text:
    A95A1732.
    WRIGHT v. THE STATE.
    (464 SE2d 216)
   Pope, Presiding Judge.

Defendant was convicted in Warren County of armed robbery, aggravated battery, and possession of a firearm during the commission of a crime. On appeal, he argues that his trial counsel was ineffective and that venue for the armed robbery count was not proper in Warren County. Although we affirm the trial court’s rejection of defendant’s ineffective assistance claim, we agree with defendant that his armed robbery conviction must be reversed because the armed robbery occurred in McDuffie rather than Warren County.

The victim, an acquaintance of defendant, testified that at defendant’s request, he (the victim) drove defendant to a house in Mc-Duffie County to get some money. But when they reached the house and got out of the car, defendant pulled a gun, shot the victim, and took his cash — about $30 to $45. Defendant and the victim then got back in the car, and defendant drove to a wooded location in Warren County. There he shot the victim a second time and left him in the woods, covered with shrubs. After a while, the victim was able to crawl toward a nearby road, where he was found. The victim survived but is paralyzed from the chest down.

1. Defendant asserts that trial counsel was ineffective because he failed to file pre-trial discovery motions, failed to demand a speedy trial, failed to attack the State’s lack of medical evidence about the condition of the victim, and failed to interview and secure the presence of defense witnesses. But evidence at the hearing on the motion for new trial showed that one pre-trial discovery motion was made and satisfied, and that others were unnecessary due to the State’s “open file” policy; that the failure to demand a speedy trial and the failure to attack the lack of medical evidence were strategic decisions based on reasonable grounds, and made by defendant and his counsel together; and that counsel did interview defendant’s witnesses but did not subpoena them because they were not saying what defendant projected they would say. Accordingly, the trial court did not err in denying defendant’s motion for new trial on ineffective assistance grounds. See, e.g., Williams v. State, 202 Ga. App. 494 (1) (414 SE2d 716) (1992) (trial court’s finding that defendant has been afforded effective assistance will be upheld unless it is clearly erroneous).

2. Defendant also contends that Warren County was not the proper venue for trial of the armed robbery count. “[A]ll criminal cases shall be tried in the county where the crime was committed.” Ga. Const. 1983, Art. VI, Sec. II, Par. VI. See also OCGA § 17-2-2 (a). When no challenge to venue is raised at trial (as in this case) and there is no evidence that venue is improper, slight evidence is sufficient to prove venue. See Minter v. State, 258 Ga. 629 (1) (373 SE2d 359) (1988). Nonetheless, venue in a criminal case is a jurisdictional fact which must be proved. Newsom v. State, 183 Ga. App. 339 (1) (359 SE2d 11) (1987); Trogdon v. State, 176 Ga. App. 246 (1) (335 SE2d 481) (1985). “Where venue is not established by the [S]tate, any ensuing judgment is void, although reversal of a conviction on this basis does not prevent retrial in a court where venue is proper and proven. [Cits.]” Id. at 247.

The victim in this case, who was also the only witness to the crime, testified that the armed robbery occurred in McDuffie County. The State argues (and the trial court held) that the victim was unfamiliar with the area and that a Georgia Bureau of Investigation agent testified that “this” took place in Warren County. The victim’s testimony that the armed robbery occurred in McDuffie County was unequivocal, however, and the only evidence of the victim’s supposed unfamiliarity with the area was his inability to identify a nearby building as a country club. Furthermore, a review of the GBI agent’s testimony shows that he did not even mention the armed robbery, and that his statement that “this” happened in Warren County can make sense only if “this” refers to the second shooting. Indeed, it is difficult to imagine how an investigator, who has no personal or independent knowledge of the crime, could conclude that the armed robbery occurred in one county when there is absolutely no physical evidence indicating where it occurred and the only witness to the crime states positively that it occurred in another county.

Decided November 1, 1995

Reconsideration denied November 20, 1995

M. V. Booker, for appellant.

Dennis C. Sanders, District Attorney, M. Eric Eberhardt, Assistant District Attorney, for appellee.

Thus, Warren County was not a proper venue for the armed robbery count, and defendant’s conviction on that count is void. The State calls our attention to OCGA § 17-2-2 (e), which provides that if a crime is committed “upon any . . . vehicle . . . traveling within this state and it cannot readily be determined in which county the crime was committed, the crime shall be considered as having been committed in any county in which the crime could have been committed through which the . . . vehicle . . . has traveled.” This section is inapplicable, however, since even if we assume, despite the victim’s testimony, that “it cannot be readily determined” that the crime was committed in McDuffie County, the victim also testified that the armed robbery occurred after he and defendant emerged from the car.

Judgment affirmed in part and reversed in part.

Beasley, C. J., concurs. Ruffin, J., concurs in judgment only.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A95A1081.
    DAVIS v. DUBLIN CITY BOARD OF EDUCATION et al.
    (464 SE2d 251)
   McMurray, Presiding Judge.

Plaintiff Cassandra A. Davis, guardian of the minor Michael Davis, Jr., brought this tort action against defendants Dublin City Board of Education (the “Board of Education”) and Shellie Stroman, Jr., the principal of Hillcrest Elementary School (the “School”) which is operated by the Board of Education. According to the complaint, on March 15, 1993, plaintiff’s seven-year-old son tripped over a rug that was negligently placed at the entrance to the School, “fell through a cracked glass door and was seriously injured.” By amendment, plaintiff further alleged that the cracked glass door at the entrance to the School “constituted a wilful and reckless disregard for the safety of underaged persons such as Michael Davis, Jr. [and further that the] cracked glass door . . . constituted a nuisance of which Defendants were aware and failed to repair.” Defendants denied the material allegations and jointly moved for summary judgment on the basis of sovereign immunity. In so doing, defendants “concede[d] that a policy of liability insurance is in effect which provides coverage for the incident complained of, but den[ied] that their immunity is waived as a consequence.” The trial court granted defendants’ motion, and this appeal followed. Held:

In five related enumerations of error, plaintiff contends the grant of summary judgment is erroneous either because no immunity applies or else because any colorable claim of immunity has been waived. We do not agree.

1. “School districts are political subdivisions of this State. Jennings v. New Bronwood School District, 156 Ga. 15[ (2), 16 (2) (a)] (118 SE 560); Seaboard Airline Ry. Co. v. Wright, 165 Ga. 367[, 371] (140 SE 863); Campbell v. Red Bud Consolidated School District, 186 Ga. 541 [, 548 (6)] (198 SE 225).” Cotton States Mut. Ins. Co. v. Keefe, 215 Ga. 830, 834 (1) (113 SE2d 774). The 1991 constitutional amendment “extending sovereign immunity ‘to the state and all of its departments and agencies’ includes . . . school [boards],” such as the City of Dublin Board of Education in the case sub judice. Coffee County School Dist. v. Snipes, 216 Ga. App. 293, 294 (454 SE2d 149). See also Sheley v. Bd. of Public Ed. for the City of Savannah &c., 132 Ga. App. 314, 316 (2) (208 SE2d 126). In the case sub judice, the essence of plaintiff’s complaint is that defendant Stroman, acting as principal, failed to exercise sound judgment in allowing what plaintiff alleges to be a hazardous condition to exist. With respect to the provision and maintenance of school buildings and facilities, “the act or failure to act is not ministerial in nature, but is, rather, discretionary.” Hennessy v. Webb, 245 Ga. 329, 332 (264 SE2d 878). It follows that the Board of Education is entitled to claim sovereign immunity and the principal is entitled to official immunity from personal liability for injuries sustained as a result of the negligent performance of discretionary official acts. See Bitterman v. Atkins, 217 Ga. App. 652, 654 (458 SE2d 688) (physical precedent only). Accord Gilbert v. Richardson, 264 Ga. 744, 752 (6) (452 SE2d 476). The first and third enumerations are without merit.

2. Plaintiff’s amendment to the complaint alleging that such failure to repair “constituted wilful and reckless disregard for the safety of underaged persons” is unsupported by any evidence of that intent to inflict injury which distinguishes mere negligence from such “wilful or wanton conduct [as] will remove the shield of sovereign [and official] immunity.” Truelove v. Wilson, 159 Ga. App. 906, 907 (4), 908 (285 SE2d 556). The second enumeration lacks merit.

3. Nevertheless, plaintiff contends in her fourth enumeration that any claim of immunity has been waived by the existence of a liability insurance policy covering the incident at issue. This contention is without merit.

Decided November 20, 1995

Edwards & Youmas, Lonzy F. Edwards, for appellant.

Barrow, Sims, Morrow & Lee, Jordon D. Morrow, for appellees.

The above-mentioned amendment to the 1983 Georgia Constitution, Art. I, Sec. II, Par. IX, “extended sovereign immunity to all state departments and agencies, regardless of the existence of liability insurance. Donaldson v. Dept. of Transp., 262 Ga. 49, 50 (414 SE2d 638) (1992).” Canfield v. Cook County, 213 Ga. App. 625 (445 SE2d 375). “The General Assembly may waive the immunity of counties, municipalities, and school districts by law.” 1983 Ga. Const., Art. IX, Sec. II, Par. IX. “In the exercise of its constitutional authority to waive the defense of sovereign immunity, the General Assembly has enacted the Georgia Tort Claims Act (GTCA). OCGA § 50-21-20 et seq. However, the waiver of sovereign immunity afforded by that statute does not extend to . . . count[ies, municipalities, school districts, or other units of local government]. OCGA § 50-21-22 (5).” Woodard v. Laurens County, 265 Ga. 404, 405 (1) (456 SE2d 581). Moreover, “the provisions of OCGA § 20-2-991 concerning the purchase of liability insurance covering the school district do not provide for a waiver of sovereign immunity as contemplated by the 1991 amendment.” Coffee County School Dist. v. Snipes, 216 Ga. App. 293, 295, supra. “Since [in the case sub judice] there is no legislative act specifically providing that the sovereign immunity of the [Board of Education] is waived and the extent of such waiver, the [City of Dublin Board of Education was] entitled to summary judgment on the basis of sovereign immunity.” Coffee County School Dist. v. Snipes, 216 Ga. App. 293, 296, supra. It follows that there was no waiver of official immunity for defendant Shellie Stroman, the principal of Hillcrest Elementary School, by the mere existence of this liability insurance policy.

