmless.

Accordingly, although we affirm Manker’s convictions, we remand the case for resentencing. See Pope, supra.

Judgment of conviction affirmed; sentence reversed and remanded.

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


text:
    A96A1571.
    JONES et al. v. ISOM.
    (477 SE2d 139)
   Ruffin, Judge.

Sanchez Green and the passengers in his car sued Kelvin Isom for injuries allegedly sustained in an automobile collision which occurred on February 1, 1993. The complaint was filed in Fulton County on January 21, 1994. Green and his passengers appeal from the trial court’s order granting Isom’s motion to dismiss. For reasons which follow, we affirm.

The record shows that Green and his passengers originally filed suit against Isom in Clayton County, which was dismissed when Isom could not be served in Clayton County. Green and his passengers then refiled their complaint on January 21, 1994, in Fulton County. Isom’s vehicle was insured by Southeastern Security Insurance Company (“Southeastern”), which retained attorney Stanley Coburn to defend the case.

Uncertain as to the status of the case, Cohurn sent a letter dated March 27, 1994 to appellants’ counsel to determine whether Isom had been served. Coburn sent a second letter with the same inquiry on July 8, 1994. Coburn mailed a third letter with the same inquiry and a request to dismiss the case on October 10, 1994. On May 18, 1995, sixteen months after suit was filed and three months after the statute of limitation expired, Coburn mailed a fourth letter to appellants’ counsel, again requesting the complaint be dismissed because Isom had not been served.

In September 1995, Southeastern appointed new counsel to defend Isom: the law firm of Hertz & Link. Hertz & Link filed its notice of appearance on September 12, 1995.

On October 17, 1995, appellants’ counsel filed a motion to enforce settlement. Thereafter, Isom’s counsel filed a motion to dismiss on November 8, 1995 for failure to perfect service within the statute of limitation. Appellants’ counsel also filed a notice to depose Isom, prompting Isom’s counsel to file a motion for protective order. Appellants’ counsel then filed a motion for sanctions, a motion for contempt, a motion for entry of default, and a motion for partial summary judgment. On December 22, 1995, the trial court entered an order granting Isom’s motion to dismiss and declaring moot the remaining motions before the court.

1. In their first enumeration of error, appellants claim the trial court erred in granting Isom’s motion to dismiss. According to appellants, this issue is controlled by Keith v. Alexander Underwriters &c., 219 Ga. App. 36 (463 SE2d 732) (1995), since Isom’s counsel filed an entry of appearance which obligated Isom to file an answer within 30 days. We disagree.

It is undisputed that Isom has never been personally served with a copy of the summons and complaint. At issue is whether Isom’s counsel’s entry of appearance, filed twenty months after the complaint was filed and seven months after the statute of limitation expired, obligated Isom to file an answer. Isom asserts that the entry of appearance was filed in accordance with Uniform State Court Rules 4.2 and 4.6 for the purpose of notifying the trial court and opposing counsel that Coburn and his firm were no longer connected with the case and that future correspondence or notices should be sent to Hertz & Link. The notice of appearance stated, “[p]ursuant to Uniform Superior Court Rule 4.2 and effective this date, the law firm of Hertz & Link . . . has been retained to appear for and defend the interests of the named defendant, Kevin [sic] D. Isom.”

This case is distinguishable from Keith since in Keith there is no indication that the statute of limitation had expired on the plaintiff’s complaint. In Keith, we held that defendants waived service by filing an entry of appearance and that the time the appearance was made “ ‘is the equivalent of the time service of process is made in a normal case.’ [Cit.]” Id. at 39. Thus, while the defendant in Keith waived service by filing a notice of appearance, the plaintiff was not obligated to show due diligence in perfecting service or to obtain a waiver of service for his claim to relate back to the time of filing.

It is well established that “where an action is filed within the applicable limitation period but is not served upon the defendant within five days thereafter or within the limitation period, the plaintiff must establish that he acted in a reasonable and diligent manner in attempting to insure that proper service was effected as quickly as possible; and if he is guilty of laches in this regard, service will not relate back to the time of filing of the complaint for the purpose of tolling the statute of limitation.” (Citations and punctuation omitted.) Bennett v. Matt Gay Chevrolet Oldsmobile, 200 Ga. App. 348, 349 (1) (408 SE2d 111) (1991). It is the plaintiff’s burden to show due diligence and lack of fault, and the trial court’s determination regarding whether the plaintiff was guilty of laches will not be disturbed on appeal absent abuse. Id. See also Sykes v. Springer, 220 Ga. App. 388, 389 (1) (469 SE2d 472) (1996).

