author: Johnson, Judge. Blackburn, Judge,

text:
    A93A2281.
    NORTH v. FLOYD COUNTY BOARD OF EDUCATION et al.
    (442 SE2d 809)
   Johnson, Judge.

We granted Rhonda North’s application for discretionary appeal to review the superior court’s determination that North was not eligible for benefits because she was not an employee within the purview of the Georgia Workers’ Compensation Act.

In August 1991, North applied for a position as a substitute bus driver with the Floyd County Board of Education. In September she began a two-and-one-half week training period which included both classroom and on-the-road assignments. While the training was a prerequisite for employment, North was neither paid during the training period, nor assured that she would ever be hired following its successful completion. On October 3, 1991, North accompanied a school bus driver on her route. After completing the route, the driver continued on to her home where North had left her car. North got off the bus, and while walking toward her car, slipped and fell on an embankment, injuring her ankle. She subsequently filed a claim for workers’ compensation benefits.

“The question of whether a person is an employee is one of fact, and, where there is any evidence to sustain the Board’s finding of fact, the superior court should not interfere.” (Citations and punctuation omitted.) Echo Enterprises v. Aspinwall, 194 Ga. App. 444, 445 (1) (390 SE2d 867) (1990). After hearing evidence in the case, an administrative law judge found that North failed to meet her burden of establishing that she was an employee of the Floyd County Board of Education at the time of the injury within the contemplation of the workers’ compensation statutes primarily because she had not been guaranteed future employment even if she successfully completed the training, and because she received no compensation from the county during the training. Both the Appellate Division of the State Board of Workers’ Compensation and the Superior Court of Floyd County affirmed the ALJ’s decision.

Georgia courts have not directly addressed the issue of whether injuries sustained during the pre-employment period are compensable under workers’ compensation statutes, but have analyzed the cases strictly in terms of whether an employer-employee relationship exists at the time of the injury. The dissent treats the three cases upon which it relies as if they shared a single unifying principle which is dispositive of the issue, i.e., if the applicant was under the direction and control of the employer at the time of the injury, there is coverage. In Howard Sheppard, Inc. v. McGowan, 137 Ga. App. 408 (224 SE2d 65) (1976) this court held that there was an implied contract for employment because the employer had received payment for the loads of gravel and sand transported by the applicant for a three-day period prior to his death, not we believe, as suggested by the dissent, because he had been under the direction and control of the employer. In Tommy Nobis Center v. Barfield, 187 Ga. App. 394 (370 SE2d 517) (1988), the court, in finding the existence of an employee-employer relationship, noted that the claimant was under the Center’s supervision and control and observed that claimant was being paid. The Center was also being compensated from outside sources for the work which claimant performed. Finally, in Mansfield Enterprises v. Warren, 154 Ga. App. 863 (270 SE2d 72) (1980) (appeal after remand, Warren v. Mansfield Enterprises, 163 Ga. App. 785 (295 SE2d 864) (1982)) the rationale for this court’s affirmation of the superior court’s reversal of the Board’s denial of benefits was that the Board has construed the nature of an employer-employee relationship too narrowly. We agreed that a “meeting of the minds” regarding the existence of an employer-employee relationship is not necessarily required, and to do so would ignore the long accepted concept of implied contracts. North willingly exposed herself to some risk in undertaking the training. The potential benefit flowing to Floyd County from North’s training, however, the availability of another driver in a pool of substitute drivers, is not significant enough to demand a finding of an implied contract of employment in this case.

“The exclusive authority to make findings of facts in claims under the Georgia Workers’ Compensation law is vested in the State Board of Workers’ Compensation. Neither the superior court nor this court has the authority to substitute itself as a fact-finding body in lieu of the board.” (Citations and punctuation omitted.) Harris v. Seaboard Farms, 207 Ga. App. 147, 149 (427 SE2d 524) (1993). With respect to the issue of control over North’s activities, which the dissent finds to be the gravamen of the inquiry, the factfinder in this case also considered the conflicting testimony of the Director of Transportation for the Floyd County Board of Education who testified that he did not exercise control over North’s activities and would not exercise such control unless and until she was hired as a substitute driver. The question of extent of control over a prospective employee’s training is fact intensive and questions of fact in light of conflicting testimony are best resolved by the tribunal established by statute to resolve such matters. Our review of the record in this case does not reveal that the level of control over North’s activities by Floyd County was so compelling as to justify this court’s interference with the findings of fact of the ALJ and the Board that no employer-employee relationship existed. Those findings are supported by evidence in this record, and we are, therefore, bound to accept them under the “any evidence” standard of review.

Judgment affirmed.

Birdsong, P. J., Beasley, P. J., Andrews and Smith, JJ., concur. Pope, C. J., McMurray, P. J., Cooper and Blackburn, JJ., dissent.

Blackburn, Judge,

dissenting.

I respectfully dissent.

I cannot agree with the majority that the decision of the trial court should be affirmed because the Board applied incorrect principles of law to the facts presented herein. The “any evidence” analysis relied upon by the majority does not apply where the Board’s award is based upon an erroneous legal theory. As this Court stated in Mansfield Enterprises v. Warren, 154 Ga. App. 863 (270 SE2d 72) (1980), “[w]e are mindful of the controlling principles of appellate review in workers’ compensation cases as articulated and adopted by this court on numerous occasions, and we agree that the board’s award, when supported by any evidence, is conclusive and binding. [Cits.] However, [such an] award cannot be based upon an erroneous legal theory which precluded consideration by the board of evidence which, if considered, would have authorized a contrary result. [Cits.]” (Emphasis supplied.) “Where it affirmatively appears that the award is based upon an erroneous legal theory and not upon proper consideration of the evidence and applicable legal principles, the case should be remanded to the board for further findings. [Cit.]” Clark v. Fireman’s Fund Ins. Co., 131 Ga. App. 809, 810-811 (207 SE2d 222) (1974). See also General Motors Corp. v. Hargis, 114 Ga. App. 143, 144 (150 SE2d 303) (1966).

Under Georgia law, specifically OCGA § 34-9-1 (2), “ ‘[e]mployee’ means every person in the service of another under any contract of hire or apprenticeship, written or implied. . . .” While wages may be corroborative of other facts indicating employment at a given time, it is not itself conclusive of a master-servant relationship. Yellow Cab Co. v. Worrell, 155 Ga. App. 41 (273 SE2d 410) (1980); Travelers Ins. Co. v. Clark, 58 Ga. App. 115 (197 SE 650) (1938). See also Oelrich v. Schlagels, Inc., 426 NW2d 430 (Minn. 1988).

Contrary to the majority’s observations, this court has addressed the issue of whether an applicant is entitled to workers’ compensation benefits when a prospective employer exercises control over the time, method, and manner of the applicant’s tryout period or training program. In Tommy Nobis Center v. Barfield, 187 Ga. App. 394 (370 SE2d 517) (1988); Warren, supra; and Howard Sheppard, Inc. v. McGowan, 137 Ga. App. 408 (224 SE2d 65) (1976), this court repeatedly found that job applicants who were not paid by their prospective employers for tasks performed under the direction and control of the prospective employers during their training period were employees within the purview of Georgia’s Workers’ Compensation Act. Although Barfield was paid a stipend merely for participation in the job training program, taxes were not withheld from his stipend, unlike the regular employees employed by the Center who were paid on an hourly, piecemeal, or annual basis. Nevertheless, in each of those cases, the applicants were deemed employees within the purview of Georgia’s Workers’ Compensation Act because the evidence “satisfied the legal criteria for creating a master-servant relationship, such as the right of control over the person, including time, manner, means, and method of his work [during the tryout period].” (Emphasis supplied.) Warren, supra at 864; see McGowan, supra at 411-412. “The chief test to be applied is whether the contract gives, or the employer assumes, the right to control the time, manner and method of executing the work. Any doubt about the claimant’s status as an employee must be resolved in his favor.” (Emphasis supplied.) (Citations and punctuation omitted.) Barfield, supra at 396.

In the case sub judice, neither the Board, the ALJ, nor the superior court considered the appropriate test in determining North’s status at the time that she sustained her disabling injury, and consequently, the case should be remanded to the Board for the Board’s reevaluation of the facts under the appropriate legal standard.

The majority emphasizes the testimony of Floyd County’s Director of Transportation that he did not personally exercise control over North’s activities during the training period. The Director indicated that his responsibility for the supervision of North’s activities would not begin until she was hired by the county as a substitute driver and began driving the school buses. Nonetheless, the Director did not refute North’s testimony that she was supervised continuously during her training period by other Floyd County personnel. In fact, the Director testified that he did observe North during her training period, and further stated on cross-examination that the county employed and paid several of its employees to train prospective employees such as North. Moreover, the Director admitted that he retained the right to terminate North’s training period, another factor demonstrating the control exercised by the county over North. However, even if there had been a factual dispute as to control of North by county employees other than the Director of Transportation, in this case, the Board applied the incorrect legal standard to those facts, and accordingly, remand is warranted.

The testimony produced at the administrative hearing showed that county employees who were paid to supervise and train prospective employees did in fact exercise continuous supervision over North’s activities during the training period at the direction of the county. While the majority correctly points out that ordinarily the question of whether a person is an employee is one of fact, in a case such as the one at bar “[w]here the facts are undisputed, the question is one of law. . . .” (Emphasis supplied.) Walls v. North Mississippi Med. Center, 568 S2d 712, 714 (Miss. 1990). See also Oelrich, supra at 433.

Notwithstanding the undisputed evidence concerning Floyd County’s control over North’s activities during the training period, neither the ALJ nor the Board made any factual findings concerning the supervision exercised by Floyd County, and it is unclear from the awards of the ALJ and the Board that such evidence concerning the control exercised by the county over North’s activities was even considered. Instead, in determining North’s status for workers’ compensation purposes, the ALJ and the Board based their decision on the fact that North was not promised wages or guaranteed future employment. This is not the test for determining a master-servant relationship under Georgia’s Workers’ Compensation Act and such a test is not supported by statutory or case law.

