text:
    A93A1090.
    HARDWICK v. THE STATE.
    (436 SE2d 676)
   Johnson, Judge.

Bobby Hardwick appeals from his conviction of obstruction of a law enforcement officer.

1. Hardwick’s challenge to the sufficiency of the evidence is without merit. The evidence shows that a police officer asked Hardwick’s daughter to move the car she was sitting in because it was improperly parked in a fire lane in front of a grocery store. Several minutes later, Hardwick confronted the officer outside the store and began screaming at him for having made Hardwick’s daughter move the car. The officer told Hardwick that he was creating a disturbance and repeatedly asked him to leave the store area. The officer warned Hardwick that if he did not leave he would be charged with disorderly conduct. Hardwick refused to leave and continued yelling at the officer. The officer then told Hardwick that he was under arrest. Hardwick walked away from the officer. The officer followed Hardwick, again told him that he was under arrest and attempted to handcuff him. Hardwick pushed the officer, tried to run away from him and threatened to physically hurt him. Hardwick ran into the store where he continued screaming and struggling with the officer. The officer finally apprehended Hardwick inside the store with the assistance of a store employee. Reviewing this evidence in the light most favorable to the jury’s verdict, we find that a rational trier of fact could have found Hardwick guilty beyond a reasonable doubt of obstruction of a law enforcement officer. OCGA § 16-10-24; Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Hardwick argues that the court erred in denying his motion to dismiss the charges because he was not advised of his Miranda rights. This argument is without merit because the appropriate remedy for a Miranda violation is the suppression of in-custody statements, not dismissal of the charges. See Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966). “Miranda warnings are required only when a law enforcement officer initiates questioning of an individual who has been taken into custody or otherwise significantly deprived of his freedom.” (Citations, punctuation and emphasis omitted.) State v. Walker, 204 Ga. App. 1, 2 (418 SE2d 384) (1992). “Only in-custody statements by the accused give rise to the issues of voluntariness and the Miranda warnings.” (Citations and punctuation omitted.) Carroll v. State, 203 Ga. App. 22, 23 (416 SE2d 354) (1992). Hardwick has not pointed to any improper questioning by the police or any in-custody statements which would give rise to the issue of Miranda warnings. The court did not err in denying the motion to dismiss the charges.

3. Hardwick’s contention that the court erred in denying his motion to dismiss the charges due to alleged conflicts in the testimony of the arresting officer is specious as it is the function of the jury to determine the credibility of the witnesses and to resolve any conflicts presented by the evidence. OCGA § 24-9-80; Walker v. State, 204 Ga. App. 694 (420 SE2d 375) (1992).

4. Hardwick complains that during voir dire the trial court improperly limited both his questioning of the jury pool and his number of peremptory challenges. “When an appellant seeks to prove error in the trial proceedings, the burden is on him to produce a transcript of the allégedly erroneous matter.” (Citations and punctuation omitted.) City of Atlanta v. Atlantic Realty Co., 205 Ga. App. 1, 4 (3) (421 SE2d 113) (1992). As the record does not contain a transcript of the voir dire proceedings, Hardwick has not met his burden and we are unable to consider the merits of these complaints.

5. Hardwick’s claim that the court erred in denying his motion for discovery of the State’s evidence is wholly without merit as the record clearly shows that the State provided Hardwick with all of the evidence in its possession.

6. Hardwick contends that the grocery store employee who helped the arresting officer apprehend Hardwick improperly placed Hardwick’s character in evidence by testifying that he smelled alcohol on Hardwick’s breath. Hardwick did not object to this testimony at trial and therefore cannot raise the objection for the first time on appeal. Dukes v. State, 205 Ga. App. 678 (1) (423 SE2d 295) (1992). Even if the issue were properly before us, it is without merit as the evidence was admissible as part of the res gestae of the offense and to show the circumstances of Hardwick’s arrest. Sosebee v. State, 169 Ga. App. 370, 371 (2) (312 SE2d 853) (1983).

Hardwick’s further argument that the court erred in allowing the store employee to testify about things that he did not personally observe is wholly without merit as a review of the employee’s testimony shows that he gave no such testimony; rather, the employee testified only about matters he personally observed.

7. The trial court’s charge to the jury that flight or attempted flight after a command from a law enforcement officer to halt may constitute obstruction of an officer was not erroneous as it is a proper statement of the law and is supported by the evidence. Sanders v. State, 204 Ga. App. 545, 547 (1) (b) (419 SE2d 759) (1992); Tankersley v. State, 155 Ga. App. 917, 919-920 (4) (273 SE2d 862) (1980).

8. Hardwick’s ninth enumerated error is a general objection to the trial court’s refusal to give any of his ten requested jury charges. In his brief, Hardwick has not referred to any evidence in the record or transcript which supports any of his requested charges. Although Hardwick has cited general legal principles in support of his enumeration, he has not applied those principles to any particular requested charge. Under these circumstances, we find that Hardwick’s generalized argument in support of this enumeration of error is unsatisfactory for consideration on appeal and the enumeration is therefore deemed abandoned. Court of Appeals Rule 15 (c). Moreover, haying examined the court’s instructions to the jury as well as the charges requested by Hardwick, we find that taken as a whole the charge given was complete and accurate. Krause v. Vance, 207 Ga. App. 615, 621 (13) (428 SE2d 595) (1993).

9. Hardwick complains that the court erred in refusing the jury’s request for a charge on the definitions of the words “dragging” and “running.” The record shows that the trial judge told the jurors that although he would not give them such a charge, he would provide them with a dictionary for the definitions. Upon inquiry by the court, Hardwick plainly stated that he did not object to the judge handling the jury’s question in this manner. Hardwick’s “[acquiescence completely deprives him of the right to complain further; he has agreed that the trial court’s ruling was correct by submitting to it. Failure to object to the procedure amounts to waiver.” (Citations and punctuation omitted.) Robinson v. Moonraker Assoc., Ltd., 205 Ga. App. 597, 598-599 (423 SE2d 44) (1992).

Decided September 21, 1993

Reconsideration denied October 6, 1993

Bobby Hardwick, pro se.

Robert W. Hunter III, Solicitor, J. Michael Spence, Assistant Solicitor, for appellee.

10. Hardwick’s argument that the court erred in refusing to admit two documents into evidence presents nothing for review because the purported documents, although attached to Hardwick’s brief, are not contained in the record. “[A] brief or an attachment thereto cannot be used as a procedural vehicle for adding evidence to the record. We must take our evidence from the record and not from the brief of either party.” (Citations and punctuation omitted.) Henderson v. State, 203 Ga. App. 733, 734 (1) (417 SE2d 413) (1992).

Judgment affirmed.

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


source: Caselaw Access Project

author: Johnson, Judge.

license: Public Domain

text:
    A93A1275.
    BURDETTE v. THE STATE.
    (436 SE2d 502)
   Johnson, Judge.

Benjamin Mark Burdette pled guilty to possession of less than one ounce of marijuana in violation of the Georgia Controlled Substances Act after the trial court denied his motion to suppress. The trial court expressly approved the reservation of this issue for review on appeal by written notation on the sentence form. See Mims v. State, 201 Ga. App. 277, 278-279 (1) (410 SE2d 824) (1991).

The following facts were introduced at the motion to suppress hearing. The police went to a Bennigan’s restaurant after receiving complaints about activities in the parking lot involving a man named William Ridgeway. After taking Ridgeway into custody for possession of marijuana, they drove to his apartment to conduct a consent search. When they entered the parking lot of Ridgeway’s apartment complex, Ridgeway pointed to Burdette, who was sitting in his car in the parking lot and identified him as the person from whom he had purchased the marijuana. When Burdette saw the caravan of marked and unmarked police vehicles, he attempted to leave the parking lot. The police told him to stop and explained the reason for detaining him. The police asked for permission to search the car, which Burdette gave. The search resulted in the discovery of less than an ounce of marijuana.

Burdette argues that he was lawfully , sitting in a parking lot when Ridgeway, who was not a known informer, and had no proven indicia of reliability, pointed him out to police. When Burdette attempted to drive out of the parking lot, he had not violated any traffic laws or done anything which would have justified a traffic-related stop. Ridgeway did not indicate to police that he had any reason to believe that Burdette had drugs in the car at that moment, or was scheduled to meet him to make a buy. Therefore, he argues, there was no articulable suspicion justifying an investigatory stop.

Burdette’s argument that the information giving rise to the stop must come from a reliable informant is without merit. An inquiry into the indicia of reliability of the informant is appropriate when determining the presence or absence of probable cause but is inapplicable to evaluating information prompting a mere investigatory stop. Watson v. State, 159 Ga. App. 618, 619 (1) (284 SE2d 636) (1981). It is uncontroverted that Burdette was not violating any traffic laws and that it was solely the information from Ridgeway which prompted the police to conduct the investigatory stop. Burdette’s third assertion, that the stop was unjustified because there was no evidence that Burdette was committing a crime or about to engage in criminal activity at the time of the stop, requires a more thorough analysis.

“ ‘Although an officer may conduct a brief investigative stop of a vehicle, see Delaware v. Prouse, 440 U. S. 648 (99 SC 1391, 59 LE2d 660) (1979), such a stop must be justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct. Terry v. Ohio, 392 U. S. 1, 27 (88 SC 1868, 1883, 20 LE2d 889, 909) (1968); United States v. Brignoni-Ponce, 422 U. S. 873 (95 SC 2574, 45 LE2d 607) (1975). Investigative stops of vehicles, are analogous to Terry-stops, Terry, supra, and are invalid if based upon only “unparticularlized suspicion or ‘hunch,’ ” 392 U. S. at 27 (88 SC at 1183, 20 LE2d at 909).’ United States v. Smith, 799 F2d 704, 707 (11th Cir. 1986). ‘An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity. (Cits.)’ United States v. Cortez, 449 U. S. 411, 417 (101 SC 690, 66 LE2d 621) (1981).” Evans v. State, 183 Ga. App. 436, 438 (2) (359 SE2d 174) (1987). The question pertinent to this case is whether information supplied to police by Ridgeway, i.e., that Burdette had previously sold him drugs, is sufficient to satisfy the test articulated in Cortez, supra, that a person subjected to an investigatory stop is, or is about to be, engaged in criminal activity. The inquiry must focus on whether unconfirmed information regarding past activity can give rise to an articulable suspicion of present or future criminal activity sufficient to justify an investigative stop.

