author: Ruffin, Judge.

text:
    A00A0480, A00A0481.
    In the Interest of V. M. T., a child (two cases).
    (534 SE2d 452)
   Ruffin, Judge.

By order dated April 15, 1999, the Cobb County Juvenile Court terminated the parental rights of V. M. T.’s parents. In Case No. A00A0480, the father appeals, and in Case No. A00A0481, the mother appeals. As both appeals involve the same operative facts, we have consolidated the cases, and we affirm.

V. M. T. was born on November 25, 1996. At that time, V. M. T.’s parents, who were unmarried, lived with the father’s family. On or around January 17, 1997, the mother noticed that her baby’s head seemed swollen, but she did not take her to the hospital. On January 19, 1997, the grandmother noticed that V. M. T. was “just limp” and “knew something was wrong with her.” The grandmother then called 911, and paramedics took V. M. T., who was in cardiac arrest, to Scottish Rite Hospital. At the hospital, doctors discovered that V. M. T. had a skull fracture, nine broken ribs, and two broken legs. As a result of her massive injuries, V. M. T. must use a feeding tube. She is brain-damaged and unable to walk or see.

On January 21, 1997, the juvenile court concluded that V. M. T. was deprived and entered an order placing her in the temporary custody of the Department of Family & Children Services (DFACS). A citizens review panel convened to review the case and, in a May 1997 report, recommended that the parents’ rights be terminated. However, DFACS declined to pursue termination pending the outcome of a criminal investigation and focused on long-term foster care instead.

DFACS developed several case plans that included rehabilitative steps for the parents. The case plans, which were in place from February 1997 through July 1998, required, among other things, that the parents pay child support, attend parenting classes, obtain counseling, and sign a release so that V. M. T. could obtain needed medical treatment. The case plan in effect from January through July 1998 also required the father to legitimate V. M. T.

On January 14, 1999, DFACS filed a petition requesting termination of the parents’ rights. DFACS based the petition, in part, on the parents’ failure to comply with the case plan and on the parents either having caused V. M. T.’s injuries or having negligently allowed the infant to receive such injuries. The termination petition also notified the father that his parental rights would be terminated if he failed to file a petition to legitimate V. M. T. within 30 days.

The hearing took place on April 9, 1999. Before the hearing, the juvenile court learned that the father had not filed a petition to legitimate V. M. T, and it terminated his parental rights in accordance with OCGA § 15-11-83.

At the hearing, the mother testified that, although she had been V. M. T.’s primary caregiver and had been with the baby almost continuously during the week prior to January 19, 1997, she did not know how her child had been injured. Indeed, until V. M. T.’s paternal grandmother called 911, the mother did not know that there was anything wrong with her child. The mother suggested that someone else who lived with the father’s family may have injured the child. She testified that she no longer lived with that family. But V. M. T.’s paternal grandmother testified that the mother continued to live part of the time with the father’s family.

With regard to the case plans, the mother said that she had complied with the plans in that she had visited her child, gone to the physical therapy appointments, attended counseling, and taken parenting classes. She admitted, however, that despite holding a job, she never provided any child support.

In an order dated April 14, 1999, the juvenile court found that V. M. T. had been physically abused and that, even if the mother did not cause the abuse, she had failed to protect her child. Although the mother claimed that she no longer lived in the house where the child had been injured, the court found otherwise. The court also found that, despite V. M. T.’s life-threatening injuries, the mother was unable to recognize that her child was in danger. Accordingly, the juvenile court terminated the mother’s parental rights.

Case No. A00A0480

1. In two enumerations of error, the father contends that the juvenile court erred in terminating his parental rights pursuant to OCGA § 15-11-83. We disagree.

OCGA § 15-11-83 provides that if a child is born out of wedlock, the biological father shall be notified of a petition to terminate parental rights and shall be advised that, if he does not file a legitimation petition within 30 days of receiving notice, he will lose all rights to the child. It is undisputed that the father never sought to legitimate V. M. T.

(a) On appeal, the father argues that he is illiterate and the juvenile court failed to establish that he understood what steps he needed to take to legitimate his child. Thus, the father maintains that he was not afforded sufficient notice. However, the father never raised either his alleged illiteracy or the sufficiency of notice at trial, and we will not address any issue raised for the first time on appeal.

(b) The father also asserts that the juvenile court erred in failing to declare OCGA § 15-11-83 unconstitutional. According to the father, the statute violates principles of equal protection because it places a burden on fathers — but not mothers — to legitimate children born out of wedlock. Again, we disagree.

“As an initial matter, we note that this Court is generally without jurisdiction to rule on the constitutionality of a statute.” But this Court does have jurisdiction to address constitutional issues where “the case requires merely an application of unquestioned and unambiguous constitutional provisions.” Such is the case here.

In the recent case of In the Interest of D. B., this Court recognized the constitutionality of OCGA § 15-11-83. Although we did not explicitly address equal protection principles, it is clear that requiring fathers of children born out of wedlock to legitimate their children in order to preserve their parental rights does not violate equal protection because unwed fathers and unwed mothers are not similarly situated.

The first step in any equal protection analysis is to determine whether the alleged constitutional violation involves similarly situated individuals. An unwed mother who gives birth to a child and whose name generally appears on the child’s birth certificate is not similarly situated to an unwed father who may remain anonymous unless he takes affirmative steps to claim his child. Indeed, under OCGA § 19-7-25, until an unwed father legitimates his child, the mother retains all parental control over that child. It follows that OCGA § 15-11-83, which distinguishes between unwed mothers and unwed fathers, does not violate equal protection principles.

2. In view of our holding in Division 1, we need not address the father’s remaining enumerations of error.

Case No. A00A0481

3. In two enumerations of error, the mother challenges the sufficiency of the evidence supporting the juvenile court’s determination to terminate her parental rights. In reviewing a juvenile court’s decision to terminate parental rights, we view the evidence in the light most favorable to the appellee and determine whether any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost. In so doing, “ [w] e do not weigh the evidence or determine the credibility of witnesses, but defer to the juvenile court’s factfinding.”

A termination of parental rights case involves a two-step analysis. First, there must be a finding of parental misconduct or inability, which requires clear and convincing evidence that: (1) the child is deprived; (2) the lack of proper parental care or control is the cause of the deprivation; (3) the cause of the deprivation is likely to continue; and (4) continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the child. If these four factors exist, then the court must determine whether termination of parental rights is in the best interest of the child, considering the child’s physical, mental, emotional, and moral condition and needs, including the need for a secure, stable home.

In this case, there was ample clear and convincing evidence of the four factors required to establish parental misconduct or inability. First, the mother never appealed the juvenile court’s January 21, 1997 deprivation order, and “[t]he unappealed deprivation order [ ] of the juvenile court [is] sufficient to establish that [the child] was deprived within the meaning of OCGA § 15-11-81 (b) (4) (A) (i).”

As to the second factor, in determining whether V. M. T. was without proper parental care and control, the juvenile court could consider “evidence of past egregious conduct of the parent toward the child . . . of a physically . . . cruel or abusive nature.” Here, V. M. T. was undeniably subjected to extreme physical abuse while in her mother’s care. Even if the mother did not cause the injuries, the juvenile court was authorized to conclude that the injuries were attributable to her inability to protect her child, which also constitutes lack of proper parental care and control.

The record also demonstrates that the deprivation is likely to continue. As a result of her injuries, V. M. T. is unable to see, walk, or eat. The DFACS caseworker testified that whoever cares for V. M. T. will require specialized training to cope with her disabilities. A mother who is unable to discern when her child has sustained life-threatening injuries lacks the fundamental skills required to parent such a special needs child. A juvenile court is under no obligation to return the child to her mother “until she suffers [a] seemingly inevitable serious injury or death.” In view of V. M. T.’s special needs, there is no question that continued deprivation would likely cause her serious physical harm.

Finally, the evidence also supports the juvenile court’s determination that termination is in the best interest of V. M. T. The same factors that show parental misconduct or inability can support a juvenile court’s finding that termination of parental rights is in the child’s best interest. Given the mother’s failure to protect her child, her inability to discern serious injury, and her continued presence in the home where the child was injured, the juvenile court was authorized to conclude that the best interest of V. M. T. would be served by terminating the mother’s parental rights. Accordingly, we affirm the juvenile court’s termination of the mother’s parental rights.

Decided April 28, 2000.

David J. Casey, Bobby G. Adkins, Jr., for appellant (case no. A00A0480).

Baskin & Baskin, Brenda Godfrey, Joseph T. Justice, for appellant (case no. A00A0481).

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Assistant Attorney General, Sanders B. Deen, for appellee.

Judgments affirmed.

Andrews, P. J., and Ellington, J., concur.

       Shortly before the hearing in this matter, the mother was arrested on charges of cruelty to children stemming from the injuries V. M. T. sustained in January 1997.

       OCGA § 15-11-83 (e), (h).

        In the Interest of K. A. C., 229 Ga. App. 254, 255 (2) (493 SE2d 645) (1997).

        Helmeci v. State, 230 Ga. App. 866, 868 (1) (498 SE2d 326) (1998).

        Zepp v. Mayor &c. of Athens, 255 Ga. 449, 451 (2) (339 SE2d 576) (1986).

       243 Ga. App. 473, 474 (2) (533 SE2d 737) (2000).

       See Etkind v. Suarez, 271 Ga. 352, 355 (3) (519 SE2d 210) (1999) (“The Equal Protection Clause of both the Federal and Georgia Constitutions requires that similarly situated individuals be treated in a similar manner.”); see also Zach, Inc. v. Fulton County, 235 Ga. App. 478-479 (1) (509 SE2d 746) (1998).

       See Parham v. Hughes, 441 U. S. 347, 355-356, n. 7 (99 SC 1742, 60 LE2d 269) (1979) (“That the child is the child of a particular woman is rarely difficult to prove. Proof of paternity, by contrast, frequently is difficult when the father is not part of a formal family unit”) (punctuation omitted).

       See Quilloin v. Walcott, 238 Ga. 230, 233 (232 SE2d 246) (1977), aff’d, 434 U. S. 246 (98 SC 549, 54 LE2d 511) (1978) (ruling that Code Ann. § 74-203, the predecessor statute to OCGA § 19-7-25, did not violate equal protection principles).

        In the Interest of E. C., 225 Ga. App. 12, 13 (482 SE2d 522) (1997).

