author: Beasley, Presiding Judge. Andrews, Judge,

text:
    A98A2158.
    GENERAL MOTORS CORPORATION v. BLAKE.
    (515 SE2d 166)
   Beasley, Presiding Judge.

Felicia Blake was permanently crippled in an automobile collision on November 4,1992, when the driver of a taxicab lost control of the cab, crossed over into the oncoming lane of traffic, and crashed head-on into the 1988 Chevrolet Spectrum automobile driven by Blake. Blake sued the driver, the taxicab company, and General Motors Corporation, the maker of the Spectrum, claiming that crippling leg injuries she suffered in the accident were caused by a defective seat belt in the Spectrum which failed to restrain her. The other defendants were not involved in the trial, in which a jury returned a verdict in favor of Blake in the amount of $3,800,000.

1. In its first enumeration of error, General Motors (GM) claims the court erred by denying a continuance sought again by GM on the day of trial, on the basis that it was surprised and prejudiced by Blake’s identification of an expert witness the week before, which witness Blake used allegedly to present a new theory of the case.

A motion for continuance of a trial is properly addressed to the “sound legal discretion” of a trial judge, who is in control of the management of the case in court. OCGA § 9-10-167; Work Clothes Outlet v. M & S Purchasing, 188 Ga. App. 179, 181 (2) (372 SE2d 509) (1988). The appellate court, which is far removed from the unfolding development in the life of a case in court and does not participate in its ongoing journey, is therefore bound to respect the exercise of the trial court’s discretion and reverse it only if it is “manifestly abused.” Simmons v. Simmons, 265 Ga. 183, 184 (453 SE2d 696) (1995).

This Court, like the Supreme Court as discussed in Mills v. State, 188 Ga. 616, 623-625 (4 SE2d 453) (1939), is a court for the correction of errors of law made by the trial courts. Oasis Goodtime Emporium I v. Cambridge Capital Group, 234 Ga. App. 641, 642 (1) (507 SE2d 823) (1998). As was said of the Supreme Court in Mills,

[w]e can not undertake to correct errors of fact. We are prohibited from so doing, and can only decide law questions. But no such limitation is placed on the judges of the superior [or, in this case, state] court. . . . Ours is the function merely to see that the law is followed. Theirs is the solemn responsibility to see to it that justice is administered according to the evidence as well as the law. ... A judge of the superior [or state] court has authority which [the Supreme Court and likewise this Court] [do] not possess.

188 Ga. at 623-624. The great power entrusted to the trial judge is a judicial discretion, justified by skill and by functional commitment to the singular purpose to serve “the great object for which courts are established — to administer justice according to law.” Id. at 624.

The judicial conscience is applied when a trial judge is called upon to exercise discretion. To say that as a matter of law that discretion was abused is a matter of no small moment. As related to denial of a trial continuance, not only does a legal conclusion of abuse derail the case from its journey to finality and require costly and lengthy and wearing retrial, but with hindsight it second-guesses a trial court in managing the case.

The denial of a continuance in this case did not exceed the broad bounds of discretion. We cannot say that it was outside the law’s contemplation to require General Motors Corporation to proceed.

The complaint was filed in October 1994, and the first motion for continuance sought a delay beyond Monday, April 28, 1997. The motion had been filed on Thursday, April 17. It gave as reason that GM did not yet know the identity of plaintiff’s experts on the subject of seat belt manufacture, design, and performance and thus could not depose them to discover their opinions on those subjects as well as vehicle speed, force of impact, occupant kinematics and injury causation. The motion was argued in chambers, without being reported, on Tuesday, April 22 (defendant’s recollection) or Thursday, April 24 (the court’s recollection). At that time it was denied.

Defendant renewed the motion in a five-sentence argument on Monday, trial day, based on a vague reference to deposition testimony given on Friday. Plaintiff responded, defendant briefly replied, and the court, unpersuaded by the recitation, again denied the motion. Defendant had filed a number of other motions in the interim between filing the motion for continuance and the commencement of trial, and a pretrial order had been entered. The consolidated pretrial order entered April 23 states: “Since the case will take longer than one week to try, General Motors requests that it be specially set or held in place until it becomes the first case on a trial calendar.”

The renewal of the motion was based on the fact that on the previous Friday, GM “deposed for the first time [plaintiffs] liability expert, and that’s the expert who is testifying as to what they believe was the defect in this automobile, and who is an expert who had been identified a week or so earlier.” Defendant stated that at the deposition it “learned for the first time” the theory of defect which plaintiff would travel on, which it had not known previously and that there were other experts still to be deposed. GM did not explain how the theory differed or how it would be prejudiced. It simply stated that severe prejudice to defendant would result unless there was time for additional discovery.

Plaintiff responded by pointing out that there was no change in the allegation of negligence that had been advanced all along, i.e., that the seat belt did not hold her or her passenger upon impact. She did not know exactly why it did not hold and thought at first it was attributable to a design or manufacturing defect in the buckle. But that had been fairly conclusively eliminated by the experts during arbitration as the locus of the failure. Plaintiff pointed out that a number of experts on both sides of the case had examined the apparatus and that although there was a change in the theory pinpointing exactly what failed, the substance of the allegation remained the same. She assured the court that although one expert on each side still had to be deposed, that could be done without again delaying the trial. Plaintiff expressed the fear that, because of what had been said at the chambers hearing, defendant would further elongate and expand the whole proceeding by pursuing a motion for summary judgment and was using the motion for continuance to achieve that purpose. Defendant replied briefly that its try for summary judgment was based on a lack of expert evidence of defect, and that additional discovery was necessary to prevent prejudice to GM.

The court took all of this into account, including the fact the case had been set for trial once before but had come off the calendar with the consent of all parties, and it denied the renewal motion.

The court cannot be faulted. First, GM’s argument for continuance did not elucidate the “surprise” of the new theory allegedly discovered the preceding Friday. The key to its request to stop the process was shrouded in the single sentence that it had learned that “the theory of defect had changed from the pleadings and responses to discovery . . . previously . . . served and filed.” Without giving the court more detail of the magnitude or nature of this change, GM could have had little expectation that the court would consent. The superficial argument, unsupported by brief or written motion, did not compel a decision to comply with the request. The trial court can hardly be expected to fathom the depth of what defendant contended it was faced with, absent more than the sparse explanation offered. As for the discovery, plaintiff showed that what remained to be done could be accomplished without interrupting the trial schedule. Defendant did not disagree.

Second, the evidence accepted by the jury clearly shows that the seat belt failed to perform its function as anticipated, which led to the shattered leg, confinement to a wheelchair, and permanent disability of plaintiff. True, she was uncertain during trial preparation and at times inconsistent as to how the seat belt failed, but she steadfastly maintained that it did not restrain her as it was designed to do, given that she had the belt on and fastened at impact. Throughout the course of the trial discovery and preparation she kept trying to pin down exactly what part of the mechanism went wrong. She thought for a long time that the buckle did not hold but rather unlatched. Then she realized that was not the problem. She kept searching and, before trial, determined that the problem was unstopped spooling which resulted in an overloaded cinch and consequent failure to hold her back. That theory was actively investigated by both sides on the Friday before the Monday trial was to begin.

Firestone Tire &c. Co. v. King, 145 Ga. App. 840 (244 SE2d 905) (1978), involves similar facts. The tire at issue clearly failed, resulting in a blowout and injuries to plaintiff. The plaintiff’s experts “could not specify the exact nature of the defect which, in their opinion, caused the tire to fail. Instead they merely speculated as to possibilities, such as contamination of materials or undervulcanization.” Id. at 842 (1). This Court ruled in favor of plaintiff, holding:

We do not agree that it was necessary for the [plaintiff] to specify the nature of the defect in order to meet her burden of proof. It has often been held that the existence of a manufacturing defect in a products liability case may be inferred from circumstantial evidence. [Cits.]

Id. King indicates that precise specificity is not essential for recovery so long as plaintiff can show that the seat belt did not operate as intended and this was the proximate cause of her injuries. That being so, the absence of precise specificity when unknown gives no cause for trial delay. In the present case, GM did know the specifics several days before trial but, more importantly, could have tested the entire seat belt apparatus for months, if not more than a year, before.

That leads to the third reason. GM had every opportunity to completely examine the belt, its retractor and its cinch latch plate as well as its buckle, particularly after it eliminated the buckle as the problem by the time of the arbitration hearing in August 1996. Its expert for the arbitration, a former GM testing engineer, examined Blake’s seat belt system and found no deformation of the buckle or defect so that it would inertially unlatch. He did find marks on the guide loop assembly and the seat belt webbing and deformation of the guide loop assembly bushing at the attaching bolt hold. He also found that the body anchorages for the belt system bolts for the driver’s seat belt system were deformed. He attributed all of this to the collision impact.

Fully aware that the issue was why did the seat belt not restrain plaintiff, if it did not do so, GM apparently tactically decided not to conduct a fuller and more complete investigation of the apparatus. Defendant should not be permitted to avoid learning the facts by lack of thoroughness and then claim surprise. Its experts were as equipped as plaintiff’s, if not more so, to discover the cause. It had the capacity and resources to do all kinds of examinations and tests on the seat belt mechanisms. It apparently did not explore the possibility that the source was the retractor.

Cases concerning surprise are not on point because in this instance the surprise was of GM’s own making. See, e.g., Jones v. Atkins, 120 Ga. App. 487, 491 (1) (171 SE2d 367) (1969). The rules of procedure are concerned with prevention of surprise, to be sure, but the surprise must be genuine and justified. Kamensky v. Stacey, 134 Ga. App. 530, 532 (1) (215 SE2d 294) (1975) states:

[Wjhere the complaining party cannot legitimately claim surprise, either because he knew of the existence of the [facts to be testified to] or had equal means of knowing, it is not error to fail to invoke the sanctions of postponement, mistrial, barring the witness, etc. [Cits.]

Danforth v. Danforth, 156 Ga. App. 236 (274 SE2d 628) (1980), a case dealing with a reasonable time for discovery under OCGA § 9-11-40 (a), is inapposite. “[D]efendant had had only 29 working days of discovery and 18 of those had already passed when he was informed that he would have only 11 more, and only 5 more after plaintiff was to answer the defendant’s first interrogatories.” Id. at 238. What is on point is that the Court went on to say: “If the defendant . . . had already had a reasonable and adequate time for discovery . . ., then the defendant might [not be entitled to a continuance].” Id.

