author: Sognier, Judge.

text:
    77650.
    MOORE v. THE STATE.
    (378 SE2d 880)
   Sognier, Judge.

David Timothy Moore was tried by a jury and convicted of the offenses of armed robbery, aggravated assault, aggravated battery, and aggravated assault with intent to rob. He was sentenced to life imprisonment plus 60 years, and he appeals.

Construed to support the verdict, the evidence adduced at trial showed that appellant and Elden Bernardo Dukes arrived in the parking lot outside Provino’s Restaurant on Roswell Road in Atlanta in a stolen car at approximately 9:30 p.m. on April 15, 1987. The restaurant had experienced two previous robberies and had hired an off-duty policeman, J. J. Biello, as security personnel. Biello was talking with a friend, Detective Nick Marinelli, also an Atlanta police officer, who was in his van in the parking lot, when appellant and Dukes drove up. Biello and Marinelli observed appellant get out of the passenger side of the car and enter the restaurant. Appellant entered the lobby of the restaurant where the cashier’s desk was located, pulled a gun on the restaurant’s cashier, Keri Morin, and told her to give him the money from the cash register. Morin began doing so when the restaurant’s assistant manager, Kevin Weekly, came by. Appellant pointed the gun at Weekly and told him to get on the floor behind the cash register, and told Morin to give him more money.

Biello, having become suspicious, took out his gun and entered the restaurant. He observed appellant, whose back was then toward him, pointing a gun at Morin, who was handing money to appellant. Morin saw Biello enter the lobby and nodded to him, whereupon appellant turned and shot Biello twice from a distance of one or two feet. Biello kept approaching and returned fire. A struggle between Biello and appellant ensued, and Biello fell to the ground. Appellant then stood over Biello, pointed his gun at his head, and shot him again, this time in the neck. Marinelli, waiting in the parking lot for Biello, observed the car driven by Dukes drive off and then heard gunfire. He pulled his own gun, and saw appellant run out of the restaurant. Marinelli withheld fire at first, thinking a restaurant patron might be fleeing. Then appellant ran off and Marinelli fired at him. Marinelli briefly searched the parking lot and then rode to the hospital with Biello.

Later that evening, appellant sought treatment for a gunshot wound at Grady Hospital. Marinelli observed appellant in a treatment room at Grady, and positively identified appellant as the man he had seen at Provino’s. Morin was shown a photographic lineup in the early hours of the next morning, and picked appellant’s photograph out of the lineup as the man who had pointed a gun at her at the restaurant. Weekly was shown the same lineup, and picked a different photograph. Biello positively identified appellant at a preliminary hearing, but admitted that he had a brief glimpse of appellant’s picture on television prior to that identification.

1. Appellant contends that a one-on-one confrontation with the witness Keri Morin at a preliminary hearing was an impermissibly suggestive identification procedure, and that consequently the trial court erred by denying his motion to suppress Morin’s in-court identification of appellant at trial.

The transcript of the pretrial proceedings reveals that on the morning of a pretrial hearing, appellant’s counsel, believing there were problems with the State’s witnesses being able to identify appellant, requested of the courtroom deputy sheriff that appellant not be brought up to the courtroom that morning; that he was waiving his right to be present at the hearing. Defense counsel then left to discuss the matter with the trial judge. During the time defense counsel was discussing the matter with the judge, the prosecuting attorney permitted the deputy to bring appellant down despite defense counsel’s instructions, and the deputy brought appellant to the hall in front of the jury room where the prosecutor was meeting with Morin, who was to be a witness at the hearing. When the deputy notified the prosecutor that appellant had been brought down, the prosecutor and Morin exited the jury room and Morin had the opportunity to view appellant, in handcuffs, outside the presence of defense counsel. Although Morin had previously picked appellant’s picture from a photographic lineup, no physical lineup had taken place. Appellant argues, citing Foster v. State, 156 Ga. App. 672 (275 SE2d 745) (1980), that the one-on-one confrontation in the courtroom hallway outside the presence of appellant’s counsel shored up Morin’s previously tentative identification, and thus violated appellant’s rights.

In United States v. Wade, 388 U. S. 218 (87 SC 1926, 18 LE2d 1149) (1967), the Supreme Court held that a pretrial corporeal identification conducted after indictment is a critical stage of the prosecution, thus entitling the accused to the presence of counsel. However, despite the suggestibility inherent in such procedure, a witness’ subsequent, in-court identification may nevertheless be admitted if the in-court identification is based on something other than that illegal identification procedure. The crucial question for determination is “whether under the ‘totality of the circumstances’ the [in-court] identification was reliable even though the confrontation procedure was suggestive.” Neil v. Biggers, 409 U. S. 188, 199 (93 SC 375, 34 LE2d 401) (1972). Neil sets forth the criteria for determining whether a likelihood of misidentification exists, including the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. Id, Applying these criteria, we find that Morin’s identification of appellant was reliable even assuming the one-on-one pretrial confrontation was impermissibly suggestive.

Morin testified that she had an opportunity to observe appellant closely at the time of the robbery from a distance of a few feet for several minutes in a “well lit” area, that he did not have a cloth over his face, and she “got a good look at his face.” Her attention was obviously focused sharply, as she testified that she “just sat there and watched the whole thing. I mean, I couldn’t move.” She gave an accurate description of appellant after the robbery as a muscular black male wearing a blue Adidas jogging suit, having small eyes, a wide nose, big mouth, and smooth, dark complexion. With the possible exception of the clothing, about which there is confusion because appellant claims to have changed clothing with Dukes at Grady Hospital, this description of appellant was accurate. Morin said at the time she picked appellant’s picture out of the photographic array several hours after the crimes, that she “felt sure that that was the person.” She testified that although it seemed to her that he looked different in the photograph, she was positive that appellant was the person she was identifying as the robber. Accordingly, “[a]ssuming without deciding that [the pretrial one-on-one confrontation between Morin and appellant] was unnecessarily suggestive, the evidence shows that [Morin’s] in-court identification of the defendant was based, not on the confrontation at [the preliminary hearing], but on the opportunities [she] had to observe the defendant on the evening of the [robbery]. ... As the basis for the courtroom identification was independent of the allegedly suggestive confrontation procedure, it was not error for the trial court to deny the motion to suppress. [Cit.] Considering [Morin’s] opportunities to observe the defendant [during the robbery and] shooting, there was little likelihood of misidentification of the defendant at the time of [her] in-court identification. [Cit.]” Callaway v. State, 257 Ga. 12, 14 (3) (354 SE2d 118) (1987).

Although appellant also objects, albeit obliquely, to Marinelli’s viewing appellant at Grady Hospital in a one-on-one confrontation, that confrontation occurred before appellant had been charged, and consequently was not impermissible. See United States v. Wade, supra. Further, Marinelli testified that he had gotten a good look at appellant in the parking lot before appellant entered the restaurant, and he identified appellant’s photograph at the pretrial hearing.

Moreover, both Biello and Dukes identified appellant as the perpetrator of the crimes. Biello testified that his identification of appellant was based not on the photograph he saw on TV, but on the fact that he “looked right in [appellant’s] face when he shot me in the neck,” and that he would “never forget the face.” Dukes, appellant’s alleged accomplice, positively identified him as the person with whom he committed the crime, providing further support to the reliability of the identifications. See Houston v. State, 187 Ga. App. 335, 339 (4) (370 SE2d 178) (1988).

Because of the reliability of the in-court identifications and the corroboration provided by other evidence concerning appellant’s identity, we find no merit in this enumeration.

2. Appellant contends he should not have been convicted of and sentenced for both the offenses of aggravated assault (count two) and aggravated battery (count three) of Biello because those offenses merged. We do not agree. OCGA § 16-1-7 (a) provides that “[w]hen the same conduct of an accused may establish the commission of more than one crime, the accused may be prosecuted for each crime. He may not, however, be convicted of more than one crime if: (1) One crime is included in the other; or (2) The crimes differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct.”

Clearly, subsection (2) is inapplicable because these two offenses do not differ only in that one is a more specific form of the other. “[A] crime is an included crime and multiple punishment therefor is barred if it is the same as a matter of fact or as a matter of law . . . .” State v. Estevez, 232 Ga. 316, 319 (206 SE2d 475) (1974). OCGA § 16-1-6 (1) sets out the rule for determining whether a crime is included as a matter of fact (“[i]t is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged”). OCGA § 16-1-6 (2) governs the determination of whether a crime is included as a matter of law (“[i]t differs from the crime charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability suffices to establish its commission”).

Aggravated assault is not an included offense of aggravated battery as a matter of law within the meaning of OCGA § 16-1-6 (2). In determining whether the two offenses merged in fact, we look to the actual evidence introduced at trial. “‘[I]f the state uses up all the evidence that the defendant committed one crime in establishing another crime, the former crime is included in the latter as a matter of fact under [OCGA § 16-1-7 (a)].’ [Cit.]” Haynes v. State, 249 Ga. 119, 120 (2) (288 SE2d 185) (1982).

In this case, Biello testified that appellant shot him twice when he first turned and saw him. Subsequently, they struggled and appellant stood over him and shot the officer in the neck, which paralyzed him. That last shot was not fired in furtherance of the robbery or to deter Biello, who was lying on the floor, but was a separate battery. Compare Mills v. State, 187 Ga. App. 79, 80-81 (4) (369 SE2d 283) (1988) and Overstreet v. State, 182 Ga. App. 809, 810 (1) (357 SE2d 103) (1987). The State could well have proved count two without introducing any evidence concerning the final shot, and could have proved count three without introducing any evidence of the first two shots. Accordingly, the offenses did not merge in fact. See Jones v. State, 185 Ga. App. 595, 596 (2) (365 SE2d 153) (1988).