In the present case, the record fails to show any evidence that appellants made a diligent attempt to serve Isom. In fact, the trial court specifically noted that appellants “have not made any showing as to steps taken to insure service on [Isom]. . . .” Thus, even if Isom’s counsel’s notice of appearance constituted a waiver of service at the time it was filed, the burden was still on the appellants to show due diligence and lack of fault in failing to serve Isom within the statute of limitation. No such showing was made in this case. Accordingly, the trial court did not err in granting Isom’s motion to dismiss based on appellants’ failure to timely perfect service.

Decided September 26, 1996.

Paul C. Parker & Associates, William S. Sarandis, Philip L. Westee, for appellants.

Hertz & Link, Houston D. Smith III, Harvey G. Berss, for appellee.

2. Appellants also claim the trial court erred in declaring moot their motion for entry of default, motion for partial summary judgment, motion to compel and for sanctions, and motion to enforce settlement. We disagree. As we have already determined in Division 1, the trial court correctly concluded that appellants failed to serve Isom within the applicable statute of limitation and properly granted Isom’s motion to dismiss. Thus, appellants’ motion for entry of default and motion for partial summary judgment were rendered moot.

Moreover, based on the trial court’s ruling, the trial court lacked personal jurisdiction over Isom. See Williams v. Fuller, 244 Ga. 846, 849 (3) (262 SE2d 135) (1979) (jurisdiction of person obtained by proper service of process or waiver of service). It is well established that jurisdiction over a party must be established before the court can enter any ruling binding the party or the ruling is declared null and void. See Estate of Marjorie C. Thurman v. Dodaro, 169 Ga. App. 531, 532 (1) (313 SE2d 722) (1984). Since the trial court lacked personal jurisdiction over Isom, it lacked jurisdiction to rule on appellants’ motion to compel, motion for sanctions and motion to enforce settlement.

Judgment affirmed.

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


text:
    A96A1592.
    WEBB v. THE STATE.
    (476 SE2d 781)
   Ruffin, Judge.

Cheryl Webb was indicted for possession of cocaine, possession of marijuana, possession of a firearm during the commission of a felony, driving under the influence of drugs, and speeding. Following the presentation of evidence at trial, the court granted Webb’s motion for a directed verdict on the speeding charge. The jury subsequently found Webb guilty of possession of marijuana and driving under the influence of drugs. Although Webb does not challenge her conviction for possession of marijuana, she contends there was insufficient evidence to support her conviction for driving under the influence of drugs.

Viewed in a light most favorable to the jury’s verdict, the evidence shows that one morning at approximately 3:30, Pelham police officer Brady Finney was parked on the side of a roadway,' operating his radar, when he stopped Webb for speeding. Officer Finney testified over objection that Webb was “running 60 miles an hour in a 50 mile an hour zone[,]” and that he determined her speed “[b]y radar.” Officer Finney approached Webb’s car, and her passenger, co-defendant John Noble, informed Officer Finney he had a gun. Upon searching the vehicle, Officer Finney found the handgun, a bottle containing cocaine, a bag containing marijuana, and a cigarette box containing a partially smoked marijuana cigarette. Officer Finney arrested Webb and Noble for possession of marijuana and possession of cocaine. Webb subsequently admitted the marijuana belonged to her and consented to give a urine sample, which tested positive for marijuana.

Webb contends the foregoing evidence was insufficient to convict her of driving under the influence of drugs because there was no competent evidence that she was under the influence to the extent that it was less safe for her to drive. We agree.