The judgment, based on a jury verdict for plaintiff after a trial which consumed the better part of nine days, should not be reversed nor should a new trial be required.

2. We have carefully reviewed the other enumerations of error and find them each to be without merit.

Judgment affirmed.

McMurray, P. J, Pope, P. J., Blackburn, Ruffin and Eldridge, JJ, concur. Andrews, J., dissents.

Andrews, Judge,

dissenting.

Because the record shows that General Motors (GM) was unfairly surprised by Blake on the eve of this complex product liability trial with an entirely new theory of recovery, the trial court abused its discretion by denying GM’s motion for a continuance. The majority concludes that the surprise was of GM’s own making. This conclusion ignores that Blake initially stated in her complaint and subsequently relied upon one claim of product defect from October 31, 1994, until she revealed to GM an entirely new and unrelated claim of product defect on the afternoon of April 25, 1997, just two days before the start of the trial. It also ignores that, during this entire period of time leading up to the eve of the trial, Blake failed to reveal the new defect claim and failed to reveal the expert witness she used at trial to explain the new claim, despite the fact that GM had specifically sought this information in formal discovery. Nevertheless, the majority blames GM and concludes that GM should have obtained the product (which was in Blake’s possession), dismantled it, and attempted to discover whether it might have a defect Blake had not claimed which Blake might rely upon at trial. In other words, the majority concludes that GM should have divined Blake’s real defect claim while Blake withheld responses to GM’s discovery and actively misled GM with claims of an entirely different product defect. In concluding that the trial court properly exercised its discretion to deny GM a continuance under these circumstances, this Court sanctions the very type of trial by ambush that the discovery rules and the proper exercise of judicial supervision were designed to prevent.

Blake’s complaint against GM was filed on October 31,1994, and alleged that the seat belt she was wearing at the time of the accident was defective in that it unexpectedly opened or unlatched during the accident and therefore failed to restrain her. Blake stated in a post-trial brief that she “initially contended that her seat belt unlatched during the collision as a result of a defective condition known as ‘inertial release.’ ” GM served interrogatories on Blake on January 18,1995, in which Blake was asked to state which part or parts of the automobile she contended were defectively designed or manufactured, state the contended defect in any such part, and identify each expert she expected to call as a witness at trial in support of these contentions along with the substance of the facts, opinions and grounds for the opinions of each such expert. Blake responded to the interrogatories on March 1, 1995, stating that the defectively designed or manufactured part was her seat belt. In stating the contended defect in the seat belt, Blake responded that, “The seat belt did not hold Plaintiff ... on impact. Plaintiff believes there was a defect in the design and/or manufacture. Plaintiff lacks sufficient knowledge or expertise to respond further to this Interrogatory.” In responding to GM’s interrogatory seeking information as to expert testimony, Blake stated that, “Plaintiff has not yet identified an expert. Plaintiff will supplement this response.”

The record shows that the case was subsequently ordered to arbitration in January 1996. At the arbitration hearing in August 1996, Blake contended that she was thrown forward into the dashboard and steering wheel during the accident because the seat belt she was wearing opened or unlatched. However, during arbitration GM produced expert testimony that Blake’s seat belt restrained her during the accident and did not inertially unlatch. Because of the expert testimony produced by GM at the arbitration hearing, Blake thereafter started to look for another theory, other than unlatching, to support her claim that the seat belt was defective. As Blake stated in response to a post-trial motion filed by GM:

At the arbitration hearing in this case, GM effectively demonstrated that Plaintiff’s seatbelt probably did not unlatch by inertial release. Although Plaintiff still had substantial evidence that the seatbelt system malfunctioned during the collision, Plaintiff could not determine the specific defect which caused the failure without retaining an expert to conduct a detailed physical examination of the seatbelt and its mechanisms.

Unsatisfied with the results of arbitration, Blake filed a demand for a jury trial on August 9,1996. Thereafter, the case was set by the Fulton County State Court for trial to begin on March 17, 1997, but the trial court granted a joint motion to remove the case from the March calendar because of conflicts with other scheduled cases. The case was reset for trial to begin on April 28, 1997. After the case was reset for trial, GM filed a motion for a continuance on April 17, 1997. The basis for the motion was that GM needed additional time to conduct discovery of Blake’s expert witnesses and to identify and prepare rebuttal expert witnesses. In support of the motion, GM pointed out that, over two years earlier, it filed interrogatories seeking the identity of Blake’s expert witnesses, but that Blake did not identify any experts in her response to the interrogatories nor had she supplemented her responses as required under OCGA § 9-11-26 (e). GM further noted that, after the case was removed from the March 1997 calendar, it wrote Blake on March 14, 1997, stating that discovery of expert witnesses needed to be completed. Blake responded to that letter on March 18 stating that, “We are in the process of obtaining dates from our experts and will be in touch with you later.” GM further showed that, after the case was reset for trial on April 28, counsel for GM contacted Blake’s counsel by telephone on April 14 at which time Blake’s counsel gave GM the names of two experts Blake intended to call at trial, stated that a third expert would be identified later, but gave no information as to the subject matter of the experts’ testimony.

On April 18, 1997, without the benefit of any discovery from Blake’s experts, GM supplemented its responses to Blake’s interrogatories identifying experts it intended to call as witnesses to rebut Blake’s standing claim that the seat belt was defective and failed to restrain her because it unlatched during the accident. On April 21, 1997, Blake supplemented her responses to GM’s interrogatories as to expert witnesses. Blake identified three experts, two engineers and a medical doctor. As to the engineers, Blake’s supplemental response stated that one engineer would offer testimony “as to the seatbelt system” and the other would testify as an accident reconstructionist about “the collision, the seatbelt, and the damage to the vehicle.”

On April 22, 1997, the trial court heard and denied GM’s motion for continuance. On April 23, 1997, the trial court entered a pretrial order in the case which stated in part that: “Discovery of expert witnesses is not complete. The parties are working to schedule the depositions of expert witnesses.” The portion of the pretrial order setting forth Blake’s contentions with respect to the seat belt stated only that, “Plaintiff asserts that the seat belt restraint system was defective, negligently designed, tested, manufactured or sold.”

On April 25, 1997, the Friday before the trial was scheduled to begin on Monday, April 28, Blake for the first time had Dr. Townsend, one of her expert engineers, examine the Spectrum’s seat belt system which she claimed was defective. As a result of his examination of the seat belt, Dr. Townsend concluded that the seat belt was defective and failed to properly restrain Blake during the accident. However, Townsend’s theory as to why the seat belt was defective was unrelated to Blake’s earlier claim that the seat belt was defective because it unlatched during the accident. Townsend’s opinion was that, while the seat belt remained latched, there were simultaneous failures in two other components of the seat belt system, the retractor (which spools out belt to allow the occupant to put on the seat belt but locks to prevent spooling on impact) and the cinching latch plate (designed to cinch down to prevent lap belt slippage). Townsend concluded that a manufacturing defect in the retractor prevented it from locking, allowing a length of belt to improperly spool out from the retractor on impact. He then concluded that the cinching latch plate also failed by allowing the improperly spooled-out length of belt to pass through and loosen the lap belt. Townsend concluded that the loosening of the lap belt caused by the failure of these two components allowed Blake to slide forward in the seat belt system seven inches more than she would have had the system properly restrained her during the accident. According to Townsend, the extra seven inches Blake slid forward allowed her right leg to make contact with either the dashboard or the steering column in a manner that caused severe leg injuries she would not have suffered had the seat belt system functioned properly.

Central to Townsend’s opinion was his conclusion that the retractor failed because of a manufacturing defect. When Townsend first examined the retractor, he stated that it worked properly. He then disassembled the retractor, which required the removal of six plastic pins holding the cover in place. During the disassembly, Townsend said that he lost one of the pins when it went “ping” and flew off the table into a nearby radiator. He then put three of the remaining five pins back into one side of the retractor, leaving two pins on the table. However, later in the examination, Townsend said he suddenly realized there were three pins on the table instead of two. He concluded that the third pin which appeared on the table must have been an extra pin placed loose inside the retractor during a defective manufacturing process and that it fell out of the retractor onto the table during the disassembly. He further concluded that the extra pin inside the retractor prevented the retractor from locking properly in the accident. He explained that the retractor worked properly before he disassembled it only because the loose pin inside the retractor was not in the critical location at that time to prevent locking.

Townsend formed these opinions, which became the new basis for Blake’s claim, after Blake made the seat belt system available for his examination on April 25. Accordingly, GM’s first opportunity to learn that Blake had abandoned her initial unlatching defect claim and adopted a new unrelated defect claim was when it deposed Townsend on the afternoon of Friday, April 25, just two weekend days prior to the trial set for Monday, April 28. On April 28, prior to the commencement of the trial, GM informed the trial court that, after deposing Blake’s expert, Townsend, on Friday afternoon, it was surprised to learn that Blake was proceeding on an entirely different defect claim from the claim she had initially set forth and pursued during the litigation. GM informed the trial court that, in light of this surprise, it would be prejudiced in its defense of the case without a continuance. Accordingly, GM renewed its earlier motion for a continuance made on the basis that GM needed additional time to conduct discovery of Blake’s expert witnesses and to identify and prepare rebuttal expert witnesses. The trial court responded that the case had been pending since 1994, had been continued from the March calendar, and that any unfairness caused by the surprise was not created by the court. Finding “no evidence saying that all of this could not have been done previously,” the trial court again denied the motion for a continuance.

When the trial commenced, Blake relied on Dr. Townsend’s expert opinion testimony to establish her claim that the seat belt was defective and caused her severe leg injuries. In the absence of a continuance to allow GM to obtain additional evidence or witnesses to consider and respond to Dr. Townsend’s new defect theory, GM attempted to rebut Dr. Townsend’s opinion testimony with the expert opinion testimony of David Peruski. Peruski had previously been identified by GM during arbitration and in GM’s April 18, 1997 supplemental responses to Blake’s interrogatories as the expert GM intended to rely upon to rebut Blake’s original claim that the seat belt was defective because it unlatched during the accident. After being qualified at trial to give expert opinion testimony as to seat belt design and performance, occupant kinematics, and accident reconstruction, Peruski gave his opinion rebutting each aspect of Dr. Townsend’s opinion, except the critical portion of Dr. Townsend’s opinion that the retractor was defective and failed to lock on impact because of a manufacturing defect which placed a loose pin inside the retractor. When GM attempted to offer Peruski’s expert opinion that it would have been impossible for a loose pin to be placed inside the retractor during the manufacturing process, the trial court sustained Blake’s objection that Peruski was not qualified to give expert testimony as to the manufacturing process involved in the placement of the pins into the retractor.

