author: Andrews, Presiding Judge. Phipps, Judge,

text:
    A02A0033.
    CHASTAIN et al. v. CF GEORGIA NORTH DEKALB, L.P. et al.
    (569 SE2d 914)
   Andrews, Presiding Judge.

T. Z. Chastain and his wife appeal from the trial court’s grant of summary judgment to defendants on his slip and fall claim against North DeKalb Mall and Initial Contract Services, the company that provided janitorial service for the mall’s common areas. Because the trial court correctly concluded that the Chastains were unable to show that the mall had actual or constructive knowledge of the water which caused the fall, we affirm.

In order to prevail on summary judgment, “the moving party must demonstrate that there are no genuine issues of any material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, support judgment as a matter of law.” Hutchins v. J. H. Harvey Co., 240 Ga. App. 582, 584 (524 SE2d 289) (1999). “A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case.” (Emphasis omitted.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

The undisputed facts in this case show that on the morning of the accident, Chastain and his wife went to North DeKalb Mall to walk. While walking through the common area of the mall, Chastain slipped and fell on what Mrs. Chastain described as a two and a half foot line of dribbled water. A passerby described the spill as “water sprinkled around on the marble floor in an area of approximately two feet.”

North DeKalb and ICS submitted evidence of a continuous inspection policy, under which there was always at least one employee patrolling the mall looking for hazards, passing any one spot every 15-30 minutes. But, there was no evidence in the record from an employee who could state specifically that he or she had actually walked the mall during the period of time in question.

The trial court granted summary judgment to the mall, holding that there was no evidence that a reasonable inspection could have discovered the hazard. This appeal followed.

In order to show defendants were negligent, Chastain must present evidence that (1) the mall and ICS had actual or constructive knowledge of the water on the floor, and (2) he was without knowledge of the substance or was hindered from discovering it by the defendants. Robinson v. Kroger Co., 268 Ga. 735, 736 (493 SE2d 403) (1997). The Chastains do not contend that defendants had actual knowledge of the water. Accordingly, they must present some evidence of constructive knowledge on the part of North DeKalb and ICS.

A plaintiff may show constructive knowledge by two methods: (1) proof that an employee of North DeKalb or ICS was in the immediate area of the water and could have easily seen and removed it prior to the slip and fall; or (2) proof that the water had been in the mall for a sufficient length of time that defendants should have discovered and removed it during a reasonable inspection. Alterman Foods v. Ligon, 246 Ga. 620, 622-623 (272 SE2d 327) (1980). Although constructive knowledge may be inferred when there is evidence that the owner lacked a reasonable inspection procedure, Matthews v. The Varsity, 248 Ga. App. 512, 513 (546 SE2d 878) (2001), that is not the case here because there is undisputed evidence that North DeKalb and ICS had a policy of continuous inspection for the common areas of the mall. But, we need not reach the issue of whether defendants’ evidence was sufficient to show that they complied with their inspection procedures on the day in question.

If there is no evidence that the water could have been discovered during a reasonable inspection, then no inference arises that defendants’ failure to discover the defect was the result of any alleged failure to inspect. Hopkins v. Kmart Corp., 232 Ga. App. 515, 518 (502 SE2d 476) (1998). Here, the only evidence on this issue is that of Chastain and his wife as follows:

Q[uestion to Mr. Chastain]: Would the water on the floor have been easily visible to you if you had been looking down?
A: No.
Q: Would the water on the floor have been easily visible to others?
A: I don’t know. If they had been looking for it, they might have seen it. But it was clear water. And the floor is shiny and it wasn’t a puddle. It was just like somebody scattered some water around for two or three feet.
Q: Would it be fair to say that the scatters of water were not easily visible to you or anyone else?
A: I’d say so.
Q[uestion to Mrs. Chastain]: It was not a puddle?
A: It was not a puddle, no, it was not a puddle.
Q: Was there any color to the water?
A: No. It was clear. . . . The only way you could really see it was to kind of get like this and look down (indicating). And then you could see it because of the shiny floor.
Q: So you were there. As you were standing up, you couldn’t see the water?
A: Unh-unh. You had to get down. When I got down and looked to see what had happened to him, I saw the water. And I saw his pants leg was wet.
Q; How far did you have to get down? Did you have to go all the way to the floor or on your knees or what?
A: No, no, you didn’t have to get down on your knees, but you had to go kind of sideways to look down.

Accordingly, “summary judgment was proper because the alleged [hazard] was, by the [Chastains’] own admission, so difficult to detect. Constructive knowledge can only be inferred with proof that the proprietor or its agent could have easily discovered and corrected the alleged hazard.” Lindsey v. Ga. Bldg. Auth., 235 Ga. App. 718, 720 (509 SE2d 749) (1998). See also Rodriquez v. City of Augusta, 222 Ga. App. 383, 384 (474 SE2d 278) (1996) (admission that dangerous substance was not visible precludes finding that City employee could have easily noticed and corrected it).

Evidence that the water was not easily visible is especially important here, given that there was no puddle, only a small area of dribbled water, together with the sheer size of the area encompassed by the mall and the number of customers walking through the mall. See Alterman Foods, supra at 623; Hutchins, supra at 585. Accordingly, as the trial court correctly held, North DeKalb and ICS have successfully demonstrated that the Chastains are unable to show that the water could have been discovered during a reasonable inspection. Therefore, the Chastains have not shown that North DeKalb or ICS had either actual or constructive knowledge of the hazard. The trial court correctly granted summary judgment to North DeKalb Mall and ICS.

Judgment affirmed.

Johnson, P. J., Smith, P. J., and Mikell, J., concur. Blackburn, C. J., Miller and Phipps, JJ, dissent.

Phipps, Judge,

dissenting.

I respectfully dissent.

To establish constructive knowledge, an invitee must present evidence that either: (1) an employee of the owner or occupier “was in the immediate area of the dangerous condition and could have easily seen the substance and removed the hazard,” or (2) the owner/occupier failed to exercise reasonable care in inspecting and keeping the premises in safe condition. Constructive knowledge may also be inferred from evidence that the owner or occupier lacked a reasonable inspection procedure or failed to follow a reasonable inspection procedure at the time of the incident. But if there is no evidence that following such a reasonable inspection and cleaning procedure would have resulted in the discovery and removal of a foreign substance, there logically can be no inference that the defendant had constructive knowledge of its existence. “Conversely, where the evidence raises the inference that the foreign substance was discoverable pursuant to a reasonable inspection, a jury issue arises as to whether the defendant had constructive knowledge of what [a] reasonable inspection would have revealed.”

The majority concludes that summary judgment was proper because “by the Chastains’ own admission, [the water was] so difficult to detect.” As support for this conclusion, the majority quotes Lindsey v. Ga. Bldg. Auth., which cites Rodriquez v: City of Augusta, for the proposition that “[c]onstructive knowledge can only be inferred with proof that the proprietor or its agent could have easily discovered and corrected the alleged hazard.” However, that principle is not applicable here, where there is no evidence that an employee of the defendants was in the immediate vicinity of the dangerous condition. Lindsey is inapposite. It involved not a transient foreign substance, as was the water in this case, but a permanent static condition. The Lindsey plaintiffs claimed and the evidence showed that the defendant’s employees regularly had been in the immediate area of the allegedly dangerous static condition, thus invoking the question of whether one of the defendant’s employees could have “easily discovered” and corrected the alleged hazard. And although Rodriquez concerned a transient foreign substance, that case is also inapposite. There, the plaintiff claimed and the evidence showed that the defendant’s employees had been in the immediate vicinity of the alleged hazard just before the plaintiff fell. Thus, that method of proving constructive notice by showing that an employee of the owner/occupier could have “easily discovered” and corrected the alleged hazard was invoked and dispositive in Rodriquez.

But the issue of whether the owner/occupier could have “easily discovered” and removed the water is not dispositive in this case, where the Chastains do not allege nor does the evidence show that an employee was in the immediate vicinity of the water on the floor. The Chastains did not seek to establish constructive knowledge by alleging that an employee of the owner or occupier was in the immediate area of the dangerous condition and could have “easily discovered” and removed the water. Instead, they sought to establish constructive knowledge by showing that the owner/occupier or agent thereof failed to exercise reasonable care in inspecting the premises and by showing that the defendants failed to follow a reasonable inspection procedure at the time of the incident.

Considering what the Chastains saw and determining that the water was not easily discoverable, the majority reaches the conclusion that there was no evidence that a reasonable inspection would have revealed and removed the water. But the evidence presented by the Chastains regarding the amount of water on the floor was sufficient to call into question whether a reasonable inspection would have discovered it. There was sufficient water on the floor to cause Chastain’s fall, dampen his pants leg, and still span an area of two to three feet. A shine on the floor’s surface may have made the water less visible, but a reasonable inspection would have taken the floor’s shine into account. Although the majority focuses on what was seen by Chastain and his wife, ages 78 and 71, respectively, and how they were able to see it, a reasonable inspection by the owner/occupier or agent thereof may have detected what was not readily noticeable to casual mall shoppers. It is important to remember that the duty to inspect lay not with the Chastains, but with the defendants’ employees or agents, who would be more familiar with the mall’s shiny flooring material and how to detect foreign substances thereon. Further, the record shows that the substance on the floor in this case was simply water, which would have required no special cleaning process.

The Chastains presented evidence, which when viewed in a light to favor them, raised an inference that the water was discoverable pursuant to a reasonable inspection. And although there was evidence presented of a continuous inspection policy whereby mall workers would patrol the mall looking for hazards, as the majority states, there was no evidence in the record from an employee who could state specifically that he or she had actually done so during the period of time in question. Thus, a jury issue arises whether the defendants had constructive knowledge of what a reasonable inspection would have revealed.

Decided July 16, 2002

Reconsideration denied July 30, 2002.

Mitchell & Shapiro, Richard C. Mitchell, for appellants.

Hawkins & Parnell, Matthew F. Barr, Christine A. Sullivan, Thomas R. Mock, Jr., Gorby, Reeves, Peters & Burns, Michael S. Reeves, Christine A. Carson, for appellees.

I am authorized to state that Chief Judge Blackburn and Judge Miller join in this dissent.

       Chastain’s wife also sued for loss of consortium.

       (Punctuation omitted.) Alterman Foods v. Ligon, 246 Ga. 620, 622-623 (272 SE2d 327) (1980); Hardee’s Food Systems v. Green, 232 Ga. App. 864, 866 (2) (502 SE2d 738) (1998).