. We note initially that Webb was not indicted under former OCGA § 40-6-391 (a) (5). To obtain a conviction under that statute, “the state need only prove the physical act of driving with any amount of the specified drugs in the blood or urine. [Cits.]” Kevinezz v. State, 265 Ga. 78, 79 (2) (454 SE2d 441) (1995). Rather, the record shows that Webb was indicted under former OCGA § 40-6-391 (a) (2). Under former OCGA § 40-6-391 (a) (2), it is unlawful to drive or be in actual physical control of any moving vehicle while “[u]nder the influence of any drug to the extent that it is less safe for the person to drive[.]” Although under that statute the State is not required to prove that the defendant actually committed an unsafe act, “impaired driving ability is an element of the crime that the state must prove to obtain a conviction. [Cit.]” Kevinezz, supra at 79 (2); Shannon v. State, 205 Ga. App. 831, 833 (4) (424 SE2d 51) (1992). However, the mere fact that a defendant has ingested marijuana is not sufficient to support a conviction under OCGA § 40-6-391 (a) (2), because “that statute does not prohibit driving after ingesting any quantity of drugs. [Cit.]” Sparks v. State, 195 Ga. App. 589, 590 (2) (394 SE2d 407) (1990), overruled on other grounds, Green v. State, 260 Ga. 625 (1) (398 SE2d 360) (1990). See also Davis v. State, 206 Ga. App. 647 (1) (426 SE2d 267) (1992). Compare former OCGA § 40-6-391 (a) (5). The State is required to present some other form of evidence showing the defendant was impaired. Sparks, supra.

Other than the positive urine sample, the only additional evidence presented in this case was Officer Finney’s testimony that Webb was “running 60 miles an hour in a 50 mile an hour zone[,]” and that he determined her speed “[b]y radar.” However, that testimony could not be used to support Webb’s conviction". OCGA § 40-14-8 (a) provides that “[n]o county, city, or campus officer shall be allowed to make a case based on the use of any speed detection device, unless the speed of the vehicle exceeds the posted speed limit by more than ten miles per hour and no conviction shall be had thereon unless such speed is more than ten miles per hour above the posted speed limit.” (Emphasis supplied.)

Decided September 26, 1996.

Robert H. Revell, Jr., for appellant.

J. Brown Moseley, District Attorney, John A. Warr, Assistant District Attorney, for appellee.

The record in this case shows that Officer Finney was a Pelham city police officer. Officer Finney’s testimony shows that he determined Webb was speeding based on his observation of his radar. That same testimony shows that Webb was driving only ten miles per hour over the posted speed limit. OCGA § 40-14-8 (a) broadly prohibits the use of such evidence and clearly states that “no conviction shall be had thereon.” We are aware of no authority that would preclude application of this statute in this case. Accordingly, because “[t]here was nothing from which the jury could have inferred that [Webb] was under the influence of [marijuana] to the extent that [she] was a less safe driver, such as additional evidence of [her] physical condition or conduct at the time of arrestt,] . . . [her] conviction and sentence for violation of OCGA § 40-6-391 (a) (2) must be set aside.” Sparks, supra at 590 (2).

Judgment reversed.

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


text:
    A96A1016.
    BATES v. GUARANTY NATIONAL INSURANCE COMPANY.
    (476 SE2d 797)
   Ruffin, Judge.

Guaranty National Insurance Company (“Guaranty National”) filed a declaratory judgment action against Michael Bates, and Bates appeals from the trial court’s grant of summary judgment to Guaranty National. For reasons which follow, we affirm.

Summary judgment is appropriate when the court, viewing all the evidence and drawing all reasonable inferences in a light most favorable to the non-movant, concludes that the evidence does not create a triable issue as to each essential element of the case. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). “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. [Cit.]” Id.

Viewed in that light, the record shows the following. Leon Baker entered a store owned by Foodmart Stores (“FMS”) where Bates was an employee. Bates became hostile when Baker attempted to purchase items with a $50 bill, and Bates shoved Baker with both hands, pointed a handgun at Baker, and told Baker to leave the store. Baker filed a complaint against FMS and Bates, alleging negligence, assault, aggravated assault, simple battery, battery and intentional infliction of emotional distress.

When the incident occurred, FMS was insured by Guaranty National. Guaranty National filed a complaint for declaratory judgment against Bates and FMS to determine whether coverage was available under the applicable insurance policy. Subsequently, Guaranty National moved for summary judgment, asserting its insurance policy did not provide coverage for the claims alleged by Baker in the underlying tort action. The trial court granted Guaranty National’s motion for summary judgment.

Guaranty National’s policy contains the following language under the heading “Bodily Injury And Property Damage Liability”: “We will pay those sums that the insured becomes legally obligated to pay as damages because of bodily injury or property damage to which this insurance applies. . . . This insurance applies to bodily injury and property damage only if: (1) The bodily injury or property damage is caused by an occurrence that takes place in the coverage territory. . . .” “Bodily injury” is defined as “bodily injury, sickness or disease sustained by a person, including death resulting from any of these at any time.” “Occurrence” is defined as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” The policy excludes “[bjodily injury or property damage expected or intended from the standpoint of the insured!,]” but states that the exclusion “does not apply to bodily injury resulting from the use of reasonable force to protect persons or property.”