4. Since each defendant is afforded sovereign or official immunity and that immunity has not been waived despite the existence of a liability insurance policy, we need not consider whether the cracked glass door amounted to a nuisance, as contended in the fifth enumeration. Sheley v. Bd. of Public Ed. for the City of Savannah &c., 132 Ga. App. 314, 317 (3), supra. The trial court correctly granted defendants’ motion for summary judgment.

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


author: Johnson, Judge.

text:
    A95A1584.
    WHITE et al. v. ARTHUR ENTERPRISES, INC.
    (464 SE2d 225)
   Johnson, Judge.

Arthur Enterprises, Inc. d/b/a S & W Pharmacy filed a complaint alleging that John White, White’s Pharmacy and Cost Effective Computers, Inc., violated the Georgia Trade Secrets Act by misappropriating S & W’s computer files containing customer, drug, doctor and prescription information. The parties tried the case before a jury, which found White and White’s Pharmacy each separately liable to S & W in the amount of $18,000 for wilful and malicious misappropriation of trade secrets, but found Cost Effective not liable. The court awarded S & W attorney fees of $17,474. See OCGA § 10-1-764. White and White’s Pharmacy appeal.

1. The claim of White and White’s Pharmacy that no evidence supports the amount of damages awarded by the jury is without merit. Under the Trade Secrets Act, damages can include the unjust enrichment caused by misappropriation of trade secrets. OCGA § 10-1-763 (a). The unjust enrichment doctrine provides that a party shall not be allowed to profit or enrich itself inequitably at another’s expense. Black’s Law Dictionary 4th ed. Rev. The unjustly enriched party should pay for its gain. Mabry v. Pelton, 208 Ga. App. 891, 893 (3) (432 SE2d 588) (1993). “[W]here an award of monetary damages is made for unjust enrichment, it must... be supported by evidence from which it can be determined to a reasonable certainty that the defendants in fact realized such a gain. [Cit.]” Phoenix Airline Svcs. v. Metro Airlines, 194 Ga. App. 120, 125-126 (3) (390 SE2d 219) (1989), rev’d on other grounds, 260 Ga. 584 (397 SE2d 699) (1990). In the instant case, S & W, which sought damages based on unjust enrichment, presented evidence that the information contained in its computer files had a value of $90,000. Relying on this evidence, the jury could have determined with reasonable certainty that White and White’s Pharmacy each realized a gain of $18,000 from the misappropriation of those files. Because the jury’s award of damages was well within the range of the evidence, it shall be affirmed. See Fullard v. Southern Mut. Ins. Co., 191 Ga. App. 483, 485 (3) (382 SE2d 140) (1989).

2. White and White’s Pharmacy maintain that the amount of attorney fees awarded by the court is excessive and unsupported by the evidence. White and White’s Pharmacy, however, have not met their appellate burden of proving error by the record. “The burden is on the party alleging error to show it affirmatively by the record and when the burden is not met, the judgment complained of is assumed to be correct and must be affirmed. Where [evidence] is necessary for review and appellant omits it from the record on appeal, the appellate court must assume the judgment below was correct and affirm.” (Citations and punctuation omitted.) Bank South v. Zweig, 217 Ga. App. 77, 79 (2) (456 SE2d 257) (1995).

Decided November 8, 1995

Reconsideration denied November 21, 1995

Little & Adams, Robert B. Adams, for appellants.

Minor, Bell & Neal, William F. Jourdain, Robert G. McCurry, for appellee.

At the attorney fees hearing in the instant case, one of S & W’s lawyers tendered a written statement of S & W’s legal costs. After arguments of counsel, the court said that it approved that written statement as S & W’s reasonable attorney fees. Although that critical piece of evidence relied upon by the trial court is necessary for us to determine whether the attorney fees award is excessive, it is not included in the appellate record. Because the statement is omitted from the record, White and White’s Pharmacy have not met their burden of showing error affirmatively by the record. Accordingly, we are required to assume that the court’s award of attorney fees was correct and must be affirmed. See Hendricks v. Emerson, 199 Ga. App. 208, 209 (2) (404 SE2d 279) (1991).

3. The remaining arguments of White and White’s Pharmacy are either without merit or have been abandoned.

Judgment affirmed.

Birdsong, P. J., and Smith, J., concur.


text:
    A95A1602, A95A1603.
    VARNER v. SHARP; and vice versa.
    (464 SE2d 388)
   Johnson, Judge.

When Ralph Sharpe died intestate, his brother, Kenneth Sharp, applied for letters of administration claiming to be the sole heir. Several weeks later, Dorothy Varner also applied for letters of administration, claiming to be Ralph’s child born out of wedlock and sole heir. Each party filed a caveat to the other’s application. After a bench trial, the probate court judge found clear and convincing evidence that Dorothy was Ralph’s daughter, but did not find clear and convincing evidence that Ralph intended her to inherit his estate to the exclusion of Kenneth. Basing its decision on OCGA § 53-4-4 (c) (1) (E), the court concluded that Dorothy could not inherit from Ralph’s estate and dismissed her application for administration and her caveat to Kenneth’s application. In Case No. A95A1602, Dorothy appeals. Kenneth appeals in Case No. A95A1603.

Case No. A95A1602

Dorothy argues that the probate court erred in requiring her to prove by clear and convincing evidence that the decedent intended for her to take his estate to the exclusion of everyone else. We agree with Dorothy that the trial court imposed upon her a heavier burden than that set forth in the statute and so reverse.

Before it was amended, OCGA § 53-4-4 provided that a child born out of wedlock could not inherit from his or her natural father unless there was a court order declaring the child to be legitimate or establishing paternity, or unless the father signed the child’s birth certificate or executed a signed and sworn statement that he was the child’s father. In 1986, the Supreme Court carved out another exception to the rule prohibiting children born of unwed parents from inheriting from their natural fathers. In Prince v. Black, 256 Ga. 79 (344 SE2d 411) (1986), the court held that the doctrine of virtual or equitable legitimation would allow an illegitimate child to inherit from his intestate father’s estate when the evidence is clear and convincing that the child is the natural child of the father and that the father intended for the child to share in his estate in the same manner as he would have shared if he had been formally legitimated. Id. at 80-81.

In 1991, the legislature amended OCGA § 53-4-4 (c) (1) to add subparagraph (E) incorporating the holding in Prince. See Youmans v. Ormandy, 206 Ga. App. 255, 256 (424 SE2d 828) (1992). As amended, OCGA § 53-4-4 (c) (1) provides that “[a] child born out of wedlock may not inherit from or through his father or any paternal kin by reason of the paternal kinship unless, during the lifetime of the father and after the conception of the child: . . . (E) [t]here is clear and convincing evidence that the child is the child of the father and that the father intended for the child to share in the father’s intestate estate in the same manner in which the child would have shared if legitimate.”

It is clear that in deciding Prince and in amending the statute to incorporate that decision, the Supreme Court and the legislature intended to ensure that, under certain circumstances, a child born out of wedlock would be allowed to inherit from his or her natural father. The trial court’s interpretation of OCGA § 53-4-4 (c) (1) (E), however, severely limits a child’s ability to inherit under the statute. In essence, the trial court reads the statutory language “in the same manner in which the child would have shared if legitimate” as meaning “to the exact same extent to which the child would have shared if legitimate” or “in the exact same proportion in which the child would have shared if legitimate.”

We cannot subscribe to such an interpretation. Such a construetion assumes that a layman knows the rules of inheritance and also requires that he leave clear and convincing evidence that he intended for the child to share in the estate as provided in those rules. It is unreasonable for courts either to expect a father to know those rules or to require a child to prove that the father intended that he or she inherit according to those rules. We believe the phrase “in the same manner in which the child would have shared if legitimate” means nothing more than “as if she was legitimate.” We note that Prince, upon which the statute is based, did not involve proportion or amount of share in the estate and there is no reason for us to believe that the court in Prince was attempting to address any such issue. Accordingly, we hold that a child is not required to prove by clear and convincing evidence that her natural father intended her to share in his estate as prescribed by the rules of descent and distribution, just that he intended that she take from his estate. If the child does prove that the decedent was her father and that he intended for her to inherit from his estate, the court must determine, based upon the rules of intestate succession (OCGA § 53-4-2 et seq.), the amount to which she is entitled. The burden of proving the amount to which she is entitled does not rest with the child. Therefore, we reverse and remand for a finding on the issue of whether Dorothy proved by clear and convincing evidence that Ralph intended that she inherit from his estate.

Case No. A95A1603

In his cross-appeal, Kenneth contends that the probate court erred in concluding that Dorothy was Ralph’s daughter when she failed to prove it by clear and convincing evidence. We disagree and affirm the finding of the trial court on this issue.

