author: Ellington, Judge.

text:
    A01A1314.
    AXA GLOBAL RISKS v. EMPIRE FIRE & MARINE INSURANCE COMPANY.
    (554 SE2d 755)
   Ellington, Judge.

AXA Global Risks appeals the judgment in favor of Empire Fire & Marine Insurance Company in this insurance coverage declaratory judgment action, contending it provided only excess coverage for the loss. For the reasons which follow, we reverse.

The trial court denied the parties’ cross motions for summary judgment on the basis that material questions of fact remained as to two issues. Using a verdict form with two special interrogatories, the trial court submitted these questions to a jury, then applied its legal analysis to the undisputed and stipulated facts and entered judgment in favor of Empire. When a trial court’s decision is based upon the application of the law to stipulated or undisputed facts, we apply a de novo standard of review. Dept of Revenue v. Sledge, 241 Ga. App. 833 (528 SE2d 260) (2000).

The record shows the following undisputed facts: Clifford Conner owned a 1991 Freightliner tractor and “permanently” leased it to JM Enterprises, Inc. (“JME”), a trucking company. JME employed James Banzhoff as a driver. On May 23,1998, Banzhoff was “bobtailing” the tractor, that is, driving it with no trailer attached, when he was involved in a collision with an automobile. The driver and her unborn child were killed, and another child was injured. The day before the accident, a Friday, Banzhoff completed a run to Florida by returning to JME’s yard in Winder and dropping the empty trailer. A dispatcher told Banzhoff that his next assignment was to pick up a load at the Winder yard and deliver it by the following Tuesday. After spending Friday night in his tractor in the Winder yard, Banzhoff was driving to his residence where he planned to spend Saturday and Sunday nights. At the time of the accident, Banzhoff was off duty for the long weekend. Banzhoff did not own or lease any personal vehicle; his only means of transportation when off duty was the tractor JME leased from Conner.

At the time of the accident, JME had motor carrier liability coverage, or “truckers coverage,” from AXA. JME’s AXA policy provided broad liability coverage for anyone using with JME’s permission any vehicle JME owned, hired, or borrowed. As to primary and excess coverage, JME’s AXA policy provided:

a. This Coverage Form’s Liability Coverage is primary for any covered “auto” while hired or borrowed by you and used exclusively in your business as a “trucker” and pursuant to operating rights granted to you by a public authority. . . .
b. Any Trailer Interchange Coverage provided by this Coverage Form is primary for any covered “auto.”
c. Except as provided in paragraphs a. and b. above, this Coverage Form provides primary insurance for any covered “auto” you own and excess insurance for any covered “auto” you don’t own.

At the time of the accident, Conner had a commercial auto policy from Empire. Conner’s Empire policy provided liability coverage for “non-trucking use” of the tractor and excluded coverage for business use, as follows: “[b]odily injury or property damage while a covered auto is used to carry property in any business or while a covered auto is used in the business of anyone to whom the auto is leased or rented.” (Punctuation omitted.) The Empire policy provided primary insurance for any covered vehicle Conner owned.

AXA and Empire jointly mediated the wrongful death actions resulting from the accident and settled them for $1.5 million. They each agreed to pay $750,000 and to litigate their coverage dispute in Empire’s pending declaratory judgment action. They stipulated that the prevailing party would be reimbursed $250,000 by the other party. In denying the parties’ cross motions for summary judgment, the trial court concluded questions of fact remained regarding whether, at the time of the accident, Banzhoff had JME’s permission to drive the tractor and whether he was acting in the scope of his employment.

In response to the special interrogatories, the jury determined that Banzhoff had “actual or implied permission from [JME] to use this truck in the manner and for the purpose that he was using it at that time” and that Banzhoff “was not acting in the scope of his employment” with JME. Based on the jury’s findings and the undisputed facts, the trial court concluded that JME’s trucking policy with AXA covered the loss because JME leased the vehicle involved and Banzhoff was using it with JME’s permission. The trial court concluded that “what Banzhoff was doing at the time of the accident,” that is, whether he was acting within the scope of his employment, was irrelevant under Nationwide Mut. Ins. Co. v. Holbrooks, 187 Ga. App. 706 (371 SE2d 252) (1988). The trial court interpreted Holbrooks as

extending] the scope of a carrier’s liability beyond that of respondeat superior by declaring that where the employer has knowledge of and places no restrictions on an expressed intent to use a truck in a certain manner, whether or not the use is within the scope of employment, the employer becomes responsible to the public for its statutory employee’s use of the truck under 49 C.F.R. § 376.12 (c).

Based on the jury’s finding that Banzhoff was not acting in the scope of his employment with JME at the time of the accident, AXA contends that the loss did not fall within the business use exclusion of Conner’s “non-trucking use” policy with Empire. Therefore, AXA contends, the Empire policy provided primary coverage, and the AXA coverage was excess.

We agree with the trial court that under federal motor carrier regulations JME, as an interstate motor carrier, has exclusive control of the tractor for the duration of the lease and is legally responsible to the public for its driver’s use of the truck, regardless of whether the use is within the scope of employment. 49 CFR § 376.12 (c); Holbrooks, 187 Ga. App. at 709-710 (1). In Holbrooks, however, the issue of insurance coverage provided by the tractor’s owner was not properly before this Court. 187 Ga. App. at 706. We find no basis to conclude that the interstate motor carrier regulations require that a lessee’s insurance policy provide primary coverage where other coverage is available.

In deciding the issue of which coverage is primary, we must try to ascertain the intention of the parties by looking to the insurance contracts together. “In determining the intention of the parties, we must first take into consideration the ordinary and legal meaning of the words employed in the insurance contract [s]. If the terms of the contract[s] are plain and unambiguous, the contract[s] must be enforced as written, so long as [they are] within the prescribed bounds of the law.” (Citations omitted.) Ryan v. State Farm &c. Ins. Co., 261 Ga. 869, 872 (413 SE2d 705) (1992). “No construction is required or even permissible when the language employed by the parties in the contract [s] is plain, unambiguous and capable of only one reasonable interpretation.” (Citation, punctuation and footnote omitted.) Tucker Materials v. Devito Contracting & Supply, 245 Ga. App. 309, 310 (535 SE2d 858) (2000).

In this case, the relevant provisions of the two policies are unambiguous and consistent. Conner’s commercial auto policy from Empire provided primary coverage for Conner’s tractor but excluded coverage while the tractor was “used in the business of” JME. JME’s trucker’s policy from AXA provided primary coverage for the leased tractor while “used exclusively in [JME’s] business as a ‘trucker’ otherwise, it provided excess coverage for the leased tractor. Applying the plain meaning of the terms, the two policies dovetail: AXA provides primary coverage for the loss if Banzhoff was using the tractor in JME’s business as a “trucker,” while Empire provides primary coverage if Banzhoff was not using the tractor in furtherance of JME’s business.

In assigning primary responsibility to AXA, the trial court in effect equated driving with JME’s permission to use the tractor “in the manner and for the purpose that he was using it at the time” with driving in furtherance of JME’s business. We find no support for the trial court’s conclusion that any use with permission of the lessee is by definition use in the lessee’s business. A driver bobtailing a tractor may be using the tractor in the lessee’s business, as when he is taking the tractor to, or returning from, a repair shop. Wright v. Transus, Inc., 209 Ga. App. 771, 772-773 (1) (434 SE2d 786) (1993). See also Planet Ins. Co. v. Anglo American Ins. Co., 312 N.J. Super. 233, 239-241 (711 A2d 899, 903) (1998). Further, even when a driver bobtailing a tractor is immediately engaged in a personal errand, such as driving to a restaurant to eat, he may be using the tractor in the lessee’s business, as when he has delivered a load to the terminal and is “on call” awaiting his next dispatch, which could come at any time. Wright v. Transus, Inc., 209 Ga. App. at 772-773 (1). See also Guaranty Nat. Ins. Co. v. Vanliner Ins. Co., 1998 U. S. Dist. Lexis 9505 (E.D. Pa.).

Decided September 13, 2001

Claxton & Claxton, James F. Taylor III, for appellant.

Gray, Hedrick & Edenfield, William E. Gray II, for appellee.

On the other hand, logic tells us that a driver may use a tractor, although with the lessee’s permission, for wholly personal reasons, such as driving the tractor for personal transportation after completing one job and before beginning another. Such is the case here. As the jury found, Banzhoff was not acting in the scope of his employment with JME. Banzhoff was not “under dispatch” as that phrase is used in the trucking industry. There were no restrictions on Banzhoff’s activities over the weekend, and his trip home was not part of JME’s regular work pattern or “operational routine.” Cf. Wright v. Transus, Inc., 209 Ga. App. at 772-773 (1). The “essential nature of the trip” was personal; Banzhoff was not engaged in any activity intended to further JME’s commercial interests. Cf. Planet Ins. Co. v. Anglo American Ins. Co., 312 N.J. Super, at 241-242. The original intent of the activity was clearly personal, and the portion of the trip when the accident occurred was completely unrelated to JME’s business. Cf. Wright v. Transus, Inc., 209 Ga. App. at 772-773 (1); Planet Ins. Co. v. Anglo American Ins. Co., 312 N.J. Super. at 239-241.

Under these circumstances, Banzhoff’s personal use of the tractor did not fit the plain terms of the business exclusion in the Empire nontrucking use policy. Therefore, the Empire policy provided primary coverage for the loss. Because JME did not own the tractor and the tractor was not being used exclusively in JME’s business as a trucker, its trucker’s policy with AXA provided only excess coverage for the loss. The trial court erred in granting Empire’s motion for judgment on the verdict.

Judgment reversed.

Johnson, P. J., and Ruffin, J., concur.

       Under federal motor carrier regulations, a motor carrier may perform authorized transportation using equipment it does not own only under certain conditions, including that there is a written lease providing “that the authorized carrier lessee shall have exclusive possession, control, and use of the equipment for the duration of the lease. The lease shall further provide that the authorized carrier lessee shall assume complete responsibility for the operation of the equipment for the duration of the lease.” 49 CFR § 376.12 (c) (1). See 49 CFR § 376.11.

       We do not hold that driving in the scope of one’s employment with the lessee is synonymous with driving in furtherance of the lessee’s business within the terms of a business exclusion like the one in the Empire policy. But the fact that Banzhoff was not driving in the scope of his employment provides some guidance in evaluating whether he was driving in JME’s business. See Connecticut Indem. Co. v. Harris Transport Co., 909 FSupp. 1212, 1222 (7) (W.D. Ark. 1995); Planet Ins. Co. v. Anglo American Ins. Co., 312 N.J. Super, at 239-241.


source: Caselaw Access Project

author: Blackburn, Chief Judge.

license: Public Domain

text:
    A01A1071.
    AUSTIN v. COHEN.
    (554 SE2d 312)
   Blackburn, Chief Judge.