3. In appellant’s final enumeration of error he alleges there is a fatal variance between the allegata and probata as to count four. Count four of the indictment charged appellant with aggravated assault with intent to rob, in that he “did unlawfully commit an assault upon the person of Kevin Weekly by pointing a pistol at him, the same being a deadly weapon; all with intent to rob the said Kevin Weekly.” It is uncontroverted that appellant pointed a gun at Weekly. Appellant contends, however, that the State failed to prove that the pointing of the deadly weapon was done with the intent to rob Weekly. We find no merit in this contention. At the time appellant pointed the gun at Weekly he was in the process of robbing the restaurant, of which Weekly was the manager. “ ‘Every crime consists in the union or joint operation of act and intention. Sometimes the intention can be proved, sometimes it can only be inferred . . . ; and the general rule laid down by our Code is, that the intention will be manifested by the circumstances connected with perpetration of the offense.’ [Cits.] ‘Intent is a question for the jury.’ [Cit.]” (Footnote omitted.) Fussell v. State, 187 Ga. App. 134, 136 (4) (369 SE2d 511) (1988). The jury was authorized to conclude that appellant pointed the gun at Weekly to further the robbery, and they were thus authorized to convict appellant of the offense as charged. See id. at 136-137 (4).

Decided February 1, 1989

Rehearing denied February 13, 1989.

John T. Chason, Rise H. Weathersby, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Richard Hicks, Henry Newkirk, Assistant District Attorneys, for appellee.

Judgment affirmed.

Car ley, C. J., and Deen, P. J., concur.


source: Caselaw Access Project

author: Birdsong, Judge.

license: Public Domain

text:
    77456.
    ANDERSON v. LARKIN.
    (378 SE2d 707)
   Birdsong, Judge.

This is an appeal from the order of the State Court of Fulton County granting plaintiff/appellee’s motion for summary judgment and denying defendant/appellant’s motion for summary judgment.

Appellant Carole Anderson and appellee Charles Larkin formerly were married. On March 7, 1986, presumably in contemplation of her forthcoming divorce from appellee, appellant executed a legal document which pertinently provides that she does “promise to pay [appellee] $3000.00 in exchange for a Deed from him to [her] transfering [sic] his one-half undivided interest in title to property at 360-4th Street, Atlanta, Georgia. Payment will be made upon completion of refinance of the current mortgage secured by said property.” Appellee subsequently executed the required deed, and appellant subsequently refinanced the property.

Appellant and appellee thereafter executed a property settlement agreement, which ultimately was incorporated into and made a part of the parties’ final judgment and decree of divorce. The settlement agreement, in part, provides that “[w]hereas the parties have agreed to and completely effected a division of real property prior to the filing of the aforementioned action which is completely satisfactory to each; and . . . [w]hereas each party maintains no further claims against the other party insofar as real or personal property is concerned except as mentioned herein. Now therefore each releases and holds harmless the other party from any and all further claims as to real or personal property which he or she might otherwise have as a result of their marriage.” (Emphasis supplied.)

Following refinancing of the property, appellant declined to pay appellee the $3,000 in question, and appellee initiated suit seeking a money judgment based upon the averred promissory note. Held:

Appellant asserts that the trial court erred in denying her motion for summary judgment and in granting appellee’s motion therefor.

Appellant consistently has defended her position on the grounds that the entry of the parties’ Final Judgment and Decree of Divorce, which incorporated the settlement agreement executed by the parties, indicated an intent to settle all questions of property divisions and other property rights, and therefore, was a discharge and satisfaction of the claims raised by the appellee’s complaint on the grounds of res judicata.

The final judgment and decree on its face incorporates therein the terms of the property settlement. Thus, the primary issue to be resolved concerns the meaning of the settlement agreement terms.

The facts of this case are distinguishable from the facts in Scott v. Stroud, 186 Ga. App. 869 (369 SE2d 51); Basden v. Basden, 183 Ga. App. 188 (358 SE2d 317); and Prince v. Prince, 147 Ga. App. 686 (250 SE2d 21). In particular, the settlement agreement in this case expressly refers to a prior division of real property made by the parties, which was “completely satisfactory” to each. Thus, these cases are not dispositive of the issue before us.

“ ‘[T]he true rule of res judicata in divorce and alimony cases seems to be that a final decree has the effect of binding the parties and their successors as to all matters which were actually put in issue and decided, or which by necessary implication were decided between the parties.’ ” (Emphasis deleted.) Brookins v. Brookins, 257 Ga. 205, 207 (357 SE2d 77). However, “[wjhere the parties in a divorce action enter into a settlement agreement, its meaning and effect should be determined according to the usual rules for the construction of contracts, the cardinal rule being to ascertain the intention of the parties. [Cits.] In approving and adopting a settlement agreement, the court adopts the meaning and effect of the agreement as it was intended by the parties.” Cousins v. Cousins, 253 Ga. 30 (1) (315 SE2d 420); see Prince, supra at 688. Considering in toto the final judgment and decree, the settlement agreement, and the subject note, together with the factual admissions of the parties, it is clear that the settlement agreement was not intended as the complete agreement of the parties regarding the disposition of real property. Rather, the settlement agreement was but a partial integration of the parties’ contractual intent regarding the disposition of their real property; and, that as to the real property located at 360-4th Street, the terms recited in the note, executed by the appellant on March 7, 1986, were intended to be controlling.

Decided February 13, 1989.

Gregory Z. Schroeder, for appellant.

Frank L. Derrickson, for appellee.

Applying the applicable legal principles pertaining to the review of summary judgment issues by this court, see generally Norton v. Ga. R. Bank &c., 253 Ga. 596, 603 (322 SE2d 870), we are satisfied that the trial court did not err. Appellant’s enumeration of error is without merit.

Judgment affirmed.

Banke, P. J., and Beasley, J., concur.


text:
    77655.
    ARCHER v. THE STATE.
    (380 SE2d 91)
   Birdsong, Judge.

Appellant was convicted of two counts of burglary and one count of simple battery. His subsequent motion for new trial on the general grounds was denied.

During appeal, an Anders motion (Anders v. California, 386 U. S. 738 (87 SC 1396, 18 LE2d 493)) was filed in this case. On January 23, 1989, we issued an order dismissing the Anders motion, and directing appellant’s counsel to file a brief on behalf of appellant. Appellant’s brief has been duly filed, and it enumerates as error that the evidence is “insufficient to show that the [appellant] was at the burglarized places and committed the crimes of which he was accused.” Appellant also has asserted that the verdict is against the weight of the evidence and contrary to good judgment.

We have reviewed this entire record sua sponte, including all errors asserted by the appellant. Review of the trial record and transcript in a light most favorable to the jury’s verdict “reveals ample evidence from which any rational trier of fact could conclude beyond a reasonable doubt that appellant was guilty of [the offenses] charged” and that appellant’s alibi defense created no reasonable doubt as to his guilt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Baggett v. State, 257 Ga. 735 (2) (363 SE2d 257). Further, the record and transcript reveal no errors which were prejudicial to the substantive rights of the appellant.

Judgment affirmed.

Banke, P. J., concurs. Beasley, J., concurs in judgment only.

Decided February 13, 1989.

J. Michael Carpenter, for appellant.

Willis B. Sparks III, District Attorney, Charles H. Weston, Assistant District Attorney, for appellee.


text:
    77733, 77769.
    0-1 DOCTORS MEMORIAL HOLDING COMPANY et al. v. MOORE; and vice versa.
    (378 SE2d 708)
   Sognier, Judge.

Kenneth Moore brought a medical malpractice suit against 0-1 Doctors Memorial Holding Company and Emory University d/b/a Crawford W. Long Memorial Hospital of Emory University (collectively, the “Hospital”) and three individuals, William Armstrong, M.D., Judith Ericsson, M.D., and Kathleen Rogers, seeking damages for injuries he incurred as a result of alleged negligent medical care and treatment he received from the defendants. Although due to time constraints no expert’s affidavit was filed with the complaint, pursuant to OCGA § 9-11-9.1 (b) Moore amended his complaint within 45 days to file the affidavit of Joseph Bussey, M.D. The Hospital moved to dismiss Moore’s complaint on the ground that the affidavit failed to comport with the requirements for an expert affidavit pursuant to OCGA § 9-11-9.1. The trial court refused to consider Moore’s amendment to the affidavit and granted the Hospital’s motion to dismiss as to all the defendants, specifically noting that the dismissal was not an adjudication on the merits of Moore’s claim. Both sides appeal.

1. Since we find the second enumeration raised by Moore as the cross-appellant in Case No. 77769 to be dispositive of both appeals, we address it first. Moore (hereinafter “appellant”) contends the trial court erred when it dismissed his complaint on the basis that his affidavit submitted pursuant to OCGA § 9-11-9.1 (a) was insufficient under that statute’s requirements. OCGA § 9-11-9.1 (a) provides: “In any action for damages alleging professional malpractice, the plaintiff shall be required to file with the complaint an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.”

Appellant filed an affidavit from Joseph Bussey, M.D., in which Dr. Bussey averred that he was over the age of eighteen years, that he was a medical doctor licensed to practice medicine in the State of Georgia, that he was a graduate of Emory University School of Medicine, and that he was a board certified general surgeon. Dr. Bussey then stated he had reviewed the Hospital’s records for the admission of appellant and certain photographs, which were attached and incorporated by reference to the affidavit. The affidavit then contained Dr. Bussey’s statements that “(3) [i]t is my opinion based on a reasonable degree of medical certainty that the scar on [appellant’s] upper right arm was competently caused by the negligent application and control of the surgical tourniquet during the operation of 2/1/86-2/2/86 to include, but not limited to, the fact that the tourniquet was applied for too long. (4) This failure of reasonable care may be attributed to the operating surgeon, [Armstong]; the anesthesiologist, [Ericsson]; and/or, the nurses in the operating room, to include the nurse anesthetist [Rogers], or combination of those persons.” The affidavit was properly signed and notarized.

The Hospital and the individual cross-appellees (hereinafter “appellees”) contend this affidavit was insufficient because Dr. Bussey failed to set forth the appropriate standard of care, his familiarity with that standard of care, and the specific details of how appellees deviated from that standard. Appellees assert this language had to be present in the affidavit in order to establish both that Dr. Bussey was an expert competent to testify (apparently in that an affiant cannot qualify as an expert if he does not demonstrate his familiarity with the applicable standard of care) and that the alleged act constituted negligence (in that negligence can be established solely by comparing the act committed to the standard of care required of health care professionals).

Nothing in the affidavit requirements in OCGA § 9-11-9.1 demands that the standard of care be set forth, that a plaintiff’s expert state he is familiar with the appropriate standard of'care, or that the affiant detail the manner in which the defendant deviated from that standard. Thus the plain language of the statute does not support appellees’ arguments. Appellees argue, however, that the requirement of an expert affidavit in OCGA § 9-11-9.1 mirrors the recognized requirements placed upon malpractice plaintiffs at the summary judgment level to overcome the presumption that medical care was rendered in an ordinarily skillful manner, see generally Shea v. Phillips, 213 Ga. 269, 271 (2) (98 SE2d 552) (1957), thereby incorporating the standard of care language requirement into the statute.