In support of his opinion, Dr. Townsend also testified as to the results of an exemplar study of the accident which he conducted on Saturday, April 26, 1997, the day after he was deposed by GM and less than 48 hours prior to commencement of the trial. Dr. Townsend illustrated the study to the jury by the admission of photographs of Blake placed in a similar Spectrum automobile. In an attempt to rebut Dr. Townsend’s exemplar study, GM had Peruski conduct a similar exemplar study using another Spectrum and a human model matching Blake’s physical description. GM did not complete this study and develop the photographs to illustrate it until Wednesday, April 30 or Thursday, May 1, during the first week of the trial. Although Peruski was allowed to testify as to the results of his study when GM began the presentation of its defense on Friday, May 2, the trial court refused to admit photographs of the study. The trial court sustained Blake’s objection that admission of the photographs would be unfair because Blake’s counsel did not receive them until the afternoon of Thursday, May 1 and had not had an opportunity to have them examined by their experts, who had already left town. Direct and cross-examination of Peruski continued through Friday. When the second week of the trial commenced on Monday, May 5, GM again offered the photographs for admission noting that Blake had the entire weekend to have them examined. The trial court first admitted the photographs then reconsidered and excluded them on the basis that they were not timely produced.

The record in this case shows that, after filing this defective seat belt claim in October 1994, Blake maintained her initial theory of the defect until an expert witness she did not formally identify until a week before the April 1997 trial formed an opinion just two days prior to the trial that other unrelated defects in the seat belt caused her injuries. GM immediately deposed Blake’s expert after he examined the seat belt and formed his opinion and discovered just two weekend days before the trial was scheduled to begin that Blake’s claim was based on an entirely new defect theory. Although GM mounted a credible defense to the new claim on short notice, the record shows that GM’s defense was prejudiced by its inability, without more time, to adequately prepare for and rebut expert testimony presented by Blake which was critical to her claim. Under the facts of this case, I agree with GM’s contention that this constituted surprise which entitled it to a continuance of the trial.

Decided March 19,1999

Reconsideration denied April 1,1999

King & Spalding, Lanny B. Bridgers, William R. Bassett, Jr., Carolyn E. Wright, for appellant.

Sharon E. Howard, James W. Howard, Christopher J. McFadden, for appellee.

Where a witness providing testimony of a potentially critical nature, which opposing counsel does not know about or have equal means of knowing, becomes known shortly before trial, opposing counsel is entitled to a reasonable amount of time prior to trial to depose the witness, check the facts to which the witness would testify and, if indicated, arrange to secure rebuttal or impeachment evidence. Jones v. Atkins, 120 Ga. App. 487, 490-491 (171 SE2d 367) (1969); Kamensky v. Stacey, 134 Ga. App. 530, 532 (215 SE2d 294) (1975); Hanna Creative Enterprises v. Alterman Foods, 156 Ga. App. 376, 378-379 (274 SE2d 761) (1980). A refusal to postpone a trial under these circumstances would subject the party against whom the witness testifies to prejudicial surprise and would constitute an abuse of discretion requiring the grant of a new trial. Jones, 120 Ga. App. at 491; Hanna, 156 Ga. App. at 379.

GM has demonstrated that Dr. Townsend was a critical expert witness whose opinion testimony it did not know about or have means to know about until two days before the trial. Although GM was able to depose Dr. Townsend prior to the trial, under the circumstances of this complex products liability case, two days was not a reasonable amount of time prior to trial to check the facts and opinions to which the witness intended to testify and arrange to secure rebuttal or impeachment evidence. The record shows prejudice suffered by GM as a result of inadequate time to prepare a rebuttal to Dr. Townsend’s testimony. It was not necessary for GM to show what further discovery or other efforts it might have made with the additional time it sought by continuance of the case, or what these efforts might have revealed, since GM likely did not know. Danforth v. Danforth, 156 Ga. App. 236, 238 (274 SE2d 628) (1980). Because the trial court abused its discretion in denying the motion for a continuance, GM is entitled to a new trial.

       The Georgia Constitution does not expressly so state but does describe the nature and function of this Court as being “a court of review.” Ga. Const, of 1983, Art. VI, Sec. V, Par. III.

       The expansion of this on appeal, given defendant’s hindsight and reflection, is not relevant to the basis upon which the trial court was called to rule.

       There was ample evidence early on that the plaintiff and her three-year-old goddaughter, who was killed, were wearing seat belts. Even defendant’s expert so concluded. Yet defendant claimed surprise and says it “was prepared to defend against a case that assumed plaintiff was not buckled, not a case that assumed she was.”


source: Caselaw Access Project

author: Pope, Presiding Judge.

license: Public Domain

text:
    A98A2256, A98A2257.
    WATERS v. GLYNN COUNTY; and vice versa.
    (514 SE2d 680)
   Pope, Presiding Judge.

Larry Waters was terminated from his position as a department head in Glynn County after he was accused of rape and creating a hostile work environment by another Glynn County employee. Although the county administrator originally gave Waters the option of taking a reassignment in lieu of termination, the Glynn County commission subsequently discharged him. Waters sued the county, seeking lost wages and equitable relief, claiming that his termination had violated due process. While the trial court found that no due process violation had occurred, it held Waters’ termination was unauthorized because the applicable county ordinance vested the county administrator, and not the commission, with the authority to discharge Waters. Accordingly, the trial court found that Waters was entitled to exercise the option granted by the county administrator. When Waters opted to take the reassignment, the trial court entered an order directing the county to give Waters another position in county government.

In an earlier appeal in this case, the Supreme Court affirmed the trial court’s finding that Waters’ termination was illegal. Glynn County v. Waters, 268 Ga. 500, 502-503 (2), (3) (491 SE2d 370) (1997). In reaching this conclusion, the Supreme Court agreed with the trial court that as a department head, Waters was expressly excluded from Glynn County’s personnel ordinance and was thus an at-will employee, whose employment was subject to termination by the county administrator. Id. at 502 (2). And because the county commission’s termination of Waters was unauthorized, the Supreme Court agreed that Waters was entitled to the equitable relief granted by the trial court. Id. at 503 (3). Further, while the decision confirmed that the county had no sovereign immunity defense to Waters’ claim for equitable relief, it reserved decision on whether the county had immunity from the claim for back pay, as the trial court had not yet addressed the issue. Id. at 503 (4).

After the Supreme Court’s decision, the parties filed cross-motions for summary judgment on the issues of back pay and attorney fees. The trial court found that Waters’ claim for back pay was barred by sovereign immunity, but held that the claim for attorney fees was not. The parties have filed cross-appeals, and we affirm.

Case No. A98A2256

1. Waters argues that the trial court erred in holding that his claim for back pay is barred by sovereign immunity because his claim arises out of his employment contract with Glynn County, and sovereign immunity has been waived as to contract actions against the county under Art. I, Sec. II, Par. IX (c) of the 1983 Georgia Constitution.

In 1991, the constitutional doctrine of sovereign immunity was amended to extend sovereign immunity “to the state and all of its departments and agencies,” and this immunity is to prevail except as specifically provided therein. Ga. Const, of 1983, Art. I, Sec. II, Par. IX (e).

Gilbert v. Richardson, 264 Ga. 744, 746 (1) (452 SE2d 476) (1994). The phrase “the state and its departments and agencies” has long been interpreted to include counties within the ambit of sovereign immunity. Id. at 747 (2); Miller v. Ga. Ports Auth., 266 Ga. 586, 588-589 (470 SE2d 426) (1996).

The Georgia Constitution also provides that sovereign immunity is waived “as to any action ex contractu for the breach of any written contract now existing or hereafter entered into by the state or its departments and agencies.” Ga. Const, of 1983, Art. I, Sec. II, Par. IX (c). Thus, the defense of sovereign immunity has been waived for actions arising out of written contracts entered into by a county. See Cherokee County v. Hause, 229 Ga. App. 578, 580 (494 SE2d 234) (1997); Merk v. DeKalb County, 226 Ga. App. 191 (1) (486 SE2d 66) (1997).

Waters asserts he had a written contract with the county by virtue of his acceptance of the county’s written offer of employment. But the mere acceptance of a written offer of employment for an indefinite term, such as the offer made to Waters, does not create an enforceable written contract. “The writing on which [Waters] relies does not include the duration of the contract, so the contract is incomplete and unenforceable. [CitPresto v. Scientific-Atlanta, 193 Ga. App. 606 (1) (388 SE2d 719) (1989). See also Merk v. DeKalb County, 226 Ga. App. at 192 (1) (while a contract may arise between parties arising from their conduct, it is not a written contract).

2. Waters also argues that he is entitled to back pay because he was a merit system employee at the time of his termination and such employees have the right to sue for back pay. Waters bases this argument on the trial court’s finding that OCGA § 36-1-21, by authorizing Glynn County to create its merit system, also established a waiver of immunity for claims by merit system employees to enforce the county’s obligations under the system.

We need not reach this issue, however, because the Supreme Court previously has found that Waters was not a merit system employee, but rather an at-will employee. Glynn County v. Waters, 268 Ga. at 502 (2). Thus, Waters would not fall within the ambit of OCGA § 36-1-21. As we are bound by that finding as the law of the case, we find that no waiver of sovereign immunity exists for Waters’ claim of back pay. See Southern Co. v. Hamburg, 233 Ga. App. 135, 136 (503 SE2d 383) (1998); Dicks v. Zurich American Ins. Co., 231 Ga. App. 448, 450 (499 SE2d 169) (1998).

Therefore, we affirm the trial court’s denial of Waters’ motion for summary judgment. See Smith v. Steinemann Dev. Co., 230 Ga. App. 635, 637 (2) (497 SE2d 255) (1998) (a trial court’s ruling will be affirmed if it is right for any reason).

Case No. A98A2257

3. Glynn County appeals from the trial court’s denial of its motion for summary judgment as to attorney fees. The trial court found that Waters is entitled to recover attorney fees in connection with his equitable action, if he is able to establish the grounds set forth in OCGA § 13-6-11. The county argues that Waters’ claim for attorney fees is barred by sovereign immunity because there has been no specific statutory waiver allowing the recovery of attorney fees against a county.

