author: Andrews, Judge.

text:
    A94A1369.
    ELBERT COUNTY BOARD OF EDUCATION v. GURLEY.
    (450 SE2d 258)
   Andrews, Judge.

On March 3, 1992, the principal of Elbert County High School conducted a random search of students’ automobiles, looking for weapons. Search of the appellee’s car uncovered a .25 caliber pistol in the vehicle’s glove compartment.

The principal immediately suspended the appellee for ten days. However, after a hearing on the matter, the Elbert County Board of Education (Elbert County) suspended the appellee for the remainder of the school semester, and the State Board of Education subsequently upheld that suspension. The appellee then sought judicial review of that decision by filing a notice of appeal with the superior court on October 7, 1992. Eventually, on November 8, 1993, the superior court reversed, on the grounds that the search of the student’s car was illegal and the suspension was arbitrary.

Elbert County moved to set aside that judgment, contending that the superior court lacked jurisdiction over the matter because the appellee had not filed his notice of appeal with the State Board of Education as required under OCGA § 20-2-1160. The trial court denied that motion, and this discretionary appeal followed.

Under OCGA § 5-3-21, “[a]n appeal to the superior court may be taken by filing a notice of appeal with the court, agency, or other tribunal appealed from.” It further appears from OCGA § 20-2-1160 (c) that where a party seeks superior court review of a decision of the State Board of Education, the notice of appeal must be filed with the State Board, because the State School Superintendent is required to transmit the record and transcript to the superior court within ten days after the notice of appeal is filed. Transmission of the record is essential for disposition of the appeal, as under OCGA § 20-2-1160 (e) the superior court’s review of the matter is confined to the record.

In the specific context of an appeal to the superior court from a decision of the State Board of Education, this court has held that filing a notice of appeal with the superior court instead of the State Board bestows no jurisdiction upon the superior court to consider the appeal. In such a situation, the proper disposition by the superior court is dismissal of the appeal. Cooper v. Gwinnett County Bd. of Ed., 157 Ga. App. 289 (277 SE2d 285) (1981). Accordingly, the trial court erred in considering the appeal on its merits, reversing the State Board’s decision, and denying Elbert County’s motion to set aside the judgment.

Decided October 25, 1994

Reconsideration denied November 14, 1994

Heard, Leverett, Phelps, Weaver & Campbell, E. Freeman Leverett, Robert F. Leverett, for appellant.

In asserting jurisdiction over the matter, the superior court relied upon Mack v. Demming, 248 Ga. 117, 119 (281 SE2d 591) (1981), in which the Supreme Court held that where “a notice of appeal from a probate court decision is filed in a timely fashion, but in superior court rather than probate court, the superior court is vested with discretion in determining whether to dismiss the appeal.” However, that pronouncement regarding appellate procedures applicable to appeals from probate courts, and more generally to appeals from lower courts or agencies, does not control the instant case, in view of Cooper v. Gwinnett County Bd. of Ed., supra, which dealt specifically with appeals from decisions of the State Board of Education.

In any event, even applying Mack v. Demming, the superior court erred in reversing the State Board’s decision and in denying Elbert County’s motion to set aside. In that case, after noting that the superior court had discretion in determining whether to dismiss a case in which the notice of appeal was improperly filed with the superior court, the Supreme Court pointed out that “[i]f the superior court finds that the filing of the notice of appeal in superior court has caused an unreasonable as well as inexcusable delay in the transmission of the record from probate court, the appeal should be dismissed.” (Emphasis supplied.) Id. at 119.

In the instant case, without any reference to the record, the superior court found that the appellee’s failure to file a notice of appeal with the Board of Education did not cause unreasonable delay. However, inasmuch as no record was ever transmitted by the State Board to the superior court because of the appellee’s misfiling of the notice of appeal, the delay caused by the appellee can be considered nothing but unreasonable. Under these circumstances, the superior court abused its discretion in declining to dismiss the appeal and in denying the motion to set aside.

Judgment reversed.

Beasley, P. J., and Johnson, J., concur.

James W. Smith, for appellee.


source: Caselaw Access Project

author: Smith, Judge.

license: Public Domain

text:
    A94A1625.
    COPELAND v. HOUSTON COUNTY HOSPITAL AUTHORITY et al.
    (450 SE2d 235)
   Smith, Judge.

In this medical malpractice case, plaintiff Louis Copeland appeals from the trial court’s grant of summary judgment to the defendants, the Houston County Hospital Authority d/b/a Houston Medical Center Complex, and a nurse at the hospital.

Copeland alleged in his complaint that a nurse at the hospital improperly administered an injection, damaging his left sciatic nerve. The record shows that Copeland had undergone a total left hip replacement in 1978 and that his prosthesis had loosened, causing pain. He presented at the hospital emergency room numerous times in late October 1990, complaining of pain in his left hip and knee.

He was seen on October 28, 1990, by Dr. Robert Graham, an emergency room physician. Dr. Graham prescribed pain medication to be administered intramuscularly. The injection was given by a nurse. It is this injection that Copeland asserts damaged his left sciatic nerve. He returned to the emergency room on October 30, 1990, complaining of hip and knee pain, and was again given an injection of pain medication, this time in the left arm.

To establish liability in a medical malpractice action, a plaintiff must prove three elements: the duty inherent in the doctor-patient relationship; breach of that duty by failure to exercise the required standard of care; and that this failure is the proximate cause of the plaintiff’s injury. Hawkins v. Greenberg, 166 Ga. App. 574, 575 (1) (a) (304 SE2d 922) (1983). In this case, the trial court granted summary judgment to the hospital because of the plaintiff’s failure to establish a breach of duty by showing that the standard of care had not been met. We affirm.

Copeland’s expert and those of the defendants agreed that the standard of care requires that intramuscular injections in the buttocks be administered in the upper outer quadrants in order to avoid piercing the sciatic nerve. In support of its motion for summary judgment, the hospital presented the affidavit of Hazel Walls, R.N., stating she was the nurse who administered the injection on October 28, 1990, and that she gave the injection in the left upper outer quadrant of Copeland’s buttock. According to Dr. Graham’s deposition testimony, the medical records support Walls’ affidavit.

In opposition to the motion, Copeland submitted the affidavit and deposition testimony of his expert, Rose Marie Norris, R.N. In her affidavit, as amended, Norris stated that although ordinarily one could assume that information in medical records regarding the site of injections was correct, in this case that information was “contradicted by other facts in the medical records.” The affidavit does not indicate the nature of those “other facts.” On her deposition, however, Norris testified that she based her opinion that the injection on the 28th was improperly administered on the fact that Copeland first reported difficulties indicating sciatic nerve pain on October 30, and the October 28 injection was the only one given in his left buttock. This was insufficient to rebut the affirmative statement of fact by Walls, supported by the medical records, that the injection was given in the left upper outer quadrant.

First, the medical records indicate that Copeland reported leg pain prior to October 30, and Norris lacked qualifications as a registered nurse to render an opinion regarding whether Copeland’s reported symptoms on visits prior to October 30 were indicative of possible sciatic nerve damage. In fact, her opinion was contradicted by that of Dr. Graham.

Second, this is not a case of “dueling experts.” The point on which there is disagreement is one of fact, not opinion: the site of the injection on October 28.

It is a well-established principle that in ruling on a motion for summary judgment, a finding of fact that may be inferred from, but is not demanded by, circumstantial evidence has no probative value against positive and uncontradicted evidence that no such fact exists, Brewer v. Southeastern Fidelity Ins. Co., 147 Ga. App. 562, 564 (249 SE2d 668) (1978), provided that the circumstantial evidence may be construed consistently with the direct evidence. McCurry v. Bailey, 224 Ga. 318, 319 (162 SE2d 9) (1968). Summary judgment is improper only when circumstantial evidence is inconsistent with the direct evidence; in such a case, a jury question is created. Douglas v. Gilbert, 195 Ga. App. 796, 798 (395 SE2d 9) (1990); Mealer v. Gen. Cinema Beverages of Ga., 190 Ga. App. 419, 420 (379 SE2d 192) (1989).