We acknowledge that a malpractice plaintiff as respondent on summary judgment cannot prevail on the motion, where the defendant by the content of his expert affidavit has carried his burden of proof, merely by presenting a conclusory opinion that the defendant was negligent or failed to adhere to professional standards of conduct without stating the parameters of such conduct and the particulars of the defendant’s deviation therefrom, see Loving v. Nash, 182 Ga. App. 253, 255-256 (1) (355 SE2d 448) (1987); Humphrey v. Alvarado, 185 Ga. App. 486, 487-488 (2) (364 SE2d 618) (1988), and even appellant is willing to concede that Dr. Bussey’s original affidavit would be insufficient to carry his burden of proof against an expert’s affidavit submitted by appellees on motion for summary judgment under the above authorities. But, as appellant correctly notes, he is not a responding party on motion for summary judgment here; he is the complainant in a malpractice action. We are not persuaded by appellees’ arguments to incorporate the evidentiary standards applicable to evidence supporting a motion for summary judgment pursuant to OCGA § 9-11-56 (e) to the rule of pleading set forth in OCGA § 9-11-9.1 (a). In its requirement that a plaintiff elaborate upon and verify the existence of a cause of action, OCGA § 9-11-9.1 bears a far closer similarity to OCGA § 9-11-9 (b) (pleading fraud with particularity) than the procedural requirements under OCGA § 9-11-56, which allows parties, after discovery has been exhausted, to obtain judgment on the merits of a claim in factually uncontested cases. We construe OCGA § 9-11-9.1 as establishing an “exception to the general liberality of pleading permitted under [the Civil Practice Act, OCGA § 9-11-1 et seq.],” Continental Invest. Corp. v. Cherry, 124 Ga. App. 863, 865 (2) (186 SE2d 301) (1971), by requiring when a malpractice suit is instituted that along with the complaint an affidavit be filed by a competent expert witness setting forth a single negligent act allegedly committed by the defendant. The purpose of OCGA § 9-11-9.1 is to reduce the number of frivolous malpractice suits being filed, not to require a plaintiff to prove a prima facie case entitling him to recover and capable of withstanding a motion for summary judgment before the defendant need file his answer.

Decided February 13, 1989.

Nall, Miller, Owens, Hocutt & Howard, George R. Neuhauser, Michael D. Hostetter, for appellants.

The record reveals that appellant submitted a valid affidavit by a licensed, board certified physician practicing in Georgia, competent to testify in court, which set forth one negligent act, the application of the tourniquet for a negligent period of time, and the factual basis for that claim, in full compliance with the requirements set forth in OCGA § 9-11-9.1 (a). Therefore, the trial court erred by dismissing appellant’s complaint.

2. Our holding above renders it unnecessary for us to address the remaining enumerations in Case No. 77769. Further, since we have held the trial court improperly dismissed the complaint, it is likewise unnecessary to address the Hospital’s appeal in Case No. 77733, asserting the trial court erred by dismissing the complaint without prejudice, and, accordingly, that appeal is dismissed.

Judgment reversed in Case No. 77769; appeal dismissed in Case No. 77733.

Carley, C. J., and Deen, P. J., concur.

Nickerson & Tuszynski, David E. Tuszynski, for appellee.


author: Sognier, Judge. Deen, Presiding Judge,

text:
    77877.
    NATIONAL STOP SMOKING CLINIC-ATLANTA, INC. v. DEAN et al.
    (378 SE2d 901)
   Sognier, Judge.

Jerry and Kathryn Dean brought suit against National Stop Smoking Clinic-Atlanta, Inc. (the Clinic) and three other defendants, alleging medical malpractice and fraud in connection with Jerry Dean’s treatment at the Clinic. We granted the Clinic’s application for interlocutory appeal from the trial court’s order compelling the Clinic to produce the names and addresses of all persons who have received the Clinic’s stop smoking treatment.

Appellant does not contend the discovery order is unduly burdensome or that it requires the production of irrelevant evidence, but instead challenges the trial court’s order on the ground that it improperly requires appellant to abrogate its duty of confidentiality to its patients. The record reveals that appellant offers a medical program, administered by a licensed physician, designed to reduce or eliminate its patients’ desires to smoke. Appellant argues that because it provides only this one type of medical treatment, disclosure of its patients’ identities is tantamount to disclosure of “medical information” in violation of OCGA § 24-9-40.

Contrary to appellant’s assumptions, in Georgia there is no evidentiary privilege for physician-patient communications, Orr v. Sievert, 162 Ga. App. 677, 678 (292 SE2d 548) (1982); Gilmore v. State, 175 Ga. App. 376, 377-378 (333 SE2d 210) (1985), although this court has recognized that “because of the Hippocratic Oath taken by all doctors, a doctor is not required to release information concerning a patient unless required to do so by subpoena or other appropriate court order.” Orr, supra at 678; see OCGA § 24-9-40. Consequently, appellant cannot claim physician-patient privilege as a bar to disclosure once a court requires the information to be produced.

However, even in circumstances where communications are privileged, such as within the psychiatrist-patient relationship, see OCGA § 24-9-21 (5), evidence showing the fact of employment of or treatment by a psychiatrist is not privileged. Cranford v. Cranford, 120 Ga. App. 470, 472-473 (1, 2) (170 SE2d 844) (1969). Thus, in Cranford we affirmed a lower court order compelling disclosure of a licensed psychologist’s deposit stubs and daily appointment books even though his clients’ identities would thereby be revealed. Appellant’s argument that disclosure of its patients’ names constitutes improper revelation of medical information because appellant only provides one type of treatment is without merit in view of our decisions that the privilege accorded psychiatrists and psychologists, who presumably also offer only one kind of medical treatment, does not extend to their patients’ identities.

Nor do we agree with appellant that OCGA § 24-9-40 bars disclosure of the information sought by appellees. The statute provides in part that “no hospital or health care facility . . . shall be required to release any medical information concerning a patient except . . . on appropriate court order or subpoena,” and provides further that any facility which releases information pursuant to such an order “shall not be liable to the patient or any other person.” This statute “is in reality a physician ‘shield’ statute,” Gilmore, supra at 378, not a codification of a physician-patient privilege, and “requires physicians to release information upon proper order.” Id. Assuming, without deciding, that appellant is a “health care facility,” nevertheless the trial court was authorized to order disclosure of any relevant, nonprivileged information, OCGA § 9-11-26 (b) (1), and as the information sought by appellees was not privileged we find no reversible error in the trial court’s decision.

Judgment affirmed.

Carley, C. J., McMurray, P. J., Birdsong, Pope, and Beasley, JJ., concur. Deen, P. J., Banke, P. J., and Ben-ham, J., dissent.

Deen, Presiding Judge,

dissenting.

In Cranford v. Cranford, 120 Ga. App. 470 (170 SE2d 844) (1969), this court held that the mere fact of employment was not within any psychologist-patient privilege. However, the facts in Cranford, as well as the need and motivation for disclosure, are so different from the instant case that Cranford need not be followed here.

Cranford involved a suit for divorce, alimony and child support, and the plaintiff sought discovery of the defendant psychologist’s appointment books, apparently because such would reflect on the defendant’s financial ability to pay alimony and child support. The plaintiffs’ motivation in the instant case, however, is to contact other patients of the defendant to inquire about their treatment and results. In short, in Cranford and the cases it relies upon, the fact of employment was really incidental to the subject being pursued, whereas the fact of employment is the matter pursued by the plaintiffs in the instant case. In Cranford, disclosure of the fact of employment resulted in no further intrusion into the lives of the patients.

Cranford relies upon Fowler v. Sheridan, 157 Ga. 271, 275 (121 SE 308) (1923), dealing with the analogous attorney-client privilege, which held that “ ‘[t]he rule making communications between attorney and client privileged from disclosure does not ordinarily apply where the inquiry is confined to the fact of the attorney’s employment and the name of the person employing him.’ ” In the instant case, the inquiry certainly was not confined to the mere fact of employment, but sought the addresses of the patients so that they could be contacted.

Decided February 13, 1989.

William W. Gardner, for appellant.

Carr, Tabb & Pope, David H. Pope, for appellees.

I do not believe Cranford provides an adequate basis for breaching the confidentiality between the appellant and its other patients, and sanctioning an intrusion into the lives of those other patients. The appellant’s informational brochure provides that “[i]t’s not your fault that you can’t quit smoking. Millions of Americans have tried to, without success. Your body becomes physically addicted to the nicotine in cigarettes. Your mind has formed habits from years of lighting up. The habitual part of smoking is hard to stop; the physical addiction is often impossible to end.” While disagreeing with the appellant’s allegorical articulation and attitude of what constitutes an addiction — compare alleged alcoholic addictions and disease in Dan River, Inc. v. Shinall, 186 Ga. App. 572 (367 SE2d 846) (1988), on the one hand, and one’s use, or lack of use, of free will in elimination or control of one’s habit, on the other — I do not doubt that many, if not most all, of the appellant’s patients would prefer that their addiction and/or habit and treatment not be a matter of public knowledge. If the plaintiffs hope to ferret out other dissatisfied patients, there are other means to do so. Accordingly, I must respectfully dissent.

I am authorized to state that Presiding Judge Banke and Judge Benham join in this dissent.


author: Beasley, Judge. McMurray, Presiding Judge, Banke, Presiding Judge,

text:
    A89A0359.
    PAYTEE v. THE STATE.
    (380 SE2d 92)
   Beasley, Judge.

Defendant, convicted of violations of the Georgia Controlled Substances Act, OCGA § 16-13-30, appeals from a judgment entered on October 6, 1987. His notice of appeal was filed on January 21, 1988. By an order dated January 25 and entered on February 2 the trial court denied his motion for out-of-time appeal, made by the public defender, after the court found “no good and sufficient reason” was shown for granting it. No reason is asserted by counsel in the record. The order of denial is not appealed from and is ignored by appellant.