Pursuant to the requirements of this training program, and under Floyd County’s direction and control, North undertook special risks similar to those she would have undertaken had she been permanently hired as a school bus driver. Contrary to the majority’s assertion, it is only in the absence of any legal error that an appellate court’s review of the Board’s decision can be based on the “any evidence” standard. Independent Life &c. Ins. Co. v. Cox, 207 Ga. App. 402 (2) (427 SE2d 862) (1993).

The majority opinion adds an additional level of scrutiny to the established principles governing the employer-employee relationship by applying a balancing test and weighing the significance of the benefit provided to the employer during North’s training period, impliedly relying upon Younger v. City & County of Denver, 810 P2d 647 (Colo. 1991). However, the Younger court did not apply the rule of liberal interpretation favoring individuals claiming workers’ compensation benefits because such interpretation had been rejected by the Colorado legislature but is required under Georgia law. See General Motors Corp. v. Hargis, supra. “After all, our Workers’ Compensation Act ‘must be construed reasonably and liberally with a view of applying the beneficent provisions of the statute so as to effectuate its purposes, and to extend them to every class of workman and employee that can fairly be brought within the provisions of the act.’ [Cit.]” Barfield, supra at 396.

Decided March 11, 1994

Reconsideration denied March 28, 1994

Mundy & Gammage, E. Lamar Gammage, Jr., B. Jean Crane, for appellant.

Swift, Currie, McGhee & Hiers, John F. Sacha, for appellees.

The author of this dissent does not seek to substitute his findings of fact for those of the ALJ and the Board. It is the ALJ and the Board’s failure to apply the appropriate legal standard to the facts presented herein and the majority opinion’s failure to recognize this fact that forms the basis of this dissent.

I am authorized to state that Chief Judge Pope, Presiding Judge McMurray and Judge Cooper join in this dissent.

       See Annotation, Workers’ Compensation: Compensability of Injury During Tryout, Employment Test, or Similar Activity Designed to Determine Employability, 8 ALR5th 798; Younger v. City & County of Denver, 810 P2d 647 (1991).


source: Caselaw Access Project

author: Cooper, Judge.

license: Public Domain

text:
    A93A2368.
    CLARK v. CITY OF SMYRNA.
    (442 SE2d 461)
   Cooper, Judge.

Appellant sued the City of Smyrna for injuries he allegedly sustained when he fell on a defective sidewalk. He appeals from the trial court’s grant of summary judgment to the city based on his failure to provide timely, written ante litem notice in accordance with OCGA § 36-33-5.

On the day appellant was injured, he telephoned Smyrna City Hall and reported his injury and desire to make a claim against the city to the city employee who answered the telephone. The employee summarized the call in writing and referred the matter to a Jane Mears, who was identified as the person responsible for handling claims against the city. Mears referred the matter to the city’s insurer’s adjustment firm. A claims adjuster sent appellant a medical authorization form to complete and return to her. The forms were completed and returned. Appellant was subsequently notified by the city’s insurer that his claim was denied. Appellant contends he substantially complied with the ante litem notice statute and that because of his contact with the city’s insurer and adjuster, the city is estopped from raising OCGA § 36-33-5 as a bar to his claim.

Decided February 22, 1994

Reconsideration denied March 28, 1994

Thomas M. West, for appellant.

Carter & Ansley, Christopher N. Shuman, Christine G. Mont gomery, for appellee.

1. OCGA § 36-33-5 (b) provides, in pertinent part, as follows: “Within six months of the happening of the event upon which a claim against a municipal corporation is predicated, the person . . . having the claim shall present the claim in writing to the governing authority of the municipal corporation for adjustment. ... No action shall be entertained by the courts against the municipal corporation until the cause of action therein has first been presented to the governing authority for adjustment.” (Emphasis supplied.) “The giving of the ante litem notice in the manner and within the time required by the statute is a condition precedent to the maintenance of a suit on the claim. [Cit.] ‘Formal, written notice is required. . .’ [Cits.] Although [appellant] contends that there has been substantial compliance with the statutory ante litem notice requirement, we have been provided no authority, nor are we aware of any, holding that oral notice to a municipal corporation or a representative thereof may be considered substantial compliance with the provisions of the statute. [Cit.]” (Indention omitted.) Gillingwater v. City of Valdosta, 177 Ga. App. 241 (1) (339 SE2d 287) (1985). Moreover, documents prepared by city employees and its insurer were not presented to the city by appellant as required by the statute and thus cannot constitute proper ante litem notice. Brown v. City of Chamblee, 211 Ga. App. 145 (438 SE2d 396) (1993).

2. Nor do we find that the city waived the ante litem notice requirement because appellant’s claim was referred to the city’s insurer. Appellant contends that by referring his oral claim to its insurance adjuster, the city created an alternative method of handling tort claims. “[Reference of the claim to an insurance carrier which undertook an investigation and settlement, can not work a waiver of the notice, an estoppel to assert lack thereof, or toll the time for giving it. [Cit.]” Schaefer v. Mayor &c. of Athens, 120 Ga. App. 301, 302-303 (6) (170 SE2d 339) (1969). It is well established that governing officials cannot waive statutory ante litem notice requirements. City of Calhoun v. Holland, 222 Ga. 817 (152 SE2d 752) (1966). Accordingly, the trial court did not err in granting summary judgment to the city.

Judgment affirmed.

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


author: Smith, Judge.

text:
    A93A2457.
    MANNING & ASSOCIATES PERSONNEL, INC. et al. v. TRIZEC PROPERTIES, INC.
    (442 SE2d 783)
   Smith, Judge.

Tenant-appellant Manning & Associates Personnel, Inc. (Manning & Associates) entered an 84-month lease agreement with landlord-appellee Trizec Properties, Inc. (Trizec). Mildred A. Manning, founder of Manning & Associates, personally guaranteed certain stipulations of the lease agreement allowing for recoupment of conditionally “excused” rents and Trizec’s preparation costs in the event of default. Manning & Associates ceased paying rent after the 37th month of the lease term.

Trizec brought suit, appellants responded, and Trizec then filed a motion for summary judgment on all issues. Appellants moved for partial summary judgment, arguing that the stipulation allowing for recoupment of excused rent is unenforceable as a penalty as a matter of law. Trizec’s motion was granted, and the appellants’ motion was denied. Appellants appeal from the trial court’s order granting Trizec’s motion and denying their own.

1. The lease between Trizec and Manning & Associates provided for a base rent of $32,764.35 per year, payable in monthly installments of $2,730.36. Paragraph 40.02 of the “special stipulation” to the lease provides as follows: “Excused rent. Except as may be modified by Special Stipulation 40.05, Landlord shall conditionally excuse Base Rental for the period commencing on July 1, 1988, through March 31, 1989 (‘Excused Rent’), provided, however that Excused Rent shall immediately become due and payable to Landlord in the event of any uncured monetary Tenant default under this Lease. Landlord shall waive any rights to payment of Excused Rent if Tenant has not defaulted in any of Tenant’s obligations as of the Expiration Date of the Lease. This Article shall not be deemed to excuse payment of any rents or charges due other than Base Rental.”

The question whether the courts of this state will enforce an action for certain rents that would have been excused but for the tenant’s default is one of first impression. The parties have presented no persuasive authority from other states squarely on point, and we have found only one such case from any jurisdiction. In Lesatz v. Standard Green Meadows, 164 Mich. App. 122 (416 NW2d 334) (1987), the Michigan Court of Appeals was presented with a residential lease provision excusing the first month’s rent on condition that the tenant fulfilled its lease obligations and stayed the entire term. The Lesatz court held that such a provision is not a penalty provision, observing that the yearly rent was clearly stated; that the tenants enjoyed the first month of its rental “without having to pay rent at that time”; that “[h]ad plaintiffs stayed the entire term, defendants would have excused payment of that rent”; and that “[i]t only became due [and payable] when plaintiffs breached the lease.” (Emphasis supplied.) 416 NW2d at 337.

Distinctions between Lesatz and the present case can be made, but they do not favor appellants’ position. The first nine months’ rent became due and payable once the lease was breached. Trizec is not suing for damages it suffered as a result of Manning & Associates’ breach; it is merely suing for unpaid rents that accrued prior to the breach, and that have become due and payable only as an agreed upon consequence of that breach. If the parties had entered a lease lacking such a provision, Trizec’s expectation of rent during the first nine months of that lease certainly could not be characterized as a penalty. Appellants were undeniably placed in a better position (and Trizec in a less favorable position) than they would have been if the incentive of conditional excused rent had not been added. Appellants now wish to render their position even more favorable by removing the condition agreed upon at the time of contracting. We agree with the straightforward reasoning applied by the Lesatz court, and we hold that the trial court did not err in granting Trizec’s motion for summary judgment and denying appellants’ motion for partial summary judgment on this issue.

2. Paragraph 40.05 (c) of the special stipulation provides as follows: “Landlord shall bear all costs necessary to prepare the premises . . ., not to exceed $28,850.00 (‘Landlord’s Costs’).” Paragraph 40.05 (e), however, provides that “[s]hould the Lease terminate for any reason prior to the Expiration Date, Tenant shall be liable to Landlord for the immediate repayment of Landlord’s Costs.”

Trizec characterizes the “landlord’s costs” as “actual out-of-pocket expenses for improving the premises,” and therefore not susceptible to scrutiny regarding whether they constitute liquidated damages or a penalty. This argument is without merit. “Damages recoverable for a breach of contract are such as arise naturally and according to the usual course of things from such breach and such as the parties contemplated, when the contract was made, as the probable result of its breach.” OCGA § 13-6-2. “Where a party seeks damages for violation of a contract, the measure of damages is not what he has suffered by performing his part but what he has suffered by the failure of the other party to perform his part. [Cit.]” (Emphasis supplied.) Gainesville Glass Co. v. Don Hammond, Inc., 157 Ga. App. 640, 644 (1) (278 SE2d 182) (1981). Trizec may have experienced special damages related to its need to renovate the lease premises again and to do so sooner than expected to attract another tenant, but the measure of such damages, if any, is clearly not equivalent to the “landlord’s costs” incurred under the lease. Id. See generally BufordClairmont v. Jacobs Pharmacy Co., 131 Ga. App. 643 (206 SE2d 674) (1974).