        In the Interest of B. L. S., 239 Ga. App. 771 (521 SE2d 906) (1999).

       OCGA § 15-11-81 (b) (4) (A) (i)-(iv); see also In the Interest of F. C., 239 Ga. App. 545 (521 SE2d 470) (1999).

       Id.; OCGA § 15-11-81 (a).

        In the Interest of A. C., 234 Ga. App. 717, 719 (507 SE2d 549) (1998).

       OCGA § 15-11-81 (b) (4) (B) (iv).

       See In the Interest of G. T. T., 199 Ga. App. 706, 708 (2) (405 SE2d 750) (1991).

        In the Interest of K. R. C., 235 Ga. App. 354, 355 (1) (510 SE2d 547) (1998).

        In the Interest of B. P., 207 Ga. App. 242, 245 (427 SE2d 593) (1993).

       See In the Interest of R. M., 232 Ga. App. 727, 729 (503 SE2d 635) (1998).


source: Caselaw Access Project

author: Johnson, Chief Judge.

license: Public Domain

text:
    A00A0758.
    PINKINS v. THE STATE.
    (534 SE2d 192)
   Johnson, Chief Judge.

Along with co-defendants Brooks, Hurt and Littlejohn, Larry Pinkins was indicted for the offenses of conspiracy to commit armed robbery and armed robbery. Hurt pled guilty to conspiracy to commit armed robbery, and Littlejohn pled guilty to robbery. Both were witnesses in the jury trial of Pinkins and Brooks. A jury found both Pinkins and Brooks guilty of conspiracy to commit armed robbery. A judgment of conviction was entered upon the jury’s verdict, from which Pinkins appeals.

Pinkins contends the evidence was insufficient to support a conviction for conspiracy to commit armed robbery. He also asserts that the trial court erred in failing to remove a juror who, during the course of the jury’s deliberations, telephoned a personal friend who was an assistant district attorney not involved in the case against Pinkins.

We find the evidence was sufficient to support Pinkins’ conviction for conspiracy to commit armed robbery. We further find that the trial court did not err in refusing to remove the juror in question because no communication took place which prejudiced Pinkins. For these reasons, we affirm the judgment of conviction.

1. OCGA § 16-4-8 provides that a person commits the offense of conspiracy when he “with one or more persons conspires to commit any crime and any one or more of such persons does any overt act to effect the object of the conspiracy.” Viewed in a light most favorable to support the jury’s verdict, the evidence shows that Littlejohn spent the afternoon with Pinkins at Pinkins’ house planning an armed robbery. That evening, Brooks and Hurt came to the house, and the group went over the plan again. Everyone except Hurt, who stayed in the car, talked about robbing a Tanner’s Restaurant using guns. The plan agreed upon specified when the robbery would occur, how it would occur and the actions to be taken by each person. Brooks had a .380 caliber handgun, and Pinkins had a .22 caliber handgun.

Hurt drove the participants, including Pinkins, to Tanner’s. They parked behind the restaurant. Pinkins asked, “Are you ready?” Pinkins, Brooks, Littlejohn and Pinkins’ brother entered the restaurant and sat at two separate tables. They ate. A Tanner’s employee was helping with the robbery, and Pinkins followed him into the restroom. Pinkins came back to the table following the meeting with the Tanner’s employee and told everyone the robbery was ready to “go down.” However, Littlejohn left because he did not think things were going according to plan. Littlejohn then robbed a waitress outside the restaurant. When the waitress reentered the restaurant after being robbed, Pinkins and the other conspirators left the restaurant. They eventually returned to Pinkins’ house. At the house, Hurt heard Pinkins say he had been watching for a signal from the Tanner’s employee to let them know when to rob the restaurant. Hurt saw that Pinkins had a gun.

Pinkins’ statement upon his arrest differed from his trial testimony, but in both he denied any involvement in a robbery.

(a) Pinkins first contends that the evidence was insufficient to support his conviction because Littlejohn’s testimony was unbelievable. However, credibility of any witness, including an accomplice, is a question for the jury.

(b) Pinkins next contends that the evidence was insufficient to support his conviction because Littlejohn’s testimony was not sufficiently corroborated. The primary evidence against Pinkins came from Littlejohn, who was also charged with conspiracy and pled guilty to robbery. Although Georgia law does not allow a conviction based on the uncorroborated testimony of an accomplice, such testimony may be corroborated by slight evidence from an extraneous source identifying the accused as a participant in the criminal act. The corroborating evidence connecting a defendant to the crime may consist entirely of circumstantial evidence and may come from the testimony of other accomplices to the crime. Whether the corroborating evidence is sufficient is a matter for the jury, and even slight evidence of corroboration connecting an accused to a crime is legally sufficient.

Hurt’s testimony that she overheard Pinkins saying he was waiting for the Tanner’s employee to give the signal to begin the armed robbery, alone, was sufficient evidence to corroborate Littlejohn’s testimony that Pinkins conspired to rob Tanner’s. Hurt also corroborated Littlejohn’s testimony regarding the meeting at Pinkins’ house and the drive to Tanner’s. She further testified that Pinkins and Brooks had guns on the night the robbery was to occur. In addition, Pinkins told a detective that Brooks, Hurt, and Littlejohn had come to his house earlier that day and discussed robbing Tanner’s. This evidence sufficiently corroborates Littlejohn’s testimony. The testimony at trial was sufficient to support Pinkins’ conviction.

(c) Pinkins asserts the evidence was insufficient to support his conviction because there was no evidence of an overt act in furtherance of the armed robbery. We disagree.

Possession of tools for the commission of a crime, including possessing a weapon to be used in a robbery, is an overt act upon which an armed robbery conspiracy conviction may be based. Moreover, it is well established that when individuals associate themselves in an unlawful enterprise, any act done in pursuance of the conspiracy by one or more of the conspirators is in legal contemplation of the act of all.

In the present case, Littlejohn testified that the group talked about robbing Tanner’s with guns, that they drove to Tanner’s, that they entered the restaurant with guns and that they watched for the signal to begin the armed robbery. In addition, Hurt verified that she saw Pinkins with a gun after they all fled to his house. It is unclear from the evidence why the armed robbery was never completed, but the completion of the robbery is not necessary to sustain Pinkins’ conviction for conspiracy to commit the armed robbery. Clearly the jury was authorized from the evidence to determine that overt acts to effect the object of the conspiracy had occurred.

2. For the reasons set out in Division 1, we hold that the trial court did not err in denying Pinkins’ motion for a directed verdict of acquittal based on the same grounds.

3. Pinkins contends the trial court erred in not removing a juror who, during the course of deliberations, telephoned an assistant district attorney who was a personal friend. To his credit, the assistant district attorney who received the telephone call immediately ascertained that the call was inappropriate, informed the juror that the call was inappropriate, immediately informed the assistant district attorney prosecuting the case about the telephone call and made himself available to the court for questioning. The record shows that on the second morning of jury deliberations, the assistant district attorney prosecuting the case against Pinkins informed the court and defense counsel that one of the jurors had called another assistant district attorney who was a close personal friend of the juror. According to this prosecutor, the juror told the other assistant district attorney that she “wanted to ask a question about a legal matter.” After ascertaining that the juror was seated on a current criminal case, this assistant district attorney informed the juror that he could not talk to her and told her that any questions she wanted to ask should be directed to the court. The assistant district, attorney did not give the juror any legal information.

The trial court then interviewed the juror in question, who stated that she called the assistant district attorney to ask a general question about the role of the jury. She said she had not planned to ask any questions about the case. She testified that she did not ask the assistant district attorney any questions and that nothing about her conversation with the assistant district attorney affected how she felt about the case or the way deliberations were going. The trial court reminded the juror that she was not allowed to do any independent research during the trial and asked the juror if she had violated that part of the court’s instructions. The juror responded “no.”

Pinkins argues that this juror should have been replaced with an alternate because she violated her oath as a juror by calling the assistant district attorney. The trial court denied the request to replace the juror, finding that no communication took place which prejudiced Pinkins or his defense.

Decided April 28, 2000.

Carla J. Friend, for appellant.

J. Tom Morgan, District Attorney, Jeanne M. Canavan, Barbara B. Conroy, Assistant District Attorneys, for appellee.

It is well established that the guarantee of a fair and impartial jury is a central safeguard to a fair trial in our system of criminal justice. “There is a presumption of prejudice to the defendant when an irregularity in the conduct of a juror is shown and the burden is on the prosecution to prove beyond a reasonable doubt that no harm has occurred.” However, we have also recognized that some irregularities are inconsequential. The decision whether to remove a juror from a panel lies within the sound discretion of the trial court and will not be overturned absent an abuse of that discretion.

The record before us discloses no basis upon which to conclude that the trial court’s failure to excuse this juror violated Pinkins’ right to an impartial jury or prejudiced his defense. According to both the assistant district attorney who received the telephone call and the juror involved, before any communication which could possibly have prejudiced Pinkins occurred, the assistant district attorney cut the juror off, informing her that he could not talk to her and that she would have to address any questions to the trial judge. The trial court did not abuse its discretion in refusing to remove the juror.

Judgment affirmed.

Phipps, J., and McMurray, Senior Appellate Judge, concur.

        Kinney v. State, 271 Ga. 877, 880 (2) (525 SE2d 91) (2000); Bush v. State, 267 Ga. 877, 878 (485 SE2d 466) (1997).

       OCGA § 24-4-8.

        Terrell v. State, 271 Ga. 783, 786 (3) (523 SE2d 294) (1999); Bush, supra; Dalton v. State, 237 Ga. App. 217, 223 (3) (513 SE2d 745) (1999).

        Klinect v. State, 269 Ga. 570, 572 (1) (501 SE2d 810) (1998).

        Dalton, supra.

        Klinect, supra.

       See Fuller v. State, 165 Ga. App. 55, 57 (2) (299 SE2d 397) (1983).

       See McCright v. State, 176 Ga. App. 486, 487-488 (1) (336 SE2d 361) (1985).

        Woods v. State, 269 Ga. 60, 61 (2) (495 SE2d 282) (1998); Edmond v. State, 267 Ga. 285, 287 (2) (476 SE2d 731) (1996).

        Lamons v. State, 255 Ga. 511, 512 (340 SE2d 183) (1986).

       (Citation omitted.) Id.

       Id.