In this action for fraud and conversion, William R. Austin appeals the trial court’s grant of summary judgment to Ronnie Cohen, contending that genuine issues of fact remain regarding a fraudulent investment scheme perpetrated by Cohen. Because Austin failed to carry his burden of proof below and failed to make cogent arguments on appeal, we affirm.

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

(Citation omitted.) Matjoulis v. Integon Gen. Ins. Corp.

Although Austin maintains that summary judgment was improper in this case, he provides no specific argument, no case law and no citations to the record to support his contention, thereby violating Court of Appeals Rule 27 (c) (2). To the contrary, Austin provides only general citations regarding the standard of review in summary judgment cases and then asks this Court to blindly search the' entire record. “ ‘We have repeatedly held that it is not the function o this court to cull the record on behalf of a party.’ ” Chastain v. States. Therefore, due to the absence of any arguments, relevant case law, or citations to the transcript, Austin’s arguments are deemed abandoned. Court of Appeals Rule 27 (c) (2).

As Austin’s vaguely drafted contentions are unsupported, this Court must affirm in any event.

[Here], the enumerations [and brief] do not point to distinct errors of law and do not set forth cogent argument and citation of authorities. See OCGA § 5-6-40; Court of Appeals Rule 27 [(a)] (1), (3). Our requirements as to the form of appellate briefs were created, not to provide an obstacle, but to aid parties in presenting their arguments in a manner most likely to be fully and efficiently comprehended by this Court. While our goal is to directly address the specific issues raised on appeal, where, as in [this] case . . . , the contentions presented are argued generally, we must necessarily answer these questions in a similar fashion.

Decided August 23, 2001

Reconsideration denied September 14, 2001

Arthur J. Shelfer, Jr., for appellant.

T. Mark Thedieck, for appellee.

(Citation and punctuation omitted.) Bennett v. Moody. As a general matter, our review has revealed no competent evidence contained within the record supporting Austin’s claims.

Finally, we note that, in addition to arguing that the trial court improperly granted summary judgment to Cohen, Austin also contends that the trial court erred by vacating an order to compel Cohen to comply with certain discovery requests. Again, Austin provides no cogent argument supporting this claim, and, accordingly, it is also leemed abandoned. Court of Appeals Rule 27 (c) (2). Moreover, Ausin has not appealed the trial court’s order regarding discovery. His otice of appeal indicates that he is appealing only the trial court’s rder granting summary judgment to Cohen. And, once more, even if oistin’s contentions were not abandoned and were presently before his Court, the record does not show any abuse of discretion by the rial court in marshaling the discovery process in this case.

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.

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

        Chastain v. State, 237 Ga. App. 640 (516 SE2d 362) (1999).

        Bennett v. Moody, 225 Ga. App. 95, 96 (483 SE2d 350) (1997).


author: Andrews, Presiding Judge.

text:
    A01A1080.
    GOODWIN v. THE STATE.
    (554 SE2d 317)
   Andrews, Presiding Judge.

Warren Goodwin was found guilty in a bench trial before the City Court of Atlanta of misdemeanor obstruction of a police officer in violation of OCGA § 16-10-24. He claims on appeal that the evidence was insufficient to support his conviction, and that the trial judge erred by refusing to rule on his motion for the court to reconstruct a transcript of the trial from recollection pursuant to OCGA § 5-6-41 (g).

1. The bench trial was not reported, so Goodwin prepared a proposed reconstructed transcript of the trial from his recollection pursuant to OCGA § 5-6-41 (g) and asked the solicitor-general to agree to it. When the solicitor refused, Goodwin filed a motion on September 22, 2000, in the trial court with a proposed transcript attached asking that the trial judge enter an order pursuant to OCGA § 5-6-41 (g) certifying a transcript from the judge’s recollection of the trial or certifying that his proposed transcript was correct. The record further shows that, after filing the September 22 motion, Goodwin filed a notice of appeal on December 1, 2000, directing the trial clerk to transmit the reconstructed transcript while stating that a reconstructed transcript “will be filed for inclusion in the record on appeal.” On the day he filed the notice of appeal, Goodwin sent a second proposed reconstructed transcript to the solicitor. On December 7, 2000, the clerk sent Goodwin a notice stating that no reconstructed transcript had been received for inclusion in the record on appeal, and on December 13, 2000, the solicitor informed Goodwin that he would not agree to the second proposed transcript. Thereafter, the record was transmitted to this Court without any reconstructed transcript prepared pursuant to OCGA § 5-6-41 (g).

Goodwin claims the trial court erred by refusing to rule on his motion for a reconstructed transcript pursuant to OCGA § 5-6-41 (g). In support of this claim, he points only to the absence of a ruling in the record. OCGA § 5-6-41 (g) provides that:

Where a trial is not reported . . . and a transcript of evidence and proceedings is prepared from recollection, the agreement of the parties thereto or their counsel, entered thereon, shall entitle such transcript to be filed as a part of the record in the same manner and with the same binding effect as a transcript filed by the court reporter. ... In case of the inability of the parties to agree as to the correctness of such transcript, the decision of the trial judge thereon shall be final and not subject to review; and, if the trial judge is unable to recall what transpired, the judge shall enter an order stating that fact.

Under this subsection, where the parties cannot agree on a transcript from recollection and the trial judge is requested to decide the issue, the judge is required to either approve a transcript reconstructed by one of the parties, prepare a transcript from the judge’s own recollection, or enter an order stating that he or she is unable to recall what transpired. Boles v. Lee, 270 Ga. 454, 455, n. 4 (511 SE2d 177) (1999). A transcript may be approved in the trial court and made a part of the record on appeal even after the record has been transmitted to the appellate court. OCGA § 5-6-41 (f). We will not, however, presume that the trial judge refused to decide the issue solely on the basis that the record contains no ruling.

Decided August 23, 2001

Reconsideration denied September 14, 2001

Steven W. Reighard, for appellant.

Joseph J. Drolet, Solicitor-General, Kenya M. Kuykendoll, Assistant Solicitor-General, for appellee.

To the contrary, it will be presumed that trial courts perform their required duties unless shown otherwise. Gunter v. State, 243 Ga. 651, 654 (256 SE2d 341) (1979). Simply pointing to the absence of a ruling in the record does not carry the burden of showing that the trial judge refused to rule on a reconstructed transcript. There is nothing in the record showing that the trial judge refused to rule or that the alleged refusal was ever raised as an issue in the trial court. Accordingly, we find no merit to this enumeration.

2. There being no transcript of the trial, we are bound to assume that Goodwin’s conviction was supported by sufficient evidence. Vaughan v. Buice, 253 Ga. 540 (322 SE2d 282) (1984).

Judgment affirmed.

Eldridge and Miller, JJ., concur.


author: Miller, Judge.

text:
    A01A1235.
    CROWN ANDERSEN, INC. et al. v. GEORGIA GULF CORPORATION.
    (554 SE2d 518)
   Miller, Judge.

The trial court granted summary judgment to defendant on plaintiffs’ claim for slander per se. The first question on appeal is whether the trial court’s findings in an earlier order denying summary judgment to plaintiffs precluded the court from granting defendant’s later motion for summary judgment. We hold that the initial findings did not preclude the subsequent judgment. The second question is whether statements about the failure of a particular boiler (purchased by defendant and installed by plaintiffs) to perform properly can constitute slander per se under OCGA § 51-5-4 (a) (3). As we hold they cannot, we affirm the grant of summary judgment to defendant.

Andersen 2000, Inc. installed a waste boiler for Georgia Gulf Corporation, with which both Andersen 2000 and Georgia Gulf were dissatisfied. Andersen 2000 sued the boiler manufacturer in Louisiana for damages, and in turn Georgia Gulf sued Andersen 2000, also in Louisiana, for damages. A reporter for a business magazine telephoned Georgia Gulf for information for an article on Crown Andersen, Inc., the parent company of Andersen 2000, and inquired about the Georgia Gulf lawsuit. A spokesman for Georgia Gulf told the reporter, “What we are claiming is [the boiler] never performed up to the specifications listed. It doesn’t entirely combust the material.”

When these statements were published in the business magazine, Crown Andersen and Andersen 2000 sued Georgia Gulf in the State of Georgia for slander per se. Plaintiffs moved for partial summary judgment on liability, which the court denied. Georgia Gulf then moved for summary judgment, arguing for the first time that the statements pertained only to a single instance or transaction and thus could not constitute slander per se under OCGA § 51-5-4 (a) (3). The court agreed and granted Georgia Gulf summary judgment, which plaintiffs appeal.

1. Plaintiffs first argue that in denying their earlier motion for summary judgment, the court found that the statements were slander per se, and that this finding precluded the court from reaching a different conclusion when ruling on Georgia Gulf’s motion for summary judgment. Plaintiffs argue further that Georgia Gulfs decision not to raise the “single instance” argument when opposing plaintiffs’ motion for summary judgment precluded Georgia Gulf from using the argument in its later motion for summary judgment. Both of plaintiffs’ arguments are without merit.

(a) In support of their earlier motion for partial summary judgment, plaintiffs argued that Georgia Gulf was liable as a matter of law in that the statements indisputably were slander per se under OCGA § 51-5-4 (a) (3). Palombi v. Frito-Lay, Inc. held that under OCGA § 51-5-4 (a) (3), slander per se is a false statement against the plaintiff in reference to his trade, office, or profession, calculated to injure him therein.

In opposing summary judgment, Georgia Gulf chose not to argue the “single instance” test, but instead decided to simplify its argument by focusing on the evidence showing a dispute as to whether the statements were false. In its order on the motion, the court noted that although the statements had a negative connotation to the average reader, the disputed evidence regarding the statements’ truth or falsity precluded summary judgment to plaintiffs.

Although plaintiffs obviously lost this motion, they argue that the order granted them partial summary judgment “by finding the statements in question to be slanderous per se. . . .” Specifically, plaintiffs interpret the court’s opinion that the statements were negative as a binding legal conclusion in their favor that the statements were slanderous per se. The trial court, however, expressly told the parties that such was not the intent of its order. Indeed, in a later order on a related issue, the trial court noted as background that “Plaintiffs’] Motion for summary judgment on slander was denied because the Court found genuine issues of material fact on whether Defendant’s statements constituted slander.”