Decided September 16, 1993

Reconsideration denied October 6, 1993

Lee Sexton & Associates, Lee Sexton, for appellant.

Keith C. Martin, Solicitor, Evelyn Proctor, Assistant Solicitor, for appellee.

Ridgeway’s identification of Burdette as the supplier of the marijuana, coupled with his presence outside Ridgeway’s apartment, remove the police’s actions beyond the realm of either the “unparticularlized suspicion of hunch” standard articulated in Terry, supra, or “mere caprice or arbitrary harassment.” See State v. Watson, 205 Ga. App. 313, 314 (422 SE2d 202) (1992). These facts allow a reasonable inference to be drawn that Burdette may have been in the vicinity for reasons related to present or incipient drug activity. In interpreting the parameters of the Fourth Amendment, Georgia appellate courts have written: “It is clear that in cases where there are some reasonable articulable grounds for suspicion, the state’s interest in the maintenance of community peace and security outweigh the momentary inconvenience and indignity of investigatory detention. . . . Each case depends on its own facts. The point at which the routine protection of the public becomes an invasion of the right of privacy of the individual must rest on the particular circumstances involved.” (Citations and punctuation omitted.) Roberts v. State, 193 Ga. App. 96, 98-99 (386 SE2d 921) (1989). While it is clear that the police lacked probable cause for an arrest, in viewing the whole picture, there was sufficient information to justify an investigatory stop. See Evans, supra.

The trial court in this case made a finding that the grounds for the stop articulated by the police were reasonable. “On appeal of the denial of a motion to suppress, the evidence is to be construed most favorably to the upholding of the findings and judgment made. The trial court’s findings must be adopted unless determined to be clearly erroneous. The facts in this case do not dictate a departure from this general rule.” (Citations and punctuation omitted.) Watson v. State, 190 Ga. App. 696 (379 SE2d 817) (1989).

Judgment affirmed.

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


author: Blackburn, Judge.

text:
    A93A1444.
    STEWART v. THE STATE.
    (436 SE2d 679)
   Blackburn, Judge.

On March 1, 1991, a six-count indictment was returned against Larry Neal Stewart, appellant. After a trial on the charges brought in the indictment, the jury found Stewart guilty of child molestation, statutory rape, and aggravated child molestation; not guilty of sodomy and aggravated molestation; and a mistrial was declared with regard to the rape count. Stewart appeals his conviction alleging 13 enumerations of error.

1. In his first enumeration of error, Stewart contends that the trial court erred by conducting voir dire of a juror outside of Stewart’s presence. The record reveals that it became necessary to conduct an additional voir dire of the members of the jury in order to determine whether any of them had been confronted by the victim’s father between the time they were selected as a member of the jury and the date of trial. After the trial judge questioned the jury panel generally with regard to the victim’s father, one juror indicated that he had been approached by the victim’s father; however, as soon as the juror realized who he was talking to, he terminated the conversation. The juror indicated that the victim’s father neither expressed an opinion as to the guilt or innocence of Stewart nor made any statement regarding sentencing. The trial judge suggested, in Stewart’s presence, that the juror be questioned in chambers and that if anything “noteworthy” transpired during questioning, it could be put on the record at that time.

A defendant’s right to be present during all phases of the trial is guaranteed by our constitution and counsel’s ability to waive it is limited. Wilson v. State, 212 Ga. 73, 78 (90 SE2d 557) (1955); Fictum v. State, 188 Ga. App. 348, 349 (373 SE2d 54) (1988). However, such right can be waived where done so by his attorney in the defendant’s presence, by the defendant’s express authority, or by subsequent acquiescence of the defendant. Id. In the present case, it is uncontroverted that the conduct of the voir dire of the juror in the trial judge’s chambers was agreed to by Stewart’s counsel in Stewart’s presence without objection. Such conduct waives defendant’s right to be present during voir dire. Williamson v. State, 207 Ga. App. 565, 566-567 (428 SE2d 628) (1993). Furthermore, if the conduct of the voir dire was error, it was not preserved by Stewart or his counsel and defendant cannot raise this issue for the first time on appeal. McKenzie v. State, 188 Ga. App. 571, 573 (373 SE2d 830) (1988).

2. In Stewart’s second enumeration of error, he contends that the trial court erred in allowing the jury to consider evidence of and convict him for a crime which occurred beyond the applicable four-year statute of limitation. Stewart was not tried or convicted of any crime committed beyond the dates set forth in the indictment. Stewart was the first to introduce evidence of previous allegations of sexual molestation in 1987 and the State objected to the relevance of such evidence, which objection was overruled. The trial court allowed Stewart’s counsel to introduce evidence regarding the 1987 allegations and investigation as Stewart contended same was relevant to his defense. Stewart cannot object to the introduction of evidence which was admitted over the State’s objection. In any event, Stewart failed to preserve this issue for appellate review. Price v. State, 204 Ga. App. 288 (1) (419 SE2d 126) (1992).

3. Stewart next complains that the trial court erred in failing to allow him to view the videotape of an interview with the victim and in failing to exercise the proper discretion regarding production of exculpatory content contained on the videotape. Prior to trial, Stewart requested that the trial judge conduct an in camera inspection, pursuant to Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963), of the Pike County Department of Family & Children Services’ file and the Stewart County Department of Family & Children Services’ file. The trial court indicated that it had conducted an in camera inspection of the files and the videotape and had provided Stewart with everything that was arguably favorable to his defense. The court noted that it found nothing exculpatory on the tape and declined to require its production.

This issue is controlled by Boatright v. State, 192 Ga. App. 112, 113 (385 SE2d 298) (1989), in which we reiterated that under Georgia law, a defendant in a criminal case is not generally entitled to statements made by prosecution witnesses prior to trial. The record indicates that the trial court’s inspection of the videotape and files satisfied the requirements of Brady and its progeny. Stewart’s reliance on Fields v. State, 260 Ga. 331, 335 (393 SE2d 252) (1990), is misplaced. The Fields decision did not create an exception to Brady, but merely indicated that under the circumstances therein, the videotape should be produced to the defendant upon remand. The facts of the case sub judice are distinguishable in that the trial court conducted an in camera inspection of the videotape and determined that nothing exculpatory or arguably favorable to Stewart was contained on the videotape. Our review of the tape indicates that the trial court’s assessment was correct. “Further, [Stewart] has failed to carry his burden to show either that any type of Brady violation occurred, ... or, that assuming error had occurred, he was prejudiced thereby. [Cits.] Accordingly, this enumeration of error is without merit.” Boatright, 192 Ga. App. at 114.

4. In his fourth enumeration of error, Stewart alleges that the trial court erred by admitting evidence of an oral statement made by him after he refused to sign a Miranda waiver form. During the Jackson-Denno hearing, the arresting officer testified that after he advised Stewart of his rights, Stewart appeared “numb.” The arresting officer testified that when he asked Stewart if Stewart understood the charges, Stewart responded, “I’m going to jail for a long time. I thought this was over with now,” a non-responsive answer which the officer did not induce.

The trial court determined that Stewart’s statement was voluntarily made and that the police officer’s question was not the kind of interrogation that is prohibited by Miranda and its progeny. We agree. See Shy v. State, 234 Ga. 816, 822 (218 SE2d 599) (1975).

5. Stewart complains that the trial court erred by giving an Allen charge at an early stage in the jury’s deliberations. It is uncontroverted that the jury had been deliberating six hours prior to the Allen charge. Furthermore, the trial court determined that the jury had contemplated and established a division of opinion on each count in the indictment. It is within the trial court’s discretion whether to give an Allen charge to a jury in disagreement. Jones v. State, 202 Ga. App. 642 (415 SE2d 64) (1992) (Allen charge was approved after deliberation of only four-and-one-half hours). Furthermore, the decision to give an Allen charge does not require a finding that the jury is deadlocked. Concepcion v. State, 200 Ga. App. 358, 360 (408 SE2d 130) (1991) (Allen charge given after only two hours). Therefore, under the facts of this case, we find no abuse of discretion with regard to the trial court’s decision to give an Allen charge.

6. Stewart next contends that the trial court erred in granting the State’s motion in limine thereby excluding expert testimony on the Sexual Abuse Allegation in Divorce Syndrome. After a hearing on the State’s motion in which testimony regarding the syndrome was heard, the trial court determined that the facts of the case did not warrant any testimony on the syndrome, that the syndrome had not been validated completely by the scientific community, and that the syndrome was not beyond the ken of the average juror. See Collar v. State, 206 Ga. App. 448 (426 SE2d 43) (1992). Therefore, the trial court followed the approved approach for determining whether a given scientific principle may be verified with such certainty as to become competent evidence, as set out by the Georgia Supreme Court in Harper v. State, 249 Ga. 519, 525 (292 SE2d 389) (1982). Furthermore, Stewart was allowed to argue his theory to the jury; the trial court merely disallowed expert testimony concerning it. As the admission of evidence rests within the trial court’s sole discretion, we find that the trial court did not abuse its discretion by granting the State’s motion in limine.

7. In his seventh enumeration of error, Stewart contends that the trial court erred, even in the absence of an objection, by instructing defendant’s expert to modify his testimony from the specific wording of the expert’s report. Stewart’s expert was a clinical psychologist who evaluated Stewart in connection with allegations of sexual molestation of the victim made in 1987. In the psychologist’s report, he indicated that he found no tests, interview, or observation findings which would lead him to believe that Stewart was sexually, psychologically, or physically abusive toward the victim. The trial court cautioned the psychologist that he should not give the jury the impression that based on his tests, Stewart was not a child molester. The court indicated that the expert could testify in terms of whether his findings were consistent with those he would expect from a child molester. As no objection was made to the trial court’s instructions regarding the psychologist’s testimony on the ultimate issue, Stewart waived his right to allege error. Bowen v. State, 203 Ga. App. 371, 373 (417 SE2d 18) (1992).

8. Stewart next alleges that the introduction of evidence of prior similar transactions, in absence of the required notice by the State, was error. This enumeration deals with evidence of the 1987 allegations of sexual molestation of the victim which Stewart introduced and to which no objection, other than the State’s, was made. Therefore, this enumeration is without merit. See also our discussion in Division 2.