       See OCGA § 15-12-172; Baptiste v. State, 190 Ga. App. 451, 453 (2) (379 SE2d 165) (1989).


text:
    A00A0787.
    MILES v. AHEARN.
    (534 SE2d 175)
   Ruffin, Judge.

Laura Tracy Ahearn was arrested for driving under the influence of alcohol. After she refused to take a breath test, the Department of Public Safety suspended her driver’s license. Ahearn requested a hearing before an administrative law judge (ALJ), who affirmed the suspension. Ahearn then appealed to the superior court, which reversed the suspension on the ground that the Department failed to offer into evidence at the hearing the sworn report of the police officer who arrested Ahearn. The Department appeals that ruling, and we reverse.

Before detailing the facts of this case, it is helpful to explain the statutory background. Under Georgia law, a motorist who is arrested for driving under the influence of alcohol is deemed to have consented to chemical testing of her bodily substances to determine the presence of alcohol. If she refuses to submit to such testing, the law enforcement officer who requested the test must submit a sworn report to the Department “that the officer had reasonable grounds to believe the arrested person had been driving [under the influence of alcohol] . . . and that the person had refused to submit to the test upon the request of the law enforcement officer.” This sworn statement is customarily completed on a form known as “DPS Form 1205.” After the Department receives DPS Form 1205, it shall suspend the motorist’s driver’s license for one year. The motorist may request an administrative hearing to challenge the suspension. Pursuant to OCGA § 40-5-67.1:

[t]he scope of the hearing shall be limited to the following issues:
(A) Whether the law enforcement officer had reasonable grounds to believe the person was driving or in actual physical control of a moving motor vehicle while under the influence of alcohol or a controlled substance and was lawfully placed under arrest for violating Code Section 40-6-391; or
(B) Whether the person was involved in a motor vehicle accident or collision resulting in serious injury or fatality; and
(C) Whether at the time of the request for the test or tests the officer informed the person of the person’s implied consent rights and the consequences of submitting or refusing to submit to such test; and
(D) Whether the person refused the test; or
(E) Whether a test or tests were administered [and the results thereof]; and
(F) Whether the test or tests were properly administered. . . .

We now turn to the facts of this case, as found by the ALJ. At approximately 3:00 a.m. on October 24,1998, Officer Mike Classey of the Kennesaw Police Department saw Ahearn’s van stopped at a traffic light. The light turned green, but the van failed to move until the car behind it honked. As Classey followed the van, it strayed from its lane several times and followed the vehicle in front of it too closely. Classey stopped the van and asked Ahearn for her driver’s license and proof of insurance. Ahearn’s speech was slurred, and Classey smelled alcohol on her breath. Her eyes were red and watery, and “she had ... a blank, dazed stare on her face.” Ahearn said she had not been drinking, but Classey saw an empty beer bottle in a cup holder and continued to smell alcohol on Ahearn’s breath after she stepped out of the van. Classey asked Ahearn to submit to field sobriety tests, but Ahearn refused, saying that she was not going to “play games” with Classey. Classey then arrested Ahearn, read to her the implied consent rights, and asked her to submit to a breath test. Ahearn grew argumentative and said, “[Wlhat’s the point in taking the test; I’m already under arrest.” Classey took Ahearn to the city jail, put her in front of the Intoxilyzer breath testing machine, and explained the test to her. Ahearn said that she was not going to take it. Classey ran the test, which produced a result indicating “refused.” At the time, Classey had a valid permit to conduct the test.

At the hearing, Classey testified that he completed DPS Form 1205 and submitted it to the Department. The Department, however, never offered the form into evidence. Ahearn moved for a directed verdict, arguing that there was a “technical insufficiency” in the Department’s proof because of the Department’s failure to tender the form. The ALJ denied the motion on the ground that the question of whether the Department received Classey’s sworn report was beyond the statutory scope of the hearing. The ALJ later entered a final decision upholding the suspension. Among other things, the ALJ found that Ahearn was lawfully arrested, that she refused to submit to the breath test, and that the suspension of her license was proper.

The superior court reversed the ALJ’s decision. Citing our opinions in Cofer v. Summerlin and Dept. of Pub. Safety v. Maples, the superior court ruled that the Department had to make “an initial showing that the license was suspended by the Department.” The Department could do this “by placing into evidence a copy of the sworn report of the police office [r] that was received by the Department.” Only then could the determination “be made as to whether the suspension was proper.”

1. The Department argues that it was not required to tender DPS Form 1205 into evidence. We agree.

OCGA § 40-5-67.1 expressly limits the scope of a hearing to challenge a license suspension to six enumerated issues, including the lawfulness of the arrest, whether the motorist was informed of her implied consent rights, whether she refused testing, the results of any test given, and whether the testing was properly administered. Whether the arresting officer completed DPS Form 1205 and submitted it to the Department has no bearing on these issues, and nothing in the statute requires that the Department tender it into evidence. Where, as here, the arresting officer testifies in person as to the events of the arrest, the form clearly is not necessary to the resolution of the six enumerated issues. And there is no need, as the superior court ruled, for an initial showing that the license was suspended, because the fact of the suspension is not at issue. Aheam would not have requested a hearing if the Department had not suspended her license.

Our decisions in Cofer and Maples do not control this case. In Cofer, as here, the Department suspended a motorist’s driver’s license after he refused to submit to testing. The motorist requested a hearing, and the suspension was affirmed. The motorist then appealed to the superior court, which reversed because “the implied consent affidavit was never introduced into evidence at the hearing and does not appear in the record.” We affirmed the superior court, holding that:

[a]s a condition precedent to suspending a person’s driver’s license, [the law] requires that the Department of Public Safety receive a sworn report from the arresting officer that he had reasonable grounds to believe that the accused was driving under the influence of drugs or alcohol and that he refused to submit to tests to detect his level of intoxication. . . . The superior court correctly held that the filing of the arresting officer’s affidavit was a condition precedent to suspension of appellee’s driver’s license and because the affidavit was not introduced in evidence at the hearing, there was no evidence that the affidavit was received by the Department of Public Safety.

In Maples, we relied on our ruling in Cofer, holding that the Department’s failure to introduce the arresting officer’s affidavit into evidence at the hearing was a “fatal” omission.

Cofer and Maples, however, were decided more than 20 years ago under a predecessor statute to OCGA § 40-5-67.1. Like the present statute, the law that was in effect when Cofer and Maples were decided allowed a motorist whose license was suspended for failure to submit to chemical testing to request a hearing. As to the scope of the hearing, the law provided only that “[a]fter such hearing, the Department shall sustain the order of suspension, or rescind such order.” The law did not limit the issues to be addressed at the hearing. Because the legislature has now chosen to expressly limit the issues which may be considered at the hearing, and those issues do not involve the Department’s receipt of DPS Form 1205, Cofer and Maples no longer apply. Thus, the Department’s failure to submit the officer’s sworn report at Ahearn’s hearing did not require a decision in her favor.

2. In light of our decision above, we need not address the Department’s second enumeration of error.

3. Ahearn argues that, even if the absence of the sworn report was not fatal to the Department’s case, the ALJ’s decision was wrong for another reason. Specifically, Ahearn maintains that the ALJ erred in finding that she refused to take the breath test. Although Ahearn made this argument in the superior court, the court did not address it. Nevertheless, because we affirm a trial court’s ruling it if is right for any reason, we now address this argument.

Ahearn testified at the hearing that after Officer Classey placed her in front of the Intoxilyzer, he covered the machine’s display with a piece of paper and told Ahearn that she could not see it. Ahearn asked, “Can I see your procedure manual that says that you are allowed to cover it up?” According to Ahearn, Classey responded that she was refusing to take the test and was disorderly. Classey testified that he had taken a class to become certified to operate the Intoxilyzer. He stated that he always covers the display before giving the test to prevent test subjects from “stop [ping] short of providing a full breath sample for the machine to analyze.” Classey admitted that the operator’s training manual for the Intoxilyzer did not instruct him to cover the display but said that he was trained to do so at his certification class. Classey also testified that Ahearn repeatedly stated that she would not take the test before asking about the covered display. Ahearn insists that she did not refuse to take the test. She claims that she would have taken it if Classey had either uncovered the display or proved that proper procedure required that it be covered.

Decided April 28, 2000

Thurbert E. Baker, Attorney General, Mary Beth Westmoreland, Deputy Attorney General, Christopher S. Brasher, Senior Assistant Attorney General, James J. Phillips, Assistant Attorney General, for appellant.

Chestney Hawkins Law Firm, Michael M. Hawkins, Sherry B. Lantz, for appellee.

Judicial review of an agency decision is limited to a determination of whether there is “any evidence” to support that decision. We must accept the agency’s findings of fact unless they are “clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record.” Applying this standard here, we must uphold the ALJ’s finding that Ahearn refused the test. Pretermitting whether it is proper to cover the display during the administration of the breath test, there was evidence in the record that Ahearn’s refusal preceded the covering of the display. Thus, we cannot say that the ALJ’s finding was clearly erroneous.

Accordingly, we reverse the order of the superior court and reinstate the decision of the ALJ.

Judgment reversed.

Andrews, P. J, and Ellington, J., concur.

       OCGA § 40-5-55 (a).

       OCGA § 40-5-67.1 (d); see also OCGA § 40-5-67.1 (f) (1) (requiring law enforcement officer to give arrestee notice of intention to suspend driver’s license and to forward such notice, along with driver’s license and sworn report, to the Department within 10 days of arrest).

       OCGA § 40-5-67.1 (d).

       OCGA § 40-5-67.1 (g) (1).

       Motorists who are involved in an accident resulting in a serious injury or fatality are also deemed to consent to chemical testing, see OCGA § 40-5-55 (a), but that is not an issue here.

       (Emphasis supplied.) OCGA § 40-5-67.1 (g) (2).

       Ahearn renewed the motion at the close of the evidence.

       147 Ga. App. 721 (250 SE2d 174) (1978).

       149 Ga. App. 484 (254 SE2d 724) (1979).

       Ahearn does not argue that she failed to receive a copy of DPS Form 1205. Thus, had Officer Classey’s testimony at the hearing conflicted with his sworn report, Aheam presumably could have used the form to impeach him.

       (Punctuation omitted.) Cofer, supra at 721.

       Id. at 722.

        Maples, supra at 485 (3).

       Former Code Ann. § 68B-306 (c), (d).

       Former Code Ann. § 68B-306 (d).