It is well settled that OCGA § 13-6-11 does not state a cause of action, but “merely establishes the circumstances in which a plaintiff may recover the expenses of litigation as an additional element of his damages.” (Citations and punctuation omitted.) Gardner v. Kinney, 230 Ga. App. 771, 772-773 (498 SE2d 312) (1998); Brown v. Baker, 197 Ga. App. 466, 467 (2) (398 SE2d 797) (1990). Therefore, no separate statutory waiver of sovereign immunity is required to allow the recovery of such damages against a governmental entity. See Dept. of Transp. v. Fru-Con Constr. Corp., 206 Ga. App. 821, 826 (5) (426 SE2d 905) (1992) (upholding trial court’s denial of DOT’s motion for directed verdict for the defense of sovereign immunity as to OCGA § 13-6-11 damages); Eastern Air Lines v. Fulton County, 183 Ga. App. 891, 894-895 (4) (360 SE2d 425) (1987).

The Supreme Court found that Waters was entitled to equitable relief against the county, Glynn County v. Waters, 268 Ga. at 503 (3), and attorney fees under OCGA § 13-6-11 are recoverable in equitable actions. See C & S Nat. Bank v. Haskins, 254 Ga. 131, 137 (4) (327 SE2d 192) (1985); Jones v. Spindel, 239 Ga. 68 (235 SE2d 486) (1977); King v. Baker, 214 Ga. App. 229, 234 (4) (447 SE2d 129) (1994). Accordingly, Waters is entitled to the recovery of attorney fees for his equitable action if he can establish the grounds laid out in OCGA § 13-6-11.

Decided March 16,1999

Reconsideration denied April 1,1999

Fletcher Farrington, for appellant.

Whelchel, Brown, Readdick & Bumgartner, Terry L. Readdick, Gregory T. Carter, for appellee.

4. Glynn County also argues that there are no grounds for an award of attorney fees in this case. The county asserted this position before the trial court by stating in conclusory fashion that Waters’ claim for attorney fees failed on the merits. However, it offered no citation or argument to support this position. In denying Glynn County’s motion for summary judgment, the trial court found that the claim for attorney fees was not barred by sovereign immunity. The order then stated that Waters should be entitled to recover his litigation expenses “if the stringent criteria for an award under OCGA § 13-6-11 are satisfied.” But the trial court never addressed these criteria and thus never considered Glynn County’s argument that the claims fail as a matter of law. There was no ruling, one way or the other, as to whether general issues of material fact remained with regard to this claim.

Where a trial court does not rule on an issue, it remains outside the jurisdiction of this Court and we cannot consider it. See Hilliard v. J. C. Bradford & Co., 229 Ga. App. 336, 339 (1) (b) (494 SE2d 38) (1997); Paulsen Street Investors v. EBCO Gen. Agencies, 224 Ga. App. 507, 508 (481 SE2d 246) (1997); Sharpnack v. Hoffinger Indus., 223 Ga. App. 833, 836 (3) (479 SE2d 435) (1996).

Judgments affirmed.

Beasley, P. J., and Ruffin, J., concur.

       While Waters asserts that his claim for back pay is a contractual one arising out of his employment with the county, his complaint alleges only that his due process rights were violated. To the extent such a claim sounds in tort, even though he now couches it in contractual terms, we have held that no constitutional waiver of sovereign immunity results. Merk v. DeKalb County, 226 Ga. App. at 192 (1). For purposes of this appeal, however, we will assume that Waters has asserted a claim for contractual damages.

       Moreover, Waters is seeking back pay from his position as a department head, an at-will position, and not from the position he held at the time of his termination.


author: Ruffin, Judge.

text:
    A98A2271.
    JAKOBSEN v. COLONIAL PIPELINE COMPANY et al.
    (514 SE2d 851)
   Ruffin, Judge.

Todd Jakobsen sued both Colonial Pipeline Company and Plantation Pipeline Company for, inter alia, breach of contract, conversion, nuisance and trespass stemming from the defendants’ use of easements located on Jakobsen’s property. The trial court granted a directed verdict to defendants on all claims except the claim for trespass. The jury found that defendants had wilfully trespassed on Jakobsen’s property and awarded “nominal” damages in the amount of $22,150 against each defendant and $60,000 in attorney fees against each defendant. Defendants filed a motion for judgment notwithstanding the verdict, and the trial court held a hearing on this motion. On May 29,1997, the trial court granted defendants’ motions for judgment n.o.v., and Jakobsen appeals. We affirm.

1.

When considering whether the trial court erred by granting motions for directed verdicts and motions for judgment n.o.v., we review and resolve the evidence and any doubts or ambiguities in favor of the verdict . . . ; directed verdicts and judgments n.o.v. are not proper unless there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom[,] demands a certain verdict. Thus, a judgment n.o.v. may be granted only when, without weighing the credibility of the evidence, there can be but one reasonable conclusion as to the proper judgment. If the evidence is conflicting, or if insufficient evidence exists to make a “one-way” verdict proper, judgment n.o.v. should not be granted. Further, when considering these motions, trial and appellate courts must view the evidence in the light most favorable to the party securing the jury verdict.

(Punctuation omitted.) Plane v. Uniforce MIS Svcs., 232 Ga. App. 757, 758 (503 SE2d 621) (1998).

The relevant facts are as follows: Jakobsen lives in DeKalb County in a house he has owned since 1988. The lot is approximately 700 feet deep and 106 feet wide, and the house is set approximately 400 feet from the southern boundary. Remington Road forms the southern boundary of the property. When Jakobsen purchased his house, the property was subject to four, partially overlapping, pipeline easements belonging to Colonial and Plantation. These easements are located on the southern part of the property between Jakobsen’s house and Remington Road. Plantation obtained two easements in 1941 and one easement in 1968, and Colonial obtained an easement in 1946. During the latter part of 1989, the defendants cut timber and vegetation from these easements in order to allow for aerial inspection. Jakobsen claims the defendants trespassed to the extent that they cut or trimmed vegetation beyond the boundaries of their easements.

At trial, the parties disputed the exact boundaries of the easements. By the terms of the easements, the width of the easements was to be determined by reference to the center point of certain pipelines buried in the ground. Jakobsen contended the combined easements are 45 feet wide all the way across his property. Defendants, on the other hand, claimed the combined easements were larger on the eastern side of the property because one of the pipelines made a turn. According to the defendants, their technicians determined the boundaries of the easements by using a strip map and a “metrotarch locator” to find the approximate location of the pipeline. The technicians would then use a probe to make physical contact with the pipeline and to determine the pipeline’s center. From the center of the pipe, the technicians would stake the right-of-way for the easement by measuring 15 feet in each direction from the center of the pipeline.

To support his contention that the defendants cut beyond the boundaries of the easements, Jakobsen relied, in part, on the testimony of William Goldberg, a plaintiff in another suit against the pipeline companies who had “visited [Jakobsen’s] property several times from the first time that it was cut.” Goldberg testified that shortly before trial, he had measured the boundaries of the easements and determined that the stakes marking the easement boundaries had moved by as much as two feet. However, Goldberg acknowledged that since he did not know where the pipes were buried, he had no way of knowing exactly where the easement boundaries were located. Goldberg testified that, based on his calculations, he found that the pipeline companies had over-cut by three feet on the north side of the easements.

Jakobsen, testifying on his own behalf, stated that in the previous six years, the defendants had returned to his property seven times to cut and trim the vegetation. According to Jakobsen, the area cut “moves northerly or southerly” from year to year. Specifically, Jakobsen testified that on the west side of his property, where the easement was 45 feet in width, the defendants cut 48 feet and that this “cutting would have been much closer to my house than what’s indicated on this survey.” Jakobsen’s house lies north of the easement.

The jury returned a verdict in favor of Jakobsen, finding that defendants had wilfully trespassed on Jakobsen’s property “from the southern property line to the southernmost line of the Colonial easement starting on October 19, 1989 through the present.” Following this verdict, the trial court granted defendants’ motion for judgment n.o.v., noting that the entire focus of the trial had been on possible trespass north of the easement. The trial court concluded that there was no evidence from which the jury could deduce that defendants had trespassed on the southern end of Jakobsen’s property. The trial court noted that, at the hearing on the motions for judgment n.o.v., Jakobsen admitted that “none of the trees cut by the pipeline companies were located in the southern strip of land.” Because Jakobsen had failed to prove the underlying tort, the trial court struck the award of nominal damages and attorney fees.

“The standard [s] for directed verdict and judgment n.o.v. are identical.” Outdoor Systems v. Woodson, 221 Ga. App. 901 (1) (473 SE2d 204) (1996). With respect to directed verdicts, we have held that

an inference cannot be based upon evidence which is too uncertain or speculative or which raises merely a conjecture or possibility. (Cit.) The plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. . . . [W]hen the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.

(Punctuation omitted.) Constr. Lender v. Sutter, 228 Ga. App. 405, 408 (1) (b) (491 SE2d 853) (1997); Niles v. Bd. of Regents, 222 Ga. App. 59, 61 (2) (473 SE2d 173) (1996). Likewise, when a jury renders a verdict that is not supported by the evidence, but is based solely on conjecture, it becomes the duty of the court to issue a judgment n.o.v.

In his appellate brief, Jakobsen cites no evidence supporting the jury’s verdict that defendants trespassed south of the easement boundary. Although both Jakobsen’s and Goldberg’s testimony may have allowed jurors to infer that trespass occurred north of the easements, the jury clearly rejected this testimony, and there was no evidence to support the jurors’ finding that trespass occurred between the southern boundary of the easement and the southern boundary of the property. Indeed, Jakobsen admitted at the hearing on the motions for judgment n.o.v. that none of the trees cut by defendants was located on the southern part of his land. Accordingly, the trial court correctly granted defendants’ motion for judgment n.o.v.

2. Jakobsen also contends the trial court erred in prohibiting him from introducing expert testimony relating to whether and to what extent defendants’ removal of trees was necessary for effective aerial inspection. In an order granting defendants’ motion in limine, the trial court noted that the Supreme Court’s order in Jakobsen v. Colonial Pipeline Co., 260 Ga. 565 (397 SE2d 435) (1990), “which constitutes the law of this case, clearly delineates that aerial inspections are an effective and necessary way for the Defendants to patrol and inspect their easements.” Therefore, the trial court prohibited the introduction of evidence regarding aerial inspections without first obtaining the court’s permission.