In this case, the direct evidence showed that Nurse Walls administered the injection in the left upper outer quadrant of Copeland’s buttock. The circumstantial evidence showed only that Copeland complained of leg pain indicative of sciatic nerve damage two days after the injection. This circumstantial evidence was perfectly consistent with the direct evidence. There was, in fact, some evidence that there could have been some preexisting sciatic nerve damage due to Copeland’s prior hip problems. Weighed against direct evidence that the injection was properly administered, the circumstantial evidence raised only an inconclusive inference that would not withstand the motion for summary judgment. Derry v. Clements, 197 Ga. App. 173, 174 (397 SE2d 594) (1990). The trial court properly granted summary judgment to the hospital.

Decided October 17, 1994

Reconsideration denied November 14, 1994

Edwards & Youmas, Lonzy F. Edwards, for appellant.

Jones, Cork & Miller, Carr G. Dodson, James E. Messer, Jr., for appellees.

Judgment affirmed.

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

       Copeland originally named Denise Atkinson, R.N., as the nurse who administered the injection causing the problem. However, after discovery showed that the medical records clearly indicated Atkinson had administered an injection into his left arm, she was dismissed without prejudice.


text:
    A94A1827.
    DURHAM et al. v. WINN-DIXIE STORES, INC.
    (450 SE2d 257)
   Smith, Judge.

Rebecca Ann and James Durham brought this action seeking damages for injuries incurred when Rebecca slipped and fell while shopping at a Winn-Dixie Store. The case was tried before a jury, which returned a verdict in favor of Winn-Dixie. Judgment was entered on the verdict, and the Durhams’ motion for new trial was denied.

On appeal, the Durhams present eight enumerations of error, all of which involve either the trial court’s charges or the sufficiency of the evidence to support the verdict. We cannot address these enumerations of error without review and consideration of the trial transcript.

OCGA § 5-6-37 directs that the notice of appeal shall set forth a designation of those portions of the record to be omitted from the record on appeal. It also specifically directs that in addition to that information, the notice of appeal “shall state whether or not any transcript of evidence and proceedings is to be transmitted as a part of the record on appeal.” (Emphasis supplied.) Id. The statute clearly places the burden on the appellant to direct transmittal of the trial transcript.

Although the notice of appeal filed by the Durhams directs the clerk to omit nothing from the record and recites that the entire record shall be filed for inclusion in the record on appeal, no mention is made of a transcript. Appellants failed to carry their burden of having the transcript transmitted to this court.

Decided October 24, 1994

Reconsideration denied November 14, 1994

Joseph M. Todd, for appellants.

Fain, Major & Wiley, Thomas E. Brennan, for appellee.

Lacking a transcript of the evidence and proceedings, we must assume that the proceedings, the jury’s verdict, and the judgment entered upon that verdict, were correct. Spires v. Glencastle, Inc., 208 Ga. App. 901, 902 (432 SE2d 567) (1993).

Judgment affirmed.

Pope, C. J., concurs. McMurray, P. J., concurs in the judgment only.


author: Blackburn, Judge.

text:
    A94A1867.
    PHILLIPS v. DRAKE.
    (449 SE2d 879)
   Blackburn, Judge.

On February 4, 1993, appellee, Kenneth Thomas Drake, commenced this action against Natalie Carey Phillips f/k/a Natalie Carey Drake (Phillips), for modification of a joint custody decree. In its January 14, 1994 order, the trial court awarded sole custody to Drake, the minor child’s natural father, following a bench trial. We granted Phillips’ application for discretionary review and this appeal followed.

Incorporated into and made part of the parties’ final divorce decree was a written settlement agreement between them, in which they agreed to joint custody of their minor child, Carey Kenneth Drake (Carey), born October 23, 1988. In the action below, both parties agreed that the joint custody arrangement was not working.

In nine enumerations of error, Phillips attacks the trial court’s order as based on: (1) an application of an improper legal standard, (2) erroneously admitted or insufficient evidence, and (3) abuse of discretion.

1. “The legal principles governing the trial judge’s awesome role in such cases are as follows. Once a permanent child custody award has been entered, the test for use by the trial court in change of child custody suits is whether there has been a change of conditions affecting the welfare of the child. A showing of changed conditions of an out-of-custody parent, without a showing of its material effect on the child, is insufficient to warrant a change in custody. Though the trial judge is given a discretion, he is restricted to the evidence and is unauthorized to change the custody where there is no evidence to show new and material conditions that affect the welfare of the child.

OCGA § 19-9-3 (a) provides that in change of custody cases the trial court’s duty shall be to exercise its discretion to look to and determine what is for the best interest of child or children and what will best promote their welfare and happiness and to make its award accordingly. This rule of law lays the Solomonic task squarely upon the shoulders of the judge who can see and hear the parties and their witnesses, observe their demeanor and attitudes, and assess their credibility. It is that judge upon whom it is incumbent to hear the evidence with respect to changed conditions and render a decision based upon that judge’s discretion and good judgment as that judge viewed the evidence, giving primary consideration to the welfare of the child. In cases of this nature where the evidence is heard before the judge alone and without the intervention of a jury, and where the principal consideration is the welfare of the child involved, the proceeding is not to be governed by strict rules applicable to ordinary trials. Unless the record before this court clearly indicates that the judge based his or her decision upon illegal evidence or upon a misapprehension of the law, it will be presumed that upon rendering his or her decision he or she considered only legal and admissible evidence.” (Citations and punctuation omitted.) Arp v. Hammonds, 200 Ga. App. 715, 716-717 (409 SE2d 275) (1991).

Phillips initially challenges the custody award as the result of a misapprehension of the applicable law or a failure to follow it. We find no evidence of either. With respect to the requirement for a finding of material change affecting the child, the trial court determined that Phillips’ actions and conduct failed to provide character traits such as honesty and standards of moral and wholesome conduct and constituted a change of conditions that affected the welfare, happiness and best interest of the minor child. After agreeing with the parties that joint custody was no longer appropriate, the trial court then found that the change in circumstances was not in the best interest of Carey, and permanently awarded custody to Drake.

The sufficiency of the evidence to authorize a change of custody lies within the sound discretion of the trial judge alone, and, “[i]f there is any reasonable evidence to support the trial court’s decision concerning change of custody as between parents, such decision will be affirmed on appeal. [Cit.]” Lifsey v. Lifsey, 256 Ga. 613, 614 (351 SE2d 637) (1987). There is evidence in the record to support the trial court’s decision to change custody, and we affirm it.

2. Phillips also asserts that the trial court abused its discretion by adopting Drake’s proposed final order in preference to her own and by arbitrary and inconsistent rulings on the evidence, inclusive of the rulings excluding pre-divorce circumstances. There is no evidence in the record that the trial court did not seriously consider all of the evidence before it or the proposed orders of counsel. That the trial court elected to adopt one order over the other is simply an indication that the adopted order reflected the holding of the court. See Strickland v. Long, 216 Ga. 717, 720 (119 SE2d 561) (1961). Moreover, as long as the order of the court is supported by evidence, in the absence of evidence that the court did not seriously consider proposed findings and conclusions of law presented to it, no error results even if a proposed order is adopted verbatim. See Outdoor Advertising Assn. of Ga. v. Dept. of Transp., 186 Ga. App. 550 (1) (367 SE2d 827) (1988). Accordingly, we find no error in the trial court’s order or in the procedure from which same resulted.

Decided October 21, 1994

Reconsideration denied November 14, 1994

Stern & Edlin, George S. Stern, Janis Y. Dickman, for appellant.

Heard, Leverett & Phelps, R. Chris Phelps, for appellee.

Neither do we find error with respect to the trial court’s rulings on the evidence. In a bench trial of this sort the proceedings are relaxed. Arp, supra at 717. Further, in such a proceeding by judge alone, we presume that the trial court considered only legal and admissible evidence, unless the record reflects clear evidence to the contrary or that a misapprehension of the law was evident. Dearman v. Rhoden, 235 Ga. 457, 458 (219 SE2d 704) (1975).