We agree with the trial court’s interpretation of its own order. Although the trial court referred to the statements as having a negative connotation to the average reader, it did not conclude that the statements were false, were a charge against plaintiffs in reference to their trade, and were calculated to injure plaintiffs in that trade. Thus, the court did not find the statements to be slander per se. Rather, finding disputed issues of fact as to the statements’ falsity, the trial court went no further and simply denied plaintiffs’ motion for partial summary judgment. Plaintiffs’ efforts to read more into the order, especially in light of the court’s own comments on its order, are unavailing.

(b) Citing Summer-Minter & Assoc. v. Giordano, plaintiffs argue that Georgia Gulfs failure to raise the “single instance” test in opposing their motion for partial summary judgment waived its right to argue the issue in its subsequent motion for summary judgment. Plaintiffs misinterpret Summer-Minter. In that case, after the appellate court ordered that summary judgment be granted to defendants, plaintiffs sought to amend their complaint to recast their cause of action. The Supreme Court of Georgia held that this was too late, as plaintiffs had the obligation to present their case in full in opposing the summary judgment motion or run the risk of an adjudication against them.

Under this rationale, if the court here had granted plaintiffs’ motion and entered partial summary judgment that Georgia Gulf was hable as a matter of law, then in an appeal of that order, we would not have considered arguments on liability not argued by Georgia Gulf below. Here, however, we have just the opposite. Georgia Gulf did not lose the plaintiffs’ motion for summary judgment; rather it won. The court denied plaintiffs’ motion; it did not grant the motion. Denying a motion for summary judgment decides nothing except that under the evidence before the court at that time, judgment was not appropriate on a summary basis. Although Georgia Gulf ran the risk of adverse final adjudication by not raising all of its arguments, its strategic decision to utilize only one of the arrows in its quiver did not preclude it from having other arrows available for later use, where the chosen arrow fatally wounded plaintiffs’ motion.

Thus, we hold that neither the court’s findings in its order denying plaintiffs’ motion for summary judgment nor Georgia Gulf’s decision to argue only the truth of the statements at issue precluded the court from granting summary judgment based on the later-argued “single instance” test.

2. Plaintiffs’ second enumeration challenges the court’s legal conclusion that under the “single instance” test, summary judgment was appropriate here. We agree with the trial court and affirm.

Under Holder Constr. Co. v. Ed Smith & Sons, Inc., slander per se under OCGA § 51-5-4 (a) (3) is not shown where the statements at issue pertain only to a single instance. “[L]anguage imputing to a business or professional man ignorance or mistake on a single occasion and not accusing him of general ignorance or lack of skill is not actionable per se.” This is because “a charge that plaintiff in a single instance was guilty of a mistake, impropriety or other unprofessional conduct does not imply that he is generally unfit.”* Thus, the letter in Holder Constr. Co. accusing plaintiff of failing to inquire into the hazards of blasting in a particular area (leading to a damaged water line) could not constitute libel per se, for it imputed mere negligence to plaintiff as to a single transaction and was therefore insufficient to impute gross negligence or unskillfulness generally in the trade.

Here we have a similar charge. Georgia Gulfs statements about its particular boiler failing to meet specifications and failing to entirely combust the material pertain to a single piece of equipment installed by plaintiffs and thus are a comment about a single instance or transaction that does not impute gross negligence or unskillfulness or reflect generally on plaintiffs’ skill in the trade. We hold the trial court did not err in granting summary judgment on this ground.

Judgment affirmed.

Andrews, P. J., and Eldridge, J., concur.

Decided August 24, 2001

Reconsideration denied September 14, 2001

Decker & Hallman, Richard P. Decker, David H. Woodham, Jr., for appellants.

Morris, Manning & Martin, Donald A. Loft, Robert P. Alpert, for appellee.

       See Holder Constr. Co. v. Ed Smith & Sons, Inc., 124 Ga. App. 89, 90-92 (2) (182 SE2d 919) (1971).

       241 Ga. App. 154, 155 (1) (526 SE2d 375) (1999).

       Cf. Holder Constr. Co., supra, 124 Ga. App. at 91 (2).

       Even if the trial court’s order could be interpreted as holding the statements to be slander per se, that would not have precluded the court during the pendency of the case from later changing its mind. Since an order denying summary judgment is interlocutory, the court in a later order had the power to reach a different conclusion and to hold the statements were not slander per se. See Wade v. Whalen, 232 Ga. App. 765, 769 (3) (504 SE2d 456) (1998); see generally OCGA § 9-11-60 (h).

       231 Ga. 601 (203 SE2d 173) (1974).

       Id. at 602.

       Id. at 604-606.

        Ellington v. Tolar Constr. Co., 142 Ga. App. 218, 221 (1) (235 SE2d 729) (1977).

       Supra, 124 Ga. App. at 91 (2).

       Id.

       (Citations and punctuation omitted.) Id.

       Id. at 92 (2).


text:
    A01A1391.
    In the Interest of S. H., a child.
    (553 SE2d 849)
   Ellington, Judge.

Appellant appeals from the Gwinnett County Juvenile Court’s denial of his petition to legitimate five-year-old S. H. and from the termination of his parental rights. Appellant contends the evidence was insufficient to support the juvenile court’s order and, further, that the court erred in finding his relatives were not suitable placements for the child. We affirm the denial of appellant’s legitimation petition, the termination of his parental rights, and the determination that placement with appellant’s mother is not in the best interest of S. H. We reverse the juvenile court’s determination as to the suitability of placement with appellant’s father. We remand for further proceedings consistent with this opinion.

1. Appellant argues that there was insufficient clear and convincing evidence to support the denial of his legitimation petition and the termination of his parental rights. We find no error in the juvenile court’s decision. “The standard of review of a juvenile court’s decision to terminate parental rights is whether after reviewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found, by clear and convincing evidence that the natural parent’s rights to custody have been lost.” (Citations and punctuation omitted.) In the Interest of E. C., 225 Ga. App. 12, 13-14 (482 SE2d 522) (1997).

The record shows that appellant is the putative father of S. H., who was bom in May 1996 when appellant was 16 years old. Appellant lived in Pennsylvania and stayed briefly with the mother of S. H. during her pregnancy. Appellant left before the child was bom. Although appellant purchased some baby items and gifts for the child, he failed to pay medical costs and other expenses for S. H. or her mother. Appellant never paid child support and did not legitimate the child. In 1997, the child’s mother moved to Georgia, and the infant lived with appellant in Pennsylvania for a brief period. The mother returned for the baby in October or November 1997, and appellant has not had contact with S. H. since then.

Shortly thereafter, in January 1998, appellant was tried and convicted of aggravated assault. He was sentenced to 20 years imprisonment and testified that he will remain incarcerated until at least 2009. Since being imprisoned, appellant has not paid child support, written letters or called S. H., or otherwise developed and maintained a parental relationship with the child in any manner.

In August 1998, the Georgia Department of Family & Children Services (“DFACS”) removed S. H. and her three half-siblings from her mother’s home based upon allegations that the children were living in a hotel room in unsanitary and unhealthy conditions. The children were placed in the custody of DFACS. After the mother failed to comply with the DFACS plan for reunification, the agency filed a petition to terminate the parental rights of the mother, appellant, and the putative fathers of the three half-siblings on May 9, 2000. Appellant was personally served on June 5, 2000. After a hearing on December 3, 2000, in which appellant testified via conference call, the juvenile court terminated appellant’s parental rights. The court found that termination was in S. H.’s best interest based on several factors, including appellant’s inability to care for S. H. due to his present and future incarceration, his failure to contact or develop and maintain a relationship with the child, and the child’s need for a secure and stable home.

(a) Under OCGA § 15-11-96 (h), a petition to terminate parental rights must notify a biological father who is not the legal father that he must file, within 30 days of receipt of notice, a petition to legitimate his child. See also OCGA § 19-7-22. If the father fails to file a legitimation petition within 30 days, “he loses all rights to the child and will not be entitled to object to the termination of his [parental] rights.” OCGA § 15-11-96 (h); In the Interest of S. L. H., 247 Ga. App. 594 (544 SE2d 518) (2001). If no legitimation petition is timely filed, or if it is denied or dismissed, the trial court shall enter an order terminating the father’s rights. OCGA § 15-11-96 (i).

In this case, the May 2000 termination petition notified appellant that he had 30 days to file a petition to legitimate S. H. or he would lose his right to object to the termination of his rights. See OCGA § 19-7-22. On June 27, 2000, appellant petitioned the juvenile court, asking for appointed counsel and objecting to the termination of his parental rights. The juvenile court appointed counsel to represent appellant on August 24, 2000. Counsel filed appellant’s petition to legitimate S. H. three months later, on November 29, 2000, just one week before the December 5, 2000 termination hearing. Accordingly, appellant’s failure to timely file a legitimation petition left him without standing to challenge the termination of his parental rights. In the Interest of S. L. H., 247 Ga. App. at 595. There was no error.

(b) Even if the legitimation petition had been timely filed, however, there was sufficient clear and convincing evidence to support both the denial of his legitimation petition and the termination of his parental rights.

Under OCGA § 15-11-94 (a) (formerly OCGA § 15-11-81), the considerations for terminating parental rights involve a two-step process. In the Interest of E. C., 225 Ga. App. at 14. The trial court must first determine “whether there is present clear and convincing evidence of parental misconduct or inability.” OCGA § 15-11-94 (a). Such misconduct or inability may be proved by showing (1) the child is deprived; (2) such deprivation is caused by the lack of proper parental care or control by the parent in question; (3) the deprivation is likely to continue; and (4) the “continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child.” OCGA § 15-11-94 (b) (4) (A) (i)-(iv). Further, in determining whether there is a lack of “proper parental care and control,” the court may consider several factors, including the “[c]onviction of the parent of a felony and imprisonment therefor which has a demonstrable negative effect on the quality of the parent-child relationship,” as well as “[p]hysical, mental, or emotional neglect of the child.” OCGA § 15-11-94 (b) (4) (B) (iii), (v). If the child is not in the custody of the parent in question, the lack of proper parental care and control can be demonstrated by showing that the parent, without justifiable cause, failed for a period of one year prior to the filing of the termination petition to “develop and maintain a parental bond with the child in a meaningful, supportive manner” or to support the child financially. OCGA § 15-11-94 (b) (4) (C) (i)-(ii). Once the trial court establishes a lack of parental care and control, the second part of the test for determining whether parental rights should be terminated is whether such termination “is in the best interest of the child, after considering the physical, mental, emotional, and moral condition and needs of the child who is the subject of the proceeding, including the need for a secure and stable home.” OCGA § 15-11-94 (a).