In this case, the evidence showed that Dorothy visited Ralph regularly as a child and stayed with his mother during the summer, that Ralph paid Dorothy’s mother child support, asked Kenneth to stand in for him and present her at her debutante ball, paid for her to attend college, attended her wedding, acknowledged Dorothy’s sons as his grandchildren, helped pay her son’s tuition, introduced her to his friends as his daughter, and told his girl friend that he wanted her to meet his daughter, Dorothy. When Ralph died, Kenneth told hospital personnel that Ralph had a daughter, Dorothy, who would claim the body. Dorothy signed the authorization for the hospital to release the body to the funeral home, made funeral arrangements, and paid funeral expenses. Dorothy and Kenneth rode in the family car to the cemetery, and after Ralph was buried with military honors, the honor guard presented the flag to Dorothy. A rational trier of fact could have found by clear and convincing evidence that Dorothy was Ralph’s daughter. See Youmans, supra at 257 (1); compare In re Estate of Burton, 265 Ga. 122, 124 (453 SE2d 16) (1995).

Decided November 3, 1995

Reconsideration denied November 21, 1995

Kraus & Spears, John W. Spears, Jr., Ralph E. Merck, for appellant.

Garland B. Cook, Sr., Garland B. Cook, Jr., for appellee.

Judgment reversed and case remanded in Case No. A95A1602. Judgment affirmed in Case No. A95A1603.

Birdsong, P. J., and Smith, J., concur.


author: Smith, Judge.

text:
    A95A2418.
    HALLISY v. SNYDER et al.
    (464 SE2d 219)
   Smith, Judge.

Donald Hallisy appeals from the trial court’s ruling in favor of and issuance of an immediate writ of possession to Michael and Laura Snyder in this dispossessory action. We affirm.

The record reveals that on January 16, 1995, Hallisy entered into a real estate purchase and sale contract with the Snyders for the purchase of their home “as is.” Pursuant to the contract, Hallisy paid $5,000 earnest money, which was non-refundable. On March 30, Hallisy informed the real estate agent that a termite inspection had revealed active infestation and structural damage and requested that the closing be postponed. He subsequently refused to purchase the property or to vacate the premises, and the Snyders initiated this dispossessory proceeding. The trial court granted judgment on the pleadings to the Snyders and issued an immediate writ of possession, with the proviso that should Hallisy appeal, rent must be paid into court. Hallisy filed this pro se appeal and appears to raise three issues.

1. Hallisy contends the trial court erred in finding that he was a tenant holding over. He insists that he was not in possession as a tenant but as a purchaser. This is incorrect. We can certainly agree that Hallisy had a contract to purchase the house. But under the law and these facts, he never became the owner of the house and indeed was a tenant. No dispute exists that the Snyders owned the house and granted him the right to live there before ownership was transferred. OCGA § 44-7-1 (a) provides that “when the owner of real estate grants to another person, who accepts such grant, the right simply to possess and enjoy the use of such real estate either for a fixed time or at the will of the grantor,” a landlord-tenant relationship is created. The trial court did not err in finding such a relationship. See generally Middlebrooks v. Fleet Finance, 217 Ga. App. 263 (456 SE2d 627) (1995); Barkley-Cupit Enterprises v. Equitable Life Assurance &c., 157 Ga. App. 138, 140-141 (2) (276 SE2d 650) (1981).

2. Hallisy maintains the trial court’s grant of judgment on the pleadings and an immediate writ of possession were erroneous. We do not agree.

Many of the facts referred to by Hallisy appear only in the briefs. Allegations of facts appearing only in the briefs and unsupported by evidence in the record will not be considered on appellate review. Wade v. Crannis, 209 Ga. App. 501, 502 (1) (433 SE2d 669) (1993). For purposes of a motion for judgment on the pleadings, all well-pleaded material allegations of the opposing party are taken as true. Howard v. Bank South, N. A., 209 Ga. App. 407, 409 (1) (433 SE2d 625) (1993). Hallisy’s answer does not establish a valid defense to the dispossessory action. The pleadings themselves establish that Hallisy was a tenant holding over, and no material questions of fact remain for review. The trial court properly granted the Snyders’ motion for judgment on the pleadings and a writ of possession. OCGA § 9-11-12 (c).

3. Hallisy correctly asserts that the right to trial by jury exists in dispossessory actions. Hill v. Levenson, 259 Ga. 395 (1) (383 SE2d 110) (1989). He is incorrect, however, in asserting that he was deprived of this right by the trial court. The existence of the right does not demand that a jury trial be held in all cases, including those where no issues remain for jury determination. Under Hallisy’s interpretation of the right to jury trial, no case would be decided upon summary adjudication. This is patently absurd.

4. Hallisy has remained in possession of the property for approximately six months, to the detriment of the owners. All issues raised by Hallisy in the trial court and in this court are completely lacking in merit. Since we find no reasonable basis on which Hallisy could have anticipated reversal of the trial court’s judgment, we assess a penalty against him in the amount of $1,000 for frivolous appeal, pursuant to Rule 15 (b) of this Court.

Judgment affirmed.

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

Decided November 3, 1995

Reconsideration denied November 21, 1995.

Donald J. Hallisy, pro se.

Goodman, Hudnall, Cohn & Abrams, H. Gilman Hudnall, Ellis H. Abrams, for appellees.

       Correspondence in the record refers to a “temporary occupancy agreement for buyer prior to closing,” and to rent of $1,200 per month, although that agreement is not included in the record.


author: Blackburn, Judge. McMurray, Presiding Judge,

text:
    A95A1142.
    PLOTT et al. v. CLOER.
    (464 SE2d 39)
   Blackburn, Judge.

Appellants, Carolyn Plott (Plott), individually and as mother and next friend of Joel Plott, her minor son, and Billy Eugene Plott III, appeal the trial court’s grant of summary judgment to appellee, B. C. Cloer, individually and as sole proprietor of B. C. Properties (Cloer). Plott sued for general, special, and punitive damages sustained in an incident on April 19,1990, in the townhouse she rented from Cloer, in Tanaga Forest, a residential subdivision of individually owned duplexes, each of which is located on a public street. By amended complaint, Plott’s former husband, Billy, sued for the loss of services.

Plott was viciously beaten, raped, and sodomized by an individual who was unrelated to Cloer, and who was criminally tried and convicted for his conduct. While Cloer owns most of the fee simple duplexes in the subdivision, they are rented individually and there are no common areas under Cloer’s control.

On March 29, 1990, Cloer became aware that there had been break-ins in the area and promptly notified Plott of such fact by memo, received by her on March 30, 1990, which included the following language, “[w]e want to caution all of you to make sure your windows and doors are properly secured.” A neighbor also warned Plott that someone had attempted to break into the neighbor’s apartment early on the evening that plaintiff was raped. Approximately a week prior to the subject incident, Plott had been told by another neighbor of an attack upon a girl near the stop sign in the neighborhood on April 5, 1990. Plott’s assailant entered through a second floor back bedroom window of her townhouse which she had left unsecured and open, rather than turning on the air conditioning, because it was hot upstairs. Plott was beaten, then carried into the dining room, away from her children where she was raped and sodomized by the assailant. Her children were not attacked. The window locks of her townhouse were operational, Plott had never complained of any problems with the locks and she had never complained of any failure to make repairs.

Plott alleged that Cloer was negligent in failing to provide his Tanaga Forest tenants adequate warning or security against potential criminal attack and in failing to provide his employees the necessary training in tenant safety. The trial court granted Cloer’s motion for summary judgment.

Pretermitting the issues of defendant’s alleged failures, it must first be determined what duty the law imposes upon a landlord who has parted with possession and control of the property to the tenant, where there has been no liability otherwise created by contract, representations, or warranties.

1. Plott enumerates as error the trial court’s grant of Cloer’s motion for summary judgment as to her injuries, arguing that a proprietor has a duty to invitees to exercise ordinary care in keeping his premises safe under OCGA § 51-3-1. See Lau’s Corp. v. Haskins, 261 Ga. 491, 492 (405 SE2d 474) (1991).

However, where, as here, “ ‘the owner has fully parted with possession by rental or lease his liabilities are measured by (OCGA § 44-7-14), (OCGA § 51-3-1) having no application. (Cits.)’ Powell v. United Oil Corp., 160 Ga. App. 810 (287 SE2d 667) (1982). (Emphasis supplied.) Conversely, where the owner has retained control over common areas of an apartment complex to which tenants and others are allowed access, the owner is liable under OCGA § 51-3-1 to exercise ordinary care in keeping those common areas safe. Maloof v. Blackmon, 105 Ga. App. 207 (4a) (124 SE2d 441) (1962).” Lidster v. Jones, 176 Ga. App. 392, 393 (336 SE2d 287) (1985), cert. vacated Pine Terrace Assoc. v. Lidster, 255 Ga. 405, 406 (341 SE2d 8) (1986).

It is uncontroverted that Cloer relinquished control of the leased premises to Plott, subject only to a right of access for inspection, repairs, emergency, or, upon the tenant’s termination of the lease, to show the premises to prospective renters. Likewise, it is undisputed that Cloer fully discharged his responsibility to maintain the premises in good repair. Cloer neither employed security personnel nor represented that he provided security of any type. Plott’s injuries were the result of the independent, criminal conduct of a third party which occurred within the premises over which she had complete control. Under the facts of this case, Cloer’s duty to Plott was limited to those imposed under OCGA § 44-7-14, that is, a duty to ensure that the leased premises were properly constructed and maintained. Cloer owes Plott no duty under OCGA § 51-3-1, as alleged. Accordingly, the trial court did not err in granting summary judgment to Cloer. “If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiffs claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial.” Lau’s Corp., supra at 491.

