author:
McMurray, Presiding Judge.
      Andrews, Presiding Judge,

text:
    A99A0665.
    INTERNATIONAL INDEMNITY COMPANY v. REGIONAL EMPLOYER SERVICE, INC.
    (520 SE2d 533)
   McMurray, Presiding Judge.

Plaintiff International Indemnity Company filed this action to recover premiums allegedly due on workers’ compensation insurance policies issued to defendant Regional Employer Service, Inc. Defendant answered and counterclaimed for damages to its business caused by excessive premiums charged for workers’ compensation insurance due to incorrect data submitted by plaintiff to the licensed rating organization. On the trial of the case, a jury returned a verdict in favor of defendant and awarded, on the counterclaim, special damages of $109,000 and attorney fees of $23,006. The judgment followed the verdict, and plaintiff appeals. Held:

1. Violation of OCGA § 33-24-47 is listed among the bases for defendant’s claims in the consolidated pre-trial order. The alleged violation was a cancellation of certain workers’ compensation coverage. By motion in limine, plaintiff sought to exclude evidence of losses arising from the cancellation and at trial moved for directed verdict as to defendant’s counterclaim for wrongful cancellation. The denial of both motions is enumerated as error. However, plaintiff concedes that defendant “introduced no evidence and did not request a charge on O.C.G.A. § 33-24-47” which formed the basis of defendant’s wrongful cancellation claim, and that “there was an absence of ‘any evidence’ in support of a claim for wrongful cancellation.” While plaintiff argues that the wrongful cancellation claim should not have been submitted to the jury, it is apparent that in fact it was not. It follows that any error in the denial of these motions was harmless and does not serve as a proper basis for reversal. In order to obtain reversal on appeal, harm as well as error must be shown. Sparti v. Joslin, 230 Ga. App. 346, 350 (3) (496 SE2d 490); Walker v. GRO Assoc., 227 Ga. App. 569, 570 (2) (489 SE2d 366).

2. Plaintiff’s first enumeration of error complains of the denial of its motion in limine seeking to preclude defendant from offering or otherwise alluding to lost profits, lost income, diminished corporate reputation and diminution in value as a result of any alleged noncompliance with OCGA § 34-9-136.

A motion in limine is a pretrial method of determining the admissibility of evidence, as a party may secure a pretrial ruling on the admissibility of evidence or a ruling prohibiting any reference to certain evidence until its admissibility can be assessed in the context of the trial as it unfolds. State v. Johnston, 249 Ga. 413 (3) (291 SE2d 543) (1982). By its very nature, the grant of a motion in limine excluding evidence suggests that there is no circumstance under which the evidence under scrutiny is likely to be admissible at trial. See Green, Georgia Law of Evidence, p. 26, § 12, n. 5. In light of that absolute, the grant of a motion in limine excluding evidence is a judicial power which must be exercised with great care.

Andrews v. Wilbanks, 265 Ga. 555, 556 (458 SE2d 817). See also Dept. of Transp. v. Wallace Enterprises, 234 Ga. App. 1, 4 (6) (505 SE2d 549).

In this particular instance, the transcript does not clearly indicate whether the trial court ruled on the portion of plaintiff’s motion in limine now at issue. Nonetheless, we will assume for purposes of this opinion that the contested portion of the motion in limine was denied as plaintiff maintains.

OCGA § 34-9-136 requires a workers’ compensation insurance provider to submit statistical data to the employer which it concerns for verification prior to sending the data to a licensed rating organization which will use the data in determining the employer’s experience modification factor, an expression of risk factors which affects premium rates. In support of the first enumeration of error, plaintiff argues at length that OCGA § 34-9-136 does not create a private cause of action. Defendant responds that violation of the statute provided it with a negligence per se cause of action against plaintiff. However, this issue, concerning the existence and nature of any cause of action arising from a violation of the statute, is not determinative of the question of the admissibility of the evidence plaintiff sought to exclude.

As applied with respect to the circumstances of the case sub judice, we find that regardless of whether a violation of OCGA § 34-9-136 may serve as the proper foundation of a counterclaim asserted by defendant, evidence showing the statutory violation does not lack probative value since it is a circumstance that may be considered by the jury along with other facts and circumstances with respect to issues of mitigation of damages and set-off in connection with plaintiff’s claim for amounts owed for unpaid premiums. Allen v. Lefkoff, Duncan, Grimes &c., P.C., 265 Ga. 374, 377 (2) (c) (453 SE2d 719); Unified Sues. v. Home Ins. Co., 218 Ga. App. 85, 87, n. 1 (460 SE2d 545). The evidence having relevance to the issues on trial with respect to plaintiff’s claim, the denial of the motion in limine was not error. American Petroleum Products v. Mom & Pop Stores, 231 Ga. App. 1, 7 (3) (497 SE2d 616).

3. Plaintiff enumerates as error the trial court’s refusal to give its requested charge that: “The measure of damages for an allegedly excess and incorrect premium is the difference between that which was paid and the correct amount due as shown by the evidence.” This request to charge was supported by citation of Dixie Constr. Products v. Southeastern Council on Compensation Ins., 183 Ga. App. 101 (357 SE2d 831) and Walker v. Bituminous Cas. Corp., 74 Ga. App. 517 (40 SE2d 228). Via this request plaintiff sought to provide a measure of damages for use with respect to defendant’s counterclaim for loss of business. However, defendant’s counterclaim and the evidence introduced in support thereof authorized a broader measure of damages, the reduction in value of defendant’s business. Molly Pitcher Canning Co. v. Central of Ga. R. Co., 149 Ga. App. 5, 15 (8) (253 SE2d 392). The charge requested by plaintiff cannot be said to have been adjusted to the evidence presented at trial; thus, there was no error in the refusal of this requested instruction. Roberts v. Chapman, 228 Ga. App. 365, 367 (2) (492 SE2d 244); Smith v. Curtis, 226 Ga. App. 470, 471 (2) (486 SE2d 699).

4. In support of two enumerations of error complaining of the denial of motions for directed verdict, plaintiff argues that defendant failed to prove damages with respect to its counterclaim for loss of business. It is uncontroverted that the jury was correctly charged that

[t]he measure of damages for that claim is the difference between the fair market value of the damaged property or the business immediately before the injury and the fair market value that remains when the business is stopped, together with any losses incurred in the interim.

After having examined the evidence referenced by defendant with respect to this issue, and having carefully surveyed all of the evidence as to damages presented at trial, we must conclude that plaintiff’s assertion is incorrect.

[T]he rule against recovery of speculative damages relates primarily to speculation regarding proximate cause rather than extent. See Ga. Ports Auth. v. Servac Intl., 202 Ga. App. 777 (3) (415 SE2d 516) (1992). Once a plaintiff establishes that damages proximately flow from the defendant’s alleged conduct, “mere difficulty in fixing their exact amount” should not be a legal obstacle to recovery. See id. at 780.

Freeman v. Pittman, 220 Ga. App. 672, 674 (2) (469 SE2d 543).

Defendant presented the testimony of an accountant on the valuation of defendant’s business. The accountant testified that he had been asked to establish the value of the business on December 31, 1991, and began his testimony with respect to valuation of defendant’s business on that date. The accountant testified as to his estimate of valuation and how that figure would be influenced by various hypothetical alterations of the underlying data. On both direct and cross-examination, the accountant expounded at length on the nature and value of the assets of the defendant’s business under various circumstances. Eventually, the accountant was asked to consider circumstances which clearly were those that caused the damages for which defendant sought a recovery and reflected upon the value of defendant’s business after the date of the injury allegedly caused by plaintiff. There were undoubtedly gaps in the data concerning the post-injury valuation of defendant’s business, perhaps explained in part by the loss or destruction of certain financial records, and little explicit distinction between the pre-injury and post-injury time periods. Nonetheless, the testimony of the accountant, along with other evidence including the testimony of defendant’s owner, was sufficient to provide the jury with a reasonable basis for determining the diminution in the value of defendant’s business allegedly caused by plaintiff Scriver v. Lister, 235 Ga. App. 487, 489 (2) (510 SE2d 59); MARTA v. Green Intl, 235 Ga. App. 419, 422 (1) (509 SE2d 674); Gipson v. Phillips, 232 Ga. App. 235, 236 (501 SE2d 570); Holland v. Holland Heating &c., 208 Ga. App. 794, 796 (2) (432 SE2d 238). Thus, the denial of plaintiff’s motion for directed verdict on this basis was not error.

5. Next, plaintiff contends the trial court erred in denying its motion for directed verdict on the grounds that defendant failed to prove proximate cause. Plaintiff’s vice-president admitted that plaintiff had not begun submitting the data, which it provided to the rating organization concerning defendant, to defendant for verification in compliance with OCGA § 34-9-136 in the period following the July 1, 1992 effective date of the statute. This witness also acknowledged that if inaccurate data were supplied to the rating organization, such would result in inaccurate premiums being charged an insured. Defendant presented evidence that plaintiff reported inaccurate data to the rating organization, resulting in excessive premiums which damaged its business.

Thus, there was no lack of proof under the applicable “any evidence” standard with respect to the element of proximate cause, and the trial court did not err in denying the motion for directed verdict on this basis. Dept. of Human Resources v. Phillips, 268 Ga. 316, 322 (5) (486 SE2d 851); Dept. of Transp. v. Blair, 220 Ga. App. 342, 344-345 (1) (b) (469 SE2d 446).

6. Nor did the trial court err in denying plaintiff’s motion for directed verdict with respect to attorney fees under OCGA § 13-6-11. There was ample evidence that plaintiff acted in bad faith by failing to verify the data which formed the basis of the premium charged defendant and failing to respond in any constructive fashion when defendant sought correction of erroneous premiums. Kopp v. First Bank of Ga., 235 Ga. App. 520, 524 (3) (509 SE2d 384); Evans Toyota v. Cronic, 233 Ga. App. 318, 322 (3) (b) (503 SE2d 358).

Also, contrary to plaintiff’s assertion, defendant’s counterclaim is viable and thus authorizes the claim for attorney fees. Furthermore, defendant presented evidence as to the amount of attorney fees attributable solely to the prosecution of the counterclaim and the verdict returned by the jury was well within that figure. Compare Line-berger v. Williams, 195 Ga. App. 186, 188 (3) (393 SE2d 23).

7. Plaintiff’s final enumeration of error complains of the trial court’s permitting defendant’s “Exhibit 50” to go out with, and be considered by, the jury during deliberations after having ruled that said exhibit could be used for demonstrative purposes only. When the exhibit was initially offered into evidence, plaintiff objected to it going out with the jury because it would be continuing testimony in the jury room. At the same time, plaintiff conceded that defendant could use the exhibit for demonstrative purposes only. Defendant’s attorney stated that he wanted to use the exhibit only for demonstrative purposes and did not care if it got into evidence. The trial court permitted defendant to use the exhibit for the agreed purpose and acknowledged that these circumstances had in effect caused the withdrawal of the offer of the exhibit into evidence and eliminated the plaintiff’s objection.