9. In his ninth enumeration of error, Stewart contends that the trial court erred in failing to grant his motion for directed verdict. “A directed verdict of acquittal is authorized only where there is no evidence to support a verdict to the contrary.” (Citations and punctuation omitted.) Morris v. State, 205 Ga. App. 650 (423 SE2d 54) (1992). “The standard of review for the denial of a motion for a directed verdict of acquittal is the same as that for reviewing the sufficiency of the evidence to support a conviction.” (Citations and punctuation omitted.) Hug v. State, 205 Ga. App. 746, 747 (423 SE2d 700) (1992). Viewing the evidence in the light most favorable to the verdict, we find that there was sufficient evidence for the jury to find Stewart guilty beyond a reasonable doubt of child molestation, statutory rape, and aggravated child molestation. Therefore, this enumeration is without merit.

10. Stewart asserts that the trial court erred by failing to allow him to introduce a videotape of a family outing to show that the victim was not afraid of him and that the victim called him “Daddy” rather than Larry. However, it is uncontroverted that, at least, four witnesses testified from personal observation that the victim was not afraid of Stewart and that the victim called Stewart “Daddy.” Therefore, the evidence that Stewart sought to introduce was cumulative. The admissibility of evidence is within the sound discretion of the trial judge and in view of the cumulative nature of the excluded evidence, any error in excluding same was harmless.

Decided September 22, 1993

Reconsideration denied October 6, 1993

Alexander J. Repasky, for appellant.

11. Stewart contends that the trial court erred in improperly charging the jury as to the offense of rape. However, Stewart does not support this enumeration with citations of authority or legal argument and it is therefore deemed abandoned as required by Court of Appeals Rule 15 (c). See also Keith v. State, 204 Ga. App. 404, 405 (419 SE2d 491) (1992). Furthermore, our review of the trial court’s charge on rape did not reveal any error.

12. The trial court’s recharge to the jury regarding crimes committed within seven years of the indictment is enumerated as error. After some deliberation, the jury foreperson indicated that the jury questioned whether they were allowed to consider the alleged sodomy that took place in 1987 on the sodomy charge in the present indictment. The trial court then recharged the jury regarding the State’s burden of proving that Stewart, “on the date alleged in the indictment or within seven years prior to the time the indictment was returned,” committed the crimes as alleged in the indictment. As the applicable statute of limitation was seven years, this was a correct charge. OCGA § 17-3-1.

Stewart argues that because evidence of sexual allegations made in 1987 was introduced, the trial court’s charge attempted to apply the July 1, 1987, amendment to the statute of limitation in an ex post facto manner. Ga. L. 1987, p. 330, § 1. The statute of limitation prior to the amendment was four years, rather than seven years. However, it is uncontroverted that the allegations contained in the indictment did not include any crimes committed prior to May 1, 1989. Therefore, Stewart’s attempt to assert error due to his own introduction of evidence regarding the 1987 sexual molestation allegations is without merit. See Division 2.

13. In his final enumeration of error, Stewart asserts that the trial court erred by denying him “a substantive and procedurally fair trial as is constitutionally his right.” However, Stewart did not raise any constitutional issues at the trial court and, therefore, he did not preserve any constitutional issues for appellate review. See Miller v. State, 208 Ga. App. 547 (430 SE2d 873) (1993) and Cox v. State, 205 Ga. App. 375, 376 (422 SE2d 68) (1992).

Judgment affirmed.

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

Johnnie L. Caldwell, Jr., District Attorney, Randall K. Coggin, Assistant District Attorney, for appellee.

       The jury was selected on September 16, 1991, and the trial began on November 4, 1991.


text:
    A93A1753.
    SUN INSURANCE OFFICE, LTD. v. THIBADEAU.
    (436 SE2d 515)
   Blackburn, Judge.

On March 22, 1989, the appellee, Jeanne Thibadeau, was injured in a motor vehicle collision while she was a passenger in an automobile owned by Larry Neal and driven by Catherine Bunger. Subsequently, she commenced this action against Neal and Bunger, and also served a copy of the summons and complaint on Federal Insurance Company (Federal) and the appellant, Sun Insurance Office, Ltd. (Sun), as underinsured motorist carriers.

At the time of the collision, Thibadeau’s father was the named insured under an automobile insurance policy issued by Federal which afforded iiability coverage with a $300,000 limit and uninsured motorist coverage with a $50,000 limit. He also was the named insured under a homeowners and personal excess liability insurance policy issued by Sun, which provided up to $1,000,000 in personal excess liability coverage per accident. Thibadeau was an additional insured under both policies.

Because Neal and Bunger had liability insurance coverage equal to or exceeding the limits of the uninsured motorist coverage under the Federal policy, and thus were not under insured with respect to that policy, Federal was dismissed from the action without prejudice. With regard to the Sun policy, Thibadeau sought underinsured coverage up to the $1,000,000 policy limit, but Sun denied any uninsured/ underinsured coverage whatsoever under the policy. Both parties moved for summary judgment on this issue, and this appeal follows the trial court’s grant of summary judgment for Thibadeau and denial of summary judgment for Sun.

The pertinent provision under the Sun umbrella policy stated, with regard to uninsured/underinsured motorist coverage, that “[t]his coverage is only in effect if your primary Uninsured and Underinsured Motorists limits are shown in the Section III Schedule.” It is undisputed that Thibadeau had $50,000 primary uninsured motorist coverage under the Federal policy, but that this primary coverage was not shown in the Schedule. The Schedule indicated $300,000 primary liability coverage limits for the named insured’s two automobiles, but “No Coverage” with regard to motorcycles or mopeds, antiques, recreational vehicles, boats, and uninsured/underinsured motorist coverage.

“In construing an insurance contract the test is not what the insurer intended its words to mean, but rather what a reasonable person in the insured’s position would understand them to mean. Where such a provision is susceptible of two or more interpretations, the courts will construe it most favorable to the insured. [Cit.]” Gulf Ins. Co. v. Mathis, 183 Ga. App. 323, 324-325 (358 SE2d 850) (1987). Also in construing an insurance contract, words in an insurance policy must be given their usual and ordinary meaning. Canal Ins. Co. v. Wilkes Supply Co., 203 Ga. App. 35 (416 SE2d 105) (1992).

In moving for summary judgment, Thibadeau contended that the indication of “No Coverage” in the Schedule was tantamount to a specification of a coverage limit of $0, thereby giving rise to underinsured coverage of $1,000,000. However, we agree with Sun that the policy clearly provided uninsured/under insured motorist coverage only if the limits of the insured’s primary coverage were shown in the Section III Schedule, and that the indication of “No Coverage” did not satisfy that requirement. The only reasonable construction of the policy provision and the Section III Schedule is that the indication of “No Coverage” meant precisely that.

“The natural, obvious meaning is to be preferred over any curious, hidden meaning which nothing but the exigency of a hard case and the ingenuity of a trained and acute mind would discover. [Cit.]” Lester v. Great Central Ins. Co., 138 Ga. App. 353, 355 (226 SE2d 149) (1976). The natural, obvious meaning of the policy provision and Schedule in question is that the Sun umbrella policy provided no uninsured/underinsured motorist coverage, and the trial court thus erred in granting summary judgment for Thibadeau and denying Sun’s motion for such.

As an alternative basis for claiming excess underinsured motorist coverage under the Sun policy, Thibadeau relies upon another policy provision that stated: “In addition to our limit of liability for Personal Excess Liability Coverage, we shall provide the Additional Coverages shown below for an occurrence which is covered by Personal Excess Liability Coverage and is either: 1. not covered by any primary insurance shown in the Section III Schedule or any other insurance which applies; or 2. covered by a primary policy under which one of these Additional coverages has been exhausted.” The specified additional coverages included items such as defense of a lawsuit against the insured, payment of bonds, and expenses incurred by the insured at the insurer’s request; uninsured/under insured motorist claims were not among the listed items. This section merely indicated coverage for the additional items listed, and, contrary to Thibadeau’s assertion, provided no reasonable basis for finding that the Sun umbrella policy afforded coverage for uninsured/under insured motorist claims not covered by primary insurance shown in the Section III Schedule.

Similarly, Thibadeau misplaces her reliance upon the “Other Insurance” clause of the Sun policy which stated that “Our coverage is excess over any other insurance. This means all insurance which covers you or any insured, whether it is shown in the Section III Schedule or not.” This provision merely emphasized that any coverage under the policy is not primary, and would be available only upon the exhaustion of any other insurance. The term “our coverage” created no independent right to insurance. Further, the policy specifically provided for no coverage of uninsured/underinsured motorist claims, and that specific contract provision must prevail over a more broadly inclusive one. Holtzclaw v. City of Dalton, 189 Ga. App. 650, 652 (377 SE2d 196) (1988).

Decided September 23, 1993

Reconsideration denied October 6, 1993

Chambers, Mabry, McClelland & Brooks, E. Speer Mabry III, Edwin L. Hamilton, Rex D. Smith, S. Deeann Boatright, for appellant.

Bentley, Karesh & Seacrest, Karsten Bicknese, Richard B. Crohan, Roberts & Isaf, Lawrence E. Newlin, Thomas, Kennedy, Sampson & Patterson, Thomas G. Sampson, Jeffrey E. Tompkins, for appellee.

Judgment reversed.

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


text:
    A93A1877.
    GARNER v. VICTORY EXPRESS, INC.
    (436 SE2d 521)
   Blackburn, Judge.

This action arose out of a motor vehicle collision on November 29, 1990, when the van driven by the plaintiff-appellant, Kenneth Garner, struck the rear of a tractor-trailer owned by the defendantappellee, Victory Express, Inc. At the time of the collision, the tractor-trailer was stopped, partly in the left turn lane and partly in the left traffic lane, awaiting to make a left turn.

Following trial in the matter, the jury returned' a verdict in favor of Victory Express. On appeal, Garner contends that during closing argument, the trial court erred in overruling his objection to defense counsel’s reference to the lack of any evidence that the driver of the tractor-trailer rig was unsafe or careless.