        Kauffman v. Eastern Food & Gas, 246 Ga. App. 103, 104-105 (2) (539 SE2d 599) (2000).

       See Blake v. Kroger Co., 224 Ga. App. 140, 142 (1) (480 SE2d 199) (1996), disapproved on other grounds, Robinson v. Kroger Co., 268 Ga. 735, 747 (493 SE2d 403) (1997). Further, “Robinson focused on the issue of plaintiff’s knowledge of the foreign substance, not the defendant’s actual or constructive knowledge.” Lovins v. Kroger Co., 236 Ga. App. 585, 587 (1) (b) (ii) (512 SE2d 2) (1999). See also Kroger Co. v. Brooks, 231 Ga. App. 650, 655 (1) (b) (500 SE2d 391) (1998).

        Brooks, supra.

       (Punctuation omitted.)

       235 Ga. App. 718 (509 SE2d 749) (1998).

       222 Ga. App. 383 (474 SE2d 278) (1996).

        Lindsey, supra at 720; Rodriquez, supra at 384.

       See Alterman Foods, supra at 622-623; Rodriquez, supra.

        Lindsey, supra at 720.

       See text accompanying footnotes 2 and 3 of the dissent, supra.

       Compare Hardee’s Food, supra at 867 (2) (b) (grease on floor was invisible and would not have been discovered through a reasonable visual inspection or cleaned through reasonable procedure); Blake, supra at 144 (the evidence failed to show that a grocery store’s supposed failure to inspect and clean caused its failure to discover an alleged wet spot, where the spot was barely visible, if at all, to those who crawled on the floor looking for it and it could not have been speculated that sweeping would have removed the hazard).


source: Caselaw Access Project

author: Phipps, Judge.

license: Public Domain

text:
    A02A0184, A02A0185.
    KILBURN v. YOUNG; and vice versa.
    (569 SE2d 879)
   Phipps, Judge.

Robert Young sued his former business partner, Galen Kilburn, Jr., alleging that Kilburn had breached fiduciary duties, acted in bad faith, been stubbornly litigious, and caused him unnecessary trouble and expense. Young sought compensatory and punitive damages, litigation expenses, and attorney fees. At trial, Kilburn moved for a directed verdict on all claims. The trial court granted the motion as to Young’s claim for punitive damages. The jury returned a verdict in Young’s favor on the remaining claims.

In Case No. A02A0184, Kilburn appeals the judgment entered upon the jury’s verdict, challenging evidentiary rulings, the trial court’s refusal to give an instruction to the jury, and its refusal to grant his motion for a directed verdict in its entirety. In Case No. A02A0185, Young challenges the directed verdict against his claim for punitive damages. We have consolidated their appeals in this opinion, affirming Case No. A02A0184 and reversing Case No. A02A0185.

In January 1991, Kilburn and Young formed Kilburn-Young Asset Management Corporation (KYAMC), a Subchapter S corporation, to contract with the then existing Resolution Trust Corporation (RTC) to manage and dispose of real estate assets. Kilburn’s shareholder interest was over 50 percent, and Young was a minority shareholder. As the majority shareholder, Kilburn had authority to change the board of directors, which could make personnel decisions. Kilburn loaned the company start-up capital, but was not involved in its day-to-day activities. Young was an officer and salaried employee of KYAMC.

During a start-up period of approximately six months, Kilburn permitted KYAMC to occupy, at no charge, office space at Atlanta’s Galleria that was leased to Galen Kilburn & Company, a separate real estate development and commercial leasing company that he owned. In March 1991, Kilburn extended the lease on the Galleria space for five years in a deal which included one year’s free rent for Galen Kilburn & Company.

In June 1991, KYAMC secured a three-year contract with the RTC, and the amount outstanding on Kilburn’s loan was paid by October. With a newly hired staff, KYAMC needed a larger office space. At Young’s request, Kilburn found a new office suite, and KYAMC moved into it in December 1991. Kilburn also relocated Galen Kilburn & Company to a different, but adjoining, suite so that he could “keep an eye on his investment” at KYAMC. Unable to sublet the Galleria space, Kilburn charged KYAMC approximately 75 percent of the shortfall. Kilburn testified that when he mentioned this payment arrangement to Young “somewhat later,” Young agreed to it. Young, on the other hand, claimed that he complained about the charge, but Kilburn ended the conversation with, “Well, that’s just the way it’s going to be.”

In August 1992, Kilburn and Young formed Connecticut Properties, Inc. (CPI), with Kilburn as the majority shareholder, to invest in a real estate opportunity in Connecticut. CPI assigned that opportunity to Groton Acquisition Limited Partnership (GALP), of which CPI was the general partner and Kilburn, Young, and another investor were the limited partners. Because of financial problems and legal disputes, KYAMC and CPI loaned money to GALP. When KYAMC, CPI, Kilburn, and Young later received settlement proceeds from litigation, Kilburn and Young exchanged proposals for allocating the proceeds. Ultimately, Kilburn calculated an amount that Young would receive, stating to him, “[T]his is final. No further negotiation.” Although Young cashed the check disbursed to him, he testified that he did not accept the amount as full settlement. He believed he was entitled to more, claiming that Kilburn’s allocation had not taken into account loans made to GALP by KYAMC and CPI. But he did not want to risk being fired and believed that further complaining would be futile.

Indeed, Kilburn testified that “[Young] wasn’t really entitled to any claim whatsoever.” He stated that Young had asked to be relieved of the matter and that he had taken control and settled the matter. He asserted that “it was up to [him]” as the majority shareholder to decide the allocation, that in an “s corporation,” “all the expenses and all the income and everything flows right to the person,” and that the allocation was fair.

In June 1995, KYAMC’s contract, which had been extended by one year, expired. After KYAMC completed its final obligations to the RTC, it received its final payment.

In March 1997, Kilburn filed a lawsuit, styled KYAMC v. Young, apparently alleging that Young had breached fiduciary duties as an officer. That case was dismissed (hereinafter “Dismissed Action”) because Kilburn, although he was the majority shareholder, had no authority to bring such an action in the name of the corporation. Young incurred expenses in accomplishing the dismissal. Kilburn later filed a shareholder derivative suit on behalf of KYAMC against Young (hereinafter “Derivative Action”), raising essentially the same claims as those asserted in the Dismissed Action.

Young testified that he was “outraged” that Kilburn had sued him in the Dismissed Action. By that time, KYAMC had “essentially closed,” and he no longer felt threatened by Kilburn. He then filed the instant action against Kilbum, alleging that Kilburn, as KYAMC’s majority shareholder, had breached fiduciary duties he owed to him, as a minority shareholder, by, among other things: (1) requiring KYAMC to pay certain of Galen Kilburn & Company’s expenses, including an amount due on the lease on the Galleria space; (2) misallocating proceeds from the CPI settlement; and (3) filing the Dismissed Action without having any authority to do so.

Case No. A02A0184

As an initial matter, we note that Kilburn’s brief fails to comply with this court’s rules. Claims of error are argued collectively, and arguments are intermingled. “Our requirements as to the form of appellate briefs were created not to provide an obstacle, but to aid parties in presenting their arguments in a manner most likely to be fully and efficiently comprehended by this Court; a party will not be granted relief should we err in deciphering a brief which fails to adhere to the required form.”

1. Kilbum challenges the trial court’s rulings on the parties’ motions in limine regarding the admission of evidence of the Dismissed Action and the Derivative Action. “The admission or exclusion of evidence is within the sound discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion.”

(a) Kilburn sought to exclude evidence of the Dismissed Action. But the trial court admitted it because Kilburn’s filing of the Dismissed Action served as one of the factual bases for Young’s claim that Kilbum had breached fiduciary duties. The trial court did not abuse its discretion.

(b) Young initially moved to consolidate the instant action with the Derivative Action for trial. Kilburn objected, asserting that doing so would confuse the jury. The trial court did not consolidate the cases.

Young then sought to exclude evidence of the Derivative Action. At a pretrial hearing, Kilburn’s attorney urged, “If [Young is] allowed to put on the evidence relating to [the Dismissed Action], we need to put on evidence of Mr. Young’s breaches of fiduciary duties and taking moneys from [KYAMC] because the jury needs to be apprised of Mr. Young’s breaches of fiduciary duties in his efforts to recover from Galen Kilburn.” On appeal, Kilburn complains that while Young was permitted to present evidence that he had filed the Dismissed Action, he was prevented from explaining why he was suing Young.

The trial court prohibited evidence of the Derivative Action, determining that the issue of the Derivative Action — whether Young breached any fiduciary duties — was not at issue in Young’s suit against Kilbum. We find no abuse of discretion in excluding the evidence.

2. Kilbum contends that the trial court erred in its rulings concerning a suit filed against him by another minority shareholder, Steven Patrick. Patrick alleged that Kilburn had breached fiduciary duties in his purchase of Patrick’s KYAMC shares of stock.

(a) The trial court did not abuse its discretion in denying Kilburn’s motion in limine to exclude evidence of that lawsuit.

Although evidence of similar acts is generally inadmissible, such evidence may be admitted where the nature of the action renders necessary or proper the investigation of conduct. With regard to allegations of bad faith, it is frequently difficult to establish the defendant’s state of mind. The defendant’s state of mind may be illustrated by other acts of a similar nature that indicate a general practice or course of conduct or display intent, motive, knowledge, or bad faith. Here, [Young] alleged that Kilburn acted in bad faith in breaching a fiduciary duty. Accordingly, Kilbum’s treatment of [another] minority shareholder arguably demonstrated a course of conduct. Under these circumstances, we cannot say that the trial court abused its discretion in admitting the evidence.

(b) It follows that the trial court did not err in denying Kilburn’s request to instruct the jury to disregard Patrick’s testimony concerning the lawsuit.

(c) The trial court did not abuse its discretion in granting Young’s motion to prohibit Kilburn’s attorney from eliciting testimony that Patrick’s complaint named as defendants not only Kilburn, but also Young, KYAMC, and KYAMC’s controller. Kilburn’s attorney argued that the jury ££need[ed] to understand it was not just Mr. Kilburn who was charged with breaching fiduciary duty, Mr. Young was also charged with that.”

Kilburn has not shown how the jury’s lack of this information harmed him. Furthermore, Young proffered evidence that Kilburn had denied Patrick access to corporate records and that to obtain the documents that he needed, Patrick added as defendants the corporate entity, Young, its then officer, and the controller.