2. In light of our disposition of Division 1, we do not reach Plott’s remaining assignments of error.

Judgment affirmed.

Beasley, C. J., Birdsong, P. J., Pope, P. J., Andrews, Johnson, Smith and Ruffin, JJ., concur. McMurray, P. J., dissents.

McMurray, Presiding Judge,

dissenting.

I respectfully dissent. Although a landlord is not an insurer of his tenant’s safety, the landlord does not become a bystander (free of accountability) simply because the tenant takes possession of the rental unit. Warner v. Arnold, 133 Ga. App. 174, 179 (210 SE2d 350). On the contrary, this Court has held that, if there is “some evidence” that the landlord took on responsibility for “ ‘looking out for the safety of the apartment premises and the residents,’ there remain questions [as to] whether [the landlord] had assumed a duty to provide security for the apartment complex and whether that duty had been performed in a non-negligent manner. Cf. Godwin v. Olshan, 161 Ga. App. 35 (288 SE2d 850) (1982).” Cooperwood v. Auld, 175 Ga. App. 694, 695 (334 SE2d 22).

In the case sub judice, there is proof that B. C. Cloer took on responsibility for the safety of the rental complex at Tanaga Forest and its residents both before and after the burglary and assault of Carolyn Plott on April 19, 1990. Specifically, it is undisputed that Cloer’s full-time property manager, Sherry Windham, sent out a memorandum on March 30, 1990, warning Tanaga Forest residents that “[w]e had 3 apartments broken into Thursday evening, March 29.” Further, there is proof that Windham posted a letter to Tanaga Forest residents on April 19, 1990, acknowledging that there has been “quite a lot of disturbance in our area lately” and assuring the residents that “[w]e are doing everything possible to protect your best interests.” Further, Cloer admits (in his deposition) that he employs a full-time maintenance manager at Tanaga Forest, Jimmy Fowler, “to cover all maintenance calls and requests over all the rental property”; that he compensates Fowler to reside on premises at Tanaga Forest and that, while Fowler “is not a police officer[, he] is called on occasionally to referee disputes or whatever [at the complex].” Under these circumstances, and with proof that neither Windham nor Fowler advised Cloer’s tenants about a rash of crimes that had occurred in Tanaga Forest within a month before the burglary and assault upon Carolyn Plott (including two violent attacks against women), I believe that genuine issues of material fact remain as to “whether [Cloer] had assumed a duty to provide security for [his tenants at Tanaga Forest] and whether that duty had been performed in a non-negligent manner.” Cooperwood v. Auld, 175 Ga. App. 694, supra.

Decided November 22, 1995

McKinney & Salo, Jan McKinney, for appellants.

Chambers, Mabry, McClelland & Brooks, Genevieve L. Frazier, for appellee.

The case sub judice should go to a jury for resolution of the genuine issues of material fact.

       B. C. Cloer was the sole developer of Tanaga Forest, a townhouse community consisting of 78 or 80 residential units. Since development, Cloer has transferred about 25 percent of the complex to other investors, retaining approximately 58 rental units for himself.

       The full text of the memorandum provides as follows: “We had 3 apartments broken into Thursday evening, March 29. We want to caution all of you to make sure your windows and doors are properly secured. There have been no break in’s, that we are aware of, during the daytime hours. The police are investigating this matter.”


author: Blackburn, Judge.

text:
    A95A1170.
    In the Interest of A. M. B. et al., children.
    (464 SE2d 253)
   Blackburn, Judge.

Herchel and Vicki Bacon appeal the decision of the trial court to terminate their parental rights asserting that in those termination cases where (1) a reunification order has been in place for less than a year and (2) the child is not in the custody of the parent whose rights are subject to termination, termination proceedings may not take place. The appellants also assert that the Department of Family & Children Services (DFACS) has a duty to make reasonable efforts to reunite the family for at least one year after a reunification order is entered as a precondition to termination. These conclusions are contrary to the clear language of OCGA § 15-11-81 (b) (4) (C), and, as aptly demonstrated by the facts of this case, establish an unsound policy.

“The appropriate standard of appellate review in a case where a parent’s rights to her [children] have been severed is whether after reviewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost. The factfinding and weighing of evidence is to be done in the trial court under the clear and convincing evidence test. The reviewing court is to defer to the lower court in the area of factfinding and should affirm unless the appellate standard of review is not met.” (Citations and punctuation omitted.) In the Interest of J. H., 210 Ga. App. 255, 258 (435 SE2d 753) (1993).

OCGA § 15-11-81 (a) outlines a two-step procedure for considering when to terminate parental rights. In the Interest of L. S. F., 217 Ga. App. 478 (458 SE2d 370) (1995). First, the trial court must consider whether there is clear and convincing evidence of parental misconduct or inability as provided by OCGA § 15-11-81 (b). Parental misconduct is determined by finding the presence of four factors: 1) the child is deprived; 2) lack of proper parental care or control is the cause of the deprivation; 3) such deprivation is likely to continue or will not be remedied; 4) continued deprivation is likely to cause serious physical, mental, emotional or moral harm to the child. OCGA § 15-11-81 (b) (4) (A). If there is clear and convincing evidence of such parental misconduct or inability, the court shall proceed to the second and final step, determining whether the termination of parental rights is in the best interest of the child. In the Interest of L. S. F., supra. “Obviously, those same factors which show the existence of parental misconduct or inability can also support a finding that the termination of parental rights of the defaulting parent would be in the child’s best interest.” In the Interest of G. K. J., 187 Ga. App. 443, 444 (370 SE2d 490) (1988).

The evidence amply supports the trial court’s determination as to the first, third and fourth factors. As for the first factor, an unappealed order entered by the juvenile court established that the children were deprived within the meaning of OCGA § 15-11-81 (b) (4) (A) (i). In the Interest of B. P., 207 Ga. App. 242, 244 (427 SE2d 593) (1993) (unappealed decision in deprivation hearing is binding on appeal).

As for the third factor, evidence reflects that the deprivation is likely to continue into the future. DFACS has worked with this family since 1981. Both parents have been in and out of prison since that time, and DFACS has had temporary custody of the children off and on for prolonged periods since 1987. Both parents were released from prison in the spring of 1994 only to be returned shortly thereafter for parole violations. Further, despite warnings in April 1994 that failure to cease would jeopardize their parental rights, both parents continued with their substance abuse habits. “Although past deprivation is not sufficient for termination without a showing of present deprivation, the court can consider a parent’s past conduct in determining whether such conditions of deprivation are likely to continue.” In the Interest of J. D. D., 215 Ga. App. 68, 70 (449 SE2d 655) (1994).

Also, evidencing the likelihood that the deprivation will continue in the future was the testimony of a psychologist who evaluated the parents. The psychologist determined that the mother had a personality disorder that rendered her an inappropriate role model and an ineffectual parent to R. N. B., the only child with whom she retained any parental rights. As to the father, the psychologist determined that he “had no sense of the magnitude of the deprivation the children were suffering” as a result of his behavior that included alcohol and physical abuse. The psychologist concluded that neither the mother nor father could alter their respective situations in order to adequately parent the children in light of their attitudes, behavior, substance abuse problems, personality dysfunction and marginal social adjustment.

As to the fourth factor, clear and convincing evidence supported the trial court’s determination that continued deprivation would harm the children. At the time DFACS last took temporary custody of the children, they needed clothing, shoes, haircuts as well as dental and medical care. They complained of being hungry and were underweight. All of the school-age children were behind academically. Two of the children who were ages 13 and 11 at the time of the termination hearing were reading at a second-grade level. One child who was age nine at the time of the termination hearing could not read at all. A psychologist who evaluated each of the children testified as to the numerous emotional problems each of them suffered as a result of parental neglect. The psychologist also testified that the children had demonstrated marked improvement in all areas since their removal from the appellants’ home and that they would continue to improve with counseling and exposure to a stable, nurturing environment.

It is with regard to the application of the second factor — lack of parental care or control is the cause of the deprivation — that appellants assert error. In particular, they argue that the trial court erred in terminating their parental rights absent a showing that they failed to comply with the terms of the reunification order for at least one year.

OCGA § 15-11-81 (b) (4) (B) outlines factors for a trial court to use in evaluating whether lack of parental care or control is the cause of the deprivation. Several of those factors are present in this case including mental health disorders on the part of the parents, a history of chronic unrehabilitated drug use on the part of the parents, and emotional and physical neglect of the children at the hands of the parents. OCGA § 15-11-81 (b) (4) (C) provides additional factors for a trial court to consider in those situations where the child is not in the custody of the parent whose rights are subject to termination. It provides: “In addition to the considerations in subparagraph (B) of this paragraph; where the child is not in the custody of the parent who is the subject of the proceedings, in determining whether the child is without proper parental care and control, the court shall consider, without being limited to, whether the parent without justifiable cause has failed significantly for a period of one year or longer prior to the filing of the petition for termination of parental rights: (i) To communicate or to make a bona fide attempt to communicate with the child; (ii) To provide for the care and support of the child as required by law or judicial decree; and (iii) To comply with a court ordered plan designed to reunite the child with the parent or parents.” (Emphasis supplied.)

In the present matter, the trial court did mention the appellants’ failure to comply with several elements of their most recent reunification plan. While it was inappropriate for the trial court to consider this failure due to the fact that the reunification order had not been in effect for one year, under the facts of this case, the error is not of such magnitude as to require reversal. By the clear language of the statute, the trial court is not limited to looking solely at subparagraph (b) (4) (C)’s factors, and we reject appellants’ interpretation that would make compliance with subparagraph (b) (4) (C)’s requirements mandatory.