In this case, while appellant concedes that S. H. is deprived, he contends that he is not responsible for. the deprivation and, moreover, that he could remedy the deprivation. See OCGA § 15-11-94 (b) (4) (A) (i)-(iii). However, the evidence presented shows otherwise. Appellant has not had any contact with S. H. since 1997, when the child was an infant. He provided no significant financial support to the child or her mother. He did not attempt to assert or protect his “parental rights” to the child until January 2000. Although there has been some correspondence about his intention to assert his parental rights since that time, this effort has simply been too little too late. Appellant’s sudden interest in parenting his five-year-old daughter stands in sharp contrast to his past actions. “The past conduct of the parent is properly considered by the court in determining whether such conditions of deprivation are likely to continue. The decision as to a child’s future must rest on more than positive promises which are contrary to negative past fact.” (Citation and punctuation omitted.) In the Interest of K. W., 233 Ga. App. 140, 143 (2) (503 SE2d 394) (1998).

Appellant, however, argues that his incarceration “handicapped” his ability to contact and support his child, preventing him from maintaining even a superficial relationship with the child. That being so, it is unclear how appellant will be able to develop a bona fide parental relationship and provide the necessary parental care for S. H. when, by his own admission, he will be incarcerated until at least 2009. At that time, S. H. will be 13 years old. While incarceration alone does not compel the termination of parental rights, it will support termination when aggravating circumstances are present. In the Interest of R. M., 232 Ga. App. 727, 728 (503 SE2d 635) (1998). In this case, the difficulties created by appellant’s incarceration for a violent crime, coupled with his failure to support S. H. financially and to maintain contact with her, clearly contributed to her present deprivation and had a “demonstrable negative effect on the quality of the parent-child relationship.” OCGA § 15-11-94 (b) (4) (A) (ii), (B) (iii). See also In the Interest of C. T., 247 Ga. App. 522, 524 (1) (544 SE2d 203) (2001). Further, the incarceration will continue to contribute to the child’s deprivation in the future. OCGA § 15-11-94 (b) (4) (A) (iii).

We find that the juvenile court did not abuse its discretion in denying appellant’s legitimation petition. Further, there was sufficient clear and convincing evidence to support the juvenile court’s termination of his parental rights.

2. Appellant complains that the juvenile court erred in finding that there are no relatives with whom the child could be placed. Under OCGA § 15-11-103 (a) (1),

[i]f, upon the entering of an order terminating the parental rights of a parent, there is no parent having parental rights, the court shall first attempt to place the child with a person related to the child by blood or marriage or with a member of the child’s extended family. A thorough search for a suitable family member shall be made by the court and the Department of Human Resources in attempting to effect this placement. A placement effected under this paragraph shall be conditioned upon the family member who is given permanent custody or who is granted an adoption of the child agreeing to abide by the terms and conditions of the order of the court. A placement shall be made under the terms of this paragraph only if such a placement is in the best interest of the child.

(Emphasis supplied.) A trial court’s determination that placement with a relative is not in the best interest of the child will not be disturbed by this Court absent an abuse of discretion. See In the Interest of B. R. W., 242 Ga. App. 232, 240-241 (3) (530 SE2d 5) (2000).

(a) The record shows that Pennsylvania authorities investigated appellant’s mother for possible placement of the child. The authorities found the mother would not be a suitable placement because she failed to cooperate with the agency’s investigation. Appellant’s mother was also behind in her rent and had other people living in her home who would not cooperate with the investigation. Having reviewed the hearing testimony, we find the juvenile court did not abuse its discretion in determining that placement of S. H. with appellant’s mother was not in her best interest.

(b) On the other hand, the juvenile court’s determination is premature as to appellant’s father, who has expressed an interest in caring for S. H. In the Interest of N B., 239 Ga. App. 336, 339-340 (2) (521 SE2d 47) (1999). DFACS suspended its evaluation of appellant’s father because appellant had not yet legitimated S. H. There is no proof that appellant is the biological father of S. H. or, by logical extension, that appellant’s father is a “blood relative” of S. H.

Even so, pursuant to OCGA § 15-11-103 (a) (1), the juvenile court and DFACS are charged with undergoing a thorough search for a suitable family member. See id. Under the circumstances, if it can be established that appellant’s father is, in fact, a “blood relative” to S. H., he must be investigated and considered as a possible placement for S. H. In so holding, we do not express any belief that S. H. must or should be placed with appellant’s father.

Judgment affirmed in part, reversed in part and case remanded with direction.

Johnson, P. J., and Ruffin, J., concur.

Decided August 13, 2001

Reconsideration dismissed September 14, 2001.

Debra W. Hale, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen S. Nelson, Laura W. Hyman, Assistant Attorneys General, John L. Welsh II, for appellee.

       Appellant has never had a blood test to confirm his paternity.

       The juvenile court terminated the parental rights of the other parties in a separate proceeding, and they are not a party to this appeal.

       Two prior appointed counsel had to withdraw from the case due to conflicts of interest.


author: Eldridge, Judge.

text:
    A01A1912.
    SHEPHERD CENTER et al. v. WILLIAMS.
    (553 SE2d 872)
   Eldridge, Judge.

Anthony S. Williams filed a claim with the State Board of Workers’ Compensation against Shepherd Center and its servicing agent, Georgia Hospital Association c/o Allied Claims Administration, Inc. (“Allied”), after Williams suffered a back injury on the job. An administrative law judge (“ALJ”) denied Williams’ claim based on Shepherd Center’s successful assertion of the three-prong Rycroft defense, alleging that Williams knowingly and deliberately answered falsely on his job application when asked if he had ever had a back injury. The appellate division of the State Board of Workers’ Compensation adopted the ALJ’s determination.

The Superior Court of Fulton County reversed, finding that Shepherd Center failed to demonstrate the second prong of the Rycroft defense, i.e., that Shepherd Center’s reliance on Williams’ false answer was a “substantial factor” in hiring him. We granted Shepherd Center’s application for discretionary review in order to consider the scope of the second prong of the Rycroft defense. For the reasons that follow, we reverse the order of the superior court.

Williams began suffering back pain in 1986 as a result of his constant use of an electric drill pursuant to his employment with the Angus-Stewart Company. He was diagnosed as having “degenerative changes and bulges at L3-4 and L5-S1 with a central herniation at L4-5.” Williams was out of work for over two years and received total disability benefits. The record contains testimony that Williams sustained minimal physical impairment, but he was advised not to do work that required heavy lifting. He ultimately settled his workers’ compensation claim for $30,000 and two years of open medical treatment.

When Williams returned to the work force, he held down several jobs that required heavy lifting, including a job delivering hospital beds and wheelchairs for Peachtree Medical. In 1997, he interviewed for employment with Georgia Wheelchair, a subsidiary of Shepherd Center, as a delivery technician to home-deliver hospital beds, wheelchairs, walkers, etc. The job application signed by Williams stated that “[a]s a condition of employment, a medical history and examination will be completed. I understand that the results of the medical history and examination must be appropriate for the position for which I am applying.” Following the interview, he was hired by Georgia Wheelchair.

After being hired but before beginning work, Williams filled out a medical history. In it, he was asked if he had ever sustained a back injury. Williams answered no. He also answered in the negative when asked if he had “ever received compensation for any injury or liability.” Williams then underwent a routine employment medical examination that revealed nothing unusual. He began employment and, one month later, tripped on a set of brick stairs while delivering a hospital bed to a patient’s home. Williams hurt his back, missed two days of work, and then returned to the same job; however, he continued to experience back pain.

Seven months later, Williams saw a job posting for a position in the bio-medical department as a technician responsible for the maintenance of the hospital’s equipment, another physically demanding position. He requested a transfer to the bio-medical job and received such in October 1997. A year later, on November 30, 1998, while answering a maintenance call, Williams stepped out of an elevator at the Center and fell one and one-half feet because the elevator threshold had improperly seated higher than the floor level. Williams sustained a back injury, which an MRI confirmed was “degenerative disc disease at L3-4 and L4-5 along with a disc bulge at L5-S1.” He returned to light-duty work at Shepherd Center as he sought medical treatment, including surgery. Williams made a claim for workers’ compensation benefits in order to defray medical costs.

Pursuant to the workers’ compensation claim, Shepherd Center’s third-party administrator, Allied, did a medical background check on Williams and discovered his previous back injury. Allied informed Shepherd Center of such. Williams was terminated because the Center “realized he had lied on his application process and his preemployment physical and that is grounds for immediate termination.” The Director of Human Resources at Shepherd Center

went over with [Williams] that he lied on his ap — his preemployment physical and the reason why that — the impact that had on Shepherd. The fact that we could not reasonably accommodate him and we were not given the opportunity to reasonably accommodate him. And that we were not able to apply for a subsequent injury trust fund because of his — because he did not let us know.

Williams filed the instant suit seeking workers’ compensation benefits. Shepherd Center asserted the three-prong Rycroft defense, which required the Center to show: (1) the employee knowingly and wilfully made a false representation as to his physical condition; (2) the employer relied upon the false representation and this reliance was a substantial factor in the hiring; and (3) there was a causal connection between the condition falsely represented and the current injury. As to the second, “substantial factor” prong of such defense, the Director of Human Resources at the Shepherd Center testified that, if Williams had been candid about his previous back injury,

[i]t would have been investigated by employee health. They would have been — He would have been forwarded on to another step in the medical process. He would have had a — I can’t remember what they call it. It’s a clinical term where he would actually be talking to a doctor and the doctor would do this test. . . . And based on that decision by that doctor, we would have done one of two things — actually one of three things. Rescinded the offer altogether and sent him on his way; offered him opportunity to apply for other positions if they were available; or three, determine what parts of his job he was not able to do and look to reasonably accommodating them. Are there other people in the department that could do that part of the job for him? If it was a major part of his job, we could not have reasonably accommodated him. And I think in this case we would not have been able to have somebody else do the job for him with the lifting. He certainly wouldn’t have been carrying beds upstairs. ... I’d have to go with the doctor’s decision.