Some time later when the trial court and counsel were reviewing the exhibits, plaintiff’s counsel stated that he thought one of the exhibits, “Exhibit 50” had not been admitted. The court reporter stated that he had the exhibit recorded as admitted over objection, and plaintiff’s counsel, as well as the trial court, acquiesced to that statement. It thus appears that any procedural error arose from the apparently faulty recollection of the court reporter rather than any ruling of the trial court. Such a procedural irregularity, which apparently caused an exhibit which had not been admitted into evidence to go out with the jury, should have been objected to at the time it occurred. Since no objection was made when the matter could have been remedied, the failure to object constitutes a waiver and the matter cannot be raised for the first time on appeal. Sims v. Majors, 178 Ga. App. 679, 681 (3) (344 SE2d 501).

Judgment affirmed.

Ruffin, J., concurs. Andrews, P. J., concurs specially.

Andrews, Presiding Judge,

concurring specially.

International Indemnity Company (IIC) provided workers’ compensation insurance to Regional Employer Service, Inc. (RES) under the assigned risk pool for employers unable to otherwise obtain insurance. In response to IIC’s suit against RES to collect insurance premiums claimed to be due, RES answered, denied owing the premiums, and counterclaimed against IIC seeking business damages allegedly caused by incorrectly calculated and excessive yearly premiums charged by IIC for a renewal insurance policy from September 1992 to September 1993. The counterclaim in tort was based on allegations that IIC negligently failed to comply with provisions of OCGA § 34-9-136 requiring that, before IIC was authorized to submit statistical data on RES to the licensed rating organization for purposes of calculating the premium to be charged, IIC was required to verify the accuracy of the data with RES. RES contended that, because IIC negligently failed to verify the data as required by OCGA § 34-9-136, IIC submitted incorrect data for calculation of the premium which caused an erroneous 400 percent increase in the yearly premium charged by IIC. RES alleged that, after it was unable to pay the increased premium, IIC cancelled the insurance policy for nonpayment of the premium, which forced RES out of business and caused the damages at issue.

RES also alleged in its counterclaim that IIC negligently failed to comply with the notification provisions of OCGA § 33-24-47 prior to cancellation of the policy for nonpayment of the charged premium. However, this claim was apparently abándoned, as no evidence was introduced to support it, nor was the jury charged on the claim. In any event, OCGA § 33-24-47 does not require notice when an insurer offers to renew a policy and coverage is cancelled because of nonpayment of the renewal premium. Riley v. Taylor Orchards, 226 Ga. App. 394, 395-396 (486 SE2d 617) (1997).

The case was tried before a jury. As to IIC’s claim for premiums due, the jury rendered a verdict in favor of RES. As to RES’ counterclaim for violation of OCGA § 34-9-136, the jury rendered a separate verdict in favor of RES and awarded business damages and attorney fees.

On appeal, IIC does not contest the jury verdict in favor of RES on IIC’s claim for unpaid premiums. Rather, IIC contests the separate verdict on RES’ counterclaim by contending in various enumerations of error that: (1) even if it violated the provisions of OCGA § 34-9-136, this would not support the tort claim brought by RES for damages to its business, and (2) even if such a tort claim existed, there was a lack of evidence to prove the amount and cause of the alleged business damages.

I agree in principle with IIC’s contention that, even if it violated OCGA § 34-9-136, RES was not entitled to bring the tort cause of action for damages to its business. Nothing in the language of OCGA § 34-9-136 evinces an intention by the legislature to create a cause of action for its violation. See Parris v. State Farm &c. Ins. Co., 229 Ga. App. 522, 524 (494 SE2d 244) (1997); Generali US. Branch v. Southeastern Security Ins. Co., 229 Ga. App. 277, 280-281 (493 SE2d 731) (1997). Moreover, even assuming that the statute as enacted could support a cause of action to protect RES from the type of damages it sued to recover, the suit was premature. The information-gathering requirements of OCGA § 34-9-136 are part of a statutory scheme under which the Commissioner of Insurance is empowered to regulate insurance rates for workers’ compensation coverage. OCGA §§ 34-9-120 through 34-9-138; 33-9-1 through 33-9-44. Recognizing that regulation of insurance rates involves resolution of issues within the special knowledge and experience of the Commissioner, the legislature provided a statutory means to obtain a full hearing on these issues before the Commissioner along with the right of judicial review of actions taken by the Commissioner. OCGA §§ 33-9-26; 33-2-17 through 33-2-28; the Georgia Administrative Procedure Act (APA) (OCGA § 50-13-1 et seq.); see Bailey v. Wilkes, 162 Ga. App. 410, 412-414 (291 SE2d 418) (1982). Furthermore, OCGA § 50-13-21 of the APA provides that: “The Commissioner of Insurance, when performing the duties as Commissioner of Insurance, may satisfy the procedure for conduct of hearings on contested cases required under this chapter by following Chapter 2 of Title 33.” Under the APA, “ ‘[contested case’ means a proceeding, including, but not restricted to, rate making, price fixing, and licensing, in which the legal rights, duties, or privileges of a party are required by law to be determined by an agency after an opportunity for hearing.” (Emphasis supplied.) OCGA § 50-13-2 (2). Accordingly, RES would be required to pursue its claims before the Commissioner prior to institution of any suit for damages. Bailey, supra at 414; First Union Nat. Bank &c. v. Independent Ins. Agents &c., 197 Ga. App. 227 (398 SE2d 254) (1990); Provident Indem. Life Ins. Co. v. James, 234 Ga. App. 403, 406-408 (506 SE2d 892) (1998).

Nevertheless, because IIC did not preserve the above issues for review on appeal, I am constrained to agree with the majority that the judgment in favor of RES’ counterclaim must be affirmed. IIC contends the trial court erred by denying its motion in limine and its motion for a directed verdict seeking rulings on the cause of action based on OCGA § 34-9-136. However, in both motions IIC sought rulings on the issue of damages, not the issue of whether RES was entitled to institute the cause of action for violation of OCGA § 34-9-136. Moreover, the record does not show that the trial court ruled on the motion in limine. I concur with the majority’s conclusions that there was sufficient evidence on the issue of damages to sustain the verdict on the counterclaim and no other error requiring reversal.

Decided July 8, 1999

Reconsideration denied July 29, 1999

Michael L. Wetzel, for appellant.

Brinson, Askew, Berry, Seigler, Richardson & Davis, C. King Askew, Mark M. J Webb, for appellee.


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A99A0818.
    BURKS v. THE STATE. ALLS v. THE STATE.
    A99A0856.
    (521 SE2d 416)
   Ruffin, Judge.

Verlon Burks and Willie Paul Alls were each convicted of robbery and aggravated assault, and Alls was also convicted of certain driving violations. After Alls filed a motion for new trial, the trial court merged his aggravated assault conviction into his robbery conviction. Both defendants appeal, contending that the evidence was insufficient to support their robbery convictions. In addition, Alls contends that he is entitled to a new trial because certain photographs were improperly admitted. Because these contentions are without merit, we affirm.

1. On appeal of a criminal conviction,

the evidence must be construed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Conflicts in the testimony of the witnesses, including the State’s witnesses, are a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.

(Punctuation omitted.) Taylor v. State, 235 Ga. App. 323, 324 (1) (509 SE2d 388) (1998).

Viewed in the light most favorable to the verdict, the evidence showed as follows. On December 3, 1997, Kathleen Tilley was walking across a parking lot on her way to work when a van pulled alongside her. Tilley described the van as having a brown hood. A passenger in the van reached his arm out of the window and grabbed Tilley’s purse. Tilley fell to her knees and was dragged along by the vehicle before letting go of the purse. Among the items in her purse were a wallet, umbrella, checkbook, insurance card, driver’s license, social security card, and a $100 bill. Police officers arrived on the scene within a few minutes, and Tilley provided a description of the vehicle. The police put out an alert for the vehicle, and a van matching the description was seen speeding nearby a few minutes later. Officer Ronald Rhodes chased the vehicle in a marked police car, with lights and siren activated, but the van attempted to flee, running through at least three red lights. After other officers joined the chase, Officer Rhodes discontinued his pursuit.

Sergeant Kelly Clair and Deputies Robert Whitlock, R. H. Hitchcock, and Reginald McCain continued chasing the van. On several occasions, the driver of the van attempted to ram Clair’s vehicle, at a speed of 80-85 mph, when Clair tried to pass. At one point, the passenger threw what appeared to be a purse out of the passenger side window. The purse hit Hitchcock’s car and appeared to “explode,” with items flying out. Deputy McCain stopped to retrieve these items. He discovered Tilley’s driver’s license, umbrella, and checkbook, as well as several receipts with Tilley’s name on them. He was not able to find Tilley’s purse or wallet on the busy highway. The purse was apparently found a day or two later inside a mailbox.

Clair, Whitlock, and Hitchcock continued with the chase. At some point, Clair saw the van lurch forward, with black smoke escaping from it. The van then coasted to a stop in a church parking lot. The passenger, subsequently identified as Burks, got out of the van and immediately surrendered. The driver, subsequently identified as Alls, was subdued after a short struggle with Clair. At trial, Tilley was shown photographs of Alls’ van and stated that it looked like the one involved in the robbery.

The evidence was clearly sufficient to authorize the jury to find Alls and Burks guilty beyond a reasonable doubt of robbery. Although defendants argue that it is possible they could have simply found Tilley’s purse after it had been discarded by the actual robbers, they presented no evidence at trial in support of this speculative hypothesis, and the jury was clearly authorized to reject such hypothesis as unreasonable in light of the evidence presented. See Williams v. State, 204 Ga. App. 43, 44 (418 SE2d 387) (1992) (whether evidence excludes every reasonable hypothesis but guilt is for jury). With respect to the passenger, Burks, the evidence showed that it was the passenger who actually grabbed the purse from Tilley and later threw it from the van’s window. With respect to Alls, the evidence showed that he facilitated the crime by driving the van so as to allow Burks to grab the purse. Thus, the evidence was “more than sufficient to show appellant [s’] active participation in the [robbery] and to thereby allow a rational trier of fact to find appellant [s] guilty of [robbery] beyond a reasonable doubt.” Carter v. State, 224 Ga. App. 217 (1) (480 SE2d 266) (1997). See also Hefner v. State, 224 Ga. App. 612, 613 (1) (481 SE2d 599) (1997); OCGA § 16-8-40 (a).

Decided July 29, 1999.

Patricia F. Angelí, for appellant (case no. A99A0818).

George C. Creal, Jr., for appellant (case no. A99A0856).

Robert E. Keller, District Attorney, Nancy T. Bircher, Assistant District Attorney, for appellee.