Defendant’s out-of-time appeal must be dismissed for failure to follow the prerequisites of OCGA § 5-6-38 (a). McKinney v. State, 187 Ga. App. 702 (371 SE2d 196) (1988); Knox v. State, 180 Ga. App. 564 (349 SE2d 753) (1986). See Martin v. State, 185 Ga. App. 145 (1) (363 SE2d 765) (1987); Shirley v. State, 188 Ga. App. 357, 359-361 (373 SE2d 257) (1988).

Appeal dismissed.

Carley, C. J., Deen, P. J., Birdsong, Sognier, and Pope, JJ., concur. McMurray, P. J., Banke, P. J., and Benham, J., dissent.

McMurray, Presiding Judge,

dissenting.

In my view, the decision in Evitts v. Lucey, 469 U. S. 387 (105 SC 830, 83 LE2d 821), requires that the case sub judice be decided on the merits rather than that the appeal be dismissed as held by the majority. I, therefore, respectfully dissent.

I am authorized to state that Presiding Judge Banke and Judge Benham join in this dissent.

Banke, Presiding Judge,

dissenting.

In Evitts v. Lucey, 469 U. S. 387 (105 SC 830, 83 LE2d 821) (1985), the United States Supreme Court upheld the grant of habeas corpus relief to a criminal defendant whose original appeal had been dismissed due to the omission on the part of his retained counsel to comply with a state appellate court rule, reasoning that “[a] first appeal as of right ... is not adjudicated in accord with due process of law if the appellant does not have the effective assistance of an attorney.” Id. 469 U. S. at 396.

After the conviction in the present case was entered, the court was informed, by letter from the appellant’s retained trial counsel dated October 29, 1987, that the appellant was without funds to pay for further legal services and wished to have the public defender appointed to represent him on appeal. On November 2, 1987, a few days before the expiration of the 30-day period for filing the appeal, the court entered an order making such an appointment. The record contains no explanation for why the notice of appeal was not thereafter filed in a timely manner.

In a case where retained counsel has failed to file a timely notice of appeal, the proper course might well be to dismiss the appeal and allow the reasons for such failure to be sorted out in subsequent habeas corpus proceedings. It is possible, after all, that the defendant might initially have decided not to pursue an appeal and then simply have changed his mind after the time for filing an appeal had expired. However, it is apparent from the record in the present case that the appellant did not voluntarily waive his right to an appeal. Thus, unless his appointed counsel’s failure to file the notice of appeal in a timely manner was for some reason legally excusable, it must necessarily have resulted from ineffectiveness. Under Evitts v. Lucey, supra, it is clear that the dismissal of the appeal under such circumstances will result in a violation of the appellant’s due process rights, thereby entitling him to habeas corpus relief as a matter of law. Accordingly, in the interest of judicial economy, I agree with Presiding Judge McMurray that we ought to reach the merits of the appeal rather than dismissing it.

Decided February 13, 1989.

Cynthia D. Wright, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, John M. Turner, Rebecca A. Keel, Assistant District Attorneys, for appellee.

I am authorized to state that Presiding Judge McMurray and Judge Benham join in this dissent.


author: Carley, Chief Judge.

text:
    77451.
    DAWSON v. ATLANTA PROCESSING COMPANY et al.
    (378 SE2d 695)
   Carley, Chief Judge.

Following a hearing, an Administrative Law Judge (ALJ) awarded workers’ compensation benefits to appellant-employee. In addition, the ALJ also found that there had been a failure on the part of appellees-employer/insurer “to properly comply with [OCGA §] 34-9-[221] and Board Rule [221], and a penalty may be assessed under [OCGA §] 34-9-9. Further, [appellant] was forced to seek the services of an attorney in order to protect his rights. A reasonable value for these services is one-third of the recovery authorized as set out in a contingency fee contract filed with the Board in approved form. . . . [Appellees are] authorized and directed to pay to counsel for [appellant] an amount equal to one-third of the recovery.” Appellees appealed to the Full Board. After a de novo review, the Full Board, with some slight modification, adopted the ALJ’s award as its own. Appellees did not appeal to the superior court.

Subsequently, appellees began to pay benefits to appellant. However, instead of paying the full amount of awarded benefits to appellant and an additional amount as add-on attorney’s fees to appellant’s counsel, appellees deducted the amount of attorney’s fees from the amount of the benefits that was being paid to appellant. Appellant notified the Full Board of the manner in which appellee was calculating the amount of benefits that had been awarded to him and of appellees’ refusal to pay add-on attorney’s fees. The Full Board referred the matter to an ALJ. The ALJ issued an award which construed the original award as directing that appellees pay add-on attorney’s fees. Appellees appealed to the Full Board and, after a de novo review, the Full Board adopted the ALJ’s award as its own. Appellees then appealed to the superior court. The superior court found that the original award, although somewhat ambiguously worded, had required appellees to pay add-on attorney’s fees. However, the superior court nevertheless reversed, concluding that there was no evidence to support such an award. The present appeal results from this court’s grant of appellant’s application for a discretionary appeal from the superior court’s order.

Appellant enumerates the superior court’s reversal of the original award of add-on attorney’s fees as erroneous. Appellant’s specific contention is that the principle of res judicata would preclude the superior court from any consideration of whether the original award of attorney’s fees was supported by the evidence.

The original award was not appealed to the superior court. “The failure to appeal [an award in the time provided for such appeal] makes the award . . . final.” American Mut. Liability Ins. Co. v. Lindsey, 63 Ga. App. 658 (11 SE2d 512) (1940). See also Great American Indem. Co. v. Wimberly, 96 Ga. App. 588 (1 (a)) (100 SE2d 593) (1957). Accordingly, the original award became final when the time for appeal to the superior court had passed. See Bryant v. J. C. Distrib., 108 Ga. App. 401, 405 (2) (133 SE2d 109) (1963). The superior court could not, therefore subsequently, reverse the original award of attorney’s fees on the ground that there was no evidence to support it. “If, as contended, the [original] award is not supported by sufficient competent evidence, and is contrary to law because without evidence to support it, then it should have been appealed on these grounds within the time provided by law [to the superior court]. When the time for appeal has passed, the award is res judicata. [Cit.] A final judgment cannot be vacated solely on grounds which could have been taken by an appeal from the judgment. [Cits.]” Lavender v. Zurich Ins. Co., 110 Ga. App. 196, 198 (138 SE2d 118) (1964). See generally Employers Mut. Liability Ins. Co. v. Miller, 131 Ga. App. 681 (206 SE2d 574) (1974).

It follows that the superior court erred in determining that the original award of attorney’s fees should be reversed for a lack of sufficient evidence to support it. The only issue that the superior court was authorized to consider was whether the subsequent construction of the original award as evidencing an award of add-on attorney’s fees was correct. Having determined that the subsequent construction of the original award was not erroneous, the superior court was not authorized to reverse the original award, regardless of the purported lack of evidentiary support therefor.

Judgment reversed.

Deen, P. J., and Sognier, J., concur.

Decided February 1, 1989

Rehearing denied February 14, 1989.

Morse & Ontal, Jack 0. Morse, for appellant.

John P. Hines, James G. Jackson, Michael D. Usry, for appellees.


text:
    77518.
    TOLLETT v. GREEN TREE ACCEPTANCE, INC.
    (379 SE2d 2)
   Birdsong, Judge.

Appellant Linda D. Tollett filed a complaint on June 24, 1987, against appellee Green Tree Acceptance, Inc. (GTA) to recover the penalty imposed by OCGA § 10-1-38 for wilful violation of the Georgia Motor Vehicle Sales Finance Act (OCGA § 10-1-33 et seq.), alleging that GTA charged more than the maximum amount allowed by OCGA § 10-1-33 (a) in financing her purchase of a mobile home. GTA denied any liability under the Act and moved for summary judgment on the basis of uncontroverted evidence that it was neither the original seller nor the current holder of appellant’s financing contract. This appeal is from the grant of summary judgment to GTA. Held:

The undisputed facts show that Ms. Tollett entered into a retail installment contract with Landmark Mobile Homes on May 17, 1982 for the purchase of a new mobile home. Landmark assigned this contract to GTA on May 21, 1982, and on July 1, 1982, prior to any payments by Ms. Tollett, GTA reassigned her contract to the Government National Mortgage Association (GNMA). GNMA is a federally created corporation operated by the Department of Housing and Urban Development to purchase federally insured loans and guarantee securities backed by those loans. On May 20, 1982, GTA and GNMA had entered into an agreement whereby GNMA was to purchase and guaranty no more than $1 million principal amount of mobile home loans from GTA.

GTA assigned to GNMA “all rights, title and interest in and to the [Linda D. Tollett] Security Agreement-Retail Installment Sale Contract, the amounts payable thereunder, the property above-described, and the right therefrom ensuing, and also the right to apply for a certificate or duplicate certificate of title, and to register and/or transfer title in the above-described mobile home. . . .” This assignment and sales contract were then delivered to GNMA’s custodial bank under a custodial agreement by which the bank was required to “segregate and maintain continuous custody and control of all documents deposited with it on behalf of GNMA until the obligations are paid in full. . . .” On July 1, 1982, GTA further contracted with GNMA to service the installment contracts assigned to it in the same pool with Ms. Tollett’s contract. GTA agreed to collect payments for GNMA and set up a custodial escrow account for distribution to the certificate holders, GTA to receive a percentage of the amounts collected.

OCGA § 10-1-38 (b) provides that a violation of the finance charge limitations imposed by OCGA § 10-1-33 “by the seller or holder shall bar recovery of any finance charge, delinquency, or collection charge on the contract.” (Emphasis supplied.) The trial court found that GTA was not the seller of the mobile home to Ms. Tollett; and that the evidence showed at most that it was only the temporary holder of the assignment of her. retail sales contract prior to reassignment of all financial interests to GNMA, after which it acted solely as a collection-service agent. We agree.

OCGA § 10-1-31 (3) defines a “holder” of a retail installment contract as “the retail seller of the motor vehicle under the contract or, if the contract is purchased by a sales finance company or another assignee, the sales finance company or other assignee at the time of the determination.” (Emphasis supplied.) At the time of determination of the holder subject to forfeiture of the finance charges as contemplated by this Act, GNMA was, and at all times since July 1, 1982 has been, the “other assignee” of Ms. Tollett’s sales contract. Likewise, under the Uniform Commercial Code, a “ ‘[h] older’ means a person who is in possession of a document of title or an instrument or an investment security drawn, issued, or indorsed to him or to his order or to bearer or in blank.” OCGA § 11-1-201 (20). At the time this action was filed, GNMA’s custodial bank was in possession of all pertinent documents on its behalf. See Krapf v. Wiles, 252 Ga. 452 (314 SE2d 656).