       See, e.g., Frederick v. State, 226 Ga. App. 540, 542 (1) (487 SE2d 107) (1997).

        Miles v. Carr, 224 Ga. App. 247 (480 SE2d 282) (1997).

       (Punctuation omitted.) Dept. of Pub. Safety v. Ramey, 215 Ga. App. 334, 335 (450 SE2d 332) (1994).


text:
    A00A0087.
    AARON RENTS, INC. v. FOURTEENTH STREET VENTURE, L.P. et al.
    (533 SE2d 759)
   Johnson, Chief Judge.

In 1980, James Shepherd and Ian Stalker formed Fourteenth Street Associates for the purpose of acquiring and operating certain property. Fourteenth Street Associates purchased two contiguous tracts of property in Atlanta, and in 1984, it bought a third tract adjacent to the other two tracts.

In 1986, Fourteenth Street Associates refinanced the property with a $3,200,000 loan from Life Insurance Company of Virginia (“Life of Virginia”), secured by the property. At that time, the property was used as the headquarters for Ball Stalker Company, which sold office furniture. In 1987, Aaron Rents, Inc. bought Ball Stalker from its owners, one of whom was Shepherd. Aaron Rents later sued Shepherd and the other sellers for breach of various warranties involved in the Ball Stalker sale and in 1991 obtained a $559,114 judgment against Shepherd.

In 1993, Fourteenth Street Associates conveyed the three adjacent tracts of property, subject to the existing Life of Virginia loan, to a limited partnership called Fourteenth Street Venture, L.R In 1994, the limited partnership obtained from Life of Virginia an additional loan of $1,021,000, which was also secured by the property.

Aaron Rents filed the instant declaratory judgment action against the limited partnership, Fourteenth Street Venture, and Life of Virginia seeking a declaration from the trial court that its 1991 judgment against Shepherd constitutes an encumbrance on the property and that its lien for that judgment is superior to Life of Virginia’s 1994 deed to secure debt on the property. The parties filed opposing motions for summary judgment. The central issue argued in those motions was whether Shepherd and Stalker created a partnership when they formed Fourteenth Street Associates, because if that association was a partnership, then Aaron Rents’ 1991 judgment against Shepherd individually cannot be enforced against the property originally acquired by that partnership. The trial court granted summary judgment to Fourteenth Street Venture and Life of Virginia and denied summary judgment to Aaron Rents. Aaron Rents appeals.

1. Aaron Rents argues that Shepherd and Stalker did not form a partnership when they created Fourteenth Street Associates but only formed a joint venture. We disagree with the argument and find that Fourteenth Street Associates was a partnership.

“A partnership is an association of two or more persons to carry on as co-owners a business for profit. . . .” Factors that indicate the existence of a partnership include a common enterprise, the sharing of risk, the sharing of expenses, the sharing of profits and losses, a joint right of control over the business, and a joint ownership of capital. But the intention of the parties is the true test of whether there is a partnership, which may be created by a contract.

In the instant case, Shepherd and Stalker clearly expressed their intention to form a partnership by just such a written contract. Although the contract forming Fourteenth Street Associates used the term “joint venture” instead of the term “partnership,” we must look to the substance of the agreement rather than mere nomenclature in determining the intent of the parties. And the intent which controls is the intent to contract for those things which under the law constitute a partnership. If the parties intend to, and in fact do, enter into such a contract, they will be partners under the law even though they may have expressly stipulated that they are not partners.

In the instant case, the agreement provided, among other things, that Fourteenth Street Associates was formed to acquire property for profit, that both Shepherd and Stalker had to consent to any other business by the association, that neither Shepherd nor Stalker had any authority to act alone on behalf of the association, that Shepherd and Stalker each had a 50 percent interest in the association’s assets and profits and losses, that Shepherd and Stalker each contributed $25,000 in capital to the association, and that each of them bore the risks of the association’s business. Based on this agreement, we find as a matter of law that Shepherd and Stalker intended to contribute equal amounts of capital to the enterprise, share the risks involved in the enterprise, share control over the business, and share the business assets and profits and losses. Shepherd and Stalker thus intended to, and did, form an association to carry on as co-owners of a business for profit — in other words, they formed a partnership.

Moreover, Aaron Rents’ distinction between a joint venture and a partnership is immaterial in this case. “[I]n this instance, as in most, the distinction is not crucial and the same general rules apply. [Cits.]” There is no difference between a joint venture and a partnership when the parties purchase property jointly and participate in the profits and losses; such a venture is a partnership.

A partnership protects its real property from judgment liens against the individual partners when title to that property is taken in the partnership name. Thus, Shepherd’s interest in what was the Fourteenth Street Associates’ partnership property is not subject to Aaron Rents’ 1991 judgment lien. Because the property in question is not subject to the judgment lien, the trial court did not err in granting summary judgment to Fourteenth Street Venture and Life of Virginia and in denying summary judgment to Aaron Rents.

Decided April 13, 2000

Reconsideration denied May 1, 2000

Minkin & Snyder, Michael J. King, G. Brian Raley, Robert E. Spears, Jr., for appellant.

Welch, Spell, Reemsnyder, Pless & Davis, Joseph G. Davis, Jr., Heyman & Sizemore, William B. Brown, for appellees.

2. Because of our findings in Division 1, we need not address Aaron Rents’ second enumeration of error that summary judgment for Fourteenth Street Venture and Life of Virginia was improper because there exists a genuine issue of material fact as to whether Fourteenth Street Associates was a partnership or a joint venture.

Judgment affirmed.

Phipps, J., and McMurray, Senior Appellate Judge, concur.

       See Shepherd v. Aaron Rents, Inc., 208 Ga. App. 139 (430 SE2d 67) (1993).

       OCGA § 14-8-6 (a).

        Hayes v. Irwin, 541 FSupp. 397, 415 (N.D. Ga. 1982).

        Ghee v. Kimsey, 179 Ga. App. 446, 447 (1) (346 SE2d 888) (1986); Jackson v. Jackson, 150 Ga. App. 87, 88 (1) (256 SE2d 631) (1979).

       See Berkman v. Commercial Bank &c., 171 Ga. App. 890 (1) (321 SE2d 339) (1984).

        Boatman v. George Hyman Constr. Co., 157 Ga. App. 120, 123 (276 SE2d 272) (1981).

       Id.

        Vitner v. Funk, 182 Ga. App. 39, 42 (2) (354 SE2d 666) (1987).

        Boatman, supra.

        Morgan Guaranty Trust Co. &c. v. Alexander Equities, 246 Ga. 60 (268 SE2d 660) (1980).

       OCGA § 14-8-25 (b) (3).


author: Blackburn, Presiding Judge.

text:
    A00A0172.
    PETERSON v. COLUMBUS MEDICAL CENTER FOUNDATION, INC. et al.
    (533 SE2d 749)
   Blackburn, Presiding Judge.

In this medical malpractice action, Darlene Peterson appeals from the trial court’s grant of defendants’, Columbus Medical Center Foundation, Inc. and Rivertown Pediatric, P.C. (the Medical Defendants), motion to dismiss her complaint. Peterson contends the trial court erred by dismissing: (1) her malpractice action for failure to attach the affidavit required by OCGA § 9-11-9.1 because she showed good cause to extend the time for filing the affidavit and (2) her action added by amendment to the original complaint which she asserts is one of simple negligence. Peterson also contends that OCGA § 9-11-9.1, as applied, violates her constitutional rights. For the reasons discussed below, we affirm in part and reverse in part.

On appeal,

[a] motion to dismiss for failure to state a claim upon which relief may be granted should not be sustained unless (1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought.

(Footnotes omitted.) Anderson v. Flake, 267 Ga. 498, 501 (2) (480 SE2d 10) (1997).

On March 21, 1997, Peterson brought her infant son, Davaun, who had been born prematurely in October, to Dr. Thomas Ellison of Rivertown Pediatric in Columbus because the infant was lethargic. Dr. Ellison ordered x-rays and blood tests to be performed at Columbus Regional Pediatric Center located in the same building. After these procedures were performed, but before the results were read, Peterson took her child home as instructed by Dr. Ellison. During the early morning hours of March 22, 1997, Davaun’s heart monitor sounded. Peterson called 911 and administered CPR, but Davaun could not be resuscitated.

Peterson asserts that shortly after the death of her son, she sought the assistance of an attorney in Alabama. However, in February 1999, she was told that no action had been filed and that the attorney could not represent her. Nonetheless, that same attorney assisted Peterson in the preparation of a pro se complaint, asserting medical malpractice, which was filed on March 19, 1999, shortly before the statute of limitation would expire for any cause of action which Peterson might have against the Medical Defendants. At the time of filing, Peterson had not obtained an affidavit which was required to be attached to the complaint, and she did not allege that the failure to attach the affidavit was because the statute of limitation would expire within ten days of the date of filing. See OCGA § 9-11-9.1 (a) and (b) (1997).

On April 19,1999 and May 4,1999, the Medical Defendants filed answers to the complaint, asserting as a defense, Peterson’s failure to comply with the requirements of OCGA § 9-11-9.1. Contemporaneously with their answers, the Medical Defendants filed motions to dismiss the complaint on this ground. On May 6, 1999, the motions were set for hearing on June 3, 1999.

Subsequently, Peterson obtained counsel to represent her. On June 2, 1999, Peterson filed a first amendment to the complaint, adding a count in simple negligence and the following statement: “Plaintiff states this action was filed pro se on March 19, 1999 within ten days of the expiration of the statute of limitations period and because of such time constraints, an affidavit of an expert could not be prepared.” On the same day, Peterson filed a request to file a motion out of time and a motion to extend the time to file an affidavit alleging professional negligence.

The hearing on the motions to dismiss was held on June 3, 1999. On June 16, 1999, the trial court granted the Medical Defendants’ motions and dismissed the complaint. On June 28, 1999, Peterson filed a motion to reconsider the order of dismissal, attaching to it an affidavit supporting her allegations of professional malpractice. The trial court denied the motion to reconsider.

1. In her first enumeration of error, Peterson argues that her amended complaint triggered the automatic 45-day extension to file the affidavit under OCGA § 9-11-9.1 (b). She contends that, after that extension had expired, the trial court abused its discretion by failing to grant her motion for a “good cause” extension provided by OCGA § 9-11-9.1 (b) and by dismissing her medical malpractice action.