2. Alls contends that the trial court erred in admitting photographs of the van, asserting that no proper foundation was laid for their admission. However, pretermitting whether the photographs were properly authenticated, it is highly probable that their admission did not affect the outcome of the trial. Tilley’s testimony that the van in the photographs “looks like the van that pulled beside me” added little to her previous description of the vehicle as a van with a brown hood. The more salient facts are (1) that the defendants were seen shortly after the robbery driving a van that matched Tilley’s description, (2) that the defendants tried to flee by leading the police on a high-speed chase, and (3) most importantly, that the defendants were seen by the police to throw Tilley’s purse out of the van as they were fleeing. Given the overwhelming evidence of the defendants’ guilt and the fact that the photographs added little to the overall weight of the evidence, it is highly unlikely that the outcome would have been different had the photographs not been admitted. See Jenkins v. State, 270 Ga. 607, 609 (3) (512 SE2d 269) (1999); Royal v. State, 217 Ga. App. 459, 460 (2) (458 SE2d 366) (1995).

Judgment affirmed.

McMurray, P. J., and Andrews, P. J., concur.


author: Eldridge, Judge.

text:
    A99A0858, A99A0937.
    GRAHAM v. THE STATE (two cases).
    (521 SE2d 249)
   Eldridge, Judge.

Appellants Ellen Diane Graham and Steven Alton Graham each challenge their convictions on three counts of aggravated child molestation and nine counts of child molestation, which convictions followed a January 1998 jury trial. We affirm.

“On appeal [,] the evidence must be viewed in a light most favorable to the verdict, and appellant no longer enjoys a presumption of innocence; moreover, on appeal this court determines evidence sufficiency, and does not weigh the evidence or determine witness credibility. [Cits.]” Grant v. State, 195 Ga. App. 463, 464 (393 SE2d 737) (1990); see also Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Kapua v. State, 228 Ga. App. 193, 195 (491 SE2d 387) (1997). Viewed in such light, the evidence showed that, on a single, undetermined date in February 1997, both appellants participated in a series of sexual acts in front of and including their seven-year-old son and nine-year-old daughter.* 2 Both children and both appellants testified at the trial, in addition to other witnesses. Statements that each of the four family members gave to police on May 5 and 6, 1997, were also admitted at trial; the investigating police officer also testified regarding the statements. The jury convicted both appellants of all 12 counts. The trial court denied both appellants’ motions for new trial. Because the appellants’ convictions arose out of the same trial, we have consolidated their appeals for the purposes of this opinion.

Case No. A99A0858

1. In her first enumeration of error, appellant Ellen Diane Graham contends that the trial court erred in refusing to allow evidence of violent acts and threats by co-defendant Steven Graham, her ex-husband, toward her and the children prior to the date of the child molestation. At trial, when Ms. Graham notified the trial court of her intention to present a defense based on prior domestic violence, the trial court expressly limited Ms. Graham to presenting evidence of “time relevant” acts, i.e., those which occurred on the day of the molestation. At trial, Ms. Graham did not deny that the molesting acts actually occurred, but asserted that her acts against the children were “justified” because she previously had been beaten and threatened by Mr. Graham. On appeal, she claims that she should have been allowed to assert a justification defense at trial in the form of a battered person defense, and that the trial court’s refusal to allow this defense was reversible error. We disagree.

(a) Under OCGA § 16-3-20, a defendant is entitled to raise a justification defense for, inter alia, acts of self-defense, defense of property, entrapment, coercion, and in “all other instances which stand upon the same footing of reason and justice as those enumerated in this article.” OCGA § 16-3-20 (6). See also OCGA §§ 16-3-21; 16-3-23; 16-3-24; 16-3-25; 16-3-26. “In this state, the battered person syndrome is not a separate defense and [evidence supporting this syndrome] is admissible only to assist the jury in evaluating a defendant’s claim of self-defense” under OCGA § 16-3-21. (Citations omitted.) Chester v. State, 267 Ga. 9, 10 (471 SE2d 836) (1996), overruled on other grounds, Smith v. State, 268 Ga. 196, 200, n. 5 (486 SE2d 819) (1997). See also Selman v. State, 267 Ga. 198 (475 SE2d 892) (1996); Chapman v. State, 259 Ga. 706, 707 (4) (386 SE2d 129) (1989), overruled on other grounds, Smith v. State, supra, 268 Ga. at 100, n. 5; Smith v. State, 247 Ga. 612, 619 (277 SE2d 678) (1981); Pugh v. State, 191 Ga. App. 394 (382 SE2d 143) (1989).

However, self-defense is not an issue in this trial, where the criminal acts were directed toward non-aggressor victims. Accordingly, the battered person defense was not available to Ms. Graham, and the trial court did not err in excluding evidence thereof. See Freeman v. State, 269 Ga. 337, 339 (1) (d) (496 SE2d 716) (1998).

(b) This Court also finds that the trial court appropriately allowed Ms. Graham to fully pursue a justification defense on the basis of coercion. Under OCGA § 16-3-26, a justification defense of coercion is available to show that a criminal act “is performed under such coercion that the person reasonably believes that performing the act is the only way to prevent his imminent death or great bodily injury.” (Citations and punctuation omitted; emphasis in original.) Holder v. State, 194 Ga. App. 790, 794 (4) (391 SE2d 808) (1990). However, in order to assert a statutory affirmative defense, such as coercion, the defendant must admit all of the elements of the crime except intent; evidence of coercion is then presented to “justify, excuse, or mitigate [the crime] by showing no criminal intent.” Hightower v. State, 224 Ga. App. 703, 705 (481 SE2d 867) (1997). “After evidence of [coercion] is presented, the State bears the burden of disproving that defense beyond a reasonable doubt. [Cits.]” Manning v. State, 231 Ga. App. 584, 585 (3) (499 SE2d 650) (1998).

In order for duress or fear produced by threats or menaces [ ] to be a valid legal excuse for doing anything which would otherwise be criminal, the act must have been done under such threats or menaces as show that life or member was in danger. . . . The danger must not be one of future violence but of present and immediate violence at the time of the commission of the forbidden act.

As to this defense, the trial court gave Ms. Graham substantial leeway in presenting extensive and graphic testimony that, on the day of the molestation, Mr. Graham threatened to kill her; brandished a handgun; pulled her hair; slapped her; and threatened to kill the children in her presence if she did not perform the molestation as he instructed. The children testified that Mr. Graham “made” their mother perform these acts; that Ms. Graham repeatedly told Mr. Graham that she did not want to perform the acts; that Mr. Graham hit and threatened Ms. Graham before and during the acts; and that Mr. Graham threatened to beat them with belts in Ms. Graham’s presence if they did not do as they were told. Further, the trial court frequently allowed the witnesses to explain answers by referring directly or indirectly to relevant previous and subsequent threats or violent acts by Mr. Graham.

However, the State countered this evidence with Ms. Graham’s May 1997 statement to police, in which she recounted all of the molesting acts in detail and said that she was “tripped” out about what was happening. Although Ms. Graham alluded to threatening acts by Mr. Graham on that day, she also admitted that she left the bedroom at least one time to make lemonade and smoke a cigarette. Following the incident, she instructed the children not to tell anyone about the molestation, although she told her daughter that she was “proud” when the girl finally told the school counselor. It is undisputed that Ms. Graham never contacted authorities about the molestation or her claims of Mr. Graham’s abuse of her or the children.

Following the presentation of evidence, the trial court gave a jury instruction on the coercion defense. Clearly, in convicting Ms. Graham of all 12 criminal charges, the jury determined that Ms. Graham’s actions were not justified on the basis of coercion. This determination as to an affirmative defense is solely within the purview of the jury and will not be disturbed by this Court, as it is supported by sufficient evidence. See OCGA §§ 16-3-28; 24-9-80; Manning v. State, supra at 585 (3); Hightower v. State, supra at 705; Luke v. State, 222 Ga. App. 203, 206 (2) (474 SE2d 49) (1996); Pardue v. State, 214 Ga. App. 690 (448 SE2d 768) (1994).

2. Ms. Graham also contends on appeal that the trial court erred by failing to give her requested charge on justification under OCGA § 16-3-20. However, the trial court gave a comprehensive charge on coercion, which was the relevant portion of the justification defense. Accordingly, this enumeration lacks merit. See Chapman v. State, 258 Ga. 214, 216 (3) (b) (367 SE2d 541) (1988).

3. In her third enumeration, Ms. Graham asserts that the trial court abused its discretion when it refused to sever the trial. “[T]he severance of [the] defendants’ trials is within the sound discretion of the trial court and its decision will not be disturbed unless there is an abuse of that discretion. OCGA § 17-8-4.” Dixon v. State, 268 Ga. 81, 83 (2) (485 SE2d 480) (1997).

A defendant desiring severance has the burden of demonstrating more than the possibility that a separate trial would provide him a better chance of acquittal. He must make a clear showing of prejudice and a consequent denial of due process in the absence of severance. [Cit.]

Berry v. State, 267 Ga. 605, 611 (481 SE2d 203) (1997). See also Dixon v. State, supra at 83.

In this case, Ms. Graham claims that her case was prejudiced when Mr. Graham’s attorney repeatedly objected to her attorney’s attempts to introduce evidence of prior episodes of spousal abuse in an effort to prove that Ms. Graham suffered from battered person syndrome. However, as established in Division 1, supra, such evidence was inadmissible in this case and already had been expressly excluded by the trial court. Regardless of whether the trial was severed, Ms. Graham would not have been allowed to introduce such evidence, so that she cannot demonstrate prejudice by the fact that the evidence also was excluded pursuant to Mr. Graham’s objections.

Further, to the extent that she claims prejudice as a result of Mr. Graham’s numerous objections to this evidence, such objections were induced by her unrelenting attempts to interject inadmissible evidence. It is axiomatic that a “party will not be heard to complain of error induced by [her] own conduct.” (Citations and punctuation omitted.) Littlefield v. State, 197 Ga. App. 343, 344 (398 SE2d 375) (1990). See also State v. Barnes, 222 Ga. App. 875 (476 SE2d 646) (1996); Wells v. State, 212 Ga. App. 60 (441 SE2d 460) (1994).

Finally, this trial involved testimony of two very young victims, who testified in explicit detail about the sexual abuse to which they were subjected by their parents. The defendants were jointly indicted, and all of the offenses involved cohesive and concurrent efforts by both parents, who were acting as either principal or party to the crimes. Both defendants testified and were subject to thorough and sifting cross-examination. The evidence was generally consistent and specific as to each defendant. With the exception of the issue of coercion, the evidence was inculpatory of both defendants. In denying the motion to sever, the trial court expressly noted that, in its opinion, the jury would be able to “sort out what part each defendant played in the case” and determine whether Ms. Graham was coerced into molesting her children. Under the circumstances of this case, the trial court did not abuse its discretion in refusing to sever the trials.

4. Ms. Graham contends that the trial court erred in refusing to grant her motions for mistrial. “A trial court has broad discretion in ruling on a motion for mistrial, and this court will not disturb the court’s ruling absent a manifest abuse of discretion which requires a mistrial to preserve the defendant’s right to a fair trial.” (Citations and punctuation omitted.) Holder v. State, supra at 793 (2).