The ALJ found that such evidence established that Williams’ false answer was a substantial factor in hiring him and denied benefits. On appeal, however, the Superior Court of Fulton County found — from the same evidence — that Shepherd Center failed to show as a matter of law that reliance on Williams’ false answer was a substantial factor in hiring him. The superior court reversed the ALJ and awarded Williams benefits. Held:

Only the second prong of the Rycroft defense is in dispute here. The superior court concluded from the evidence that a truthful answer would have only engendered further medical inquiry. Depending on the result of that further inquiry, Williams might very well have been hired anyway, regardless of his prior back injury; Shepherd Center “would have to go with the doctor’s decision.” The superior court concluded as a matter of law that Shepherd Center failed to prove Williams would not have been hired if he had answered truthfully; that if Williams would have been hired after admitting his prior back injury, then denying his prior back injury was not a “substantial factor” in the employment decision. This reading of the second prong of Rycroft demonstrates an “all or nothing” approach: either Williams would have been hired based on his false answer or he would not. Under this approach, absent an affirmative showing that Williams would not have been hired had he been candid about his previous back injury, the second prong of Rycroft cannot be met.

However, this Court has previously declined to read Rycroft’s second prong in such a narrow, “formulaic” fashion. For employers that are sensitive to the requirements of the Americans with Disabilities Act (“ADA”), a truthful answer about a prior physical condition will not and should not result in an “all or nothing” determination which precludes employment completely based on the answer. Further medical evaluation of a prior disability is consistent with the ADA and with a sound public policy that deters discrimination in employment based on physical disability, unless the demands of a specific job require it. In Caldwell v. Aarlin/Holcombe Armature Co., our Supreme Court determined that the Rycroft defense does not conflict with the ADA and that Rycroft can be read to be in harmony with the ADA. Thus, an admission on an employment application of a prior physical condition which results in further medical evaluation of the condition and a hiring recommendation based thereon makes the admission, itself, a “substantial factor” in the hiring process, regardless of the ultimate employment decision.

Decided August 20, 2001

Reconsideration denied September 14, 2001

Task J. Van Dora, for appellants.

Norman S. Epstein, for appellee.

In this case, there was testimony that further medical evaluation would definitely have been performed if Williams had been honest about his back condition, and a hiring decision would have been based on such further evaluation. Whether Williams would or would not have been hired following the further evaluation cannot be known. Moreover, in light of the third prong of the Rycroft defense, i.e., a causal connection between the prior, undisclosed condition and the current injury, we feel the “but for” implications of the second prong are satisfied without an affirmative, after-the-fact determination that the additional medical evaluation prevented by the employee’s false answer would unquestionably have resulted in a nonhire.

A truthful answer on Williams’ medical history would have been a substantial factor in Shepherd Center’s employment determination because the truth would have prompted the commission of additional medical evaluations and the hiring decision would have been founded on same. It follows, then, that Williams’ misrepresentation on his medical history was a substantial factor in Shepherd Center’s employment determination because the misrepresentation prompted the omission of additional medical evaluations and the hiring decision was founded on such omission. The second prong of the Rycroft defense was met under the evidence in this case.

Judgment reversed.

Andrews, P. J., and Miller, J., concur.

       See Ga. Elec. Co. v. Rycroft, 259 Ga. 155 (378 SE2d 111) (1989).

         Rycroft, supra at 158.

       As to Rycroft’s first and third prongs, it is undisputed that Williams answered falsely on his medical history as to his prior back injury. Also, there is medical testimony in the record that Williams’ fall from the elevator aggravated his pre-existing degenerative disc condition that had been diagnosed in 1986, thereby providing evidence of a causal connection between Williams’ pre-existing physical condition about which he made the false representation and the injury for which benefits were claimed. See Gordon County Farm v. Cope, 212 Ga. A.pp. 812, 813 (442 SE2d 896) (1994).

       While specific findings of fact were not made a part of the superior court’s order, the reasoning utilized may be implied both by Williams’ arguments before the Court in this regard and by the trial court’s subsequent determination that the evidence demanded reversal “as a matter of law,” i.e., the fact at issue was conclusively shown by plain, palpable, and undisputed evidence capable of only one result. Ogletree v. Navistar Intl. Transp. Corp., 271 Ga. 644, 646 (522 SE2d 467) (1999).

        Fort Howard Corp. v. Devoe, 212 Ga. App. 602, 604 (442 SE2d 474) (1994).

       42 USCA § 12101 et seq.

       267 Ga. 613, 614-615 (481 SE2d 196) (1997).

       We reject Williams’ contention that, if Shepherd Center’s orthopedic specialist, Dr. Herndon Murray, had been made aware of Williams’ prior back injury, he “would have allowed the Appellee to try the position.” In fact, Dr. Murray testified that “he [Williams] may be more likely to hurt himself than someone who’s not had back problems. Again, I was not aware of what back problems he’s had before that. I’m still not aware.” Williams has a tough row to hoe in arguing that he would have been hired based on a nonexistent medical examination of an undisclosed back injury.

        Fort Howard Corp. v. Devoe, supra at 604.


text:
    A01A2241.
    MOORE v. STATE OF GEORGIA.
    (554 SE2d 574)
   Ellington, Judge.

Keith Barry Moore appeals from a default judgment in a forfeiture action under OCGA § 16-16-2. The forfeiture petition was filed in the Douglas County Superior Court on April 5, 2001, and Moore was personally served the next day. Moore’s answer was file stamped by the trial court on Monday, May 7, 2001, 31 days after service. The State requested a default judgment, which the trial court granted. See OCGA § 9-11-55 (a). Because the trial court erred in determining the answer was untimely filed, we reverse the default judgment.

1. Under OCGA § 1-3-1 (d) (3), “when a period of time measured in days ... is prescribed for the exercise of any privilege or the discharge of any duty, ... if the last day falls on Saturday or Sunday, the party having such privilege or duty shall have through the following Monday to exercise the privilege or to discharge the duty.” See also Jewell v. State, 200 Ga. App. 203, 204 (2) (407 SE2d 763) (1991). OCGA § 9-11-6 (a) provides that, “[i]n computing any period of time prescribed or allowed by this chapter, by the rules of any court, by order of court, or by an applicable statute, the computation rules prescribed in paragraph (3) of subsection (d) of Code Section 1-3-1 shall be used.”

In this case, Moore’s answer was due on Sunday, May 6, 2001, 30 days after service. OCGA § 9-11-12 (a). Pursuant to OCGA § 1-3-1 (d) (3), however, Moore had through Monday, May 7, 2001, to file his answer. Since Moore’s answer was, in fact, timely filed on May 7, 2001, the trial court erred in entering a default judgment. This case is remanded for further proceedings consistent with this opinion.

2. The State argues, however, that the trial court properly granted default judgment because Moore’s answer was legally insufficient, contending that he failed to comply with the special pleading requirements of OCGA § 16-16-2 (d). The State did not raise these contentions in the trial court, and therefore, they are not properly before this Court on appeal. See State of Ga. v. Carter, 244 Ga. App. 560, 561 (536 SE2d 230) (2000). Upon remand, however, if the State files a motion to strike Moore’s answer as insufficient, Moore retains the opportunity to file an amended answer that fully complies with the verification and pleading requirements of OCGA § 16-16-2 (d). See OCGA § 9-11-15 (a); Rojas v. State of Ga., 269 Ga. 121, 122-123 (2) (498 SE2d 735) (1998) (allowing amendments to answers in OCGA § 16-13-49 forfeiture actions); cf. Jones v. State of Ga., 241 Ga. App. 768, 769 (2) (527 SE2d 611) (2000) (trial court properly dismissed complaint that failed to comply with statutory pleading requirements under OCGA § 16-13-49).

3. Further, the State contends that it is entitled to a default judgment because Moore has no standing to contest the forfeiture. In his answer, Moore stated that he transferred title on the truck to his sister for “future monies.” On appeal, the State argues that Moore failed to prove that he legitimately transferred his interest in the truck to his sister, while simultaneously contending that if Moore, in fact, sold the truck to his sister, he lacks an ownership interest in it which strips him of standing to contest the forfeiture. Again, the State did not raise these arguments below, but the trial court may address them on remand. We note, however, that if the trial court finds Moore’s sister has a legally cognizable interest in the truck, the State must serve her with the forfeiture petition and give her an opportunity to respond in order to protect that interest. OCGA § 16-16-2 (d).

Decided August 31, 2001

Reconsideration denied September 14, 2001.

Keith B. Moore, pro se.

David McDade, District Attorney, William H. McClain, Assistant District Attorney, for appellee.

Judgment reversed.

Johnson, P. J., and Ruffin, J., concur.


text:
    A01A1206.
    WEISER et al. v. WERT et al.
    (554 SE2d 762)
   Eldridge, Judge.

This case raises the issue of first impression of whether the voluntary dismissal of a Chapter 13 wage-earners plan not amended to schedule a medical malpractice claim arising after filing is sufficient to avoid judicial estoppel. The trial court denied the defendants’ motion for summary judgment on this ground, and we affirm.

In May 1998, Shawn Wert underwent abdominal surgery and was treated by Drs. Edward B. Weiser and William A. Godfrey and FPA/Meridian Medical Group, P.C.; plaintiff contends that the defendants committed professional malpractice subsequent to the initial surgery, causing further hospitalization on June 9, 1998.

On July 16, 1999, the plaintiff and her husband, Michael Wert, sued the defendants for medical malpractice. But, on April 23, 1997, plaintiffs filed a Chapter 13 wage-earners petition in the bankruptcy court. On June 11, 1997, the bankruptcy court confirmed the wage-earners plan. After the potential malpractice claim arose in June 1998, plaintiffs did not amend the pending bankruptcy petition and reopen the proceedings to schedule the potential tort claim as an additional asset. However, instead on September 27, 1999, two months after they filed suit, the plaintiffs voluntarily dismissed their wage-earners plan in bankruptcy court, abandoning all protection from creditor action rather than amend their Chapter 13 wage-earners plan to show the malpractice action. On February 3, 2000, defendants filed their motion for summary judgment on the grounds of judicial estoppel from such failure to amend and to schedule this pending suit. On June 12, 2000, the trial court denied the motion and granted a certificate of immediate review.

The defendants contend that the

trial court erred when it denied Appellants’ Motions for Summary Judgment based on the doctrine of judicial estoppel because (a) Appellees successfully took the inconsistent and irreconcilable position in the Bankruptcy Court that they had no claim against Appellants, and (b) they further, to this day, have made no efforts to correct their errors by seeking to reopen the bankruptcy case.

We do not agree and affirm.