Decided March 2, 1994

Reconsiderations denied March 28, 1994.

Paul L. Hanes, M. Muffy Blue, for appellants.

Coleman & Dempsey, Arlene L. Coleman, David J. Dempsey, for appellee.

At best, paragraph 40.05 (e) of the special stipulation is an attempted liquidated damages provision. “A contractual provision requiring payment of a stipulated sum by one of the parties upon termination or cancellation of the contract will be treated as an enforceable liquidated damages provision rather than an unenforceable penalty only if all three of . the following factors are present: First, the injury caused by the breach must be difficult or impossible of accurate estimation; second, the parties must intend to provide for damages rather than a penalty; and third, the stipulated sum must be a reasonable pre-estimate of the probable loss resulting from such a breach. [Cits.]” (Emphasis supplied.) Broadcast Corp. of Ga. v. Subscription Television &c., 177 Ga. App. 199 (338 SE2d 775) (1985). See generally Southeastern Land Fund v. Real Estate World, 237 Ga. 227, 230 (227 SE2d 340) (1976). Since the sum stipulated in paragraph 40.05 cannot be said to be a reasonable pre-estimate of the probable loss resulting from Manning & Associates’ breach, the provision imposes an unenforceable penalty. The trial court therefore erred in granting summary judgment to Trizec on the limited issue of liquidated damages for “landlord’s costs.”

Judgment affirmed in part and reversed in part.

Beasley, P. J., and Cooper, J., concur.


text:
    A93A2492.
    FORT HOWARD CORPORATION et al. v. DEVOE.
    (442 SE2d 474)
   Smith, Judge.

In this workers’ compensation case Theodore William Devoe’s claim for benefits was denied by the administrative law judge, and the Board of Workers’ Compensation affirmed. Fort Howard Corporation and U. S. Fidelity & Guaranty Company, the employer and insurer (collectively, “Fort Howard”), applied for a discretionary appeal from the superior court’s judgment reversing the Board and remanding the case for new findings. We granted Fort Howard’s application to consider the scope of the rule established in Ga. Elec. Co. v. Rycroft, 259 Ga. 155 (378 SE2d 111) (1989).

In Rycroft, the Supreme Court adopted a test originally set forth in IB Larson’s Workmen’s Compensation Law, § 47-53, and outlined the circumstances under which an employee’s false statement in an employment application will bar workers’ compensation benefits:

“ ‘The following factors must be present before a false statement in an employment application will bar benefits: (1) The employee must have knowingly and wilfully made a false representation as to his physical condition. (2) The employer must have relied upon the false representation and this reliance must have been a substantial factor in the hiring. (3) There must have been a causal connection between the false representation and the injury.’ [Cit.]” 259 Ga. at 158.

It is undisputed that Devoe made a misrepresentation on the medical information form he completed on his first day at work. Devoe acknowledged he falsely stated on the medical form that he had never missed any time from work because of an on-the-job injury, that he had never injured his back or spine, and that he had never had any trouble with his back or spine. In fact, he had been unable to work for approximately two months and had received substantial workers’ compensation benefits for a back injury suffered while working for a previous employer. It is also undisputed that Devoe’s injuries were to the same area of his spine, and there was testimony that there was reinjury or aggravation of the original injury.

The second factor of the Rycroft test, reliance upon the false representation in hiring, is in dispute here. We must determine whether a representation made during an employment intake process, but before the employee begins his actual work, may constitute a “substantial factor in the hiring” within the meaning of Rycroft. We hold that it may.

With respect to this issue, the evidence presented before the ALJ showed that Fort Howard has an elaborate, multi-step hiring process, beginning with a prospective employee’s initial application and continuing through interviews, drug testing and a training program to an offer of employment. Upon reporting to the workplace but before beginning work, the employee undergoes “orientation” or “indoctrination” which consists of filling out forms, watching training films, meeting supervisors, and being shown around the workplace before actually beginning work. The medical questionnaire was completed as part of this preliminary orientation process.

An assistant personnel director testified that Fort Howard relied upon the medical questionnaire in determining whether or not to allow the employee to begin actual physical work. The personnel director and a nurse testified that truthful answers on Devoe’s medical questionnaire would have led to further investigation, including a medical examination. The personnel director testified that Fort Howard probably would not have hired Devoe but would have “sent him home” if the results of the investigation confirmed a history of a back condition, because Fort Howard’s entry level jobs involve heavy labor. However, on cross-examination she responded in the affirmative to a suggestion by Devoe’s counsel that she did not rely on the medical questionnaire for the “actual hiring decision.”

Devoe contends that the second part of the Rycroft test is not met because he had already been “hired” at the time he made the misrepresentation. We decline to read Rycroft in this narrow, formulaic sense. Devoe misrepresented his ability to perform the work for which he was hired, work which placed him at risk for reinjury. But for Devoe’s misrepresentation, Fort Howard would have known of this increased risk and would not have allowed Devoe to begin work without further investigation. The misrepresentation was thus a substantial factor in Fort Howard’s decision to place Devoe at the only work available, work which resulted in his injury. This fulfills the second part of the Rycroft test.

This interpretation is consistent with Rycroft’s stated public policy rationale in favor of truthfulness in employment applications, the voidability of contractual relationships procured through fraud, and the employer’s right to rely on an employee’s description of his physical condition. 259 Ga. at 158-159. The effect of a false, material statement by an employee should not be determined on the purely fortuitous circumstance of its completion shortly after a “hiring decision” rather than before, at least where, as here, the claimant had not yet entered into the actual employment contemplated at the time of hiring. General Motors Corp. v. Hargis, 114 Ga. App. 143 (1) (150 SE2d 303) (1966), does not require a different result. While there was evidence in Hargis that the employee would have been allowed to work but assigned to different duties, it appears that only heavy labor jobs were available at Fort Howard, and Devoe would not have been allowed to work. Furthermore, Rycroft rejects the distinction made in Hargis between a voidable contract of employment and one which is absolutely void. 259 Ga. at 160.

On appeal of a workers’ compensation case, the evidence is construed most favorably to the party prevailing before the Board, and neither the superior court nor this court has the authority to substitute its judgment as to the weight and credibility of witnesses. Impress Communications v. Stanley, 202 Ga. App. 226, 229 (1) (414 SE2d 238) (1991). If a finding of fact by the Board is supported by any evidence, it is conclusive and binding upon the superior court and this court. Franks v. Avila, 200 Ga. App. 733, 735 (4) (409 SE2d 564) (1991). Although the testimony of the personnel director was to some degree inconsistent, the Board determined that Devoe’s misrepresentation was a substantial factor in his employment, and there was evidence to support that conclusion. The superior court therefore erred in reversing the Board.

Decided March 15, 1994 —

Reconsideration denied March 28, 1994

Barrow, Sims, Morrow & Lee, Charles W. Barrow, for appellants.

Ralph E. Lamar IV, James K. Lange, for appellee.

Judgment reversed.

Beasley, P. J., and Cooper, J., concur.


text:
    A93A2596.
    WORSTELL PARKING, INC. v. AISIDA.
    (442 SE2d 469)
   Cooper, Judge.

Plaintiff brought an action against defendant to recover for injuries she received when one of defendant’s parking attendants struck plaintiff in the face with a stick. In her complaint, plaintiff alleged theories of respondeat superior and negligent hiring. The trial court denied defendant’s motion for summary judgment, and we granted defendant’s application for interlocutory appeal.

1. Defendant first argues that the trial court erred in denying its motion for summary judgment on the theory of respondeat superior. The record reveals that plaintiff, accompanied by her boyfriend, went for a dental appointment at an office building and used the valet parking facility operated by defendant. When plaintiff’s boyfriend realized he did not have enough cash to pay plaintiff’s bill, he returned to the parking lot to retrieve his checkbook from the car. One of the parking attendants told plaintiff’s boyfriend that he would retrieve the checkbook for a tip. Plaintiff’s boyfriend declined and said that he would get it himself. The parking attendant became angry and began making derogatory comments to plaintiff’s boyfriend about his African nationality. Plaintiff’s boyfriend retrieved his checkbook and returned to the dentist’s office. When plaintiff and her boyfriend returned to get their car, the parking attendant confronted them while they were paying the cashier. The attendant used abusive and offensive language and threatened plaintiff and her boyfriend with a stick. Plaintiff and her boyfriend remained calm while they waited for another attendant to bring their car. When the car arrived, plaintiff and her boyfriend walked toward the car followed by the parking attendant carrying the stick. The parking attendant took the stick, swung it

at plaintiff and her boyfriend and struck plaintiff in the face.

OCGA § 51-2-2 provides: “Every person shall be liable for torts committed by his wife, his child, or his servant by his command or in the prosecution and within the scope of his business, whether the same are committed by negligence or voluntarily.” “The word voluntarily . . . will cover any or all motives or purposes of the wrongdoer, acting in the scope of his employment, which are not covered by acts of negligence. The true test is not whether the tort was committed by reason of anger, malice or ill will, but whether or not it was committed in the prosecution and within the scope of the master’s business. If the tort be committed, not by reason of the employment, but because of matters disconnected therewith, the master would not be liable.” (Citations and punctuation omitted.) Mountain v. Southern Bell Tel. &c. Co., 205 Ga. App. 119 (1) (421 SE2d 284) (1992). The fact that the assault occurred during the time of the attendant’s employment with defendant is not dispositive on the issue of scope of employment. See Southern Bell Tel. &c. Co. v. Sharara, 167 Ga. App. 665 (2) (307 SE2d 129) (1983). The parking attendant’s altercation with plaintiff and her boyfriend appears to have been purely personal and not for any purpose beneficial to defendant. Consequently, we conclude that the trial court should have granted summary judgment to defendant on the issue of respondeat superior.

