author: Beasley, Judge.

text:
    73330.
    PARRISH v. THE STATE.
    (355 SE2d 682)
   Beasley, Judge.

Parrish owned isolated property in Gilmer County. The sheriff received information from citizens concerning marijuana and obtained a search warrant, which he and a deputy went to execute. Because of the property’s location, they had to walk up a trail to reach it. Defendant, seeing the officers, went behind a lean-to and reappeared with a 30/30 Marlin lever action rifle and pointed it at the officers, who were both in uniform with badges displayed. When advised about the warrant defendant directed that it be left on the ground and stated that Wells, the name on the warrant, was not his name. (It is his middle name.) Although asked to put the rifle down, defendant refused and threatened the officers with harm if they came closer. He had his thumb over the hammer and the gun cocked and pointed at the sheriff, who was approximately eight feet away. The officers left to get additional help. They had observed twelve marijuana plants, each about five feet tall, growing on the premises. They advised defendant not to destroy the plants and that they would be back. Defendant told the officers they had better have plenty of help. When they returned with other officers, defendant surrendered but the plants had been pulled up and only some leaves were found. The rifle was not recovered.

Defendant was charged with two counts of aggravated assault (OCGA § 16-5-21), and one count each of obstruction of officers (OCGA § 16-10-24), possession of marijuana (OCGA § 16-13-30), and tampering with evidence (OCGA § 16-10-94). He was convicted of two counts of simple assault and the remaining charges. As a special condition of probation, which was to be six years following four years’ imprisonment, defendant was banished from the Appalachian Judicial Circuit during his probation and parole.

1. Denial of the motion for new trial on the general grounds, enumerated as error, is not supported with citation of authority or argument. It is thus deemed abandoned. Rule 15 (c) (2); Exley v. State, 180 Ga. App. 821, 823 (2) (350 SE2d 829) (1986).

2. The banishment from Pickens, Gilmer, and Fannin Counties (Appalachian Judicial Circuit) as a condition of probation is enumerated as error on the ground that it does not comport with the test for imposing banishment as set out in State v. Collett, 232 Ga. 668 (208 SE2d 472) (1974). The reason, defendant claims, is that he had shown the court that he owned property in Gilmer County and had behaved for the nearly year and a half he had been out on bond after arrest and up to the date of sentencing. The Supreme Court in Collett determined that limited banishment was not illegal per se and that defendant must show that it “is unreasonable or otherwise fails to bear a logical relationship to the rehabilitative scheme of the sentence . . .” Id. at 671.

Considering the broad boundaries of the sentencing court’s discretion, as did the court in Collett, we find no abuse. Wilson v. State, 151 Ga. App. 501, 504 (8) (260 SE2d 527) (1979); Parkerson v. State, 156 Ga. App. 440 (274 SE2d 799) (1980); Edwards v. State, 173 Ga. App. 589, 590 (1) (327 SE2d 559) (1985).

In explaining the banishment provision, the court expressed its fear that, based on the propensities exhibited by defendant at the occasion on trial, the risk of violence after release from incarceration called for defendant’s absence from the circuit despite defendant’s good behavior while awaiting case disposition. The court took cognizance of defendant’s urging that he owned property in the circuit. It appears from the record that the banishment was prompted by a rational concern for the safety of others in the community and for defendant’s own safety. No abuse is shown which requires our interference.

3. Defendant specifies twelve instances of what he urges is the court’s interjecting itself into the trial in violation of OCGA § 17-8-57 (formerly OCGA § 17-8-55). Eight of them were not objected to by the defendant at the time and thus were not preserved for our consideration on appeal. Thomas v. State, 158 Ga. App. 97, 98 (2) (279 SE2d 335) (1981); Barber v. State, 176 Ga. App. 103, 104 (2) (335 SE2d 594) (1985). They will not be considered for the first time at this stage. Brantley v. State, 177 Ga. App. 13, 14 (1) (338 SE2d 694) (1985); Thurman v. State, 172 Ga. App. 16, 17 (2) (321 SE2d 780) (1984).

The remaining instances of alleged intervention (other than the motion for mistrial which is addressed in Division 4) did not amount to an expression or intimation of opinion by the court as to the guilt of the accused in any way and thus did not contravene OCGA § 17-8-57. In fact, the remaining instances reflect rulings or comments in defendant’s favor. The comment, complained of by defendant as a reference to a “trivial objection” was made by the court in response to an objection by the state and did not prejudice defendant.

4. Defendant moved for a mistrial based on what he categorized as an unresponsive answer of the sheriff when asked by the district attorney what he saw, in relation to the growing marijuana plants, when he returned to the premises the second time. The second basis for the mistrial was the court’s rephrasing of the question in this regard. Taken together, defendant considers this segment of the trial to be a violation of OCGA § 17-8-57. The answer referred to by defendant included the conclusion of the witness that the holes he saw where the marijuana plants had been were caused by defendant’s extracting the plants during the officers’ absence. The court, in attempting to get at what was being driven towards, asked what the witness saw and whether he saw anyone other than defendant at or around the location.

Out of the presence of the jury, the court admonished the witness to describe only what he saw. The court’s explanation, in response to the motion, that its questions were merely to clarify the inquiry, is borne out by the record. We perceive no abuse of the court’s discretion in conducting the trial so that the evidence upon which the jury could find the facts was elicited promptly and directly. “The trial court may address a leading question to a witness in order to elicit the truth or clarify an issue, provided that he does not violate the statutory prohibition set forth in OCGA § 17-8-57 . . . against expressions or intimations of opinion as to what has or has not been proved or as to the guilt of the accused.” Cannon v. State, 179 Ga. App. 142, 143 (2) (345 SE2d 623) (1986). The questions here did not contain any expressions or intimations and were addressed to relevant issues so as to assist the jury in ascertaining the truth. See Perdue v. State, 147 Ga. App. 648, 652 (9) (249 SE2d 657) (1978), rev’d in part on other grounds; Bryant v. State, 157 Ga. App. 62 (1) (276 SE2d 115) (1981). This did not entitle defendant to a mistrial.

5. There is a total failure on appeal to point out any specific weaknesses in the evidence which would demand a directed verdict.

“A defendant is entitled to a directed verdict only where there is no conflict in the evidence, and the evidence introduced, with all reasonable deductions and inferences therefrom demands a verdict of not guilty. [Cits.] If there is any evidence of guilt such that an acquittal is not demanded as a matter of law, it is for the jury to decide the case . . . and where the state’s evidence, as here, authorizes a conviction, it cannot be found to demand a verdict of acquittal.” Sprayberry v. State, 174 Ga. App. 574, 577 (4) (330 SE2d 731) (1985); OCGA § 17-9-1 (a). We have reviewed the transcript on each count and find it sufficient.

The defendant did not dispute the fact that he had a weapon or that he pointed it at the officers. His answer to the charges of aggravated assault and obstruction of officers was defense of habitation, OCGA § 16-3-23. There is no evidence that defendant was attempting “to prevent or terminate [the officers’] unlawful entry into or attack upon a habitation,” much less the kind of evidence which would demand a verdict.

As to the possession count, defendant was apparently relying on the equal access rule, since there was some evidence that a second name appeared on the deed to the property. There was no affirmative evidence, however, that anyone including the person whose name was on the deed had had actual access to the marijuana. Therefore denial of the directed verdict was not error. Prescott v. State, 164 Ga. App. 671, 672 (1) (297 SE2d 362) (1982); Wright v. State, 154 Ga. App. 400 (1) (268 SE2d 378), cert. den. 449 U. S. 900.

The defense to the tampering charge was that no one saw the defendant pull up and destroy the plants. The officers saw the defendant on the property with the plants, advised him not to remove them, and returned in two hours to find them missing. They saw no one else around the premises at either time. The jury could reasonably infer that the defendant at the very least participated in the destruction. That itself would justify conviction. OCGA § 24-4-9; OCGA §§ 16-2-20 and 16-2-21.

6. Defendant complains of the trial court’s failure to give three requested jury charges. The first was given by the court.

Defendant also requested a charge on OCGA § 16-5-42, dealing with false imprisonment pursuant to warrant, process, or mandate. Since defendant was arrested without a warrant, such a charge was not appropriate and the refusal to give it was not error. Williams v. State, 180 Ga. App. 854, 855 (350 SE2d 837) (1986). Prater v. State, 171 Ga. App. 122, 124 (3) (318 SE2d 816) (1984).

The third requested charge was based on OCGA § 17-4-20, dealing with authority to arrest. As drafted, it dealt with an investigative detention, which was not involved so that the refusal to give this charge was not error. Williams v. State, supra; Prater v. State, supra.

7. The court did not err in allowing the prosecutor to read case law to the jury during his closing argument. Since Conklin v. State, 254 Ga. 558, 568 (10) (1985), it is improper for counsel “to supplement the court’s charge by reading, in the jury’s presence, law that the court is not going to charge,” but Conklin was decided June 27, 1985, after the trial in the present case on May 22 & 23. Conklin is to be applied prospectively only. Wells v. State, 178 Ga. App. 82 (1) (342 SE2d 21) (1986).

8. Finally, defendant complains of the denial of his application for supersedeas bond by the trial court. OCGA § 17-6-1 (d). The record reflects that the trial court did make findings and deny defendant’s application for supersedeas by order of June 14, 1985 which was not appealed. Instead, defendant filed an application directly with this court, which was denied by order of July 8, 1985. Defendant then filed another application with the Supreme Court of Georgia, which denied his application on July 31, 1985.