(a) A plaintiff asserting a professional malpractice action must attach to the complaint a supporting affidavit of a qualified expert. OCGA § 9-11-9.1 (a). Under OCGA § 9-11-9.1 (b), a plaintiff is automatically entitled to a 45-day extension of time to file the affidavit where (1) the statute of limitation is about to expire and (2) the plaintiff alleges the affidavit could not be obtained for that reason:

The contemporaneous filing requirement of subsection (a) of this Code section [requiring an affidavit] shall not apply to any case in which the period of limitation will expire or there is a good faith basis to believe it will expire on any claim stated in the complaint within ten days of the date of filing and, because of such time constraints, the plaintiff has alleged that an affidavit of an expert could not be prepared. In such cases, the plaintiff shall have 45 days after the filing of the complaint to supplement the pleadings with the affidavit.

OCGA § 9-11-15 allows a plaintiff to amend the complaint to comply with OCGA § 9-11-9.1 (b) within 45 days of filing and thus trigger the automatic extended filing period. Glisson v. Hosp. Auth. of Valdosta &c., 224 Ga. App. 649 (481 SE2d 612) (1997) (complaint amended and affidavit filed within 45 days of the complaint); Thompson v. Long, 201 Ga. App. 480 (411 SE2d 322) (1991) (complaint amended and affidavit filed within 45 days of the original complaint). Any such amendment relates back to the filing of the original complaint, so the extended filing period begins on the date the original complaint was filed. Glisson, supra.

Thereafter, a plaintiff who triggered OCGA § 9-11-9.1 (b) may request additional time to file the affidavit. “The trial court may, on motion, after hearing and for good cause extend such time as it shall determine justice requires.” OCGA § 9-11-9.1 (b). Our Supreme Court has stated that such an extension for “good cause” can be considered even after the 45-day period has expired. Labovitz v. Hopkinson, 271 Ga. 330, 332-333 (2) (519 SE2d 672) (1999), overruling by implication Dixon v. Barnes, 214 Ga. App. 7 (1) (446 SE2d 774) (1994). In that case, the Supreme Court held that res judicata did not bar a nonmalpractice claim arising out of the same facts as a malpractice claim which had been dismissed for failure to file an expert affidavit under OCGA § 9-11-9.1 (1989). In its analysis of the res judicata issue, the Supreme Court stated that “[OCGA] § 9-11-9.1 (b) (1989) does not, by its terms, limit a subsection (b) plaintiff to request a ‘good cause’ extension of time within that 45-day period.” Labovitz, supra at 333 (2). Although Labovitz, supra, did not explicitly overrule Dixon, supra, we are constrained by the Supreme Court’s interpretation which addresses the very issue before us.

Therefore, applying this law to the facts before us, we find that Peterson properly availed herself of OCGA § 9-11-15 to amend the complaint to include the language of OCGA § 9-11-9.1 (b). Glisson, supra. Thus, despite amending the complaint 75 days after it was filed, Peterson triggered OCGA § 9-11-9.1 (b) and the automatic 45-day extended filing period. Id. However, Peterson could not and did not file the affidavit within the 45-day period, as the automatic extended filing period had already expired. Id. Yet, since Peterson fell within the provisions of OCGA § 9-11-9.1 (b), she was not precluded from seeking a good cause extension of time to file the affidavit after the statutory 45-day period had expired but before the motions to dismiss had been granted. Labovitz, supra.

(b) Having decided that Peterson was not precluded from seeking an extension to file the affidavit, we turn to whether the trial court’s denial of her motion for an extension was erroneous. In reviewing a trial court’s decision whether to grant an extension of time to file an affidavit,

[w]e will not substitute our judgment for that of the trial court when there is no obvious or apparent abuse of discretion by the court in what clearly is a matter of discretion. Where the trial court hears evidence, considers briefs and arguments and thereafter in the exercise of its discretion renders a judgment on a motion, in the absence of legal error, the sole question for determination is whether there is any evidence to authorize and support that exercise of discretion.

(Citations and punctuation omitted.) Archie v. Scott, 190 Ga. App. 145, 147 (3) (378 SE2d 182) (1989).

After Peterson filed her motion for extension of time, the trial court held a hearing on the motions to dismiss the complaint for failure to comply with the affidavit requirement. There is no transcript of that hearing in the record. Subsequently, Peterson, at the request of the trial court, filed a supplemental brief in support of her request for an extension of time to file her expert’s affidavit. Afterward, the motions to dismiss were granted. Although the trial court’s order made no specific finding that Peterson failed to show “good cause” sufficient to support an extension, the record shows the motion was considered by the trial court. The trial court implicitly denied Peterson’s motion by the grant of the motions to dismiss.

We cannot say the trial court abused its discretion by denying Peterson’s motion for a good cause extension of time to file the expert’s affidavit under the circumstances of this case. Peterson argues that she has demonstrated “good cause” because neither she nor the Alabama counsel who assisted her with the pro se complaint understood that an affidavit was required. She further explains the failure to file by stating that she did not understand the significance of failing to file an affidavit, even after receiving the Medical Defendants’ answers which raised the lack of an affidavit as a defense. Peterson obtained present counsel, who explained the affidavit requirement, well after the complaint, the answers, and the motions to dismiss were filed. The motion to extend was filed 75 days after the complaint was filed. And, at the time of the hearing on the motions to dismiss, Peterson still had no affidavit.

Peterson urges this Court not to hold her pro se complaint to the same pleading standard as one drafted by an attorney, relying on Thompson, supra. See Evans v. City of Atlanta, 189 Ga. App. 566 (377 SE2d 31) (1988). But, unlike Thompson where the plaintiff failed to use the “magic language,” the present case is not one of inartful or poor drafting, but one of ignorance of the law. “The maxim that ignorance of the law offers no legal excuse needs no citation.” (Punctuation omitted.) Maddox v. Wilson, 219 Ga. App. 158, 159 (2) (464 SE2d 226) (1995). A plaintiff proceeding pro se still must comply with the affidavit requirement. ABE Engineering v. Griffin, Cochran &c., 212 Ga. App. 586 (443 SE2d 1) (1994). We reject the contention that pro se status and ignorance of the affidavit requirement are sufficient bases to establish “good cause” to extend the time for filing.

(c) The trial court did not err by dismissing Peterson’s professional malpractice claim. Peterson failed to file an expert affidavit within the 45-day statutory extension, and the trial court found that Peterson had not demonstrated the “good cause” necessary to justify another extension of time in which to file the required affidavit.

Labovitz, supra.

If an affidavit is not filed within the period specified in this subsection or as extended by the trial court and the defendant against whom an affidavit should have been filed alleges, by motion to dismiss filed contemporaneously with its initial responsive pleading that the plaintiff has failed to file the requisite affidavit, the complaint is subject to dismissal for failure to state a claim.

OCGA § 9-11-9.1 (b).

2. In her second enumeration of error, Peterson contends the trial court erred by dismissing her claims added by amendment to the original complaint because those claims assert simple negligence. We agree.

The Medical Defendants argue that, although the claims in Count 4 are characterized as ordinary negligence, the claims are, in fact, for professional negligence. “Whether an action alleges professional malpractice or simple negligence depends on whether the professional’s alleged negligence required the exercise of professional judgment and skill.” Mendoza v. Pennington, 239 Ga. App. 300 (1) (519 SE2d 715) (1999). Claims of allegedly negligent administrative acts which do not require professional knowledge or skill assert ordinary negligence. Dent v. Mem. Hosp. of Adel, 270 Ga. 316, 318 (509 SE2d 908) (1998). Thus,

[wjhether to use certain equipment at all, what type of equipment to use, and whether certain equipment should be available in a specific case certainly are decisions which normally require the evaluation of the medical condition of a particular patient and, therefore, the application of professional knowledge, skill, and experience. However, the failure to operate equipment correctly or in accordance with a doctor’s instructions or to keep certain equipment on hand is only ordinary, not professional, negligence. See Robinson v. Med. Center of Central Ga., 217 Ga. App. 8, 9-10 (456 SE2d 254) (1995); Sparks v. Southwest Community Hosp. & Med. Center, 195 Ga. App. 858 (395 SE2d 68) (1990); Porter v. Patterson, 107 Ga. App. 64, 71 (1) (129 SE2d 70) (1962).

Id. In Dent, the Court held that a nurse’s alleged failure to activate an alarm, as a doctor had ordered, was ordinary negligence. Id. See also Smith v. North Fulton Med. Center, 200 Ga. App. 464 (408 SE2d 468) (1991) (claim that employees failed to carry out instructions was ordinary negligence); Jenkins County Hosp. Auth. v. Landrum, 206 Ga. App. 753 (426 SE2d 572) (1992) (claim that hospital failed to have appropriate equipment alleged ordinary negligence).

In this case, Count 4 of the complaint generally alleges that the Medical Defendants were negligent through the administrative nonprofessional functions of its employees. It further alleges, inter alia, that the Medical Defendants were negligent in failing to properly operate or equip their facilities and that the Medical Defendants were negligent in failing to follow adequate policies or procedures regarding the reading, interpretation and communication of medical tests.

This case is on appeal from the grant of a motion to dismiss. Unlike a summary judgment proceeding where the nonmovant cannot rest upon its pleadings and has a duty to come forward with evidence demonstrating a question of fact, under the facts of this case, the motion to dismiss was decided based on the complaint. The motions to dismiss were not converted to summary judgment motions by the consideration of evidence. See Martin v. Brown, 222 Ga. App. 566 (474 SE2d 742) (1996). Allegations of the complaint are construed most favorably to Peterson, even though other unfavorable constructions are possible. Ford v. Whipple, 225 Ga. App. 276, 277 (483 SE2d 591) (1997). “For the purposes of the motion ... all well-pleaded material allegations of the opposing party’s pleadings are to be taken as true, and all allegations of the moving party which have been denied are taken as false.” (Punctuation omitted.) Id.