3. Phillips last enumerates as error that the trial court threatened her by stating that the court could award custody to a third party or an institution. This assertion of error is without merit. While the trial court made the statement, it did so, not to Phillips alone, but to both parties. Any error in making the statement was harmless as custody was not awarded to a third party or institution.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.


author: Birdsong, Presiding Judge.

text:
    A94A1889.
    URREA et al. v. FLYTHE.
    (450 SE2d 266)
   Birdsong, Presiding Judge.

Appellants/plaintiffs filed a renewal suit under the provisions of OCGA § 9-2-61, after their original suit was dismissed. The original invasion of privacy suit was filed and process served upon an employee at the defendant’s residence before expiration of the statute of limitation. Defendant also was personally served with process approximately three-and-one-half months after expiration of the statute of limitation. The record does not reveal the basis upon which the original suit was dismissed.

Decided October 31, 1994

Reconsideration denied November 14, 1994.

Adam R. Gaslowitz, Robert C. Port, for appellants.

Hull, Towill, Norman & Barrett, David E. Hudson, for appellee.

The trial court granted appellee/defendant’s motion to dismiss the renewal suit, concluding that “a renewal suit . . . filed under OCGA § 9-2-61 is not timely unless the original lawsuit was filed and served in a timely manner. Hobbs v. Arthur, 209 Ga. App. 855 (434 SE2d 748) (1993); Osborne v. Hughes, 200 Ga. App. 558 (409 SE2d 58) (1991).” Held:

Osborne, supra, is inapposite and is not controlling. Hobbs v. Arthur, 209 Ga. App. 855, supra, and Dependable Courier Svc. v. Dinkins, 210 Ga. App. 665 (436 SE2d 719) were reversed in Hobbs v. Arthur, 264 Ga. 359 (444 SE2d 322); in reversing these cases the Supreme Court held, “as diligence in perfecting service of process in an action properly refiled under OCGA § 9-2-61 (a) must be measured from the time of filing the renewed suit, any delay in service in a valid first action is not available as an affirmative defense in the renewal action.” (Emphasis supplied; footnote omitted.) Id. at 360-361.

Although OCGA § 9-2-61 “ ‘ “applies to involuntary as well as voluntary dismissals, where the merits are not adjudicated,” ’ ” (Swartzel v. Garner, 193 Ga. App. 267, 268 (387 SE2d 359); see also Central Mut. Ins. Co. v. Wofford, 145 Ga. App. 836 (1) (244 SE2d 899), aff’d in part and rev’d in part, Wofford v. Central Mut. Ins. Co., 242 Ga. 338 (249 SE2d 21)), it is a jurisdictional prerequisite to a renewal suit that costs in the first action be paid before the second action is initiated (Shaw v. Lee, 187 Ga. App. 689, 690 (371 SE2d 187); OCGA § 9-11-41 (d)). We cannot conclusively determine from the state of this record whether such costs were paid before the renewal suit was commenced. Accordingly, this case will be remanded to the trial court to determine whether appellant has met the necessary jurisdictional prerequisites for filing a renewal suit. Thereafter, the trial court shall dispose of the motion to dismiss in a manner that is not inconsistent with the holding of the Supreme Court in Hobbs v. Arthur, 264 Ga. 359, supra.

Judgment reversed and remanded.

Blackburn and Ruffin, JJ., concur.


author: Beasley, Presiding Judge.

text:
    A93A1017.
    DANIELS v. THE STATE.
    (451 SE2d 128)
    Decided November 14, 1994.

      Rosemary E. Myers, for appellant.

      Kenneth W. Mauldin, Solicitor, for appellee.
   Beasley, Presiding Judge.

The decision of the Court of Appeals in this case having been reversed by the Supreme Court, Daniels v. State, 264 Ga. 460 (448 SE2d 185) (1994), the decision in Daniels v. State, 211 Ga. App. 23 (438 SE2d 99) (1993), is hereby vacated and the judgment of the Supreme Court is made the judgment of this court.

Judgment reversed.

Pope, C. J., McMurray, P. J., Birdsong, P. J., Andrews, Johnson, Blackburn, Smith and Ruffin, JJ., concur.


author: Ruffin, Judge.

text:
    A94A1649.
    ROGERS v. BAUDET.
    (449 SE2d 900)
   Ruffin, Judge.

Appellant, Joseph Rogers, and appellee, Cathy Baudet, are former husband and wife. When the parties divorced in 1991, Baudet was awarded custody of the couple’s three minor children. In 1993, however, permanent custody of the oldest child, Christopher, was awarded to Rogers. Rogers and Christopher are residents of Kentucky. Rogers brought this action seeking custody of the other two children in Fannin County, Georgia, Baudet’s residence. Baudet counterclaimed seeking, inter alia, custody of and visitation for Christopher.

Rogers subsequently dismissed his complaint and moved to dismiss Baudet’s counterclaim on grounds that custody modifications are required to be brought in the county and state where the legal custodian of the child resides, in this case Kentucky. Baudet filed no response to the motion and Rogers subsequently filed another motion to dismiss the counterclaim under OCGA § 9-11-41 because Baudet had not objected to the motion to dismiss the complaint. The trial court denied both of Rogers’s motions. The court also denied Baudet’s counterclaim for change of custody, but it did establish a schedule for visitation for Christopher. We granted Rogers’s application for discretionary appeal to determine whether the trial court had jurisdiction to consider the counterclaim and issue the visitation schedule.

1. Rogers contends the trial court erred in failing to dismiss Baudet’s counterclaim because it lacked jurisdiction under OCGA § 19-9-23. We agree. OCGA § 19-9-23 (a) provides that “after a court has determined who is to be the legal [guardian] of a child, any complaint seeking to obtain a change of legal custody of the child shall be brought in a separate action in the county of residence of the legal custodian of the child.” We have held that a counterclaim seeking a change of custody in an action brought by the custodial parent in the county of the noncustodial parent’s residence is improper because (1) it is not a separate action and (2) it is not brought in the county of the custodial parent’s residence. Jones v. Jones, 256 Ga. 742, 743 (352 SE2d 754) (1987). Thus, Fannin County, the county of residence of the noncustodial parent, lacked jurisdiction to consider Baudet’s counterclaim for custody of Christopher, including her prayer that visitation be established.

Decided November 14, 1994.

C. Alan Mullinax, for appellant.

James L. Bass, for appellee.

2. Rogers also contends the court erred in modifying, sua sponte, the visitation schedule for Christopher. It is unclear from the record whether the court simply established a visitation schedule for Christopher as requested in Baudet’s counterclaim or modified, sua sponte, an existing one as appellant contends. However, neither is permissible. Although a trial court may modify, sua sponte, visitation under certain circumstances pursuant to OCGA §§ 19-9-1 (b) and 19-9-3 (b), those provisions “come into play only when jurisdiction and venue are also proper.” (Emphasis in original.) Bennett v. Wood, 188 Ga. App. 630, 632 (1) (373 SE2d 645) (1988). “[T]he plain meaning of OCGA § 19-9-23 (a) is that an action by the noncustodial parent to modify visitation with a minor child must be brought in the county of residence of the custodial parent.” Id. at 631. Thus, the court in the instant case had no jurisdiction to establish or modify visitation, sua sponte or otherwise.

3. Given our holding above, we need not address whether the court erred in failing to dismiss the counterclaim pursuant to OCGA § 9-11-41.

Judgment reversed.

Birdsong, P. J., and Blackburn, J., concur.


author: Johnson, Judge.

text:
    A94A2001.
    THE STATE v. HENDERSON.
    (450 SE2d 288)
   Johnson, Judge.

Willie J. Henderson was charged with possession of cocaine with intent to distribute, possession of marijuana with intent to distribute and carrying a concealed weapon. Henderson filed a motion to suppress, claiming the arresting officer lacked probable cause to arrest him and search his car. The trial court granted Henderson’s motion. The state appeals.