3. Kilburn contends that the trial court erred in refusing to grant in its entirety his motion for directed verdict. “A directed verdict is authorized when there is no conflict in the evidence as to any material issue and the evidence and all reasonable deductions therefrom demand a particular verdict.”

(a) Kilburn asserts that Young acquiesced in the decisions regarding the Galleria rental payments and the CPI settlement allocation. Young, however, testified that he objected to both decisions. Thus, a directed verdict was not authorized on this ground as to Young’s claims that were submitted to the jury.

(b) Kilburn argues that Young’s cashing the settlement check amounted to an accord and satisfaction. But because he failed to raise this ground below in his motion for directed verdict, no question is presented for decision on appeal.

Decided July 11, 2002

Reconsiderations denied July 30, 2002

Fellows, Johnson & La Briola, Henry D. Fellows, Jr., Eric A. Kane, Kevin P. Weimer, for appellant.

Long, Aldridge & Norman, Deborah Ebel, David N. Stern, for appellee.

Case No. A02A0185

4. Young cross-appeals the trial court’s directed verdict against his claim for punitive damages. “A breach of fiduciary duties is sufficient to support an award of punitive damages. Wh.eth.er punitive damages should be awarded for a breach of fiduciary duties is ordinarily a question for the jury.” Because there was some evidence that Kilburn breached fiduciary duties, the trial court erred in failing to submit Young’s claim for punitive damages to the jury. Accordingly, we reverse the trial court’s directed verdict on that issue.

Judgment affirmed in Case No. A02A0184. Judgment reversed in Case No. A02A0185.

Andrews, P. J, and Mikell, J., concur.

       The trial court also directed a verdict for Kilburn as to one of Young’s counts alleging breach of fiduciary duties. That ruling is not relevant to this appeal.

       The trial court dismissed the Derivative Action for Kilburn’s failure to make KYAMC a party, but this court reversed on the basis that Kilbum should have been permitted to add KYAMC as an indispensable party. See further Kilburn v. Young, 244 Ga. App. 743 (536 SE2d 769) (2000).

       See Court of Appeals Rule 27 (c) (1).

       (Punctuation and footnote omitted.) Campbell v. Breedlove, 244 Ga. App. 819, 821 (535 SE2d 308) (2000).

       (Punctuation and footnote omitted.) Kroger Co. v. Strickland, 248 Ga. App. 613, 616 (2) (548 SE2d 375) (2001).

       See further Kilburn v. Patrick, 241 Ga. App. 214 (525 SE2d 108) (1999).

       (Punctuation and footnotes omitted.) Kilburn, supra, 241 Ga. App. at 218.

       (Footnote omitted.) Williamson v. Yang, 250 Ga. App. 228, 234 (4) (550 SE2d 456) (2001).

       See Magnus Homes, LLC v. DeRosa, 248 Ga. App. 31, 32-33 (2) (545 SE2d 166) (2001).

       (Citation and punctuation omitted.) Home Ins. Co. v. Wynn, 229 Ga. App. 220, 223 (2) (493 SE2d 622) (1997); see also Marshall v. W. E. Marshall Co., 189 Ga. App. 510, 512 (2) (376 SE2d 393) (1988); Pelletier v. Schultz, 157 Ga. App. 64, 66 (3) (b) (276 SE2d 118) (1981).

        See Home Ins. Co., supra.


author: Smith, Presiding Judge.

text:
    A02A0456, A02A0457.
    JACKSON et al. v. SLUDER; and vice versa.
    (569 SE2d 893)
   Smith, Presiding Judge.

We granted interlocutory review to consider whether a liability insurer’s motion to transfer on the basis of improper venue and the insurer’s supplemental motion for summary judgment on the excess policy were properly denied. The insurer contends that venue must be either in the county where the motor vehicle accident occurred or in the county where the tortfeasor or his employer reside. We find otherwise. But, because the case must be transferred as to two other defendants, we affirm in part and reverse in part.

The underlying litigation arose from a vehicular collision that occurred in Gordon County on Georgia Highway 136. As truck driver Charles M. Jackson was making a left turn while driving a fully loaded tractor-trailer, he pulled into the path of Greggory Glen Sluder, who was riding a motorcycle. Sluder sustained serious injuries, which he testified included the permanent loss of the use of his left arm. At the time of the incident, Jackson was an employee of Adams Motor Express, Inc. (AME), the owner of the truck. Liberty Mutual Insurance Company (Liberty Mutual) was AME’s liability and excess insurer on the date of the accident. No copy of any policy was on file with the Georgia Public Service Commission (PSC) on the date of the collision.

Sluder sued all three defendants, Jackson, AME, and Liberty Mutual, in the State Court of Fulton County. At the time of both the filing and the accident, Jackson was a resident of Oglethorpe County, and AME was a Georgia corporation with its principal place of business and its registered agent in Franklin County. As to Liberty Mutual, Sluder alleged:

Defendant insurer is a Massachusetts insurance company conducting business as an insurance company in the State of Georgia and is subject to the jurisdiction of this Court. The insurer has an agent and place of doing business in Fulton County, Georgia and/or had an agent or place of doing business in Fulton County on or about September 4, 1997, or both. Venue is proper as to the insurer, pursuant to OCGA § 33-4-1.

Sluder amended his complaint twice. After ascertaining the existence of an excess policy of insurance, he sought recovery against Liberty Mutual under the direct action statute, OCGA § 46-7-12, and under a third-party beneficiary theory.

Jackson, AME, and Liberty Mutual (the defendants) filed a motion to transfer. Denying residence in Fulton County for purposes of venue, the defendants moved to transfer the case to the State Court of Franklin County. Pointing out that their responsive pleadings had raised the defense of improper venue, their joint brief asserted: “No defendant resides in Fulton County and, thus, venue is . . . improper here.” Relying upon Southern Drayage v. Williams, 216 Ga. App. 721, 724 (455 SE2d 418) (1995), Liberty Mutual argued that an insurance company sued pursuant to the direct action statute “ ‘cannot be considered a joint tortfeasor for venue purposes because the cause of action against it arises in contract.’ ” The defendants also moved to strike all references to the existence of the excess policy from Sluder’s amended complaint.

In a single order, the trial court addressed several issues including the ones appealed here. The court denied the defendants’ motion to transfer but granted the defendants’ motion to strike and directed that “[a]ny reference to the excess insurance policy is hereby stricken from the Plaintiff’s amended complaint.” The court also denied Liberty Mutual’s supplemental motion for summary judgment. This appeal and cross-appeal challenge those three rulings. The entire case remains pending against all three defendants in Fulton County.

Case No. A02A0456

1. Jackson, AME, and Liberty Mutual contest the denial of their motion to transfer. They assert that the entire case should be transferred to the State Court of Gordon County. Liberty Mutual, in particular, “vehemently object[s]” to splitting the litigation between Fulton County and Gordon County. They contend that because none of the defendants reside in Fulton County and “because . . . the venue of Liberty Mutual cannot serve as the basis for venue over the remaining defendants, venue is improper in Fulton County.”

The direct action statute “establishes an independent cause of action against the carrier’s insurer on behalf of a member of the public injured by the carrier’s negligence.” (Citation and punctuation omitted.) Glenn McClendon Trucking Co. v. Williams, 183 Ga. App. 508-509 (1) (359 SE2d 351) (1987) (full concurrence as to Division 1). That statute provides a special remedy for those injured by motor carriers, allowing them to file a direct action against the motor carrier’s insurance company. See id. But a motor carrier and its insurer are not considered joint tortfeasors or joint obligors. Thomas v. Bobby Stevens Hauling Contractors, 165 Ga. App. 710, 712 (1) (302 SE2d 585) (1983). Proper venue as to one defendant is not necessarily proper venue as to the other. Id. at 714 (2). The joinder provision in the direct action statute permits a plaintiff to join a motor carrier’s insurance company in the same action as a motor carrier. OCGA § 46-7-12 (e). Since the direct action statute is in derogation of common law, its terms require strict compliance. Nat. Indem. Co. v. Tatum, 193 Ga. App. 698, 700 (388 SE2d 896) (1989).

In strictly construing the statutory terms, this court has held repeatedly that in order to maintain a direct action against the insurer under OCGA § 46-7-12 (e) or former § 46-7-58 (e), a plaintiff must prove that — in lieu of bond — an insurance policy was filed with and approved by the PSC. Lockhart v. Southern Gen. Ins. Co., 231 Ga. App. 311, 312 (498 SE2d 161) (1998); Canal Ins. Co. v. Farmer, 222 Ga. App. 539, 540 (474 SE2d 732) (1996); Southern Gen. Ins. Co. v. Waymond, 221 Ga. App. 613, 615 (472 SE2d 325) (1996). Until the direct action statute was amended in 2000, joinder was permitted only when the motor carrier had filed a security bond or an indemnity policy with the PSC.

Two forms used by the PSC are relevant here: Form E, “Uniform Motor Carrier Bodily Injury and Property Damage Liability Certificate of Insurance,” and Form F, “Uniform Motor Carrier Bodily Injury and Property Damage Liability Insurance Endorsement.” Here, the record shows that only a Form E certificate and not a Form F certificate was on file with the PSC at the time of the motor vehicle accident. See McAdams v. U. S. Fire Ins. Co., 234 Ga. App. 324, 325 (506 SE2d 679) (1998). The PSC’s director of certification testified:

The Commission’s practice and procedures has [sic] never required that carriers file with the Commission the actual insurance policies or endorsements. The policy of the Commission for the last several years, including all of 1996, was that only Form E’s were required to be filed. In accordance with the above stated policy, the Form E’s filed by Liberty Mutual Insurance Company on behalf of Adams Motor Express, Inc. were regarded by the agency’s staff as sufficient evidence of compliance with the insurance requirements pursuant to OCGA § 46-7-12.