Ms. Graham’s motions followed the trial court’s exclusion of testimony regarding prior incidents of spousal abuse. Pursuant to our decision in Division 1, supra, the trial court did not abuse its discretion in refusing to grant a motion for mistrial.

5. Further, the trial court did not abuse its discretion in denying Ms. Graham’s motion for a new trial, which motion set out generally the issues in this appeal.

6. Although this Court affirms Ms. Graham’s convictions, we are compelled to remand this case to the trial court for re-sentencing. The trial court erred as a matter of law in merging Ms. Graham’s three aggravated child molestation convictions into her child molestation convictions during sentencing, thereby violating the statutory minimum sentencing requirements under OCGA § 17-10-6.1 (b).

Evidence was presented at trial that was sufficient to convict Ms. Graham of each count. Each charge was specific and distinct, and evidence of one act was not required to prove the others. See OCGA § 16-1-6 (1). Therefore, once Ms. Graham was convicted on all 12 counts, the trial court was authorized to sentence her as to each charge. Howard v. State, 200 Ga. App. 188, 191 (5) (407 SE2d 769) (1991) (holding that “when, as here, the indictment for each offense is based on separate and distinct acts, the offenses do not merge. [Cit.]”); see also Vest v. State, 211 Ga. App. 882, 883-884 (2) (440 SE2d 765) (1994); Baker v. State, 211 Ga. App. 515 (1) (439 SE2d 668) (1993); King v. State, 209 Ga. App. 529, 532 (4) (433 SE2d 722) (1993); Bryant v. State, 204 Ga. App. 856, 857 (2) (420 SE2d 801) (1992) .

However, during sentencing, the trial court merged some of the counts after finding that all of the acts occurred on a single day and constituted a “single course of action.” As a result, the trial court sentenced Ms. Graham on only two counts of child molestation (twenty years each, five to serve), effectively merging the remaining convictions, including three counts of aggravated child molestation. Such merger was error, as aggravated child molestation cannot be merged into child molestation as a matter of law, since it is a greater, not lesser, offense involving additional elements. See OCGA §§ 16-1-6 (1); 16-6-4 (b), (d) (1).

The trial court’s erroneous merger circumvented the mandatory minimum sentence of ten years imprisonment for aggravated child molestation under OCGA § 16-6-4 (d) (l). See also OCGA §§ 17-10-1 (a) (1); 17-10-6.1. Accordingly, we must remand Ms. Graham’s case for re-sentencing as to her convictions for aggravated child molestation.

Case No. A99A0937

7. In his first enumeration, Mr. Graham challenges the sufficiency of evidence. After reviewing the entire record, this Court finds that the evidence was more than sufficient for a rational person to find Mr. Graham guilty beyond a reasonable doubt of each of the crimes charged. Jackson v. Virginia, supra; Kapua v. State, supra.

8. Mr. Graham complains that his sentence was “disproportionate as a matter of fact and as a matter of law” as compared to Ms. Graham’s sentence. The trial court sentenced Mr. Graham to consecutive terms of thirty years imprisonment for each of two counts of aggravated child molestation (one per child) and twenty years imprisonment for two counts of child molestation (one per child); twenty years of the sentence was probated. However, as noted above, the trial court erroneously sentenced Ms. Graham on only two counts of child molestation (twenty years each, five to serve).

In his argument on appeal, Mr. Graham admits that the trial court erred in merging Ms. Graham’s aggravated child molestation counts into those for child molestation. See Division 6, Case No. A99A0858, supra. Accordingly, his complaint is not that his sentence was too severe per se, or that it was otherwise outside the statutory guidelines, but that Ms. Graham’s sentence was too lenient, so that he was punished disproportionately.

Decided July 29, 1999

Ronald G. Shedd, for appellant (case no. A99A0858).

William R. Thompson, Jr., for appellant (case no. A99A0937).

T. Joseph Campbell, District Attorney, Sharon M. Fox, Assistant District Attorney, for appellee.

This issue will be partially resolved upon remand of Ms. Graham’s case for re-sentencing on the aggravated child molestation convictions. Assuming that Ms. Graham is sentenced according to the statutory requirements, any remaining inequality between the sentences can be explained by the trial court’s finding that the evidence demonstrated substantially greater culpability on the part of Mr. Graham. See generally McClesky v. State, 245 Ga. 108, 115 (263 SE2d 146) (1980). The trial court noted that Mr. Graham was the principal actor in the acts which were the basis for the aggravated child molestation counts. Further, there was substantial evidence that the acts were initiated, directed, and controlled by Mr. Graham. The trial court had the discretion to sentence Mr. Graham within the statutory guidelines. There was no abuse of discretion.

Judgment affirmed in Case No. A99A0937. Judgment of conviction affirmed, sentence vacated and remanded in Case No. A99A0858.

Pope, P. J., and Smith, J., concur.

       “A person commits the offense of aggravated child molestation when such person commits an offense of child molestation which act physically injures the child or involves an act of sodomy.” OCGA § 16-6-4 (c).

       “A person commits the offense of child molestation when he or she does any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.” OCGA § 16-6-4(a).

       After reviewing the entire record of both cases, this Court has determined that a full recitation of the sexually explicit facts would add nothing to the determination of the issues on appeal.

       Although Ms. Graham also alleged that she should have been allowed to present evidence of post-traumatic stress disorder, the transcript reveals that she was, in fact, allowed to present expert testimony regarding this syndrome. Further, such allegation is deemed abandoned by her failure to cite to any legal authority or argument. See Court of Appeals Rule 27 (c) (2).

       Under OCGA § 16-6-4 (d) (1), a
      person convicted of the offense of aggravated child molestation shall be punished by-imprisonment for not less than ten nor more than 30 years. Any person convicted under this Code section of the offense of aggravated child molestation shall, in addition, be subject to the sentencing and punishment provisions of Code Sections 17-10-6.1 and 17-10-7.

       OCGA § 17-10-6.1 (b) provides that, upon conviction of a serious violent felony as defined in OCGA § 17-10-6.1 (a) (2)-(7), a defendant
      shall be sentenced to a mandatory minimum term of imprisonment of ten years and no portion of the mandatory minimum sentence imposed shall be suspended, stayed, probated, deferred, or withheld by the sentencing court and shall not be reduced by any form of pardon, parole, or commutation of sentence by the State Board of Pardons and Paroles.

       There is no dispute that Mr. Graham’s sentence falls within the statutory guidelines for his convictions. See OCGA §§ 16-6-4 (b), (d) (1); 17-10-6.1. Further, the trial court informed both defendants of their right to appeal their sentences to the Superior Court Sentence Review Panel, and Mr. Graham filed such appeal.


author: McMurray, Presiding Judge.

text:
    A99A0866.
    HOLLAND v. THE STATE.
    (521 SE2d 255)
   McMurray, Presiding Judge.

Defendant Holland was tried at a bench trial and convicted of family violence battery in violation of OCGA § 16-5-23.1 (f). The evidence which authorized this conviction reveals that defendant beat his female friend with whom he was residing, during a violent roadside argument. This appeal followed the denial of defendant’s motion for new trial. Held:

1. Defendant admitted that he and the victim “had a heated verbal argument, which by poor decision proceeded outside of [their] residence into the public.” But defendant denied striking the victim during the dispute. The victim corroborated this testimony, explaining that she provoked defendant’s violence and that defendant did not strike her. Two eyewitnesses refuted these explanations, testifying that they observed defendant standing over the victim and striking her with his fists. Another eyewitness testified that she observed defendant “all over” the victim.

Defendant challenges the sufficiency of the evidence, arguing that the uncorroborated eyewitness’ testimony is insufficient to overcome the victim’s testimony that defendant did not strike her during the argument. This assertion is without merit. The weight of evidence and the credibility of witnesses are matters for the factfinder, not for an appellate court. This Court is concerned only with the sufficiency of the evidence. OCGA § 24-9-80; Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737). The eyewitnesses’ testimony in the case sub judice, along with the arresting officer’s testimony that the victim had “a bleeding lower lip and . . . some finger marks on her neck” when the officer arrived at the scene, is sufficient to authorize the trial court’s finding that defendant is guilty, beyond a reasonable doubt, of family violence battery in violation of OCGA § 16-5-23.1 (f). Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

2. Citing Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215), defendant contends the trial court erred in denying his request during trial for the State to produce an exculpatory photograph of the victim which was taken shortly after the incident in question. We do not agree.

Where a prosecutor allegedly suppresses favorable evidence, the defense must show (among other things) that had the evidence been disclosed, a reasonable probability exists that the outcome of the proceedings would have been different. Zant v. Moon, 264 Ga. 93, 99-100 (3) (440 SE2d 657). The photograph in question in the case sub judice depicts a side view of the victim’s head (a profile of her neck and face) and corroborates the arresting officer’s testimony regarding scratches on the victim’s neck. The photograph does not depict a clear view of the victim’s face and does not support defendant’s assertion that he did not strike the victim. Under such circumstances, we cannot say a reasonable probability exists that disclosure of the photograph would have changed the outcome of the proceedings. See Wal-lin v. State, 248 Ga. 29, 32-34 (279 SE2d 687).

Decided July 29, 1999.

John A. Beall TV, for appellant.

Keith C. Martin, Solicitor, Aaron B. Mason, Assistant Solicitor, for appellee.

The trial court did not err in denying defendant’s motion for new trial.

Judgment affirmed.

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

       Although defendant did not assert a challenge under Brady v. Maryland, 373 U. S. 83, supra, at trial and did not file any demands for discovery before trial, we address this assertion because defendant appeared pro se at trial, complained about the photograph’s relevance and asked the trial court, “Is it possible we can get that photo here momentarily?”


text:
    A99A0870.
    KENYADA v. THE STATE.
    (521 SE2d 408)
   Ruffin, Judge.

A jury convicted Kareem Kenyada of two counts of criminal attempt to commit armed robbery, four counts of aggravated assault, one count of obstruction of an officer, and one count of possession of a firearm during the commission of a crime. Following the denial of his motion for new trial, Kenyada appeals. For reasons which follow, we affirm.

On appeal, the evidence must be viewed in a light most favorable to the verdict, and Kenyada no longer enjoys the presumption of innocence. Pollard v. State, 230 Ga. App. 159 (495 SE2d 629) (1998). The evidence, when viewed in that manner, established that at about 10:45 p.m., A. J. Ross and Calvin Owens exited a Target store on Cov-ington Highway. Just as they were entering Ross’ vehicle, Kenyada suddenly approached and fired a single shot which struck the car. Kenyada ordered the victims “to get out [of] the f — ing car,” then fired another shot which grazed Owens’ ear. Disregarding the command, Ross drove off. Although badly shocked, Owens fled to a nearby store and sought help from Officer J. R Craft. Officer Craft then broadcast a description of the perpetrator and joined in a search.