At the motion to suppress hearing, Officer R. K. Ellison testified he received a radio broadcast notifying officers to be on the lookout for a 1981 burgundy Buick, no tag available, occupied by several black males suspected of stealing the car and fatally shooting the car’s owner. The broadcast was made approximately 25 minutes after the crime occurred. According to a communications supervisor for the police department, an updated lookout was broadcast within two minutes of the original transmission which stated the stolen car was a 1981 Buick LeSabre, any color from maroon to pink, with a broken taillight and occupied by six heavily armed black males. The updated message was broadcast to all cars in the area, although Officer Ellison did not remember if he heard it. About ten minutes after the radio broadcasts, the officer spotted two black males in a burgundy 1981 Buick Electra, a different model Buick and one without a broken taillight, approximately one mile from the crime scene. While following the car, the officer ran a computer check on the license plate. The computer showed the car as being a 1981 Buick Electra, and showed that the car was not stolen. The officer continued to follow the car until it pulled into a liquor store parking lot. The officer observed no traffic violations. Henderson, the driver, parked the car and he and his passenger went into the store. The officer, now accompanied by an unspecified number of back-up units, waited for the two to come out of the store. Upon coming out of the store, the two men walked in the opposite direction of the Buick. The officer stopped them and asked if they wanted their car. The officer’s testimony as to Henderson’s response conflicts. At the preliminary hearing, the officer testified that Henderson’s response was that he would rather walk. At the suppression hearing, however, the officer testified that Henderson responded that the car was not his. Henderson and his passenger were immediately placed in the back seats of separate police cars. The officer admitted that at this point the two were in custody for the armed robbery and were not free to leave. About five minutes after placing the men in the police cars, the officer walked over to the Buick, which was about fifty feet away from the police cars, looked in the window, and saw the butt of a gun protruding from beneath an armrest. Using a slim-jim to enter the locked car, the officer searched the car and found a zippered pouch containing bags of cocaine and marijuana under the seat. Henderson was not involved in the armed robbery, though the officer testified that about 30 minutes passed before he realized it. Although the trial court’s written order does not specify the basis for granting the motion to suppress, the trial judge stated at the close of the suppression hearing the detention was not justified because there were only two persons in a car which the officer knew was not stolen, the car had a working taillight, and the driver committed no traffic violations.

The state contends the trial court erred in granting the motion to suppress because the officer had an articulable suspicion which justified his detention of Henderson. The state also argues the seizure of the gun was justified because it was in plain view. We disagree. It is true that “objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence.” (Citations and punctuation omitted.) Galbreath v. State, 213 Ga. App. 80, 82 (2) (443 SE2d 664) (1994). However, the plain view doctrine applies when the police officer had a prior justification for the intrusion in the course of which he came across the incriminating evidence. State v. Bryant, 203 Ga. App. 69, 70 (416 SE2d 368) (1992). The plain view doctrine will not support a warrantless search and seizure pursuant to an unlawful detention. See Weeks v. State, 206 Ga. App. 431, 433 (425 SE2d 421) (1992). Inasmuch as the gun was discovered after Henderson was placed under arrest and detained in the police car, the inquiry is whether that detention was lawful. See Jackson v. State, 191 Ga. App. 439, 441 (2) (382 SE2d 177) (1989).

The state claims Henderson’s detention prior to the discovery of the gun merely amounted to a Terry stop for which only a reasonable articulable suspicion of criminal conduct is necessary. First, we do not agree that Henderson’s detention was a Terry stop. The officer’s testimony conclusively establishes that it was a full arrest. A Terry stop involves a limited detention in order to identify the suspect, frisk him if necessary and conduct limited questioning. McCarr v. State, 197 Ga. App. 124, 125 (2) (397 SE2d 711) (1990). Detention beyond that is an arrest. Id. We have also held that “[a]n arrest is accomplished whenever the liberty of another to come and go as he pleases is restrained, no matter how slight such restraint may be.” (Citation and punctuation omitted.) Jackson, supra at 441 (2). Here, Henderson was placed in the back seat of a police car. Officer Ellison himself testified that Henderson was not free to leave at that point. Considering the totality of the circumstances, Henderson was arrested when he was placed in the back seat of the police car. See Morgan v. State, 195 Ga. App. 732, 735 (3) (394 SE2d 639) (1990). An arrest, to be constitutional, must be supported by probable cause. Jackson, supra at 440 (2). Probable cause exists where the facts and circumstances within the officer’s knowledge were sufficient to warrant a prudent person in believing the person suspected had committed or was committing an offense. See Mitchell v. State, 200 Ga. App. 146, 147 (1) (407 SE2d 115) (1991). Based on the facts known to the officer — that Henderson’s car was not stolen, that it was an Electra rather than a LeSabre, that it had working taillights, and that it was occupied by only two men — a prudent person would not believe that Henderson committed the armed robbery. Henderson was arrested without probable cause. Because the plain view doctrine will not support a seizure following an unlawful detention, the evidence was properly excluded. See Weeks, supra at 433-434.

Decided November 14, 1994.

J. Tom Morgan, District Attorney, Fran W. Shoenthal, Assistant District Attorney, for appellant.

Dennis R. Scheib, Thomas R. Moran, Jr., for appellee.

Even if we accepted the state’s argument that the detention amounted to a Terry stop, it was nonetheless unreasonable. A Terry stop must be justified by specific and articulable facts which reasonably warrant that intrusion. Vansant v. State, 264 Ga. 319, 320 (2) (443 SE2d 474) (1994). While the fact that Henderson’s car was a burgundy 1981 Buick may have perhaps amounted to specific articulable facts authorizing a brief detention, the officer also had specific articulable facts which made the intrusion unreasonable. The one fact which most clearly demonstrates the unreasonableness of the intrusion is that the officer knew Henderson’s car was not stolen. He also knew the make was different, the taillight was not broken and the number of occupants varied from the description given in the radio transmission. We realize the car stopped need not exactly match the description given in a police radio dispatch. Morgan, supra at 735 (3). However, the discrepancies between the car sought and the car driven by Henderson were so significant that a prudent person would have known that Henderson’s was not the car stolen in the armed robbery. “When reviewing a trial court’s decision on a motion to suppress, this court’s responsibility is to ensure that there was a substantial basis for the decision.” (Citation omitted.) Id. Based on the foregoing, there was a substantial basis for the trial court’s decision.

Judgment affirmed.

Beasley, P. J., and Andrews, J., concur in judgment only.


text:
    A94A2163.
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. HUDSON.
    (450 SE2d 286)
   Johnson, Judge.

Willie Hudson drove a dump truck that collided with an automobile driven by Rhonda Murray. State Farm Mutual Automobile Insuranee Company insured Murray. State Farm sued Hudson, seeking subrogation for money it allegedly paid to cover damage to, and loss of use of, Murray’s car. The trial court granted a directed verdict to Hudson because State Farm failed to present sufficient evidence of damages. State Farm appeals.

1. State Farm enumerates the trial court erred in refusing to allow its claim adjuster’s testimony about a purported settlement check executed by State Farm to pay for the total loss of Murray’s vehicle. State Farm’s argument under this enumeration of error, however, does not address the court’s refusal to allow the claim adjuster’s testimony; rather, State Farm argues the court erroneously refused to admit a copy of the check into evidence either as a business record or as secondary evidence because the original check was not accessible. Because State Farm’s specific enumeration of error concerning the court’s refusal to allow the claim adjuster’s testimony is not supported by any argument or citation of authority, it is deemed abandoned. See Court of Appeals Rule 15 (c) (2); Stinson v. Allstate Ins. Co., 212 Ga. App. 179, 182 (3) (441 SE2d 453) (1994).

State Farm’s arguments regarding the trial court’s refusal to admit into evidence a copy of the check are not contained in the enumeration of error and therefore shall not be considered by this court. “On appeal an enumeration of error cannot be enlarged by brief to give appellate viability to an issue not contained in the original enumeration.” (Citations and punctuation omitted.) Batten v. Chrysler Corp., 211 Ga. App. 173, 175 (2) (438 SE2d 647) (1993). Moreover, we cannot consider State Farm’s arguments because the record does not contain the purported copy of the check. See Dunwoody-Woodlands Condo. Assn. v. Hedquist, 199 Ga. App. 91 (1) (403 SE2d 893) (1991).

2. State Farm contends the court erred in refusing to allow the claim adjuster to give his opinion of the value of Murray’s car both before and after the collision. State Farm’s failure to make a proffer of the expected opinion from the claim adjuster precludes appellate review of this contention. See Rosequist v. Pratt, 201 Ga. App. 45, 46 (2) (410 SE2d 316) (1991).