In 2000, the legislature revised the direct action statute, OCGA § 46-7-12 (e), apparently to change the dubious result by which companies who dutifully filed a Form F certificate or a policy with the PSC were at a disadvantage vis-á-vis those who failed to do so. Ga. L. 2000, p. 1583, § 1. See, e.g., Caudill v. Strickland, 230 Ga. App. 644-645 (1) (498 SE2d 81) (1998) (direct action against insurer foreclosed unless permitted by policy terms or by the filing of a bond or policy of indemnity insurance). To remedy the anomalous statutory scheme, the legislature amended the direct action statute to dispense with the mandatory precondition to suit that the carrier’s insurance policy or certificate of insurance be on file with the PSC. The 2000 amendment expressly provides: “The failure to file any form required by the commission shall not diminish the rights of any person to pursue an action directly against a motor carrier’s insurer.” OCGA § 46-7-12 (c), Ga. L. 2000, p. 1583, § 1. Under the amended statute, the obligation to file the certificate of insurance with the PSC is now imposed upon the insurer instead of the motor carrier. Pursuant to the repealer provision, “[a]ll laws and parts of laws in conflict with this Act are repealed.” Id.

Since the collision at issue occurred on September 4, 1997, and the complaint was filed on February 24, 1999, we must determine whether we are constrained to apply the prior law that contains the “loophole” or instead whether we should apply the law as amended which remedied that problem. See Lockhart, supra, 231 Ga. App. at 313; McAdams, supra, 234 Ga. App. at 326 (direct action precluded by absence of Form F in PSC files). “An amendment may be applied retroactively if the changes do not affect constitutional or substantive rights and if the legislature did not express a contrary intention.” (Citations omitted.) State v. McCabe, 239 Ga. App. 297, 298 (519 SE2d 760) (1999). “The general rule is that procedural laws should be applied retroactively unless the legislature has expressed a contrary intent.” (Footnote omitted.) Mug A Bug Pest Control v. Vester, 270 Ga. 407, 408 (1) (509 SE2d 925) (1999). “[L]aws which affect the remedy only are remedial statutes, which are laws curing defects in the remedy, or confirming rights already existing, or adding to the means of securing and enforcing the same.” (Citations and punctuation omitted.) Glover v. Colbert, 210 Ga. App. 666, 668 (437 SE2d 363) (1993).

Neither a motor carrier nor its insurer has a vested right in a state of the law that leaves an injured party with only a defective remedy. See Glover, supra, 210 Ga. App. at 668. The change at issue is procedural, in that it eliminates a procedural bar that would otherwise foreclose a plaintiff from proceeding directly against a liability insurer when a potential defendant fails to file certain paperwork with the PSC. Id. While the amendment removed a technical impediment, it did not create a new cause of action against Liberty Mutual or expand Liberty Mutual’s contractual obligations.

Absent an expressed contrary intent, statutes governing procedure are to be given retroactive application. See Polito v. Holland, 258 Ga. 54, 55 (2) (365 SE2d 273) (1988). Here, the legislature did not express its intention that the change be given prospective application either by so saying or by plainly stating that the 2000 amendment to OCGA § 46-7-12 applies only to actions filed on or after a certain effective date. See Harris v. Murray, 233 Ga. App. 661, 662 (1) (504 SE2d 736) (1998). Therefore, retroactive application of the 2000 amendment is authorized by Vester, supra, 270 Ga. at 408 (1).

But this determination does not end the analysis. As Sluder concedes, Gordon County is the appropriate venue for his claims against Jackson and AME. The remaining question is not whether joinder of Liberty Mutual in Gordon County would be proper, but whether Sluder may continue the direct action against Liberty Mutual alone in Fulton County. Since the direct action against Liberty Mutual is an independent proceeding on the insurance contract, venue is subject to an independent determination. Thomas, supra, 165 Ga. App. at 714 (2). Under OCGA § 33-4-1 of the state insurance code, an injured plaintiff may bring a claim or demand against an insurer in several possible venues. These include any county where the company has an agent or place of doing business or any county where such agent or place of doing business was located at the time the cause of action accrued or the contract was made, out of which the cause of action arose. OCGA § 33-4-1; see Travelers, Inc. v. Patterman, 272 Ga. 251, 252 (527 SE2d 187) (2000). A proper basis therefore exists for venue in Fulton County as to Liberty Mutual.

Liberty Mutual relies upon the Supreme Court of Georgia’s decision in Andrews v. Yellow Freight System, 262 Ga. 476 (421 SE2d 712) (1992), to contend that allowing Sluder to maintain separate actions against it and the carrier in different counties is contrary to the purpose and intent of the direct action statute. In Andrews, the Supreme Court held that “[t]he plaintiff has no separate claim for damages against the motor carrier’s insurer.” Id. This conclusion is based on the reasoning that “under the Motor Carrier Act, OCGA § 46-7-1 et seq., the insurance carrier is not, in reality, a separate party for purposes of liability, but, rather, is equivalent to a provider of a substitute surety bond, creating automatic liability in favor of a third party who may have a claim for damages for the negligence of the motor common carrier. [Cit.]” Id. From this, Liberty Mutual argues that if it is not a separate party in fact, it may not be the subject of a separate action.

This argument has already been rejected by this court. In Bartja v. Nat. Fire Ins. Co. &c., 218 Ga. App. 815, n. 1 (463 SE2d 358) (1995), we applied Andrews in the context of a disputed venue issue. First, we noted the well-established rule that “a contract action against an insurer of a motor carrier on the policy itself is cognizable as an independent suit without joinder of the motor carrier.” (Citations and punctuation omitted.) Bartja, supra, 218 Ga. App. at 815, n. 1. From this we concluded that, despite Andrews, “where an actionable injury exists at the time suit is filed, the injured party need not pursue a suit against the motor carrier in order to sue the insurer.” Bartja, supra, 218 Ga. App. at 815, n. 1. The statute therefore does not forbid the maintenance of separate actions against the insurer and the carrier. See, e.g., Southern Drayage, supra, 216 Ga. App. at 721-722 (parties agreed that jurisdiction and venue as to insurer would remain in Fulton County); Thomas, supra, 165 Ga. App. at 714 (2) (dismissal for improper venue affirmed as to carrier and driver but reversed as to insurer). If maintaining separate causes of action against the carrier and the insurer is a misuse of the direct action statute, as Liberty Mutual contends, then the appropriate remedy lies with the General Assembly, not with the courts.

2. Liberty Mutual contends that the trial court erred in denying its supplemental motion for summary judgment on the issue of whether the excess policy is subject to suit under the direct action statute. We agree with Liberty Mutual that it is not. Because the direct action statute is in derogation of the common law, the terms of that statute must be strictly construed. See Tatum, supra, 193 Ga. App. at 700. The direct action statute refers only to “a policy of indemnity insurance in some indemnity insurance company authorized to do business in this state, which policy must substantially conform to all the provisions of this article relating to bonds.” OCGA § 46-7-12 (c). The joinder provision explicitly mentions “the motor carrier and its surety” or the insurance carrier “[i]f a policy of indemnity insurance is given in lieu of bond.” OCGA § 46-7-12 (e). Nothing in the statute mentions any other insurance or provides authorization for suit against the excess insurer. “Under the guise of construing a statute, we are not at liberty to rewrite it.” (Citations omitted.) White Cloud Charter v. DeKalb County Bd. of Tax Assessors, 238 Ga. App. 805, 806 (1) (520 SE2d 708) (1999). Moreover, excess insurance coverage is not regarded as “collectible insurance until the limit of liability of the primary policy is exhausted.” (Citation and punctuation omitted.) Ga. Mut. Ins. Co. v. Rollins, Inc., 209 Ga. App. 744, 747 (2) (434 SE2d 581) (1993). Liberty Mutual therefore was entitled to judgment as a matter of law on this issue.

Case No. A02A0457

3. This holding also governs our disposition of Sluder’s cross-appeal. In the cross-appeal, Sluder contends that the trial court erred in granting the defense motion to strike portions of his amended complaint. Sluder claims that because Liberty Mutual is a proper defendant already before the court, he is entitled under OCGA § 9-11-18 to bring his claim under the excess policy in order to avoid piecemeal litigation. Sluder asserts that the court erred in ordering that any references to the excess policy be stricken from his complaint. We do not agree.

Decided July 11, 2002

Reconsideration denied July 30, 2002

Carter & Ansley, Christopher N. Shuman, John L. McKinley, for appellants.

Jeffrey S. Gilbert, for appellee.

Sluder cites no law and we have found none that allows him to sue Liberty Mutual under the excess policy in a direct action proceeding. Consistent with our holding in the main appeal, we find that the trial court did not err in ordering all references to the excess policy be stricken from the complaint.

Judgment affirmed in part and reversed in part in Case No. A02A0456. Judgment affirmed in Case No. A02A0457.

Eldridge and Ellington, JJ, concur.

       Although the defendants initially moved to transfer the case to Franklin County, they now agree that venue is proper in Gordon County.

       Maria Dorough, Director of Certification and Permitting for the Transportation Division of the PSC, testified that on May 15,1996, AME had a Form E filed by Liberty Mutual with the PSC.

       An eight-judge majority in Lockhart, supra, 231 Ga. App. at 313, alluded to the need for statutory revision, noting that “[a]lthough the fact that there is no statutory obligation for the insurer to file proof of the policy may partially subvert the statute’s purpose, it is the role of the legislature - not of this Court - to remedy any such loophole.” (Citation omitted.) Id.

       Despite this concession, the record does not appear to include a transfer order as to Jackson and AME.

       It also refers to self-insurance, “in lieu of a bond or policy of indemnity insurance.” OCGA § 46-7-12 (d).


author: Barnes, Judge.

text:
    A02A0666.
    CITY OF ATLANTA v. MILLER et al.
    (569 SE2d 907)
   Barnes, Judge.

The City of Atlanta appeals the grant of partial summary judgment to Lewis J. Miller, Frank J. Booker, Dennis R. Brown, John J. McNeil, and Atlanta Professional Firefighters Union, Local 134 (collectively “the firefighters”) on their claim against the City for back pay because the City paid them less than it was required to by the City’s ordinances when they served in higher positions. The firefighters claimed that they were routinely required to work in positions of higher job classifications, but were denied the higher compensation that was required under City ordinances.

On appeal, the City contends the trial court erred by failing to address the firefighters’ class action claims, erred by ruling that “the City’s observed interpretation of the governing ordinance with regard to emergency compensation has not been demonstrated to have been promulgated pursuant to ordinance § 114-82,” erred by ruling that the “treatment of a twelve hour shift as one day for the purposes of the emergency compensation ordinance appears to have been adopted as a matter of payroll policy and does not appear in either the code or any standard operating procedure.” The City also alleges that to “the extent that the trial court ruled that thirty (30) consecutive days equals ten (10) consecutive [days] triggering the application of the emergency compensation ordinance, the court erred in its holding.”