Generally, a plaintiff may not prove a defendant’s negligence by his prior driving record or his general character for carelessness or recklessness in driving. Whidby v. Columbine Carrier, 182 Ga. App. 638 (356 SE2d 709) (1987). In the instant case, when defense counsel referred to the absence of any evidence that the driver was unsafe or careless, Garner objected on the grounds that inasmuch as he could not adduce evidence on that issue, the defendant should not be allowed to remark on the absence of such. However, regardless of the merits of Garner’s argument, we find that he failed to invoke a reviewable ruling by the trial court on this issue by not specifying what action he wanted the trial court to take at the time of the objection.

Decided September 24, 1993

Reconsideration denied October 6, 1993

William J. Mason, for appellant.

Self, Mullins & Robinson, Ronald W. Self, for appellee.

In objecting to improper closing argument to the jury, it is “incumbent on the objecting counsel to make known to the court ‘the action which he desires the court to take.’ In this type case, the available actions by the court are the granting of the following forms of relief: (1) an instruction or admonition to the jury to disregard the improper argument; or, if this is deemed inadequate to remove the harmful effect, (2) instruction or admonition of the jury plus a reprimand or rebuke of offending counsel; or, as a last resort, (3) mistrial. Although counsel made known his objection to the argument and the grounds therefor prior to the court’s ruling thereon, he failed to specify what form of relief he desired in seeking the ruling, hence failed to invoke a reviewable ruling.” Seaboard Coast Line R. Co. v. Wallace, 227 Ga. 363, 365 (180 SE2d 743). (1971).

Judgment affirmed.

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


author: Birdsong, Presiding Judge.

text:
    A93A1096.
    ETHERIDGE v. CHARTER PEACHFORD HOSPITAL, INC. et al.
    (436 SE2d 669)
   Birdsong, Presiding Judge.

Linda Etheridge appeals the grant of summary judgment to defendants Charter Peachford Hospital, Inc., its chief medical officer, Dr. Steven R. Lee, and Dr. Fiameta Vargas in Etheridge’s suit for false imprisonment and malicious arrest of her 12-year-old daughter.

Appellant claims that after she had her daughter voluntarily admitted to Charter Peachford for psychiatric evaluation, appellees improperly held the child longer than three days and failed to discharge her on appellant’s request, and improperly tried to have the child involuntarily committed by juvenile court for continued psychiatric care. The child appeared to develop behavioral problems in fifth grade. School officials believed she was mentally disturbed and was a danger to herself and others. Appellant disputes that conclusion but concedes that in March 1989, the child’s teacher found a diary in which the child suggested she would kill herself and her teachers. She was also accused of bringing a knife to school. Department of Human Resources (DHR) counselors urged appellant to have the child evaluated at Charter Peachford.

Appellant contends she was verbally advised that the evaluation would take only three days. On March 29, 1989, appellant executed a voluntary commitment application form and a consent to treatment form. The child was admitted and appellee Vargas was assigned as her staff physician. Appellant contends that not until two days later did Dr. Vargas see the child or contact appellant. Finally on March 31, appellant called the hospital; she was told the child did not wish to speak to her and she was not allowed to see the child. Appellant demanded her release. On Saturday, April 1, Dr. Vargas told appellant the child needed to be in the hospital a little longer. Appellant went to the hospital to remove the child and executed a “Request for Discharge by Voluntary Patient.” Appellant says she was told the child would be released within 72 hours of execution of this form, but she heard nothing until April 5, when Dr. Vargas told her that involuntary commitment proceedings were being initiated. On April 5, Dr. Vargas completed a Form 1021, authorizing retention for treatment. Another physician concurred in the Form 1021.

The Form 1021 was executed by appellee Lee as Chief Medical Officer (CMO). He started involuntary commitment proceedings in DeKalb Juvenile Court on April 5. The child was asked to acknowledge receipt of the petition but appellant was not served. She says she was unaware of the proceedings, but concedes she was told on April 5, that involuntary commitment proceedings had been initiated. After further efforts to get her child released, appellant filed a petition in Spalding Juvenile Court to have the child declared “deprived.” On Monday, April 11, that court so found and commanded her release. A Spalding County deputy sheriff went to the hospital and threatened the employees, who released the child despite appellees’ concerns for her mental state and their questions as to the jurisdiction of the Spalding County order. Appellees concluded the child suffered from major depression, dissociative and possible multiple personality disorders with a history of homicidal and suicidal ideation, and that she constituted a substantial risk of harm to herself and others.

Appellant does not enumerate that appellees acted in bad faith in making their conclusions as to the child’s mental state. She contends the child was falsely imprisoned without process because appellees failed to comply with DHR regulations and held her after expiration of parental consent and pursuant to void or defective process; and that the child was maliciously arrested without process or with void or defective process. Appellant urges error on the denial of her motion for summary judgment because appellees failed to comply with state law in filing the petition for involuntary commitment, rendering it void ab initio. Held:

1. The applicable law is OCGA § 37-3-20 et seq. (treatment for mental illness of voluntary patients). The parties seem to assume that later emendations of the Act apply, but the immunity given by OCGA § 37-3-4 to appellees if they acted in good faith in compliance with the law can be judged only under the law existing at the time of the events in 1989.

2. OCGA § 37-3-20 et seq., then and now, makes no provision for a three-day evaluation of a person voluntarily committed. No statutory provision clearly mandates a voluntarily committed patient’s discharge within a certain time. Rather, OCGA § 37-3-20 provides that the CMO or his designees (see § 37-3-1 (1)) may receive a child for observation, by application of a parent, and “[i]f found to show evidence of mental illness and to be suitable for treatment, such person may be given care and treatment at such facility; and . . . may be detained . . . until discharged pursuant to Code Section 37-3-21 or 37-3-22.” Code § 37-3-21 (a) provides: “[I]n no event shall any such patient be so discharged if, in the judgment of the [CMO], such discharge would be unsafe for the patient or others.” (Emphasis supplied.) Thus, appellant’s contention that she was entitled to have the child discharged within three days or on her request is contrary to law. The child was found to be a danger to herself and others and was properly held pursuant to OCGA §§ 37-3-21 (a) and 37-3-22. Appellees cannot be liable in tort for refusing to discharge her.

Appellant’s contention that she was told the child would be kept only three days for evaluation does not control § 37-3-21 (a), nor does it vary the terms of the commitment papers she signed. See My Fair Lady of Ga. v. Harris, 185 Ga. App. 459, 460 (364 SE2d 580). Neither of the voluntary commitment forms promises discharge in three days or in any time period.

3. Failure to initiate involuntary commitment proceedings pursuant to § 37-3-21 (a) in a certain time or manner does not mandate or permit discharge of a voluntarily committed patient, since “in no event” may such a patient be discharged when the CMO has determined discharge would be unsafe for the patient or others. OCGA § 37-3-21 (a).

4. Appellant alleges that the child was falsely imprisoned or maliciously arrested because the involuntary commitment proceedings were defective or void. However, the child was detained because appellees were forbidden by OCGA § 37-3-21 (a) to release her, not because involuntary commitment proceedings had been initiated. Therefore, no defect in the involuntary commitment proceedings rendered her continued detention unlawful.

As to actions for false imprisonment and malicious arrest, see Barber v. H & H Muller Enterprises, 197 Ga. App. 126, 129-130 (397 SE2d 563) and Williams v. Smith, 179 Ga. App. 712, 713-714 (348 SE2d 50). No cause of action can be maintained for any tort because the child was lawfully detained and there is no genuine issue of malice or bad faith.

5. As to the allegations that the petition for involuntary commitment was not properly constructed or filed, appellees are immune for good faith compliance with the law. OCGA § 37-3-21 (a) is uncertain as to whether §§ 37-3-41; 37-3-61; 37-3-81, or some DHR regulation applies to a patient voluntarily admitted when her release is found to be unsafe for herself or others. Appellant contends those three Code sections provide alternative procedures for involuntary commitment. However, Code §§ 37-3-41 and 37-3-61 seem not to apply at all. In 1986 the legislature added § 37-3-81 as a procedure for securing involuntary treatment of a voluntarily committed patient (Ga. L. 1986, pp. 1098, 1107, § 4), but in its opening language § 37-3-81 excludes patients voluntarily hospitalized under § 37-3-64 (a) (1) (A) (see Ga. L. 1986, pp. 1098, 1106, § 3), which in turn excludes from a mandatory five-day discharge requirement any patient “admitted as a voluntary patient under Code Section 37-3-20.” We therefore agree with appellees that § 37-3-81 on its face applies to patients first hospitalized on an involuntary basis, not to patients first hospitalized voluntarily under § 37-3-20.

There appears to be no statutory provision for discharge of a voluntarily committed patient when the CMO determines such discharge would be unsafe to the patient or others. OCGA § 37-3-21 (a) provides that such patients shall in no event be discharged. DHR has enacted regulations which are as contradictory and inconclusive as the statutes themselves, so it cannot readily be determined which regulations apply. Therefore, it cannot be said that appellees acted in bad faith in failing to comply strictly with any requirements in seeking involuntary commitment, and they are entitled to immunity. OCGA § 37-3-4.

6. Assuming § 37-3-81 applies, the failure of Charter Peachford to serve appellant with the involuntary commitment petition, while having the 12-year-old child sign a receipt for service of the petition, is troublesome. However, this did not cause or authorize the child’s detention, for the CMO had determined that her discharge would be unsafe to herself and others, and she could not be discharged. OCGA § 37-3-21 (a). The failure to serve appellant does not create an issue as to bad faith, because appellant concedes she was advised that such proceedings had been instigated and there is therefore no issue of intent to deceive her or to compromise her legal rights.

Decided September 16, 1993

Reconsideration denied October 7, 1993

Mullins & Whalen, Samuel H. Sullivan, Newton M. Galloway, for appellant.

Freeman & Hawkins, Michael J. Goldman, Lisa A. Curia, King & Spalding, William E. Hoffmann, Jr., Anita E. Hartón, for appellees.

7. Since appellant, in contravention of § 37-3-21 (a), secured the child’s release despite the CMO’s determination that her discharge would be unsafe and before a hearing was held on the involuntary commitment petition, no compromise of her rights by appellees is shown, and no damage.

The child was detained under the voluntary commitment papers filed by appellant and as mandated by § 37-3-21 (a). Appellees complied in good faith with the law and were entitled to immunity for any liability asserted by appellant. Accordingly, the trial court did not err in granting summary judgment to appellees and in denying summary judgment to appellant.

Judgments affirmed.