3. State Farm’s claim that the court erred in striking testimony about the contents of the purported settlement check is without merit. Because State Farm never successfully introduced the check into evidence, any testimony concerning its contents was inadmissible hearsay. See OCGA § 24-3-1; In the Interest of J. C., 163 Ga. App. 822 (1) (296 SE2d 117) (1982).

4. State Farm asserts the court erred in granting Hudson’s motion for a directed verdict due to insufficient evidence of damages. “If there is any evidence creating a material issue of fact, a motion for a directed verdict cannot be granted.” (Citations and punctuation omitted.) Reeb v. Daniels Lincoln-Mercury Co., 193 Ga. App. 817, 819 (1) (a) (389 SE2d 367) (1989); OCGA § 9-11-50 (a). Contrary to the trial court’s ruling in the current case, there is some evidence creating a material issue of fact as to damages.

Because State Farm did not undertake to have repairs made to the automobile after the collision, the proper measure of damages is the difference in the before and after value of the vehicle. See Reeves v. Crawford, 185 Ga. App. 518 (364 SE2d 895) (1988). “Direct testimony as to market value is in the nature of opinion evidence. One need not be an expert or dealer in the article in question but may testify as to its value if [she] has had an opportunity for forming a correct opinion. . . . The owner of property is considered to be qualified to state [her] opinion as to value.” (Citations and punctuation omitted.) Godowns v. Cantrell, 186 Ga. App. 100 (366 SE2d 415) (1988). Here, Murray testified without objection that in her opinion the value of her car prior to the collision was approximately $16,000.

In addition to this direct evidence of the car’s value prior to the collision, Murray also testified as to the vehicle’s make and model, that it was new when she purchased it in 1988 or 1989 for $21,000, that it had been driven approximately 40,000 miles and was two years old at the time of the collision, that it had no prior damage and that it had been properly maintained. This additional testimony, even without Murray’s opinion, was some evidence from which the jury could have formed an estimate as to the automobile’s value before the accident. “As to everyday objects, such as automobiles, the jurors may draw from their own experience in forming estimates of market value. As to items of a common nature, the plaintiff need not offer any opinion evidence as to value and so long as the evidence contains facts upon which the jury may legitimately exercise their own knowledge and ideas, the question of value is properly left to the jury.” (Citations and punctuation omitted.) White v. Miller, 194 Ga. App. 816, 817 (3) (392 SE2d 30) (1990).

State Farm also presented evidence of the value of Murray’s vehicle after the accident. The claim adjuster testified the vehicle was a total loss and its salvage value was $4,333. State Farm introduced five photographs showing the damage to the vehicle. The salvage price by itself would not have been sufficient to prove the vehicle’s post-collision value; however, that price along with the photographs and the testimony that the vehicle was a total loss provided enough evidence to let the jury decide the value of Murray’s vehicle after the accident. See George F. Brown &c. v. Knowles, 196 Ga. App. 594, 596 (1) (396 SE2d 501) (1990).

Because State Farm presented some evidence of the vehicle’s value both before and after the collision from which the jury could have determined damages, the trial court erred in granting Hudson’s motion for a directed verdict. See Valley Coaches v. Streett, 160 Ga. App. 25 (286 SE2d 313) (1981).

Decided November 14, 1994.

Gilchrist M. Gibson, for appellant.

Waymon Sims, for appellee.

Judgment reversed.

Beasley, P. J., and Andrews, J., concur.


text:
    A94A1587.
    GREEN ROOM, INC. v. CONFEDERATION LIFE INSURANCE COMPANY.
    (450 SE2d 290)
   Johnson, Judge.

The Green Room, Inc., while leasing commercial property from Confederation Life Insurance Company, filed for bankruptcy. The bankruptcy court entered a consent order, stating that Green Room agreed to vacate the leased premises by November 30, 1993, and that the automatic stay provision of the bankruptcy code would not apply to any future dispossessory action taken by Confederation. After Green Room failed to vacate the premises by November 30, 1993, Confederation filed the instant dispossessory warrant based on Green Room’s failure to pay rent. Green Room filed a second bankruptcy petition, and Confederation again obtained an order from the bankruptcy court lifting the automatic stay as to its dispossessory action. Confederation and Green Room tried the dispossessory case before a judge sitting without a jury. The trial court entered judgment in favor of Confederation, awarding damages for unpaid rent and issuing a writ of possession. Green Room appeals.

1. Green Room argues the trial court erred in finding Confederation properly demanded possession of the premises before filing the dispossessory action. See OCGA § 44-7-50. “A trial judge sitting without a jury is entitled to have his judgment considered as a verdict by a jury, and if there is any evidence to support the finding, it should be affirmed. Also the evidence must be construed most strongly in favor of the prevailing party.” (Citations and punctuation omitted.) Collier v. South Carolina Ins. Co., 205 Ga. App. 323, 324 (422 SE2d 52) (1992); see Draper & Kramer v. Lerow, 143 Ga. App. 413, 414 (4) (238 SE2d 560) (1977). Here, the court based the finding in question on the bankruptcy consent order. The trial court concluded: “the agreement contained in the bankruptcy court consent order is tantamount to a demand for possession by [Confederation] and agreement by [Green Room] to surrender possession.” Contrary to Green Room’s argument, the agreement set forth in the consent order, construed in favor of the verdict, is some evidence supporting the trial court’s finding. Because Green Room agreed to vacate the premises by a specific date and to lift the automatic stay against any future dispossessory action by Confederation, the trial court could reasonably infer that Confederation had already made a demand for possession of the premises.

Even if the consent order were not some evidence supporting the trial court’s finding, we would still be required to uphold the finding because there is no transcript of the evidence presented at trial. Absent a transcript, we must presume the proceedings were regular and the evidence supported the trial court’s findings. See Bread of Life Baptist Church v. Price, 194 Ga. App. 693, 694 (392 SE2d 15) (1990).

Moreover, Green Room’s argument that the court erroneously found Confederation made a proper demand for possession of the premises is rendered moot by the court’s additional finding that any further demand would have been useless. Without a trial transcript, we must presume this additional finding is supported by some evidence. See Bread of Life Baptist Church v. Price, supra. Because a demand for possession would have been useless, Confederation was not required to make it. “[I]t is not necessary for a landlord to prove a demand for possession when it appears that the demand, if made, would be refused. [Cit.]” Henderson v. Colony West, 175 Ga. App. 676, 678 (2) (332 SE2d 331) (1985). Green Room has shown no error.

2. Green Room contends the trial court erred in denying its motion to dismiss this dispossessory action for nonpayment of rent because Confederation, prior to filing the action, accepted a late rent payment. Green Room bases its contention on the following rule: “ ‘Where the landlord accepts rent from the tenant after the default but before the dispossessory proceeding, the landlord then has no right to institute dispossessory proceedings against the tenant during the ensuing period on account of the tenants’ arrears in the payment of past due rent.’ [Cits.]” C & A Land Co. v. Rudolf Invest. Corp., 163 Ga. App. 832, 834 (296 SE2d 149) (1982). In C & A Land Co., and other cases which have applied this rule to prevent a landlord’s dispossessory action, the landlord inconsistently attempted to reject or terminate the lease, but thereafter accepted rental payments under the terms of the lease. See Hicks v. Beacham, 131 Ga. 89 (62 SE 45) (1908); Gay v. American Oil Co., 115 Ga. App. 18 (153 SE2d 612) (1967); Yates v. Farmer, 102 Ga. App. 570 (117 SE2d 211) (1960). Under such circumstances, the landlord’s subsequent attempt to dispossess the tenant for nonpayment of rent was clearly improper.

Such circumstances, however, do not exist in the instant case. Confederation did not inconsistently claim the lease was terminated and thereafter accept rent payments under the terms of the lease; rather, two weeks after accepting a late rent payment of $7,200 tendered by Green Room, Confederation filed this dispossessory action, claiming Green Room’s rent was still in arrears in excess of $80,000. Contrary to Green Room’s position, Confederation’s acceptance of this late payment did not waive Confederation’s right to dispossess Green Room based on the additional rent arrearage exceeding $80,000. The trial court therefore did not err in denying Green Room’s motion to dismiss. Compare Kunian v. Mangel Stores Corp., 140 Ga. App. 244, 245 (230 SE2d 492) (1976).