2. Defendant also argues that it was entitled to summary judgment on plaintiff’s claim of negligent hiring. “An employer’s liability for negligent hiring or retention of an employee requires proof that the employer knew or should have known of the employee’s violent and criminal propensities, and there was no evidence of such knowledge.” (Citations and punctuation omitted.) Diaconescu v. Hettler, 210 Ga. App. 191, 193 (2) (435 SE2d 489) (1993). Specifically, the record contains the affidavit of Gary Worstell, defendant’s owner and manager. Worstell stated that he had no knowledge that the parking attendant was a violent person and that he was not aware of any prior violent acts or violent propensities of the attendant. Worstell also stated that he had never received any complaints about the attendant. Plaintiff alleges that the defendant had constructive notice of the attendant’s violent propensity because the attendant checked “yes” in response to a question on his employment application regarding whether he had been arrested for any criminal charges, excluding minor offenses. Although the record reflects that the attendant had been convicted of several violations of the Georgia Controlled Substances Act, the record is devoid of any evidence that the parking attendant had a propensity towards violence or that defendant knew of that propensity. Furthermore, plaintiff’s argument that defendant had a duty to investigate the attendant’s past before they employed the attendant is without merit. Diaconescu, supra at 193. Accordingly, the trial court erred in denying defendant’s motion for summary judgment on plaintiff’s theory of negligent hiring.

Decided March 11, 1994 —

Reconsideration denied March 28, 1994

Long, Weinberg, Ansley & Wheeler, Lance D. Lourie, William P. Langdale III, for appellant.

Bernard & Associates, Patricia D. Bernard, for appellee.

Judgment reversed.

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


author: Birdsong, Presiding Judge.

text:
    A94A0179.
    ROBERTS v. THE STATE.
    (443 SE2d 4)
   Birdsong, Presiding Judge.

Arthur Roberts IV was indicted for murder, felony murder, possession of a weapon by a convicted felon, and other counts. He was convicted of voluntary manslaughter, possession of a weapon by a convicted felon and possession of a weapon during the commission of a crime. On September 21, 1991, after an argument, the victim followed appellant in his vehicle into a lane and struck the rear of appellant’s vehicle. Appellant got out of his car and fired a shot; the victim tried to drive out of the lane but found no exit and was trapped. Appellant walked over and, while the victim sat in his car and begged appellant for his life, appellant calmly shot the victim twice. Roberts enumerates two errors. Held:

1. Appellant contends the trial court erred by denying his motion to sever the count for felony murder from the count for possession of a weapon by a convicted felon. The count of possession of a firearm by a convicted felon was the underlying felony for the charge of felony murder. The trial court charged the jury it could consider evidence of defendant’s prior conviction “solely for the purpose of determining whether the State has met its burden of proof as related to the felony murder count and the possession of a firearm by a convicted felon count. You are not to consider it for any other purpose.”

In Head v. State, 253 Ga. 429 (322 SE2d 228), the appellant similarly complained. The Supreme Court reversed the conviction, as the evidence of guilt on the felony murder charge was not overwhelming, the prior felony (counterfeiting) was not legally material to the murder charge, and the trial court placed no limitations on the jury’s consideration of that prior conviction evidence. In Willis v. State, 263 Ga. 70 (3) (428 SE2d 338) citing Head, at 432 (d), the court held that the counts need not be bifurcated if the possession of a weapon by a convicted felon is the underlying felony of the felony murder count. See also Cauley v. State, 260 Ga. 324 (393 SE2d 246) and Brown v. State, 263 Ga. 89 (428 SE2d 78). The trial court did not err in refusing to sever the counts.

Decided March 14, 1994

Reconsideration denied March 28, 1994

Stephen R. Yekel, for appellant.

Spencer Lawton, Jr., District Attorney, John T. Garcia, Assistant District Attorney, for appellee.

Appellant also argues that the indictment alleging a recidivist count (based on a prior conviction for theft by receiving) should have been masked, but he did not enumerate this as error and he cites no authority for the proposition. See Cline v. State, 199 Ga. App. 532 (1) (405 SE2d 524).

2. Appellant contends the trial court erred in allowing the State to introduce his character by allowing a witness to testify that he had met appellant in prison. This witness was called by the defense and was questioned extensively by the defense about having met the victim while they were both in prison, and as to his knowledge of the relations between appellant and the dead man. The defense thus injected the dead man’s criminal history into the trial as a defense to his killing. The State, on cross-examination, then asked how the witness knew appellant. This question naturally followed on the defense’s having brought the witness to testify as to the relations between appellant and the dead man, and was relevant to the witness’ acquaintance with appellant as well as with the dead man. Moreover, inasmuch as two of the counts (which were properly tried together; Division 1, supra) pertained to appellant’s possession of a firearm as a convicted felon, the State’s cross-examination on this point, aside from being invited by the defense, did not tell the jury anything it did not already know about appellant. Furthermore, in view of the overwhelming evidence of guilt and the jury’s failure to convict appellant of felony murder, it is highly probable that this evidence, even if it had been error, caused no reversible harm. See Hamilton v. State, 239 Ga. 72, 77 (235 SE2d 515).

Judgment affirmed.

Cooper and Blackburn, JJ., concur.


author: McMurray, Presiding Judge.

text:
    A94A0126.
    BOND v. THE STATE.
    (442 SE2d 482)
   McMurray, Presiding Judge.

An October 13, 1992, indictment charged Sterling Bond, Susan E. Williams and Joey Saxton Rozier with embracery, alleging that, on or about August 7, 1991, the defendants paid $200 to one Diane Lucas, who had been summoned as a juror, in an attempt to influence her action as a juror. On November 13, 1992, Bond filed a demand for trial pursuant to OCGA § 17-7-170.

Bond waived any defects in the indictment in open court. His co-defendants did not. They moved to quash the indictment, asserting that the grand jury was not recalled to service properly. See generally State v. Byrd, 197 Ga. App. 661 (399 SE2d 267), and Ward v. State, 205 Ga. App. 485 (423 SE2d 22), overruled in State v. Grace, 263 Ga. 220 (430 SE2d 583). The trial court granted the co-defendants’ motion to quash and the State moved for a nolle prosequi against Bond, explaining that it desired to reindict all three defendants jointly. The trial court granted the nolle prosequi motion and the defendants were reindicted on May 24, 1993.

Thereafter, Bond moved for a judgment of acquittal, pointing out that two terms of court had passed since he filed his demand for trial and that qualified juries had been empaneled during each of those terms. The State conceded that juries had been empaneled during the term at which the original indictment was returned and the next succeeding term. It asserted, however, that it was entitled to nolle prosequi the indictment against Bond and to reindict him to avoid trying him and his co-defendants (who had successfully moved to quash the indictment) in separate trials. The trial court agreed and denied Bond’s motion for a judgment of acquittal. Bond appeals. Held:

Inasmuch as more than two terms of court had passed since defendant filed his demand for trial and juries were impaneled for the purpose of trying criminal cases during each of those terms, defendant is entitled to a discharge and acquittal. Why? Because the entry of the nolle prosequi did not prevent defendant from claiming the benefits of OCGA § 17-7-170. Coker v. State, 181 Ga. App. 559 (353 SE2d 56). As it is said: “If . . . the crime charged in each indictment was the same crime, the failure of the State to try the defendant at the [succeeding] term after a demand had been entered at the [preceding] term, a jury having been present, entitled the defendant to a discharge; and upon such facts being shown, a subsequent indictment against him for the same crime would be barred.” Hurt v. State, 62 Ga. App. 878, 879, 880 (10 SE2d 136).

The State’s reliance upon Dalton v. State, 263 Ga. 138 (429 SE2d 89), is misplaced. In that case, the trial court attempted to comply with the defendant’s speedy trial demand by setting the date of trial within two terms of the original indictment. The defendant waived his demand for a speedy trial by moving for a continuance of the trial date. Moreover, it was the defendant’s action, in moving to quash the death penalty notice as untimely, that led to his re-indictment. In the case sub judice, no steps were taken to ensure that defendant was tried within two terms of his speedy trial demand. The State simply nol prossed the indictment and re-indicted defendant on the same charge. True, the re-indictment came because defendant’s co-defendants were successful in quashing the indictment and the State wanted to try defendant and his co-defendants together. But, unlike the defendant in Dalton, defendant himself took no action which led to the re-indictment or to a waiver of his demand. Compare Mize v. State, 262 Ga. 489 (422 SE2d 180).

Decided March 28, 1994.

Randall M. Clark, for appellant.

Dupont K. Cheney, District Attorney, J. Thomas Durden, Assistant District Attorney, for appellee.

Of course, the State was not required to try all of the defendants in one case. It could have complied with defendant’s demand by prosecuting defendant and his co-defendants separately; but it chose not to do so, at the expense of defendant’s right to a speedy trial. This it could not do. A defendant’s right to a speedy trial cannot be pushed aside for the State’s convenience. Hurt v. State, 62 Ga. App. 878, 879, 880, supra.

Judgment reversed.

Pope, C. J., and Smith, J., concur.


text:
    A94A0327.
    HOWELL v. FARMERS PEANUT MARKET OF SOWEGA, INC.
    (442 SE2d 904)
   Birdsong, Presiding Judge.

Leymon L. Howell appeals from the grant of summary judgment to Farmers Peanut Market on his claim to recover for injuries sustained after he was injured while working at the Farmers Peanut Market plant. The record shows that Farmers Peanut Market contracted with Howell’s employer to remove and replace a motor from the top of a grain elevator at the plant.