Pope, C. J., and Andrews, J., concur.


text:
    A93A1245.
    PAFFORD v. BIOMET et al.
    (436 SE2d 504)
   Birdsong, Presiding Judge.

Plaintiff Pafford appeals the grant of summary judgments to defendants in this medical product liability case.

Appellant Pafford underwent an operation in the spring of 1988, in which a metal spinal plate was installed to stabilize his spine while a fusion took place. A few months later, the spinal plate broke, necessitating its removal. This suit was filed in 1990, asserting that the breaking of the defective spinal plate caused his disability. Appellant could not determine precisely who manufactured the spinal plate, so he sued, as the most likely defendants, Biomet, a/k/a Orthopedic Equipment Company, and Pfizer Hospital Products Group, Inc., a/k/a Howmedica. Held:

1. On motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed most favorably to the respondent, warrant judgment as a matter of law. A defendant may do this by showing that the documents and evidence do not create an issue of fact; he need not affirmatively disprove the respondent’s case but may merely show an absence of evidence to support it. If the movant discharges this burden, the respondent cannot rest on his pleadings but must point to specific evidence giving rise to a triable issue. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474); OCGA § 9-11-56 (c).

The spinal plate does not bear the markings of either defendant. It bears the marking of an English entity which was absorbed by appellee Biomet, but it appears on a catalog page as having been made by Pfizer. Thus, appellant attempts to trace the spinal plate to both defendants, and contends that clues connecting each defendant to the plate create an issue of fact as to which company made the plate. Appellant thus shows nothing more specific than evidence that both defendants might have produced the plate. Since each defendant produced specific evidence that it did not manufacture the spinal plate, appellant cannot rest on his allegations that either defendant may have produced the plate but must produce specific evidence creating an issue of fact that one of the defendants produced the spinal plate. Lau’s Corp., supra. If he cannot produce specific conclusive evidence that a particular defendant produced the plate, there is no evidence from which a jury could determine that a particular defendant manufactured the plate.

2. In any case, the statute of limitation has run on this claim. Pfizer produced evidence that since 1976, all spinal plates manufactured by it have been made of a different material than this spinal plate, and have been marked with a “V” shield as its trademark. Biomet produced evidence that, since 1977, it has inscribed its own manufacturer’s markings on all plates produced. The operation room supervisor of South Georgia Medical Center testified that this plate had been in the hospital’s inventory since 1972, or, appellant contends, for eight years, which was some unknown time in 1980. It cannot be proved the suit filed in 1990 was filed within ten years.

OCGA § 51-1-11 (b) (2) provides that no product liability action for injury shall be brought “after ten years from the date of the first sale for use or consumption of the personal property causing or otherwise bringing about the injury.” This is a statute of repose. Its limitation on liability is based on reasonable expectations about the useful life of a manufactured product. Hill v. Fordham, 186 Ga. App. 354, 357 (367 SE2d 128). As a statute of repose, its limitation is placed on the “first sale” for use or consumption; it might sit on the shelf 20 years before being used or consumed by the person injured, in which case no manufacturer could stand behind its merchantability or fitness. OCGA § 51-1-11 (b) (2) does not provide that the “first sale for use or consumption” must be for the use or consumption of the person injured. If it had meant to refer only to use or consumption “by the person injured,” it would have so provided; and it would not have used the words “first sale” if it meant the limitation to apply to the use or consumption by the person injured. This spinal plate was “first [sold] for use or consumption” in 1972. (Emphasis supplied.) That it was, in fact, not used until 1988 does not change the limitation but reinforces it. The legislature did not intent to extend the limitations for an inordinate period of time, depending upon how long a merchant kept the product on its shelf, for this would create an absolute liability on the manufacturer. As to the statute generally, see Hatcher v. Allied Products Corp., 256 Ga. 100 (344 SE2d 418).

Decided September 16, 1993

Reconsideration denied October 7, 1993

Sutton & Associates, Berrien L. Sutton, for appellant.

Love & Willingham, John A. Gilleland, Michael J. Hannan III, Sullivan, Hall, Booth & Smith, John E. Hall, Jr., T. Andrew Graham, for appellees.

The trial court did not err in granting summary judgments to the defendants.

Judgments affirmed.

Pope, C. J., and Andrews, J., concur.


author: McMurray, Presiding Judge.

text:
    A93A1343.
    COLE v. CRACKER BARREL, INC. et al.
    (436 SE2d 704)
   McMurray, Presiding Judge.

Plaintiff Cole brought an action against Cracker Barrel, Inc. and Cracker Barrel Old Country Store, Inc. (“defendants”) for damages allegedly sustained when she slipped and fell while on defendants’ business premises. Defendants denied the material allegations of the complaint and filed a motion for summary judgment. The undisputed facts reveal that Cole slipped and fell while dining at a restaurant owned and operated by defendants. Cole testified that she did not notice a hazard or defect in the floor where she fell; that she was not distracted when she fell and that she does not know the cause of her fall. She merely explained that the area of the (wood) floor where she fell “just felt slippery.”

The trial court granted defendants’ motion for summary judgment. This appeal followed. Held:

Cole contends genuine issues of material fact remain as to defendants’ knowledge of the dangerous nature (“inherent slipperiness”) of the wood flooring which allegedly caused her fall.

“Since [Cole] entered the premises for purposes connected with the business of [defendants, she] occupied the status of invitee. As to such, the owner has a duty to exercise ordinary care in keeping the premises safe. OCGA § 51-3-1; Abney v. London Iron &c. Co., 152 Ga. App. 238 (1) (g) (262 SE2d 505) (1979), aff’d 245 Ga. 759 (267 SE2d 214) (1980). This includes ‘a duty to inspect the premises to discover possible dangerous conditions of which [the owner] does not know and to take reasonable precautions to protect the invitee from dangers which are foreseeable from the arrangement and use of the premises.’ Begin v. Ga. Championship Wrestling, 172 Ga. App. 293, 294 (322 SE2d 737) (1984), citing Prosser, Law of Torts (4th ed.) 393 § 61.” Barksdale v. Nuwar, 203 Ga. App. 184, 185 (416 SE2d 546). However, this does not mean that a proprietor is an insurer of the quality, durability or safety of materials used for construction of the premises. See Gibson v. Consolidated Credit Corp., 110 Ga. App. 170, 171 (1) (138 SE2d 77) (1964). On the contrary, if defendants’ premises’ floor “was constructed ‘of a material commonly accepted in the building industry,’ the standard of ordinary care [has] been met. Gibson v. Consolidated Credit Corp., 110 Ga. App. 170 (1)[, supra].” Madaris v. Piggly Wiggly Southern, 205 Ga. App. 405 (1), 406 (422 SE2d 273).

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). 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. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff’s claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial. See, e.g., Holiday Inns v. Newton, 157 Ga. App. 436 (278 SE2d 85) (1981). A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474).

In the case sub judice, there is no evidence that the wood flooring in defendants’ restaurant was defective; that the area where Cole fell was negligently maintained or that the wood flooring used in defendants’ restaurant is not an accepted flooring material commonly used in the building industry. The only evidence with regard to the condition of the floor at the time of Cole’s fall is her own deposition testimony that the floor “just felt slippery.” This evidence is insufficient to raise genuine issues of material fact as to defendants’ negligent maintenance, design or construction of its business premises. See Tolliver v. Hollingsworth, 161 Ga. App. 118 (289 SE2d 272). Further, affidavits of two of defendants’ patrons and a former employee of defendants describing prior incidents similar to Cole’s fall do not authorize a finding that defendants were negligent in maintaining their premises at the time of the incident which forms the basis of the case sub judice. “ ‘ “Our Supreme Court has held that ‘proof of nothing more that the occurrence of [a] fall is insufficient to establish the proprietor’s negligence.’ . . .” ’ J. C. Penney Co. v. Smith, 173 Ga. App. 612, 613 (327 SE2d 574). Accord Roberts v. Gardens Svcs., 182 Ga. App. 573 (356 SE2d 669).” Harmon v. Reames, 188 Ga. App. 812, 813 (374 SE2d 539).

Decided September 29, 1993

Reconsideration denied October 7, 1993

Blank & Associates, A. Russell Blank, for appellant.

Murray & Temple, William D. Strickland, John C. McCaffery, for appellees.

In view of the absence of evidence showing that Cole’s fall was the result of defendants’ negligence, we cannot say the trial court erred in granting defendants’ motion for summary judgment. See Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (4), supra.

Judgment affirmed.

Johnson and Blackburn, JJ., concur.


text:
    A93A1814.
    WALL et al. v. PHILLIPS.
    (436 SE2d 517)
   Blackburn, Judge.

The appellee, Ernestine Phillips, commenced this tort action against her former employer, Lithonia Lighting Products Company of Georgia, and the plant nurse, Debra Wall, alleging that Wall prescribed her a pain medication without first obtaining authorization from her treating company physician. The trial court denied the motion for summary judgment filed by Lithonia Lighting and Wall, and this court then granted their discretionary appeal to determine whether Phillips’ cause of action is barred by the Georgia Workers’ Compensation Act.

Phillips was hired by Lithonia Lighting in 1987. On January 15, 1990, she twisted her wrist while using a power screwdriver at work, and subsequently was treated by a number of workers’ compensation physicians, including Dr. Waldo Floyd. Ultimately, she stopped working on October 16, 1990, began receiving workers’ compensation benefits on October 23, 1990, and underwent wrist surgery in November 1990 and January 1991. Lithonia Lighting continues to pay weekly workers’ compensation benefits and all medical bills related to her claim.

While at work on June 6, 1990, Phillips reported to Wall complaining of wrist pain, at which time Wall indicated that she would call Dr. Floyd’s office for approval of a prescription for pain medication. On July 5, 1990, after the initial prescription was exhausted, Phillips returned to the plant nurse, who later informed Phillips that Dr. Floyd had authorized a refill of the prescription. On July 11,1990, Phillips actually saw Dr. Floyd and reported that the prescription was making her sleepy, and then discovered that Dr. Floyd’s records did not reflect his ever having prescribed the pain medication for her. In this tort action against Lithonia Lighting and Wall, Phillips contends that her wrist injury thus was further aggravated by Wall’s action of sending her back to work and prescribing her pain medication without authority.