Decided November 15, 1994.

Graham G. McMurray, for appellant.

Arnold J. Bennett, for appellee.

3. Green Room’s challenge to the sufficiency of the evidence supporting the court’s award of damages based on past due rent is without merit. Absent a transcript of the trial, we must presume that award is supported by sufficient evidence. See Bread of Life Baptist Church v. Price, supra.

Judgment affirmed.

Beasley, P. J., and Andrews, J., concur.


text:
    A94A2457.
    THE STATE v. WILBANKS.
    (450 SE2d 293)
    Decided November 15, 1994.

      Jack O. Partain III, District Attorney, Kermit N. McManus, Assistant District Attorney, for appellant.

      Little & Adams, Robert B. Adams, for appellee.
   Blackburn, Judge.

The State appeals the trial court’s order granting appellee William Bradford Wilbanks’ motion to suppress in the revocation of probation hearing below as a direct appeal of a ruling in a criminal case pursuant to OCGA § 5-7-1 (a) (4).

Inasmuch as a revocation of probation hearing is not a criminal proceeding, Smith v. State, 171 Ga. App. 279, 281 (319 SE2d 113) (1984), we lack direct appeal jurisdiction in the case at bar. OCGA § 5-7-1 (a). Jurisdiction lies upon application only. OCGA § 5-6-35 (a) (5). Rebich v. Miles, 264 Ga. 467, 468-469 (448 SE2d 192) (1994). See also Boyle v. State, 190 Ga. App. 734 (380 SE2d 57) (1989).

Case dismissed.

Birdsong, P. J., and Ruffin, J., concur.


text:
    A94A1013, A94A1014.
    MORSE et al. v. FLINT RIVER COMMUNITY HOSPITAL et al.; and vice versa. GUPTA v. MORSE et al.
    A94A1015.
    (450 SE2d 253)
   Smith, Judge.

Jacqueline C. Morse, individually and as executrix of the estate of Louis T. Morse, brought suit against Flint River Community Hospital, Raj Gupta, M.D., and Laverne Bentley, R.N., alleging negligent treatment of an injury suffered by Louis Morse in a motor vehicle accident, resulting in Mr. Morse’s quadriplegia and eventual death. The acts complained of occurred on December 18, 1989, and the action was filed on December 12, 1991. The return of service form shows that service was acknowledged for Gupta on December 16 or 17, 1991. However, the hospital and Bentley were not served until January 6, 1992, over three weeks after the filing of the complaint. The hospital, Bentley, and Gupta filed motions to dismiss for failure to perfect service of the renewed complaint upon them within a reasonable time after expiration of the statute of limitation. After discovery, the hospital and Bentley also filed a motion for summary judgment, contending there was no genuine issue of material fact regarding their alleged negligence. The trial court denied the motions to dismiss and granted the motion for summary judgment. In Case No. A94A1013, Morse appeals the grant of summary judgment against her. In Case No. A94A1014, the hospital and Bentley cross-appeal the denial of their motion to dismiss, and in Case No. A94A1015, Gupta appeals the denial of her motion to dismiss.

Case No. A94A1014

We conclude that the trial court did not err in denying the motions to dismiss by the hospital and Bentley. When an action is filed within the applicable statute of limitation but not served within five days as provided by OCGA § 9-11-4 (c), the plaintiff must establish that she acted reasonably and diligently in attempting to effect service. If she failed to act reasonably and diligently, service will not relate back to the date of filing to toll the statute of limitation. Bennett v. Matt Gay Chevrolet Oldsmobile, 200 Ga. App. 348, 349 (1) (408 SE2d 111) (1991). However, the trial court’s exercise of discretion in determining diligence will not be reversed on appeal unless it has been actually abused and cannot be supported as a matter of law. Id.; Varricchio v. Johnson, 188 Ga. App. 144 (372 SE2d 455) (1988). While the facts in this case might have supported a finding of lack of diligence, we cannot say that the trial court clearly abused its discretion as a matter of law in deciding otherwise.

In the earlier Macon County action, plaintiff had served the hospital and Bentley within a few days of filing the action. This action was filed in Bibb County, and these defendants were served by second original in another county. OCGA § 9-10-72. The defendants were served at the same addresses indicated in the original complaint; the same individual at the hospital was served on both occasions. The affidavit of plaintiff’s counsel shows that the delay in service originated with the clerk of court or the sheriff’s department or both. There is no evidence in the record that plaintiff failed to provide these officials with a correct address or failed to establish the defendants’ whereabouts. Since Morse placed the summons and complaint in the hands of the proper officials with correct addresses attached, she did all that was required of her. See Bennett, supra at 350 (1) and cases cited therein. Until she received some notice that the sheriff was unable to locate a defendant, that a defendant’s address was incorrect, or that service was not possible for some other reason, Morse could reasonably rely on the clerk and sheriff to fulfill their duties. Id. at n. 2; DeLoach v. Hewes, 211 Ga. App. 321 (439 SE2d 94) (1993).

The reliance of the hospital and Bentley upon Varricchio v. Johnson, supra, is misplaced for two reasons. First, Varricchio was told by the sheriff that the defendant had moved, but she did nothing to provide a new address for service for nearly a month. Varricchio v. Johnson, supra at 145. Second, and more importantly, this court affirmed the trial court’s decision dismissing Varricchio’s action under the abuse of discretion standard. Varricchio v. Johnson, supra at 146. There was some evidence on the record here suggesting that service could have been effected more quickly, and counsel for Morse was not positive in his enumeration of every step taken to assure service. However, the weighing of these matters was within the discretion of the trial court, and we cannot say that its discretion was abused as a matter of law.

Case No. A94A1015

We likewise affirm the trial court’s denial of Gupta’s motion to dismiss, but without reaching the issue of Morse’s diligence in effecting service. The return of service form shows that service was acknowledged for Gupta as of December 16 or 17, 1991. Gupta presented no affidavit or other sworn testimony to contradict this apparent date of service. Compare Webb v. Tatum, 202 Ga. App. 89 (413 SE2d 263) (1991). Gupta contends in her brief that she was not served until January 2, 1992, apparently relying on a marginal note, “1-2-92,” beside what appears to be her signature on the return of service. However, factual assertions made in a brief, like matters raised for the first time on appeal, cannot be considered by this court. Paul v. Joseph, 212 Ga. App. 122, 125 (2) (441 SE2d 762) (1994); Porado v. State, 211 Ga. App. 728, 730 (3) (440 SE2d 690) (1994). In the absence of any evidence in the record supporting Gupta’s contention, we must accept the date of service as it appears on the record. Service on December 17, 1991 was within the five days from filing of the complaint permitted by OCGA § 9-11-4 (c). The trial court correctly denied Gupta’s motion to dismiss.

Case No. A94A1013

Morse contends the trial court erred in granting summary judgment to the hospital and Bentley. The complaint and the affidavits provided by a physician and a nurse contend that Bentley failed to notify the supervising physician in a timely manner of Mr. Morse’s worsening condition, contributing to the severity of his injury. These conclusions were based on the nursing records of Mr. Morse’s hospital stay, which showed no attempt to contact Mr. Morse’s physician until 3:45 p.m., although his symptoms were noted at 2:40 p.m. On her deposition, however, Bentley testified that she began her attempts to reach the doctor as soon as she was aware of Mr. Morse’s symptoms. The doctor testified he received a telephone call from the nurse at approximately 3:00 p.m. The hospital and Bentley contend that this positive deposition testimony overcomes the earlier notation in the nursing records, leaving no factual issue for resolution and supporting the trial court’s grant of summary judgment.