Pursuant to OCGA § 9-11-60 (h), “any ruling by the Supreme Court or the Court of Appeals in a case shall be binding in all subsequent proceedings in that case in the lower court and in the Supreme Court or the Court of Appeals as the case may be.” “An exception to the rule that will permit issues to be relitigated after appeal is when the evidentiary posture of the case changes.” (Punctuation omitted.) Brown v. Piggly Wiggly Southern, 228 Ga. App. 629 (1) (493 SE2d 196) (1997). “There is no contention here that the evidentiary posture of this case has changed so as to fall within that exception to the law of the case rule.” Dicks v. Zurich American Ins. Co., 231 Ga. App. 448, 449 (499 SE2d 169) (1998).

In Jakobsen, the Supreme Court held that the defendants’ easements implicitly included the authority to cut trees within the boundary of the easement and to side-trim trees adjacent to the easement for the purposes of aerially inspecting the pipelines. 260 Ga. at 566-567 (2). Although, as Jakobsen notes, the Supreme Court’s opinion did not expressly state that the manner in which the defendants performed their aerial inspection was “requisite” to the enjoyment of the easement, the Supreme Court necessarily considered this issue in concluding that defendants had the authority to cut and trim. See E. H. Crump Co. v. Millar, 200 Ga. App. 598, 599 (409 SE2d 235) (1991). Accordingly, the trial court properly precluded the relitigation of this issue. Id.

3. Jakobsen contends that the tried court erred by admitting the testimony of Sidney McKnight regarding the appraisal of damage to Jakobsen’s property. At Jakobsen’s request, the trial court issued an order in limine prohibiting the parties from referring to the amount of money Jakobsen received following a settlement with his title insurance company. The trial court also ordered that no party could refer to the appraisal of the trees made pursuant to this settlement. However, following the parties’ opening statements, the trial court noted that Jakobsen’s attorney “represented to the court that he was going to get into trees that had been handled by the . . . appraisal,” at which point the trial court notified the parties that it would inform the jury that the trees already had been the subject of an appraisal process. In doing so, the trial court modified its earlier order on Jakobsen’s motion in limine with respect to the appraisal.

A motion in limine is a pretrial method of determining the admissibility of evidence, as a party may secure a pretrial ruling on the admissibility of evidence or a ruling prohibiting any reference to certain evidence until its admissibility can be assessed in the context of the trial as it unfolds. By its very nature, the grant of a motion in limine excluding evidence suggests that there is no circumstance under which the evidence under scrutiny is likely to be admissible at trial. In light of that absolute, the grant of a motion in limine excluding evidence is a judicial power which must be exercised with great care.”

(Citations and punctuation omitted.) Dept. of Transp. v. Wallace Enterprises, 234 Ga. App. 1, 4-5 (6) (505 SE2d 549) (1998).

Here, Jakobsen claims that the trial court erred in admitting evidence of the appraisal because the court had previously granted a motion in limine to exclude the evidence. However, “a trial court can modify a ruling on a motion in limine.” Helton v. State, 217 Ga. App. 691, 692-693 (1) (c) (458 SE2d 872) (1995). Thus, Jakobsen’s claim of error lacks merit.

Jakobsen also contends the trial court erred in admitting McKnight’s testimony that “everything” had been considered during the appraisal process. According to Jakobsen, this testimony, combined with the charge that jurors were not to award compensatory damages for trees subject to the appraisal process, meant that jurors could not award any compensatory damages. However, at trial Jakobsen failed to object either to McKnight’s testimony that he considered “everything” or to the jury charge. In addition, Jakobsen did not object on these bases in his motion in limine. Accordingly, we will not address his claim of error on appeal. See Dept. of Transp. v. Cannady, 230 Ga. App. 585, 590 (2) (497 SE2d 72) (1998) (“failure to make the specific objection at trial acted as a waiver of such grounds”); Hayden v. Sigari, 220 Ga. App. 6, 11 (6) (467 SE2d 590) (1996) (“ ‘[a] party may not complain of the giving . . . of an instruction to the jury unless he objects to the instruction before the jury returns its verdict’ ”).

4. In his final enumeration of error, Jakobsen contends that the trial court erred in preventing his witness, Walter Robillard, from testifying. Robillard testified that he had a forestry degree and a law degree and had several years of experience as a registered surveyor. When Jakobsen’s attorney asked Robillard if he had written any books or treatises, defendants objected to his testimony on the grounds that Jakobsen had not identified Robillard as an expert witness and it was “readily apparent that [Robillard would] be asked to give testimony as an expert.” Jakobsen proffered that Robillard would testify regarding a survey that he had prepared of Jakobsen’s property, which had not been provided to the defendants prior to trial. The trial court excluded Robillard’s testimony because Jakobsen had given no notice of his intent to use Robillard as an expert witness and because Jakobsen had not given defendants a copy of the survey.

On appeal, Jakobsen does not contend that Robillard should have been allowed to give expert testimony, but argues that the trial court should have allowed Robillard to testify as a lay witness. However, based on the proffer by Jakobsen’s attorney, it is clear Robillard was going to testify regarding his survey of Jakobsen’s property. Georgia courts have consistently recognized surveyors as experts. See generally Dept. of Transp. v. Edwards, 267 Ga. 733, 738 (482 SE2d 260) (1997); Cheek v. Wainwright, 246 Ga. 171, 174 (3) (269 SE2d 443) (1980); Gillis v. Buchheit, 232 Ga. App. 126, 128 (1) (500 SE2d 38) (1998); Davis v. Williams, 165 Ga. App. 45, 46 (3) (299 SE2d 102) (1983). In his appellate brief, Jakobsen fails to mention any “lay testimony” that Robillard would have given, stating simply that Robillard would have “describe [d] conditions he observed on the property of Jakobsen.” Therefore, Jakobsen has failed to show how he was harmed by the exclusion of such testimony. “An appellant must show harm as well as error to prevail on appeal.” Tarleton v. Griffin Fed. Sav. Bank, 202 Ga. App. 454, 455 (2) (b) (415 SE2d 4) (1992). Accordingly, this enumeration of error is without merit.

Judgment affirmed.

Pope, P. J., concurs. Beasley, P. J., concurs in the judgment only.

Decided March 17,1999

Reconsideration denied April 1,1999

Thomas R. Todd, Jr., for appellant.

Fellows, Johnson & La Briola, Henry D. Fellows, Jr., Arnold & Hopkins, Ross Arnold, Gary L. Glancz, Edward T. Floyd, for appellees.

       In his original complaint, filed in 1989, Jakobsen sought both damages and injunctive relief. The trial court issued an order regarding injunctive relief that was affirmed by the Supreme Court. See Jakobsen v. Colonial Pipeline Co., 260 Ga. 565 (397 SE2d 435) (1990).

       Some of the factual assertions made by the parties are not supported by citation to the record. Accordingly, in setting forth the relevant facts, we look only to the facts that have been properly cited and refuse to wade through the over 6,000 pages of the record for additional facts. We note that “it is not the function of an appellate court to cull the record in search of error on behalf of a party!,] and we decline to depart from this sage practice now.” (Citation omitted.) Sparti v. Joslin, 230 Ga. App. 346, 347 (2) (496 SE2d 490) (1998); see also Court of Appeals Rule 27 (c) (2); Hall County School Dist. v. C. Robert Beals & Assoc., 231 Ga. App. 492, 493 (498 SE2d 72) (1998); Rolleston v. Cherry, 226 Ga. App. 750, 753 (1) (b) (487 SE2d 354) (1997).

       In Jakobsen v. Colonial Pipeline, supra, the Supreme Court upheld the pipeline companies’ right to cut and trim trees on their easements noting that “[w]here an easement is granted without limitations on its use, the grantee is entitled to avail himself of other reasonable uses which develop over time if such uses significantly relate to the object for which the easement was granted.” Id. at 566 (2).

       Because Jakobsen did not file the transcript from the hearing on the motion for judgment n.o.v., we must assume that the transcript would support the trial court’s finding regarding his admission. Rowe v. Fleet Mtg. Corp., 226 Ga. App. 593, 595 (4) (487 SE2d 133) (1997).


author: Barnes, Judge.

text:
    A98A2473.
    SPRUELL v. THE STATE.
    (514 SE2d 896)
   Barnes, Judge.

After two earlier prosecutions ended in mistrials, Michael Spruell was convicted of rape, aggravated assault, and attempted aggravated sodomy. He now appeals, contending the trial court erred by allowing a victim to identify him as the person who tried to force her to commit sodomy; by allowing the prosecutor to give an improper and prejudicial closing argument; by failing to give, sua sponte, a charge on similar transactions; and by allowing Spruell’s testimony from a previous trial to be read in evidence. Spruell alleges further that he was denied the effective assistance of counsel and that the evidence is insufficient to sustain his conviction of rape. We disagree and affirm.

Viewed most favorably in support of the verdict, the evidence shows that late one night Spruell encountered a woman (“victim one”) walking home from work. After unsuccessfully attempting to entice her into his car to have sex with him, Spruell physically attacked her. He punched her in the eye and hit her on the face breaking her nose. He kicked her, ripped her clothes, and attempted to force his penis into her mouth.

When this attack failed, Spruell drove off and a few blocks away encountered another woman (“victim two”) walking home. After talking briefly, victim two asked Spruell to give her a ride to her home. Even though not a friend of Spruell’s, victim two knew him because of his local fame as a basketball player. Once she was in the car, Spruell drove into an alley and attacked her. Spruell hit victim two, grabbed her neck, and exposed his penis. Victim two resisted Spruell’s attack, but then pretended to agree to his intentions by offering him a condom.

After Spruell stopped the car, victim two fled screaming from the car. Spruell chased her and dragged her back to the alley where he raped her.

Upon hearing victim two’s screams, occupants of a nearby house called the police. An officer in the vicinity responded to the call, and as he approached the scene, he turned off his engine and lights and coasted down the alley. The officer came upon Spruell and victim two while Spruell was raping her and victim two was screaming. Spruell attempted to flee, but the officer apprehended him. Following his arrest, Spruell was identified by both victims as the person who assaulted them. Spruell told the police that victim two consented to sexual intercourse with him.

During the trial, evidence was presented that Spruell had a sexual encounter with a third woman and had blood on his shirt. Tests of this blood showed that this was not the blood of either victim one or victim two.

1. Relying upon victim two’s testimony that Spruell’s penis only hit her vagina and his denial that he raped her, Spruell contends the evidence is not sufficient to sustain his conviction for rape. We disagree.

“Under the established rule in this State, the penetration of the female sexual organ by the sexual organ of the male, which is necessary to constitute rape, need be only slight; it is not necessary that the vagina shall be entered or the hymen ruptured, but an entering of the anterior of the organ, known as the vulva or labia, is sufficient.” [Cits.]