Appellant’s conclusory argument that GTA “continued to exercise all the overt rights of a holder” equivocates the facts that GTA assigned all its interest in her contract, to GNMA, and the right to pursue a deficiency belongs solely to the federal government; GTA was not a party to the financing contract, nor has it sought to enforce it. Likewise, appellant’s position that OCGA § 10-1-38 (c) imposes penalties for wilful violation of the Act by any person, regardless of whether it is a holder or seller, is not persuasive. It is clear that, in pari materia with OCGA § 10-1-33, the language “any person” and “the person committing the violation” found in OCGA § 10-1-38 (a) and (c) refers only to a seller or holder, and was not intended to expand the class of persons liable for usury violations. This is emphasized by subsection (d), which provides that if a violation is corrected within ten days after execution of the contract, “neither the seller nor the holder is subject to any penalty under this Code section.” Finally, contrary to appellant’s assertion, nothing stated by this court in Gibbs v. Green Tree Acceptance, 188 Ga. App. 633 (2) (373 SE2d 637) supports a finding that GTA should be treated as a holder in the instant case. It follows that the trial court properly granted summary judgment to GTA.

Decided January 31, 1989

Rehearing denied February 14, 1989

King, Morriss, Talansky & Witcher, Joseph H. King, Jr., for appellant.

King & Spalding, Gary J. Toman, Walter Driver, Byron Attridge, for appellee.

Judgment affirmed.

Banke, P. J., and Pope, J., concur. Beasley, J., disqualified.


author: Banke, Presiding Judge.

text:
    77829.
    D. J. POWERS COMPANY, INC. v. HENDRY.
    (379 SE2d 1)
   Banke, Presiding Judge.

At issue in this appeal is whether a landlord’s property manager, who is injured while on the landlord’s premises for the purpose of exercising the landlord’s right of inspection, may be considered an invitee of the tenant in a personal injury action brought against the tenant to recover for the latter’s alleged negligence in allowing an unsafe condition to exist on the premises.

The appellee, Hendry, was employed as property manager for Corim, Inc., which had leased certain commercial premises to the appellant, D. J. Powers Company, Inc. (hereafter referred to as Powers). Two separate lease agreements were involved. The first pertained to a building which was already occupied by Powers at the time of Hen-dry’s accident, while the second pertained to an adjacent building which was being remodeled by Corim for future occupancy by Powers.

Hendry’s duties as Corim’s property manager included inspecting and overseeing the remodeling project, and on the occasion in question he had just completed an inspection of certain painting work which was being performed in a hallway connecting the newly leased premises to the originally leased premises. A portion of this work was considered part of the remodeling of the newly leased premises, while the remainder was being performed by the landlord at Powers’ request for an additional consideration. As Hendry was exiting through the originally leased premises, he stopped to take a drink at a water cooler which evidently belonged to the landlord since it had been present in the building at the time Powers moved in. Hendry had frequently drunk from this cooler before, but on the occasion in question its power cord was lying beside and in front of the appliance rather than in its usual position behind it. As Hendry turned to leave, one of his legs became caught in the cord, causing him to fall. He filed the present action against Powers to recover for his resulting injuries, and the case is currently before us pursuant to our grant of Powers’ application for an interlocutory appeal from the denial of its motion for summary judgment. Held:

“Where an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.” OCGA § 51-3-1. Encompassed by this duty to exercise reasonable care in keeping the premises and approaches safe for invitees is “a duty to inspect the premises to discover possible dangerous conditions of which [the occupier] does not know. . . .” Begin v. Ga. Championship Wrestling, 172 Ga. App. 293, 294 (322 SE2d 737) (1984).

It has been held that “ ‘[t]he determining question as to whether a visitor is an invitee by implication ... is whether or not the owner or occupant of the premises will receive some benefit, real or supposed, or has some interest in the purpose of the visit.’ ” Etheridge Motors v. Haynie, 103 Ga. App. 676, 680 (120 SE2d 317) (1961), citing Anderson v. Cooper, 214 Ga. 164, 169 (104 SE2d 90) (1958). However, the application of this test quite obviously presupposes that the visitor is on the premises by the consent or permission of the owner or occupant in the first place. In the case before us, it is undisputed that the injured plaintiff (Hendry) was on the premises not by the express or implied permission of the tenant (Powers) but as a matter of right, in his capacity as property manager for the landlord. Under such circumstances, we hold that he cannot reasonably be considered an invitee with respect to Powers, with the result that Powers owed him no duty to use reasonable care to keep the premises and approaches safe, and thus owed him no duty to inspect the premises to discover dangerous conditions of which it did not yet have actual knowledge.

Of course, regardless of Hendry’s status on the premises, Powers was under no duty to protect him from patent or obvious dangers which he could have easily observed and avoided on his own. See, e.g., Harris v. Bethel Air Cond. &c. Co., 114 Ga. App. 255 (150 SE2d 710) (1966). It follows that Powers can be held liable to Hendry only if it can be considered to have been wilfully or wantonly negligent in allowing a “mantrap” to exist on the premises — i.e., a hidden danger or condition about which it had actual knowledge but Hendry did not. Cf. Abney v. London Iron &c. Co., 152 Ga. App. 238, 240 (e) (262 SE2d 505) (1979), aff’d 245 Ga. 759 (267 SE2d 214) (1980). There is neither any allegation nor any evidence in this case which would suggest that Hendry’s injury resulted from' such negligence. Accordingly, we conclude that the trial court erred in denying the appellant’s motion for summary judgment.

Decided January 24, 1989

Rehearing denied February 14, 1989

Willis J. Richardson, Jr., for appellant.

Charles R. Ashman, James B. Ashby, for appellee.

Judgment reversed.

Birdsong and Beasley, JJ., concur.


author: Benham, Judge.

text:
    77553.
    JOHNSON v. NORTH ATLANTA CAB COMPANY et al.
    (378 SE2d 711)
   Benham, Judge.

Appellant Sandra Johnson seeks reversal of the trial court’s grant of summary judgment in favor of appellee North Atlanta Cab Company (NACC), a defendant in the personal injury action Johnson filed. Johnson claims the trial court erred in its ruling that is apparently based on the conclusion that the parties had reached an accord and satisfaction of all claims. We agree with appellant’s position and reverse the judgment.

The case before us began on March 7, 1986, when appellant’s vehicle was struck in the rear by an NACC cab driven by Susan Bisbing. Johnson’s car was damaged and she suffered some personal injury. A few days later, Johnson was contacted by a representative of the cab company to discuss the damage to her car. On March 12, 1986, an NACC representative came to appellant’s home, examined her car, and prepared and gave her an itemized repair estimate totaling $612.71 for her vehicle. On March 31, the Atlanta Metro Taxicab Group issued a check for $612.71 to Johnson. The face of the check stated that it was issued “in payment of loss which occurred about (date of accident) 3-7 1986.” On the back of the check was the statement: “By endorsing this draft the payee accepts the proceeds of same in full payment of all claims arising from the loss or accident mentioned on the face thereof.” Johnson endorsed the check a few days later and retained the proceeds. On December 28, 1987, she filed suit against NACC and Bisbing, seeking compensation for her medical expenses, lost wages, and pain and suffering. NACC defended against the action, alleging that there had been an accord and satisfaction between it and Johnson since she had accepted the check as payment for all of her claims. The trial court granted appellee’s motion for summary judgment, and appellant filed this appeal.

Decided February 14, 1989.

Rubin Law Offices, Robert P. Hoyt, Jason T. Schneider, for appellant.

Parkerson & Shelfer, I. J. Parkerson, for appellees.

“ ‘An accord and satisfaction . . . occurs with “the delivery and acceptance of a check as a stated amount in full and complete settlement of a claim, whether the amount of the claim is established or uncertain . . .” As a general rule, whether there is an accord and satisfaction is a jury question. [Cit.]’ ” Hayes v. McFarlane, 187 Ga. App. 90 (2) (369 SE2d 286) (1988). Appellant’s case is virtually identical to Robinson v. Baker, 141 Ga. App. 43 (232 SE2d 386) (1977). In Robinson, the same language was printed on the face and back of the check as is printed on the check in question here, and the court in Robinson reversed the trial court’s grant of summary judgment to the insurer on the accord and satisfaction issue. We reach the same conclusion here. The NACC representative states in his affidavit that he settled Johnson’s claims growing out of the collision and issued the check in question. However, a question of fact is created by Johnson’s affidavit in which she states that the representative told her that a check would be mailed to her “for her car” and that he never mentioned and they never discussed settlement of her personal injury claim. Johnson’s contention is further supported by the uncontradicted, written and itemized “estimate of repair cost” in the amount of $612.71, the exact amount of the check that NACC tendered and Johnson accepted. That written estimate serves as “some other documentary evidence to show what the check [was] intended to cover.” Hayes, supra. Construing the evidence in the light most favorable to the non-moving party, the trial court should have concluded that “there is at least some evidence that only the property loss was dealt with. It remains for a jury to decide after hearing all the evidence whether the parties intended a settlement of all claims arising from the accident, or only the claim for the property damage loss.” Robinson, supra at 44. See also Creamer v. Smith, 161 Ga. App. 312, 313 (287 SE2d 755) (1982). The trial court erred in granting NACC’s motion for summary judgment.

Judgment reversed.

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


text:
    77588.
    NEWT v. THE STATE.
    (379 SE2d 11)
    Decided February 14, 1989.

      Rick L. Camp, for appellant.

      David L. Lomenick, Jr., District Attorney, James D. Franklin, Assistant District-Attorney, for appellee.
   Benham, Judge.

In this appeal from appellant’s conviction for armed robbery, the only issue presented for appellate review is whether the trial court erred in denying appellant’s plea in bar in which he asserted that the indictment should be dismissed because he was not notified by Tennessee authorities as required by the Interstate Agreement on Detainers (OCGA § 42-6-20) that a detainer had been filed against him in Tennessee by Georgia authorities. Even assuming that a delay in notification by Tennessee authorities would be a basis for dismissal of a Georgia indictment, appellant’s argument fails because the filing on which he relies did not come within the scope of the Agreement.