Not only is the interpretation urged by the appellants contrary to statute, it also establishes an unsound policy. Applying the standard they suggest, a trial court would be foreclosed from evaluating incidents that occur after a reunification plan was formulated. Surely, the trial court should be permitted to consider such events, particularly in cases like this where after the reunification plan was prepared, both parents were returned to jail and their psychological evaluations revealed they had no capacity for meaningful improvement in their parenting skills.

Also, we find no merit in the appellants’ assertion that DFACS was required to provide appropriate resources to aid in the reunification of the family for a period of one year after the reunification plan was ordered. The requirement is not found in statute. OCGA § 15-11-41 (b) provides the juvenile court “shall. . . determine as a finding of fact whether reasonable efforts were made by [DFACS] and any other appropriate agencies to prevent or eliminate the need for removal and to make it possible for the [children] to return to the [children’s] home.” These findings are required in relation to deprivation orders, not termination proceedings. Moreover, no one-year requirement exists in OCGA § 15-11-41 (b). We will not attempt to impose such a requirement by reading OCGA § 15-11-41 (b) together with OCGA § 15-11-81. OCGA § 15-11-81 regarding termination is a complicated statute that references many other statutes. If the legislature had intended it to be read in conjunction with OCGA § 15-11-41 (b), this intent would have been expressly stated.

Moreover, the record in this case reflects that the inaction of DFACS is not an issue. DFACS has made a reasonable attempt to keep this family intact. It has worked with this family intermittently for over 15 years, and has had temporary custody of the children on a number of occasions as both parents were in and out of jail. Despite a long history of effort, DFACS has not been able to improve the home life of these children with their parents. The trial court considered whether additional work with DFACS or the court system would improve the children’s lot and determined it would not. These children have suffered for 15 years while DFACS has attempted, without success, to aid the family. The trial court did not err in failing to require DFACS to continue its efforts for another few months to meet the one-year requirement that appellants seek to impose.

Decided November 22, 1995.

Caesar J. Burch, for appellants.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Teresa E. Lazzaroni, Shalen A. Sgrosso, Assistant Attorneys General, Beckmann & Lewis, Leo G. Beckmann, Jr., for appellees.

Under both the law and the facts of this case, the trial court’s decision to terminate parental rights is affirmed.

Judgment affirmed.

Beasley, C. J., McMurray, P. J., Birdsong, P. J., Pope, P. J., Andrews, Johnson, Smith and Ruffin, JJ., concur.

       The parents did not appeal the determination that DFACS had used its best efforts to prevent or eliminate the need of removing their children when the deprivation order was entered.

       In particular, the trial court recounted an emotional visit between the parents and their children shortly after the deprivation order was entered. Two of the children asked their parents for permission to be adopted by others. “The parents tearfully expressed their commitment to change, to be better parents, to stop drinking and using cocaine, and to tend to [the children’s] needs.” Despite the parents’ promises, no changes were made. The drinking and drug abuse continued. As noted by the court: “[i]f ever there was a moment that should have motivated parents to act, this was it. If such an event does not secure change, no court anywhere will have the ability to secure change.”


author: Pope, Presiding Judge.

text:
    A95A1691.
    FULTON COUNTY BOARD OF TAX ASSESSORS v. DEAN.
    (464 SE2d 257)
   Pope, Presiding Judge.

Plaintiff/appellee Larry Dean is the owner of property located at 5100 Old Alabama Road in Alpharetta, Fulton County, Georgia (“the property”). In April 1992, Calvin L. Cates III, an appraiser with the defendant/appellant Fulton County Board of Tax Assessors (Board), visited the property to conduct an appraisal to be used to assess 1993 ad valorem taxes. At that time, Cates placed a code on the field record card for the property that indicated that the property needed to be revisited prior to December 31, 1992, because certain improvements on the property were incomplete. However, the data processing clerk omitted this code when the information from the card was entered into the computer, and the property was not revisited.

On March 5, 1993, the Board issued a tax assessment notice to Dean valuing the property at $3,465,900 for 1993 ad valorem tax purposes. Dean did not appeal this notice, and taxes were paid on the property based on this assessment. However, in September 1993, the Board sent Dean a second notice, valuing the property at $25,002,400 for 1993 tax purposes. Dean filed an appeal from this second assessment to the Fulton County Board of Equalization, and following a hearing, the Board upheld the $25,002,400 valuation of the property. Dean appealed this decision to the superior court, and both parties filed motions for summary judgment. This appeal is from the superior court’s order denying the Board’s motion for summary judgment and granting summary judgment to Dean.

In granting summary judgment to Dean, the trial court found this case to be controlled by our holding in Fayette County Bd. of Tax Assessors v. Ga. Utilities Co., 186 Ga. App. 723, 725 (1) (368 SE2d 326) (1988) that a county board of tax assessors has no authority to undertake a reappraisal of realty once an assessment has been issued and taxes on the property have been paid for a given tax year. But the Board argues this case is controlled by Barland Co. v. Bartow County Bd. of Tax Assessors, 176 Ga. App. 798 (338 SE2d 16) (1985), which allows a county board of tax assessors to revise an assessment to correct “an obvious and undisputed” clerical error. Id. at 799. Applying Barland Co., the Board argues that a reassessment was authorized in this case to correct the error of the processing clerk in failing to enter the code in the computer which would have caused the property to be revisited prior to the issuance of the 1993 assessment. However, as we noted in Fayette County, the court in Borland Co. limited its holding to “instances of clerical error in an assessment, as distinguished from instances of reassessment. ‘The tax assessors in (the Borland Co. case were) not. . . seeking to collect additional taxes on the basis of a totally new appraisal of the value of the property but (were) seeking instead merely to correct a clerical error which occurred in reporting the original valuation figure to the taxpayer.’ Barland Co. v. Bartow County Bd. of Tax Assessors, supra at 800.” Fayette County, 186 Ga. App. at 725.

Contrary to the argument of the Board, the record in this case clearly demonstrates that the September assessment was the result of a reappraisal of the property. Several of the Board’s appraisers testified that after the original assessment was mailed to Dean, it was decided that the original assessment did not accurately reflect the value of the property, and that, although the property was never revisited, the property and improvements should be valued at $25,002,400. “In contrast [to the board in Barland Co.,] the Board in the present case is seeking to collect additional taxes on the basis of a totally new appraisal of the value of [Dean’s] realty as improved property.” (Emphasis in original.) Fayette County, 186 Ga. App. at 725. Thus, we agree that Barland Co. is not authority for the Board’s reassessments in the present case and that the trial court did not err in granting summary judgment to the taxpayer.

Decided November 22, 1995

Thomas A. Cox, Jr., for appellant.

Brenskelle & Perry, David P. Brenskelle, Brock E. Perry, for appellee.

Michael J. Bowers, Attorney General, Daniel M. Formby, Assistant Attorney General, Harold D. Melton, Karen G. Thomas, Stewart, Melvin & Frost, Frank W. Armstrong, amici curiae.

Judgment affirmed.

Beasley, C. J., and Ruffin, J., concur.


author: Andrews, Judge. McMurray, Presiding Judge,

text:
    A95A1183.
    BARNES v. CITY OF ATLANTA POLICE DEPARTMENT.
    (464 SE2d 609)
   Andrews, Judge.

Barnes suffered a compensable injury and resulting medical expenses while working as a City of Atlanta police officer. Pursuant to his claim for workers’ compensation benefits, the administrative law judge awarded medical benefits and the Appellate Division of the State Board of Workers’ Compensation adopted the award. We granted Barnes’ application for a discretionary appeal from the order of the Superior Court reversing the decision of the Appellate Division.

After the City initially controverted the compensability of Barnes’ claim, it filed a WC-2 form with the Board on May 21, 1992 accepting the claim as compensable. Thereafter, the City did not controvert the compensability of the claim but only controverted payment for medical treatment it claimed was rendered by medical practitioners other than the authorized treating physician. See Nu Skin Intl. v. Baxter, 211 Ga. App. 32, 33 (438 SE2d 130) (1993). The City and Barnes entered into a stipulation on July 15, 1992 that Dr. Len-hart was the selected authorized treating physician. Barnes claims the stipulation contemplated that Dr. Kim, the partner of Dr. Lenhart, was also selected as an authorized treating physician.

At issue in this case is the City’s claim that medical treatment given after the stipulation by numerous medical practitioners pursuant to referrals made by Dr. Lenhart, Dr. Kim, and others was unauthorized under the provisions of OCGA §§ 34-9-200 and 34-9-201 requiring Board approval for a change of physician or treatment. In Lee Fabricators v. Cook, 203 Ga. App. 450, 451 (417 SE2d 35) (1992), and Brown v. Transamerica IMS, 200 Ga. App. 272, 273-275 (407 SE2d 430) (1991), we concluded that, despite language in OCGA § 34-9-201 (c) authorizing referrals for other medical treatment by the authorized treating physician, the exclusive method for obtaining a change from the authorized treating physician or a change in treatment, including any change made by a referral from the authorized treating physician, was by Board approval pursuant to the provisions of OCGA §§ 34-9-200 (b) and 34-9-201 (d). Since Barnes admitted he did not obtain Board approval for a change in physician or treatment, the City’s position was that it is only responsible for the authorized treatment rendered by Dr. Lenhart.