In addition, the policy applies to “[p]ersonal injury caused by an offense arising out of [FMS’s] business. . . .” “Personal injury” is defined as “injury, other than bodily injury, arising out of one or more of the following offenses: false arrest, detention or imprisonment; malicious prosecution; wrongful eviction or invasion of privacy; slander or libel; and oral or written invasion of privacy.”

Bates contends the trial court erred in granting Guaranty National summary judgment because questions of material fact exist regarding (1) whether Bates acted with “reasonable force” in defending himself and store property and (2) whether Bates acted with the “intent to injure” Baker. Guaranty National contends (1) the alleged assault and battery was an intentional act and, therefore, excluded from coverage and (2) Baker’s injuries are not “bodily injuries” covered by the policy.

1. We agree with Guaranty National that the injuries alleged by Baker in Counts 1 through 4 and 8 of his underlying tort action are not “bodily injuries” covered by the policy. In Brayman v. Allstate Ins. Co., 212 Ga. App. 96 (1) (441 SE2d 285) (1994), we construed a similar definition of “bodily injury” and denied coverage to the insured because the underlying litigation alleged only mental pain and anguish. “Used in an insurance policy, the term ‘bodily injury’ means just that — ‘bodily injury.’ It pertains to physical injury to the body. It does not include non-physical, emotional or mental harm. And it cannot be equated with a broader term ‘personal injury.’ ” (Citations and punctuation omitted.) Id. at 96-97. See also Presidential Hotel v. Canal Ins. Co., 188 Ga. App. 609, 611 (373 SE2d 671) (1988).

In the present case, Counts 1 through 4 and 8 of Baker’s underlying complaint against Bates allege only non-physical injuries and seek damages for purely mental harm. Under Counts 1, 2 and 3, dealing with negligence and gross negligence, Baker’s complaint alleges “immediate and delayed harm for mental anguish, embarrassment, and hurt feelings” as a direct and proximate result of Bates’ actions. Likewise, Count 4, asserting simple assault, alleges that Baker was frightened and in apprehension of receiving a violent injury, and Count 8, asserting intentional infliction of emotional distress, alleges strictly non-physical damages.

Thus, Baker’s alleged injuries in these counts are not bodily injuries covered by the policy. In addition, Baker’s alleged injuries in these counts are not covered “personal injuries” because they do not arise from one of the specifically enumerated torts in the policy.

However, the remaining counts of Baker’s underlying complaint are sufficient under Code pleading requirements to allege physical injuries incurred as a result of Bates’ tortious conduct, including his intentional shoving of Baker. See, e.g., Gonzalez v. Zant, 199 Ga. App. 13 (403 SE2d 880) (1991). Counts 5, 6 and 7, dealing with aggravated assault, simple battery and battery, merely allege that Baker “has been damaged as a result of” Bates’ tortious actions, including an intentional shoving by Bates “upon his person.” These counts, which allege shoving and damage, can be liberally construed as alleging physical injury. Since there is no evidence in the record contradicting Baker’s allegations of physical injuries, we must determine whether the claims alleged in Counts 5, 6- and 7 are otherwise excluded by the policy.

2. Having concluded that Counts 5, 6 and 7 of Baker’s underlying complaint assert a claim for bodily injury, we must determine whether the claims are excluded because they allege intentional acts or whether they are excepted from the exclusion because Bates was using reasonable force to protect himself or store property. Although it is clear that Baker’s assertions of aggravated assault, simple battery and battery all include the element of intent (see OCGA §§ 16-5-21; 16-5-23; 16-5-23.1), Bates contends the exclusion for intentional acts does not apply because (1) he did not intend to injure Baker, and (2) he was acting in self-defense. We disagree.