The doctrine of judicial estoppel has justification under Georgia law only to preserve and to protect the integrity of the judicial system from intentional manipulation by a litigant taking inconsistent positions in different courts in order to gain an unfair advantage. Southmark Corp. v. Trotter, Smith & Jacobs, 212 Ga. App. 454, 455 (442 SE2d 265) (1994). Such doctrine is not to protect the defendants as a shield from liability on the merits. Id. This was not a Chapter 7 bankruptcy action that required all potential claims and assets vested at the time of filing to be scheduled in the original petition. Id. However, it was a Chapter 13 wage-earners plan, requiring the filing of all assets possessed at the time of filing and an amendment of a pending plan to schedule a potential claim subsequently arising to the filing of the action, because the wage-earners plan continued under the jurisdiction of the bankruptcy court protection from creditor action. See Jowers v. Arthur, 245 Ga. App. 68 (537 SE2d 200) (2000) (physical precedent only); Smalls v. Walker, 243 Ga. App. 453, 456-457 (2) (532 SE2d 420) (2000); Wolfork v. Tackett, 241 Ga. App. 633 (526 SE2d 436) (1999) (whole court); Byrd v. JRC Towne Lake, 225 Ga. App. 506, 507-508 (484 SE2d 309) (1997).

In this case, there was no misleading the bankruptcy court by “successfully [taking] the inconsistent and irreconcilable position in the Bankruptcy Court that they had no claim against [defendants,]” because no such assertion was made, and, to the extent that such claim subsequently vested, the bankruptcy petition for Chapter 13 was voluntarily abandoned to avoid such possibility of an inconsistent position. The voluntary dismissal of the Chapter 13 plan terminated the bankruptcy estate and restored the property to the plaintiffs, subjecting such assets to any creditor action. See generally Wolfork v. Tackett, supra at 634. Therefore, there existed no need to amend to set forth this claim, because plaintiffs abandoned bankruptcy protection to avoid any inconsistent position with this pending action. It is true that an amendment of the wage-earners plan would have achieved the same result. See Jowers v. Arthur, supra.

Where the bankruptcy petition has been amended to schedule an omitted potential claim, then any inconsistent position between the bankruptcy petition and the lawsuit has been eliminated, because there no longer exists inconsistent positions upon which the plaintiff could theoretically gain an unfair advantage. See Jowers v. Arthur, supra at 69-70; Smalls v. Walker, supra at 456 (2); Clark v. Perino, 235 Ga. App. 444, 446 (1) (509 SE2d 707) (1998); Johnson v. Trust Co. Bank, 223 Ga. App. 650 (478 SE2d 629) (1996).

This case is analogous to Jowers v. Arthur, where the plaintiff voluntarily dismissed a Chapter 13 petition after confirmation of the wage-earner plan, because a personal injury claim that arose prior to the bankruptcy had not been scheduled; Jowers refiled the Chapter 13 petition after scheduling the potential claim. In this case, plaintiffs’ potential medical malpractice claim arose over a year after the wage-earners plan had been filed and confirmed, and plaintiffs voluntarily dismissed the Chapter 13 petition without refiling it, unlike Jowers v. Arthur. Voluntary dismissal and not refiling, as here, and refiling to correctly show a potential claim after voluntary dismissal, as in Jowers v. Arthur, both equally and effectively eliminated any inconsistency between a pending bankruptcy action and the malpractice suit in no way affecting adversely the interests of the creditors; thus, judicial estoppel has no application. Id. See also Clark v. Perino, supra at 446.

Judicial estoppel applies when there existed the intent to gain an unfair advantage and there continues to exist an inconsistent position, conferring such advantage in either .the bankruptcy court, the state action, or both, requiring judicial estoppel to prevent injustice from occurring. See Southmark Corp. v. Trotter, Smith & Jacobs, supra at 455.

Further, as a matter of Georgia public policy, physicians and surgeons have not been shielded from their professional malpractice by defenses other than those arising from malpractice jurisprudence. We cannot apply the doctrine of judicial estoppel to bar the plaintiffs’ cause of action where the plaintiffs have clearly taken action to avoid any inconsistent position. To apply the doctrine where the plaintiffs have corrected inconsistent positions would serve only to shield the defendants from professional malpractice without a rational basis. Southmark Corp. v. Trotter, Smith & Jacobs, supra at 455.

Decided September 14, 2001.

Weinberg, Wheeler, Hudgins, Gunn & Dial, John K. Train IV, Adriane C. Yelton, Webb, Carlock, Copeland, Semler & Stair, Dennis G. Lovell, Jr., Amy H. Ferguson, for appellants.

Loewenthal & Jackson, Glenn A. Loewenthal, for appellees.

Judgment affirmed.

Miller, J., concurs. Andrews, P. J., concurs in judgment only.

        Keenan v. Plouffe, 267 Ga. 791, 793-795 (2) (482 SE2d 253) (1997) (no official immunity for employee-physician); Davis v. Stover, 258 Ga. 156, 157 (366 SE2d 670) (1988) (no workers’ compensation immunity for employee-physician); Cutts v. Fulton-DeKalb Hosp. Auth., 192 Ga. App. 517, 519 (3) (385 SE2d 436) (1989) (no charitable immunity for physician); Jackson v. Miller, 176 Ga. App. 220, 221 (1) (335 SE2d 438) (1985) (no official immunity for employee-physician).


text:
    A01A1246.
    BROWN v. THE STATE.
    (554 SE2d 760)
   Blackburn, Chief Judge.

Natasha Renee Brown appeals the trial court’s denial of her plea in bar of procedural double jeopardy, claiming that her payment of a fine for a seat belt violation prevents the State from pursuing additional charges arising from a 1998 car accident. “ ‘The appellate standard of review of a grant (or denial) of a double jeopardy plea in bar is whether, after reviewing the trial court’s oral and written rulings as a whole, the trial court’s findings support its conclusion.’ ” Wilson v. State.*

The facts show that on July 17, 1998, Brown was involved in a car accident that resulted in the death of her nine-year-old nephew. The police cited Brown for failing to secure a minor, requiring her to appear on August 20, 1998, at a hearing in the traffic division of Clayton County State Court. This hearing date was continued by agreement of counsel because the State was investigating the possibility of bringing additional charges in connection with the crash.

On July 23, 1998, the prosecutor’s office informed the clerk’s office not to accept payment on Brown’s traffic violation because the case might involve a charge of vehicular homicide. An employee of the clerk’s office attached a note to the uniform traffic citation so indicating. On September 16, 1998, Brown’s traffic citation was transferred by the clerk to the solicitor-general’s office.

In June 1999, the clerk’s office sent Brown a demand letter in connection with the court’s effort to collect unpaid fines. However, this letter was sent in error. As part of its collection efforts, the clerk’s office used a computer search to generate a report of cases where fines were owed. The clerk generated and sent form demand letters to the persons on the report, including Brown. However, the computer software program utilized to formulate the report had search parameters that allowed for the inclusion of individuals, such as Brown, who had other charges under investigation and had not missed their court dates. On June 8, 1999, Brown mailed a $15 money order to the court in response to the letter.

Upon receipt of the money order, the clerk accepted the payment and issued a receipt. An employee of the clerk’s office temporarily coded Brown’s case as a “delinquent suspended sentence” so that the computer system would accept the payment. When the clerk’s office discovered that payment had been made erroneously, it designated the funds as a cash bond and updated the computer records to prevent the cash bond from being automatically forfeited. The funds were not forfeited and remain in the court’s registry.

On July 6, 1999, the prosecutor filed an accusation charging Brown with improper lane change, safe operation of a vehicle required, and second degree vehicular homicide. Brown filed a plea in bar, contending that any further prosecution would be in violation of OCGA § 16-1-7 (b), which provides, in pertinent part, “[i]f the several crimes arising from the same conduct are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution.”

After an evidentiary hearing, the trial court denied Brown’s plea in bar, concluding that the State’s case could proceed because there had been no final disposition of the seat belt charge. This appeal followed.

OCGA § 16-1-7 (b) “prevents successive prosecutions for crimes (1) axising from the same conduct, (2) known to the proper prosecuting officer, and (3) subject to jurisdiction in the same court.” Wilson, supra at 456. Here, the issue to be resolved is whether it can be said that there were successive prosecutions. Brown claims that the first “prosecution” involved her payment of $15 to the clerk. We disagree.

In Collins v. State , this Court affirmed the trial court’s denial of a defendant’s plea in bar of a DUI charge based upon the prior payment of a fine for a speeding ticket. There, prior to trial, the defendant sought to dispose of the speeding ticket by paying a fine to the court clerk. Id. at 758. The clerk accepted the fine and issued a receipt. Id. Defendant then filed a plea in bar to the DUI charge, citing OCGA § 16-1-7 (b). The trial court denied the plea, ruling that, because the defendant had not entered a plea on the speeding charge before a judicial officer, there had been no final disposition of that charge. Id. We affirmed: “[N]o prosecuting officer was involved in the appellant’s payment of the fine on the speeding charge, nor did that act result in the entry of any dispositional order by any judicial officer.” Id. at 758 (1). Consequently, we held that the defendant “[had] not been subjected to any former ‘prosecution’ within the meaning of OCGA [§] 16-1-7 (b).” Id.

Here, Brown mailed a $15 money order to the court clerk to dispose of a seat belt violation. The clerk accepted the payment and issued a receipt. Brown filed a plea in bar to the additional charges, citing OCGA § 16-1-7 (b). As was the case in Collins, here, Brown did not enter a plea in connection with her payment. Likewise, a prosecuting officer was not involved in the payment of the fine. Indeed, neither the court nor the solicitor’s office was informed of the collection efforts or that the demand letters were sent in error. Furthermore, the prosecutor informed the clerk’s office not to accept payment in this case because of the possibility of additional charges.

Finally, similar to Collins, Brown’s payment did not result in the entry of a dispositional order by any judicial officer. In fact, after the clerk designated Brown’s payment as a cash bond, it took steps to prevent its forfeiture and the entry of a dispositional order. The forfeiture of a cash bond may result in the final disposition of a case, but only where the court enters a judgment ordering the case disposed of and settled. See OCGA § 17-6-8; Collins, supra at 758 (1). “If the court does not enter a judgment ordering the case disposed of and settled, the forfeiture of the cash bond shall not be a bar to subsequent prosecution of the person charged with the violation of such laws.” OCGA § 17-6-8. Under the present facts, we hold that Brown was not subject to any former “prosecution” within the meaning of OCGA § 16-1-7 (b).