Decided March 6, 1987

Rehearing denied March 19, 1987

G. Hughel Harrison, Samuel H. Harrison, for appellant.

Roger G. Queen, District Attorney, William H. Boggs, Assistant District Attorney, for appellee.

Aside from whether the question is properly before us at this time, see, e.g., Ledesma v. State, 251 Ga. 885, 891 (10) (311 SE2d 427) (1984), cert. denied 467 U. S. 1241, there was no error in the trial court’s denial.

In Birge v. State, 238 Ga. 88, 90 (230 SE2d 895) (1976) cert. den. 436 U. S. 945, the Georgia Supreme Court set out the criteria to be applied in considering the issue of bail pending appeal. Shaw v. State, 178 Ga. App. 67, fn.1 (341 SE2d 919) (1986). Birge made clear that the burden of seeking the stay of execution and release is on the defendant. No evidence other than that he owned property in the jurisdiction and had not skipped bail pending trial was offered. The court’s order reflects that it found the defendant was a danger to the community and was likely to interfere with the administration of justice pending his appeal. “Whether we agree with these findings and conclusions is not controlling. There is some evidence to support at least part of the underlying basis for the trial court’s conclusion. Consequently, we do not find a flagrant abuse of the trial court’s discretion in denying bail.” Cooper v. State, 178 Ga. App. 709, 717 (11) (345 SE2d 606) (1986).

Judgment affirmed.

Deen, P. J., Benham, J., concur.


source: Caselaw Access Project

author: Pope, Judge.

license: Public Domain

text:
    73493.
    GARNER v. THE STATE.
    (355 SE2d 451)
   Pope, Judge.

Appellant Alan Wayne Garner appeals his conviction of the offense of rape.

1. Appellant enumerates as error the trial court’s failure to give his two requested charges (nos. 7 and 8) on the issue of victim’s consent. We find no error.

In Curtis v. State, 236 Ga. 362 (1) (223 SE2d 721) (1976), the Supreme Court of this state expressly disapproved a charge containing language identical to that found in appellant’s request to charge no. 7 and instructed that “[t]he superior courts of this state should not in the future give in rape trials the instructions we hereby disapprove.” Id. at 363. Accordingly, we find no error in the trial court’s refusal to give appellant’s request to charge no. 7.

Likewise, it was not error for the trial court to refuse to give appellant’s request to charge no. 8. The record discloses that the trial court’s instruction to the jury on consent was taken from the Council of Superior Court Judges Vol. 2, Criminal Law, Suggested Pattern Jury Instructions, and that it is a correct statement of the law in this state on the issue of an alleged rape victim’s consent. See, e.g., Curtis, supra; Mathis v. State, 224 Ga. 816 (165 SE2d 140) (1968). It is well established that a requested charge need not be given unless it embraces a correct and complete principle of law which has not otherwise been included in the trial court’s instruction to the jury. Because the charge given is fair and complete, and substantially covers the applicable principles, we find no error in failing to give appellant’s request to charge no. 8. Garmon v. State, 167 Ga. App. 781 (4) (307 SE2d 298) (1983).

2. Appellant also enumerates as error the trial court’s failure to instruct the jury on the definition of force. The record shows that although appellant, at the end of the trial court’s charge, made an oral request that the court define the term “force,” he submitted no written request for such a charge. “In the absence of request, the court’s failure to define the meaning of terms used in the charge is not ordinarily ground for reversal.” (Citations omitted). Meeks v. State, 178 Ga. App. 9, 10 (341 SE2d 880) (1986); see Gaddis v. State, 176 Ga. App. 526 (336 SE2d 587) (1985). In any event, it is not error for the trial court to fail to define terms in common usage, even upon request. See, e.g., Carroll v. State, 157 Ga. App. 113 (1) (276 SE2d 267) (1981). Consequently, we find no merit to this enumeration.

3. Appellant’s fourth enumeration has been decided adversely to him in Overton v. State, 230 Ga. 830 (3) (199 SE2d 205) (1973).

4. In his sixth enumeration of error appellant contends that the trial court erred in admitting his in-custody statement over objection of counsel. However, because appellant has failed to support this enumeration by either argument or citation of authority, we deem it abandoned pursuant to Rule 15 (c) of this court. Kuptz v. State, 179 Ga. App. 150 (12) (345 SE2d 670) (1986); Williams v. State, 178 Ga. App. 80 (3) (342 SE2d 18) (1986).

5. Appellant also enumerates as error the admission over objection of certain testimony of Dr. William R. Meyer, who examined the victim at Grady Memorial Hospital following the rape. The record shows that the State asked the following question after it had elicited testimony from Dr. Meyer that he found no evidence of trauma to the vaginal area of the victim during his examination: “Have you ever had occasion to examine other individuals who have alleged rape where they did not have trauma to the vaginal area?” The trial court overruled appellant’s objection to the question, and Dr. Meyer answered in the affirmative. Appellant contends that this testimony was irrelevant, immaterial and highly prejudicial. We disagree.

Decided March 6, 1987

Rehearing denied March 19, 1987

William V. Hall, Jr., for appellant.

Robert E. Wilson, District Attorney, Thomas S. Clegg, Barbara Conroy, Assistant District Attorneys, for appellee.

“ ‘ “Any evidence is relevant which logically tends to prove or disprove a material fact which is at issue in the case, and every act or circumstance serving to elucidate or to throw light upon a material issue or issues is relevant.” (Cits.) . . . (T)he trial court has wide discretion in determining relevancy and materiality. . . .’ ” Pittman v. State, 178 Ga. App. 693 (2) (344 SE2d 511) (1986); Turner v. State, 178 Ga. App. 888 (1) (345 SE2d 99) (1986). “In Georgia, it is the general rule that evidence of doubtful relevancy or competency should be admitted and its weight left to the jury. Questions of . . . relevancy ... are for the court . . . (and) when facts are such that the jury, if permitted to hear them, may or may not make an inference pertinent to the issue, according to the view which they may take of them, in connection with the other facts in evidence, they are such that the jury ought to be permitted to hear them.” (Citations omitted.) Thomas v. State, 173 Ga. App. 810, 811 (328 SE2d 422) (1985); e.g., Worthy v. State, 180 Ga. App. 506 (2) (349 SE2d 529) (1986); Chance v. State, 172 Ga. App. 299 (5) (322 SE2d 741) (1984). We find no abuse of discretion.

6. Appellant also asserts the general grounds. We have reviewed the evidence and find it sufficient to enable any rational trier of fact to find appellant guilty of the offense of rape beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Price v. State, 179 Ga. App. 691 (2) (347 SE2d 365) (1986).

Judgment affirmed.

McMurray, P. J., and Carley, J., concur.


author: Birdsong, Chief Judge.

text:
    73766.
    LOVING et al. v. NASH.
    (355 SE2d 448)
   Birdsong, Chief Judge.

We granted this interlocutory appeal because it appeared the trial court erred in denying summary judgment to the defendant dentist, Dr. Loving.

Charlotte Nash sued Dr. Loving, Dr. Loving P.C., and Dr. John Doe I and P.C. in a complaint which alleged that defendants “negligently extracted two teeth [and] negligently prescribed various medication . . . which proved harmful [and] negligently performed a root canal [and] negligently prescribed various medication . . . which proved harmful [and as the result of which] . . . plaintiff Nash received severe damage to her entire mouth in that it did become infected causing her to lose a number of teeth,” all of which happenings she alleged constituted negligence, wilful and wanton negligence, and a battery.

The defendant submitted an affidavit swearing that he was engaged in the practice of oral and maxillofacial surgery, and on April 18, 1983, Ms. Nash “presented to my office with [sic] a toothache in the upper left jaw. Ms. Nash was under my care and treatment . . . from April 18, 1983, until April 26, 1983 [during which time] I conducted examinations, performed extractions, performed post-operative care of the extraction sites, and prescribed medications. When I last saw Ms. Nash in my office on April 26, 1983, I instructed her to return on April 28, 1983, but she did not keep her return appointment.” He then averred that at all times material to his care and treatment of Ms. Nash, he complied with the appropriate standard of care which he expressly set forth. He moved for summary judgment.

By response, the plaintiff introduced the affidavit of a Dr. Kennedy, who averred: “I have reviewed the following medical and dental records which are enclosed with this Affidavit and incorporated herein by reference: [and he named the dental records of five dentists, including himself and Dr. Loving, a medical doctor, and Georgia Baptist Hospital Emergency Room, which reflected the care and treatment provided by each to Charlotte Nash].” He averred that he had reviewed the affidavit of Dr. Loving, “and I dispute the facts as described therein and do not concur with the conclusions and/or opinions in that affidavit. I am familiar with the standard [of procedures and] after review of the documents it is my dental opinion that the treatment and care rendered to Charlotte Nash by [Dr. Loving] did not meet the [appropriate standard of care and further] that but for a lack in that degree in care and skill . . . Charlotte Nash would not have sustained the degree of pain and suffering and the injury of which she complains.”