1. Construction of an ordinance is a question of law, subject to the canons of statutory construction, and it is the court’s duty to determine and put into effect the intention of the lawmakers. DeKalb County v. Post Apt. Homes, 234 Ga. App. 409, 411 (1) (506 SE2d 899) (1998). “In construing a legislative act, a court must first look to the literal meaning of the act. [Cit.] If the language is plain and does not lead to any absurd or impracticable consequences, the court simply construes it according to its terms and conducts no further inquiry.” Diefenderfer v. Pierce, 260 Ga. 426-427 (396 SE2d 227) (1990). Further, statutes are to be construed in accordance with their real intent and meaning and not so strictly as to defeat their legislative purpose (Johnson v. Housing Auth. of Atlanta, 198 Ga. App. 816-817 (403 SE2d 97) (1991)), and statutory construction “must square with common sense and sound reasoning.” (Punctuation omitted.) Tuten v. City of Brunswick, 262 Ga. 399, 404 (7) (418 SE2d 367) (1992). These rules apply to the interpretation of city ordinances as well as statutes. City of Buchanan v. Pope, 222 Ga. App. 716, 717 (1) (476 SE2d 53) (1996).

2. Applying those rules to this appeal, we find no error. The controlling ordinance at issue is the City of Atlanta’s Civil Service Rules and Regulations, Chapter IV, Section 14:

An employee shall receive no increase in salary or wages upon being required to work in a higher classified position on a temporary, incidental, or emergency basis, for a period of time of 30 work days or less. Upon an employee being required to perform the duties of a higher classified position for a period of time in excess of 30 work days, such employee shall be given an emergency appointment to the higher classified position and shall receive the appropriate salary or wages of the higher classification. However, in no event shall such emergency appointment be made unless the higher classified position is vacant or the incumbent of such position is in a non-pay leave status. At the conclusion of such assignment, the wages or salary of the employee shall revert to that which such employee was receiving prior to the employee performing the duties in the higher classification. . . .

City Code § 114-134.

The problem arises because firefighters do not work the same hours as most other city employees. In the City of Atlanta, firefighters work 24/48 work shifts, i.e., 24 hours on duty followed by 48 hours off duty. The City contends that one 24-hour shift equates to two eight-hour work days and not three. The City requires an employee to work 30 consecutive days in a higher classified position before the higher pay requirement is triggered, and the position must be vacant.

Under the City’s interpretation, a firefighter must work at the higher classified position for 15 consecutive shifts, or 45 days, before becoming eligible for higher pay. The firefighters, however, assert that a 24/48 work shift should equate to three work days, not two, because firefighters working 24-hour shifts work the same number of hours as City employees working three eight-hour days in a normal 40-hour week. City Code § 114-411 provides that “[u]nless otherwise specified, the workweek shall normally consist of eight hours during each of five consecutive 24-hour periods, which may begin on any day of the week and at any hour of the day.” Standard Operating Procedure 91.2 establishes the firefighters’ 12-hour workday.

The trial court held that

treatment of a twelve hour shift as one day for purposes of the emergency compensation ordinance appears to have been adopted as a matter of payroll policy and does not appear in either the code or any standard operating procedure. While other City employees would qualify for higher pay upon working 30, eight hour shifts, the administrative lengthening of a firefighter [’s] shift to twelve hours operates to disadvantage similarly situated firefighters. No rational basis has been proffered by the City for this disparate treatment. As the Court does not find the policy observed by the City to be the most reasonable interpretation of the ordinance, for the foregoing reasons, the Court hereby GRANTS partial summary judgment in favor of Plaintiffs so that a standard 24/48 shift shall constitute three days for purposes of the emergency compensation ordinance.

The record fully supports the interpretation given by the trial court. We find nothing in the record or in the City’s ordinances that justifies treating firefighters differently from other city workers.

The City’s argument for treating firefighters differently consists of merely restating the policy without elucidating a basis for it. Further, we are not satisfied that the City’s interpretation of the emergency compensation ordinance is entitled to great deference under the circumstances of this appeal. Nothing in the emergency compensation ordinance in any way addresses the number of hours an employee must work to constitute a day’s work, and nothing therein suggests that the lawmakers intended that firefighters should be required to work more hours than other City employees before they are entitled to the benefits of the emergency compensation ordinance.

Decided July 12, 2002

Reconsideration denied July 30, 2002.

Susan P. Langford, Tuwanda R. Williams, Chiquita T. Johnson, for appellant.

Parks, Chesin, Walbert & Miller, Harlan S. Miller III, for appellees.

Therefore, we find that the trial court correctly interpreted the emergency compensation ordinance. The City’s various arguments to the contrary are without merit.

3. The City’s allegation regarding class certification is also without merit. Although the complaint contains class action allegations, the firefighters did not move for class certification, and the trial court did not err by not ruling on an issue that was not presented for ruling. The case remains pending below, and the firefighters may move for class certification at some future time.

4. We note that even though the firefighters’ cross-appeal was dismissed by this court for failure to file their brief and enumeration of error as required both by the rules of this court and by our order directing them to file by a specified date, the appellee firefighters’ brief contains arguments and enumerations of error which should have been raised in their cross-appeal. Therefore, these assertions are not properly before us, and we cannot consider them in this appeal. Chester v. Ga. Mut. Ins. Co., 165 Ga. App. 783 (302 SE2d 594) (1983). Nevertheless, we note that the trial court’s interpretation of the emergency compensation ordinance as requiring employees to work consecutive shifts in a vacant higher position is consistent with the ordinance.

Accordingly, the grant of partial summary judgment to the firefighters is affirmed.

Judgment affirmed.

Pope, P. J, and Ruffin, J., concur.

       A vacant position is a “position duly created for which funds have been appropriated and which is unoccupied.” City Code § 114-76, City of Atlanta Civil Service Rules and Regulations, Chapter I, Section 1 (38).


author: Blackburn, Chief Judge.

text:
    A02A0917.
    COUCH v. THE STATE.
    (570 SE2d 57)
   Blackburn, Chief Judge.

Homer Ralph Couch appeals his convictions by a jury of theft of a motor vehicle and theft of a firearm. He argues that: (1) the trial court erred in denying his requests for a continuance; (2) the State failed to establish venue; and (3) the evidence was insufficient to establish ownership of the stolen property. For the reasons set forth below, we affirm.

Couch was indicted for theft by taking a motor vehicle and theft by taking a firearm. He pled not guilty and was appointed counsel on May 18, 1998. At the time counsel was appointed, Couch was incarcerated in Hall County. Upon his release, he made no effort to contact counsel, and counsel did not contact him until approximately three weeks before trial. On the morning of the trial, counsel met Couch in person for the first time. At that time, Couch informed her of a witness who could testify on his behalf. Counsel moved for a continuance on the grounds that she needed more time both to prepare for trial, and also to subpoena a necessary witness. The trial court denied her motion.

1. In two enumerations of error, Couch complains that the trial court erred in denying his request for a continuance. The standard of review of a trial court’s ruling on a motion for continuance is well established.

A motion for continuance is addressed to the sound discretion of the trial court, and this court will not interfere unless it is clearly shown that the court abused its discretion. There is no fixed rule as to the number of days that should, of right, be allowed counsel in a criminal case to prepare the case for trial, but the trial judge, in the exercise of his discretion to grant or refuse a continuance, has to consider the facts and circumstances of each case to determine what the ends of justice require. Broad discretion must be granted trial courts on matters of continuances and only unreasoning and arbitrary insistence upon expeditiousness in the face of justifiable request for delay would violate the right to assistance of counsel.

(Citations and punctuation omitted.) Kennedy v. State, overruled on other grounds, Clay v. State.

(a) Couch first maintains that the trial court erred in failing to grant his motion for continuance because his attorney did not have time to prepare for trial. We find no error.

A motion for a continuance predicated on the basis that counsel has not had sufficient time to prepare for trial addresses itself to the sound discretion of the trial judge, and a ruling denying such a motion will not be interfered with unless the judge has abused his discretion in denying the motion. The conduct of the party is obviously relevant and is a proper consideration for the judge in the exercise of his discretion.

(Citation and punctuation omitted.) Bates v. State. In denying the motion on the ground that counsel had not had time for adequate preparation, the trial court noted that: the trial began on October 4, 1999; Couch was appointed counsel on May 18, 1998; counsel had met with Couch prior to trial; and the case had been continued several times, most recently from the September 3, 1999 calendar. In addition, we note that this was not a complex case and there were few witnesses, who were not widely separated. Under these circumstances, the trial court did not abuse its discretion in denying the motion for continuance. Heard v. State; Williams v. State

(b) Couch also asserts that the trial court erred in denying his motion for a continuance because he was not allowed to procure the attendance of a witness. In the order denying Couch’s motion for new trial, the trial court succinctly stated:

As to the failure to grant a continuance, the record would reflect that the case had been continued from the previous calendar and was set for trial during the subsequent trial week several weeks later. At the time of the request for a continuance, the Defendant failed to show that the claimed witness had been subpoenaed, that he did not reside more than 100 miles from the trial, that his testimony was material as no proffer of the testimony of such witness was made, and there was no showing that the defendant could obtain the witness at the next term of court (OCGA § 17-8-25). Further, there was no showing of due diligence by the defendant to obtain the testimony of the alleged witness (OCGA § 17-8-20).

In light of these findings, which are supported by the record, the trial court did not err in denying the motion for continuance. Edwards v. State; Hornsby v. State.

Decided July 30, 2002.

Lea L. London, for appellant.

N. Stanley Gunter, District Attorney, Gerald W. Bruce, Kerry I. Banister, Assistant District Attorneys, for appellee.

2. Couch next asserts that the State failed to prove venue by showing that the theft of the motor vehicle and handgun took place in White County. Evidence presented at trial by the State, however, established that, while in White County, Couch borrowed a coworker’s truck which had a handgun in the glove compartment. Couch drove away and never returned the truck or the pistol.

Under OCGA § 16-8-11, “the crime shall be considered as having been committed in any county in which the accused exercised control over the property which was the subject of the theft.” Though Couch was arrested several days after the thefts in Lumpkin County, the evidence was more than sufficient both to show that, while in White County, Couch exercised control over the vehicle and the pistol, and also to allow the jury to infer intent to steal the vehicle and firearm in White County. See, e.g., Pruitt v. State.