So taken, the allegations do not disclose with certainty that Peterson would not be entitled to relief under a theory of simple negligence or that Peterson could not possibly introduce evidence to support such a claim. Ford, supra; Anderson, supra; Dent, supra. Consequently, the grant of the motions to dismiss was erroneous and is reversed with regard to Count 4 of the amended complaint,

3. In her third enumeration of error, Peterson contends that OCGA § 9-11-9.1, as applied, violates her constitutional rights. Specifically, Peterson contends that she is denied her right to trial, to due process and to equal protection under the law because she is unable to pay for the medical records necessary for obtaining an affidavit. The costs of copying medical records are charged by private entities, not the state. As there is no state action, Peterson’s constitutional arguments fail. See Etkind v. Suarez, 271 Ga. 352, 356 (4) (519 SE2d 210) (1999); Spencer v. McCarley Moving &c. Co., 174 Ga. App. 525 (330 SE2d 753) (1985). Compare Boddie v. Connecticut, 401 U. S. 371 (91 SC 780, 28 LE2d 113) (1971) (due process denied to indigent plaintiffs who could not bring divorce action except upon payment of court fees and service of process costs).

Judgment affirmed in part and reversed in part.

Eldridge and Barnes, JJ., concur.

Decided April 12, 2000

Reconsiderations denied May 1, 2000.

Steven L. Atha, for appellant.

Bradley & Hatcher, Richard Y. Bradley, Robert C. Martin, Jr., Carter R. Page, for appellees.

       We note that Labovitz applied OCGA § 9-11-9.1 (1989) and OCGA § 9-11-9.1 (1997) applies to this case; however, the language which the Supreme Court interpreted was not changed by the legislature.


text:
    A00A0336, A00A0337.
    O’NEAL v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY; and vice versa.
    (533 SE2d 781)
   Blackburn, Presiding Judge.

In Case No. A00A0336, Earl Michael O’Neal appeals the trial court’s order granting summary judgment to the defendant, State Farm Mutual Automobile Insurance Company (State Farm), in the underlying action involving O’Neal’s uninsured motorist claim against his insurance carrier, State Farm. Applying Tennessee law, the trial court granted summary judgment to State Farm based upon O’Neal’s failure to comply with the notice provisions in the insurance contract. O’Neal contends that, under Georgia law, an issue of fact remains as to whether timely notice was provided. In Case No. A00A0337, State Farm cross-appeals the denial of its motion for summary judgment on coverage grounds. For the reasons set forth below, the trial court properly applied Tennessee law and properly granted summary judgment to State Farm on the notice issue. Additionally, State Farm’s cross-appeal is moot, and we decline to address it.

Case No. A00A0336

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

In the present case, it is undisputed that O’Neal is a Tennessee resident and the insurance contract was executed and delivered in Tennessee. O’Neal asserts that on February 5, 1996, he was injured while he was a passenger in a rental car which was involved in a collision with a large bale of hay attached to the front end of a farm tractor. The collision occurred in Georgia. The rental car was not badly damaged, and the police were not notified of the collision. O’Neal avers that he called State Farm to provide notice of the collision within two or three months after it occurred. O’Neal deposed that he left a message with Linda who worked in the agent’s office. Linda Gentry, who works in the agent’s office, avers that O’Neal first notified her on March 10, 1997, over 13 months after the collision.

The insurance contract pertinently provides that any person making a claim under the uninsured motor vehicle coverage shall: “report an accident to the police within 24 hours and to us within 30 days which involves a land motor vehicle whose owner or operator is unknown.”

1. The initial question raised is one of choice of law. Contrary to O’Neal’s assertions, the present action sounds in contract rather than tort. See Belk v. Doe, 191 Ga. App. 475, 476 (382 SE2d 195) (1989).

Under the Georgia conflict of laws rule the place of the delivery of the insurance contract controls. The insurance contract at issue in this case was executed and delivered in the state of Tennessee and, therefore, Tennessee law governs the determination of the substantive issues.

(Citations and punctuation omitted.) Howard v. Doe, 174 Ga. App. 415, 416 (330 SE2d 370) (1985). In Howard, we applied Tennessee law to the insurance contract executed and delivered in Tennessee, even though the accident occurred in Georgia. Id. The place of the accident is not controlling if the cause of action sounds in contract rather than tort. Id. Therefore, the trial court appropriately applied Tennessee law.

2. It is undisputed that O’Neal failed to comply with the notice provision. The insurance policy required notice within 30 days and a police report within 24 hours. Construing the evidence in the light most favorable to O’Neal, he informed State Farm of the collision two to three months after it happened, and the police were not informed for more than a year after the collision.

Pursuant to Alcazar v. Hayes, 982 SW2d 845, 856 (Tenn. 1998),

once it is determined that the insured has failed to provide timely notice in accordance with the insurance policy, it is presumed that the insurer has been prejudiced by the breach. The insured, however, may rebut this presumption by proffering competent evidence that the insurer was not prejudiced by the insured’s delay.

Decided April 14, 2000

Reconsideration denied May 1, 2000

Van C. Wilks, for appellant.

The Tennessee Supreme Court continued with a nonexclusive list for determining whether the insurer had been prejudiced:

the availability of witnesses to the áccident; the ability to discover other information regarding the conditions of the locale where the accident occurred; any physical changes in the location of the accident during the period of the delay; the existence of official reports concerning the occurrence; the preparation and preservation of demonstrative and illustrative evidence, such as the vehicles involved in the occurrence, or photographs and diagrams of the scene; the ability of experts to reconstruct the scene and the occurrence; and so on.

(Punctuation omitted.) Id. The Tennessee Supreme Court recognized that the burden placed on the insured to “prove what information the insurer would have been able to discover had notice been promptly provided” was difficult. “However, [the Court was] less sympathetic to the insured in this instance, since the insured bears sole responsibility for breaching a term of the contract that was intended to preserve fairness to the insurer.” Id.

O’Neal offered no evidence and, thus, failed to carry his burden of proving that the insurer was not prejudiced by his delay in notifying State Farm. This is particularly true where, as in the present case, the claimant seeks damages for a collision which took place in another state between an unmanned tractor and a rental car rented and driven by a third party. The trial court did not err in granting summary judgment to State Farm.

Case No. A00A0337

3. In Case No. A00A0337, State Farm cross-appeals the trial court’s denial of its motion for summary judgment on the ground that the unmanned tractor qualified as an “off-road vehicle” which was not on the roadway at the time of the collision thereby excluding coverage. However, as we have affirmed the trial court’s grant of summary judgment to State Farm on lack of timely notice grounds, State Farm’s cross-appeal is moot and will not be addressed.

Judgment affirmed in Case No. A00A0336. Appeal dismissed in Case No. A00A0337.

Eldridge and Barnes, JJ, concur.

Tisinger, Tisinger, Vance & Greer, Thomas E. Greer, Kenneth B. Crawford, for appellee.


author: Eldridge, Judge.

text:
    A00A0728.
    LEE et al. v. AMERICAN CENTRAL INSURANCE COMPANY et al.
    (530 SE2d 731)
   Eldridge, Judge.

Plaintiffs Kuo L. Lee and K. Lee Enterprises, Inc. appeal from the trial court’s order granting summary judgment in favor of defendant American Central Insurance Company on its counterclaim.

Viewed in the light most favorable to the nonmovant, Lee owned real property located at 4500 Forsyth Road in Macon, Bibb County, as well as a building located thereon (“the property”). On May 30, 1985, Lee executed a deed to secure debt in favor of Citizens Bank & Trust of Eastman (“Citizens Bank”). The security deed was recorded on June 5,1985, in deed book 1544, page 697, of the Bibb County real property records.

However, on February 1, 1993, K. Lee Enterprises, not Lee individually, leased the property to Andy Tham and Tony Tham, owners of Fortune Garden, Inc. The lease required that the Thams maintain insurance on the building and provide K. Lee Enterprises with a copy of the insurance policy. Originally K. Lee Enterprises was listed as the mortgagee under the additional interests section of the policy instead of Lee individually.

On April 13, 1993, Lee borrowed $125,000 from Citizens Bank and executed a promissory note in favor of the bank in the amount of $125,000 with $135,000 due and payable on April 13, 1994. The note was secured by the 1985 deed to secure debt. On June 17, 1993, the insurance policy was amended by endorsement to add Citizens Bank as a mortgagee.

On June 17, 1993, the property was damaged by fire. Following an investigation, American Central determined that the Thams, who were the insureds and the principals of Fortune Garden, had intentionally set the fire and denied the Thams’ claim for coverage under the policy. American Central denied Lee’s individual claim because he was not listed as an additional insured, or in any other fashion on the policy. American Central also denied the claim of K. Lee Enterprises because it did not have an insurable interest in the property.

Lee defaulted on the 1993 promissory note with Citizens Bank. On May 23, 1994, Lee paid the interest due on the 1993 promissory note ($11,095.91) and executed another promissory note in favor of Citizens Bank in the principal amount of $125,000 with one payment of $127,696.91 due and payable on August 21, 1994. This note was also secured by the 1985 deed to secure debt. Lee failed to pay any sums owed on the 1994 promissory note, and it went into default.

On August 31, 1994, American Central paid Citizens Bank, as mortgagee on the property, the sum of $139,092.48. Both parties agree this was the total amount of principal and interest Lee owed at the time on the 1994 promissory note. Subsequent to receiving payment, Citizens Bank made the following three transfers and assignments to American Central: on September 2, 1994, Citizens Bank executed a transfer and assignment of the 1993 promissory note to American Central; on October 3, 1994, Citizens Bank executed a transfer and assignment of the 1985 deed to secure debt to American Central; and on November 30, 1994, Citizens Bank executed a transfer and assignment of the 1994 promissory note to American Central.

After all this occurred, Lee sold the property, and in connection with the sale, American Central canceled the security deed. In return for that cancellation, Lee paid to American Central the sum of $139,092.48 to be held in escrow until the issue was resolved regarding whether Lee was obligated to pay such amount to American Central pursuant to the assignments of the notes and deed to secure debt.

On January 9, 1995, Lee and K. Lee Enterprises filed suit against American Central, Kaplan-Walker Insurance Services, Inc., and Kaplan-Truesdel Insurance Agency, Inc. seeking to recover policy proceeds and damages. American Central filed a counterclaim against Lee seeking recovery of the $139,092.48 which it was holding in its escrow account. American Central and Kaplan moved for summary judgment on the plaintiffs’ claims. The trial court granted American Central’s motion and denied Kaplan’s. On appeal, this Court affirmed the trial court’s grant of summary judgment in favor of American Central on plaintiffs’ claims. However, this Court held that the trial court erred in denying Kaplan’s motion for summary judgment. See Lee v. American Central Ins. Co., 241 Ga. App. 650 (530 SE2d 727) (1999).