The defendant Dr. Loving disputed the sufficiency of Ms. Nash’s expert affidavit on the basis that the “attached medical records” relied upon by Dr. Kennedy in stating his affidavit opinion were uncertified. The trial court found defendant’s objection to be a “supra-technical argument” which it was “not inclined to embrace.” The trial court held that Dr. Kennedy’s affidavit opinion was “not wholly confined to uncertified medical records,” but was sufficient for the purpose of raising a genuine issue of fact because in it he based his opinions on his personal knowledge of the facts of the case and “goes on to state the particulars” in which he believes the defendants were negligent in compliance with Hayes v. Murray, 252 Ga. 529, 531 (314 SE2d 885). Held:

1. It is established in this state that in medical malpractice cases, the professional defendant may defend by asserting that in his treatment of the plaintiff, he complied with the specific standard of care in the profession; and if he does so, giving his own expert opinion or any others, then in order to prevail the plaintiff at the minimum must counter that expert opinion with a contrary expert opinion in her behalf, so as to create an issue of fact for a jury. Howard v. Walker, 242 Ga. 406 (249 SE2d 45). To be sufficient to controvert the defendant’s expert opinion and create an issue of fact, the plaintiff’s expert must base his opinion on medical records which are sworn or certified copies, or upon his own personal knowledge; and he must state “the particulars in which the defendant’s treatment of the plaintiff was negligent.” Crawford v. Phillips, 173 Ga. App. 517 (326 SE2d 593). OCGA § 9-11-56 (e); Hayes v. Murray, supra. The requirement that the medical records or other material upon which the plaintiff’s expert offers his controverting opinion, be certified or be a part of the record, arises out of the hearsay nature of the records or documents relied upon. Bush v. Legum, 176 Ga. App. 395, 397 (336 SE2d 284). See Jones v. Rodzewicz, 165 Ga. App. 635 (302 SE2d 402). If the plaintiff’s expert’s opinion be not based upon matters of record or certified medical documents, he may base his opinion upon personal knowledge of the facts of the case, if he has any. The requirement that a plaintiff’s expert opinion be based on certified medical records or matters of record, or based on personal knowledge of the facts, responds to the question of hearsay as the foundation for an opinion, and conforms to the rule that mere conclusions are not sufficient to create issues of fact. See Strickland v. C & S Nat. Bank, 137 Ga. App. 538, 540 (224 SE2d 504). But in either case, the plaintiff cannot prevail on motion for summary judgment by merely presenting a conclusory opinion that defendant was negligent or failed to adhere to the professional standard. Bushey v. Atlanta Emergency Group, 179 Ga. App. 827 (348 SE2d 98). She must state the particulars. She must establish the parameters of the acceptable professional conduct and set forth how or in what way the defendant deviated therefrom. Bushey, supra; Kellos v. Sawilowsky, 172 Ga. App. 263 (322 SE2d 897), aff’d 254 Ga. 4 (325 SE2d 757).

Nowhere is the necessity of this requirement more evident than in this case. Nowhere does the plaintiff state what it was Dr. Loving supposedly did to negligently injure this plaintiff. Requiring a plaintiff to make a prima facie case in a medical malpractice suit is not a “supra-technical rule.” The plaintiff said Dr. Loving was negligent; Dr. Loving, who has no burden to prove he was not, swore by affidavit he was not and moved for judgment. To stay in court the plaintiff had to come forward with specifics.

Decided March 5, 1987

Rehearing denied March 19, 1987.

Joseph W. Watkins, Lance D. Lourie, for appellants.

Edward J. Bauer, William J. Deangelis, for appellee.

Plaintiff’s argument and the trial court’s conclusion that Dr. Kennedy stated particulars of negligence because Kennedy’s affidavit directly “disputed” the defendant’s own affidavit, are completely unfounded. Her “dispute” amounts to nothing, because the defendant, who has no burden to set out all the things he did right on the mere assertion that he did something wrong, did not state any particulars in his own affidavit.

There may well be many cases where a professional causes a grievous harm to a plaintiff through malfeasance, but every defendant has the right to be advised what harm he has done, and in every case a plaintiff must show prima facie that a negligent act has been committed. A plaintiff in a malpractice case cannot be allowed to prove less. “Rather than setting out what should have been done and comparing that to what was done, the [plaintiff’s expert’s] affidavit merely concluded that [defendants’] treatment did not meet the appropriate standard of care. Such an affidavit, failing to establish the parameters of acceptable professional conduct, is not sufficient to carry the burden required of a plaintiff when a defendant has made a prima facie showing of entitlement to judgment.” Beauchamp v. Wallace, 180 Ga. App. 554, 555 (349 SE2d 791). It follows that the trial court erred in denying summary judgment to the defendants.

2. Because this plaintiff has utterly failed to create or sustain an issue of fact that defendant was negligent, we do not reach plaintiff’s argument that an expert opinion is not based on hearsay if it is based upon medical records which in pleadings the defendant doctor has admitted are genuine.

Judgment reversed.

Deen, P. J., and Pope, J., concur.


author: Deen, Presiding Judge.

text:
    74269.
    DALTON FIRE DEPARTMENT et al. v. GOSSAGE.
    (355 SE2d 459)
   Deen, Presiding Judge.

The appellee, Prater Gossage, was employed by the City of Dalton Fire Department. On January 31, 1985, while performing a prefire inspection of a warehouse storing dyestuffs and chemicals, he sneezed. In pursuing this workers’ compensation claim, Gossage contended that he sneezed because of a cold he had contracted a few days earlier and because of the respiratory irritants at the pre-fire inspection site, and that this sneeze caused a herniation of a lumbar disc.

On February 8, 1985, Gossage went to his personal physician, who was not on the employer’s approved list of physicians. He was hospitalized from February 8 to 16, 1985; Gossage or his wife informed the fire department of his hospitalization, although it appears that no specific mention was made of any claim that the injury was work-related. Gossage’s attorney formally advised the fire department of the workers’ compensation claim by letter on March 10, 1985.

Following a hearing, the administrative law judge denied the claim, finding that (1) Gossage had not shown that his injury arose out of his employment, and (2) Gossage had not given the fire department proper notice of the injury. The full board, however, reversed both findings and awarded Gossage compensation, including payment of the unauthorized medical expenses incurred by Gossage before he filed his claim and before the fire department controverted the claim. The superior court affirmed the award, and this discretionary appeal followed. Held:

OCGA § 34-9-80 in part provides that “[n]o compensation will be payable unless such notice, either oral or written, is given within 30 days after the occurrence of an accident . . . unless it can be shown that the employee had been prevented from doing so by reason of physical or mental incapacity, or by fraud or deceit, or that the employer, his agent, representative, or foreman, or the immediate superior of the injured employee had knowledge of the accident, or unless a reasonable excuse is made to the satisfaction of the board for not giving such notice and it is reasonably proved to the satisfaction of the board that the employer had not been prejudiced thereby.” Notice of an injury required by this Code section need not indicate an intent to claim compensation, and is sufficient if it puts the employer on notice of the injury so that the employer may investigate the matter if it sees fit to do so. Wilson v. Manville Bldg. Prods., 179 Ga. App. 408 (346 SE2d 851) (1986); State of Ga. v. Mitchell, 177 Ga. App. 333 (1) (339 SE2d 384) (1985). But it must be emphasized that “[ejither the language or the context of the notice . . . must be such as to indicate to the employer . . . that there exists at least a possibility that the injury complained of may be job-related.” Carroll v. Dan River Mills, 169 Ga. App. 558, 561 (313 SE2d 741) (1984); see also Complete Auto Transit v. Reavis, 105 Ga. App. 364 (124 SE2d 491) (1962).

Decided March 9, 1987

Rehearing denied March 19, 1987

Ann B. Conn, John A. Ferguson, Jr., for appellants.

Don L. Hartman, for appellee.

Applying that standard, we agree with the appellant that the February 1985 contact by Gossage or his wife did not constitute sufficient notice under OCGA § 34-9-80, because nothing was said to indicate any possibility that the injury was job-related. The written notice mailed by Gossage’s attorney on March 10, 1985, could salvage the claim only if it was shown that timely notice was not made because of one of the reasons delineated in the Code section above. Review of the entire record discloses that Gossage failed to make that showing. He emphasizes that the fire department obviously was not prejudiced by his failure to give timely notice, as demonstrated by the fire chief’s testimony that the department would not have handled the claim differently even had Gossage immediately informed him that the injurious sneeze occurred on the job. However, he ignores the concomitant evidentiary burden of showing a reasonable excuse for not giving the requisite notice. Throughout the proceeding, in fact, Gossage never proffered any excuse for not timely notifying the fire department of a job-related injury, and neither the board, the superior court, nor this court may invent one for the claimant. No sufficient, timely notice of a job-related injury having been given to the employer in this case, as a matter of law Gossage’s claim was barred.

Judgment reversed.

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


author: Beasley, Judge. Benham, Judge,

text:
    73017.
    GEORGE C. CARROLL CONSTRUCTION COMPANY, INC. v. LANGFORD CONSTRUCTION COMPANY.
    (355 SE2d 756)
   Beasley, Judge.

Carroll appeals from the grant of Langford’s motion for summary judgment as to counts one and two of Carroll’s four-count complaint. Carroll is an Alabama contractor who subcontracted with Langford on two construction projects in Troup County. Count one alleged performance under one contract and sought recovery of labor and materials expended. Count two alleged readiness to perform on the other contract but non-utilization by Langford; damages for lost profits were demanded.