In the instant case, in her original complaint, Phillips alleged professional negligence against Wall. However, she submitted no expert affidavit, and the defendants raised that omission in their answer. Three days before the trial court ruled on the motion for summary judgment filed by Wall and Lithonia Lighting, Phillips amended her complaint to delete her professional negligence claim against Wall and such is no longer in the case.

Under OCGA § 34-9-11 (a), “the Georgia Workers’ Compensation Act is now the exclusive remedy for injuries sustained by an employee during the course of employment resulting from the negligence of a co-worker.” Dickey v. Harden, 202 Ga. App. 645, 646 (414 SE2d 924) (1992). This bar also applies to intentional torts committed by one worker against a co-worker, unless the tortious act was committed for personal reasons unrelated to the conduct of the employer’s business. Murphy v. ARA Svcs., 164 Ga. App. 859 (298 SE2d 528) (1982). In the instant case, the alleged worsening of Phillips’ wrist injury clearly arose out of and in the course of her employment, and involved no personal animus between Phillips and Wall. Indeed, the alleged motivation behind Wall’s actions was to keep Phillips working. Under the above authorities, regardless of whether Wall’s alleged misconduct was negligent or intentional, Phillips’ tort action against Wall was barred under OCGA § 34-9-11. Phillips’ cause of action against Lithonia Lighting likewise is barred by the exclusive remedy provision of the Georgia Workers’ Compensation Act.

Phillips misplaces her reliance upon Jim Walter Homes v. Roberts, 196 Ga. App. 618 (396 SE2d 787) (1990). In Jim Walter, a default case, the former employer was deemed to have admitted to an intentional tort that was outside the purview of the Georgia Workers’ Compensation Act. Jim Walter thus has no application in the instant case, where the nursing services were rendered at the workplace and solely because of Phillips’ position as an employee of Lithonia Lighting and Phillips’ injuries were compensable under the Workers’ Compensation Act. Phillips’ reliance on Griggs v. All-Steel Buildings, 209 Ga. App. 253 (433 SE2d 89) (1993), is also misplaced, as unlike Griggs there has been no showing of fraud here and the injuries suffered by Phillips are compensable under the Workers’ Compensation Act.

Decided September 23, 1993

Reconsideration denied October 8, 1993

McLain & Merritt, Howard M. Lessinger, for appellants.

Sylvester & Associates, Chuck Sylvester, Genelle Jennings & Associates, David L. Venable, for appellee.

Judgment reversed.

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


author: Andrews, Judge.

text:
    A93A1028, A93A1029.
    In the Interest of W. W. C., a child (two cases).
    (436 SE2d 685)
   Andrews, Judge.

The father and mother of W. W. C. each appeal from the termination of their parental rights to W. W. C., who is now three years of age. The appeals are considered together.

“[T]he . . . standard of appellate review . . . where a parent’s rights to his child have been severed is ‘whether after reviewing the evidence in the light most favorable to the appellee [Department], any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost.’ ” Blackburn v. Blackburn, 249 Ga. 689, 694 (292 SE2d 821) (1982). E.g., In the Interest of B. P., 207 Ga. App. 242, 244 (427 SE2d 593) (1993).

So viewed, the evidence showed that the mother, Rebecca Cason, bore the child at age 18 while living with the father, John Cason, age 25, as common-law husband and wife. W. W. C. was placed in the temporary custody of DFACS on August 12, 1990, when he was nine months old. This was done because the Casons were having repeated domestic disputes and, during one such dispute, the child was left unattended while Ms. Cason ran after Mr. Cason who was leaving in his truck. At that time, Ms. Cason held on to the truck in an effort to make him stay until he drove off. The Casons had repeated domestic disputes in the trailer park where they were living, some resulting in police involvement, and eventually they were evicted from that park.

On October 1, 1990, a court order was entered finding that W. W. C. was a deprived child. OCGA §§ 15-11-2 (8) (A) and 15-11-81 (b) (4) (A) (i). This order was unappealed and was in effect at the time of the termination proceeding and binding on the Casons. In the Interest of J. M., 206 Ga. App. 508, 510 (426 SE2d 59) (1992). After his removal from the Casons in August 1990, the child was placed in one foster home from which he was removed and then placed with the Elders in October 1990, where he remains. After the child’s removal, Rebecca and John split up and she moved to Athens. In January 1991, they reunited and he moved to Athens with her while the child remained in Oconee County with the Elders.

In August 1990, psychological testing and examination of Ms. Ca-son was conducted by Dr. Born. He concluded that her overall cognitive ability was significantly below average, with a full scale IQ of 74. Further, she suffered from low esteem and chronic depression, which require long-term counseling which the doctor recommended for her. Ms. Cason reported sexual abuse by both her natural father and her uncle, with whom she lived for several years. Ms. Cason dropped out of school in the tenth grade and was employed as a waitress for one- and-one-half years, until asked to quit by Mr. Cason in May 1989. Mr. Cason was seen in her eyes as having rescued her from these abusive situations, although he and she were separated at the time of her psychological evaluation. Dr. Born recommended that the child remain in foster care after this evaluation. He concluded that Ms. Ca-son’s ability in the past to maintain employment was an asset, as was her expressed motivation to improve herself and reunite herself with her son, and that “[t]here remain many problems that need to be worked through, however. She is seen as a young woman who, with appropriate guidance and support, has the potential to adequately parent her child in the future.

When the child was initially removed from the parents, DFACS set up a plan to attempt to reunify the family. Although no copy of a plan is included in the record except the one of November 1991, testimony reflects that the initial plan included visitation with the child, conducted with each parent separately, that the parents attend parenting classes and marriage counseling, and that, beginning in June 1991, both parents pay weekly minimal amounts toward W. W. C.’s support. Also, Mr. Cason was to obtain drug screening. While the parents did attend parenting classes, the marriage counselor declined to work with them because he did not feel there was any possibility of improvement in their relationship. Mr. Cason placed the blame for their problems on Ms. Cason and DFACS and Ms. Cason was desperate to please him, although apparently unable to do so. Mr. Cason did not obtain the required screening and only visited the child sporadically. Ms. Cason initially visited regularly, although the child became upset and fussed in her presence. She would play with the child, but her play was more like that of one child with another rather than that appropriate between parent and child, according to the caseworkers.

At the time of the termination hearing in March 1992, the father had not seen the child since July 1991, even though he had been advised that this was required by the plan which had been incorporated into a court order and further told in the summer of 1991 that DFACS was recommending termination of his parental rights. The July 1991 visit had been conducted in the presence of the psychologist for evaluation purposes. Neither parent made any payments toward the child’s support during the 17-month period before termination, although Mr. Cason was employed full-time as a mechanic. Both parents acknowledged that they were having trouble paying their bills. Ms. Cason had become pregnant and delivered their second child in January 1992. She did not visit W. W. C. at all in November or December 1991, or January 1992. She missed three scheduled visits in February 1992, but did visit three times, in March, before the hearing.

In July 1991, Dr. Born conducted interviews with Mr. and Ms. Cason separately, then as a couple, and observed their interaction with W. W. C. He described the father’s overall demeanor during the session as one of “angry defiance.” When W. W. C. was brought into his parents’ presence by his foster mother, he did not orient to either parent, although Ms. Cason did attempt to interact with the child. Mr. Cason made no effort to do so. Dr. Born opined that Mr. Cason possessed “very strong oppositional, perhaps anti-social personality features.” Mr. Cason would not cooperate with additional evaluation. Dr. Born believed Mr. Cason’s prognosis for dealing with the problems in his life and relationship was very poor. At the time of this evaluation, Mr. and Ms. Cason were living together. Dr. Born concluded that Ms. Cason exhibited “strong dependency characteristics to the point that she continues to be obsessed with a relationship with her husband which is horrifically dysfunctional and emotionally abusive to her. Her dependency and self-esteem problems run very deep and her overall prognosis for change is quite poor.”

When W. W. C. was placed with the Elders in October 1990, he was very sick, including ear infections and respiratory problems. He could not sleep, was disturbed by loud noises, and was extremely clingy to Mrs. Elder. His day-care teacher observed that, during periods when W. W. C. was seeing his natural parents, he bit other children in the center. This behavior was not observed when there was no parental contact.

1. As to both the father and mother, we begin our analysis with the court’s earlier determination that the child was deprived.

“While it is true that past deprivation is not sufficient for termination without a showing of present deprivation, the past conduct of the parent is properly considered by the court in determining whether such conditions of deprivation are likely to continue. [Cits.]” In the Interest of J. L. Y., 184 Ga. App. 254, 257 (2) (361 SE2d 246) (1987).

(a) As to the father, this initial deprivation was followed by his failure to comply with the court-ordered plan designed to reunite him with his son and his failure to make any monetary contribution to the child’s support, although ordered to do so and gainfully employed for more than a year before the hearing. OCGA § 15-11-81 (b) (4) (C). Even in the presence of the child during the July evaluation, he made no effort to interact with W. W. C. and the child showed no sign of recognizing his father.

As to the father, we conclude that any rational factfinder could have found by clear and convincing evidence parental misconduct or inability as provided by OCGA § 15-11-81 (b). E.g., In the Interest of S. M. S., 207 Ga. App. 248, 250 (427 SE2d 598) (1993); In the Interest of J. M., supra at 510.

(b) Likewise, as to the mother, the court below found that she had failed to comply with the plan established to reunite her with the child. Specifically, she failed to visit the child for long periods and to pay the agreed-upon amount toward his support. Further, the court concluded that her focus was on her husband to the exclusion and detriment of the child, even though Mr. Cason was emotionally abusive to her and was unable or unwilling to accept any responsibility for their problems, making counseling to improve their relationship impossible. The mother functioned at a minimal level, reading at below a third-grade level, and, aside from one waitressing job, had not been gainfully employed.

The mother’s second enumeration argues as if the mental inadequacies were the sole basis for the court’s conclusions regarding the mother. Consideration of her mental condition as one factor was appropriate. In the Interest of B. J. H., 194 Ga. App. 282 (1) (390 SE2d 427) (1990). The order reflects, however, the court’s analysis of many factors in addition to her mental abilities, including her continued relationship with an abusive man. See In the Interest of B. P., supra at 245; In the Interest of S. M. S., supra at 250.