Although the motor was successfully removed from the top of the elevator, Howell was injured while the motor was being hoisted to the top of the grain elevator. After Howell sued to recover for his injuries, the trial court granted Farmers Peanut Market’s motion for summary judgment. Howell now appeals contending that the trial court erred by failing to apply the general law applicable to business invitees, by finding that Howell had superior knowledge of the defective condition of the premises and the equipment, and by failing to apply the emergency doctrine. Held:

1. An owner or occupier of land has a duty to exercise ordinary care to keep his premises safe for such persons, including workers who have been hired to work on the premises, as may lawfully come on the premises at the owner’s expressed or implied invitation. OCGA § 51-3-1. An exception is made to this general rule for workers hired to perform work which makes “ ‘ “a place that is known to be dangerous, safe, or in a work that in its progress necessarily changes the character for safety of the place in which it is performed as the work progresses.” ’ Holland v. Durham Coal &c. Co., 131 Ga. 715, 719 (63 SE 290).” Elsberry v. Ivey, 209 Ga. App. 620, 621 (434 SE2d 158). “The safe work place rule presupposes a static area where work is performed on a regular basis. However, construction or demolition sites by their inherent nature are naturally temporary and in a state of continuous alteration.” Id. Moreover, “ ‘where the injured servant was hired for the express purpose of assisting in the repair, demolition, or alteration of some instrumentality [in this case, the motor], and the unsafe conditions from which the injury resulted arose from or were incidental to the work undertaken by him, the above-stated general rule is not applicable.’ Louisville &c. R. Co. v. Dunn, 21 Ga. App. 379 (1) (94 SE 661).” Id.

2. In this instance, Howell was injured as the motor was being hoisted to the top of the grain elevator. When Howell arrived on the scene, he saw that the motor was caught in an opening on the roof; he shouted for the hoisting to stop because he knew that a dangerous situation was present since the “strong arm” holding the motor might break and the motor might drop. The workers hoisting the motor stopped and thereafter followed Howell’s directions. Howell first climbed up to where he could check out the condition of the motor and the cable, and then lowered and repositioned the motor so that it would go through the opening in the roof. Then, when at Howell’s direction the motor was being raised again, it fell and struck Howell.

It was Howell’s duty to observe any visible and manifest defects which would make his work dangerous. Callahan v. Atlantic Ice &c. Corp., 33 Ga. App. 330, 332 (126 SE 278). Thus, when he halted the hoisting of the motor he had the opportunity to check out not only the motor and the hoist, but the strong arm and any other part of the operation and equipment. He cannot blame Farmers Peanut Market for his failure to inspect all aspects of the operation, and for his positioning himself in a place where he would possibly be injured if the motor fell. Moreover, Howell’s deposition shows that he had removed over 100 motors such as this, and he was aware that the failure of the arm was one of the dangers he faced. It appears that Howell’s “injury was received from a danger that would ordinarily and naturally exist in doing the work which [he] was employed to perform. But this is not all. [Howell] could not have engaged in the work without knowing and seeing the identical condition which, as grounds of negligence, it is alleged that the master allowed to exist. Accordingly, we are satisfied that this case poses an exception to the general rule of a master providing a safe work place to a servant or employee pursuant to OCGA § 51-3-1.” (Citation and punctuation omitted.) Elsberry v. Ivey, supra at 622.

Decided March 28, 1994.

Rodney M. Keys, for appellant.

Watson, Spence, Lowe & Chambless, W. Earl McCall, for appellee.

3. Since the evidence shows that Howell had the opportunity to stop the hoisting operations and inspect the conditions existing, there was no emergency which would warrant application of the emergency doctrine. See Johnston v. Woody, 148 Ga. App. 152, 153 (250 SE2d 873).

Accordingly, the trial court did not err by granting summary judgment to the Farmers Peanut Market.

Judgment affirmed.

Cooper and Blackburn, JJ., concur.


text:
    A94A0436.
    DEATON et al. v. DEPARTMENT OF CORRECTIONS.
    (443 SE2d 8)
   McMurray, Presiding Judge.

Plaintiffs Earl B. Deaton, Sr. and Velma Deaton filed this wrongful death action seeking damages in the amount of the full value of the life of their daughter Darlene. The complaint alleges that Darlene Deaton died after she was struck by a vehicle operated by James Chester while under the influence of alcohol. Plaintiffs also alleged that Chester is a habitual offender with an extensive history of criminal conduct and abuse of alcohol, who was on probation due to a prior criminal offense and subject to supervision of defendant Georgia Department of Corrections at the time of his fatal encounter with Darlene Deaton. Plaintiffs maintain that their daughter’s death occurred due to the negligence and gross negligence of defendant in supervising Chester’s probation.

Defendant moved to dismiss plaintiffs’ claim against it. The motion to dismiss, based upon sovereign immunity, was granted and plaintiffs appeal. Held:

Since Darlene Deaton’s death occurred in 1990, plaintiffs rely upon the provision of the 1983 Georgia Constitution in force at that time and prior to the 1991 amendment to Art. I, Sec. II, Par. IX of the Constitution of Georgia. Thus, reliance is placed on the former provision for a waiver of sovereign immunity to the extent of applicable liability insurance.

Decided March 28, 1994.

John R. Gaughen, for appellants.

Michael J. Bowers, Attorney General, John C. Jones, Daryl A. Robinson, Senior Assistant Attorneys General, Downey, Cleveland, Parker & Williams, Joseph C. Parker, for appellee.

In this appeal, plaintiffs have not contended that defendant maintained any insurance so as to effect a waiver of sovereign immunity, but rely entirely upon the existence of a liability self-insurance trust fund which provides insurance for state employees. Under the decisions in Price v. Dept. of Transp., 257 Ga. 535 (361 SE2d 146) and Martin v. Ga. Dept. of Pub. Safety, 257 Ga. 300, 301 (2) (357 SE2d 569), it is made clear that under the 1983 Constitution, the State’s defense of sovereign immunity is waived to the extent of such employee’s insurance. However, it is equally clear upon review of a motion for reconsideration in Price at 537, that “a waiver depends upon the presence of a claim in the action for which liability insurance protection has been provided . . .” and that “if no employee is made a party defendant there will be no waiver. . . .” No employee of defendant is a party to this action, therefore, there is no waiver of sovereign immunity and plaintiffs’ appeal lacks merit.

Judgment affirmed.

Pope, C. J., and Smith, J., concur.


text:
    A94A0554.
    ROBINSON v. THE STATE.
    (442 SE2d 901)
   Birdsong, Presiding Judge.

Johnny Anthony Robinson pled guilty to driving with a suspended license and DUI; he appeals his judgment of conviction. Appellant was sentenced to confinement for 12 months and fined $1,000 plus a $50 surcharge. Held:

1. Appellant contends the trial court erred in accepting his guilty plea without determining whether it was made freely, voluntarily, and with knowledge of the possible consequences thereof. This contention is without merit.

The provisions of Superior Court Rules 33.7-33.9 apply to state courts. Uniform State Court Rules, A-D, 33.11; see Bacon v. State, 201 Ga. App. 641 (411 SE2d 785). The trial court failed to comply technically with these rules; however, non-compliance with the court rules has not been enumerated as error and therefore this specific issue is not before us on appeal. The question for appellate resolution is whether the record fails to establish that appellant’s plea of guilty was informed and freely and voluntarily entered. “Before a guilty plea is accepted by a trial court, the court must determine that the plea is voluntarily made and that the defendant intelligently and understandingly waives his constitutional rights with an understanding of the nature of the charges against him and the consequences of the plea.” Hall v. State, 210 Ga. App. 792, 793 (1) (437 SE2d 634). “When a defendant enters a plea of guilty and subsequently challenges the validity of the guilty plea, the State may meet its burden of demonstrating the plea was intelligently and voluntarily entered by two means, (1) showing on the record of the guilty plea hearing that the defendant was cognizant of all of the rights he was waiving and the possible consequences of his plea; or (2) filling a silent or incomplete record by use of extrinsic evidence that affirmatively shows that the guilty plea was knowing and voluntary.” (Punctuation omitted; emphasis supplied.) Bacon, supra at 641.

Appellant was not represented by counsel at the guilty plea hearing; there is no error enumerated as to such lack of counsel. The record establishes that appellant previously had access to the advice of counsel regarding a prior not guilty plea and had entered a not guilty plea without counsel being present in court; however, the record fails to establish affirmatively that counsel ever advised appellant regarding a plea of guilty or of its full consequences and, in fact, tends to establish that such plea was entered without consultation, as appellant denied on the record ever having talked directly with counsel or of having advised him of the facts of the case. Compare Bacon, supra at 642.

On the record, the trial court extracted an affirmative answer from appellant to the following questions: “You understand by [pleading guilty] you give up the right to a trial”; “You understand the court will sentence you”; “You’re doing this voluntarily”; “No one’s pressuring you to change your plea”; and, “You understand what you’re doing.” At no time did the trial court advise appellant on the record of the various rights, except to the broad “right to a trial,” set forth in Uniform Superior Court Rule 33.8. Neither did the trial court on the record ascertain the factual basis for the plea, Uniform Superior Court Rule 33.9, nor advise of the maximum possible sentence on the charge. We are not satisfied that the guilty plea hearing transcript affirmatively establishes that appellant was cognizant of all the rights he was waiving by his guilty plea or of the consequences thereof. Accordingly, unless such deficiency can be negated by other evidence of record extrinsic to the guilty plea hearing transcript, this plea must fall.