3. Couch asserts two additional enumerations of error. As these enumerations of error are not supported in the brief by citation of authority or argument, they are deemed abandoned. Smith v. State.

Judgment affirmed.

Johnson, P. J., and Miller, J., concur.

        Kennedy v. State, 217 Ga. App. 18 (1) (456 SE2d 288) (1995).

        Clay v. State, 232 Ga. App. 541, 542-543 (502 SE2d 267) (1998).

        Bates v. State, 202 Ga. App. 460, 461 (1) (414 SE2d 691) (1992).

        Heard v. State, 135 Ga. App. 685, 686 (2) (218 SE2d 866) (1975).

        Williams v. State, 148 Ga. App. 55 (1) (250 SE2d 848) (1978).

        Edwards v. State, 224 Ga. App. 332, 333 (1) (480 SE2d 246) (1997).

        Hornsby v. State, 159 Ga. App. 672, 673 (3) (284 SE2d 630) (1981).

        Pruitt v. State, 245 Ga. App. 801, 803 (2) (538 SE2d 874) (2000).

        Smith v. State, 249 Ga. App. 39, 44 (5) (547 SE2d 598) (2001).


text:
    A02A0950, A02A0951.
    COLLIER v. CAWTHON; and vice versa.
    (570 SE2d 53)
   Blackburn, Chief Judge.

In Case No. A02A0950, appellants/cross-appellees Dr. Millard J. Collier, Jr. and Atlanta West Healthcare, RC. appeal the trial court’s denial of their motion to set aside the default judgment against them. In Case No. A02A0951, appellee/cross-appellant Patricia Cawthon appeals the trial court’s denial of her motion for directed verdict as to her medical costs. We affirm the trial court’s decisions in both cases.

Cawthon filed a complaint against Dr. Collier and Atlanta West Healthcare on October 21, 1998. In her complaint, Cawthon alleged that Dr. Collier violated the applicable medical standard of care by prescribing and administering certain steroid injections to her, thereby causing avascular necrosis in both of her hip joints. Appellants did not answer the complaint, and on January 7,1999, the trial court entered a default judgment against them.

On August 4, 2000, appellants received notice from the trial court of a jury trial on damages in the case. At this point, Dr. Collier contacted his insurance carrier and forwarded the court papers to it. Dr. Collier also retained counsel, and on August 16, 2000, appellants filed a motion to set aside the default. In an affidavit, Dr. Collier testified that he had failed to answer the complaint because he had never been served with it. Appellants also filed a verified answer to the complaint.

Following oral argument from the parties on the motion to set aside the default, the trial court denied the motion and allowed the case to proceed to trial on damages only. The jury awarded Cawthon total damages of $170,000.

Case No. A02A0950

1. In their sole enumeration of error, appellants contend that the trial court erred by denying their motion to set aside the default judgment. We disagree and find no reversible error.

Under OCGA § 9-11-55 (b), a prejudgment default may be opened on one of three grounds if four conditions are met. The three grounds are: (1) providential cause, (2) excusable neglect, and (3) proper case; the four conditions are: (1) showing made under oath, (2) offer to plead instanter, (3) announcement of ready to proceed with trial, and (4) setting up a meritorious defense. The question of whether to open a default on one of the three grounds noted above rests within the discretion of the trial judge.

(Citation and punctuation omitted.) Follmer v. Perry. Accordingly, “[t]he sole function of an appellate court reviewing a trial court’s denial of a motion to open default is to determine whether all the conditions set forth in OCGA § 9-11-55 have been met and, if so, whether the trial court abused its discretion based on the facts peculiar to each case.” (Punctuation omitted.) Id.

In this case, it is clear that appellants satisfied the four conditions set forth in OCGA § 9-11-55. The motion to set aside default was supported by affidavits made under oath by Dr. Collier. Appellants offered to plead instanter, announced ready to proceed with trial, and filed a verified answer setting forth meritorious defenses.

The issue, then, is whether the trial court abused its discretion in concluding that Dr. Collier had failed to make a proper case for opening the default.

The rule permitting opening of default is remedial in nature and should be liberally applied, for default judgment is a drastic sanction that should be invoked only in extreme situations. Whenever possible cases should be decided on their merits for default judgment is not favored in law. Our courts have expressed a policy of liberality toward motions for relief from entry of default and have resolved doubts in favor of the party seeking relief so that the case can be heard on the merits. Generally, a default should be set aside where the defendant acts with reasonable promptness and alleges a meritorious defense.

(Citations omitted.) Ewing v. Johnston. Given this policy of liberality, the trial court would not have erred had it decided to open default in this case. However, “[o]n appeal the test to determine whether the trial court erred in opening default is not whether this court would have granted or denied the motion had it been ruling thereon at the trial level.” (Punctuation omitted.) Ryles v. First Oglethorpe Co. The test, as indicated above, is whether the trial court abused its discretion in denying the motion under the facts of this case.

The trial court had the permanent process server’s entry of service showing that he had served Dr. Collier personally on October 22, 1998. “A return of service entered upon a declaration is of itself evidence of a high order, and can only be set aside upon evidence which is not only clear and convincing, but the strongest of which the nature of the case will admit.” (Punctuation omitted.) Bullard v. C & S Nat. Bank of East Point. Though Collier’s affidavit created an issue as to whether he was personally served, the judge resolved this credibility issue against him. Id. Thus,

[t]he circumstances of this case do not present a situation where the trial court is required either to grant or decline to grant the motion to open default under penalty of case reversal for having made the wrong choice. Rather, there exists some evidence in this case which would support a ruling of the trial judge either to open or to decline to open the default. Whatever ruling the trial court made as to the issue before us, there would have been no abuse of judicial discretion. On appeal an appellant must show harmful error. Under the existing circumstances, the record will not support a finding of abuse of discretion by the trial court.

(Citations and punctuation omitted.) Ryles, supra at 329.

2. Cawthon has filed a motion for an award of damages based on her contention that appellants’ appeal is frivolous. Given our determination that the trial court would not have erred had it decided to open default in this case, that motion must be denied.

Case No. A02A0951

In a cross-appeal, Cawthon argues that the trial court erred in failing to grant her motion for directed verdict as to medical costs related to her avascular necrosis and her bilateral hip replacement surgeries. We do not agree.

“[A] directed verdict is proper only where there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict. Thus, the question is not on whose behalf the evidence preponderates [;] it is whether a verdict is demanded as a matter of law.” (Citations and punctuation omitted.) Stowe v. State. “The standard of review of the trial court’s denial of a motion for directed verdict in a civil case is the ‘any evidence’ standard.” (Punctuation omitted.) CSX Transp. v. Barnett.

At the trial on damages, Cawthon submitted as evidence a medical expense summary chart and testified that all of the expenses detailed in the chart were necessary for her hip replacement surgery. Appellants questioned the validity of the chart and showed that certain charges were not related to the hip replacement surgeries. Appellants also introduced Cawthon’s extensive medical history and suggested that many physician charges and costs of hospitalization may have resulted from these other medical conditions and problems rather than from the hip replacement surgery. Given this conflict in the evidence, the trial court did not err in denying the motion for directed verdict and submitting the issue of damages to the jury. Pope v. Fields.

Judgments affirmed.

Johnson, P. J., and Miller, J., concur.

Decided July 30, 2002.

Alston & Bird, Lori G. Baer, David M. Menichetti, for appellant.

Bird, Ballard & Still, William Q. Bird, Karin A. Middleton, Carla R. Johnson, for appellee.

        Follmer v. Perry, 229 Ga. App. 257, 258 (1) (493 SE2d 631) (1997).

        Ewing v. Johnston, 175 Ga. App. 760, 764 (334 SE2d 703) (1985).

        Ryles v. First Oglethorpe Co., 213 Ga. App. 327, 328 (1) (444 SE2d 578) (1994).

        Bullard v. C & S Nat. Bank of East Point, 167 Ga. App. 47 (306 SE2d 51) (1983).

        Stowe v. State, 272 Ga. 866, 867-868 (536 SE2d 506) (2000).

        CSX Transp. v. Barnett, 199 Ga. App. 611, 613 (2) (405 SE2d 506) (1991).

        Pope v. Fields, 273 Ga. 6, 9 (536 SE2d 740) (2000).


text:
    A02A1062.
    JACKSON v. THE STATE.
    (570 SE2d 40)
   Blackburn, Chief Judge.

Following a jury trial, Samuel L. Jackson appeals his conviction for two counts of enticing a child for indecent purposes and two counts of child molestation, contending that the trial court erred (1) by denying his last-minute motion to assert mental illness as a defense; (2) by failing to hold a Jackson-Denno hearing; (3) by not declaring a mistrial after an investigating police officer commented that Jackson had refused to undergo an interview; (4) in overruling his objection to the State’s reference to prayer in its closing argument; and, he further argues (5) that his trial counsel provided ineffective assistance by failing to object to certain medical evidence. For the reasons set forth below, we affirm.

Viewed in the light most favorable to the verdict, the evidence shows that, in 1992 and 1993, Jackson was operating an ice cream truck. During that time, he molested two minor boys whom he allowed to help him sell ice cream cones. The acts of molestation included anal sodomy in the back of the ice cream truck and showing pornographic films to the minors, among a number of other criminal acts.

On April 30, 1993, Jackson was found guilty on two counts of enticing a child for indecent purposes and two counts of child molestation. On June 1,1993, Jackson’s trial counsel filed a motion for new trial. Sometime thereafter, Jackson’s trial attorney died, and his motion for new trial was not considered until November 29, 2001, after new appellate counsel had been obtained. The record does not contain an explanation for the delay in hearing Jackson’s motion for new trial.

1. Jackson contends that the trial court erred by denying his motion to proceed with a defense of mental illness. Because the motion was untimely, we disagree.

In general, Uniform Superior Court Rule 31.1 requires a defendant to file a notice of his intent to raise the issue of insanity or mental illness at least ten days before trial unless that time period is lengthened or shortened by the trial judge. The purpose of this notice is to give the State the opportunity to obtain independent expert mental health evaluations of the defendant and to prepare rebuttal evidence.