Also, the child’s emotional detachment from his birth parents and the benefits of a stable environment in the foster home were appropriately considered. In the Interest of A. L. T., 198 Ga. App. 477 (402 SE2d 97) (1991); In re G. M. N., 183 Ga. App. 458, 461 (1) (359 SE2d 217) (1987).

“In light of this history, and the 1990 court determination of deprivation by which she is bound, the mother’s plea for more time to get her life in order and establish a meaningful relationship with this child cannot overcome the irresistible conclusion that the court’s finding must be affirmed. [Cits.]” In the Interest of J. M., supra at 510.

Decided September 23, 1993

Reconsideration denied October 12, 1993.

Robert E. Surrency, for appellant.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Teresa E. Lazzaroni, Staff Attorney, John R. Laseter, W. Seaborn Ashley, Jr., P.C., Richard W. Schmidt, Roosevelt Warren, for appellee.

2. The father also contends that the court improperly failed to make an “exhaustive and thorough search” for a suitable family member to take the child, as required by OCGA § 15-11-90 (a) (1), because the paternal grandmother was willing to take him.

Ms. Nichols of DFACS was asked if there was a suitable family member with whom the child could be placed. She stated that Mr. Cason’s mother was the only relative known to DFACS that would be suitable and that she had been approached when the child was initially removed from the Casons in August 1990. She was working and said she could not take the child. Mr. Cason’s father was also considered but was unable to take the child.

There is nothing in the record to indicate that the grandmother’s circumstances had changed or that she had even contacted the child since his removal from the home. Neither she nor the grandfather testified during the hearing.

The court’s order recites that there was no suitable family member available with whom the child could be placed. “ ‘The trial court had the opportunity to question and observe the parties [and witnesses], and possesses a wide discretion in determining the issues before him, and if the judgment is supported by any evidence and is not clearly erroneous, an appellate court is not authorized to set it aside. (Cits.)’ In re H. B., 174 Ga. App. 435 (330 SE2d 173) (1985).” In the Interest of C. N. G., 204 Ga. App. 239, 240 (3) (419 SE2d 42) (1992).

The court’s conclusion is supported by evidence and is not clearly erroneous.

Judgments affirmed.

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


author: Cooper, Judge.

text:
    A93A1281.
    HAMILTON v. THE STATE.
    (436 SE2d 500)
   Cooper, Judge.

Appellant was convicted of possession of cocaine with intent to distribute and appeals from the judgment of conviction and the denial of his motion for a new trial.

At 11:00 a.m. on February 24, 1992, Officer Dallas Stidd, a detective with the Norcross Police Department, met with a female confidential informant. The informant told him that a man who called himself “Smooth” and drove a blue Ford was selling illegal drugs. She said that she could page “Smooth” and set up a buy. In a phone call monitored by Officer Stidd, she did call “Smooth” and set a meeting for 1:00 p.m. in the parking lot of Dunkin Donuts on Jimmy Carter Boulevard. Officer Stidd searched the informant to make sure she had no drugs on her and then gave her $40 to purchase cocaine. He and another officer set up surveillance in a motel room overlooking the Dunkin Donuts parking lot where the informant waited. At approximately 1:00 p.m., a man drove up in a blue Ford, and the informant got into his car. She got out a short time later and the Ford drove off. She went back to the officers without the $40 and with two pieces of cocaine, having never been out of the officers’ sight from the time of the search to the time she returned. The officers viewed the car from approximately 50 yards away and were not able to see the actual transaction. However, Officer Stidd was able to see the face of the driver, the only occupant of the car, through a zoom lens of a video camera for about four seconds before the camera’s battery went out. Officer Stidd was able to positively identify appellant as the driver of the blue Ford. Officer Stidd also took down the license tag number of the blue Ford and the following day obtained a warrant to search the vehicle and its driver. The warrant was executed two days later, when Officer Stidd spotted appellant in the blue Ford coming out of a nearby motel. In the area of the front seat, the officers found a Crown Royal bag containing 16 pieces of cocaine, scales, razor blades and baggies. Appellant was charged and convicted of possession with intent to distribute based on the cocaine found in this search. He was not charged with sale of cocaine based on the controlled buy by the informant. At trial, appellant acknowledged that he was at the Dun-kin Donuts in a blue Ford on February 24, 1992 but stated that no one got into his car there. He also testified that neither the blue Ford nor the cocaine belonged to him.

1. Appellant argues that the trial court erred in denying his motion to suppress because the search warrant was issued without probable cause. “ ‘In determining whether to issue a search warrant, “(t)he task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis for . . . conclud(ing)’ that probable cause existed.” [Cits.]’ [Cit.]” State v. White, 196 Ga. App. 685 (396 SE2d 601) (1990). Specifically, appellant contends that there was no probable cause because the officer obtaining the search warrant did not show that his informant was reliable. See White, supra; State v. Brown, 186 Ga. App. 155 (2) (366 SE2d 816) (1988). Unlike the officers in White and Brown, however, Officer Stidd relied on what he had actually seen rather than on an informant’s hearsay to establish probable cause for the warrant. The affidavit in support of the warrant related that after searching the informant, the affiant watched the informant get into appellant’s car with money and no cocaine and then emerge from the car with cocaine and no money. Viewed in a practical commonsense manner, this alone was sufficient to establish “a fair probability that contraband or evidence of a crime” would be found in appellant’s car, regardless of the reliability of the informant. See McKenzie v. State, 208 Ga. App. 683, 685 (2) (431 SE2d 715) (1993).

2. Citing Moore v. State, 187 Ga. App. 387 (2) (370 SE2d 511) (1988), appellant next contends that the State should have been required to produce the informant as a material witness because she actually participated in the purchase of cocaine and would have been able to testify regarding the transaction and the identity of the seller. In Moore, this court held that where an officer accused a defendant of selling cocaine, the defendant denied it and the informant was the only possible witness in a position to amplify or contradict the testimony of the officer and defendant, the benefits to the defendant of disclosing the identity of the informant outweighed the resulting harm to the government, and disclosure of the informant’s identity was mandated. Id.; see also Ponder v. State, 191 Ga. App. 346 (381 SE2d 534) (1989). However, in Moore and its progeny, the defendant was charged with selling drugs based on the transaction which the informant in question had participated in or witnessed. In this case, appellant was not charged with selling drugs based on the transaction involving the informant but with possession with intent to distribute based on the drugs found pursuant to the search warrant three days later. Consequently, Moore does not control. Moreover, we note that the State provided the defendant with all the information it had regarding the informant, who apparently did not give her real name. Indeed, when the State was unable to locate the informant, it dropped a second count which could not be proved without her testimony. Under these circumstances, the trial court did not err in denying appellant’s motion to compel disclosure of the informant.

3. In his third enumeration of error, appellant argues that the State should not have been allowed to elicit testimony regarding the informant’s motivations since such testimony was necessarily based on hearsay and the informant was not present for cross-examination. The record reveals that defense counsel asked Officer Stidd on cross-examination whether informants are often individuals who have been arrested and turn in someone else to get a better deal. On redirect, the State established that the informant in this case did not have criminal charges pending against her, that she had contacted the officer voluntarily and that she had been paid $20 in accordance with the usual procedure for paid informants. Thus, it appears that appellant initiated the subject of the informant’s motivations and the information elicited was in fact based on the officer’s knowledge rather than hearsay. The trial court therefore did not err in overruling appellant’s objection to this testimony and denying his motion for mistrial.

Decided September 8, 1993

Reconsideration denied October 12, 1993

Moore & Davidson, W. Keith Davidson, for appellant.

Daniel J. Porter, District Attorney, Debra K. Turner, David K. Keeton, Assistant District Attorneys, for appellee.

4. Lastly, appellant asserts that the trial court erred in allowing Officer Stidd’s testimony regarding the controlled buy. He argues that this buy was a similar transaction and the State did not follow the procedures for admission of a similar transaction set forth in USCR 31.3. However, the trial court properly ruled that this testimony was not evidence of a separate transaction subject to the rule but was instead evidence of the circumstances surrounding the charged offense. See Carroll v. State, 202 Ga. App. 544 (2) (415 SE2d 37) (1992).

Judgment affirmed.

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


text:
    A93A1607.
    DEAL v. HANDSON et al. HCA HEALTH SERVICES OF GEORGIA, INC. v. HANDSON et al.
    A93A1608.
    (436 SE2d 519)
   Andrews, Judge.

Victor and Charlena Handson sued Northlake Regional Medical Center (formerly Doctors Hospital) operated by appellant HCA Health Services and Eric Deal, D.O., the osteopathic physician serving as the emergency room doctor there, for medical malpractice. They alleged that Dr. Deal failed to properly diagnose and treat bacterial meningitis in their infant daughter, Sophia, on March 1, 1989, resulting in her death on March 2, 1989. The hospital was alleged to be responsible for his actions under respondeat superior. The two appeals are considered together.

The defendants filed motions to dismiss the complaint for failure to comply with OCGA § 9-11-9.1 (a) which the trial court denied. We granted defendants’ applications for interlocutory appeal.

For purposes of that Code section, the Handsons attached to their complaint the affidavit of Norman Johnson, M.D., which stated his training, qualifications, and employment as an allopathic physician specializing in pediatrics and emergency medicine.

1. In both orders denying the motions to dismiss of the hospital and the doctor, the trial court’s order reflects that it is entered after “consideration by the court of the pleadings, motion, response, affidavits, briefs . . . , depositions, request for admissions, and all other matters of record. ...”

On a motion to dismiss based upon the insufficiency of the affidavit under OCGA § 9-11-9.1, consideration of essential evidentiary matters not included in the affidavit is improper. HCA Health Svcs. of Ga. v. Hampshire, 206 Ga. App. 108, 110 (2) (424 SE2d 293) (1992). Such a defect cannot be cured by amendment. Cheeley v. Henderson, 261 Ga. 498 (2) (405 SE2d 865) (1991). Therefore, we limit our consideration to the four corners of the affidavit.