Examination of the record reveals extrinsic evidence which meets the constitutional requirements discussed in Bacon, supra. Appellant signed a self-certifying document acknowledging that he can read, has read, and understands the “In-Court Rules and Procedure of the State Court of Decatur County, Georgia,” and that following an opportunity to ask questions concerning these rules, he does “hereby waive formal arraignment and enter my plea or pleas [of guilty], voluntarily and with full knowledge and understanding of all of my rights in connection therewith and the possible consequences thereof.” A copy of the “In-Court Rules and Procedure” are included in the trial record. These rules clearly advise appellant of the maximum permissible punishment which could be imposed for a traffic violation or a misdemeanor criminal offense (including but not limited to imprisonment for 12 months and payment of a fine of $1,000 and of various fees and costs). The document also advised appellant of his right to counsel, his right to trial by either judge or jury in the event of a not guilty plea, his right to have witnesses at any trial and his right to have subpoenas issued; further, in the event appellant elected to plead not guilty, the document advised appellant of his right to a trial on the charge to which he pleads not guilty, his right to face his accusers (confrontation) and to cross-examine them. The document advised that in the event of a guilty plea, appellant would give up his right to a trial, waive all defenses he may have, both known and unknown, waive his right to face his accusers, waive his right to cross-examine his accusers, and be sentenced by the judge. Appellant’s reliance on Agerton v. State, 191 Ga. App. 633 (382 SE2d 417) and related cases is misplaced; these cases are factually distinguishable from the circumstances surrounding appellant’s plea of guilty. Viewing the extrinsic evidence of record together with the evidence affirmatively contained in the hearing transcript, we are satisfied that the record adequately establishes that appellant freely and voluntarily tendered an informed plea of guilty. The trial court did not err as enumerated. Compare Bullard v. State, 198 Ga. App. 603 (402 SE2d 539).

Although no reversible error was committed as to this matter, we strongly caution both the state and superior courts, in the interests of judicial economy, to comply in spirit and in letter with the requirements of Uniform Superior Court Rules 33.7-33.9 when conducting guilty plea hearings.

2. In appellant’s second enumeration of error, he asserts two separate errors in a single enumeration in violation of OCGA § 5-6-40. See generally Robinson v. State, 200 Ga. App. 515, 518 (2) (408 SE2d 820).

Appellant relied upon the provision of OCGA § 17-10-2 (a) in his claim that error occurred by considering evidence in aggravation not made known to him prior to trial. The State was not required to give appellant pretrial notice of the evidence in aggravation of punishment in this misdemeanor prosecution. Trotter v. State, 179 Ga. App. 314 (346 SE2d 390).

Decided March 28, 1994.

Gilbert J. Murrah, for appellant.

Smith & Perry, Ralph C. Smith, for appellee.

We acknowledge that fundamental fairness dictates a criminal defendant, both as to felony and misdemeanor convictions, shall be afforded a reasonable opportunity to present evidence in extenuation and mitigation prior to sentencing. In this case, appellant has failed to show error affirmatively by the record that would necessitate a set aside of his sentence. Both error and harm must be shown affirmatively by the record to authorize a reversal on appeal. Hollis v. State, 137 Ga. App. 298 (223 SE2d 491). Appellant did voluntarily tender an explanation for his prior criminal record to the trial court; that the trial court appears to have elected in its discretion to give little or no weight to that explanation is not the determinative factor. The better practice, particularly in those situations where defendant is not represented by counsel, would be expressly to advise appellant of his right to present matters in mitigation and extenuation and to offer him affirmatively on the record an opportunity to do so before imposing sentence. However, the absence of such advice is not fatal if appellant either was provided such an opportunity or if he otherwise was not prejudiced by the failure to provide the same. In this instance, the hearing record shows appellant tendered an extenuating explanation for his prior offenses; thus, he was not denied the opportunity to present matters in extenuation and mitigation as enumerated. The record also reflects that appellant made no assertion that he had any additional evidence in extenuation or mitigation to present to the trial judge prior to sentencing. Further, appellant fails to make any showing in his appellate brief of what evidence he would have offered had he been affirmatively advised of such right, and as to how such evidence, if any exists, would have served to reduce his sentence. Appellant has not carried his burden of establishing that he was harmed by the sentencing procedure employed in this case; we would not reverse a sentence legal on its face based on mere speculation as to its appropriateness.

Judgment affirmed.

Cooper and Blackburn, JJ., concur.


text:
    A94A0679.
    PERRY v. THE STATE.
    (442 SE2d 484)
    Decided March 28, 1994.

      James S. Purvis, for appellant.

      Lewis R. Slaton, District Attorney, William C. Akins, Barry I. Mortge, Assistant District Attorneys, for appellee.
   McMurray, Presiding Judge.

Defendant Perry appeals his conviction of two counts of the offense of armed robbery and of one count of the offense of possession of a firearm during commission of a felony. The sole enumeration of error maintains that the victims’ identification of defendant as the perpetrator of the armed robberies was impermissibly tainted by unduly suggestive pretrial identification procedures, including a photographic array and a showup at a pretrial hearing. Held:

Without regard to whether the pretrial identification procedures were unduly suggestive, the evidence shows that the in-court identifications of defendant by both victims were based, not on the challenged pretrial events, but on the opportunities for observing defendant at the time of the robberies. Both victims testified as to their opportunities to observe defendant at the time of the robberies and that their in-court identification of him was based entirely upon their observations at that time.

As the basis for the courtroom identification was independent of the allegedly suggestive pretrial procedures, it was not error for the trial court to deny defendant’s motion to suppress the in-court identifications. Furthermore, there was little likelihood of misidentification since the victims, who were held up at gunpoint during daylight hours, were able to observe defendant from a close distance and were both certain of their in-court identifications of defendant based on their recollections from the time of the crime. Jones v. State, 258 Ga. 25, 27 (3) (365 SE2d 263); Baty v. State, 257 Ga. 371, 374 (6), 375 (359 SE2d 655); Callaway v. State, 257 Ga. 12, 14 (3) (354 SE2d 118).

Judgment affirmed.

Pope, C. J., and Smith, J., concur.


text:
    A94A0829.
    DANIELS v. THE STATE.
    (442 SE2d 483)
   McMurray, Presiding Judge.

Defendant was tried before a jury and found guilty of rape. At trial, defendant testified that he went to Glenn Hills High School during the afternoon of October 16, 1990, and encountered the 15-year-old victim in a corridor of the school building. Defendant testified that he and the victim then went to a side room of the schoolhouse and engaged in consensual intercourse. On cross-examination, defendant admitted that he was not a student at Glenn Hills High School at the time of the alleged rape, but explained that his brother participated in athletics at the high school and that he (defendant) is “very popular there.” Defendant admitted that he was not acquainted with the victim before approaching her on the afternoon of the alleged rape; that his first conversation with the victim involved his request to engage in sex and that the victim obliged him without hesitation or objection. The victim testified that she was in the ninth grade at Glenn Hills High School at the time of the alleged rape; that she was waiting for a ride home when defendant approached her and that defendant then forced her into a side room, ripped her clothing and raped her.

Decided March 28, 1994.

Clayton L. Jolly III, for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

This appeal followed the denial of his motion for new trial. Held:

In his sole enumeration, defendant challenges the sufficiency of the evidence and argues that the victim’s testimony is unbelievable. This contention is without merit.

“On appeal the evidence must be viewed in the light most favorable to support the verdict, and [defendant] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Grant v. State, 195 Ga. App. 463 (1) (393 SE2d 737). Reviewing the transcript [in the case sub judice] in this light reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that [defendant is] guilty of the offense of rape as convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).” Wells v. State, 208 Ga. App. 298, 299 (1) (430 SE2d 611).

Judgment affirmed.

Pope, C. J., and Smith, J., concur.


text:
    A93A1964.
    DEVOE v. CALLIS.
    (442 SE2d 765)
   Smith, Judge.

This personal injury action arises out of a collision between a car driven by plaintiff Devoe and a parked vehicle owned by defendant Callis. The collision occurred on January 30, 1990. This action was. filed on January 29, 1992, one day before expiration of the relevant statute of limitation. See OCGA § 9-3-33. While no return of service appears on the record, Callis states by affidavit that he was served on April 20, 1992, eighty-one days after the statute of limitation expired. The trial court granted Callis’s motion for summary judgment on the basis of Devoe’s failure to act diligently to locate and serve Callis after expiration of the statute of limitation, and Devoe appeals.

1. “OCGA § 9-11-4 (c) provides in pertinent part: ‘When service is to be made within this state, the person making such service shall make the service within five days from the time of receiving the summons and complaint; but failure to make service within the five-day period will not invalidate a later service.’ This proviso applies as well to service made outside the state pursuant to the Long Arm Statute. In any case, the correct test (is) whether the plaintiff showed that he acted in a reasonable and diligent manner in attempting to insure that a proper service was made as quickly as possible. ... A reasonable rule must be that . . . the trial judge should look at all the facts involved and ascertain whether the plaintiff was in any way guilty of laches. . . . The plaintiff has the burden of showing lack of fault. Ordinarily, the determination of whether the plaintiff was guilty of laches in failing to exercise due diligence in perfecting service after the running of the statute of limitations is a matter within the trial court’s discretion and will not be disturbed on appeal absent abuse.” (Citations and punctuation omitted.) Hossain v. Tohme, 205 Ga. App. 538, 539-540 (1) (423 SE2d 4) (1992).

Under the facts of this case, Devoe has not demonstrated that she exercised due diligence as a matter of law. In June 1991, approximately eight months before Devoe filed this action, Callis moved to Morristown, Tennessee, because of a job change. There is no indication from the record that he moved to conceal himself or to avoid service. The burden is on the plaintiff to ascertain a defendant’s residence, and that obligation does not arise only upon expiration of the statute of limitation. See Walker v. Hoover, 191 Ga. App. 859, 861 (383 SE2d 208) (1989). Although Devoe’s counsel states by affidavit that he was retained only a short time before the statute of limitation expired and could not verify Callis’s address before filing this action, the record shows no further steps by Devoe to verify Callis’s address until March 3, 1992, when Devoe retained a private investigator. Even after a “non-est” return was entered by the Fulton County Marshal on February 12, 1992, indicating that Callis could not be located, the record shows no action for 20 days. Once a plaintiff is put on notice of a problem with service, she is required to exercise “ ‘the greatest possible diligence to ensure proper and timely service.’ [Cit.]” Walker v. Hoover, supra, 191 Ga. App. at 861. After the private investigator discovered that Callis had moved, there was an additional delay of nine days before Devoe contacted a process server. The record shows no contact between Devoe and the process server from counsel’s letter of March 25 until a telephone call on April 16, 1992. Callis ultimately was served on April 20, 1992, four days later.