Minutes later, Kenyada attempted to steal another car from the parking lot of a nearby night club on Covington Highway. As James Curry and Mitzi Green were seated in Curry’s vehicle with the engine running, Kenyada tapped on the right front side window, pointed his chrome .380 handgun at Green and demanded that they get out. Green started to comply, but Curry instructed her to remain seated. When Curry attempted to drive away, Kenyada fired into the vehicle, narrowly missing Green’s head as she ducked, but shattering Curry’s kneecap. Green testified, “[b]y the grace of God the bullet did not hit me in my head.” Curry dialed 911 on his cellular phone and awaited emergency assistance at a nearby service station. The description provided by these victims corresponded with the earlier description given by the victims of the incident at Target.

Off-duty Detective D. L. Smith heard the gunshots at the Target store and, based on the broadcast lookout, began searching for the perpetrator. After observing a man who matched the description walking in the area, Detective Smith alerted uniformed officers. When Officers Craft and Mark Johnson spotted Kenyada, they asked him to stop and remove his hands from his pockets. Instead, Kenyada darted across Covington Highway, and the officers gave chase. Ken-yada was finally tackled but resisted arrest and attempted to pull something from his pocket. During the struggle, Detective Smith managed to retrieve a .380 automatic pistol from Kenyada’s pocket. In Kenyada’s wallet, police found a pawn shop receipt in Kenyada’s name for $99.95 for the purchase of this pistol.

A Georgia Bureau of Investigation firearms expert from the State Crime Lab examined the bullet surgically removed from Curry’s leg and the two .380 shell casings found in the Target parking lot. By test firing Kenyada’s weapon, the expert determined that the bullet and casings had been fired from the Davis .380 pistol taken from Kenyada. Curry, who had been shot in the kneecap, and Officers Craft and Johnson identified Kenyada at trial. Green recognized the .380 pistol as the one that had been pointed and fired at her. Two other victims testified that the .380 pistol found in Ken-yada’s pocket appeared to be the gun used against them.

In his sole enumeration or error, Kenyada challenges the sufficiency of the evidence under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Kenyada contends that the inability of three of the four victims to successfully identify him as the perpetrator precluded a verdict of guilty.

As long as there is some competent evidence, even though controverted, to support each fact essential to the State’s case, a jury’s verdict will be upheld. Taylor v. State, 235 Ga. App. 323, 324 (1) (509 SE2d 388) (1998). Here, the evidence established that Kenyada fired shots at four victims in two separate attempted carjacking incidents occurring within minutes of each other. One victim escaped on foot and the others in their vehicles. Lewis v. State, 215 Ga. App. 161, 163 (2) (450 SE2d 448) (1994) (flight by terrified victim can satisfy element of reasonable apprehension of immediately receiving violent injury); Cavender v. State, 208 Ga. App. 61, 62 (1) (429 SE2d 711) (1993) (firing single shot at two persons in vehicle authorized conviction for aggravated assault as to both individuals). An expert firearms examiner linked Kenyada to both incidents, determining that the shell casings found at the scene of the first crime as well as the bullet removed from the leg of the victim of the second incident had been fired from the .380 pistol owned by Kenyada. Williams v. State, 213 Ga. App. 119, 120-121 (1), (2) (443 SE2d 534) (1994). Shortly after the commission of these crimes, after disobeying the commands of uniformed officers and attempting to flee, Kenyada was arrested in possession of the firearm used in the attempted car thefts and the aggravated assaults. Gill v. State, 229 Ga. App. 462, 463-464 (2) (494 SE2d 259) (1997) (defendant’s flight may be some evidence of guilt); seeLeckie v. State, 231 Ga. App. 760, 761 (500 SE2d 627) (1998). This evidence was sufficient within the meaning of Jackson v. Virginia, supra, to sustain Kenyada’s convictions for attempted armed robbery, aggravated assault, obstruction, and possession of a firearm during the commission of a crime. Hash v. State, 226 Ga. App. 643 (487 SE2d 452) (1997); Thomas v. State, 172 Ga. App. 70 (321 SE2d 808) (1984). Accordingly, we affirm the judgment of conviction.

Decided July 29, 1999.

Jennifer A. Jones, for appellant.

J. Tom Morgan, District Attorney, Robert M. Coker, Priscilla E. N. Carroll, Assistant District Attorneys, for appellee.

Judgment affirmed.

McMurray, P. J., and Andrews, P. J., concur.


text:
    A99A0882, A99A0991.
    HEALTH HORIZONS, INC. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY; and vice versa.
    (521 SE2d 383)
   Eldridge, Judge.

On August 8, 1997, Health Horizons, Inc. (“Health Horizons”) filed a complaint for fraud against State Farm Mutual Automobile Insurance Company (“State Farm”) in the DeKalb Superior Court. In paragraph 3, Health Horizons mistakenly alleged that it “is a Georgia corporation.” In its answer and defensive pleadings, State Farm did not raise any issue of the standing of Health Horizons to sue in Georgia, although it was a foreign corporation that transacted business in Georgia without a certificate of authority. After discovery and various discovery motions, it was revealed that Health Horizons did not have a certificate of authority; promptly, on May 26, 1998, a certificate of authority was obtained, and on June 10, 1998, the complaint was amended to reflect that Health Horizons was a foreign corporation transacting business in Georgia under a certificate of authority. On June 15, 1998, State Farm amended its answer to raise for the first time that Health Horizons lacked the capacity to sue because it was a foreign corporation transacting business in Georgia since January 1, 1995, had first obtained a certificate of authority on May 26, 1998, but had filed this suit on August 8, 1997. Subsequently, on July 20, 1998, State Farm filed its motion to dismiss for failure to have a certificate of authority at the time of filing the complaint.

Health Horizons is engaged in the practice of corporate medicine which State Farm contends is the unauthorized practice of corporate medicine. Health Horizons is a foreign for-profit business corporation that “furnishes health care services” for which it seeks to collect from State Farm. Health Horizons contends that it is not engaged in the practice of medicine but receives payment of fees arising from the practice of medicine by Ken G. Knott, M.D. State Farm contends that OCGA §§ 43-34-26 (a) and 43-34-43 and the rules of the Composite State Board of Medical Examiners prohibit the practice of medicine by a for-profit business corporation. On July 20, 1998, State Farm’s motion on such grounds was denied.

Hearing on the motion was held on November 2, 1998, and the trial court granted the motion and dismissed without prejudice. Health Horizons filed its notice of appeal. On December 3, 1998, State Farm filed its notice of cross-appeal.

Case No. A99A0882

The sole enumeration of error is that the trial court erred in granting the motion to dismiss for failure to have a certificate of authority at the time the complaint was filed. We agree.

OCGA § 14-2-1502 (a) provides: “[a] foreign corporation transacting business in this state without a certificate of authority may not maintain a proceeding in any court in this state until it obtains a certificate of authority.”

OCGA § 14-2-1501 (a) provides: “[a] foreign corporation may not transact business in this state until it obtains a certificate of authority from the Secretary of State.” “[T]he purpose of [OCGA § 14-2-1501 (a)] is to require registration of foreign corporations which intend to conduct business in Georgia on a continuous basis, not as a temporary matter.” Reisman v. Martori, Meyer, Hendricks &c., 155 Ga. App. 551, 552 (1) (271 SE2d 685) (1980). A foreign corporation that obtains a certificate of authority is subject to service under OCGA § 14-2-1510. See Spiegel, Inc. v. Odum, 153 Ga. App. 380, 381-382 (265 SE2d 297) (1980). Registration of a foreign corporation makes it easier for the State Revenue Commissioner to collect taxes from it. OCGA §§ 48-5-511; 48-5-513; 48-7-21 (a); 48-13-75; Northwestern States Portland Cement Co. v. Minnesota, 358 U. S. 450 (79 SC 357, 3 LE2d 421) (1959); Roberts v. Lipson, 231 Ga., 142 (200 SE2d 722) (1973); Owens-Illinois Glass Co. v. Oxford, 216 Ga. 316, 322-324 (116 SE2d 293) (1960); Montag Bros., Inc. v. State Revenue Comm., 50 Ga. App. 660, 663-665 (1) (179 SE 563) (1935), aff’d, 182 Ga. 568 (186 SE 558) (1936). These are the underlying reasons for such statutory scheme.

Under a similar statutory scheme, the Georgia Nonresident Contractors Act (“NCA”), the nonresident contractor must register with the State Revenue Commissioner and post a bond for tax liabilities incurred for income earned in the state from the contract and any other taxes due. See OCGA § 48-13-31. A certificate of authority from the Secretary of State does not exempt a nonresident contractor from registration with the State Revenue Commissioner. See George C. Carroll Constr. Co. v. Langford Constr. Co., 182 Ga. App. 258, 259-261 (355 SE2d 756) (1987), rev’d on other grounds, Clover Cable of Ohio v. Heywood, 260 Ga. 341, 344 (3) (392 SE2d 855) (1990). OCGA § 48-13-37, like OCGA § 14-2-1502 (a), provides that: “[n]o contractor who fails to register with the commissioner as required by this article or who fails to comply with any provision of this article shall be entitled to maintain an action to recover payment for performance on the contract in the courts of this state.” “The purpose of the NCA is revenue collection enhancement or, in other words, protection of the State and its political subdivisions from nonresident contractors who leave the State without paying their taxes and unemployment contributions. [Cit.]” Dept. of Transp. v. Moseman Constr. Co., 260 Ga. 369 (393 SE2d 258) (1990). “The statutory scheme contemplates the possibility of cure by allowing late registration and bonding. Additionally, OCGA § 1-3-1 (c) provides that substantial compliance with any statutory requirement shall be deemed and held sufficient.” (Punctuation omitted.) Id. at 370. In Dept. of Transp. v. Moseman Constr. Co., the contractor transacted business in Georgia without first registering and posting bond with the Revenue Commissioner; when the contractor sued DOT, DOT moved to dismiss under OCGA § 48-13-31. The contractor’s performance bond provided for payment of all taxes and the contractor ultimately complied with the NCA prior to the contract completion. The Supreme Court affirmed the trial court’s denial of the motion to dismiss, holding:

[t]he purpose of the NCA is fulfilled where the nonresident contractor has registered its contract with the Revenue Commissioner and has posted the necessary bond to cover its possible liability to the State. . . . Because Moseman has now met the requirements of the NCA and has its liability to the State covered by the necessary bond, we hold that Mose-man has substantially complied with the NCA, and, thus, the trial court did not err in denying the DOT’s motion to dismiss.

Id. at 370-371.