The cases cited by Brown are distinguishable. In each case, there was a former disposition of the traffic offense which barred additional prosecutions arising from the same conduct. In In the Interest of J. B. W., the defendant, after receiving a letter from the clerk (similar to the one received by Brown), appeared at the juvenile court with his father, entered a plea, and paid the fines, formally disposing of the charges and barring subsequent prosecution. In State v. Kennedy, the defendant paid a traffic citation which was signed by the solicitor of the court, the bond was forfeited in open court, and the trial judge entered an order approving of the forfeiture and disposing of the case. Finally, in Weaver v. State, the defendant’s plea of nolo contendere to a speeding charge, followed by the trial court’s sentencing, barred additional prosecutions for DUI and endangering a child. In each of these cases, unlike the case at bar, there were successive prosecutions. See OCGA § 16-1-7.

Decided September 14, 2001.

Michael M. Hawkins, for appellant.

Keith C. Martin, Solicitor-General, for appellee.

We hold that the trial court’s findings support its conclusion to deny Brown’s plea in bar. Brown tendered the money order due to a clerical error which resulted in a mistaken request to pay a fine. This clerical error occurred without the knowledge or approval of the court or the prosecutor’s office. Brown’s payment was held as a cash bond, and the clerk took steps to prevent its forfeiture because there were additional charges connected with the citation. Under the facts of this case, Brown was not subject to a former “prosecution” by virtue of her paying the fine for a seat belt violation. Accordingly, the State’s subsequent prosecution is not barred by OCGA § 16-1-7.

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.

        Wilson v. State, 229 Ga. App. 455 (494 SE2d 267) (1997).

       The demand letter informed Brown that she had failed to pay a fine before a scheduled January 1, 1999 hearing date. The letter provided that further failure to pay could result in arrest, garnishment, or the suspension of Brown’s driver’s license. Brown had not missed a court appearance.

       Cash bonds are forfeited the last day of each month by virtue of a general court order.

        Collins v. State, 177 Ga. App. 758 (341 SE2d 288) (1986).

       We note that Brown pled not guilty when she later waived arraignment on the seat belt charge.

        In the Interest of J. B. W., 230 Ga. App. 673, 674 (497 SE2d 1) (1998).

        State v. Kennedy, 216 Ga. App. 405 (454 SE2d 600) (1995).

        Weaver v. State, 224 Ga. App. 243, 244 (480 SE2d 286) (1997).


author: Phipps, Judge.

text:
    A01A0842.
    MINTAH et al. v. ARMS.
    (555 SE2d 466)
   Phipps, Judge.

Louise and Emanuel Mintah sued Dawn Arms for injuries allegedly sustained in an automobile collision. A jury found in Arms’s favor, and judgment was entered accordingly. On appeal, the Mintahs assert that the trial court erred by (1) improperly beginning the trial in Arms’s absence, (2) allowing Arms’s counsel to use a diagram during Arms’s testimony, (3) refusing to admit certain evidence, and (4) giving an improper jury instruction. Finding no error, we affirm.

1. The Mintahs claim that the trial court erred by beginning the trial before Arms arrived. When the jurors had been sworn and Arms had not yet arrived, Arms’s attorney suggested that they proceed without her. No one objected. The trial court explained to the jury that they would begin without Arms to avoid delay. This did not constitute error, and the Mintahs were not harmed.

2. The Mintahs argue that the trial court should not have allowed Arms’s counsel to use a diagram of the scene of the collision to assist Arms during her testimony. Not only did the Mintahs fail to object to use of the diagram at trial, their trial counsel used it while cross-examining Arms. It is not error to permit a witness to use a diagram not introduced into evidence as an aid to explain the relative locations of various objects, as a means of “pictorial communication,” absent an objection that it contains material not included in the witness’s testimony or is otherwise erroneous or prejudicial.

3. The Mintahs claim that the trial court improperly excluded certain evidence.

(a) Evidence of Arms’s insurance coverage was excluded. “In an ordinary negligence case, not only is a liability insurance policy of a litigant not admissible in evidence, but disclosure to the jury of the mere existence of such contract is ground for a mistrial. This principle is operative not only with reference to liability insurance but also with regard to no fault coverage.”

(b) The accident report was excluded. Accident reports filed with the Department of Motor Vehicle Safety shall not be referred to or admitted as evidence in any civil damages trial.

(c) Arms’s citations and convictions for following too closely and driving without a license were excluded.

This court has consistently held inadmissible evidence of any traffic court initiation or disposition of a case against the parties to a collision unless the party has entered a guilty plea in traffic court, thereby admitting liability. Even an adjudication of guilt by a traffic court that the defendant was in violation of a law alleged to be the proximate cause of the plaintiff’s injuries is inadmissible as irrelevant and immaterial [because] the defendant does not make any admission of guilt under this circumstance.

Decided August 27, 2001

Reconsideration denied September 17, 2001.

Louise C. Mintah, pro se.

Emanuel Mintah, pro se.

Crim & Bassler, Joseph M. Murphey, for appellee.

Arms pled not guilty to both offenses. As a result, the documents were properly excluded.

4. The Mintahs claim that the trial court erred by instructing the jury that Arms claimed that Louise Mintah performed an illegal lane change and by reading a portion of the statute regarding changing lanes. Because the Mintahs did not object to this portion of the charge or reserve objections after the entire charge was given, they waived their right to challenge the charge on appeal.

Notwithstanding the Mintahs’ failure to object, we will consider and review erroneous charges if there has been a substantial error that was harmful as a matter of law. We find no such error here. A jury charge is authorized if there is some evidence from which jurors can conduct a legitimate process of reasoning with respect to the charge. Arms testified that Mintah changed lanes suddenly and stopped in front of her, leaving her no room to stop safely. The evidence was sufficient to justify the charge given.

5. Arms has requested that we consider imposing a frivolous appeal penalty against the Mintahs for pursuing this appeal. We have considered the request, which is hereby denied.

Judgment affirmed.

Smith, P. J., and Barnes, J., concur.

       Emanuel Mintah was not involved in the collision but asserted a claim for loss of consortium.

        Long v. Serritt, 102 Ga. App. 550, 551 (1) (117 SE2d 216) (1960).

       Arms claims that the evidence was excluded in limine, but the record does not reflect any pretrial evidentiary ruling by the court. Because the evidence was not offered at trial, we assume that it was excluded in limine and that the pretrial proceedings were not transcribed.

       (Citations and punctuation omitted.) Cincinnati Ins. Co. v. Reybitz, 205 Ga. App. 174, 176 (1) (421 SE2d 767) (1992).

       OCGA § 40-9-41; see also Brown v. State, 274 Ga. 31, 32 (1) (549 SE2d 107) (2001) (narrative portion of a police report is not admissible under the business records exception to the hearsay rule, nor is other evidence that requires the reporting officer to make a conclusion or express an opinion).

       (Citations and punctuation omitted.) Waszczak v. City of Warner Robins, 221 Ga. App. 528 (1) (471 SE2d 572) (1996).

       OCGA § 40-6-123.

       OCGA § 5-5-24 (a); T.G.&Y. Stores Co. v. Waters, 175 Ga. App. 884, 886 (2) (334 SE2d 910) (1985).

       OCGA § 5-5-24 (c).

        Ike v. Kroger Co., 248 Ga. App. 531, 534 (4) (546 SE2d 903) (2001); T.G.&Y. Stores Co., supra.


author: Smith, Presiding Judge.

text:
    A01A1285.
    AVANS v. THE STATE.
    (554 SE2d 766)
   Smith, Presiding Judge.

Gary C. Avans II appeals his conviction for DUI after a jury trial and the denial of his motion for new trial. In his sole enumeration of error, he contends his trial counsel was ineffective in failing to engage in plea bargaining with the State and in failing to advise him of the probable outcome of the trial. We find no reversible error, and we affirm.

To establish ineffectiveness, a defendant must prove that trial counsel’s performance was deficient and but for the deficiency a reasonable probability existed that the result of the trial would have been different. An error by counsel, even if professionally unreasonable, does not warrant reversal of a criminal conviction if it had no effect on the judgment.

(Citations omitted.) Mathis v. State, 238 Ga. App. 218, 221-222 (6) (517 SE2d 578) (1999). In this case, Avans has shown neither that his trial counsel was deficient nor that the outcome of the trial would have been different but for counsel's alleged errors.

Avans relies upon Muff v. State, 210 Ga. App. 309 (436 SE2d 47) (1993), in support of his argument that counsel’s failure to engage in plea negotiations with the State was reversible error. But Muff, as well as Lloyd v. State, 258 Ga. 645 (373 SE2d 1) (1988), on which it relied, addressed circumstances in which a plea offer was actually made by the State. In Lloyd, the Supreme Court held that failure to communicate a plea offer to the defendant and advise the defendant of the consequences of his or her choices amounts to “less than reasonably professional assistance.” (Footnote omitted.) Id. at 648 (2) (a). When “there is at least an inference from the evidence that the defendant would have accepted” a plea offer made by the State “or something similar,” prejudice is shown, and failure of counsel to advise the defendant of such an offer constitutes ineffective assistance of counsel. (Footnote omitted.) Id. at 648 (2) (b). Because no inference existed that the defendant in Lloyd would have accepted a plea offer, the Supreme Court found that trial counsel was “reasonably effective.” Id. at 648-649. In Muff, a plea offer was also extended by the State. This court was called upon to consider whether trial counsel’s failure to advise the defendant of the consequences of rejecting the plea constituted ineffective assistance of counsel. We did not reach this issue, however, because no hearing on this issue had been held in the trial court. We therefore remanded the case for an evidentiary hearing. Id. at 311.

This case is distinguished from both Muff and Lloyd. Here, the record does not show that a plea offer was ever made by the State. Avans’s trial counsel was not called to testify at the hearing on the motion for new trial. Instead, Avans argues that his trial counsel was ineffective for not pursuing such an offer in the face of the overwhelming evidence against him and in failing to advise him of the probable outcome of the trial. Avans has cited no case, and we have found none, in which failure to initiate plea negotiations was deemed deficient professional conduct.

Moreover, even assuming these failures on counsel’s part were deficient, Avans has not shown that he would have accepted a plea offer had he been presented with one. In a similar situation, this court held in Mathis, supra at 222, that when the record is silent as to whether the defendant would have accepted a plea offer if offered, the requirement that he show that counsel’s deficiency affected the result is not satisfied.