Payne v. State, 231 Ga. 755 (1) (204 SE2d 128) (1974).

After viewing the evidence in the light most favorable to the jury’s verdict, we conclude that victim two’s testimony, in conjunction with Spruell’s testimony that victim two not only consented to the sexual act, but forced him to have sex with her, presented sufficient evidence of penetration to allow a rational trier of fact to find Spruell guilty of rape beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Spruell also contends that his identification by victim one was tainted by an impermissibly suggestive photo lineup. See Tiller v. State, 222 Ga. App. 840, 841 (476 SE2d 591) (1996). According to victim one’s testimony, the photo lineup shown to her initially was not the same as the one introduced at trial, and the first lineup had Spruell’s photograph taped on top of another photograph. The test employed in such cases “is whether the identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” McCoy v. State, 190 Ga. App. 258, 260 (3) (378 SE2d 888) (1989). Further, when evaluating the likelihood of misidentification, courts must consider: (a) the opportunity of the witness to view the criminal at the time of the crime, (b) the witness’s degree of attention, (c) the accuracy of the witness’s prior description of the criminal, (d) the level of certainty demonstrated by the witness at the confrontation, and (e) the length of time between the crime and the confrontation. Id. at 260-261.

In this appeal, victim one was face to face with Spruell for an extended period while he attempted to persuade her to enter his car and then during the attack. She made her initial identification of him shortly after the incident, and she identified Spruell without hesitation. Also, the description of her attacker and his car was generally accurate, except for stating that Spruell had on long pants when he was wearing shorts, and she was particularly accurate in describing items which could be and were found in Spruell’s car. In addition, the police officer who supervised the photo lineup testified that victim one immediately identified Spruell when she was presented with the photographs, and that only one lineup was prepared. Further, victim one positively identified Spruell in court.

Considering these factors, we conclude that under the circumstances of this case, the procedures used were not so impermissibly suggestive as to cause a very substantial likelihood of irreparable misidentification.

Assuming arguendo that some taint occurred in the pretrial identification, a witness’s in-court identification may be admitted if it has an “independent origin.” McCoy v. State, 190 Ga. App. 261. See Jones v. State, 258 Ga. 25, 27 (3) (365 SE2d 263) (1988). Thus, considering the totality of the circumstances discussed above as well as the witness’s ability to identify Spruell, notwithstanding the passage of time until trial, we find that the witness’s in-court identification had an independent origin.

3. After Spruell’s conviction, his appellate defense counsel filed an amended motion for a new trial asserting that Spruell’s defense counsel in the two previous trials and this trial did not provide him with effective assistance of counsel. Spruell alleged that his defense counsel failed to move for a severance of the counts of the indictment, made an untimely objection to victim one’s identification testimony, failed to object to prejudicial remarks in the prosecutor’s closing argument, requested a confusing jury charge on rape, failed to enforce a subpoena for an alibi witness, and failed to argue adequately that Spruell could be treated as a first offender. After conducting a hearing on these allegations during which the trial defense counsel testified, the trial court denied Spruell’s motion.

To prevail, Spruell was required to establish that his trial defense counsel’s performance was deficient and the deficient performance prejudiced his defense. Brown v. State, 257 Ga. 277, 278 (2) (357 SE2d 590) (1987). Spruell needed to show there was a reasonable probability the result of his trial would have been different, but for his defense counsel’s unprofessional deficiencies. Baggett v. State, 257 Ga. 735 (1) (363 SE2d 257) (1988). Spruell further had to overcome the strong presumption that his representation was effective. Clarington v. State, 178 Ga. App. 663, 667 (5) (344 SE2d 485) (1986).

In reviewing this issue, however, we need not address both components of an ineffective assistance of counsel claim if the appellant makes an insufficient showing of one component, and the components need not be addressed in any particular order. Thompson v. State, 191 Ga. App. 906 (1) (383 SE2d 339) (1989); Young v. State, 191 Ga. App. 651, 653 (2) (382 SE2d 642) (1989). As we do not find that Spruell’s trial defense counsel was ineffective, we will not address whether the outcome of the trial might have been different had counsel been ineffective.

(a) As Spruell was not entitled to a severance, the trial defense counsel was not ineffective for not moving for one. It is not an abuse of discretion for a trial court to refuse a severance of multiple charges when the crimes alleged were part of a continuous transaction conducted over a brief time span, and from the nature of the transaction, it would be almost impossible to present evidence of one of the crimes to the jury without also permitting evidence of another. Dobbs v. State, 204 Ga. App. 83-84 (1) (418 SE2d 443) (1992). This case falls within those circumstances.

(b) Additionally, the trial defense counsel’s objection regarding victim one’s identification of Spruell was considered and denied on the merits; it was not denied because it was untimely. Moreover, we find in Division 2 that the trial court did not err by overruling Spruell’s objection to this witness’s identification testimony.

(c) Although the trial defense counsel’s argument that Spruell should be treated as a first offender may not have been a model of perfection, the argument was sufficient to present the issue to the trial court. Further, as State v. Allmond, 225 Ga. App. 509 (484 SE2d 306) (1997), was subsequently overruled, it cannot be said the trial court erred by refusing to accept the Allmond-based argument. See Fleming v. State, 233 Ga. App. 483, 485-488 (3) (504 SE2d 542) (1998).

(d) In the same manner, trial defense counsel objected to the prosecutor’s closing argument, but the objection was not sustained. Because we find in Division 4 that no further action was required of the trial court, this cannot constitute ineffective assistance of counsel.

(e) We also find that the charge requested on the rape count was unlikely to have confused the jury and did not constitute ineffective assistance of counsel. This charge, in effect, tried to preserve both the lack of penetration argument and Spruell’s contention that victim two consented to voluntary intercourse.

(f) The transcript shows the trial defense counsel decided not to request a continuance to obtain the presence of the witness after con-suiting with Spruell. It is not apparent that this decision constituted the ineffective assistance of counsel. Even if this decision was a mistake, strategic or tactical errors do not always equal ineffective assistance of counsel. Clarington, 178 Ga. App. at 667. Even though another trial defense counsel may have pursued a different strategy or tactic, this does not constitute a denial of the effective assistance of counsel. Heard v. State, 177 Ga. App. 802, 804 (5) (341 SE2d 459) (1986). “In the absence of testimony to the contrary, counsel’s actions are presumed strategic. Stanley v. Zant, 67 F2d 955 (11th Cir. 1983), cert, denied, 467 U. S. 1219 (1984).” Earnest v. State, 262 Ga. 494, 496-497 (5) (422 SE2d 188) (1992).

A trial defense counsel’s performance must be measured under the circumstances existing at trial and not with the benefit of hindsight. Smith v. Francis, 253 Ga. 782, 783 (1) (325 SE2d 362) (1985). Considering the totality of the trial and not just appellant’s allegations of isolated errors (Clarington, 178 Ga. App. 666-667), we are satisfied that Spruell has not met his burden of showing that his defense counsel was ineffective.

Accordingly, we do not find that the trial court erred by denying Spruell’s motion for new trial based upon ineffectiveness of counsel.

4. In addition to urging that trial defense counsel was ineffective for failing to object promptly to the prosecutor’s closing argument, Spruell also contends the argument was improper and prejudicial. Spruell’s objection concerns the prosecutor’s argument that Spruell attacked three victims that night. This argument was based on Spruell’s statement that he had sexual relations with another woman that night and the presence of blood on the front of his shirt. The trial court responded to the objection by reminding the jury that counsel’s argument was not evidence and advising the jury to recall the facts and the evidence.

Although counsel may not state prejudicial facts that are not in evidence, counsel may draw deductions from the evidence regardless of how illogical and unreasonable. Adams v. State, 260 Ga. 298, 299 (1) (392 SE2d 866) (1990). In this case, the statements made by the prosecutor were drawn from testimony. Therefore, this was a matter for reply by Spruell’s counsel, and not for rebuke by the court or a mistrial. Alexander v. State, 263 Ga. 474, 475-477 (2) (435 SE2d 187) (1993).

Further, whether a trial court takes sufficient measures to remove improper matters from the minds of the jury generally depends upon the circumstances of the case. In this appeal, we cannot conclude the trial court’s response to the prosecutor’s argument was so inadequate as to require a new trial. Purvis v. Toole, 207 Ga. App. 189, 190 (3) (427 SE2d 565) (1993).

5. Spruell’s contention that the trial court was required to give, sua sponte, a limiting instruction on the use of the similar transaction evidence is without merit. State v. Belt, 269 Ga. 763, 764 (505 SE2d 1) (1998).

Decided March 18,1999

Reconsideration denied April 1,1999

Dwight L. Thomas, Caprice J. Small, for appellant.

Kenneth B. Hodges III, District Attorney, Gregory W. Edwards, Assistant District Attorney, for appellee.

6. Spruell’s allegation that it was error for his prior testimony to have been read to the jury is without merit. Although Spruell acknowledges that our law clearly authorizes reading such testimony, he contends that it should have been excluded in this case because his prior testimony was prompted by victim one’s identification evidence which Spruell contends should have been excluded. As we found in Division 2 that the identification testimony was authorized, this enumeration of error is also without merit.

Judgment affirmed.

Smith, J., and Senior Appellate Judge Harold R. Banke concur.


author: Beasley, Presiding Judge.

text:
    A98A0597.
    GRAND UNION COMPANY v. MILLER.
    (517 SE2d 533)
    Decided April 1,1999.
   Beasley, Presiding Judge.

In Division 2 of Grand Union Co. v. Miller, 232 Ga. App. 857 (503 SE2d 49) (1998), we held that the trial court erred in denying Grand Union’s motion for summary judgment insofar as Miller sought to hold it liable for false imprisonment, assault and battery on a theory of respondeat superior based on the conduct of its employee Fox. In the other divisions, we held that the trial court also erred in denying Grand Union’s motion for summary judgment on Miller’s additional claims. On certiorari, the Supreme Court in Miller v. Grand Union Co., 270 Ga. 537 (512 SE2d 887) (1999), reversed our holding in Division 2 but not the remaining divisions. Accordingly, with respect to Division 2, our decision is vacated, the judgment of the Supreme Court is made the judgment of this Court, and the trial court’s judgment is affirmed in part and reversed in part.

Judgment affirmed in part and reversed in part.

Pope, P. J., and Ruffin, J., concur.

Hall, Booth, Smith & Slover, Robert L. Shannon, Jr., for appellant.