The policy, which excludes “[b'Jodily injury . . . expected or intended from the standpoint of the insured[,]” clearly contemplates a subjective test as to the insured’s intention. Accordingly, without specific intent to injure, there will be coverage. See Southern Guaranty Ins. Co. &c. v. Saxon, 190 Ga. App. 652, 653 (379 SE2d 577) (1989). However, Baker’s underlying complaint specifically states that Bates intended to injure Baker. It is well established that the allegations of the complaint filed by Baker provide the basis for determining whether liability exists under the terms of the insurance policy. Great American Ins. Co. v. McKemie, 244 Ga. 84 (259 SE2d 39) (1979); Brayman, supra. As in Brayman, “because [Baker] alleges that the acts and resulting harm were intentional, we cannot say that any alleged bodily injury [he] may have suffered was unintended or the result of an accident. Accordingly, the trial court properly granted summary judgment to [Guaranty National].” Hain v. Allstate Ins. Co., 221 Ga. App. 486, 487 (471 SE2d 521) (1996).

Since Guaranty National met its burden of showing the existence of the exclusion, based on the allegations in Baker’s underlying tort action, the burden shifted to Bates to dispute these allegations of intentional acts. Contrary to Bates’ argument, there is no evidence in the record indicating that Bates did not intend to injure Baker and thus creating a material issue of fact on this issue. According to the record, Bates admitted that physical contact between him and Baker occurred. Moreover, in his appellate brief and at oral argument on the motion for summary judgment, Bates admitted brandishing a handgun and “reaching out his hand contacting and shoving Mr. Baker backward with the intent to cause physical contact.”

Although the foregoing admissions may be used against Bates, he cannot use arguments in his appellate brief and from the summary judgment hearing to establish that he did not intend to injure Baker. Barrett v. Commercial Union Ins. Co., 188 Ga. App. 353, 355 (373 SE2d 59) (1988). “The appellate courts simply cannot, and are not authorized by law, to infer from statements of counsel in their briefs, facts which never managed an introduction into or even a nodding acquaintance with the record. [Cit.]” Morris v. Hodge, 152 Ga. App. 815, 816 (264 SE2d 482) (1979). Furthermore, we can locate no evidence in the record, and Bates has pointed to no evidence, supporting this assertion. “It is well-settled that an appellate court will not cull the record in search of error on behalf of one of the parties. [Cits.]” Saffar v. Chrysler First &c., 215 Ga. App. 239, 240 (1) (450 SE2d 267) (1994). Because the evidence shows that Bates’ shoving of Baker was intentional, as alleged in Baker’s underlying tort action, we must determine whether Baker’s claims fall outside the intentional acts exclusion because Bates used reasonable force to protect persons or property.

Bates has not cited any evidence of record showing he used reasonable force and acted in self-defense. Once again, while Bates claimed in his appellate brief and at the summary judgment hearing that he “believed that Mr. Baker had returned to his car in order to obtain a weapon” and that he acted in self-defense and in defense of the store, those assertions are not supported by the record. “We may not rely on these assertions contained in the briefs of the parties but must look to the record ... to determine if there is harmful error.” (Citations and punctuation omitted.) Barrett, supra at 355. Thus, the statements of Bates’ attorney supporting his argument of self-defense fail under OCGA § 9-11-56 (e) to create a question of fact. Morris, supra.

“When a motion for summary judgment is submitted and supported by evidence, the adverse party may not rest his case as made, but must set forth specific facts and present his case in full in order to show there is a genuine issue for trial. The burden of proof is shifted when the moving party makes a prima facie showing that it is entitled to judgment as a matter of law. At that time the opposing party must come forward with rebuttal evidence or suffer judgment against him. If. . . the defendant fails to respond with specific facts showing a genuine issue for trial, summary judgment is properly granted.” (Citations, punctuation and emphasis omitted.) Ga. Farm Bureau Mut. Ins. Co. v. Lane, 219 Ga. App. 736, 737-738 (466 SE2d 272) (1995). There being no showing of a genuine issue of material fact for trial, the trial court did not err in granting Guaranty National’s motion for summary judgment.

Judgment affirmed.

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

Decided September 27, 1996.

Monte K. Davis, for appellant.

Webb, Carlock, Copeland, Sender & Stair, Leslie B. Zacks, Dennis G. Lovell, Jr., J. Arthur Lee, Jr., for appellee.

       Not only are these facts undisputed, but these statements constitute admissions by Bates’ attorney, which may be used against Bates. Gregory v. Star Enterprises, 122 Ga. App. 12 (1) (176 SE2d 241) (1970); NAACP v. Pye, 96 Ga. App. 685, 686 (101 SE2d 609) (1957).