Thus, under OCGA § 1-3-1 (c), and construing OCGA §§ 14-2-1502 and 48-13-37 in pari materia as a similar body of law intended by the General Assembly by statutes to cure similar problems by coercing foreign corporations to register so that they would be subject to service and to revenue collection, late registration to obtain a certificate of authority fully satisfies the statutory scheme and will not bar suit by a foreign corporation, because there has been substantial compliance with the statutory scheme. OCGA § 1-3-1 (a); McPherson v. City of Dawson, 221 Ga. 861, 862 (148 SE2d 298) (1966); Ryan v. Commrs. of Chatham County, 203 Ga. 730, 731-732 (48 SE2d 86) (1948); Wigley v. Hambrick, 193 Ga. App. 903, 905 (4) (389 SE2d 763) (1989); Allison v. Domain, 158 Ga. App. 542, 544 (281 SE2d 299) (1981); Royal Indem. Co. v. Agnew, 66 Ga. App. 377, 378 (18 SE2d 57) (1941). Where a statute directs that a thing be done in a certain time without negative words prohibiting the subsequent performance, generally, the provision of time is directory only; where no injury results from such delay, subsequent performance is deemed substantial compliance with the statutory requirements. O’Neal v. Spencer, 203 Ga. 588 (2) (47 SE2d 646) (1948); State of Ga. v. Battise, 177 Ga. App. 583, 584 (340 SE2d 240) (1986). Further, in Ga. L. 1988, pp. 1070, 1225-1226, § 1, the General Assembly changed the language of former OCGA § 14-2-1421 (b) of the 1969 Georgia Corporate Code that provided “unless before commencement of the action a certificate of authority shall have been obtained by such corporation,” no action can be brought at all. Ga. L. 1969, pp. 152, 197, § 76; A.B.R. Metals &c. v. Roach-Russell, Inc., 135 Ga. App. 193 (217 SE2d 447) (1975), rev’d on other grounds, Nat. Heritage Corp. v. Mount Olive Mem. Gardens, 244 Ga. 240, 242 (260 SE2d 1) (1979).

The 1968 Georgia Business Corporation Code had provided prior to the 1969 amendment that: “[n]o foreign corporation . . . shall be permitted to maintain any action, suit or proceeding in any court of this State unless either before or after commencement of the action it shall have obtained such a certificate.” (Emphasis supplied.) Ga. L. 1968, pp. 565, 790. “This section is based upon Model Act Section 117, with minor changes. It covers approximately the same ground once covered by Ga. Code Ann., former [Ga. Code Ann.] § 22-1506, but differs from the latter in two important respects: (1) Under subsection (b) of the new section, no foreign corporation transacting business in this State without a certificate of authority is entitled to maintain suit in the Georgia courts on any cause of action arising out of its business in Georgia. Once it obtains a certificate, however, a suit previously filed by it may be continued without refiling.” Comment, 22 Code of Ga. Ann., p. 190, § 22-1421 (1968). Prior to 1968, there was no forum preclusion at all. Only with Ga. L. 1969, pp. 152, 196, § 76, did dismissal, despite late compliance, become part of the Georgia Business Corporate Code. However, under Ga. L. 1988, pp. 1070, 1225-1226, § 1, the statutory scheme returned to the pre-1969 statutory approach: prohibiting “maintaining a proceeding in any court in this state until it obtains a certificate of authority.” See OCGA § 14-2-1502 (a). Such is a return to the pre-1969 law.

A “revising statute is in effect a legislative declaration that whatever is embraced in the new statute shall prevail, and whatever is excluded therefrom shall be discarded.” (Citation and punctuation omitted.) Thompson v. Ga. Power Co., 73 Ga. App. 587, 596 (37 SE2d 622) (1946); accord George C. Carroll Constr. Co. v. Langford Constr. Co., supra at 261. Any reason for dismissal for continuing noncompliance ceased to exist at the moment of issue of the certificate of authority, and Health Horizons has substantially complied with the statutory scheme. Thus, the statutory purpose was satisfied by compelling the certificate of authority. Therefore, there no longer exists a legislative purpose in denial of the right to maintain an action, as late substantial compliance is recognized. See OCGA §§ 1-3-1 (c); 14-2-1501 (a); 14-2-1502 (a).

In Tillett Bros. Constr. Co. v. Dept. of Transp., 210 Ga. App. 84, 86 (2) (435 SE2d 241) (1993), this Court applied the doctrine of substantial compliance, although the opinion did not use such terminology or cite OCGA § 1-3-1 (c), but reached the same results. A foreign corporation had a certificate of authority at the time of suit and at the time business was transacted in Georgia, but it had ceased to transact business in Georgia and did not maintain its certificate of authority at the time it brought a renewal action. This Court held that such facts were not grounds to dismiss the renewal action under OCGA § 14-2-1502 (a). Id.

A motion to dismiss under OCGA § 14-2-1502 (a) is a motion in abatement or a dilatory plea, which is not an adjudication on the merits. Nat. Heritage Corp. v. Mount Olive Mem. Gardens, supra at 242; Manufacturers Nat. Bank &c. v. Tri-State Glass, 201 Ga. App. 253 (410 SE2d 808) (1991); Safwat v. U. S. Leasing Corp., 154 Ga. App. 341 (268 SE2d 395) (1980). Such a plea based upon OCGA § 14-2-1502 (a) is raised as an affirmative defense, which must be specially pled in the answer. See OCGA § 9-11-8 (c); 9-11-9 (a); Patterson v. Duron Paints of Ga., 144 Ga. App. 123, 124 (1) (240 SE2d 603) (1977); cf. Gorrell v. Fowler, 248 Ga. 801-802 (1) (286 SE2d 13) (1982). If a dilatory plea or a plea in abatement is curable under the Civil Practice Act and the prior practice, then such defect constitutes an amendable defect. OCGA § 9-11-15 (a), (c); Walton v. Walton, 223 Ga. 85, 86-87 (3) (153 SE2d 554) (1967) (failed to plead jurisdiction); Crown Laundry v. Burch, 205 Ga. 211 (53 SE2d 116) (1949) (omission of prayer for process); Leniston v. Bonfiglio, 138 Ga. App. 151, 152-153 (1) (226 SE2d 1) (1976) (failure to plead sum due for service purposes); Middlebrooks v. Daniels, 129 Ga. App. 790 (201 SE2d 338) (1973) (condition precedent to suit); Burrow v. Dickerson, 108 Ga. App. 178, 180 (1) (132 SE2d 550) (1963) (improper prayer for process); Purcell v. Hill, 107 Ga. App. 85 (129 SE2d 341) (1962) (omission of prayer for process).

In this case, Health Horizons substantially complied with the registration requirements for a foreign corporation by obtaining a certificate of authority late. See Dept. of Transp. v. Moseman Constr. Co., supra. By filing the amendment setting forth such certificate of authority, and under the liberal pleading provisions of the CPA, such amendment related back to the time of filing. Leniston v. Bonfiglio, supra; Middlebrooks v. Daniels, supra; see generally Marler v. C & S Bank of Milledgeville, 239 Ga. 342, 343 (236 SE2d 590) (1977). “The Rule 15 relation-back feature has also been applied where a condition precedent to the suit has been omitted, such as notice to a municipality, lack of service of process, and allegations as to venue. [Cits.]” Foster & Kleiser, Inc. v. Coe & Payne Co., 185 Ga. App. 284, 286 (363 SE2d 818) (1987), rev’d on other grounds, Coe & Payne Co. v. Foster & Kleiser, Inc., 258 Ga. 161 (366 SE2d 292) (1988). Therefore, the trial court erred in dismissing the complaint in this case.

Case No. A99A0991

Health Horizons filed an affidavit from Dr. Knott, which the trial court relied upon in denying the motion. Since State Farm’s OCGA § 9-11-12 (b) (6) motion to dismiss led the trial court to consider matters outside the complaint, then “matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Code Section 9-11-56.” OCGA § 9-11-12 (b); American Car Rentals v. Walden Leasing, 215 Ga. App. 621 (451 SE2d 537) (1994); Zepp v. Mayor &c. of Athens, 180 Ga. App. 72 (348 SE2d 673) (1986).

Under OCGA § 9-11-56 (e), the affidavit of Dr. Knott states that he is practicing medicine under his license and that he assigns his fees to Health Horizons for collection. State Farm contends that Health Horizons has made admissions in judicio in the complaint that it practices medicine, i.e., that it “furnishes health care services.” If such statement constitutes an admission in judicio, then Health Horizons cannot present evidence to contravene such admission unless and until the admission is withdrawn by amendment. Thus, Dr. Knott’s affidavit must be excluded, State Farm would have pierced Health Horizons’ pleadings without any proper rebuttal evidence by the respondent.

State Farm contends that the trial court erred in denying its motion, because Health Horizons was engaged in the practice of medicine. Its basis for this position is what it contends was an admission in judicio, i.e., “furnishes health care services,” that Health Horizons was engaged in the practice of medicine. We do not agree.

(a) “[F]urnishes health care services” is not a statement of fact but is an opinion or conclusion as to law, fact, or mixed question of both as to relationships and to a series of transactions or occurrences over time; it is a conclusory statement so broadly made that it may encompass the practice of medicine, physical therapy, nursing, practical nursing, some other form of health services for compensation, or furnishing of medical supplies and equipment. “Although admissions in judicio apply only to admissions of fact and do not apply when the admission is merely the opinion or conclusion of the pleader as to fact or law,” such statement cannot constitute an admission in judicio, because it fails to be a statement of fact. Walker v. Jack Eckerd Corp., 209 Ga. App. 517-518 (434 SE2d 63) (1993); accord Howell Mill/Collier Assoc. v. Pennypacker’s, Inc., 194 Ga. App. 169, 172 (2) (390 SE2d 257) (1990); Ellerbee v. Interstate Contract Carrier Corp., 183 Ga. App. 828, 829 (2) (360 SE2d 280) (1987); Scott v. Jefferson, 174 Ga. App. 651, 652 (1) (331 SE2d 1) (1985); Aiken v. Dept. of Transp., 171 Ga. App. 154, 155-156 (319 SE2d 58) (1984).

(b) Even if “health care services” was a statement of fact, it does not mean that Health Horizons is engaged in the practice of medicine as defined by OCGA § 43-34-20 (3). However, “health care services” is defined in the Insurance Code, using such words, in OCGA § 33-20-3(4)

means the examination or treatment of persons for the prevention of illness or the correction or treatment of any physical or mental condition resulting from illness, injury, or other human physical problem and includes but is not limited to: (A) Hospital services which include the general and usual care, services, supplies and equipment furnished by hospitals; (B) Medical services which include the general and usual services and care rendered and administered by doctors of medicine, doctors of dental surgery, and doctors of podiatry; and (C) Other health care services which include appliances and supplies; nursing care by a registered nurse or a licensed practical nurse; care furnished by such other licensed practitioners as may be expressly approved by the board of directors from time to time; institutional services including the general and usual care, services, supplies, and equipment furnished by health care institutions and agencies . . . other than hospitals; physiotherapy; ambulance services; drugs and medications; therapeutic services and equipment including oxygen and the rental of oxygen equipment; hospital beds; iron lungs; orthopedic services and appliances including wheelchairs, trusses, braces, crutches, and prosthetic devices including artificial limbs and eyes; and any other appliance, supply, or service related to health care.

Since the phrase “health care services” was used in a suit against an insurance company regarding the failure to pay for health care services rendered, then it clearly had the expansive statutory meaning. Therefore, the scope of meaning is so broad and expansive that it cannot be construed as having the narrow meaning ascribed to it by State Farm of practice of medicine as an admission in judicio. At most,.such phrase creates a conflict in evidence as to the meaning.