2. As to Dr. Deal, Dr. Johnson’s affidavit reveals that he is a member of a different school of medicine than Dr. Deal, the osteopath. That being so, in order for Dr. Johnson to be “an expert competent to testify” as to Dr. Deal’s actions, the affidavit must prove “ ‘by competent evidence that the methods of treatment are the same despite the difference in the nomenclature of the schools involved. . . .’ ” (Citation omitted.) Milligan v. Manno, 197 Ga. App. 171 (397 SE2d 713) (1990) (osteopath’s affidavit failed to show overlap of expertise regarding an allopath’s treatment). See Nowak v. High, 209 Ga. App. 536 (433 SE2d 602) (1993) (affidavit reflected that the expertise of physician and nurse overlapped regarding the giving of an injection); Chandler v. Koenig, 203 Ga. App. 684, 685 (417 SE2d 715) (1992).

Here, the affidavit stated that Dr. Johnson, based on his training and experience as an allopathic physician, had knowledge regarding the methods of examination and treatment of pediatric meningitis patients by allopathic physicians. The affidavit further stated that Dr. Deal and HCA employees failed to obtain a blood culture or spinal tap and prescribe antibiotics and that these failures “deviated from or fell below the generally accepted degree of care and skill exercised by the medical profession generally under similar conditions and circumstances for a pediatric meningitis patient.” However, the affidavit “contained no evidence regarding the methods of treatment so as to establish ‘a professional overlap of expertise in at least one matter alleged by [plaintiffs] to constitute malpractice,’ [Chandler, supra] at 687.” HCA Health Svcs., supra at 111 (3a). Therefore, as to Dr. Deal, the affidavit was insufficient. Compare Nowak, supra.

Decided September 23, 1993

Reconsideration denied October 12, 1993

Gleaton, Scofield, Egan & Jones, Frederick N. Gleaton, for Deal.

Alston & Bird, Judson Graves, Richard R. Hays, Daniel A. Kent, for HCA Health Services of Georgia.

Thomas, Kennedy, Sampson & Patterson, Thomas G. Sampson, Jeffrey E. Tompkins, Kimberly M. Carlisle, Divida Gude, for Hand-son.

3. As to the allegations that the hospital was liable for the alleged malpractice of Dr. Deal under respondeat superior, because of the insufficiency of the affidavit as to Dr. Deal, the hospital is likewise entitled to raise this issue. HCA Health Svcs., supra.

We need not consider the remaining enumeration of error.

Judgments reversed.

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

       There, five judges of this court concluded that a Ph.D. professor of pharmacology at a medical school was not an expert competent to testify regarding prescription of drugs because his expertise did not encompass the standard of care applicable to an allopathic physician. In dissent, four judges, including the writer, concluded that a pharmacologist’s expertise did overlap with a medical doctor’s in the specific area of the use of drugs and their effect on the human body. The Supreme Court vacated its writ of certiorari in that case. Chandler v. Koenig, 204 Ga. App. 923 (1992).

       There are no allegations of simple negligence against the hospital which would stand in the absence of the required affidavit. See Lamb v. Candler Gen. Hosp., 262 Ga. 70, 71 (1) (413 SE2d 720) (1992); Dozier v. Clayton County Hosp. Auth., 206 Ga. App. 62, 64 (3) (424 SE2d 632) (1992).


text:
    A93A1930, A93A1931.
    RIVERGATE CORPORATION et al. v. ATLANTA INDOOR ADVERTISING CONCEPTS, INC. (two cases) ATLANTA INDOOR ADVERTISING CONCEPTS, INC. v. RIVERGATE CORPORATION et al.
    A93A1932.
    (436 SE2d 697)
   Blackburn, Judge.

These appeals follow the trial court’s grant of summary judgment in favor of Atlanta Indoor Advertising Concepts, Inc. d/b/a Headlines USA (Atlanta Indoor) and the court’s subsequent denial of Atlanta Indoor’s request for attorney fees and prejudgment interest.

Atlanta Indoor brought the underlying breach of contract action against Rivergate Corporation d/b/a Frank Jackson Lincoln Mercury, Inc. (Rivergate), an automobile dealership, and its sales manager, Brian Logun, for Rivergate’s refusal to continue payments pursuant to a March 28, 1989, agreement for advertisements in restroom facilities of commercial establishments. The agreement at issue represents the third advertisement agreement entered into between the parties.

On November 17, 1988, in his capacity as sales manager, Logun executed a contract with Atlanta Indoor for advertisements in “all locations” leased by Atlanta Indoor for a one-month period at a rate of $3,500. Although both Rivergate and Logun contend that Logun did not have the authority to bind the corporation at the time that Logun executed the first agreement, Rivergate ratified Logun’s acts by fully performing pursuant to the agreement. A second agreement was entered into between Logun and Atlanta Indoor on January 27, 1989, for advertisement in “all available locations” for the period of February 1, 1989, through June 1, 1989, at a rate of $3,000, and Rivergate performed under said agreement. Rivergate provided apparent authority to Logun to enter into the third agreement with Atlanta Indoor by having ratified the first two agreements and by failing to give notice to Atlanta Indoor of any revocation of Logun’s authority as to any future agreements.

Prior to the expiration of the second agreement, Logun executed the superseding third agreement for increased advertising for a period of one year beginning April 1, 1989, at a rate of $5,500 per month. Rivergate made four payments to Atlanta Indoor, under the superseding agreement and then attempted to cancel the contract for economic reasons. The underlying actions ensued.

Case No. A93A1930

1. In this appeal, Rivergate argues that the trial court erred in granting summary judgment in favor of Atlanta Indoor as it maintains that the contract was invalid and Logun was without authority to bind the corporation by such an agreement. We conclude otherwise and summary adjudication was proper.

It has long been the law of this state that a corporation, by its actions or silence, can ratify actions taken by its agent. Dobbs v. Titan Properties, 178 Ga. App. 389 (1) (343 SE2d 419) (1986). The record viewed in the light most favorable to Rivergate shows that River-gate made payments pursuant to the terms of the March 28, 1989, agreement for several months after its agent executed the contract. Assuming arguendo that Logun acted ultra vires in executing the advertising contract, any initial invalidity associated with Logun’s want of authority was ratified by Rivergate’s prompt payment pursuant thereto and its ratification of the two earlier contracts. Id.

The trial court correctly found that the contract in issue was not ambiguous as the parties, based upon their past dealings, understood the meaning of the term “all locations.” The language contained in the contract in question was essentially the same language contained in the prior contracts performed by the parties and established the terms, meanings and intentions of the parties. See Ricketson v. Metts, 173 Ga. App. 606, 608 (327 SE2d 570) (1985). Accordingly, Rivergate’s enumerations are without merit.

Case No. A93A1931

2. Although Rivergate asserts that the trial court correctly denied Atlanta Indoor’s request for attorney fees and interest, the corporation appealed the May 6, 1993 order based upon its concern that the order would be viewed by this court as a modification of the March 31, 1993 order. Inasmuch as the May 6, 1993 order is not viewed as a modification as contemplated by Rivergate, this appeal is hereby dismissed.

Case No. A93A1932

3. In its cross-appeal, Atlanta Indoor asserts that the trial court erred in denying its request for prejudgment interest under OCGA §§ 7-4-15 and 7-4-16. We agree.

OCGA § 7-4-15 provides that “ [a]ll liquidated demands, where by agreement or otherwise the sum to be paid is fixed or certain, bear interest from the time the party shall become liable and bound to pay them. . . .” An award of interest under this provision is not premised on bad faith but on the principle that when a debt is owed and the demand for funds is made, interest accrues from the time entitlement attaches. Intl. Indem. Co. v. Terrell, 178 Ga. App. 570 (344 SE2d 239) (1986). As we have noted in Consulting Constr. Corp. v. Edwards, 207 Ga. App. 296, 299 (427 SE2d 789) (1993), “[an] award of prejudgment interest pursuant to OCGA § 7-4-15 is mandatory rather than discretionary, [cit.], and is awarded by a judge as a matter of law. [Cit.]”

Inasmuch as the amount due on the contract forming the subject matter of this action was fixed, certain, and ascertainable under its terms, the damages sought are liquidated, and the trial court erred in denying Atlanta Indoor’s request for pre-judgment interest. Baird v. Baird, 204 Ga. App. 706 (1) (420 SE2d 342) (1992). Accordingly, we must remand this case to the trial court for the issuance of an award on pre-judgment interest based upon the applicable rate contained in OCGA § 7-4-16. Cf. Gold Kist Peanuts v. Alberson, 178 Ga. App. 253 (2) (342 SE2d 694) (1986).

4. We reject Atlanta Indoor’s request for attorney fees under OCGA § 13-6-11 as the “mere refusal to pay a disputed claim is not the equivalent of stubborn .litigiousness or causing unnecessary trouble and expense” as contemplated under the statute. (Citations omitted.) Franchise Enterprises v. Ridgeway, 157 Ga. App. 458, 460 (2) (278 SE2d 33) (1981). The key is whether a bona fide controversy exits. Id.

Decided September 24, 1993

Reconsideration denied October 12, 1993

Branch, Pike & Ganz, Thomas B. Branch III, Barry G. Roberts, for Rivergate Corporation.

Adam R. Gaslowitz, for Atlanta Indoor Advertising Concepts, Inc.

In the case sub judice, the record shows that a justiciable controversy existed as to Rivergate’s liability under the agreement at issue, which prevents the recovery of bad faith expenses under this provision. Accordingly, the trial court did not abuse its discretion in denying Atlanta Indoor’s request for assessed attorney fees.

5. Contrary to Rivergate’s contention, this court does have jurisdiction to entertain Atlanta Indoor’s direct appeal of the trial court’s denial of its request for attorney fees pursuant to OCGA § 9-15-14 (b) as there has been a direct appeal from the underlying judgment. Rolleston v. Huie, 198 Ga. App. 49 (400 SE2d 349) (1990). However, an award of attorney fees and expenses of litigation is discretionary under this section, and on review, we must determine whether the trial court abused its discretion in denying the motion. See Griffiths v. Phenix Supply Co., 192 Ga. App. 651 (385 SE2d 789) (1989). Considering the trial court’s initial recognition of material issues of fact which precluded summary adjudication, we cannot say that River-gate’s defense lacked substantial justification. Cf. Contractors’ Bldg. Supply v. Gwinnett Sash &c., 199 Ga. App. 38 (403 SE2d 844) (1991). Accordingly, this enumeration is also without merit.

Judgment affirmed in Case No. A93A1930. Appeal dismissed in Case No. A93A1931. Judgment affirmed in part, reversed in part, and remanded with direction in Case No. A93A1932.

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