On February 20, 1986, a warrant was issued accusing appellant of an armed robbery which occurred the preceding day. On December 16, 1986, police officers from Trenton, Georgia, appeared in a court in Tennessee before which appellant had been called, and filed on a computer system in Tennessee information concerning the outstanding warrant against appellant. An indictment against appellant for that armed robbery was returned on October 12, 1987, and a detainer was filed against him on January 5, 1988- Appellant made a timely request for disposition of the charges against him and was returned to Georgia for trial, which resulted in his conviction for armed robbery.

The basis of appellant’s contention that the Interstate Agreement on Detainers was violated is his position that the December 1986 notification by Georgia áuthorities constituted a detainer within the meaning of the Agreement. However, the Supreme Court of Georgia has made it clear that “the statute by its terms relates only to an ‘untried indictment, information or complaint,’ and does not apply to warrants for arrest. . . .” Suggs v. Hopper, 234 Ga. 242, 243 (215 SE2d 246) (1975). Since there was no untried indictment against appellant when the 1986 notification was made, there was no detainer within the meaning of the Agreement, and appellant is entitled to no relief.

Judgment affirmed.

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


text:
    77667.
    EVANS v. THE STATE.
    (378 SE2d 903)
   Carley, Chief Judge.

Appellant was tried before a jury and found guilty of the offenses of driving after having been declared an habitual violator and driving under the influence of alcohol. He appeals from the judgments of conviction and sentences entered on the jury’s verdicts.

1. Appellant enumerates the general grounds as to his conviction for driving under the influence. He urges that the State made no showing that, as the result of his intoxicated state, he was a less safe driver than he otherwise would have been. See Cook v. State, 220 Ga. 463, 465 (2) (139 SE2d 383) (1964).

A review of the record shows that, at the time appellant was stopped by the arresting officer, he was unable to recite the letters of the alphabet and the officer detected a strong odor of alcohol. At trial, appellant admitted that he was drunk at the time that he was stopped. “This evidence was sufficient to submit to the jury to determine whether defendant . . . was less safe than he would have been had he not been affected by alcohol. [Cits.] The record reflects that a rational trier of fact could reasonably have found proof of appellant’s guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); [Cit.]” Howell v. State, 179 Ga. App. 632, 634 (1) (347 SE2d 358) (1986). See also Bass v. State, 185 Ga. App. 666 (1) (365 SE2d 509) (1988); Clark v. State, 178 Ga. App. 47, 48 (3) (341 SE2d 909) (1986); Fredericks v. State, 176 Ga. App. 40, 41 (1) (335 SE2d 154) (1985).

2. Appellant enumerates as error the denials of his numerous motions for mistrial based on alleged prosecutorial misconduct.

In one of the cited instances, appellant objected to a question which had been propounded by the State and the trial court sustained the objection. No motion for a mistrial and no request for curative instructions were made. “If . . . [an] objection to the State’s [question] is sustained, the objection will not authorize defense counsel to assert on appeal that the trial court erred in failing to take any additional, unrequested curative actions. ‘[I]t is well-settled that a sustained objection to [an] improper [question] of counsel cannot serve as the basis for reversal unless it is contemporaneous with a denied motion for mistrial, denied request to strike or denied request for curative instructions . . . [Cits.]’ [Cit.]” (Emphasis in original.) Hall v. State, 180 Ga. App. 881, 883 (3) (350 SE2d 801) (1986). See also Rogers v. State, 185 Ga. App. 211, 213 (4) (363 SE2d 846) (1987).

In two of the cited instances, appellant did make a motion for mistrial which was denied. However, “[s]ince appellant failed to renew his motion[s] for mistrial after the trial court took corrective action, any objection to the denial of [the motions for] mistrial is deemed waived. [Cit.]” Clark v. State, 173 Ga. App. 579, 580 (1) (327 SE2d 549) (1985).

In the remaining cited instance, appellant objected to the admission of certain evidence and in addition, moved for a mistrial. The trial court heard appellant’s motion for a mistrial outside of the presence of the jury. After a colloquy between the trial court and counsel, appellant withdrew his objection to the admission of the evidence and abandoned his motion for mistrial. Accordingly, appellant is now precluded from urging on appeal that the trial court erred in failing to grant his motion for a mistrial. See generally Hudson v. State, 175 Ga. App. 692 (334 SE2d 20) (1985).

3. Over objection, the trial court admitted the results of appellant’s intoximeter examination into evidence. Subsequently, appellant moved to strike all evidence concerning the results of his intoximeter examination. The trial court granted appellant’s motion and instructed the jury to disregard any evidence concerning the results of appellant’s intoximeter examination. Appellant nevertheless enumerates as error the trial court’s original admission of the results of the intoximeter examination into evidence.

Even assuming that the trial court’s initial ruling was erroneous, any error was corrected when the trial court subsequently granted appellant’s motion to strike and instructed the jury to disregard the evidence. Appellant cannot now contend that the granting of his motion to strike was insufficient to cure any prejudicial effect caused by the initial admission of the test results. “ ‘In no case will the trial judge’s ruling be reversed for not going further than requested.’ [Cit.]” (Emphasis in original.) Hall v. State, supra at 883 (3).

4. At the pre-sentencing hearing, the trial court, over objection, admitted into evidence a certified copy of appellant’s driving record from the Department of Public Safety. Appellant enumerates the trial court’s admission of this document as error, urging that it was not properly authenticated and that the State did not notify him prior to trial of its intent to introduce this evidence in aggravation. See OCGA § 17-10-2.

The record reveals that the Department of Public Safety records were properly authenticated and unaltered. As to the notification requirement, the record shows that appellant was given notice a week prior to trial that the State intended to introduce evidence of several of his prior convictions for the offense of driving while under the influence of alcohol. Under these circumstances, the trial court’s admission into evidence of appellant’s driving record was not error. See generally Niehaus v. State, 149 Ga. App. 575, 576 (1) (254 SE2d 895) (1979); Todd v. State, 189 Ga. App. 538 (1) (376 SE2d 917) (1988).

Judgments affirmed.

Deen, P. J., and Sognier, J., concur.

Decided February 14, 1989.

Linda B. Borsky, for appellant.

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


text:
    77804.
    PEABODY v. THE STATE.
    (378 SE2d 712)
   Sognier, Judge.

David “Skip” Peabody appeals from his convictions on one count of burglary and seven counts of forgery in the first degree.

1. Appellant contends the trial court erred by admitting into evidence the statements he made to the police because the State failed to prove appellant knowingly and intelligently waived his right to counsel. At the hearing conducted pursuant to Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964), Detective Quarles of the Whitfield County Sheriffs Department testified that he interviewed appellant on July 16, 1987, on December 9, 1987, and two days thereafter at appellant’s own request. Detective Quarles stated that he ascertained during the first interview that appellant was 34 years old with a two-year college degree. Quarles testified he then read appellant a form setting forth his rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966), including, inter alia, that appellant had the right to talk to a lawyer, to have the lawyer present with him while he was being questioned, and to have one appointed to represent him before any questioning, if he wished and could not afford to hire one. Detective Quarles stated appellant signed the form under the waiver, providing “I have read the above statement of my rights and I understand each of those rights, and having these rights in mind I waive them and willingly make a statement.” Detective Quarles testified that appellant was likewise advised of his Miranda rights on both of the succeeding interviews and that appellant signed a second form waiving his rights at the December 9 interview. Detective Quarles stated that at each interview appellant seemed to understand his rights as they went over them, that appellant did not appear to be under the influence of any alcohol, drugs, or other intoxicants, that no threats or hopes of benefit or reward were made to appellant, and that appellant’s statements were voluntarily made.

Appellant testified that at the time of the July 16 interview, he was under the influence of pain medication prescribed for a work-related back injury which “[sjlowed [him] down” but that he “had a pretty good bit of my wits together, except for the slowness.” While appellant acknowledged he was read his Miranda rights at that time, he stated he understood them to mean that he was entitled to a lawyer only before he went to court, not at the time of the questioning. At the second interview, appellant stated that because the detective did not “just come right out and say, ‘You need a lawyer,’ ” that appellant did not understand he was supposed to have a lawyer with him before he volunteered any information. When asked whether he understood the rights read to him, appellant replied, “[n]ot deep down and heartily like I should’ve.” On cross-examination, appellant acknowledged that he was not “a stranger to the criminal justice system,” having been in court before on other charges in the past and having been read his rights before the subject incidents.

“We are satisfied that appellant’s enumeration of error is without merit, and that appellant did knowingly, intelligently and voluntarily waive his right after being properly advised thereof. Factual and credibility determinations as to voluntariness of a confession, including factual and credibility determinations as to issues of rights waiver, are normally made by the trial judge and must be accepted by appellate courts unless such determinations are clearly erroneous. [Cits.]” Johnson v. State, 186 Ga. App. 801, 803 (368 SE2d 562) (1988).

2. Appellant contends the trial court erred by denying his motion for a new trial because the evidence was insufficient to support his convictions for the burglary of Capitol Adhesives, a business engaged in the manufacture of carpet adhesives, and for seven counts of forgery involving checks stolen from another business, North Georgia Yarn Shippers. Specifically, appellant contends that the testimony of accomplices was not sufficiently corroborated.

As to the burglary count, at trial appellant’s co-defendant, Keith Barclay, testified that when appellant and Randy Thomas visited him at Capitol Adhesives, where Barclay was employed, they had discussed how easy it would be to burglarize the business, that appellant at that time broke into a locked tool box to examine its contents and told Barclay not to worry about the damage since “he was gonna come back and take it,” and that Barclay showed appellant how to enter the business by pulling up the corner of the roll-up dock door. Barclay testified that the business was burglarized the night of his discussion with appellant and that when Barclay asked appellant if he had done it, appellant said yes, and that Barclay should have seen Randy Thomas’ face when appellant wheeled over some cutting torches to cut open a vending machine on the premises.

A review of the evidence at trial reveals testimony by appellant that he and Randy Thomas talked to Barclay at Capitol Adhesives, at which time Barclay told them it would be easy to break into the business, and when appellant inquired how easily, Barclay demonstrated the vulnerability of the dock door. Appellant had stated to Detective Quarles, and testified as well at trial, that he had purchased tools from Randy Thomas around the time of the Capitol Adhesives burglary and that he suspected, but had no proof, that the tools were stolen from that business.