The trial court admitted the affidavit of Dr. Knott by considering the affidavit of Dr. Knott; such admission of evidence in conflict to the purported admission in judicio is deemed as an amendment to conform to the evidence, which has the effect of withdrawing such admission in judicio. See OCGA § 9-11-15 (b); Walker v. Jack Eckerd Corp., supra at 519-520; Space Leasing Assoc. v. Atlantic Building Systems, 144 Ga. App. 320, 327 (4) (241 SE2d 438) (1977).

(c) There is nothing either by statute or case law that prohibits a duly licensed physician in good standing or other health care professional who has a professional physician-patient relationship and has earned fees and incurred expenses for professional services rendered to his patient from assigning such choses in action to a for-profit corporation for purposes of administration, billing, and collection of such fees, because such corporation does not create, define, direct, limit, or interfere with the physician-patient relationship or the attendant obligations, duties, rights, or liabilities arising from such professional relationship. The corporation is not practicing medicine under such limited circumstances. See OCGA §§ 14-7-3; 14-7-4; 43-34-26 (a); 43-34-43; Sherrer v. Hale, 248 Ga. 793, 796 (285 SE2d 714) (1982); Pearle Optical &c. v. State Bd. of Examiners in Optometry, 219 Ga. 364 (133 SE2d 374) (1963).

Sherrer v. Hale, supra at 796, held that “[although it is true that a business corporation cannot lawfully practice one of the so-calléd ‘learned professions,’ [cit.], it does not follow that a corporation violating this prohibition is ‘void.’ ” Thus, State Farm lacks standing to raise as a defense that Health Horizons was engaged in the practice of medicine as a for-profit corporation, because such violation does not void any assigned contracts with it or any right of action for quantum meruit for services performed for which it had financial responsibility. Id. Further, only the Composite State Board of Medical Examiners or its designees have standing to take action against Health Horizons, if it was in fact practicing medicine as a corporation. See OCGA § 43-34-43; Pearle Optical v. State Bd., supra.

Decided July 29, 1999

Gregory, Christy & Maniklal, Hardy Gregory, Jr., Mundy & Gammage, John S. Husser, for appellant.

Powell, Goldstein, Frazer & Murphy, Elmer A. Simpson, Jr., George P. Watson, Linda G. Birchall, Richard W. White, for appellee.

(d) For the foregoing reasons, State Farm has failed to pierce the pleadings of Health Horizons to show that at least one essential element cannot be shown at trial. Health Horizons has, nonetheless, come forward with the affidavit of Dr. Knott, showing that there exist material issues of fact for jury trial. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Therefore, the trial court did not err in denying the motion.

Judgment affirmed in part and reversed in part.

Pope, P. J., concurs. Smith, J., concurs in judgment only.

       Under federal practice, State Farm would be deemed to have waived such defense by-failure to timely raise it in the answer or other defensive pleadings. See Morgan Guaranty Trust Co. &c. v. Blum, 649 F2d 342 (5th Cir. 1981); Kinetic Concepts v. Kinetic Concepts, 601 FSupp. 496 (N.D. Ga. 1985).


text:
    A99A0983.
    THE STATE v. MARKS.
    (521 SE2d 257)
   Eldridge, Judge.

The State appeals from a Cobb County State Court order granting Susan Marks’ motion to suppress Marks’ refusal to take a State-administered breath test.

At approximately 2:30 a.m., appellee Susan Marks, Eric Billings, and five unnamed women were involved in a three-car accident on Barrett Parkway on the 1-75 entrance ramp. Marks and Billings had just left Cowboys, a nearby bar. Marks rear-ended Billings’ vehicle, which had rear-ended the vehicle occupied by the unnamed females. All three vehicles stopped in the road, and all passengers and drivers were milling around the vehicles when Officer B. Perez arrived on the scene.

Upon arrival, Perez “observed that two drivers were heavily intoxicated, and that’s when I made contact with Susan Marks.” The officer spoke to Marks and “observed a heavy odor of alcoholic beverage on her, and I asked her if she had been drinking that night. She said she had just left Cowboys and had four or five drinks that night.” Officer Perez administered field sobriety tests to Marks. Marks “performed the finger to nose, which she failed both times, the heel to toe walk, which she failed, and the alphabet, which she did pretty fine, and the one-leg stand.” The entire process was captured on videotape. During one part of the testing, Marks questioned the officer, asking “Why am I doing all these when they [the unnamed women] cut us [Marks and Billings] off?” On the videotape, Marks accused the officer of blaming her for the accident and thus making her perform the tests. Perez told Marks that the other drivers would be questioned too, and the officer “then gave her [Marks] a registered — gave her an alcosensor which she registered positive on. I gave her that before and after field tests. She registered positive both times.” Marks was arrested at 2:50 a.m. and placed in the back of Perez’s patrol car.

During the entire course of the field testing and questioning of Susan Marks, Eric Billings was continuously, as the trial judge put it, “kibitzing the situation, that is, he was making comments and throwing out things as [the officer was] trying to handle [the] investigation.” Officer Perez testified that “I kept having to look over there, and Officer Littler kept having to tell him to get back also.”

After placing Marks in the back of the patrol car, Officer Perez turned her attention to Eric Billings. Billings admitted to having “four or five drinks at Cowboys,” as well as several beers at an earlier Braves game. Perez administered the same field sobriety tests to Billings. He failed them and was placed under arrest. Immediately following arrest, Perez read Billings the implied consent notice for those age 21 and over. OCGA § 40-5-67.1 (b) (2). When asked whether he consented to testing or not, Billings refused testing, complaining that the implied consent notice failed to contain the information that a hearing is held before one’s driver’s license is suspended for refusing to take a State-administered chemical test.

The videotape shows that at approximately 3:06 a.m., Officer Perez placed Billings in the back of her patrol car along with Marks. Immediately thereafter, in the amount of time it took Perez to walk around the car to Marks’ side, Perez then read the implied consent notice to Marks. The audio portion of the videotape records no conversation between Marks and Billings while Perez was walking around the patrol car. Further, Perez did not hear any conversation. Also, Billings did not speak while Perez read the implied consent to Marks.

Perez began reading Marks the implied consent notice approximately 16 minutes after her arrest. Immediately after Perez began reading, Susan Marks stated “I don’t agree to anything you’re saying because I don’t want to talk to you anymore.” Officer Perez kept reading. Marks stated, “That’s fine. I’m gonna sue you.” Officer Perez kept reading. At the conclusion of the notice, Perez asked Marks to respond “yes or no,” as to consent to testing. Marks refused to answer. It is only at this point in the audio portion of the tape that Billings’ voice is heard urging Marks to “say no, say no.” However, Marks did not take Billings’ advice and refused to answer at all. Perez asked Marks if she was going to respond, and Marks replied “Nope.” Susan Marks, again, complained that “you didn’t give one thing to those girls who caused the wreck.”

Marks and Billings were transported to the precinct. There, Perez took Marks aside. “I reread Implied Consent to her, placed her in front of the machine and she refused to perform the test.”

Prior to trial, Marks filed a motion to suppress her refusal. She contended that the approximately 16-minute delay between her arrest and the reading of the implied consent warnings rendered Marks’ subsequent refusal to take the test inadmissible. The trial court did not agree with this contention. The trial court did not find that the 16-minute delay between arrest and notification was excessive or unwarranted by the circumstances. Nor did the trial court find that the delay impaired the accused’s ability “to make an intelligent choice concerning the state’s request and [her] right to undergo an independent test.” Perano v. State, 250 Ga. 704, 707 (300 SE2d 668) (1983).

Instead, the trial court granted Marks’ motion to suppress because the trial court found that Officer Perez’s act of placing Billings into the back seat of the patrol car interfered with Marks’ decision as to implied consent testing:

[Trial Court:] Suppose I tell you that I am less concerned about the passage of 17 or 18 minutes of time and I am more concerned about the fact that they placed him [Billings] in the back seat of the patrol car with her, after this lengthy delay, an individual who had clearly been interfering with her, with the police officer trying to deal with her on her field sobriety, and that individual had just refused, very forcefully, just refused Implied Consent, and they placed him into the car with her in the back seat and then read her Implied Consent, and he is allowed to interfere with her answer in that by telling her say no, say no. . . . That’s what I’m concerned about right there. That was a situation created by the police, not by the Defendant. . . . Bad advice was given by a person who was under arrest and under the control of the police, and they have a right to keep him away from her if they wanted to. That’s what worries me.

(Emphasis supplied.)

Thereafter, the trial court granted Marks’ motion to suppress, finding:

I think that this was a situation that was created by the arresting officer that could have been easily avoided. There were more than one police car in the area. These two suspects could have been kept apart from each other. And perhaps if that had been done there would have been a better opportunity for Ms. Marks to remain calm and to have a better understanding of her Implied Consent and make a more reason to answer to the Implied Consent. Therefore, I am going to suppress her refusal to submit to the state-administered chemical test and not allow her refusal to be used in evidence against her.

Held:

1. We conclude that the above-referenced ruling was error based upon both (a) the law and (b) the facts of this case.

(a) The law does not require an officer to ensure that a DUI suspect be provided an environment free from a non-State actor’s “bad advice” when deciding whether to cooperate with a properly administered implied consent notice, especially when that advice does not inure to the State’s benefit and especially when the DUI suspect is equally free to ignore such advice. In Allenbrand v. State, we specifically rejected the “bad advice” basis for suppressing a refusal to submit to chemical testing; we found that a DUI suspect who acts on non-State-initiated advice demonstrates the exercise of free “choice,” regardless of whether such choice is later deemed to be based upon “good advice” or “bad advice.” Id. at 611.

In this case, there is no evidence that the implied consent warnings given before the test gave Marks “inaccurate, misleading, and/or inapplicable information,” thus depriving her of making an informed choice regarding submitting to or refusing the State-administered test. Morrissette v. State, 229 Ga. App. 420, 423 (2) (a) (494 SE2d 8) (1997). Moreover, “[a]ppellant presented no evidence and absolutely nothing is raised by the evidence to suggest that appellant did not in fhct understand, or was incapable of understanding, the law and [her] rights as read to [her] by the officer[].” Mitchell v. State, 174 Ga. App. 594, 596 (1) (330 SE2d 798) (1985). See also State v. Leviner, 213 Ga. App. 99 (443 SE2d 688) (1994). Accordingly, we do not find that Officer Perez’s act of placing a contentious Billings in the backseat of her patrol car with Marks provides a sufficient basis for suppression of Marks’ subsequent refusal to submit to chemical testing, absent any allegation and evidence of defect in the implied consent notice and absent any allegation and evidence that Marks did not understand her rights under such notice. The trial court’s granting of Marks’ motion to suppress on this basis was error as a matter of law.