Although Devoe’s counsel contends that “correspondence and other means of communication, phone calls, etc. were initiated by my staff in a reasonable and diligent effort to locate this defendant,” Devoe does not identify the individuals involved or “ ‘give specific dates or details reflecting a diligent attempt to locate [Callis].’ [Cit.]” Cason v. Williams, 207 Ga. App. 550, 552 (428 SE2d 444) (1993). Since the burden is on Devoe to show reasonable diligence, she cannot simply state in conclusory fashion that reasonable and diligent efforts were made. Id.

Eighty-one days elapsed between expiration of the statute of limitation and service on Callis. A finding of laches on a lapse of as little as 63 days between expiration of the limitation period and service has been upheld by this court. McManus v. Sauerhoefer, 197 Ga. App. 114 (397 SE2d 715) (1990). Moreover, the record shows an unexplained lapse of over a month during those 81 days in which there was no effort by Devoe to verify Callis’s address. The record further reveals additional periods of delay during which Devoe apparently did not act promptly on new information. Under the evidence presented here, the trial court did not abuse its discretion as a matter of law in deciding that plaintiff did not use reasonable diligence to pursue service. Capra v. Rogers, 200 Ga. App. 131, 134-135 (3) (407 SE2d 101) (1991).

2. In Devoe’s second enumeration of error she contends that the trial court should have attributed the delay in service on Callis to his liability insurance carrier. Devoe appears to contend that the carrier had an unspecified obligation to provide her with Callis’s address. Devoe cites no legal authority for this contention, and it is unsupported by the existing case law. See Walker v. Ga. Farm &c. Ins. Co., 207 Ga. App. 874 (429 SE2d 289) (1993) (service on defendants’ liability carrier no bar to summary judgment for failure to exercise due diligence in serving defendants). The authorities cited by Devoe refer to the obligation of parties to refrain from inducing delay or concealing material facts they have a duty to disclose. Although served, Callis’s liability carrier was never a party to the litigation. See generally Bohannon v. Futrell, 189 Ga. App. 340, 341-342 (1) (375 SE2d 637) (1988), aff’d 259 Ga. 162 (377 SE2d 853) (1989) (uninsured motorist carrier not a party under OCGA § 33-7-11 (d), so long as it chose not to participate directly in the litigation). There is nothing in counsel’s affidavit or elsewhere in the record, whether in the form of correspondence or formal discovery, showing that Devoe requested Callis’s address from the carrier. Devoe has pointed to no legal authority placing an obligation on an adverse party’s liability insurance carrier to volunteer information absent any request. This enumeration of error has no merit.

Decided February 11, 1994

Reconsideration dismissed March 8, 1994 and Reconsideration denied March 29, 1994.

Henley & Associates, Fredrick J. Henley, Jr., for appellant.

Sharon Ware & Associates, Lynn D. Heath, for appellee.

Judgment affirmed.

Beasley, P. J., and Cooper, J., concur.

       It also appears that Devoe took no steps through two former counsel to locate Callis.


author: Andrews, Judge.

text:
    A93A2377, A93A2378.
    PACES PARTNERSHIP v. GRANT et al.; and vice versa.
    (442 SE2d 826)
   Andrews, Judge.

Paces Partnership, plaintiff/tenant, appeals from the grant of summary judgment to Grant and Trust Company Bank, defendant/ landlord, and defendant/landlord cross-appeals from the partial grant of summary judgment to Paces Partnership. Both appeals deal with the interpretation of a lease.

There is no dispute that, in June 1968, John W. Grant, Jr., the father of John W. Grant III, and Craigellachie Development Company, a now defunct corporation, owned approximately 30 acres bounded by Roswell Road, East Andrews Drive, West Paces Ferry Road on the north, east, and south, and adjacent realty known as Grant Estates to the west. Grant, Jr., and Craigellachie Development Company were the predecessors in title of Grant III and Trust Company. The corporation owned Tract A and Grant, Jr., owned Tracts B, C, and D of the subject property. On June 1, 1968, Grant, Jr., and the corporation signed a 50-year lease with Cousins Properties, Inc., the predecessor in interest of Paces Partnership. It is the terms of this lease which are in dispute.

Article III of the lease, entitled “Rents,” provides in paragraph 7 for specific amounts of rental to be paid over the first 25 years of the lease, escalating from $48,000 in 1968 to $128,000 for the 21st through the 25th years. Rental for years 26 through 40 is to be “An amount equal to seven and one-half percent (7-Vi %) of the appraised value of the leased land as of the first day of the 25th year but not less than $128,000 per year.” June 1, 1992 was the first day of the 25th year. For years 41 through 50, the same formula applied with regard to the 40th year, with a minimum rental of $160,000.

Paragraph 7 further provided that “[ajppraised value of the leased land shall be deemed to mean the fair market value of the leased land determined as though there were no improvements on the leased land and as though the leased land were not encumbered by this lease, except to the extent the use of the premises is restricted by the terms of paragraph 15 (a), (b) and (c).”

Ninety-five percent of the rental was to go to Grant and five percent to the corporation and their respective successors in interest.

Article IV, paragraph 13 provided for termination of the lease if the “entire premises or any substantial part thereof’ were taken by condemnation or eminent domain. If only part were taken and the untaken part remained sufficient for the tenant’s use, there would be a pro rata reduction in the rental based on “that proportion of the rent otherwise payable hereunder which the market value of the land included in the premises remaining . . . bears to the market value of the land included in the premises immediately prior to the taking, the land in each instance to be valued as though it had no improvements on it.”

Paragraphs 14 through 18 are contained in Article V, entitled “Improvements.” Paragraph 14 (a) required the tenant to make improvements pursuant to plans and specifications attached to the lease as “Schedule III” and the tenant agreed that the “value of the improvements shall be not less than Four Million ($4,000,000) Dollars.” “Value” was defined in paragraph 14 (b) as “fair market value.” Paragraph 16 required the improvements to be completed by June 1, 1973.

Paragraph 15 (a) required the improvements on Tract A, located at the corner of West Paces Ferry Road and East Andrews Drive, to be “single family dwellings or townhouses, constructed in accordance with the plans attached hereto as Schedule III.” No improvement could be made which lay in both Tracts A and B.

Paragraph 15 (b) dealt with the improvements on Tract B. Tract B was between Tracts A and C and wrapped around two sides of C. Construction on Tract B required a 40-foot natural buffer between Grant Estates to the west and any construction on the leased premises. No use could be made of this buffer zone. Within 75 feet of Grant Estates, only individual apartment or townhouses could be built, not extending more than 20 feet into the 75-foot strip. No improvements over two stories in Tract B were allowed, “except those units located on the northern portion of Tract B and shown on the plans approved by Landlord and attached hereto as Schedule III.”

Paragraph 15 (c) provided that, until January 1, 1988, only those improvements “approved by Landlord and as set forth in the original development plans . . . [Schedule III]” could be made on Tract C. After January 1, 1988, tenant could construct new or additional apartment buildings on Tract C, “subject to paragraph 23 hereof’ and with certain height limitations.

Paragraph 23 is included in Article VI, entitled “Use of Premises — Repairs — Alterations — Substitution of New or Reconstructed Buildings.” It provided that “Tenant shall have the right to repair, renovate, alter, add to, demolish or reconstruct as often as, and whenever it deems proper, the improvements constructed on the premises, and to substitute other improvements therefor subject to the provisions of paragraph 15 hereof. No subsequent demolition of any substantial portion of the improvements shall be permitted unless:” followed by subsections (a), (b), (c), and (d).

Subsection 23 (a) provided that any replacement of the improvements which were demolished have a value of one-and-one-half times the value at time of demolition. Subsection (b) required that architectural drawings be provided to landlord before demolition and subsection (c) required that, if tenant built, landlord would be provided with proof of bonding and other items and, if contractor built for tenant, tenant would provide landlord with copies of the contract and contractor provided bonds.

Subsection 23 (d) required that long term and interim financing commitments be obtained by tenant and that an escrow agreement be set up with a bank into which tenant would deposit the interim financing plus cash representing the difference in the lower of the two commitments and the final completion cost of the project.

Case No. A93A2377

Paces Partnership contended below that the phrase “appraised value of the leased land” in paragraph 7 related only to the worth of tenant’s remaining 25-year “estate for years” and not to the fee. Landlord contended and the court concluded that the fair market value of the land should be determined as though (i) the property was owned in fee simple, (ii) there were no improvements on the property, (iii) the lease did not exist, and (iv) the property was subject to restrictions containing the same terms as paragraphs 15 (a), (b), and (c) of the lease; provided, however, that (1) the cost of demolition and removal of existing improvements; (2) paragraph 23 as referred to in paragraph 15 (c); and (3) the fact that tenant will have a 25-year term remaining shall be given no weight in the determination.

1. First, we note that “[a] lease of lands for five years or more creates an estate for years and passes as realty in this State. Such an estate may be bought and sold as any other estate, subject to the terms and conditions of the lease. [OCGA §§ 44-6-100; 44-6-102; 44-7-1].” Shell Petroleum Corp. v. Jackson, 47 Ga. App. 667, 669 (1) (171 SE 171) (1933).

This conclusion, however, does not resolve the issue presented here, which is the method for computing rental under such a lease for its remaining 25 years.

2. As acknowledged by both parties below, “[t]he construction of the provisions of this lease, as with other contracts, is generally one for the court to determine as a matter of law. OCGA § 13-2-1.” Peachtree &c. Investors v. Reed Drug Co., 251 Ga. 692, 694 (1) (308 SE2d 825) (1983). The court will construe a contract where the language is undisputed but the meaning of that language is in dispute. OCGA § 13-2-1; Brown v. Hitch, 208 Ga. App. 784, 785 (1) (431 SE2d 751) (1993).