Both by answer and motion, Langford asserted that Carroll had no right of access to Georgia courts because it was a nonresident contractor which had failed to comply with the bond requirements of OCGA § 48-13-32. An affidavit established that the construction contracts involved sums in excess of $10,000.

In opposition, Carroll’s affidavit stated that it had complied with the tax and license laws of Georgia and had been audited several times by the state. It was also shown that Carroll had received a certificate of authority from the Secretary of State to transact business in Georgia pursuant to OCGA § 14-2-310 et seq. Further, Carroll had a registered agent and a registered office in this state.

The trial court concluded that, since both agreements involved consideration exceeding $10,000 and Carroll did not file a bond with the state Revenue Commissioner as required by OCGA § 48-13-32, Carroll had no access rights to the. Georgia courts. OCGA § 48-13-37. Partial summary judgment was granted and counts one and two were dismissed.

Under OCGA § 48-13-30 et seq. a nonresident contractor as defined (OCQA § 48-13-30), who desires to engage in the contracting business in Georgia, must register with the Revenue Commissioner when the total contract price or compensation to be received amounts to more than $10,000 (OCGA § 48-13-31), and before contracting must execute a bond (OCGA § 48-13-32). One who fails to register or comply with any provision of the article forfeits the right to maintain an action to recover on the contract. OCGA § 48-13-37.

Carroll contends it should not be considered a nonresident contractor because of its activities in this state and because it obtained a certificate of authority. OCGA § 14-2-311 provides that a foreign corporation with a certificate of authority shall enjoy the same rights and privileges and be subject to the same duties, restrictions, etc., as a domestic corporation. Carroll urges that compliance with OCGA § 14-2-310 et seq. took it out of OCGA § 48-13-30 et seq., and in effect that the former controls the latter. Carroll contends further that its activities and conduct in the state were such that at least a jury question was presented as to its status.

OCGA § 14-2-311 does not serve to domesticate a foreign corporation. It merely gives the foreign corporation an equal status generally, but a foreign corporation with a certificate of authority is not entirely equivalent to a domestic corporation. For one thing, the legislative grant of “rights and privileges” to a foreign corporation does not include immunity from taxation or regulation as enjoyed by domestic corporations. Roberts v. Lipson, 231 Ga. 142 (200 SE2d 722) (1973). Statutory construction was undertaken in Image Mills v. Vora, 146 Ga. App. 196, 197 (1) (245 SE2d 882) (1978): “[a] foreign corporation cannot lawfully transact business in Georgia without registering in accordance with Code Ann. § 22-1401, and, if mere registering meant that a corporation thereby became a Georgia resident for Code § 8-108 purposes, then that Code section would be rendered virtually meaningless, as no foreign corporation transacting business within Georgia could be a “nonresident” thereunder. Therefore, contrary to appellant’s assertion, construction of the two statutes shows that a foreign corporation does not necessarily shed its Code § 8-108 nonresidence by transacting business within Georgia.”

“The cardinal rule in the construction of legislative enactments is to ascertain the true intention of the General Assembly in the passage of the law. Gazan v. Heery, 183 Ga. 30 (187 SE 371, 106 ALR 498). All statutes are presumed to be enacted by the General Assembly with full knowledge of the existing condition of the law and with reference to it, and are therefore to be construed in connection and in harmony with the existing law.” Plantation Pipe Line Co. v. City of Bremen, 227 Ga. 1, 9 (3) (178 SE2d 868) (1970). When construing two statutes involving possibly conflicting provisions pre-eminence is granted to the latter in time as providing the latest expression of legislative intent. Tomblin v. S. S. Kresge, 132 Ga. App. 212, 216 (6) (207 SE2d 693) (1974); Foster v. Brown, 199 Ga. 444, 451 (34 SE2d 530) (1945). “For purposes of interpretation, and to the extent of any repugnancy between them, the specific statute will prevail over the general statute, absent any indication of a contrary legislative intent.” First Nat. Bank v. Sinkler, 170 Ga. App. 668, 670 (1) (317 SE2d 897) (1984). We apply these principles to the two statutes in their historical perspective.

When the nonresident contractor statute was enacted in 1961, it specifically excluded corporations authorized to do business in Georgia from its registration requirements. Ga. L. 1961, p. 480. During that time the predecessor to OCGA § 14-2-310, Code § 22-1601 (Ga. Corp. Code of 1933) provided for domestication of foreign corporations which would then have the same powers and privileges as Georgia corporations. In 1968 the corporate code was completely revised by enactment of the Ga. Business Corp. Code. This was the genesis of the present language of OCGA § 14-2-310 (a): “No foreign corporation shall have the right to transact business in this state until it shall have procured a certificate of authority to do so from the Secretary of State, except that when another statute of this state requires foreign corporations of a particular class to qualify thereunder to transact business in this state the requirements of such other statute shall govern.”

In 1972 the nonresident contractor act was amended to delete the provision that “a foreign corporation authorized to do business in the state shall not be required to register” under the act’s provisions.

Thompson v. Ga. Power Co., 73 Ga. App. 587, 596 (37 SE2d 622) (1946) enunciated the principle that a “revising statute is in effect a legislative declaration that whatever is embraced in the new statute shall prevail, and whatever is excluded therefrom shall be discarded.” Clearly since 1972, a nonresident contractor is required to register in order to maintain an action to recover payment for performance of a contract in the courts of this state. No other interpretation is viable. The language is clear as is the express intent of the legislature, resulting in a harmonious application of the two code sections.

Had there been any conflict in the laws, the 1972 act would control as the last expression of the legislative will and because it is specifically oriented and directed to the exact issue. Since OCGA § 48-13-30 et seq. is applicable as a matter of law, the trial court properly granted defendant’s motion for summary judgment as to counts one and two.

Judgment affirmed.

Birdsong, C. J., McMurray, P. J., Carley and Sognier, JJ., concur. Banke, P. J., concurs in the judgment only. Deen, P. J., Pope and Benham, JJ., dissent.

Benham, Judge,

dissenting.

I am unable to agree with the harsh results obtained from the ruling of the majoriy that, as a matter of law, every contractor which is a foreign corporation that fails to file a bond with the State Revenue Commissioner as required by OCGA § 48-13-32 is thereby denied access rights to the Georgia courts under OCGA § 48-13-37. In my view, the statutory scheme, as well as the cases interpreting these laws, contemplates that when such a foreign corporation obtains the status of a resident contractor it acquires the same rights and privileges as a Georgia corporation, and that whether it has done so is a question of fact to be determined by a jury.

OCGA § 14-2-310 (a) recites in pertinent part: “No foreign corporation shall have the right to transact business in this state until it shall have procured a certificate of authority to do so from the Secretary of State. . . . Any foreign corporation to which a certificate of authority is granted shall be subject to all the licensing and regulatory statutes of this state relating to businesses of the kind which the foreign corporation proposes to transact in this state.” OCGA § 14-2-311 provides that until withdrawn or revoked, once a certificate of authority is issued the foreign corporation shall “enjoy the same, but no greater, rights and privileges as a domestic corporation . . . and, except as otherwise provided in this chapter, shall be subject to the same duties, restrictions, penalties and liabilities now or hereafter imposed upon a domestic corporation of like character.”

While this court held in Image Mills v. Vora, 146 Ga. App. 196 (1) (245 SE2d 882) (1978), that mere registration in compliance with OCGA § 14-2-310 does not mean that a foreign corporation necessarily sheds its nonresident status, that holding does not dictate that it cannot do so. Here, in addition to obtaining a certificate of authority from the Secretary of State, the appellant, at all times pertinent, maintained a registered office and a business office in Columbus, Georgia, and obtained a business license in LaGrange, Georgia. The affidavit of appellant’s president showed that he had filed all state tax and withholding tax returns and reports for the years in question and acquired all the necessary state business and vehicle licenses; in addition the State Department of Revenue conducted an audit of appellant’s records, including a review of all taxes it paid in Georgia, for the years 1981 through 10- V2 months of 1985.

The Supreme Court stated in Gorrell v. Fowler, 248 Ga. 801, 803 (5) (286 SE2d 13) (1982) (appeal dismissed, 457 U. S. 1113 (102 SC 2918, 73 LE2d 1324) (1982)), that the Nonresident Contractors Act (OCGA § 48-13-30 et seq.) “is not designed to discriminate against non-resident contractors, but to bring them into a parity with resident contractors relative to the compliance with an important obligation under the Georgia Employment Security Law.” The brief of the State Revenue Commissioner filed as an amicus curiae in this case also makes it clear that the purpose of OCGA § 48-13-32 in imposing the bond requirement upon nonresident contractors in contracts over $10,000 is to alleviate the “tremendous audit and enforcement problems” due to the large amounts of revenue generated by this industry in Georgia. However, the question in the instant case is whether appellant could be considered a resident within the meaning of the Georgia Business Corporation Code (OCGA § 14-2-1 et seq.) and the Nonresident Contractors Act so as to have the statutory right to bring an action to recover under its contracts.