The State also introduced as corroborating evidence the testimony of Charles Kirby, the Capitol Adhesives employee who discovered the burglary, who stated that there was no sign of forcible entry, but that entry could be made through the dock door by squeezing through the edge of it. Kirby also stated that he discovered the vending machine had been cut open by means of a torch and crowbars and that in addition to the money in the vending machine, 290 blank Capitol Adhesives checks had been taken as well as some three to four thousand dollars worth of tools. Detective Quarles testified that when he spoke to appellant on December 9, after he told appellant that someone “had used their trump card on him” (a phrase an informant had heard appellant use), appellant immediately responded that Keith Barclay was lying, even though Detective Quarles had not mentioned Barclay’s name to appellant at that point.

As to the seven counts for forgery involving checks drawn on the account of North Georgia Yarn Shippers (NGYS), Billy McGuire testified that his stepbrother, Randy Thomas, gave him a number of NGYS checks already signed and made out in his (McGuire’s) name. McGuire testified that Thomas, who was staying with appellant, told McGuire that there were “two guys” involved in acquiring the checks, but gave no names. McGuire testified that shortly after he began cashing the checks, he met appellant when he took his truck to appellant for some repair work on a throw-out bearing. McGuire stated he paid appellant $60 in cash for the work and did not offer to pay appellant with an NGYS check because Thomas had told him to keep quiet about the forged check scheme. McGuire testified that during the time he was cashing the forged checks, appellant came over to McGuire’s apartment, told McGuire that he (appellant) was the “middle man” in the scheme, that he was the one who had taken the risks getting the NGYS checks, and demanded a larger cut of the cash. McGuire also testified that appellant stated that he (appellant) had been “doing this for years and I know what I’m doing.” McGuire said Thomas subsequently brought him several more checks, but that these checks were drawn on the account of Capitol Adhesives. McGuire stated that he refused to participate any further in the scheme and that his only other contact with appellant was at a corner market at which time appellant had threatened him for informing on him.

The State’s evidence corroborating McGuire’s testimony consisted primarily of testimony regarding the similarities between the Capitol Adhesives burglary, where 290 checks were stolen, and the burglary at NGYS when the subsequently forged checks were taken. Detective Quarles stated that when questioned, appellant said he met McGuire when he replaced a throw-out bearing in McGuire’s truck and denied having ever seen any checks from NGYS. Although appellant’s fingerprints were not found on the NGYS checks, Quarles asked appellant if there was any reason for his fingerprints being on the checks. Appellant responded by claiming that his fingerprints might be on one check because McGuire, when paying for the truck repair, initially presented appellant with a check similar in appearance to the NGYS check, which appellant held in his hand before returning it, stating he could not cash it and receiving cash instead. When appellant testified, he affirmed the contents of the statement made to Detective Quarles and stated that he knew McGuire and Thomas were the people involved in the scheme because, at some point after appellant repaired McGuire’s truck, Thomas asked appellant if he would like to invest in a “quick cash” scheme, to which appellant testified he said no.

In order to warrant a conviction based upon the testimony of an accomplice, the circumstances must be such as, independently of the testimony of the accomplice, lead to the inference of the defendant’s guilt. Dennis v. State, 201 Ga. 53, 56 (1) (38 SE2d 832) (1946). “It is well settled that ‘ “(w)hile a conviction based entirely upon the testimony of an alleged accomplice, uncorroborated by other competent evidence, will not be allowed to stand, corroboration is peculiarly a matter for the jury, and sufficient corroboration may consist of either direct or circumstantial evidence which connects the defendant with the crime, tends to show his participation therein, and would justify an inference of the guilt of the accused independently of the testimony of the accomplice.” [Cits.]’ [Cit.] Only slight corroborative evidence is required, and it need not be sufficient by itself to support a conviction. [Cit.]” Davis v. State, 178 Ga. App. 760, 762 (2) (344 SE2d 730) (1986). “ ‘(P)resence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred. [Cit.]’ [Cit.]” Howard v. State, 181 Ga. App. 187 (351 SE2d 550) (1986).

Appellant’s testimony that he participated in the conversation about how to burglarize Capitol Adhesives, while slight, was sufficient evidence to corroborate the testimony of the accomplice to that burglary, Barclay. See Raines v. State, 186 Ga. App. 239, 240-241 (2) (366 SE2d 841) (1988). We further hold that the evidence when considered in connection with the testimony of the accomplice was sufficient to enable any rational trier of fact to find appellant guilty of burglary beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Thus the trial court did not err by denying appellant’s motion for a new trial on the burglary charge. See Jones v. State, 181 Ga. App. 651, 653 (1) (353 SE2d 593) (1987).

Likewise, we find the testimony of McGuire as to appellant’s participation in the forgeries to be corroborated. The fact that appellant committed the burglary of Capitol Adhesives, in which checks were stolen, provides evidence of a similar transaction that points to appellant’s association and participation in an unlawful enterprise in which blank checks were stolen from businesses, then forged. “ ‘(S)ufficient corroboration may consist of either direct or circumstantial evidence which connects the defendant with the crime, tends to show his participation therein, and would justify an inference of the guilt of the accused independently of the testimony of the accomplice. [Cits.]’ [Cit.]” Howard, supra at 188. This corroborative evidence, together with the accomplice’s testimony, was sufficient to enable a rational trier of fact to find appellant guilty of forgery beyond a reasonable doubt. Jackson, supra. Therefore, the trial court did not err by denying appellant’s motion for new trial on the forgery counts.

Decided February 14, 1989.

Harlan M. Starr, for appellant.

Jack O. Partain III, District Attorney, for appellee.

Judgment affirmed.

Carley, C. J., and Deen, P. J., concur.


text:
    77826.
    BLAKE v. HOOKER-BARNES, INC.
    (378 SE2d 716)
   Birdsong, Judge.

This case comes to us from the grant of summary judgment to co-defendant Hooker-Barnes, Inc. The judgment represented a finding as a matter of law that the other co-defendant, Kenny Banks, although he was a real estate agent of Hooker-Barnes, was not the agent of Hooker-Barnes, Inc., in connection with the acts sued upon by Patsy Blake, and that such acts were never ratified by Hooker-Barnes.

The record discloses that Hooker-Barnes, Inc., built a house in a Lithonia development and on June 24, 1985, sold it to a Mrs. Robinson. However, less than a month later, on July 19, 1985, Mrs. Robinson sold this house to Kenny Banks. Banks, as it happened, was a Hooker-Barnes real estate agent employed by Hooker-Barnes to sell Hooker-Barnes’ homes in the subdivision.

On a Sunday in June or July 1985, the appellant Patsy Blake drove through this neighborhood and saw this house and a Hooker-Barnes sign in front of it. She went to the model home and met Kenny Banks, and then brought her father to see the house. The house looked new; appellant is unclear in her deposition testimony about the nature of her discussion with Kenny Banks, but she “took him . . . $1,700 down ... to hold the house.” This was done by certified check made out to Kenny Banks. The “terms” were that she could lease the house and, if she liked it, could buy it. In August, her father (on her behalf) entered a lease with Kenny Banks and she allegedly paid Kenny Banks a “refundable” $5,000 deposit on the potential purchase of the house. Every month’s rent was paid and made out directly to Kenneth Banks. A year later she decided not to buy the house and demanded back her $5,000. Upon that failure, she sued both Kenneth Banks and Hooker-Barnes, Inc.

Her sole contention on appeal is that there remains a genuine dispute as to the alleged agency. Held:

1. The appellee’s motion for penalty for frivolous appeal is denied.

2. Apparently the only two occurrences upon which the appellant seeks to establish an agency or imputed agency of Hooker-Barnes, Inc. is the fact that when she first saw the house in June or July 1985, it had a Hooker-Barnes sign in front, and that one time she called Hooker-Barnes regarding a plumbing problem and it was taken care of. It is acknowledged, however, that a Homeowners Warranty serviced by Hooker-Barnes was attached to the house when Mrs. Robinson first bought it.

We find no genuine issue of material fact exists in this case.

The plaintiff has brought to our attention on appeal no fact which even hints that Hooker-Barnes had the slightest knowledge that after one of its houses had been sold, a real estate agent employed by them bought it for himself and then leased it to another. There never was any connection between the plaintiff and Hooker-Barnes except that she saw Hooker-Barnes’ sign in front of the house on an indeterminate date, spoke with Kenny Banks about the house while he was in the Hooker-Barnes “Information Office,” and, at Banks’ suggestion, once called Hooker-Barnes about the plumbing. In fact, Kenny Banks was not the agent of Hooker-Barnes in this matter, and none of these suggested facts makes Kenny Banks the agent of Hooker-Barnes. All the plaintiff’s protestations that she thought he was acting for Hooker-Barnes avail her nothing. If she indeed saw the Hooker-Barnes sign out front when she first saw the house and if she called Hooker-Barnes about the plumbing (under the homeowner’s warranty attached to the house) and “they worked on it,” neither of these things is an affirmance of an agency when the principal does not have the slightest idea it is being looked to as a principal. Such agency principles as ratification and affirmance become operative only when the alleged principal knows he is being looked to as principal or, at the very least, is aware of an act of the so-called agent which might reflect upon himself as principal, or imply that he is so. There is no such evidence in this case. So clear is this theorem that case authority is legion. See 1A EGL, Agency, §§ 57-61.

Decided February 14, 1989.

Nicholas & Weeks, Joe A. Weeks, for appellant.

Troutman, Sanders, Lockerman & Ashmore, Rebecca G. McLe more, for appellee.

As for the plaintiff’s having seen the Hooker-Barnes sign in front of the house immediately before she discussed the house with Kenny Banks in Hooker-Barnes’ information office (which is a fact we assume for her sake as respondent), then assuming this was after Kenny Banks had re-bought, for himself, the house Mrs. Robinson had bought from Hooker-Barnes, nothing appears in the record, or has been brought to our attention, that indicates Hooker-Barnes knew its sign was posted on the property. The fact that reposting the sign, if that is what Kenny Banks did, was easy enough to do in a new neighborhood of homes being sold by Hooker-Barnes, does not impute agency as a matter of law, for then it would be too easy for one to accomplish any fraud, and bind any person thereto, by merely pretending to do a thing on his behalf, when such things are usually done by the person.