Steven L. Beard, Steven A. Cook, for appellee.


text:
    A99A0065.
    A99A0066.
    ST. JOSEPH’S HOSPITAL, INC. v. THUNDERBOLT HEALTH CARE, INC. STATE HEALTH PLANNING AGENCY v. THUNDERBOLT HEALTH CARE, INC.
    (517 SE2d 334)
   Beasley, Presiding Judge.

In two separate appeals, St. Joseph’s Hospital and the State Health Planning Agency (“SHPA”) challenge the decision of the Superior Court of Twiggs County which reversed a final decision of the State Health Planning Review Board awarding a certificate of need (“CON”) to St. Joseph’s for an 11-bed nursing facility in Chatham County. The Review Board had upheld a hearing officer’s findings of fact and conclusions of law entered after a formal hearing. The superior court ruled in favor of Thunderbolt Health Care, whose CON application had been denied, and held that the Review Board’s decision “was improper.” The cases are consolidated for this appeal.

The advent of subacute care, a new way of providing medical care, was occurring in Georgia when St. Joseph’s, Thunderbolt and Candler Hospital, Inc. (no longer a party) applied to SHPA for CONs to add 11 beds to their respective facilities. Their applications were triggered by a projected unmet need for 11 nursing home beds in Chatham County by 1998. The projected need was based on a calculation provided in former SHPA Rule 272-2-.09 (9) (b) 1. which allowed 47 “nursing home beds” per 1,000 projected civilian non-institutional population age 65 or older in Chatham County.

In response to notice of the unmet need, St. Joseph’s submitted an application to provide 11 beds by converting 13 general acute care hospital beds into 11 skilled nursing beds. The principal purpose of the conversion was to offer what St. Joseph’s categorized as “subacute care” in a skilled nursing unit to be located within the hospital. At the same time, Thunderbolt submitted an application to add 11 beds to its traditional nursing home which at that time was under construction in Chatham County.

On July 19,1995, after a comparative review of each of the three applicants, SHPA awarded a CON for the 11 beds, to St. Joseph’s. Thunderbolt requested an administrative appeal before the SHPA Review Board, contesting denial of its application and the award to St. Joseph’s. Following an administrative hearing on May 30, 1996, the Review Board hearing officer issued 24 findings of fact and 26 conclusions of law upholding SHPA’s award of the CON to St. Joseph’s. Six months later the Review Board affirmed and adopted the hearing officer’s findings and conclusions as its final decision. Thunderbolt petitioned Twiggs Superior Court for judicial review.

Thunderbolt essentially asserted that short-term, subacute care, skilled nursing beds offered by St. Joseph’s did not meet the calculated unmet need for “nursing home beds” as defined in the rules. Thunderbolt contends that comparing different types of applications was an abuse of discretion, and that its application should have been considered on its own for a determination of whether it was entitled to the CON. Accordingly, Thunderbolt asserts that SHPA’s procedure denied Thunderbolt its constitutionally guaranteed right of due process.

On May 20, 1998, the superior court reversed the board upon concluding, without written analysis: “After reviewing all of the briefs, citations, evidence, and authority submitted, the Court finds that the decision of the State Health Planning Board to grant the Certificate Of Need to St. Joseph’s is improper.”

We granted SHPA’s and St. Joseph’s applications to appeal. They contend the court exceeded the limited scope of review authorized as to final agency decisions, erred by reweighing the evidence, failed to accord due deference to SHPA’s interpretations of SHPA’s own rules, failed to make required findings, failed to find that Thunderbolt waived its arguments below, and erred in reversing the Review Board’s decision.

1. The trial court was authorized to reverse or modify the Review Board’s final decision only if substantial rights of Thunderbolt had been prejudiced because the procedures or the final decision of the administrative process violated constitutional or statutory provisions, exceeded SHPA’s authority, resulted from unlawful procedures, were affected by other error of law, were not supported by substantial evidence, or were arbitrary or capricious or otherwise abusive of discretion. Appellants contend reversal is warranted because the court failed to make one of the required findings but merely concluded the decision “was improper.”

Under the Administrative Procedure Act, which is specifically made applicable through OCGA § 31-6-44 (m),

[w]henever a superior court judge is required by law to make certain findings in order to return a verdict [sic], the presumption is that he has made the required findings, absent a showing to the contrary. This presumption applies even if the required findings are not specifically set out in the order. [Cit.P

Accepting such, this Court must go on and “determine whether the judge of the superior court has in his own final ruling committed an error of law.” Accordingly consideration must be given to the issues raised by Thunderbolt in its appeal to the superior court.

2. The SHPA rule which precipitated projection of an 11-bed unmet need in Chatham County was in the part of SHPA’s rules entitled “Skilled Nursing and Intermediate Care Facilities.” That section projects unmet need for “nursing home” beds, and “nursing home” is defined as follows: “ A nursing home’ is a long-term facility. ... A nursing home may be licensed as a skilled nursing facility, an intermediate care facility, or an intermingled facility.” No definition is given for “long-term,” no precise time period is set, and the rule does not mention subacute care.

SHPA is the state agency chartered to administer the certificate of need program and to adopt rules and procedures to administer its functions. SHPA’s authority to create rules and procedures is limited by the statutes that establish it, and SHPA is “not authorized to enlarge the scope of, or supply omissions in, a properly-enacted statute.”

By statute, certificates of need are required for “new institutional health services or health care facilities.” The meaning of “new institutional health service” includes construction, development, or other establishment of a new “health care facility.” The definition of health care facility is broad and includes, among others, “skilled nursing facilities”:

“Skilled nursing facility’ means a public or private institution or a distinct part of an institution which is primarily engaged in providing inpatient skilled nursing care and related services for patients who require medical or nursing care or rehabilitation services for the rehabilitation of injured, disabled, or sick persons.

There is no definition for “nursing home” in the enabling statutes.

In short, SHPA is required by law to establish rules and regulations for issuing CONs for new skilled nursing facilities as defined in OCGA § 31-6-2 (22). In developing its rules SHPA is also required to implement applicable parts of the state health plan. For instance, one consideration for granting a CON is determining whether “[t]he proposed new institutional health services are reasonably consistent with the relevant general goals and objectives of the state health plan.” The state health plan is adopted by the Governor’s Health Strategies Council and approved by the Governor. The component of the state health plan applicable to the rules governing nursing homes is entitled “Component Plan — Long-Term Care: Nursing Homes,” and a certified copy was introduced as an exhibit.

Thunderbolt contends that because St. Joseph’s offers subacute care it is not offering to provide a “nursing home” as defined in the rules. Despite St. Joseph’s characterization of the type of service to be provided as “subacute,” St. Joseph’s proposed beds constitute skilled nursing beds as defined in OCGA § 31-6-2 (22) and in SHPA’s rules.

A health planning expert gave unrebutted testimony explaining that subacute care is care provided to patients who no longer warrant placement in an acute care hospital bed but still need more extensive nursing services than are generally available in a traditional nursing home. The expert further testified that subacute care is consistent with a specific objective of the Component Plan, which provides: “Services provided on a skilled care level to those who require extended care post-hospitalization and more intensive skilled care.” He also testified that subacute care is only a subset of “skilled nursing” care.

The director of the regulatory review division of SHPA testified that for the agencys purposes subacute is merely skilled care. “The interpretation of a statute by an administrative agency which has the duty of enforcing or administering it is to be given great weight and deference. [Cits.]” Thunderbolt offers no authority for a different conclusion.

HCA Health Svcs. of Ga. v. Roach is inapposite. There SHPA interpreted one of its rules in such a way as to exceed the power granted to it by the legislature. Here, the enabling statute encompasses all skilled nursing facilities, and it is Thunderbolt who attempts to argue that SHPA’s rules do not cover a subset of that category. Construction of the relevant statutes, the Component Plan and SHPA nales, together with.expert testimony and SHPA’s own opinion of the meaning of its rules leads to the inescapable conclusion that although St. Joseph’s characterized the services that it was offering as “subacute” they fall within the definition of “skilled nursing.”

St. Joseph’s projected that a patient’s average length of stay would be 15 days at the proposed facility. Thunderbolt contends that this disqualifies St. Joseph’s because the unmet need is for beds in nursing homes which are “long-term” beds. There is no definition for “long-term” in the “Skilled Nursing and Intermediate Care Facilities” section of SHPA’s rules. Thunderbolt points to a separate section of SHPA’s rules entitled “Short-Term Hospital Beds” which defines “short-stay hospitals” as those with an average length of stay of less than 30 days. Thunderbolt asserts that by negative implication “long-term” as used in the “Skilled Nursing and Intermediate Care Facilities” section must mean average length of stay of 30 days or greater.

The definition of “nursing home” in SHPA Rule 272-2-.09 (9) (a) 1. is identical to the definition found in the Component Plan, including the word “long-term.” Page one of the Component Plan, the introductory background section on “Long-Term Care Planning” states:

Long-term care is defined as the personal or professional services that are required on a recurrent or continuous basis by an individual because of chronic or permanent physical or mental impairment. The services may be provided in a variety of settings, including the client’s own home. The purpose of long-term care services is to relieve the effects of illness, and to maintain or enhance functional capacities that maximize personal independence.

(Footnotes and punctuation omitted.) This definition includes no reference to the average length of stay necessary to qualify as a “long-term” facility.

The state health plan is a comprehensive program designed “for the purpose of providing adequate health care services and facilities throughout the state.” It seeks to maximize utility out of existing health care facilities and create a dynamic and responsive environment for those seeking medical care. An objective of the plan is to provide a level of skilled care to those people who require extended care post-hospitalization and more intensive skilled care. One standard found in the plan for providing these services is that: “permanent conversion of existing underutilized acute care hospital beds to skilled or intermingled beds will receive more favorable consideration to meet identified need. . . .” The same standard is in SHPA’s rules. Rationale for converting hospital beds to long-term care nursing home beds includes that “[t]he effects of reimbursement policies and changing hospital use patterns have resulted in underutilization of some hospital beds.” Further:

While hospitals are responding to the acute-care needs of community residents, some hospitals indicate that they are experiencing increasing difficulty in placing patients who need longer term care. Alternatives to expensive acute-care services should be available to provide other appropriate settings for the patients who need long-term care.

Based on the enabling statutes, the state health plan, SHPA’s rules, and the testimony regarding SHPA’s interpretation of its own rules, it is clear that the beds offered by St. Joseph’s fit the definition of nursing home beds in SHPA’s rules.