As I view these statutes, the bond requirement is a condition precedent to the filing of a suit to recover payment for the performance of a contract only when a factual determination of nonresidency has been made. See Gorrell v. Fowler, supra at 802; American Hosp. Supply v. Starline Mfg. Corp., 171 Ga. App. 790 (2) (320 SE2d 857) (1984). “Although the definition of ‘corporation’ [in OCGA § 14-2-1] excludes ‘foreign corporations,’ it does not expressly exclude foreign corporations authorized by certificate to transact business in Georgia. Nor does the definition of ‘foreign corporations’ expressly include those which are certificated.” Miller & Meier & Assoc. v. Diedrich, 174 Ga. App. 249, 251 (329 SE2d 918) (1985); reversed in part on other grounds sub nom. Diedrich v. Miller & Meier & Assoc., 254 Ga. 734 (334 SE2d 308) (1985). Likewise, while OCGA § 48-13-30 defines the term “contractor,” it does not distinguish between a resident and nonresident contractor. OCGA § 14-2-331 (b) prohibits access to the courts of this state only if a certificate of authority is not obtained, and subsection (c) makes the contracts of a foreign corporation which does not obtain a certificate voidable at the instance of any other party to the contract. OCGA § 48-13-35 further contemplates that a nonresident contractor would be unlikely to establish an office within the state since it requires a nonresident contractor to appoint the Secretary of State as agent for service of process.

Decided March 19, 1987.

J. Philip Day, for appellant.

Timothy S. Minors, for appellee.

Michael J. Bowers, Attorney General, H. Perry Michael, First Assistant Attorney General, Verley J. Spivey, David A. Runnion, Senior Assistant Attorneys General, amicus curiae.

There was uncontradicted evidence in this case that appellant had submitted itself to the jurisdiction of this state and complied with all the applicable statutes to achieve the status of a domestic corporation or resident contractor. Moreover, appellant showed that it had duly paid all state and local taxes and license fees, thereby posing no risk of loss of revenue which would require the posting of a nonresidence bond. There being no explicit statutory definition of what a nonresident contractor is, in my opinion the motion for partial summary judgment should have been denied and the issue as to whether appellant was a nonresident contractor or a resident contractor with standing to sue should have been submitted to the jury. Accordingly, I respectfully dissent.

I am authorized to state that Presiding Judge Deen and Judge Pope join in this dissent.


author: Benham, Judge. Beasley, Judge,

text:
    73059.
    In the Interest of C. D. B.
    (355 SE2d 759)
   Benham, Judge.

Appellant, C. D. B.’s natural father, appeals from an order terminating his parental rights and granting an adoption petition filed by C. D. B.’s mother’s husband.

1. Appellant first filed an application for discretionary appeal in the Supreme Court. When that application was denied, appellant filed a timely direct appeal to that court. The Supreme Court transferred the case to this court because the constitutional issues on which the invocation of that court’s jurisdiction was based were not raised in the trial court.

Appellees, C. D. B.’s mother and adoptive father, have filed a motion to dismiss the appeal, citing Byrd v. Byrd, 248 Ga. 163 (281 SE2d 617) (1981), and Steele v. Niggelie, 163 Ga. App. 98 (293 SE2d 368) (1982), for the proposition that the Supreme Court’s denial of the discretionary application is res judicata on the merits of the action. The statement of that proposition in Steele was pure dicta, and the statement in Byrd on which appellees rely was that the doctrine of res judicata was invoked by the dismissal of a direct appeal for failure to file a discretionary application when one was required. Since the procedural situations existing in those two cases do not exist here, they are inapposite and the motion to dismiss is denied.

2. As noted in Division 1, appellant’s various constitutional attacks on OCGA § 19-8-6 (b) were not raised in the trial court. They cannot now be considered by this court for that reason (see American Mut. Ins. Co. v. Thompson, 169 Ga. App. 24 (1) (311 SE2d 846) (1983)), and because attacks on the constitutionality of a statute are outside the jurisdiction of this court. Ga. Const. 1983, Art. VI, Sec. VI, Par. II (1).

3. Appellant contends on appeal that appellees did not carry their burden of proving by clear and convincing evidence (see In re S. D. S., 166 Ga. App. 344 (4) (304 SE2d 85) (1983)) that appellant had failed significantly for a period of one year prior to the filing of the adoption petition to provide for the care and support of the child as required by judicial decree, and that adoption is for the best interests of the child. See OCGA § 19-8-6 (b) (2). The record persuades us otherwise. It shows that appellant, in the year prior to the filing of the adoption petition, made only eight of the weekly support payments of $50 required by a previous court order. Furthermore, although appellant attempted to justify his failure to support on the ground of illness which prevented his steady employment, there was sufficient evidence from which the trial court could find that appellant had not made significant efforts to produce the income necessary to meet his child support obligations. That evidence, together with evidence of the history of appellant’s relationship with the child and with the child’s mother, authorized the trial court to find that appellant had failed significantly for the year prior to the filing of the adoption petition to provide court-ordered support, and that the adoption is for the best interests of the child. See Kirkland v. Lee, 160 Ga. App. 446 (287 SE2d 365) (1981).

4. In his final enumeration of error, appellant contends that the trial court committed reversible error in entering judgment without first requiring an investigation by the Department of Human Resources as is provided for in OCGA § 19-8-11. That argument is controlled adversely to appellant’s position by Chandler v. Cochran, 247 Ga. 184 (2) (275 SE2d 23) (1981).

Judgment affirmed.

Deen, P. J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

The trial court committed error in not requiring the DHR investigation and recommendation or a substitute in the event DHR notified the court that DHR was unable to fill the request. Chandler v. Cochran, 247 Ga. 184 (2) (275 SE2d 23) (1981) found that it was error to omit this legislatively-mandated procedure but that it was harmless in the circumstances of that particular case. As pointed out by the Supreme Court, it is a “required report” and when it is made, it is “mandatory to consider the report.” Id. at 185 and 186.

The statute, OCGA § 19-8-11 (a), clearly states that the court cannot “take . . . other steps” to have the matter investigated unless the DHR cannot do so. The independent investigation, conducted free of the rules of evidence and courtroom confines and time narrowness of a judicial inquiry, is what the legislature insists on. This policy, which relates to the elemental relationship of a biological parent and child which is by judicial decree of adoption sundered forevermore in the eyes of the law for all purposes controlled by law, is confirmed by the express command that the investigation report and recommendations be considered by the court. OCGA § 19-8-13 (a). We recognized so in Ridgley v. Helms, 168 Ga. App. 435, 439 (3) (309 SE2d 375) (1983).

The primary issue both below and here is whether there is clear and convincing evidence that the parental relationship should be terminated. Much of the evidence, and to a degree the decision itself, is by nature subjective. Thus, a significant part of the body of information which the court is to take into account in weighing that evidence is the report and recommendation of the independent and disinterested social service agency. What is to be contained in the report is expressly set out in OCGA § 19-8-12 (a).

Thus the complete absence of the department’s input creates a void in the process which is required by law to be followed in considering the evidence brought by the antagonistic parties who each have a high stake in the outcome. It is the department’s obligation to provide the report and recommendation, OCGA § 19-8-11 (a), and the court’s obligation to “give consideration to” it. OCGA § 19-8-13 (a). It does not require a request from either party.

Instead, it is the mandate of the legislature as part of the process for these cases in which there is a complete destruction of the natural parent-child relationship in the law and the substitution of a new parent. This process for effecting such a change is the declared public policy of the state, and as repeated again in Kirkland v. Lee, 160 Ga. App. 446, 449 (287 SE2d 365) (1981): “ ‘(I)t is the province of the General Assembly, and not of the courts, to declare what shall be the public policy of this State . . .' Hightower v. Hollis, 121 Ga. 159, 161-162 (48 SE 969) (1904). ‘[T]he courts in construing a statute can neither add to nor take away from it. [Cits.]’ State Revenue Com. v. Alexander, 54 Ga. App. 295, 296 (187 SE 707) (1936).”

Decided March 19, 1987.

D. Jeffrey Grate, for appellant.

Gregory T. Jones, for appellee.

The departure in this case is saved only because the facts disclosed by the record are so compelling that they render harmless the bypassing of the mechanism designed to uncover and marshall all of the information relevant to the complex issues of final adoption.

       See Santosky v. Kramer, 455 U. S. 745 (102 SC 1388, 71 LE2d 599) (1982).


text:
    73274.
    CUNNINGHAM v. THE STATE.
    (355 SE2d 762)
   Benham, Judge.

Appellant was convicted of robbery after a bench trial. Judgment was entered against him on April 24, 1984. On appeal from the denial of his motion for new trial, he raises the general grounds. We affirm.

1. The following testimony was adduced at trial: At approximately 3:30 on the morning of February 12, 1984, the victim, Mr. Tuten, was walking home on North Highland Avenue near Greenwood Avenue in Atlanta, when he was suddenly approached by appellant, who demanded his wallet. The victim attempted to run away, but appellant caught up with him, hit him in the mouth, and took his wallet out of his back pants pocket while the victim was lying on the ground. The wallet contained the victim’s identification, 2 credit cards, and about $65 in cash. The victim reported the crime to police and recalled describing his assailant as being a 6’2” male, of tall and slender build. About 36 hours after the incident, a police detective contacted the victim and several days later that detective brought a photo array of men for the victim to examine. The victim selected appellant’s picture from those in the array. A few days after making the initial identification, the victim had his property returned to him, except for the cash. At trial, the victim identified appellant in court as being his assailant.