Relying on Capital Atlanta v. Carroll, 213 Ga. App. 214 (444 SE2d 592) (1994), the ALJ and the Appellate Division of the Board found that, because the City initially controverted the compensability of the claim, the provisions of OCGA §§ 34-9-200 and 34-9-201 requiring Board approval for a change in physician or treatment did not apply. On appeal, the superior court concluded Capital Atlanta, supra, did not apply in this case because the City rescinded its original notice controverting the compensability of the claim and at the time of the contested medical treatments had agreed to pay all income and authorized medical benefits. Accordingly, the superior court reversed the Appellate Division of the Board and remanded the case for consideration of the evidence under the requirements of OCGA §§ 34-9-200 and 34-9-201.

In Capital Atlanta, supra, we found Board approval for a referral by a physician on the employer’s panel of approved physicians was not required because the employer had controverted the compensability of the claim at the time of the referral. Thus, at the time of the referral in Capital Atlanta, the employer was controverting the entire claim and refusing to pay any medical benefits. We concluded that “when the employer refuses to pay medical benefits and that refusal is later deemed unfounded, the employer cannot rely on the claimant’s failure to comply with the [provisions of OCGA §§ 34-9-200 and 34-9-201 requiring Board approval for a change in physician by referral] to deny liability for claimant’s medical expenses.” Id. at 216-217; compare Wright v. Overnite Transp. Co., 214 Ga. App. 822, 823 (449 SE2d 167) (1994) (where claimant changes physicians at a time when the employer is providing medical benefits, the provisions of OCGA §§ 34-9-200 and 34-9-201 requiring Board approval do apply). Since the City had accepted the compensability of the claim and was providing medical benefits at the time the medical treatments at issue were provided, the superior court correctly determined Capital Atlanta, supra, did not apply under the present facts. Wright, supra at 823.

However, the amended version of OCGA § 34-9-201, effective July 1, 1994, now specifically provides that the selected primary authorized treating physician may arrange for referrals to other medical practitioners without prior authorization from the Board. The amended version, however, does not allow other medical practitioners to whom the employee is referred to arrange for additional referrals. Thus, an additional issue is whether the amended version of OCGA § 34-9-201, which did not become effective until after the ALJ issued his decision, should be applied retroactively.

“Generally statutes prescribe for the future and that is the construction to be given unless there is a clear contrary intention shown. [Cits.] On the other hand, where a statute governs only procedure of the courts, including the rules of evidence, it is to be given retroactive effect absent an expressed contrary intention. [Cits.]” Polito v. Holland, 258 Ga. 54, 55 (365 SE2d 273) (1988). Retroactive effect is also given to statutes affecting the remedy only rather than the right to which the remedy attaches. Glover v. Colbert, 210 Ga. App. 666, 668 (437 SE2d 363) (1993). The legislature did not express an intention as to whether or not the statute should be given retroactive effect. In order to decide whether the statute should be given prospective or retrospective effect, the statute must be examined to determine whether it is substantive in nature or has a procedural or remedial nature. The statutory requirement that Board approval be sought for a change in physician or treatment deals not with the compensability of the claim but with the scope of the remedy. “[T]he statutory amendment under consideration here would not render compensable an injury which would not otherwise be compensable but would, at most, merely expand the scope of treatment required to be provided for an injury the compensability of which is not in question.” Thompson v. Wilbert Vault Co., 178 Ga. App. 489, 491 (343 SE2d 515) (1986). Since the statutory amendment at issue is remedial, it should be given retroactive effect.

Although the amended statute provides that the selected primary authorized treating physician may make referrals without Board approval, it further provides that medical practitioners to whom the employee is referred by a primary authorized treating physician shall not be permitted to arrange for any additional referrals. OCGA § 34-9-201 (b) (1), (2). The record in this case contains evidence that the contested medical treatments included treatments where Barnes was referred by Dr. Lenhart to Dr. Kim, by Dr. Lenhart or Dr. Kim to other medical practitioners, and by those practitioners to still others. Because of its erroneous conclusion that the provisions of OCGA §§ 34-9-200 and 34-9-201 did not apply, the Board did not consider the application of the statutory requirements to this evidence, nor did it consider Barnes’ claim that the stipulation of Dr. Lenhart as the selected authorized treating physician contemplated that his partner, Dr. Kim, was also included in the selection. Since the superior court correctly reversed the decision of the Board’s Appellate Division, although not for all the reasons discussed herein, the judgment of the superior court is affirmed and the case is remanded to the superior court with directions that the case be recommitted to the Board for consideration in accordance with this opinion.

Judgment affirmed and case remanded with directions.

Beasley, C. J., Birdsong, P. J., Pope, P. J., Johnson, Blackburn, Smith and Ruffin, JJ., concur. McMurray, P. J., concurring specially in part and dissenting in part.

McMurray, Presiding Judge,

concurring specially in part and dissenting in part.

“When the right point of view is discovered, the problem is more than half solved.” Ellison v. Ga. R. Co., 87 Ga. 691, 706 (6) (13 SE 809). In this claim for workers’ compensation benefits, the ALJ awarded certain medical benefits to claimant, Sergeant Willie James Barnes, and also assessed OCGA § 34-9-108 (b) attorney fees against the employer, the City of Atlanta Police Department (the “City”). The Appellate Division of the State Board of Workers’ Compensation adopted the award as its own. The City originally controverted all liability, contending in October 1991 that Sergeant Barnes “did not have an accident arising out of and in the course of [his] employment.” In a preliminary award entered November 2, 1992, the ALJ found that this notice to controvert was not timely under OCGA § 34-9-221 and Board Rule 221, which provide that a notice to controvert must be filed within 21 days of the employer’s awareness of injury. The City subsequently accepted compensability yet attempted to controvert in part, on the ground that Dr. Kim’s services “were not authorized.”

A so-called stipulation between the employer and the employee that John P. Lenhart, M. D. (but not necessarily his clinic) was expressly approved by the employer, whereas the evidence showed that much of the medical services were actually provided by Joon-Whee Kim, M. D. The letterhead of NMS Diagnostics lists Joon-Whee Kim, M. D. immediately beneath that of John P. Lenhart, M. D. Dr. Kim “is employed by Dr. Lenhart as an independent contractor.” Sergeant Barnes was instructed by Dr. Lenhart that Dr. Kim “is the doctor that [will] work with [him]. When [Dr. Lenhart is] not here, he will treat you.”

Applying Capital Atlanta v. Carroll, 213 Ga. App. 214, 216 (3) (a) (444 SE2d 592), and “ ‘longstanding board policy that an employer’s denial of all liability for an alleged workers’ compensation claim is a justifiable circumstance in which the selection requirements of Code Section 34-9-201 do not apply/ ” the ALJ concluded that treatment by Dr. Kim at Dr. Lenhart’s clinic was not unauthorized merely because the Board had not been petitioned by Sergeant Barnes for a change in physician. The legal effect of this mixed determination of fact and law is, in essence, a finding that the City is es-topped to deny authorized coverage. However, the superior court reversed and remanded on this point. The superior court, applying Lee Fabricators v. Cook, 203 Ga. App. 450 (417 SE2d 35), concluded that OCGA §§ 34-9-200 (b) and 34-9-201 (d) “ ‘prescribe the exclusive method for changing physicians or treatment, including any change affected by the referral of the employee by the employer-approved physician to another physician pursuant to OCGA § 34-9-201 (c).’ ” (Emphasis in original.) I agree with Sergeant Barnes that the superior court erred in remanding the case to the State Board. The evidence supports the determination by the ALJ that the employer is estopped to controvert on the ground that Dr. Kim is not an authorized physician. To the extent that estoppel is a factual question, both the superior court (acting in its appellate capacity) and this Court are bound by that finding of estoppel. OCGA § 34-9-105 (a). To the extent that estoppel is a question of law, it is incumbent upon the superior court and this Court to give great deference to the policy determinations of the agency charged with administering the workers’ compensation laws. See Environmental Waste Reductions v. Legal Environmental Assistance Foundation, 216 Ga. App. 699, 701 (2), 702 (455 SE2d 393). See also Mason v. Service Loan &c. Co., 128 Ga. App. 828, 829 (3), 831 (198 SE2d 391). As it is my view that the superior court erroneously ignored the finding of estoppel made by the ALJ, I do not join in the majority’s discussion of whether the latest enactments by the General Assembly are to be given retroactive or prospective application. In my view, the majority strays from the relevant inquiry by failing to address the binding effect of the City’s tardy initial notice to controvert. I disagree that the provisions of OCGA §§ 34-9-200 and 34-9-201 (requiring Board approval for a change of physicians) are applicable in the case sub judice and so I respectfully dissent from the judgment of affirmance.