American Central then moved for summary judgment on its counterclaim, and Lee filed a cross-motion for summary judgment. On July 27, 1999, the trial court granted American Central’s motion for summary judgment, denied Lee’s motion for summary judgment, and awarded judgment in favor of American Central against Lee in the amount of $139,092.48 “plus interest at the contractual rate of $29.9657” beginning September 1, 1994, through the date of the judgment. It is from this judgment that Lee and K. Lee Enterprises appeal.

1. In their first enumeration of error, plaintiffs allege that the grant of summary judgment in favor of American Central was error “because the transfer and assignment of [the] loan and security documents was done without proper consideration and [American Central] had [a] separate duty to pay the mortgagee without assuming [a] claim against [Lee].”

(a) The issue of whether there was proper consideration given for the transfer and assignment of the security deed and notes was not raised at the trial level by the plaintiffs.

Issues presented for the first time on appeal furnish nothing for us to review, for this is a court for correction of errors of law committed by the trial court where proper exception is taken. One may not abandon an issue in the trial court and on appeal raise questions or issues neither raised nor ruled on by the trial court.

(Citations and punctuation omitted.) Cagle v. Davis, 236 Ga. App. 657, 662 (513 SE2d 16) (1999). Further, plaintiffs offer no legal authority for such proposition in their brief, and therefore, such alleged error is deemed abandoned. See Court of Appeals Rule 27 (c) (2), (3).

(b) Plaintiffs further contend that American Central had a separate duty to pay the mortgagee without taking an assignment of the claim against Lee. We agree.

The language contained in the subject policy is commonly referred to as the “New York standard mortgage clause.”

Where to the policy of insurance there is attached in favor of the mortgagee what is known as the New York standard mortgage clause, by the terms of which it is provided that the interest of the mortgagee shall not be invalidated by reason of any act or neglect on the part of the mortgagor, this agreement operates as a separate and distinct contract of insurance upon the mortgagee’s interest, and gives to the mortgagee such an independent status as might authorize a recovery by him on the policy even though the circumstances were such as would prevent a recovery by the mortgagor. Southern States Fire &c. Ins. Co. v. Napier, 22 Ga. App. 361, 362 (96 SE 15) [(1918)].

(Punctuation omitted.) Employers’ Fire Ins. Co. v. Pa. Millers Mut. Ins. Co., 116 Ga. App. 433, 436 (157 SE2d 807) (1967). See also Mechanics Ins. Co. v. Goodwin, 48 Ga. App. 823, 826 (174 SE 160) (1934). Under such independent contract of insurance, “[t]he mortgagee can enforce its right of recovery regardless of the defenses that the insurer may raise against the insured.” (Citations and punctuation omitted.) Cherokee Ins. Co. v. First Nat. Bank &c., 181 Ga. App. 146, 147 (351 SE2d 473) (1986).

Under the law in Georgia,

[w]here a policy of fire insurance is rendered void as to the named insured, but the insurer by reason of the mortgage clause in the policy pays to the holder of a security deed from the insured the full amount of the secured indebtedness and takes a transfer of the debt and the security, in accordance with the terms of the mortgage clause, the insurer is subrogated to the rights of the grantee in the security deed to the extent of the debt paid.

(Citations and punctuation omitted.) Aldridge v. Dixie Fire &c. Co., 223 Ga. 130, 133 (2) (153 SE2d 723) (1967). See also Peoples Bank of Mansfield v. Ins. Co. of North America, 146 Ga. 514 (1) (91 SE 684) (1917).

However, in this case, the mortgagor in the security deed is not the insured under the policy. See Lee v. American Central Ins. Co., supra. Insurance is a matter of contract and is controlled by general contract law. Schwartz v. Black, 200 Ga. App. 735 (409 SE2d 681) (1991).

[T]he language used is to be accorded its general and ordinary meaning, bearing in mind that the contract is to be construed in accordance with the intention and understanding of the párties, and, in construing it, the court can go no further than a fair construction of the language used will permit.

(Citation and punctuation omitted.) Cotton States Mut. Ins. Co. v. Smelcer, 212 Ga. App. 376-377 (441 SE2d 788) (1994). If a provision of an insurance contract is ambiguous, the statutory rules of contract construction will be applied. “Pursuant to the rule of construction set forth at OCGA § 13-2-2 (5), the contract will be construed strictly against the insurer/drafter and in favor of the insured.” (Citations and punctuation omitted.) Peachtree Cas. Ins. Co. v. Kim, 236 Ga. App. 689, 690 (512 SE2d 46) (1999).

Decided April 11, 2000

Reconsideration denied May 1, 2000

Smith & Harrington, Wilton D. Harrington, John P. Harrington, Robert S. Slocumb, for appellants.

The portion of the insurance contract which deals with the insurer’s right to be subrogated to the rights of the mortgagee under the deed.to secure debt reads as follows;

If we pay the mortgage holder for any loss or damage and deny payment to you because of your acts or because you have failed to comply with the terms of this Coverage Part: (1) The mortgage holder’s rights under the mortgage will be transferred to us to the extent of the amount we pay; and (2) The mortgage holder’s right to recover the full amount of the mortgage holder’s claim will not be impaired. At our option, we may pay to the mortgage holder the whole principal on the mortgage plus any accrued interest. In this event, your mortgage and note will be transferred to us and you will pay your remaining mortgage debt to us.

It is clear from the language of the policy that the insurer’s right to be subrogated to the rights of the mortgagee occurs only when: (1) the insured has been denied payment because of some act of the insured or because the insured has failed to comply with the terms of the coverage, (2) the insurer makes payment to the mortgagee, and (3) the insured, who has been denied payment under the policy, and the mortgagor are the same.

In this case, the third condition was not met. The mortgagor is not an insured under the policy. Therefore, in this case the insurer would not be entitled to be subrogated to the rights of the mortgagee. Since American Central had paid the mortgagee the entire amount of the debt, including interest, such payment by the insurer would act as an accord and satisfaction of the mortgagor’s (Lee’s) debt, preventing American Central from collecting on the notes and deed to secure debt which were assigned to it by the mortgagee.

2. Pursuant to our holding in Division 1, plaintiffs’ remaining enumeration of error is rendered moot.

Judgment reversed.

Blackburn, P. J., and Barnes, J., concur.

Mozley, Finlay son & Loggins, Robert M. Finlay son II, Edward C. Bresee, for appellees.

        Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

       Mrs. Tham obtained the American Central insurance policy through Kaplan-Truesdel Insurance Agency, Inc., which is now conducting business as Kaplan-Walker Insurance Services, Inc.

       This is an issue of first impression in this state. In previous appellate court decisions deciding if an insurer should be subrogated to the rights of the mortgagee, the mortgagor was also the insured under the insurance policy.


text:
    A00A0742.
    MILLER v. THE STATE.
    (533 SE2d 787)
   Johnson, Chief Judge.

The state accused Wilton Miller of being a habitual violator, making an illegal u-turn, driving without insurance, driving without proof of insurance, and driving with a revoked license. Miller denied the accusations and elected to represent himself without counsel.

At trial, the state presented a police officer who testified that on July 19, 1999, he saw Miller almost hit another vehicle when he made a u-turn in front of that vehicle, that he stopped Miller because of the improper u-turn, that he discovered Miller’s license had been suspended, and that Miller had only expired insurance cards but no proof of current insurance on his car. The state also introduced certified documents from the Georgia Department of Public Safety showing that Miller had previously been declared a nabitual violator, that his driver’s license had been revoked several years ago, and that his license had not been reinstated.

The jury found Miller guilty of all the charged offenses. And the court entered a judgment of conviction on the verdict, sentencing Miller to serve two consecutive twelve-month sentences. Miller appeals pro se, asserting 19 enumerations of error. We find that none of the enumerated errors is meritorious and, therefore, affirm the judgment of the trial court.

1. Miller claims that at his first appearance hearing on July 20, 1999, the magistrate refused his request to represent himself. The burden is on the complaining party, including a pro se appellant, to compile a complete record of what happened below, and when this is not done there is nothing for an appellate court to review. Miller has not met this burden because there is no transcript of the first appearance hearing. Nor is there any other evidence in the record showing that the magistrate in fact disregarded a knowing and voluntary waiver by Miller of his right to counsel.

Furthermore, we note that Miller was allowed to exercise his right to represent himself at trial. So we fail to see how the appointment of counsel at the first appearance hearing, if such appointment actually occurred over Miller’s knowing and voluntary waiver of counsel, constitutes a basis for reversing Miller’s convictions.

2. Miller complains that at his commitment hearing held on July 23, 1999, the state denied him the right to due process by moving to increase his bond and by initiating an unlawful arraignment. There is no transcript of the hearing in question, and Miller has not shown by the record how a motion to increase his bond denied him due process or that there was an unlawful arraignment. Miller therefore has not met his burden of proving error by the record.

3. Miller contends the court erred in denying his motion to dismiss all the charges on the ground that the officer who arrested him did not appear at the commitment hearing. This contention is not supported by the record because there is no transcript of that hearing.

Moreover, Miller has not indicated why the officer’s alleged nonappearance at the hearing would have provided a basis for the court to dismiss all of the charges brought against him by the state. The only thing we can presume is that Miller may have intended to claim that the state could not have proved probable cause at the hearing without the officer. But hearsay is admissible at a commitment hearing, so even without the arresting officer’s testimony, the state still could have established probable cause through other hearsay evidence. In any event, we do not know exactly what happened at the hearing because of the absence of a transcript.

Furthermore, at this point, the jury verdict of guilty beyond a reasonable doubt demonstrates that there was probable cause to charge Miller with the offenses for which he was convicted, so any error at the commitment hearing was harmless.

4. Miller claims that the court erred in denying his motion to dismiss the habitual violator charge on the ground that his driver’s license had actually been reinstated. Miller has not cited any evidence in the record to support his claim that at the time he was driving on July 19, 1999, he had a valid driver’s license. On the contrary, the only evidence on that issue was presented by the state at trial in the form of certified documents showing that his suspended license has never been reinstated. Accordingly, Miller has again failed to support his claim of error by the record.

5. Miller argues that the court erred in proceeding with the trial while he still had several motions pending. The only pending motion that he has actually identified in his brief was a motion to change venue on the ground that his prior conviction for being a habitual violator was published in a newspaper.