A Fulton County deputy sheriff, who was working at a second job at the First Baptist Church of Atlanta, apprehended appellant on the evening of February 12, 1984 after appellant fled from the officer who had attempted to question him. A gun was found on the street down which he had been seen running, and he was arrested for carrying a concealed weapon. While the chase was taking place, the sergeant on the security staff found a wallet and some papers in the middle of one of the streets on which appellant had just been seen. The items belonged to the victim.

Appellant testified that he was 6’ tall and that he had never been at Greenwood and Highland Avenues, that he did not rob the victim, and that the reason he ran away from the deputy sheriff was because appellant did not have identification with him, and had just gotten out of jail on bond and had no money. The evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that appellant was guilty of robbery. OCGA § 16-8-40; Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Brown v. State, 157 Ga. App. 473 (1) (278 SE2d 31) (1981).

2. The dissent contends that appellant’s appeal should have been dismissed for failing to file a timely appeal. Appellant first filed his motion for new trial on July 10, 1984. The motion was unsigned and needed to be amended by signing to bring it properly before the trial court. Cf. OCGA § 9-11-7 (b); § 9-11-11; Bandy v. Hosp. Auth. of Walker County, 174 Ga. App. 556 (1) (332 SE2d 46) (1985). Although no amendment appears in tbe record, we assume that the trial court’s order of May 28, 1986 was signed after amendment was made since the order states that the amended motion was taken under advisement and overruled. We also presume, as we are bound to do in the absence of a showing to the contrary, that the trial court acted lawfully in doing what it did (Walker v. State, 163 Ga. App. 684 (294 SE2d 717) (1982)), rather than presuming, as the dissent does, that the trial court acted inadvertently in entering an entirely new order two years after the original motion for new trial was filed.

Appellant’s notice of appeal was filed on June 27, 1986, within 30 days of the May 28 order denying appellant’s motion for new trial, and refers to both the original 1984 judgment of conviction and the 1986 denial of the motion for new trial. Our reading of the notice leads us to conclude that it clearly intends to be an appeal from the 1986 order. The notice, when viewed in such a light, is timely. We therefore considered the appeal on its merits, in keeping with the spirit of Evitts v. Lucey, 469 U. S. 387 (105 SC 830, 84 LE2d 841) (1985) and our policy of deciding cases on the merits whenever possible.

Judgment affirmed.

Birdsong, C. J., Deen, P. J., Banke, P. J., Sognier and Pope, JJ., concur. McMurray, P. J., concurs in the judgment only. Carley and Beasley, JJ., dissent.

Decided March 19, 1987.

Christine A. Van Dross, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Richard E. Hicks, Assistant District Attorneys, for appellee.

Beasley, Judge,

dissenting.

Applying the rules of procedure, I am of the opinion that the appeal must be dismissed.

Defendant was convicted in a bench trial of robbery and sentenced April 24, 1984. Apparently by trial counsel but unsigned by anyone, an out-of-time motion for new trial was filed on July 10. The time for filing this motion could not be extended, OCGA § 5-6-39 (b), so it had to be deemed an extraordinary motion for new trial. OCGA §§ 5-5-40 and 41; Dyal v. State, 121 Ga. App. 50 (1) (172 SE2d 326) (1970). The motion was denied by order filed July 27. No appeal was taken.

Nearly a year later, in April 1985, Cunningham himself wrote to the clerk requesting a free copy of the case papers.

The next thing in the record is an order filed May 28, 1986, denying defendant’s “Amended Motion for New Trial,” but there is no such motion. The order was apparently inadvertent, as there already had been a ruling on the motion, almost two years earlier. “The motion (for new trial) may be amended any time on or before the ruling thereon.” OCGA § 5-5-40 (b). (Emphasis supplied.) Appeal was then attempted on the thirtieth day after the 1986 order; it states that it is from the judgment of April 1984, and it was filed by the original trial counsel, who represents appellant on appeal.

Although we may grant an extension of time for the filing of a notice of appeal even without motion, it can only extend the time thirty days beyond the original due date. OCGA § 5-6-39 (a) (1), (c) and (d). That was at most September 1984.

There is no jurisdiction to entertain the appeal. Knox v. State, 180 Ga. App. 564 (349 SE2d 753) (1986); Westerfield v. State, 169 Ga. App. 510 (313 SE2d 768) (1984).

I am authorized to state that Judge Carley joins in this dissent.

       Contrary to the majority’s assumption, there is no indication in the record that the court was waiting for the July 10, 1984, motion to be signed by amendment or otherwise, or that this was done.


author: McMurray, Presiding Judge.

text:
    73287.
    ADAMS v. DOE.
    (355 SE2d 471)
   McMurray, Presiding Judge.

This action arose from a claim for damages under the Georgia uninsured motorist statute, OCGA § 33-7-11. Louie Ray Adams (plaintiff) contends that he was struck between 12:00 and 1:00 a.m. on June 2, 1985, by an unidentified driver who did not stop, as he was attempting to enter a vehicle which was parked on the side of the road. As a result of injuries he allegedly sustained, plaintiff remained in the hospital until June 30, 1985. Plaintiff’s insurance carrier, Atlanta Casualty Company (Atlanta Casualty), was notified of plaintiff’s claim for uninsured motorist benefits on October 30, 1985. Atlanta Casualty moved for summary judgment arguing that plaintiff failed to give timely notice of his claim as is required by the insurance contract. The trial court agreed and granted Atlanta Casualty’s motion. Plaintiff now appeals. Held:

Under the general notice provision of the insurance policy, plaintiff is required to notify Atlanta Casualty of a claim “as soon as practicable” after the accident. This requirement includes uninsured motorist coverage, with the exception of claims arising from “hit and run” vehicles. In this regard, the insurance policy provides as follows: “The term ‘hit-and-run automobile’ means an automobile which causes bodily injury to an insured or property damage arising out of physical contact of such automobile (1) with the insured or (2) with an insured automobile, provided: (i) there cannot be ascertained the identity of either the operator or the owner of such ‘hit-and-run automobile’; (ii) the insured or someone on his behalf shall have reported the accident within 10 days or as soon as practicable to the Georgia Director of Public Safety, and shall have filed with the company within 30 days thereafter a statement under oath that the insured or his legal representative has a cause or causes of action arising out of such accident for damages against a person or persons whose identity is unascertainable, and setting forth the facts in support thereof . . .” (Emphasis supplied.)

Atlanta Casualty contends that the notice provision contained in the “hit and run” section of the insurance policy placed a duty upon plaintiff to notify it within 30 days after the “hit and run” collision, thereby precluding plaintiff’s claim under the rationale of Flamm v. Doe, 167 Ga. App. 587 (307 SE2d 105). On the other hand, plaintiff contends that the notice provisions of the insurance policy are conflicting and should be construed as requiring him to notify Atlanta Casualty “as soon as practicable” after a “hit and run” collision.

We find no ambiguity in the foregoing notice provisions of the policy. Clearly, if the claim involves a hit and run automobile (as defined by the policy), the general notice provision of the policy is supplanted by the special notice provision provided for such a claim. Therefore, we believe the 30-day notice provision, not the “as soon as practicable” provision, is applicable to the case sub judice.

Decided March 19, 1987.

William W. Keith III, for appellant.

F. Gregory Melton, William P. Claxton, for appellee.

Turning to the facts, it appears from the record that the Georgia State Patrol was notified of the accident on the date it occurred; however, the insurer was not notified until nearly five months later. Plaintiff having failed to trigger coverage under the 30-day notice provision of the policy, the trial court properly entered summary judgment in favor of the insurer. See Flamm v. Doe, 167 Ga. App. 587, supra.

Judgment affirmed.

Carley and Pope, JJ., concur.


text:
    73364.
    DECATUR HOUSING AUTHORITY v. CHRISTIAN.
    (355 SE2d 764)
   Benham, Judge.

Appellant Housing Authority of the City of Decatur (“Housing Authority”) initiated dispossessory proceedings against appellee Christian, claiming she was a tenant holding over. Appellant maintained that appellee had breached her lease, thereby enabling appellant to terminate appellee’s lease and institute the dispossessory proceeding. After conducting an unrecorded bench trial (see Taylor v. Carver State Bank, 177 Ga. App. 856 (3) (341 SE2d 502) (1986)), the trial court concluded that issuance of a dispossessory warrant was improper since appellee had not breached her lease and was not a tenant holding over. Appellant then filed its appeal in this court.

The controversy centers on recertification documents completed by appellee and used to determine her continued eligibility for public housing; the size unit to be assigned her; and the amount of rent she was to pay. Appellee listed her 37-year-old son as a household member on the recertification forms she completed in February 1985 and January 1986. When she later denied that her son had lived with her since January 1985, appellant initiated eviction proceedings against appellee, contending that appellee had provided false information on the recertification documents, thereby violating Paragraph 5 of her lease. In Paragraph 5 of the lease, appellee agreed “to furnish accurate and complete information to management as to family income, employment, and composition, for use by management in determining whether the rental should be changed, whether the dwelling size is still appropriate for resident’s needs, and whether resident is still eligible for low-rent housing ...”