We disagree. It is true that a finding of fact which may be inferred from circumstantial evidence has no probative value against positive and uncontradicted evidence that no such fact exists. See Mealer v. Gen. Cinema Beverages of Ga., 190 Ga. App. 419 (379 SE2d 192) (1989). However, this is not a case of conflict between circumstantial and direct evidence. The medical records are not silent; instead, they specify a time of contact later than that testified to by Bentley and the physician. This conflict in the direct evidence is controlled by the decision in Kirby v. Spivey, 167 Ga. App. 751, 753 (2) (307 SE2d 538) (1983), which also involved variance between medical records and a party’s testimony. In Kirby, a physician testified that his patient refused treatment for cancer. However, there was no notation on the patient’s medical records that treatment had been discussed or refused. Accepted medical practice would have required a record of such a discussion. This court held that the variance between the physician’s testimony and the medical records raised a jury issue of credibility, where the physician was a party and thus interested in the outcome of the suit. Kirby v. Spivey, supra at 753-754.

Decided October 24, 1994

Reconsideration denied November 16, 1994

Reynolds & McArthur, W. Carl Reynolds, Katherine L. McArthur, Bradley J. Survant, for Morse.

Webb, Carlock, Copeland, Semler & Stair, Wade K. Copeland, N. Beth Dorsey, Awtrey & Parker, Gregg A. Landau, for Flint River Community Hospital.

Martin, Snow, Grant & Napier, John C. Edwards, Lisa M. Edwards, for Gupta.

As in Kirby, we are presented with a variance between the nursing records and the testimony of parties to this action. The record shows that contact was made at a time later than that testified to by the parties. There was also testimony that an earlier notation should have been made on the nursing records, if the nursing staff attempted to reach the physician at an earlier time. Under these circumstances a genuine issue of material fact remains as to the time at which Bentley attempted to notify the attending physician.

The hospital and Bentley also contend that the expert affidavit provided by a nurse was defective because in its preamble it refers to her “familiarity with the standards of medical care in the United States,” instead of referring to standards of nursing care. This contention is without merit. Assuming without deciding that the statement in the preamble of the affidavit was not inadvertently inserted, the body of the affidavit makes it abundantly clear that the nurse bases her conclusions on “the accepted standards of nursing practices that would be expected of nurses in the same or similar circumstances.” An issue of fact remains for resolution by the jury, and the trial court erred in granting summary judgment.

Judgment reversed in Case No. A94A1013. Judgments affirmed in Case Nos. A94A1014 and A94A1015.

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

       Plaintiff originally filed her complaint in Macon County. That action was dismissed without prejudice on December 10, 1991, two days before the filing of this action.

       These two legible dates appear superimposed in the appropriate blank on the return of service, and it is unclear which is intended as a correction. Adoption of the later date of December 17, 1991 does not affect the result here.

       We note that the delay was probably exacerbated by the Christmas and New Year’s holidays which fell during that time. See Bennett, supra at 349, n. 1.

         This expert testimony establishes a causal link between Bentley’s conduct and the injury. Appellees’ contention that there is no evidence of causation is thus without merit.

       The physician is a party to this action, though not to this appeal, and was a party at the time his deposition was taken.


author: Pope, Chief Judge.

text:
    A94A1250, A94A1251.
    BLUE CROSS & BLUE SHIELD OF GEORGIA, INC. v. SHEEHAN; and vice versa.
    (450 SE2d 228)
   Pope, Chief Judge.

Defendant Blue Cross & Blue Shield of Georgia, Inc. issued a health insurance policy to plaintiff Thomas J. Sheehan in May 1990. In his application for the policy, plaintiff provided false responses to several questions, denying that he had been diagnosed as HIV positive even though he had. Defendant insurer expressly reserved the right to require plaintiff to submit to physical tests and examinations; but it apparently chose not to exercise that right and no tests or exams were required. Plaintiff filed no claims under the policy until November 1992, at which time defendant investigated plaintiff and discovered the false statements on his application. Plaintiff’s policy included a legislatively mandated incontestability clause: “Two years after this Contract is issued, no false statements which might have been in your application can be used to void the Contract. Also, after these same two years, no claim can be denied because of any false statement on your application.” See OCGA § 33-29-3 (b) (2) (A). Nonetheless, in May 1993, three years after the effective date of the policy, defendant notified plaintiff that it was rescinding his policy.

Plaintiff then brought this action against defendant, seeking a declaratory judgment and damages for breach of contract. Defendant answered and asserted counterclaims for rescission and reformation, later amending its pleadings to assert an independent fraud action (to recover claims already paid out) as an additional counterclaim. Both sides sought attorney fees as well. Plaintiff moved for summary judgment, and this motion was granted with respect to plaintiff’s claims and defendant’s counterclaims for rescission or reformation: the trial court ruled that the incontestability clause was applicable and determinative of these issues. The trial court denied summary judgment for plaintiff on defendant’s independent fraud claim, however, ruling that because defendant was not technically contesting the validity of the policy in the independent fraud claim, the independent fraud claim was not precluded by the incontestability clause. The trial court also denied plaintiff summary judgment with respect to attorney fees (both plaintiff’s right to attorney fees and defendant’s right to attorney fees). In Case No. A94A1250, defendant appeals the trial court’s determination that the policy could not be rescinded or reformed. In Case No. A94A1251, plaintiff cross-appeals the trial court’s decision that defendant could maintain an independent fraud action to recover benefits paid to plaintiff, as well as the court’s denial of summary judgment with respect to attorney fees.

Case No. A94A1250

1. Defendant contends the incontestability clause should not apply to bar rescission or reformation based on plaintiff’s allegedly fraudulent misrepresentations. As noted above, the General Assembly has mandated that all accident and sickness insurance policies contain a provision limiting the time in which insurers can contest the policy based on misstatements on the application: “After two years from the date of issue of this policy, no misstatements made by the applicant in the application for such policy shall be used to void the policy or to deny a claim.” OCGA § 33-29-3 (b) (2) (A). Some jurisdictions explicitly except fraudulent misrepresentations from the applicability of their incontestability clause (see, e.g., N. J. Stat. Ann. § 17B:26-5), but our legislature chose not to do so. We have long held that “incontestable clauses are valid and render contracts of insurance incontestable, precluding all defenses, inclusive of fraud, save as they may come within clear exceptions.” (Emphasis supplied.) Penn Mut. Life Ins. Co. v. Childs, 65 Ga. App. 468, 476 (4) (16 SE2d 103) (1941). Accord Equitable Life Assur. Society v. Gillam, 195 Ga. 797 (1) (25 SE2d 686) (1943). Indeed, in Childs we stated that in Georgia “the advent of the clause was prompted primarily to stay the defense of fraud in procurement of the policy.” 65 Ga. App. at 473 (1). The insurer has a duty to investigate the application before the expiration of the contestability period, see Childs at 476-477 (5-6); and if it does not investigate, it waives its right to contest the policy based on any fraud which was discoverable. Id.; see also Riley v. Indus. Life &c. Ins. Co., 190 Ga. 891 (1, 2) (11 SE2d 20) (1940).

The insurer’s inability to rescind the policy based on the applicant’s fraud is contrary to traditional principles of contract law and may at first blush seem unjust. It becomes more understandable, however, if we focus on the behavior of the insurer rather than the insured, and remember that the purpose of the incontestability clause is not only to protect the expectations of insureds (an interest which admittedly would not be compelling in any case involving an alleged fraud on the part of an insured), but also to encourage the insurer to be diligent in performing its duty to investigate within a specified period, and to penalize it if it does not. See generally Incontestability Clauses in Georgia Insurance Contracts, 13 Ga. L. Rev. 850, 862 (1979).

In this case, defendant insurer had the right to require plaintiff to take a blood test and could have easily done so. If it had, it would have discovered plaintiff’s HIV status. It did not, however, and the incontestability clause now precludes it from contesting the validity of the policy based on plaintiff’s fraudulent misrepresentations.

2. Defendant points out that most of the cases on incontestability involve life insurance, and asserts that incontestability clauses in the context of health insurance should be treated differently. Specifically, defendant suggests that because an insurer expects any fraud in a health insurance application to be revealed by the claims the insured will file during the incontestability period, it should not have a duty to investigate a health insurance applicant until or unless any claims are filed. Yet several of the cited cases involve disability benefits, which are similar to health insurance benefits in the sense that ongoing claims are possible if not expected (and in the sense that claims within the contestability period may be expected if the applicant intentionally misrepresented his condition). See, e.g., Gillam, 195 Ga. at 797; Childs, 65 Ga. App. at 468. Moreover, the language in Childs speaks of insurance contracts generally, and we see nothing in the statutes or case law to indicate that incontestability clauses in health insurance policies should be treated differently from those in other insurance policies. See also Keaten v. Paul Revere Life Ins. Co., 648 F2d 299, 302 (5th Cir. 1981) (applying Georgia law). (“We believe that the Georgia legislature and judiciary fully intend to presently treat the question of incontestability the same regardless of the type of policy issued.”) Accordingly, defendant’s argument that health insurance policies should be treated differently is without merit.