The record shows that Jackson’s original attorney filed a timely motion on his behalf to assert mental illness as a defense. Jackson, however, disagreed with his original attorney, and he did not want to assert mental illness as a defense. Ultimately, Jackson’s original attorney was allowed to withdraw from the case because he and Jackson could not agree on this issue. A new attorney was subsequently appointed for Jackson, and Jackson informed him that he was not interested in pursuing mental illness as a defense. Then, on the morning of the trial after the jurors had been picked, Jackson suddenly changed his mind, and his trial attorney, who admitted that Jackson, himself, had earlier abandoned the defense, attempted to renew the original attorney’s motions. The trial court denied Jackson’s request for a psychiatric evaluation and the ability to assert mental illness as a defense.

This ruling was proper. In effect, Jackson’s motion to assert mental illness as a defense on the day of trial was a new motion, as it is undisputed that the previous motion had been abandoned. And, Jackson, himself, acknowledged that, at that time, there was not enough time to obtain the necessary psychiatric evaluations to assert a psychiatric defense. Accordingly, the motion was untimely pursuant to USCR 31.1.

2. Jackson contends that his trial counsel rendered ineffective assistance by failing to object to the admission of medical reports made by an emergency room physician who examined one of the minors who accused him of molestation. Jackson contends that the State did not timely make this medical report available to him. Jackson, however, has waived this contention for failure to raise the claim of ineffective assistance at the earliest practicable time.

Jackson’s new appellate counsel chose to argue only those grounds raised in his trial attorney’s motion for new trial. He neither filed an amended motion for new trial raising a claim of ineffective assistance nor argued ineffective assistance at the hearing on the motion for new trial.

An ineffectiveness claim must be asserted at the earliest practicable moment and before appeal when the opportunity to raise such claim is available. The failure to do so results in a waiver of that issue. Here, new counsel was appointed in time to file a timely notice of appeal but did so without first filing a motion for new trial or otherwise seeking an evidentiary hearing on any claim of ineffective assistance of trial counsel. As a consequence, this claim is procedurally foreclosed.

(Footnotes omitted.) Grimes v. State.

3. Jackson contends that the trial court erred by failing to hold a Jackson-Denno hearing regarding a certain statement made by Jackson to an investigating officer. The record shows, however, that the State described the statement to Jackson and that Jackson agreed that a Jackson-Denno hearing was unnecessary. This enumeration is patently meritless.

4. Jackson contends that the trial court erred by denying his motion for a mistrial after an investigating officer commented that Jackson had refused a police interview. When the State asked the officer to describe the Miranda rights he conveyed to Jackson, the officer responded: “I advised him just basically that he had the right to remain silent; that anything he said could be used against him in court. We have a form that we use, and that form was not filled out because of his refusal to consent to an interview.” Following this testimony, Jackson made a motion for a mistrial. The trial court denied Jackson’s motion; however, it gave the jury a curative instruction to disregard the offending statement.

Improper reference to a defendant’s silence does not automatically require reversal. Here, the trial court promptly gave curative instructions on the right of the accused to remain silent and unambiguously instructed the jury to disregard the comments and not to draw any adverse inference from the fact that the accused has asserted his right to remain silent.

(Citation and punctuation omitted.) Ledford v. State. In addition, the trial court instructed the jury regarding Jackson’s absolute right to remain silent and informed them that such silence could not be used against Jackson. “The trial court did not manifestly abuse its discretion in giving immediate and clear cautionary instructions to the jury, and we will not disturb its decision denying a motion for mistrial.” Frazier v. State

5. Jackson contends that the trial court erred by overruling his objection to the State’s reference to prayer in its closing argument. Jackson, however, did not request that the closing arguments be transcribed. As such, the transcript contains only the colloquy immediately surrounding Jackson’s objection. The transcript reads:

Decided July 30, 2002.

Aldous D. McCrory, for appellant.

Bryant G. Speed II, District Attorney, Harold W. Goldin, Jr., Fred R. Simpson, Assistant District Attorneys, for appellee.

State:. . . The prayer Monday morning, yesterday morning, I wrote down something in there because I knew I would be trying this case. The preacher said —.
Jackson: Your honor, I’m going to object to anything having to do with prayer in opening court as being improper argument.

The trial court then overruled Jackson’s objection, and there is no record of what the State actually said about prayer in the transcript.

Although the transcript contains [Jackson’s] objections to the closing arguments, the arguments, themselves, were not transcribed. As this Court recently reiterated, where the transcript or record does not fully disclose what transpired at trial, the burden is on the complaining party to have the record completed in the trial court under the provisions of OCGA § 5-6-41 (f). When this is not done, there is nothing for the appellate court to review.

(Punctuation omitted.) Carswell v. State, Because closing arguments were not transcribed, we cannot review this enumeration.

Judgment affirmed.

Johnson, P. J., and Miller, J., concur.

        Grimes v. State, 245 Ga. App. 277, 279 (3) (537 SE2d 720) (2000).

        Ledford v. State, 221 Ga. App. 238, 242 (4) (470 SE2d 796) (1996).

        Frazier v. State, 249 Ga. App. 463, 465 (4) (549 SE2d 133) (2001).

        Carswell v. State, 251 Ga. App. 733, 736 (3) (555 SE2d 124) (2001).


text:
    A02A1270.
    HILDRETH v. THE STATE.
    (570 SE2d 49)
   Blackburn, Chief Judge.

Following a guilty plea to felony interference with government property, felony obstruction and hindering of a law enforcement officer, felony fleeing and attempting to elude a law enforcement officer by driving in a reckless manner, misdemeanor obstruction of a law enforcement officer, and misdemeanor driving under the influence of drugs, Reginald Lee Hildreth a/k/a Muwakkil Hildreth appeals his sentencing as a recidivist pursuant to OCGA § 17-10-7 (c). Hildreth contends that his sentence must be vacated because: (1) trial counsel provided ineffective assistance by failing to try to prevent the State from obtaining a certified copy of an Arkansas felony conviction which would trigger recidivist sentencing under OCGA § 17-10-7 (c); (2) the trial court committed plain error by allowing the State to have a continuance to obtain the certified copy of the Arkansas felony conviction; (3) the trial court erred by failing to notify the defendant on the record that he would be sentenced as a recidivist pursuant to OCGA § 17-10-7 (c) during the sentencing hearing; and (4) the trial court erred by failing to merge the counts of felony interference with government property, felony obstruction and hindering of a law enforcement officer, and felony fleeing and attempting to elude a law enforcement officer. For the reasons set forth below, we affirm.

Viewed in the light most favorable to the verdict, the record shows that, on the evening of December 20, 2000, while under the influence of cocaine, Hildreth led police on a high-speed chase down both secondary streets and the interstate. During the chase and pursuit, Hildreth intentionally rammed into a manned police car driven by Deputy Shaun Browder three times in an attempt to escape. Hildreth was stopped only after police were forced to perform a “pit maneuver” on his car, causing him to crash into a highway median.

On April 25, 2001, the State filed a notice of its intent to introduce evidence of previous convictions in order to trigger recidivist sentencing provisions under OCGA § 17-10-7 and served this notice on Hildreth’s attorney at the time. At a hearing on September 24, 2001, after he had retained new counsel, Hildreth pled guilty to the charges against him. Hildreth’s new trial attorney stated that Hildreth had the opportunity to review everything in his file, which would include the recidivist notice, on multiple occasions prior to the September 24 hearing. Hildreth still chose to plead guilty. Sentencing, however, was not entered at this initial hearing. Instead, the trial court granted Hildreth’s counsel’s request for an eight-day continuance to prepare for the sentencing hearing, which was set to be held on October 2, 2001.

Apparently, the sentencing hearing was not held on October 2, 2001, and the trial court granted the State’s request for a continuance, presumably in order to procure a certified copy of an Arkansas felony conviction which had not yet been obtained. The State intended to use this Arkansas conviction, along with two others, to trigger recidivist sentencing under OCGA § 17-10-7 (c). Hildreth has not provided a transcript of the October 2, 2001 proceedings. There is nothing in the record which conveys to this Court the reason for the State’s continuance request, Hildreth’s response to the request, or the trial court’s reason for granting the request. The record indicates only that the request for a continuance was made and granted, and that the State obtained the certified copy of the Arkansas conviction on October 12, 2001.

Hildreth’s sentencing hearing was held on January 8, 2002. During the proceedings, Hildreth’s counsel asked the court to “keep in mind” that the State had not obtained the certified copy of the Arkansas conviction either at the time of the initial hearing on September 24, 2001, or at the time that the State requested a continuance on October 2, 2001. Hildreth’s counsel argued that, if sentencing had occurred on these dates, Hildreth could not have been sentenced as a recidivist because the State had not yet obtained a certified copy of the Arkansas conviction.

After sentence had been imposed at the end of the sentencing hearing, Hildreth testified on his own behalf and complained that his attorney had improperly allowed the State to “go on 30 more days on a continuance when they didn’t have the information at that time.” Hildreth also complained that he had not been told that he was going to be sentenced as a recidivist until that morning.

Following Hildreth’s complaints, the trial court allowed Hildreth the opportunity to withdraw his guilty plea. After considering the option overnight, Hildreth decided not to withdraw.

1. Hildreth contends that his trial counsel was ineffective for both (1) requesting an eight-day continuance to gather mitigating information for sentencing purposes and (2) failing to object to the State’s request for a continuance to receive a certified copy of the Arkansas conviction. In essence, Hildreth argues that his trial counsel was ineffective for not trying to prevent the State from having any extra time to obtain the certified copy of the Arkansas felony conviction. In making this argument, Hildreth contends that the State was not diligent in obtaining the certified copy, that his trial counsel knew that the State was not diligent, and that his trial counsel failed to act on this information. These claims, however, are made without any support from the record.

Hildreth has failed to provide this Court with a transcript of the proceedings in which these requests for a continuance occurred, and, as the record now stands, there is nothing which allows us to determine the efficacy of his claims. Although Hildreth argues that his trial counsel knew at the time that he requested a continuance on September 24, 2001, that the State had not yet obtained a certified copy of the Arkansas conviction, there is nothing of record to support this fact. In addition, although Hildreth complains that his trial counsel should have objected to the State’s request for a continuance on October 2, 2001, there is no record of this failure to object. Moreover, with no record of the State’s reason for requesting the continuance or the trial court’s reason for granting that continuance, there is nothing for this Court to review. See, e.g., Smith v. State.

In addition, even if Hildreth’s counsel had consented to the continuance requested by the State, granting or denying that continuance remained within the discretion of the trial court, not Hildreth’s attorney. Hildreth has provided this Court with no basis to presume that the trial court would have denied the State’s request for a continuance absent his trial counsel’s consent.