Due to the lack of a transcript or an appropriate substitute (see OCGA § 5-6-41), the facts upon which we rely have been gathered from the order of the trial court. The trial court found that appellee had listed her 37-year-old son, handicapped with “serious mental problems,” as a household member on recertification forms she completed in February 1985 and January 1986 during interviews she had with appellant’s employees responsible for assigning units and calculating rents. The trial court found that appellee’s son’s condition required repeated hospitalizations and that he would frequently move out of appellee’s home and then return. According to the trial court’s order, appellee testified that she discussed her son’s situation with appellant’s employee in charge of assigning units and calculating rents, and informed that employee when her son moved out. The trial court found that appellee’s son had moved out in January 1985 and had not returned as of the date of the trial court’s order, June 11, 1986. The trial court recounted the testimony of appellant’s employee that any supplemental information concerning the recertification process should be reduced to writing, and that appellant’s employee was responsible for ensuring that the information be reduced to writing. The trial court concluded that appellee had not violated Paragraph 5 of her lease since the undisputed evidence was that appellee had orally provided the correct information to appellant’s employee, who approved her action of listing her son as a household member.

Each of appellant’s five enumerated errors is premised on the argument that the recertification documents “merged” into the lease; appellee breached the expanded lease by providing inaccurate information on the recertification documents; and appellee’s trial testimony concerning her conversations with appellant’s employee about her son’s itineracy violated the parol evidence rule, was improperly considered by the trial court, and resulted in an erroneous decision.

There is no evidence to support appellant’s theory that the lease and the annual recertification documents merged to become “the lease.” The lease, itself, states that it, along with any future rent or unit adjustments, “evidences the entire agreement between Management and Resident” and that “[n]o changes herein shall be made except in writing ...”

While Paragraph 5 of the lease requires information about family size and income annually, the lease does not indicate that completion of the recertification documents is a condition precedent to renewal of the lease. In point of fact, the lease contains no reference to the recertification document. In addition, Paragraph 5 provides its own remedies for breach: if facts upon which rent is based are misrepresented, a retroactive rent increase may be made; if the size of the resident’s unit is inappropriate, the resident “will be required to move” to a more suitably-sized unit within the project.

The failure to provide complete and accurate information on the recertification documents does not constitute a breach of appellee’s lease. The lease only requires that complete and accurate information concerning family size be given management. The lease does not require the information to be given in a written form, and the undisputed trial testimony was that appellee had accurately informed management of the makeup of her household. Furthermore, appellant’s employee testified that it was the responsibility of appellant’s employee to reduce to writing all information concerning household size and income.

Appellant maintains that appellee’s testimony concerning her conversations supplementing the information contained in the recertification documents was improperly admitted in violation of the parol evidence rule. The rule makes inadmissible parol contemporaneous evidence that contradicts or varies the terms of a valid written agreement. OCGA § 24-6-1. The recertification document is not an agreement. Rather, as the trial court concluded, it is “merely a means of providing information under the lease.” The resident certified the information provided to be true and complete to the best of her knowledge and belief, and appellant’s employee certified that the information provided had been verified. Even appellant does not argue that the recertification document itself was a contract. Instead, appellant attempts to make it a part of a contract by merging it with the lease, and we have rejected that approach.

The conclusion we reach today is not the result of the law failing appellant. For whatever reason, at both the grievance hearing and the trial, appellant chose not to present testimony from its employee that might have contradicted appellee’s testimony that she had orally informed appellant’s employee of her son’s situation and received approval for her action in listing him as a household member. If appellant wants information provided under Paragraph 5 of the lease to be in writing, it should amend its lease to reflect that requirement. If appellant wants the annual recertification document to merge into the lease, it should amend both documents to so reflect.

Judgment affirmed.

Deen, P. J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur in the judgment.

In addition to the lease provision relied upon by appellant and set out in the opinion, subparagraph 5 (b) of the lease provides: “If Management determines that the size of the dwelling is no longer appropriate to resident’s needs, Management may amend this lease by notice to Resident, in accordance with Section 14 hereof, that Resident will be required to move to another unit within the project having a suitable size unit, ...”

Decided March 19, 1987.

Gene E. Massafra, for appellant.

W. Michael Maloof, for appellee.

The evidence in the grievance hearing is the. only evidence submitted to this Court. According to the trial court’s order, the resident’s testimony was largely the same as it was at trial. As found by the court, the evidence shows without contradiction that the resident told the management’s representative the true facts on both occasions of recertification. She “furnished” the correct information about her son’s non-membership in the household but signed the forms stating otherwise.

Her signature is not the only one on the 1985 form. There is also the signature of the management’s representative, adjacent to: “OFFICIAL’S STATEMENT — I certify that the information on this Form has been verified as required by Federal Law and the family is eligible to live in the dwelling unit.”

The 1986 form, which is different, is not certified in the given space by the Housing Manager, but it is signed by a management representative as having “interviewed” the resident.

Appellant has no cause to complain of the trial court’s order.


author: Banke, Presiding Judge. Birdsong, Chief Judge,

text:
    73695.
    GRANGE MUTUAL CASUALTY COMPANY v. BRINKLEY.
    (355 SE2d 767)
   Banke, Presiding Judge.

The appellant, Grange Mutual Casualty Company, issued three policies of motor vehicle accident insurance to the appellee, Durwood B. Brinkley. While these policies were in effect, Mr. Brinkley’s minor daughter, Debra, sustained severe injuries in a collision which occurred while she was riding as a passenger on an uninsured motorcycle being operated by her boyfriend, Leo Peloquin. Grange sought a declaratory judgment to the effect that Debra was not a resident of her father’s household when this accident occurred and thus was not entitled to recover either “no-fault” or uninsured motorist benefits under the terms of the policies. We granted an interlocutory appeal from the denial of the company’s motion for summary judgment in this action.

Debra’s parents were divorced in 1978, at which time she began living, pursuant to court order, in the legal custody of her mother. In February of 1982, her mother signed a document purporting to relinquish custody to the father, for the stated reason that Debra’s behavior had become “completely uncontrollable, and I have exhausted all of my resources to help her.” Debra resided with her father until September of 1982, when she began living with Mr. Peloquin. She continued to live with Mr. Peloquin until August 14, 1983, the date of the accident. Upon her release from the hospital following the accident, she returned to her father’s home.

When Debra left her father’s house to live with Mr. Peloquin, she left behind her television set, her stereo, and some of her clothing, all of which remained in what had been her bedroom. On several occasions during the course of the following year, she and her father discussed the possibility of her returning to his house to live. Her father told her during these discussions that she was free to return at any time, but only if she agreed to attend school, study, maintain a more pleasant attitude at home, and cease seeing Mr. Peloquin. Although Debra apparently indicated to her father more than once that she intended to return to his home and abide by these rules, she never actually attempted to do so. Throughout this period, the father’s then-wife, Tammy Brinkley, continued to list Debra as a beneficiary under her group health insurance coverage.

In the uninsured motorist coverage provisions of the three automobile insurance policies issued to Mr. Brinkley by the appellant insurance company, the term “insured” is defined, in pertinent part, to mean “the named insured and, while residents of the same household, his spouse and the relatives of either . . .” (Emphasis supplied.) In the personal injury protection, or “no-fault,” provisions of the policy, the term “eligible insured person” is defined in pertinent part, to mean “the named insured or any relative”; and the term “relative” is defined to mean “the spouse or any other person related to the named insured by blood, marriage, or adoption . . . who is a resident of the same household as the named insured, whether or not temporarily residing elsewhere.” (Emphasis supplied.)

In support of its contention that Debra was not covered by the policy at the time of the accident, the insurance company relies on Robertson v. Lumbermen’s Mut. Cas. Co., 160 Ga. App. 52, 53 (286 SE2d 305) (1981), wherein this court held that “[t]he ordinary and accepted meaning of the phrase ‘one residing in the same household’ in an insurance policy, pertains to one who physically maintains permanent or frequently utilized living accommodations in the principal insured’s home.” Mr. Brinkley, on the other hand, relies on Davenport v. Aetna Cas. &c. Co., 144 Ga. App. 474, 475 (241 SE2d 593) (1978), wherein this court, citing State Farm &c. Ins. Co. v. Snyder, 122 Ga. App. 584, 586 (178 SE2d 215) (1970), held that “ ‘[a] common roof is not the controlling element.’ [Cit.] It is rather a conclusion based on the aggregate details of the living arrangements of the parties.” The trial court, “mindful of the seeming opposite results reached” in these two cases, concluded that the facts of the present case were more similar to those in Davenport than to those in Robertson and, noting the evidence that a portion of Debra’s belongings had remained in her father’s home while she was living with Peloquin, ruled that the insurance company had failed to establish as a matter of law that Debra was not a resident of her father’s household at the time of the accident. Held:

We agree with the trial court that, since the “no-fault” provisions of the three policies specifically provide coverage for any relative who is a member of the named insured’s household, “whether or not temporarily residing elsewhere,” the Robertson test of maintaining “permanent or frequently utilized living accommodations in the principal insured’s home” is clearly inapplicable to that claim. We also agree with the trial court that Davenport and Robertson are distinguishable on their facts and that Davenport rather than Robertson is controlling in the present case.