Finally, the evidence against Avans was very strong. Avans was observed weaving on Interstate 59 in Dade County about 10:00 p.m. by a sheriff’s deputy who was transporting a prisoner. The officer also noted that Avans drove so far across the “fog line” on the roadway that the officer thought he had struck a guardrail. He could not stop Avans because of his prisoner, so he requested another officer to make the stop. The officer who made the stop testified that as he approached Avans, Avans rolled down his window, and the officer smelled “a strong smell of alcoholic beverage.” Avans admitted having three or four beers that day, and although he was “very calm and cooperative,” he failed two out of three field sobriety tests. Avans was placed under arrest and advised of his implied consent rights. He agreed to take a breath test, and the readings on two Intoxylizer 5000 tests administered at the Dade County Sheriff’s Department were 0.157 and 0.149, both substantially over the legal blood alcohol level.

Avans testified in his own behalf, admitting he had been drinking with friends at a bowling alley after work. He did not remember weaving or almost hitting the guardrail, but said he could have been “messing with” his radio. He testified he did not have the tolerance his friends had for alcohol, blaming it on his Cherokee Indian ancestry, but he admitted driving after consuming three or four beers. At sentencing, the State introduced evidence that Avans had three prior convictions for driving under the influence. In light of this evidence, it is unlikely that a plea offer could have been negotiated that would have changed the outcome. Even the trial court noted at the hearing on Avans’s motion for new trial that both trial counsel and Avans were aware that this was Avans’s “fourth DUI. I mean, there just comes a point in time when all you’ve got is presumption of innocence and burden of proof and [counsel] knew it and [Avans] knew it and they went to trial with that and lost.” Knowing this, the trial court did not err in denying Avans’s motion for new trial on the ground that Avans’s counsel was ineffective.

Decided September 17, 2001.

John R. Emmett, for appellant.

Herbert E. Franklin, Jr., District Attorney, Elizabeth O. Evans, Assistant District Attorney, for appellee.

Judgment affirmed.

Barnes and Phipps, JJ., concur.


text:
    A01A1512.
    CHANG v. BANK OF AMERICA.
    (554 SE2d 765)
   Miller, Judge.

In March 2000, plaintiff brought a Georgia Racketeer Influenced & Corrupt Organizations (RICO) Act action and other claims against defendant arising out of actions taken in the summer of 1995. The court dismissed all claims on the ground that the applicable statutes of limitation had run. The question on appeal is whether the court erred in dismissing the RICO claim, pursuant to a five-year statute of limitation. We find the trial court committed error in dismissing the claim and therefore reverse that part of the order.

Vincent Chang hired David Beal to complete certain improvements to his home. Bank of America, which provided Chang a loan for the improvements, was to disburse the loan proceeds to Beal when the project was complete. On August 3, 1995, the bank disbursed to Beal $37,000 of the $38,000 loan. Beal failed to complete the project, and the work that was done was substandard. On March 10, 2000, Chang filed a complaint against the bank, alleging fraud, conversion, and violation of Georgia’s RICO Act. Chang did not effect service on the bank until July 17, 2000.

Arguing the applicable statutes of limitation had run, the bank filed a motion to dismiss all counts in Chang’s complaint, which motion the trial court granted. On appeal Chang challenges only the dismissal of his RICO claim.

Georgia RICO actions “may be commenced up until five years after the conduct. . . terminates or the cause of action accrues.” We have interpreted this to mean “when the plaintiff discovers, or reasonably should have discovered, that he has been injured and that [the] injury is part of a pattern.”

Decided September 17, 2001.

Jeffrey L. Sakas, for appellant.

Parker, Hudson, Rainer & Dobbs, Erika C. Birg, William J. Holley II, for appellee.

In this case Chang’s alleged cause of action accrued, at the earliest, in August 1995 when the bank deposited $37,000 into Beal’s account even though no disbursements were to be made until the project was completed. Although Chang and Beal entered into the contract in July 1995, at that time Chang had not discovered nor should have discovered any injury. Chang’s filing of the complaint in March 2000 and service in July 2000 were both within five years of when the alleged action accrued in August 1995. Therefore, Chang’s RICO claim was improperly dismissed on statute of limitation grounds. As the dismissal of the other claims is not challenged, we affirm the remainder of the order.

Judgment affirmed in part and reversed in part.

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

       Chang apparently also joined another suit arising out of these facts, but that suit is not relevant to our decision.

       See OCGA § 16-14-1 et seq.

       OCGA § 16-14-8.

       (Punctuation omitted.) Cobb County v. Jones Group, 218 Ga. App. 149, 154 (8) (460 SE2d 516) (1995), citing Blalock v. Anneewakee, Inc., 206 Ga. App. 676, 678 (1) (426 SE2d 165) (1992).


author: Johnson, Presiding Judge.

text:
    A01A2036.
    JACKSON v. THE STATE.
    (554 SE2d 768)
   Johnson, Presiding Judge.

Following a bench trial, Tyrus Trenton Jackson was convicted of three counts of aggravated assault, one count of giving a false name, and one count of giving a false date of birth. He appeals, arguing the evidence was insufficient to support his convictions for aggravated assault, the trial court erred in not accepting his guilty plea, and the trial court erred in allowing hearsay evidence. Because each of these enumerations of error lacks merit, we affirm Jackson’s convictions.

1. On appeal, the evidence must be viewed in the light most favorable to support the verdict, and Jackson no longer enjoys the presumption of innocence; moreover, the appellate court merely determines evidence sufficiency and does not weigh the evidence or determine witness credibility.* As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the state’s case, the verdict will be upheld.

Viewed in this light, the record shows that the victims, Marvin Sparks, Ledarian Craig, Kendrell Bryant, and Tristen Fairley, went to a bowling alley. Jackson and his girlfriend were at the same bowling alley. Jackson and the victims exchanged looks (referred to as “mugging”), but no words. It is undisputed that the victims never approached Jackson or made any type of gesture toward Jackson.

As the victims attempted to leave the bowling alley, Jackson ran toward them with a loaded gun. Jackson pointed his gun at Fairley as he ran past him. He trapped Sparks and Bryant in the entranceway, pointed the gun at them, and waved the gun around. Jackson called the victims “young punks” and told them, “y’all don’t want none of this.” He also said, “what /all need to mug me for?” Sparks testified that he was fearful that he would be shot because of Jackson’s actions.

As Jackson was leaving the bowling alley, he fired his gun into the air three times. He admitted he was angry and that he shot his gun out of anger. Jackson claims he only had the gun at his side during the confrontation with the victims and that he did not point the gun at any of the victims.

A person commits the offense of aggravated assault when he uses a deadly weapon to commit an act which places another in reasonable apprehension of immediately receiving a violent injury. Whether a victim has been placed in reasonable apprehension of injury is a question of fact, which may be established by indirect or circumstantial evidence. Intent to injure is not an element of aggravated assault with a deadly weapon.

The evidence showed that Jackson pointed his gun at Sparks, Bryant, and Fairley. Although only Sparks testified that he was fearful he would be shot, the factfinder properly found evidence as to Bryant’s and Fairley’s state of mind. Sparks’ testimony that he was fearful, coupled with testimony that Jackson pointed the gun at each of the victims, was sufficient for a factfinder to find that all three victims had a reasonable apprehension of immediately receiving a violent injury. Further, the presence of a deadly weapon “would normally place a victim in reasonable apprehension of being injured violently.” Jackson’s remaining contentions go to the credibility of the witnesses, which was an issue for the factfinder and not for us to decide on appeal. The evidence was sufficient under Jackson v. Virginia for a reasonable trier of fact to find Jackson guilty beyond a reasonable doubt of aggravated assault on all three victims.

Decided September 17, 2001.

2. Jackson contends the trial court erred in refusing to accept his November 15,1999 guilty plea. However, it is within the discretion of the trial court to accept or reject a guilty plea. A defendant is not entitled to have a guilty plea entered as a matter of right.

Here, the trial court asked Jackson whether he believed a jury would find him guilty based on the state’s evidence, and Jackson responded, “no, sir.” Based on this response, the trial court refused to accept his guilty plea under North Carolina v. Alford.* Because the record reveals Jackson’s ambivalence concerning his plea, we find the trial court did not abuse its discretion in refusing to accept his guilty plea.

Moreover, the record further reveals that Jackson was given the opportunity two days later to enter an Alford plea and receive first offender status before his trial began. However, he declined the plef offer and elected to go forward with the bench trial. This enumeration of error lacks merit. ’

3. Jackson asserts the trial court committed reversible erro, when it allowed Craig to testify as to what Fairley said to him aboifJackson pointing his gun at Fairley. We disagree. -

The record shows that Fairley testified at trial that Jackso' pointed the gun at him. During his questioning of Craig, Jackson counsel elicited testimony that Craig was standing next to Fairle, and did not see Jackson point the gun at Fairley. This line of questioning put Fairley’s veracity into issue. Thus, the trial court did not err in permitting the state to question Craig about Fairley’s previous consistent statement to him that Jackson had pointed the gun at Fairley. Moreover, we presume that a trial court in a bench trial considers only admissible evidence. We find no error.

Judgment affirmed.

Ruffin and Ellington, JJ., concur.

Schoolcraft & Watkins, Stanley W. Schoolcraft III, for appellant.

Robert E. Keller, District Attorney, Jay M. Jackson, Assistant District Attorney, for appellee.

        Durrance v. State, 250 Ga. App. 185 (2) (549 SE2d 406) (2001).

       Id.

       OCGA §§ 16-5-20; 16-5-21.

       See In the Interest of K. D. J., 246 Ga. App. 500, 503 (4) (540 SE2d 682) (2000); Williams v. State, 208 Ga. App. 12, 13 (430 SE2d 157) (1993).

       Id.

        Cockrell v. State, 248 Ga. App. 359, 361 (1) (b) (545 SE2d 600) (2001).

        State v. Bolman, 222 Ga. App. 534, 535 (474 SE2d 721) (1996).

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        Mims v. State, 201 Ga. App. 277, 278 (1) (410 SE2d 824) (1991), overruled on other grounds, Hooten v. State, 212 Ga. App. 770, 775 (1) (442 SE2d 836) (1994).

        Harris v. State, 175 Ga. App. 134, 135 (332 SE2d 685) (1985).

       400 U. S. 25 (91 SC 160, 27 LE2d 162) (1970).

        See Bowen v. State, 191 Ga. App. 760 (382 SE2d 694) (1989).

       See Cuzzort v. State, 254 Ga. 745 (334 SE2d 661) (1985).

         Corsini v. State, 238 Ga. App. 383, 385 (2) (519 SE2d 39) (1999).