“ ‘It is the responsibility of the court to determine whether an ambiguity exists. (Cit.) If the contract does not require disentanglement of the language by a jury, i.e., the words used are plain and clear in their common usage, it remains the duty of the trial court to look to the language of the contract with a view to effectuating the intent of the parties.’ [Cit.]” Brown, supra.

“In ascertaining the intent of the parties, the court should ascertain the parties’ intent after considering the whole agreement and interpret each of the provisions so as to harmonize with the others. [Cit.] That is ‘(i)n construing contracts, it is important to look to the substantial purpose which must be supposed to have influenced the minds of the parties, rather than at the details of making such purpose effectual.’ [Cit.]” Friedman v. Friedman, 259 Ga. 530, 532 (3) (384 SE2d 641) (1989). See Harris County v. Penton, 211 Ga. App. 498 (439 SE2d 729) (1993).

“ ‘If the intention of the parties as of the time of executing the agreement (is) clear, it should be enforced, even though the parties disagree as to its meaning as of the time of the litigation.’ [Cit.]” (Emphasis supplied.) Johnson v. Raatz, 200 Ga. App. 289, 291 (407 SE2d 489) (1991).

This court takes judicial notice, OCGA § 24-1-4, that, in the standard metropolitan statistical area of metro Atlanta, the 1970 United States Census showed 1,761,492 residents. The 1990 Census reflected a population of 2,833,511. The population of Fulton County alone increased nearly 44,000 in this same period. Obviously, this growth was not a given in 1968 when the lease was made.

Examining the lease as a whole, it is apparent that the then owner desired to have an investor/builder build housing as specified on Tracts A and B which would be in keeping with the general area. Also, Tract C was so restricted until 1988. While, as pointed out by tenant, at the conclusion of the 50-year lease, the improvements revert to the owner, that does not detract from the fact that, until then, the rentals made in this 30-acre area of Buckhead on leases and subleases are for the tenant. Further, the tenant was given carte blanche in the development of Tract D and has enjoyed and will continue to enjoy the income from it.

In return, the landlord agreed to slowly escalating rents of fixed sums for the first 25 years of the lease. Thereafter, the landlord specified a set floor, but no ceiling other than the formula based on the escalation of the value of the property in that period of time. It increased greatly.

Despite the tenant’s efforts to dissect, examine, and engraft paragraphs 7, 15 and 23 to create an argument that only the remaining 25-year estate is to be valued as the “leased land” by the appraisers, neither the court below nor this court is persuaded. Tenant dwells with some intensity on a comma between “lease” and “except” in paragraph 7 to reason that the clause following the comma must refer not only to the immediately preceding clause, “not encumbered by this lease,” but also to “as though there were no improvements on the leased land.”

“ ‘Punctuation is no part of the English language. The Supreme Court says that it “is a most fallible guide by which to interpret a writing.” Ewing v. Burnet, 11 Pet. 41, 54 (9th L. ed. 624). The Century Dictionary tells us, what is common knowledge, that “there is still much uncertainty and arbitrariness in punctuation.” It is always subordinate to the text, and is never allowed to control its meaning. The court will take the contract by its four corners, and determine its meaning from its language, and, having ascertained from the arrangement of its words what its meaning is, will construe it accordingly, without regard to the punctuation marks, or the want of them. The sense of a contract is gathered from its words and their relation to each other, and after that has been done, punctuation may be used to more readily point out the division in the sentences and parts of sentences. But the words control the punctuation marks, and not the punctuation marks the words.’ [Holmes v. Phenix Ins. Co., 98 Fed. 240 (2) (47 L. R. A. 308) (1899)]. It is quite true that the meaning of isolated sentences may be changed most materially by a mere varying of the punctuation; but as each sentence of a contract must be studied in the light of all the others, so must its punctuation be subordinate to the effect of the whole instrument.” (Emphasis supplied.) Bridges v. Home Guano Co., 33 Ga. App. 305, 311 (125 SE 872) (1924) See U3S Corp. v. Parker, 202 Ga. App. 374, 377 (2) (414 SE2d 513) (1991).

Decided March 15, 1994

Reconsideration denied March 29, 1994

Morris, Manning & Martin, Bruce C. Smith, Nicholas N. Sears, William M. Reid, William J. Sheppard, for appellant.

Alston & Bird, G. Conley Ingram, James C. Grant, for appellees.

Also, tenant’s reliance on Trust Co. of Ga. v. S. & W. Cafeteria, 97 Ga. App. 268 (103 SE2d 63) (1958) does not persuade us otherwise. As pointed out in that case, “premises” can be used to refer either to an estate for years or the realty itself, depending upon the intent of the parties. Id. at 281.

3. Assuming without deciding that the admissions made by Grant III and Trust Company are subject to the interpretation given them by tenant, Piedmont Aviation v. Washington, 181 Ga. App. 730, 731 (2) (353 SE2d 847) (1987), this still does not mandate the conclusion that the original drafters’ intent is altered thereby.

Case No. A93A2378

4. The owner/landlord cross-appeals the trial court’s determination that the appraisers were required to determine the value of the leased land “as of the first day of the 25th year,” i.e., June 1, 1992, without considering later sales information.

For the same reasons stated above, this is what the parties agreed and this is the determinative date.

5. We have not considered matters not of record before us, with the exception of census figures judicially noticed, and, therefore, tenant’s motion to strike portions of the brief of owner/landlord is denied.

Judgment affirmed in Case No. A93A2377.

Pope, C. J., and Birdsong, P. J., concur. Judgment affirmed in Case No. A93A2378. Pope, C. J., and Birdsong, P. J., concur.

       Provision was made by the lease for a panel of arbitrators, one each picked by landlord and tenant and the third chosen by these two, to determine the “appraised value of the leased land.”

       Paragraph 15 (d), not at issue here, stated that Tract D, a roughly 1,200-foot by 500-foot rectangle at the corner of Roswell Road and East Andrews Drive, “may be developed by Tenant in any way Tenant desires.”

       This distinction would make the difference in yearly rental between $128,000 and $1.2 million for years 26 through 40.


author: Pope, Chief Judge.

text:
    A93A2550.
    BLACK et al. v. FAYETTE COUNTY.
    (442 SE2d 802)
   Pope, Chief Judge.

Pursuant to the provisions of OCGA § 22-2-100 et seq., Fayette County filed a petition for condemnation on April 30, 1993, seeking temporary and permanent easements across the property of appellants Dorothy Redwine Black, Loyd Hall Black, individually and as trustee of the William Edgar Black Living Trust, and William Edgar Black, individually and as trustee of the Loyd Hall Black, Jr., Living Trust. An order appointing a special master and setting the hearing on the petition for May 19, 1993, was also entered on that date. Dorothy Black was served with the petition on May 6, 1993, Loyd Black was served on May 7, 1993, and William Edgar Black was served on May 10, 1993. William Edgar Black moved to continue the May 19 hearing on the basis that a hearing held on that date would be less than ten days from the date of service of the petition in violation of the time limits set forth in OCGA § 22-2-102. The special master refused to continue the hearing, and subsequently awarded Fayette County the temporary and permanent easements sought in the petition. The condemnees filed written exceptions to the award of the special master and moved to dismiss the petition. The superior court overruled the exceptions to the award of the special master and entered an order adopting the award of the special master granting the temporary and permanent easements to Fayette County. The condemnees appeal from that order.

1. The condemnees contend the trial court erred in overruling their exceptions to the award of the special master because the record shows that the petition for condemnation was not served on the condemnees within the time prescribed by OCGA § 22-2-107 (b). That section provides, in relevant part, for service of the petition “within three days from the date of the order of the judge on the petition.” Fayette County argues, however, that because the condemnees resided outside the county where the property sought to be condemned was located, service of the petition is governed by subsection (c) of OCGA § 22-2-107 instead of subsection (b). We agree. Subsection (c) governs the service of the petition “[i]f any of the condemnees or other persons known to have any rights in the property or interest reside outside the county.” Omitted from that section is the language contained in subsection (b) requiring that service be made within three days from the date of the order on the petition. Consequently, the three-day service requirement did not apply to service of the petition on the condemnees in this case, and the trial court did not err in overruling the exception to the petition on that basis.

2. The condemnees also argue that the trial court erred in overruling their exceptions because the hearing before the special master was not held in accordance with OCGA § 22-2-102 which provides that “[t]he hearing before the special master shall take place not less than ten days nor more than 15 days after the date of service of the order.” The record shows that the hearing was held at the prescribed time as to all but one of the condemnees, who was served with the petition nine days before the hearing. However, the record further shows that all the condemnees were represented by the same attorney, that counsel for the condemnees attended the hearing and moved to dismiss the petition, that following the hearing and the entry of the award of the special master the condemnees filed written exceptions to and a motion to dismiss the award of the special master in the superior court, and that a hearing was held in superior court on the condemnees’ written exceptions and motion to dismiss. The record thus clearly demonstrates that the rights of all the condemnees were adequately protected and represented in this case. Under these circumstances, and while recognizing that this court previously has emphasized the necessity for strict compliance with the provisions governing special masters proceedings, Wrege v. Cobb County, 186 Ga. App. 512 (1) (367 SE2d 817) (1988), we decline to reverse the order of the superior court overruling the exceptions to the award of the special master in this case. Accord Taylor v. Taylor County, 231 Ga. 209 (200 SE2d 887) (1973).

Decided March 9, 1994

Reconsideration denied March 29, 1994

H. Edward Marks, Jr., for appellants.

McNally, Fox & Cameron, Alison A. Bridges, Philip P. Grant, for appellee.

3. Based on the foregoing, we also find without merit the condemnees’ third enumeration of error urging that the order of the trial court be reversed based on the condemnor’s failure to comply strictly with the provisions of OCGA § 22-2-100 et seq. in the particulars set forth above.

Judgment affirmed.

Birdsong, P. J., and Andrews, J., concur.