In Robertson, the principal insured was the wife of the person sought to be categorized as an insured relative; however, prior to the accident, the husband had moved out of the marital home, the wife had initiated divorce proceedings, and the exclusive use and possession of both the home and the insured automobile had been awarded to the wife by court order. The injuries sought to be compensated occurred when the husband took the automobile without the wife’s knowledge or consent and collided with another vehicle while drunk. In Davenport, on the other hand, the person sought to be categorized as an insured was, as in the present case, a minor child who had been injured while riding as a passenger on an uninsured motorcycle. Up until a few weeks prior to the accident, the child had lived in Chicago with her mother and her stepfather, who was the principal insured. Although she had been moved to Atlanta to live with her natural father and her brothers and to attend high school, she had done so with the understanding that she could return “home” to Chicago any time she wanted to. After the accident and following her discharge from the hospital, she continued to live at her father’s home in Atlanta for approximately four months, at which time she returned to Chicago to live with her mother and stepfather.

The crucial distinction between Robertson and Davenport is, of course, that in Robertson the person sought to be categorized as an insured family member was sui juris and thus presumptively capable of making his own decisions about where to reside, while in Davenport the person on whose behalf coverage was sought was an unemancipated minor, whose intentions in this regard were neither predictable nor, absent parental consent, controlling. To the extent that the two decisions are capable of being reconciled, the trial court was clearly correct in concluding that the present case is governed by Davenport rather than by Robertson, with the result that the insurance company’s motion for summary judgment was properly denied. To the extent that the two decisions cannot be reconciled, i.e., to the extent that Robertson may be read as authority for the proposition that one who does not “physically maintain[] permanent or frequently utilized living accommodations in the principal insured’s home” may never, regardless of other circumstances, be considered a member of his household, that case is hereby overruled.

Judgment affirmed.

Deen, P. J., McMurray, P. J., Carley, Pope, and Benham, JJ., concur. Birdsong, C. J., Sognier and Beasley, JJ., concur specially.

Birdsong, Chief Judge,

concurring specially.

The majority opinion opines that Robertson v. Lumbermen’s Mut. Cas. Co., 160 Ga. App. 52 (286 SE2d 305) (1981) may be read to authorize the proposition that one who does not physically maintain permanent residence nor who does not utilize living accommodations in a home may never, regardless of other circumstances, be considered as a resident of that household. (The emphasized language does not appear in the Robertson decision.) Any statement that never admits the possibility of an exception is overbroad. Consequently, should one reading the Robertson decision attempt to impute so broad an interpretation to the definition of residence in the same household, I concur such an interpretation is incorrect, is not in that case, and is not warranted by the facts or the law of that case. In Robertson, the husband’s residence in his wife’s home had been precluded by court order while divorce proceedings were in progress, separate residences had been established, and there is in Robertson no residual vestiges of joint residence other than the rebutted inference of residence arising from an existing (i.e., non-dissolved) marriage. Thus insofar as any part of the Robertson case (or any other case) ever can be subject to a dogmatic, non-violable perfection, never subject to any exception, such a possible interpretation should be negated by this court. Insofar as Robertson in Division 1 on pp. 53-54 holds that the facts and law shed light on the intent of the parties and where those facts reasonably establish an intent to live separately and the facts do not show even an inferential desire to return as manifested by long absence and no utilization or reservation of living accommodations, then I do not concur that the definition of residence in Robertson should be overruled.

I am authorized to state that Judge Sognier and Judge Beasley join in this special concurrence.

Decided March 19, 1987.

Richard A. Rominger, Randolph H. Donatelli, for appellant.

Carmel W. Sanders, Karen D. Barr, John T. Woodall, for appellee.


author: Banke, Presiding Judge.

text:
    74181.
    SELLERS v. THE STATE.
    (355 SE2d 770)
   Banke, Presiding Judge.

The defendant was tried on a seven-count indictment charging him with possession of cocaine, possession of more than one ounce of marijuana, and possession, with intent to distribute, of the drugs codeine, diazepam, temazepam, chorionic gonadotropin, and aminoacetic acid. He was found not guilty of the aminoacetic acid charge and guilty of all the other charges. On appeal, he contends that the trial court gave an unconstitutionally burden-shifting charge with respect to his sole defense, which was that he had possessed all of the drugs except the marijuana and the cocaine under the authority of valid medical prescriptions.

The drugs were seized from a safe during the execution of a search warrant at a health spa owned and operated by the defendant. Although the defendant testified that he had obtained all of the drugs except the cocaine and the marijuana pursuant to medical prescriptions, he presented no documentary evidence or medical testimony whatever to substantiate this claim. The pharmacist who had supplied the drugs in question to the defendant, testifying as a state’s witness, stated that between January of 1984 and June of 1985 he had filled prescriptions furnished to him by the defendant for the drugs in question but had also furnished him with refills in excess of the number authorized by the prescriptions and that, in addition, he had furnished the defendant with approximately 2,000 Valium (diazepam) tablets, 500 Restoril (temazepam) tablets, 2,000 Empirin (codeine) tablets, and 50 vials of Crescormon (aminoacetic acid) and APL (chorinic gonadotropin) without reference to any prescriptions. Bank records introduced at trial revealed that the defendant had spent $52,269 at the pharmacy during this period of time. The defendant denied having distributed any of these drugs to other persons, maintaining that he had either used them himself in connection with a competitive weight-lifting and body-building regimen in which he was engaged or had stockpiled them for future personal use. Held:

The Georgia Controlled Substances Act specifies that the state need not “negate any exemption or exception in any . . . indictment . . or in any trial ... or other proceeding under this article” and that “[t]he burden of proof of any exemption or exception is upon the person claiming it.” OCGA § 16-13-50 (a). In Strong v. State, 246 Ga. 612, 616 (8) (272 SE2d 281) (1980), the Georgia Supreme Court upheld the constitutionality of a similar code section, former Code Ann. § 79A-1105 (OCGA § 26-4-3). However, the Court went on to hold in that case, which involved a prosecution against a physician for prescribing a controlled substance for other than a “legitimate medical purpose,” that the statute would be unconstitutionally applied if interpreted to permit a jury instruction to the effect that the burden was on the defendant physician to prove he had written the prescription in question for a legitimate medical purpose. Id. at 616-617.

Without reference to Strong, supra, this court, in Montford v. State, 168 Ga. App. 394 (4) (309 SE2d 650) (1983), subsequently upheld a drug conviction in the face of a burden-shifting charge similar to the one at issue in the present case. In support of that decision, the court cited Woods v. State, 233 Ga. 347 (1a) (211 SE2d 300) (1974). However, Woods did not involve a jury charge but rather the sufficiency of the evidence to support a conviction for selling heroin. The defendant in Woods, whose alias was “Junkie,” had made no attempt to prove that he was licensed or otherwise authorized by statute to possess or sell heroin; and the Supreme Court simply held that the absence of such authorization was not an element of the offense which the state was required to prove in order to obtain a conviction under such circumstances. Id. at 349.

The defendant in Montford similarly was charged with possession of heroin and similarly made no attempt to show that he was statutorily authorized to possess and distribute the drug. While not specifically approving the trial court’s charge placing the burden of proving such authority on the defendant, we held that it was not cause for reversal under such circumstances that the charge was given. That holding, of course, boils down to nothing more than an application of the general rule that a burden-shifting instruction on an element which is not at issue in the trial of a case is harmless. See Collins v. Francis, 728 F2d 1322, 1330 (11th Cir. 1984).

Unlike the defendants in Woods and Montford, the defendant in the present case did raise an issue as to his authority to possess at least some of the substances which he was on trial for possessing. It is a rule of long standing in this state that “charges which place any burden of persuasion upon the defendant in criminal cases . . . will be deemed erroneous and subject to reversal, absent harmless error and invited error.” State v. Moore, 237 Ga. 269, 270 (227 SE2d 241) (1976). See also Sandstrom v. Montana, 442 U. S. 510 (99 SC 2450, 61 LE2d 39) (1979); Francis v. Franklin, 471 U. S. _ (105 SC 1965, 85 LE2d 344) (1985). The defendant’s convictions of possessing all the drugs which he claimed to have received pursuant to valid medical prescriptions (that is, everything except the marijuana and the cocaine) must consequently be reversed. However, as there was no issue regarding the defendant’s authority to possess the marijuana and cocaine, his convictions on those two charges are affirmed.

Decided March 19, 1987.

J. Richardson Brannon, for appellant.

C. Andrew Fuller, District Attorney, Daniel A. Summer, Assistant District Attorney, for appellee.

Judgment affirmed in part and reversed in part.

Carley and Benham, JJ., concur.


text:
    72777.
    CANAL INSURANCE COMPANY v. INTEGON INDEMNITY CORPORATION.
    (356 SE2d 279)
    Decided March 20, 1987.

      Harry W. Bassler, for appellant.

      Jack O. Morse, C. Michael Evert, Jr., James B. Gordon, E. Gray-don Shuford, for appellee.

      William P. Tinkler, Jr., amicus curiae.
   Deen, Presiding Judge.

The decision of the Court of Appeals in this case having been reversed by the Supreme Court in Integon Indem. Corp. v. Canal Ins. Co., 256 Ga. 692 (353 SE2d 186) (1987), our decision in Canal Ins. Co. v. Integon Indem. Co., 180 Ga. App. 670 (350 SE2d 250) (1986) is hereby vacated, and the judgment of the Supreme Court is made the judgment of this court.

Judgment affirmed.

Birdsong, C. J., McMurray, P. J., Banke, P. J., Carley, Sognier, Pope, Benham and Beasley, JJ., concur.