“As a general rule, a claimant cannot change to a new treating physician without petitioning the board for approval under OCGA § 34-9-200 (b). Nonetheless, if the employer is failing to provide medical care, the claimant need not seek approval before going to a new doctor, and the employer cannot later complain that the treatment was unauthorized. This is because the statutory requirement of petitioning for approval of a change presupposes present treatment is being allowed and is appropriate only if existing medical assistance still continues.” (Citations and punctuation omitted.) Wright v. Overnite Transp. Co., 214 Ga. App. 822 (1), 823 (449 SE2d 167). At the time the ALJ decided the case sub judice, the General Assembly had “amended OCGA § 34-9-201 to specify that referrals for ancillary medical services do not require authorization from the Board, thereby legislatively overruling Lee Fabricators [v. Cook, 203 Ga. App. 450, supra] and Brown [v. Transamerica, IMS, 200 Ga. App. 272 (1) (407 SE2d 430)] as of July 1, 1994, the effective date of the bill. [Ga. L. 1994, p. 895, § 11 (b) (2).]” Capital Atlanta v. Carroll, 213 Ga. App. 214, 216 (3), 217 (3) (b), supra. Nevertheless, in its order of November 2, 1994, the superior court erroneously applied this legislatively overruled case law as authority requiring a remand in the case sub judice, and in this Court, the employer continues to cite this legislatively overruled case law. “[A] reviewing court should apply the law as it exists at the time of its judgment rather than the law prevailing at the rendition of the judgment under review. . . .” (Emphasis in original.) City of Valdosta v. Singleton, 197 Ga. 194, 206 (3), 208 (28 SE2d 759). Moreover, I agree with the ALJ that the employer’s original (and tardy) notice to controvert liability vel non acts as a waiver of the subsequently asserted position that Dr. Kim was not an authorized physician. “The law of workers’ compensation generally requires that the employee will be liable for non-authorized treatment if the expenses are incurred without giving the employer an opportunity to furnish treatment; if[, however, as in the case sub judice,] the employer does not adequately meet the duty of providing treatment the employee may make other arrangements and once treatment by a physician is undertaken an employer may not change positions and cut off the right to continue such treatment.” (Citation omitted.) Boaz v. K-Mart Corp., 254 Ga. 707, 709 (1), 710 (334 SE2d 167). “Since the award of the [ALJ, as approved by the Appellate Division,] was supported by ‘any evidence,’ an affirmance by the superior court was mandated.” Bel Arbor Nursing Home v. Johnson, 192 Ga. App. 454 (385 SE2d 315). In my view, the superior court erred in failing to affirm the award of medical benefits and further erred in failing to affirm the award of OCGA § 34-9-108 (b) attorney fees. Ordinarily, when a judgment is the result of an erroneous legal theory, a reversal is mandated. All Phase Elec. Supply Co. v. Foster & Cooper, Inc., 193 Ga. App. 232, 233 (2) (387 SE2d 429). As my colleagues in the majority would nevertheless affirm, I respectfully dissent.

Decided October 31, 1995

Reconsideration denied November 27, 1995.

Robert R. Pagniello, Leslie A. Lunsford, for appellant.

Bruce P. Johnson, for appellee.


author: Andrews, Judge.

text:
    A95A1517, A95A1518.
    PORTER v. INGLES MARKET, INC. et al.; and vice versa.
    (464 SE2d 212)
   Andrews, Judge.

The applications of Porter, employee, and Ingles Market, Inc., employer/self-insurer, were granted to consider, respectively, the issues of the extent of the superior court’s review authority and a change of physician by the employee without complying with OCGA § 34-9-201 (e).

Porter fell on Ingles’ premises on July 18, 1990, suffering injuries to her neck and right shoulder, including headaches and a stiff neck. Ingles did not have a posted panel of physicians. In August 1990, she underwent a discectomy by Dr. Jacobs, a neurologist, for a herniated disc between the fifth and sixth cervical vertebrae. She was later treated by Dr. Osborn, an orthopedist, who performed a second discectomy and fused the fifth and sixth cervical vertebrae. Porter thereafter underwent disc decompression surgery by Dr. Loftman, another neurosurgeon.

Case No. A95A1518

1. Ingles initially paid Porter’s medical and income benefits without contesting coverage. Ingles did object to her treatment in 1992 by Dr. Riddell, a psychiatrist, for depression and an anxiety disorder related to her injury and resulting disability. While the other treating physicians had been approved by Ingles, Dr. Riddell was not, and Porter did not seek a change of physician or treatment under OCGA § 34-9-201 (e). She had, however, been referred to Dr. Riddell by her approved treating physician, Dr. Osborn.

The ALJ determined that the treatment by Dr. Riddell was not authorized and did not direct Ingles to pay the bills from this treatment. On June 21, 1994, the board issued its order reversing this portion of the ALJ’s decision, determining that, since Ingles did not have a posted panel of physicians, Lee Fabricators v. Cook, 203 Ga. App. 450 (417 SE2d 35) (1992), did not apply, and Ingles was responsible for these bills.

In Case No. A95A1518, Ingles appeals from the superior court’s affirmance by operation of law of this portion of the board’s decision, contending the matter is controlled by Wright v. Overnite Transp. Co., 214 Ga. App. 822 (449 SE2d 167) (1994).

(a) “[W]here the claimant changes doctors at a time the employer is providing medical care, the employer’s subsequent termination of medical care and controversion of the claim does not excuse the claimant’s failure to petition for a change ‘at the time other medical services were sought.’ K-Mart Corp. v. Anderson, 166 Ga. App. 421, 423 (304 SE2d 526) (1983). [Cits.]” (Emphasis supplied.) Wright, supra at 823 (1).

Therefore, since Ingles was providing medical care at the time Porter consulted Dr. Riddell, Porter was required to petition the board for a change of physician under OCGA § 34-9-201 (b) (1) at the time the board issued its decision on June 21, 1994.

(b) On July 1, 1994, however, the amendment to OCGA § 34-9-201 (b) (1) became effective. That amendment provided that the authorized physician could “arrange for any consultation, referral, and extraordinary or other specialized medical services as the nature of the injury shall require without prior authorization from the board. . . .”

We recently held that this amendment should be applied retroactively. Barnes v. City of Atlanta Police Dept., 219 Ga. App. 139 (464 SE2d 609) (1995).

Therefore, the affirmance by operation of law of the board’s order directing Ingles to pay for Dr. Riddell’s services was correct, although for the reasons discussed above. A decision right for any reason will be affirmed.

Case No. A95A1517

2. In Case No. A95A1517, Porter appeals from the superior court’s order which remanded the case to the board, finding that Dr. Wood had changed his position after considering Porter’s Florida medical records of Dr. May and that “Drs. Jacob and Loftman were not afforded the opportunity to review complete medical records of the claimant before rendering causation opinions via their letters of . . . 1993. . . .” Therefore, the court’s order remanded to the board in order to afford Drs. Jacob and Loftman the opportunity to “affirm or revise their opinions regarding the prior injury of the claimant and job-related disability.”

This was done even though the ALJ’s decision, affirmed by the board, had determined that neither Dr. Wood’s change of opinion nor the 1986 through 1989 records of Dr. May’s treatment of Porter constituted newly discovered evidence under OCGA § 34-9-221 (h), because it was not of such a character that it likely would have produced a different result if it had been procurable previously. Anderson v. Araguel, Sanders &c., 163 Ga. App. 610, 612 (295 SE2d 750) (1982). Compare Carpet Transport v. Pittman, 187 Ga. App. 463, 468 (2) (370 SE2d 651) (1988) (Board and ALJ had not considered the newly discovered evidence to determine its effect).

Dr. May’s records reflect that, in late September 1986, Porter and her husband were lifting furniture when she hurt her neck. Dr. May diagnosed a cervical sprain, which resolved within a month. Mr. Porter testified at the hearing before the ALJ concerning this neck/ shoulder strain, even though Porter did not recall it. The records reflect continuing treatment by Dr. May for chronic low back pain through 1986 and 1987. Porter made no visits to him in 1988. On March 22,1989, Porter returned to Dr. May for treatment of low back pain resulting from lifting water at a charity event. Through nine visits thereafter, the only reference to neck pain is an entry on June 16, 1989, that she “still has discomfort in her neck, right hip and low back.”

The ALJ noted that Dr. Wood had conducted an independent medical examination of Porter in November 1990 in which he referred to the “right side bone spur and disc defect” which he opined did not explain what he described as her left-sided complaints. He nonetheless concluded that Porter’s job accident was probably a muscle and ligament strain superimposed upon the pre-existing degenerative disc.

Such aggravation of a pre-existing condition by an on-the-job injury is a compensable new accident. SMB Stage Line v. Leach, 204 Ga. App. 229, 231 (2) (418 SE2d 791) (1992); McLeroy Plumbing Svc. v. Starks, 201 Ga. App. 270, 271 (1) (410 SE2d 756) (1991).

Even accepting that Dr. Wood might have changed his opinion after seeing the 1989 entry, conflicting opinions by medical experts, under the “any evidence” rule, compel upholding the board’s award. SMB Stage Line, supra at 230 (1). Compare Carden v. Arrow Co., 193 Ga. App. 539, 540 (1) (388 SE2d 348) (1989) (doctor unable to give any opinion until a third test performed, which was found to be “new evidence”).

Here, the superior court did not conclude that the prior neck/ back injury had not been considered at all by the board, only that it was remanding for a new analysis of that evidence. Such a remand is beyond the authority of the court under OCGA § 34-9-105. “As to the facts, it could reverse the Board only if there was ‘not sufficient competent evidence in the record to warrant the members making the decision.’ [Cits.]” Iso-Graphics v. Evans, 205 Ga. App. 880, 881 (424 SE2d 24) (1992). Mere speculation that the evidence might be considered differently does not justify remand. Travelers Ins. Co. v. Hogue, 130 Ga. App. 844, 845 (204 SE2d 760) (1974); see Ansa Mufflers Corp. v. Law, 192 Ga. App. 45 (383 SE2d 574) (1989).

Decided October 31, 1995

Bennie H. Black, for appellant.

Wallace D. Magee, for appellees.

Judgment affirmed in Case No. A95A1518. Judgment reversed in Case No. A95A1517.

McMurray, P. J., and Blackburn, J., concur.

       His comment was the only reference to left-sided complaints. The remaining evidence, including Porter’s statement that she told Dr. Wood her pain was right-sided, was conflicting, and there is no basis for the court’s reevaluation of this evidence.


text:
    A95A0894, A95A0895.
    PIGGLY WIGGLY SOUTHERN, INC. v. SNOWDEN; and vice versa.
    (464 SE2d 220)
   Pope, Presiding Judge.