“Short-stay hospital” in the rules is a different category of health care. SHPA Rules 272-2-.09 (1) through 272-2.09 (20) establish standards and criteria for awarding CONs for 20 different categories of health care, for example: category 1 — “Ambulatory Surgical/Obstetrical Services”; category 2 — “Radiation therapy”; category 3 — “Magnetic Resonance Imaging.” Category 8 is “Short-Term Hospital Beds,” and category 9 is “Skilled Nursing and Intermediate Care Facilities.” No one contends that category 8 governs issuance of a nursing home CON. Rather, Thunderbolt contends it should control the definition of “long-term” as used in category 9.

Decided April 1,1999.

Parker, Hudson, Rainer & Dobbs, John H. Parker, Jr., Thomas D. Watry, for appellant (case no. A99A0065).

Thurbert E. Baker, Attorney General, Brenda H. Cole, Robert S. Bomar, Deputy Attorneys General, Harold D. Melton, Senior Assistant Attorney General, William W. Calhoun, Assistant Attorney General, for appellant (case no. A99A0066).

Jack R. Hancock, for appellee.

Nothing in the rules supports Thunderbolt’s argument. Short-stay hospital beds are not related to the Component Plan for long-term care, which is the component plan applicable to category 9. The definition of “short-stay hospital” does not override the consistent treatment of “skilled nursing” and “nursing home” in the Component Plan, the enabling statutes or SHPA rules.

Finally, Thunderbolt did not challenge in the superior court the Review Board’s finding on the merits that St. Joseph’s application better fit the unmet need. Nor does it appear from the court’s order that it reweighed the evidence or determined that the Review Board’s decision was not supported by substantial evidence. It ruled only that the award to St. Joseph’s was improper. But the Review Board’s final decision was not infected by any error of law or other prejudice to Thunderbolt’s rights as described in OCGA § 31-6-44 (m), for any of the reasons raised by Thunderbolt in its appeal for judicial review.

The remaining enumerations of error are moot.

Judgment reversed.

Blackburn, J., concurs. Barnes, J., concurs in judgment only.

       See also OCGA § 31-6-40.1 (b): SHPA may limit applications for skilled nursing facilities, intermediate care facilities, and home health agencies to only such time as it has determined there is an unmet need for such facilities; it shall notify those so requesting of any unmet need. The need was published.

       OCGA § 31-6-44 (m).

        Burson v. Collier, 226 Ga. 427, 428 (1) (a) (175 SE2d 660) (1970) (judicial review under Administrative Procedure Act).

        DeWeese v. Ga. Real Estate Comm., 136 Ga. App. 154, 155 (1) (220 SE2d 458) (1975) (appellate review of superior court decision on appeal of an administrative procedure).

       Former SHPA Rule 272-2-.09 (9).

       Former SHPA Rule 272-2-.09 (9) (b) 1.

       OCGA § 31-6-21.

        North Fulton Med. Center v. Stephenson, 269 Ga. 540, 543 (501 SE2d 798) (1998).

       OCGA § 31-6-40 (a).

       OCGA § 31-6-2 (14).

       OCGA § 31-6-2 (8).

       OCGA § 31-6-2 (22).

       OCGA § 31-6-21 (b) (1).

       OCGA § 31-6-42 (a) (1).

       See OCGA § 31-6-21; former SHPA Rule 272-2-.08 (2) (a) 1.

        Hosp. Auth. of Gwinnett County v. State Health Planning Agency, 211 Ga. App. 407, 408 (2) (438 SE2d 912) (1993). Accord Atlanta Journal &c. v. Babush, 257 Ga. 790, 792 (2) (364 SE2d 560) (1988) (“in construing administrative rules, ‘the ultimate criterion is the administrative interpretation, which becomes of controlling weight unless it is plainly erroneous or inconsistent with the (rule),’ ” quoting United States v. Larionoff, 431 U. S. 864, 872 (97 SC 2150, 53 LE2d 48) (1977)).

       265 Ga. 501 (458 SE2d 118) (1995).

       Id. at 502-503 (2).

       See former SHPA Rule 272-2-.09 (8) (b).

       OCGA § 31-6-2 (23).

       OCGA § 31-6-1.

       Former SHPA Rule 272-2-.09 (9) (b) 1. (iii).

       See Hosp. Auth. of Gwinnett County, supra, 211 Ga. App. at 408 (2) (rules not inconsistent or in conflict; agency interpretation prevails).

       OCGA § 50-13-19 (h) (“The court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact.”). Accord Hosp. Auth. of Gwinnett County, supra, 211 Ga. App. at 409-410.


text:
    A99A0127.
    CASEY v. THE STATE.
    (515 SE2d 429)
   Barnes, Judge.

A jury convicted Joel Casey of rape, statutory rape, aggravated sodomy, and five counts of child molestation. Casey appeals, contending: (1) he is entitled to a new trial because the jury saw him in handcuffs; (2) the trial court should not have instructed the jury on rape in addition to statutory rape because the victim was under the age of fourteen; (3) there was insufficient evidence of force to support his rape conviction; and (4) the trial court should have directed a verdict in his favor on one of the child molestation charges because it merged with the aggravated sodomy charge. We affirm.

1. Casey claims he is entitled to a new trial because he was “shackled in full view of [the] jurors” on the last day of his trial. The evidence presented during the hearing on Casey’s motion for new trial shows that two uniformed sheriff’s deputies took Casey back to the jail during a break before the jury began their deliberations. Casey was placed in handcuffs, and several jurors were standing on the courthouse steps when Casey was escorted down the steps to a patrol car. At some point that day, Casey told his lawyer that he thought the jurors had seen him leaving the courthouse in handcuffs. The jury returned its verdict shortly after this break, and we cannot determine from the evidence presented during the motion hearing whether Casey told his counsel about this before the verdict. Casey did not move for a mistrial on the grounds that the jury could have observed him in handcuffs at any time before or after the verdict on the last day of his trial. He first asserted he was entitled to a new trial on this ground almost two months later.

No jurors testified in the motion for new trial hearing. As a result, we cannot determine from the record whether any juror actually saw Casey in handcuffs on the last day of his trial and, if so, whether it prejudiced them against him or influenced the verdict in any way.

The record does show, however, that the trial court did not dismiss the jurors from their duties at the conclusion of Casey’s trial. Instead, he explained that they were required to serve as jurors for the entire week and ordered them to return at 9:00 the next morning. Thus, if Casey had raised this ground on either the last day of his trial or the next day, the jurors would have been available for the trial court to question them and determine if they had seen Casey in handcuffs and whether this resulted in any prejudice against Casey.

Absent justifying circumstances, the defendant normally should not be seen by the jury handcuffed in the courtroom or courthouse. However, where one or more jurors by chance see the defendant in handcuffs outside the courtroom, it is not error to deny a motion for a mistrial. [Cits.]

Gates v. State, 244 Ga. 587, 593 (2) (261 SE2d 349) (1979). Moreover, “[a]bsent a showing of prejudice by the defendant, it is within the discretion of the trial judge to determine whether a mistrial should be granted where it is alleged by defendant that one or more jurors observed him in handcuffs. [Cits.]” Wells v. State, 186 Ga. App. 62, 63 (3) (366 SE2d 397) (1988).

Under the facts and circumstances of this case, we find the trial court did not abuse its discretion when it denied Casey’s motion for a new trial. Dennis v. State, 170 Ga. App. 630, 632 (3) (317 SE2d 874) (1984) (“Abuse of discretion is the test on appeal where restraining devices have been used in the trial court.”). There is no evidence in the record that any of the jurors actually saw Casey in handcuffs, and he failed to meet his burden of establishing prejudice.

2. In his second enumeration of error, Casey contends the trial court improperly charged the jury. However, Casey’s counsel told the trial court at the conclusion of its charge to the jury that he had no exceptions to the charge. As a result, this enumeration presents nothing for us to review.

The general rule in this state is that defendants in criminal cases are not required to except to the jury charge to preserve error for appeal. If, however, the trial court asks if there are objections to the charge, defense counsel must either state his objections or reserve the right to object on motion for new trial or on appeal. Where objections are requested, the failure to either object or to reserve the right to later object amounts to a procedural default barring appellate review of the charge.

(Citations omitted.) Rivers v. State, 250 Ga. 303, 309 (7) (298 SE2d 1) (1982).

3. In his third enumeration of error, Casey contends there was insufficient evidence of force to sustain his rape conviction. Under OCGA § 16-6-1 (a), “[a] person commits the offense of rape when he has carnal knowledge of a female forcibly and against her will.” In State v. Collins, 270 Ga. 42, 43 (508 SE2d 390) (1998), our Supreme Court recently reiterated that “the state must prove the element of force as a factual matter in forcible rape cases rather than presuming force as a matter of law based on the victim’s age.” However, the Supreme Court also noted that “the quantum of evidence to prove force against a child is minimal.” Id. at 44-45.

In this case, the ten-year-old victim testified that she did not want the defendant to put his penis in her vagina, and that she did not ask him to do it. She also testified that she had to ask him to stop more than once before he stopped. We find that a rational trier of fact could reasonably have found from this evidence that the defendant had forcible sexual intercourse with the victim. See Williamson v. State, 186 Ga. App. 589, 590 (1) (367 SE2d 863) (1988) (sufficient evidence of force when victim testified that she asked defendant to release her and he continued having sex with her). Compare Collins v. State, 229 Ga. App. 658, 660 (1) (a) (495 SE2d 59) (1997), aff'd, Collins, supra, 270 Ga. 42 (finding insufficient evidence of force in case where victim never told the defendant to stop or to leave her alone). As a result, sufficient evidence supports Casey’s conviction for rape. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided April 1,1999

Charles G. Wright, Jr., for appellant.

Herbert E. Franklin, Jr., District Attorney, Michael J. Moeller, Assistant District Attorney, for appellee.

4. In his final enumeration of error, Casey claims he was entitled to a directed verdict on the count of child molestation which alleged that he caused the victim to touch his penis with her hands because it merged with the aggravated sodomy charge alleging that he caused her to place her mouth on his penis. We find no merit in this enumeration because his convictions for these charges were based upon separate acts. Bryant v. State, 204 Ga. App. 856, 857 (2) (420 SE2d 801) (1992). The victim testified that she touched Casey’s penis with her hand at his request on two occasions. She also testified that on another occasion, she touched his penis with her mouth.

Judgment affirmed.

Blackburn, J., and Senior Appellate Judge Harold R. Banke concur.