2. In a related enumeration, Hildreth contends that the trial court committed plain error by granting the State’s request for a continuance to obtain a certified copy of the Arkansas felony conviction. Again, there is no transcript of the State’s request for a continuance, and, as such, there is nothing in the record regarding the nature of this request or the parameters of the trial court’s grant of this request. Hildreth presents nothing for our review. Smith, supra.

3. Hildreth contends that the trial court erred by failing to notify him on the record that he was going to be sentenced pursuant to OCGA § 17-10-7 (c), and, as such, he would not be eligible for parole.

But eligibility or ineligibility for parole is not a consequence of a plea of guilty, but rather is a matter of legislative grace or a consequence of the withholding of legislative grace. Thus, the requirement of OCGA § 17-10-7 (c), that [Hildreth] serve the maximum time provided in the sentence of the judge for this conviction, would have only a collateral effect on [Hildreth’s] sentence ... , in no way lengthening the sentence itself, but merely conditioning satisfaction of that sentence upon [Hildreth’s] incarceration ... as designated in that sentence. There is no constitutional requirement that a defendant be advised of such collateral consequences for his decision to reject or accept a plea bargain to be valid.

(Citations omitted.) Mann v. State.

4. Finally, Hildreth argues that the trial court should have merged his convictions for felony interference with government property, felony obstruction and hindering of a law enforcement officer, and felony fleeing and attempting to elude a law enforcement officer, arguing that these crimes merged as a matter of fact. Hildreth obtusely contends that he is inappropriately being punished multiple times for the same conduct of ramming into a police car.

“Offenses merge as a matter of fact pursuant to OCGA § 16-1-6 (1) if one of them is established by proof of the same or less than all the facts required to prove the other.” (Punctuation omitted.) Head v. State

[T]he lesser offense may be an included offense in a particular case if the facts alleged in the indictment and the evidence presented at trial to establish the charged offense are sufficient to establish the lesser offense as well. Thus, whether a lesser offense is included in a greater offense as a matter of fact must be determined on a case-by-case basis, depending upon the facts alleged in the indictment and the evidence presented at trial.

(Citations, punctuation and emphasis omitted.) Strickland v. State.

We must first review the charges alleged in the indictment. Count 1 of the indictment states that Hildreth “did . . . destroy, damage and deface government property, to wit: a Rockdale County Sheriffs Department patrol car ... by ramming the patrol car with his vehicle.” Count 2 of the indictment provides that Hildreth “did . . . knowingly and willfully obstruct, resist, and oppose Rockdale County Sheriffs Deputy Shaun Browder, a law enforcement officer in the lawful discharge of his official duties, by offering and doing violence to the person of said officer, to wit: by hitting Deputy Browder’s patrol car three (3) times with his vehicle.” Count 5 of the indictment states that Hildreth

did . . . willfully fail and refuse to bring his vehicle to a stop, and did otherwise flee and attempt to elude a pursuing police officer in traffic conditions placing the general public at risk of receiving serious injuries, after having been given a visual and audible signal by a police officer, Georgia State Patrol trooper Doug Wilson, who was in uniform prominently displaying his badge of office and was in a vehicle appropriately marked showing it to be an official police vehicle.

Decided July 30, 2002

Philip L. Ruppert, for appellant.

Richard R. Read, District Attorney, Kirk M. Thomas, Roberta A. Earnhardt, Assistant District Attorneys, for appellee.

There is no question that Count 5 of the indictment does not merge with the other crimes. The crime designated therein differs completely from the crimes alleged in Counts 1 and 2 and involves a wholly separate set of facts. Counts 1 and 2 also do not merge in this case as a matter of fact. In this case, interference with government property was proved with a different set of facts from those used to prove obstruction and hindering of a law enforcement officer. The facts show that Hildreth struck a manned police car three separate times. Each strike could be considered a separate offense and, depending on the nature of that strike, could constitute either interference with government property or obstruction. As the evidence showed that Hildreth rammed Deputy Browder’s car on three separate occasions, we cannot say that the facts necessary to prove interference with government property were exactly the same facts necessary to prove obstruction in this case. Accordingly, these counts did not merge as a matter of fact.

Judgment affirmed.

Johnson, P. J., and Miller, J., concur.

       OCGA § 17-10-7 (c) provides:
      Except as otherwise provided in subsection (b) of this Code section, any person who, after having been convicted under the laws of this state for three felonies or having been convicted under the laws of any other state or of the United States of three crimes which if committed within this state would be felonies, commits a felony within this state other than a capital felony must, upon conviction for such fourth offense or for subsequent offenses, serve the maximum time provided in the sentence of the judge based upon such conviction and shall not be eligible for parole until the maximum sentence has been served.

        Smith v. State, 230 Ga. App. 151 (495 SE2d 624) (1998).

        Mann v. State, 240 Ga. App. 809, 810 (1) (b) (524 SE2d 763) (1999).

        Head v. State, 202 Ga. App. 209, 210 (2) (413 SE2d 533) (1991).

        Strickland v. State, 223 Ga. App. 772, 774 (1) (a) (479 SE2d 125) (1996).


text:
    A02A1417.
    TOWNSEND v. THE STATE.
    (570 SE2d 47)
   Blackburn, Chief Judge.

Jimmy Delane Townsend appeals his conviction by a jury of aggravated assault and aggravated battery. In his sole enumeration of error, he contends that the evidence was insufficient to support his conviction. For the reasons set forth below, we affirm the conviction for aggravated battery but vacate the conviction for aggravated assault.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Townsend] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Ryals v. State.

Viewed in this light, the record shows that on February 2, 2000, Kathy Lock and her fiancé, Jason Dixon, went to the home of her mother, Mildred Townsend. Living with Mrs. Townsend was her son, appellant Jimmy Townsend, who had sustained multiple serious injuries in an automobile accident the year before.

As Mrs. Townsend, Lock, and Dixon sat talking in the living room, Jimmy Townsend entered the room. Jimmy stopped in front of his mother and began waving his arms and cursing. Fearing that Jimmy was going to strike his mother, Dixon rose from his chair and told Jimmy to leave his mother alone. When Jimmy stepped up to Dixon, Dixon pushed him away. Jimmy left the room but returned quickly with his hand balled up and held back as if he were about to swing at Dixon. Dixon brought his hand up to protect himself from the anticipated punch, but Jimmy instead cut him in the side with a knife. Dixon fell to the floor, then got to his feet in an attempt to leave, but again fell. Lock tried to reach the phone so that she could call 911, but gave up the attempt when Jimmy threatened her and started toward her with the knife. Mrs. Townsend got in front of Jimmy, and Lock pushed Dixon onto the front porch. From there, Lock helped Dixon reach his father’s house, which was down the road. Dixon was taken to the hospital, where 100 stitches were required to close his wounds. The stab wounds left scars on Dixon’s side.

The next morning, Lock called her mother. Jimmy answered the phone and, before giving his mother the phone, told Lock that he had taught Dixon a valuable lesson and that he would “kill both of /all.” That same morning, Jimmy turned himself in to the police.

“A person commits the offense of aggravated assault when he or she assaults [w]ith a deadly weapon.” OCGA § 16-5-21 (a) (2). Count 1 of the indictment charged Townsend with aggravated assault in that he made “an assault upon the person of Jason Dixon, with knife, a deadly weapon, by cutting him.” We find that the State properly charged Townsend with aggravated assault, and that the evidence was more than sufficient to authorize a jury to find Townsend guilty of that crime under the standard set forth in Jackson v. Virginia.

“A person commits the offense of aggravated battery when he or she maliciously causes bodily harm to another ... by seriously disfiguring his or her body or a member thereof.” OCGA § 16-5-24 (a). Count 2 of the indictment charged Townsend with aggravated battery in that he “did maliciously cause bodily harm to the person of Jason Dixon, by seriously disfiguring his body, to wit: by causing scars to his torso, by cutting him with a knife.” We also find that the State properly charged Townsend with aggravated battery and that the evidence was more than sufficient to authorize a jury to find Townsend guilty of aggravated battery under the standard set forth in Jackson v. Virginia.

Though Townsend could be charged with both aggravated assault and aggravated battery, in this case he could not be convicted and sentenced for both. OCGA § 16-1-7 (a) (1) provides: ‘When 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 [o]ne crime is included in the other.” In this case, the aggravated assault count of the indictment alleged that Townsend had assaulted Dixon and cut him with a knife. The aggravated battery count alleged that he had caused bodily harm to Dixon “by seriously disfiguring his body . . . by causing scars to his torso, by cutting him with a knife.” These counts are based on the same conduct and make it clear that the aggravated assault would be included in the aggravated battery. Knight v. State. “The facts adduced to support the aggravated assault charge, as it was set forth in the indictment, were the same facts used to support the aggravated battery charge, as it was set forth in the indictment, with the additional element being” the serious disfigurement of Dixon’s body. Mills v. State “Since appellant could not have been convicted for both crimes, the conviction for the included offense, the assault, must be vacated.” Id.

Townsend did not raise in his appeal the issue of multiple convictions for the same conduct. However, this Court has “followed the general rule that in exceptional circumstances, especially in criminal cases, appellate courts may, on their own motion, notice errors to which no exception has been taken, if the errors are obvious, or if they otherwise seriously affect the fairness, integrity or public reputation of judicial proceedings.” Kearney v. State. This is especially true where the error results in an increase in the sentence imposed. We find this to be one of the cases in which this rule was intended to apply. The error is obvious. More importantly, since the Georgia Code specifically prohibits multiple convictions for the same conduct, “[i]t would seriously affect the fairness and integrity of the judicial system to allow an illegal and unauthorized sentence to stand.” Taylor v. State.

Decided July 30, 2002.

Michael A. Corbin, for appellant.

Kermit N. McManus, District Attorney, Forest L. Miles, Assistant District Attorney, for appellee.

Judgment affirmed in part and vacated in part.

Johnson, P. J., and Miller, J., concur.

        Ryals v. State, 238 Ga. App. 578 (519 SE2d 505) (1999).

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        Knight v. State, 190 Ga. App. 87 (2) (378 SE2d 373) (1989).

        Mills v. State, 187 Ga. App. 79, 81 (4) (369 SE2d 283) (1988).

        Kearney v. State, 184 Ga. App. 64, 66 (360 SE2d 633) (1987).

        Taylor v. State, 186 Ga. App. 113, 115 (3) (366 SE2d 422) (1988).