(b) “In reviewing a trial court’s decision on a motion to suppress, an appellate court must adopt the trial court’s findings of fact unless they are clearly erroneous and not supported by any evidence admitted at the suppression hearing. [Cits.]” State v. David, 269 Ga. 533, 535 (1) (501 SE2d 494) (1998). Here, there is no evidence in the record to support the trial court’s conclusion that the officer’s act of placing Billings in the back of the patrol car with Marks “interfered with” Marks’ decision as to implied consent.

(i) Marks did not testify at the suppression hearing, and she never stated that Billings interfered with or influenced in any way her decision as to implied consent. Accordingly, that such interference/influence occurred was not established so as to provide a factual basis for the trial court’s decision. “A fact is not proved unless it is established.” (Citation and punctuation omitted.) Jackson v. State, 177 Ga. 264, 265 (170 SE 26) (1933); Mooney v. State, 221 Ga. App. 420, 424 (471 SE2d 904) (1996).

(ii) Further, a review of the videotape and the testimony at the hearing on the motion to suppress shows that, before Billings said one word to Marks in the back of the patrol car, Marks had already determined that “I don’t agree to anything you’re [Officer Perez] saying because I don’t want to talk to you anymore.” Marks’ decision not to cooperate with chemical testing was apparent before Officer Perez could even begin the notification process properly and before Billings offered any alleged interference. From the video, it is clear that Marks’ refiisal to cooperate was driven not by any interference by Billings, but by Marks’ anger that the police “didn’t give one thing to the girls who caused the wreck,” anger that Marks had expressed earlier during field testing — well before Billings was placed in the back of the patrol car.

(iii) Finally, according to the trial court, Billings’ alleged interference was to advise Marks to “say no, say no” to chemical testing. However, while in the back of the patrol car, Marks did not listen to Billings. Instead, she refused to answer Officer Perez at all with regard to chemical testing. Later at the precinct, after Marks and Billings had been separated, Marks was again read the implied consent notice, and she was placed in front of the breath test machine. It was at that time, free from Billings’ alleged interference and “kibitzing the situation,” that Marks refused chemical testing.

Accordingly, based upon the facts of record, we find as clearly erroneous the trial court’s factual determination that the officer’s act of placing Billings in the back of the patrol car with Marks interfered with her decision as to implied consent. The trial court’s granting of Marks’ motion to suppress on this basis was error as a matter of fact.

2. We agree with the trial court’s initial conclusion that, under the facts of this case, the approximately 16-minute delay between Marks’ arrest and the reading of the implied consent notice did not require suppression of Marks’ refusal to submit to chemical testing.

“[T]his Court has held that notification is timely if given at a time as close in proximity to the instant of arrest as the circumstances of the individual case might warrant.” (Citation and punctuation omitted.) Hollis v. State, 234 Ga. App. 269, 271 (505 SE2d 837) (1998). A delay may be warranted where “the exigencies of police work prevent giving the advice.” Edge v. State, 226 Ga. App. 559, 560 (487 SE2d 117) (1997).

Here, at 2:30 a.m., on Barrett Parkway next to the 1-75 entrance ramp, Officer Perez was dealing with a three-car collision. The vehicles were still in the roadway, and seven people were involved. Initially, there were three officers on the scene, one of whom handled the unnamed women and arranged to have the vehicles moved and impounded, and one of whom was a training supervisor who tended to the disruptive Eric Billings, aided in the handling of traffic and vehicles, and observed Perez as lead investigative officer. “[I]n deciding whether the delay in giving implied consent advice is excusable, we consider the particular set of facts and circumstances of each case. [Cit.]” Edge'v. State, supra at 561 (1) (a). Under the facts and circumstances of this case, we agree with the trial court that it was not unreasonable for Perez, in dealing with Marks and Billings, both of whom appeared to the officer to be heavily intoxicated, to determine that attending to Eric Billings was necessary prior to reading Marks the implied consent notice.

In a situation where an officer properly delays the reading of implied consent for a brief period in order to attend to the exigencies of police work, it would appear incumbent upon a defendant to demonstrate how she would have benefited by being read the implied consent notice earlier. Fore v. State, 180 Ga. App. 196 (348 SE2d 579) (1986); Mason v. State, 177 Ga. App. 184, 186 (2) (338 SE2d 706) (1985); see also Vandiver v. State, 207 Ga. App. 836, 838 (429 SE2d 318) (1993) (Birdsong, P. J., dissenting). Marks has made no such showing.

[D]ue to the more immediate concerns of the arresting officer in the present case with completing [her] investigation of the accident scene and dealing with the hazard created by the [second intoxicated, contentious suspect], and given the fact that it would have been of no conceivable benefit to the defendant to have been informed of [her] implied consent rights any earlier, we hold that the advice was given as soon after the moment of the arrest as was reasonably practical.

Decided July 29, 1999

Barry E. Morgan, Solicitor, Jessica K. Moss, Katherine L. Kissam, Assistant Solicitors, for appellant.

John S. Morgan, for appellee.

(Citation and punctuation omitted.) Fore v. State, supra at 196.

“Accordingly, because the warning was given in close proximity to the arrest and its timing was warranted by the circumstances, the evidence of defendant’s refusal to submit to testing was admissible and should not have been suppressed.” (Citation and punctuation omitted.) State v. Holmes, 224 Ga. App. 29, 30 (479 SE2d 409) (1996). Judgment reversed. Pope, P. J., and Smith, J., concur.

       217 Ga. App. 609, 610-611 (2) (458 SE2d 382) (1995) (rejecting defendant’s contention that he was deprived of an opportunity to make an informed choice regarding implied consent because “ ‘attorneys in the past had advised him never to take the breath test’ ”).

       Apparently, one more officer arrived on the scene after Marks had been placed in the back of the patrol car and Perez was interviewing Billings.


text:
    A99A1149.
    ZOHOURY v. HOME DEPOT, INC. et al.
    (521 SE2d 389)
   Eldridge, Judge.

Nassar James Zohoury filed an action for malicious prosecution in the Superior Court of Cobb County against Home Depot, Inc. (“Home Depot”) and Chip Collins, acting as an employee of Home Depot. The suit stemmed from a 1993 incident wherein Collins, acting on behalf of Home Depot, allegedly “seized, ‘roughed up,’ and eventually charged [Zohoury] with the theft of a grass trimmer and several batteries.” Defendants filed a motion for summary judgment, and the trial court granted the motion. Zohoury appeals.

On appeal of the grant of summary judgment, this Court applies a de novo review of the evidence to determine whether any question of material fact exists. Summary judgment is appropriate where the moving party can show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A defendant meets this burden by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. All of the other disputes of fact are rendered immaterial.

(Citations and punctuation omitted.) Phelps v. BellSouth Advertising &c. Corp., 235 Ga. App. 147, 148 (508 SE2d 779) (1998).

Having conducted such de novo review of the record in this case, we affirm the trial court’s grant of defendants’ motion for summary judgment.

1. OCGA § 51-7-40 states that “[a] criminal prosecution which is carried on maliciously and without any probable cause and which causes damage to the person prosecuted shall give him a cause of action.” In this case, the record shows no lack of probable cause to arrest Zohoury so as to support an action for malicious prosecution.

The deposition testimony of Home Depot employee Chip Collins shows that Collins’ attention was drawn to Zohoury when he saw Zohoury remove batteries from his shopping cart and place them into a Home Depot shopping bag. Following him, Collins then saw Zohoury remove a grass trimmer from a display rack and place it into his shopping cart. “And they [grass trimmers] have a retainer bar to hold them into the shelf. And he wrestled with a trimmer because he couldn’t get it over that retainer bar and put it in his buggy.” Zohoury was arrested when, without going through the checkout line, he exited the store with the batteries and the grass trimmer.

After his detention, Zohoury produced a receipt for a grass trimmer and batteries. The check that Zohoury wrote for those items was retrieved from a cashier. However, neither the receipt nor the check had an impact on Home Depot’s decision to arrest and prosecute, because the merchandise reflected in the receipt had been purchased 45 minutes before Zohoury’s attempted exit with the items then in his possession; nothing in the receipt connected the previously purchased merchandise with the items then in Zohoury’s possession; and Collins personally witnessed Zohoury place the batteries into the shopping bag and personally witnessed Zohoury remove the grass trimmer from the display rack and place it into the cart. Apparently, such “double dipping” of merchandise based upon one receipt is not an uncommon form of retail fraud.

Most importantly, in his deposition testimony, Zohoury concedes the issue of probable cause; Zohoury agrees that he appeared to be shoplifting, and thus, his arrest was reasonable:

[Q:] Do you believe that this arrest was motivated by malice on the part of Home Depot or Chip Collins?
[Zohoury:] No. It was by mistake, I told you. If I was in his place, I would do the same thing. . . .
[Q:] Right. And that it’s possible that from his location he could have thought you were taking the trimmer out of the display instead of out of the buggy?
[Zohoury:] Correct.
[Q:] Would you agree with me then that based on the time on the receipt and those items that we’ve discussed, those events, it’s possible that someone such as Mr. Collins could have believed that someone such as yourself was trying to perpetrate a fraud?
[Zohoury:] Yes, I would say so.

Malicious prosecution suits are not favored. It is public policy to encourage citizens to bring to justice those who are apparently guilty.

The courts have always distrusted malicious prosecution actions, and have retained a strong hand over them. For this reason the existence of probable cause, which involves only the conduct of a .reasonable man under the circumstances, and does not differ essentially from the determination of negligence, usually is taken out of the hands of the jury, and held to be a matter for decision by the court.

(Citation omitted.) Chen v. Tai, 232 Ga. App. 595, 598 (502 SE2d 531) (1998).'

Here, the issue is not whether Zohoury’s possession of a receipt for batteries and a grass trimmer raises a jury question as to his guilt or innocence on the criminal charge. Nor does the issue involve the manner in which Zohoury was arrested. On summary judgment on Zohoury’s malicious prosecution claim, the issue is whether Collins had probable cause to arrest him. An absolute defense to a claim of malicious prosecution is the existence of probable cause. Patton v. Southern Bell Tel. &c. Co., 387 F2d 360 (5th Cir. 1968); Nunnally v. Reveo Discount Drug &c., 170 Ga. App. 320 (316 SE2d 608) (1984).

In this case, the record clearly establishes probable cause. Moreover, as also conceded by Zohoury, a magistrate determined that probable cause to arrest existed. “A magistrate’s determination of probable cause is prima facie evidence of the existence thereof. [Cit.]” Gerry v. K-Mart, 222 Ga. App. 364, 365 (474 SE2d 260) (1996). See also Monroe v. Sigler, 256 Ga. 759, 760 (353 SE2d 23) (1987). As such, the record is devoid of an essential element necessary to sustain an action for malicious prosecution pursuant to OCGA § 51-7-40. Accordingly, we find that the trial court appropriately granted summary judgment to defendants.

2. Because the trial court properly granted summary judgment as per Division 1 herein, we will not consider Zohoury’s remaining enumerations of error.

Decided July 29, 1999

Thomas E. Maddox, Jr., for appellant.

Mozley, Finlay son & hoggins, Carroll G. Jester, Jr., for appellees.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.