On a dark and rainy night, plaintiff Peggy June Snowden, a customer of defendant Piggly Wiggly Southern, Inc., was attacked in defendant’s unlit parking lot. The attacker stabbed, beat, robbed, abducted, and sexually assaulted plaintiff, leaving her seriously injured, both physically and emotionally. A jury awarded plaintiff $800,000. In Case No. A95A0894, defendant challenges the denial of its motion for a directed verdict, as well as several of the trial court’s rulings at trial. In Case No. A95A0895, plaintiff cross-appeals the trial court’s denial of her request for pre-judgment interest.

Case No. A95A0894

1. Defendant first argues that its motion for a directed verdict should have been granted because it only had a duty to protect plaintiff from foreseeable criminal acts, and the absence of prior similar crimes made this criminal act unforeseeable as a matter of law. See Savannah College of Art & Design (“SCAD”) v. Roe, 261 Ga. 764 (2) (409 SE2d 848) (1991).

(a) Defendant’s assertion that there were no prior similar crimes is not supported by the record. A plaintiff must show that the criminal act he suffered was foreseeable, and such foreseeability may be established by evidence of one or more prior similar crimes. SCAD, 261 Ga. at 765. Because foreseeability of danger is the crux of this analysis, the prior similar crimes need not be identical to the criminal act suffered by the plaintiff: “the test is whether the prior criminal activity was sufficiently substantially similar to demonstrate the [proprietor’s] knowledge that conditions on his property subjected his invitees to unreasonable risk of criminal attack.” Matt v. Days Inns of America, 212 Ga. App. 792, 795 (443 SE2d 290) (1994), aff’d Days Inns of America v. Matt, 265 Ga. 235 (454 SE2d 507) (1995).

Applying this test in a logical rather than a formalistic manner, the Supreme Court has held: (1) that a prior robbery by force was sufficiently similar to an armed robbery to create a triable issue of fact regarding foreseeability, see Days Inns, 265 Ga. at 236; and (2) that a purse snatching was sufficiently similar to a more serious physical attack to create a triable issue of fact regarding foreseeability, see Lau’s Corp. v. Haskins, 261 Ga. 491 (1) (405 SE2d 474) (1991). But it has also held that peeping toms, vagrants, and petty thefts were not sufficiently similar to a sexual assault to give rise to a question of fact as to foreseeability. See SCAD, 261 Ga. 764 (2). Based on these cases, we consider the key to sufficient similarity to be not in the details of the crime or even in the degree of force used, but rather in the nature of the offense: was the prior incident also an offense against a person, or was it an offense against property or public morals? See Matt, 212 Ga. App. at 795.

In this case, one of defendant’s assistant managers testified that he knew of approximately 17 purse snatchings which occurred prior to this incident and involved customers entering and leaving the store. He also stated that there were always loiterers outside the door, who would frequently harass customers as well as employees and would occasionally threaten violence. Although the attack on plaintiff was far more serious, these prior incidents outside defendant’s store also involved confrontational attacks on persons, and thus were sufficiently similar to put defendant on notice of the unreasonable danger of criminal attack; the differences were merely of degree. See Wilks v. Piggly Wiggly Southern, 207 Ga. App. 842 (429 SE2d 322) (1993).

(b) Moreover, proving the occurrence of a prior similar crime is not the only way to establish foreseeability. See Shoney’s, Inc. v. Hudson, 218 Ga. App. 171 (2) (460 SE2d 809) (1995); Wallace v. Boys Club &c., 211 Ga. App. 534, 536, n. 2 (439 SE2d 746) (1993). Two of defendant’s assistant managers testified that they considered the parking lot unsafe, that they had repeatedly suggested the hiring of a security guard, that male employees always walked female employees to their cars at night, and that they would not allow their wives to go to the store alone. Even in the absence of prior similar crimes, this testimony would have been sufficient to create a question of fact as to whether defendant knew or should have known about the unreasonable risk of criminal attack in its parking lot. See Shoney’s, 218 Ga. App. at 173-174.

2. Defendant contends that its motion for new trial should have been granted because plaintiff had equal knowledge of the dangerous condition (i.e., she saw the parking lot was dark and nonetheless chose to get out of her car and go in the store). While plaintiff was aware of the darkness, however, there is no evidence that she was aware of the prior crimes in the parking lot. Cf. Wilks, 207 Ga. App. at 844 (plaintiffs “gut feeling” of danger does not constitute equal knowledge of danger so as to preclude recovery).

3. In its third enumeration of error, defendant argues that the trial court erred in refusing to admit police statistics showing the number of violent crimes reported in the City of Albany, Georgia, for the year preceding plaintiffs attack, offered in response to plaintiffs evidence that the store was located in a “high crime” area. Because the statistical report was for the entire city, without breakdown by area, the trial court ruled that its relevance would be minimal and it would inject too many collateral issues into the trial. Even though the admission of questionable evidence is favored, “ ‘the admission or exclusion of evidence which is objected to on the ground of relevancy lies within the sound discretion of the trial court, whose decision will not be disturbed on appeal absent a clear abuse of discretion.’ [Cit.]” Barnwell v. State, 197 Ga. App. 116, 118 (5) (397 SE2d 717) (1990). The trial court did not abuse its discretion in this case.

4. Defendant asserts that the trial court erred in admitting evidence of the prior purse snatchings. For the reasons discussed in Division 1 (a), the prior purse snatchings were relevant and evidence about them was properly admitted. J. C. Penney Co. v. Spivey, 215 Ga. App. 680 (452 SE2d 191) (1994), cited by defendant for the proposition that a prior crime must be almost identical to the instant one in order to be relevant on the foreseeability issue, is not binding precedent and represents a view rejected by the majority of this court in Matt v. Days Inns, 212 Ga. App. at 795.

5. Defendant next contends that the trial court should have granted its motion for mistrial after plaintiffs therapist mentioned in the course of her testimony that she had also counseled a woman who had been abducted from the parking lot of another Piggly Wiggly store. The trial court sustained defendant’s objection and instructed the jurors that the witness’s comment was irrelevant and entitled to no probative evidentiary value, and that they should totally disregard it. Moreover, the court admonished the witness to refrain from referring to incidents at other locations and directed plaintiffs counsel to refrain from eliciting testimony regarding such incidents. “ ‘(W)here prejudicial matters have been presented to the jury, the trial court, in its discretion, may determine whether a mistrial is required or whether the giving of cautionary instructions to the jury is an adequate remedial device. The granting or refusing of a motion for mistrial is necessarily a matter largely within the discretion of the trial judge, and unless it is apparent that a mistrial is essential to the preservation of the right to a fair trial, the exercise of the judge’s discretion will not be interfered with.’ (Citations and punctuation omitted.) [Cit.]” Bess v. State, 207 Ga. App. 295, 296 (2) (427 SE2d 813) (1993); accord Marriott Corp. v. American Academy of Psychotherapists, 157 Ga. App. 497, 506 (4) (277 SE2d 785) (1981). The trial court did not abuse its discretion in denying the motion for mistrial here.

Decided November 6, 1995

Reconsideration denied November 27, 1995

Hodges, Erwin, Hedrick & Coleman, William A. Erwin, for appellant.

6. Defendant’s challenges to the jury charge are also without merit. Defendant’s Request to Charge No. 26, which stated that the defendant had to foresee the “very type” of criminal act which occurred in order to be liable, is an incorrect statement of law under Matt v. Days Inns, 212 Ga. App. at 795. Defendant’s Requests to Charge Nos. 27 and 29 both dealt with foreseeability and were sufficiently covered in the general charge. And defendant’s Request No. 32, stating that defendant could not be liable for a sudden attack, was not tailored to the evidence in the case and was potentially misleading.

Case No. A95A0895

7. In her cross-appeal, plaintiff contends that the trial court erred in denying her motion to set aside the original judgment, which did not include pre-judgment interest, and enter a new one including prejudgment interest of $42,500. We agree. Although the trial court correctly concluded that the omission of pre-judgment interest was not a clerical mistake which could be corrected under OCGA § 9-11-60 (g), the court nonetheless had inherent power to amend the judgment because the motion was made in the same term in which the original judgment was entered. See Bank of Cumming v. Moseley, 243 Ga. 858 (257 SE2d 278) (1979); Cagle v. Dixon, 234 Ga. 698 (217 SE2d 598) (1975). Moreover, since plaintiff demonstrated that she had complied with the requirements of the Unliquidated Damages Interest Act, OCGA § 51-12-14, and that statute provides that a plaintiff who complies with its requirements “shall be entitled” to pre-judgment interest, the trial court abused its discretion by not exercising its inherent power to amend its judgment within the term.

Judgment affirmed in Case No. A95A0894. Judgment reversed in Case No. A95A0895.

Beasley, C. J., and Ruffin, J., concur.

Custer & Custer, Henry C. Custer, Cawthon H. Custer, Charles A. Gower, for appellee.

       Although the original judgment was based on a jury verdict, the subject of plaintiff’s motion to amend (i.e., the issue of pre-judgment interest) was a question for the court. See OCGA § 51-12-14 (d). Accordingly, the requested amendment does not go to the validity of the jury verdict, and the proviso that a trial court’s inherent power to amend within the term does not extend to jury verdicts does not apply. Cf. Edwards v. Yelverton, 147 Ga. App. 525 (249 SE2d 334) (1978).