It is undisputed that Hooker-Barnes had no connection with these dealings by Kenneth Banks. It is not even made clear that Banks pretended it did. The lease signed by the plaintiff describes the “lessor” as Kenneth Banks and nowhere mentions Hooker-Barnes. If she intended to deal so seriously as to pay all her lease payments and $5,000 to Kenneth Banks in contemplation of buying the house, she herself had a duty of ordinary care to discover either from Kenneth Banks, or from public records, that he was the owner of the house and not acting on behalf of anyone else. Nalley v. Whitaker, 102 Ga. App. 230 (115 SE2d 790).

That the Hooker-Barnes sign was posted in front of the house at (apparently) a time after Hooker-Barnes had already sold it to another, and also after it had been re-sold to a Hooker-Barnes real estate agent individually, does not persuade us to disregard the rules of agency in the particularities of this case. It is the acts of the principal, not the agent, that control here. Even a true agent’s acts will not bind the principal beyond his true authority, unless the principal does something which ratifies or affirms the act, or knows of it and fails to disavow it. See Vandiver v. McFarland, 179 Ga. App. 411, 413 (346 SE2d 854). Hooker-Barnes had nothing to do with the acts of Kenneth Banks, and he cannot make Hooker-Barnes liable merely by posting its sign in his yard. We find no error in the grant of summary judgment below.

Judgment affirmed.

Banke, P. J., and Beasley, J., concur.


author: Deen, Presiding Judge.

text:
    77834.
    BROWN v. STATE BOARD OF EXAMINERS OF PSYCHOLOGISTS.
    (378 SE2d 718)
   Deen, Presiding Judge.

Dr. Everett A. Brown appeals from the grant of summary judgment in favor of the Georgia State Board of Examiners of Psychologists (“Board”) and the dismissal of his complaint for declaratory judgment which sought to invalidate a rule promulgated by the Board.

Appellant, a senior psychologist at Northwest Georgia Regional Hospital in Rome, Georgia, claims that he made a telephone inquiry to a Board secretary in late February of 1985, requesting information and an application to take the psychologists’ licensing examination. He received no response to this request and made a second call in mid-March. He talked to the same secretary and claims that she did not advise him of a new eligibility rule which was scheduled to take effect on March 28, 1985. The prior rule (Rule 510-2-.03 (2)) did not require that the school from which the applicant obtained his doctoral degree be accredited at the time the applicant graduated; it required only that the school be accredited at the time that the applicant sat for the licensing examination. Amended Rule 510-2-.03 (2) required an applicant to receive a doctoral degree from a college that was accredited at the time the degree was conferred. Dr. Brown satisfied the requirements of the prior rule, but not the amended rule. He was a graduate of the Union for Experimenting Colleges and Universities, which was accredited on February 23, 1985, but the accreditation was expressly not made retroactive to Dr. Brown’s graduation date by the accreditation authorities.

The Board admitted that those graduates of the Union for Experimenting Colleges and Universities who submitted applications after their institution was accredited, but prior to the effective date of the rule change, were permitted to sit for the licensing examination, and one of the candidates has since received a license to practice psychology.

In early April of 1985 the Board sent an application to Dr. Brown, along with a copy of the Board rules and regulations as they existed prior to March 28, 1985. Dr. Brown completed his post-doctoral supervised work experience on June 15, 1986, and applied to take the licensing examination on June 30, 1986. In October of 1986 he was notified that his application had been denied at the September 11-12 meeting of the Board. Although he made several requests for a copy of the new rule, he was not provided with a copy until the end of October. In December he asked the Board to reconsider its decision, but on January 27, 1987, it reaffirmed its ruling.

In July of 1987, Dr. Brown filed a declaratory judgment action and amended it in April of 1988 to add a negligence count, alleging that the actions of the Board in failing to make a timely response to his inquiries, and in failing to furnish him with appropriate application forms and instructions until after March 28, 1985, were such wilful and gross negligence as to estop the Board from refusing to accept his application, and he should have been permitted to sit for the examination.

1. Dr. Brown first contends that amended Rule 510-2-.03 (2), as applied to him, is arbitrary and capricious and is a violation of his due process rights.

The State of Georgia, in the exercise of its police power to pro- . tect public health and welfare, may regulate health and related trades and professions. Foster v. Ga. Bd. of Chiropractic Examiners, 257 Ga. 409, 418 (359 SE2d 877) (1987); Wise v. State Bd. for Examination &c. of Architects, 247 Ga. 206, 207 (274 SE2d 544) (1981); Hughes v. State Bd. of Med. Examiners, 162 Ga. 246, 258 (134 SE 42) (1926). An individual does not have a constitutional right to practice a health care profession since such a right is subordinate to the state’s right to regulate such a profession. See Pace v. Smith, 248 Ga. 728 (286 SE2d 18) (1982); Baranan v. State Bd. of Nursing Home Administrators, 143 Ga. App. 605 (239 SE2d 533) (1977).

The Georgia General Assembly created the State Board of Examiners of Psychologists to examine and license individuals for the practice of psychology, OCGA Chapter 43-39. Under OCGA § 43-39-5 (d), the Board is expressly authorized to “adopt such rules and regulations as it may deem necessary for the performance of its duties and [to] provide for examinations and pass upon the qualifications of the applicants for the practice of psychology.” Under OCGA § 43-39-8 (b) (2), one of the requirements of a candidate for a license is that he or she “[h]as received a doctoral degree from a program in psychology . . . from an accredited educational institution recognized by the board as maintaining satisfactory standards.”

The test of the validity of an administrative rule is twofold: whether it is authorized by statute and whether it is reasonable. Ga. Real Estate Comm. v. Accelerated Courses in Real Estate, 234 Ga. 30, 32 (214 SE2d 495) (1975); Eason v. Morrison, 181 Ga. 322 (1) (182 SE 163) (1935); Baranan v. State Bd. of Nursing Home Administrators, supra. In examining the validity of the rule in question, we find that it was authorized by the statute, it was not inconsistent therewith, and it was reasonable. This rule was in effect for some fifteen months before appellant made his application to take the licensing examination. While appellant may have delayed in sending in his application because he relied upon the provisions of the prior rule, we know of no requirement that future applicants be notified of a rule change, and there is no requirement that the state “grandfather” in everyone who does not meet a new rule’s requirements. Appellant has cited us to no authority, nor can we find any, where a rule similar to Georgia’s has been found to be arbitrary or capricious. The fact that Dr. Brown has worked as a psychologist for the state does not give him a vested right to sit for the licensing examination. Indeed, the state may require additional requirements which would prohibit those already licensed from continuing to practice in the regulated field. Hughes v. State Bd. of Med. Examiners, supra.

While the court below found that the Board’s delay in sending Dr. Brown the requisite forms and regulations proximately caused his injury by depriving him of the opportunity to apply while he was eligible, he failed to allege and prove that the Board was under any duty to act with speed and promptness upon receiving an oral request for information, and he made no showing that he informed the Board of his special situation. OCGA § 50-13-4 (a) (1) requires a state agency to mail notice of a rule change “to all persons who have requested in writing that they be placed upon a mailing list which shall be maintained by the agency for advance notice of its rule-making proceedings and who have tendered the actual cost of such mailing as from time to time estimated by the agency.” As noted by the trial court, appellant did not request that he be placed upon such a list. Therefore, appellant’s ignorance of the rule at the time that he applied to take the examination and the Board’s earlier tender of outdated rules do not excuse Dr. Brown from meeting the Board’s educational requirements at the time of his application.

2. The trial court did not err in holding that appellant did not have a constitutional right to a “grandfather clause” exempting him from complying with Rule 510-2-.03 (2). Since he does not enjoy a constitutional right to practice psychology, it stands to reason that he has no corresponding right to be exempt from complying with the licensing rules. An individual takes his license subject to the state’s right (when public good demands) to make further restrictions and requirements, which will be upheld if reasonable even though they prohibit some people from further engaging in a profession under a previously granted license. Hughes v. State Bd. of Med. Examiners, supra.

We find appellant’s reliance upon Cline v. Supreme Court of Ga., 781 F2d 1541 (11th Cir. 1986), to be without merit. Cline involved a challenge to a Georgia Supreme Court rule requiring applicants for the Georgia Bar Examination to graduate from an “approved” law school and further provided for a grandfather clause which allowed those persons who were attending or graduating from a non-approved law school in 1978 an additional period of time in which they could take and pass the bar examination. The issue in that case was whether this rule created an unconstitutional, irrebuttable presumption that graduates of an unapproved law school were incompetent if they did not pass the bar examination within the specified period. The court found the rule to be rationally related to the state’s goal of insuring a competent bar. Cline did not hold, as appellant asserts, that there was a constitutional right to a grandfather clause when a licensing board modifies its eligibility rules.

Decided February 14, 1989.

Rogers, Magruder, Sumner & Brinson, Dudley B. Magruder, Jr., for appellant.

Michael J. Bowers, Attorney General, Mark H. Cohen, Senior Assistant Attorney General, for appellee.

3. The trial court correctly held that appellant was not entitled to sit for the licensing examination because of any negligence by the Board in furnishing Dr. Brown with a copy of the rule change until after it was changed.

The trial court held that the Board had no duty to notify appellant or any other potential applicant of a rule change. The appellant does not allege that he informed the Board of his special situation (that he had graduated from an unaccredited school which was recently accredited and that the accreditation had not been made retroactive to cover his date of graduation), and that a rule change would again make him ineligible, so as to put the Board on notice that it must act promptly. A misleading act by a Board employee would not mandate acceptance of his application. The State is not estopped by the acts of its agents or employees unless the acts were conferred by law, and the law not only authorizes the act to be done but requires its performance. See Johnson v. Caldwell, 148 Ga. App. 617, 619 (251 SE2d 837) (1979); P. C. Gailey Contractors v. Exxon Co., 143 Ga. App. 827, 829 (240 SE2d 208) (1977); Dept. of Public Health v. Perry, 123 Ga. App. 816, 819 (182 SE2d 493) (1971). There is no merit in this enumeration.

Judgment affirmed.

Carley, C. J., and Sognier, J., concur.