All motions must be filed before or at the arraignment, unless the time for filing is extended by the judge in writing prior to trial. Miller did not get an extension of time from the judge for the filing of his change of venue motion, which was filed approximately two months after the arraignment and less than two weeks before trial. The trial court therefore did not err in not ruling on Miller’s untimely motion.

6. Miller’s enumerated error that the jury array did not represent a cross-section of the community is written on an otherwise blank page, completely unsupported by any argument, record citations or legal authority. The enumerated error is thus deemed abandoned.

7. Miller complains that the court improperly limited his opening statement. The purpose of the opening statement is to give the jury and the court an outline of the evidence that the party anticipates presenting, whereas the purpose of the closing argument is to recount the evidence presented and suggest the conclusion demanded by that evidence. The trial court has the right and duty to govern the scope of argument both before and after the presentation of evidence, and the proper range of argument is a matter within the court’s discretion.

In this case, the court properly instructed Miller to state in his opening remarks only what he anticipated the evidence to show. Miller, however, repeatedly ignored the court’s instructions and attempted to argue his case and refer to matters that would not be proved by the evidence. Under those circumstances, we find no abuse of discretion in the court’s limiting Miller’s opening statement only to matters that would be shown by the evidence.

8. Miller argues that the court erred in not allowing him to cross-examine the arresting officer about whether Miller asked him at the scene of the traffic stop to place a telephone call to verify that Miller indeed had valid automobile insurance. The trial transcript reveals that Miller actually did ask the officer three times about whether Miller had made such a request at the traffic scene, and each time the officer said he did not recall. It was only after Miller attempted to ask the officer the same question a fourth time that the trial court instructed Miller to move on to another subject.

The trial court may curtail inquiries which are unduly repetitive or harassing and may exercise reasonable judgment in determining when a subject is exhausted. Such restrictions lie within the discretion of the trial court and will not be disturbed on appeal unless manifestly abused.

Here, the trial court did not manifestly abuse its discretion in curtailing Miller’s repeated questioning on a subject matter that had been exhausted.

9. Miller claims the court erred in allowing a state’s investigator to testify because the state had not given Miller a list of its witnesses pursuant to his discovery request. Although Miller told the trial judge he had not gotten the list, the state informed the trial court at a pretrial hearing that it had given Miller a witness list. And during the trial the state presented a legal assistant who testified that before the trial she had provided Miller with a list of state witnesses, including the investigator.

So, contrary to Miller’s claim, there is some evidence in the record to support a finding by the trial court that the state did in fact provide Miller with the witness list. Furthermore, the remedies available to a defendant who claims a witness was not properly identified are a continuance or a mistrial, neither of which was sought here. The trial court thus did not abuse its discretion in permitting the investigator to testify.

10. Miller objects that the court erred in allowing the state to introduce two Department of Public Safety license suspension notices because they put Miller’s character in issue by showing DUI citation numbers. Although Miller objected when the state tendered these documents for admission, he did not raise the specific objection that he now raises. To preserve a specific point for appellate review, an objection based on that specific ground must be made in the trial court. Because no such contemporaneous objection was made here, the issue was not preserved for our review.

11. Miller contends that the court erred in admitting a state exhibit showing that he had been declared a habitual violator because that habitual violator declaration was later vacated by another court. But Miller presented no evidence to the trial court, and has cited no evidence here, in support of this claim and thus has failed to support his claim of error by the record.

12. Miller complains that the court erred in admitting the state’s exhibit showing his driving history because it showed his prior DUI convictions and other driving offenses which put his character in issue. At the time the document was admitted, Miller objected that it was highly improper but did not specifically argue that it put his character in issue. Absent a contemporaneous objection on the specific ground now asserted on appeal, the issue is not preserved for our review.

13. Miller’s contention that a state exhibit showing he had been declared a habitual violator was somehow favorable to him and was improperly withheld by the state is unpersuasive. In any event, even if the habitual violator notice could be construed as being favorable to Miller, there is no Brady violation where the information becomes available to the accused at trial, as it did here.

14. Miller argues that he was prejudiced by the judge having heard Miller’s driving record from a witness outside the jury’s presence. Miller failed to raise this argument in the trial court and thus cannot raise it for the first time on appeal. Moreover, it is unclear from Miller’s argument exactly how he was prejudiced, and he has cited nothing in the record to support his claim. We find no evidence that the judge was prejudiced against Miller.

15. Miller asserts that the judge violated OCGA § 17-8-57 by expressing his opinion about the dates shown on two of the state’s exhibits. The specific comments that Miller complains of were made outside the jury’s presence, so there was no violation of OCGA § 17-8-57. And there is no indication that the judge later intimated any opinion to the jury about the case. We find no error.

Decided April 14, 2000

Reconsideration denied May 1, 2000

Wilton V. Miller, pro se.

Gerald N. Blaney, Jr., Solicitor, Daniel J. Whitworth, Jeffrey P. Kwiatkowski, Staci B. Abrams, Assistant Solicitors, for appellee.

16. Contrary to Miller’s claim, the arresting officer’s uncontradicted testimony that Miller produced only expired insurance cards and no proof of current insurance on his car was sufficient evidence to support the jury’s finding beyond a reasonable doubt that Miller was guilty of driving without insurance.

17. Miller argues that the habitual violator statute, OCGA § 40-5-58, violates constitutional due process requirements by allowing the state to suspend a driver’s license without first having a hearing. This argument has already been decided adversely to Miller by the Supreme Court, which has held that Georgia’s statutory scheme of an administrative appeal and a de novo review in the superior court of the revocation of a habitual offender’s license meets the due process requirements of both the state and federal constitutions.

18. Miller contends that the trial court erred in preventing him from expressing his opinion of the law during his closing argument. The right to comment on the law to the jury is not absolute but is subject to limitations imposed by the court in the exercise of its discretion. Here, the trial court did not abuse its discretion in prohibiting Miller from giving his opinion of, or otherwise misstating, the law.

19. Miller claims that the court erred in considering evidence presented by the state in aggravation of punishment that was not made known to him prior to trial. The claim is without merit because the state is not required to give pretrial notice of evidence in aggravation of punishment in misdemeanor cases such as this.

Judgment affirmed.

Phipps, J., and McMurray, Senior Appellate Judge, concur.

        Kegler v. State, 267 Ga. 147, 148 (3) (475 SE2d 593) (1996); Farris v. State, 236 Ga. App. 241 (511 SE2d 601) (1999).

       See Hayes v. State, 203 Ga. App. 143, 144 (2) (416 SE2d 347) (1992).

       See Loggins v. State, 225 Ga. App. 713, 715-716 (4) (484 SE2d 758) (1997). Compare Coppolla v. State, 238 Ga. App. 567, 570-573 (2) (519 SE2d 494) (1999).

        Kegler, supra; Farris, supra.

       See Kegler, supra; Farris, supra.

        In re R. B., 264 Ga. 602, 603 (448 SE2d 690) (1994).

       See generally Ferrell v. State, 203 Ga. App. 479, 480 (1) (416 SE2d 903) (1992). See also Fleming v. State, 236 Ga. 434, 436 (224 SE2d 15) (1976) (after indictment and conviction, even the complete lack of a commitment hearing will not be considered reversible error).

       See Kegler, supra; Farris, supra.

        Haska v. State, 240 Ga. App. 527 (1) (523 SE2d 589) (1999).

       See Stewart v. State, 232 Ga. App. 565, 566-567 (2) (502 SE2d 502) (1998) (trial court properly dismissed untimely motion to suppress).

       Court of Appeals Rule 27 (c) (2).

        Williams v. State, 218 Ga. App. 571, 573 (2) (462 SE2d 457) (1995).

       Id.

       See Walden v. State, 267 Ga. 162, 164 (2) (c) (476 SE2d 259) (1996).

       (Citation omitted.) Daniels v. State, 235 Ga. App. 296, 297 (1) (509 SE2d 368) (1998).

       See Mize v. State, 269 Ga. 646, 653 (7) (501 SE2d 219) (1998); Moody v. State, 258 Ga. 818, 821 (4) (375 SE2d 30) (1989).

       See id.

        Frymyer v. State, 179 Ga. App. 391, 393 (3) (346 SE2d 573) (1986).

       See Kegler, supra; Farris, supra.

        Frymyer, supra.

        Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963).

        Stephens v. State, 264 Ga. 761, 762 (3) (450 SE2d 192) (1994).

       See Frymyer, supra.

       See Kegler, supra; Farris, supra.

       See Najmaister v. State, 196 Ga. App. 345, 347 (2) (396 SE2d 71) (1990).

       See Smith v. State, 236 Ga. App. 122, 124-125 (3) (511 SE2d 223) (1999).

       See Grayer v. State, 181 Ga. App. 845, 846 (3) (354 SE2d 191) (1987).

        See Nunn v. State, 224 Ga. App. 312, 313 (1) (b) (480 SE2d 614) (1997) (physical precedent only); Odum v. State, 220 Ga. App. 263-264 (469 SE2d 394) (1996).

       See Quiller v. Bowman, 262 Ga. 769, 770, n. 1 (425 SE2d 641) (1993); Hardison v. Shepard, 246 Ga. 196, 198 (2) (269 SE2d 458) (1980); Hardison v. Booker, 179 Ga. App. 693, 694 (3) (347 SE2d 681) (1986).

        Simmons v. State, 172 Ga. App. 695, 698 (6) (324 SE2d 546) (1984).

       See Massey v. State, 272 Ga. 50 (525 SE2d 694) (2000).

       See Williams v. State, 221 Ga. App. 291, 295 (3) (470 SE2d 922) (1996) (physical precedent only).


author: JOHNSON, Chief Judge.

text:
    A99A0646.
    WEAVER v. NORTH GEORGIA REGIONAL EDUCATIONAL SERVICE AGENCY.
    (534 SE2d 463)
    Decided May 1, 2000.

      E. Wycliffe Orr, for appellant.

      Harden & Hartley, Phillip L. Hartley, for appellee.
   JOHNSON, Chief Judge.

The decision of the Court of Appeals in this case having been reversed by the Supreme Court, North Ga. Regional Ed. Svc. Agency v. Weaver, 272 Ga. 289 (527 SE2d 864) (2000), our decision in Weaver v. North Ga. Regional Ed. Svc. Agency, 238 Ga. App. 72 (517 SE2d 794) (1999), is hereby vacated, and the judgment of the Supreme Court is made the judgment of this court.

Judgment affirmed.

Andrews, P. J., and Ruffin, J., concur.