3. Defendant further argues that the running of the two-year period of contestability was “tolled” by plaintiff’s fraudulent misrepresentations on the application and subsequent failure to file claims for more than two years. See OCGA § 9-3-96. As we held in Division 1, incontestability clauses are meant to cover defenses based on fraud, and this purpose would be undermined by applying OCGA § 9-3-96 in this type of case. Even if the tolling provision of that statute was otherwise applicable, however, we would reach the same conclusion we reached in Division 1 with respect to defendant’s right to rely on the tolling provision: defendant breached its duty to investigate the application when it failed to exercise its right to require a blood test, and therefore waived its right to rely on any fraud which would have been discoverable through such a test. Compare Unity Mut. Life Ins. Co. v. Moses, 621 FSupp. 13 (E.D. Pa.), aff’d 780 F2d 1017 (3d Cir. 1985) (incontestability clause did not preclude insurer from rescinding policy where insured not only made fraudulent representations on application but then, when insurer investigated, fraudulently posed as independent verifier of his health). Contrary to defendant’s assertion, there is no evidence of any post-application fraud to keep defendant from discovering plaintiff’s condition in this case. Instead, there was simply no effort on defendant’s part to investigate and discover anything. The insurer does not have the right to sit back and wait for claims to come in before it initiates any investigation; and if it does wait, it runs the risk that it will not discover a fraud until it is too late to do anything about it.

Case No. A94A1251

4. On cross-appeal, plaintiff argues that the trial court erred in denying his motion for summary judgment on defendant’s counterclaim for fraud. We agree. The trial court relied on Guarantee Trust Life Ins. Co. v. Wood, 631 FSupp. 15 (N.D. Ga. 1984), in which a federal district court ruled that because an independent fraud action technically involves affirmance of the contract rather than a contest of it, such an action should not be barred by an incontestability clause. We are not persuaded that this technical, conceptual distinction should be determinative, however. Instead, we agree with the reasoning in Bankers Security Life Ins. Society v. Kane, 885 F2d 820 (11th Cir. 1989), a subsequent Eleventh Circuit case: an insurer precluded from contesting the validity of a policy by an incontestability clause cannot bring a separate tort action for fraud where such a suit “would merely provide a different means to challenge the validity of the insurance contract,” which is exactly what the incontestability clause was meant to prevent. See 885 F2d at 822. See also Lindsay v. United States Life Ins. Co., 194 A2d 31, 34 (N.J. Super. 1963) (holding insurer’s counterclaim for indemnification for fraud must be barred by incontestability clause or insurer would be able to do indirectly what it could not do directly: “If it has contracted away its right to defend, it can retain no right to attack”). We understand the temptation to allow such an action as a compromise, to avoid the seemingly unjust result that the insured may recover despite his fraud. Nonetheless, that is the result the legislature has mandated by requiring incontestability clauses in insurance contracts, and we cannot allow an insurer to circumvent that mandate simply by reframing and renaming his argument.

Decided October 5, 1994

Reconsideration denied November 16, 1994

Heyman & Sizemore, William H. Major, Michael R. Hurst, Kirkland A. McGhee, William B. Brown, for appellant.

J. Patrick McCrary, Harry H. Harkins, Jr., for appellee.

5. Based on our disposition of defendant’s fraud claim in Division 4, it follows that defendant is not entitled to attorney fees. Thus, summary judgment should have been granted for plaintiff on this issue as well.

6. However, the trial court’s denial of plaintiff’s motion for summary judgment on his own entitlement to attorney fees was correct. While we have rejected defendant’s contention that incontestability clauses in health insurance policies should be treated differently from those in other policies, it is nonetheless true that we have never actually construed the exact provision at issue in this case. We therefore agree with the trial court that defendant’s defense was not in bad faith or totally without legal basis, and that an award of attorney fees for plaintiff is not warranted. See Gillam, 195 Ga. at 805-807 (2); OCGA § 33-4-6.

Judgment in Case No. A94A1250 is affirmed. Judgment in Case No. A94A1251 is affirmed in part and reversed in part.

McMurray, P. J., and Smith J., concur.

       Defendant also asserted a counterclaim based on unjust enrichment, but this counterclaim was dismissed and has been abandoned on appeal.

       N. J. Stat. Ann. § 17B:26-5 requires all health insurance policies to include one of two alternative provisions, one of which states that “[a]fter 2 years from the date of issue of this policy no misstatements, except fraudulent misstatements, made by the applicant in the application for such policy shall be used to void the policy or to deny a claim.”

       There is no suggestion that plaintiff took any affirmative post-application actions to cover up his condition; defendant can only point to plaintiffs failure to file any claims during the contestability period. Plaintiff was not obligated to file claims, however, even if he had them. And the record suggests he had no claims prior to November 1992, as he received AZT for free, his medical bills were “minimal,” and he had a $1,000 deductible.

         Neither Wood, a life insurance case from Georgia, nor Kane, a life insurance case from Florida, involved the exact statute or incontestability clause at issue here. Both involved statutes and clauses substantially similar to this one, however, and both states have treated incontestability clauses in a similar manner.


author: Smith, Judge. Pope, Chief Judge,

text:
    A94A1593.
    KENNEDY v. THE STATE.
    (450 SE2d 252)
   Smith, Judge.

William Kennedy, Jr., was convicted of the burglary of his estranged wife’s home following a jury trial. He appeals, challenging the sufficiency of the. evidence to establish that he lacked the authority to enter the premises in question. We are constrained to agree, and reverse.

In Mitchell v. State, 263 Ga. 129, 130-131 (3) (429 SE2d 517) (1993), the Supreme Court in effect held that one spouse is per se authorized to enter the dwelling house of the other based upon the fact that they live together or based upon the fact of marriage alone. The defendant’s specific argument in Mitchell was that he and one of the victims (who was attacked in her home) “were either married or lived together or both.” (Emphasis supplied.) Id. at 130. The Mitchell court discounted none of these possibilities as a viable defense. This includes the possibility that defendant and victim had previously cohabitated and established a common-law marriage and that such marriage continued in existence on the date that the alleged burglary occurred, even though they were not actually living under the same roof at that particular time. While there may be facts or circumstances in a given case that would distinguish it from the unambiguous holding in Mitchell (such as a restraining order directed to the accused), we find none presented here.

The State defends Kennedy’s conviction by arguing that the Supreme Court’s opinion in Mitchell does not accurately state the law of burglary; that it “reestablish[es] the concept of chattel in respect to spouses”; that to follow Mitchell in the manner Kennedy urges “is to condemn modern women to be permanent victims of their spouses”; and that Kennedy’s position is otherwise “specious and contrary to the accepted doctrines of property ownership and possession.” We recognize the force and merit of these arguments. The State also offers Johnson v. State, 262 Ga. 441 (421 SE2d 70) (1992), as contrary authority, although it appears that the issue addressed in Mitchell was not considered in that earlier case.

If it were within our discretion to do so, we would readily hold that a legal marriage between estranged spouses is merely one factor for the jury to consider in determining whether one spouse may forcibly enter the separate residence of the other with “authority” within the meaning of our burglary statute, OCGA § 16-7-1. If this were the law to be applied, we would have little difficulty in finding that the jury’s verdict was authorized under the facts as viewed under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Nevertheless, we are constrained to find that the Supreme Court’s holding in Mitchell states the law applicable to this case, and we obviously lack the authority to overrule that holding. If the Supreme Court intended a more limited rule than that created by the language in Mitchell, then this case may be an appropriate vehicle for clarification.

Since it is undisputed that the premises “burglarized” were the home of Kennedy’s spouse, there is no basis upon which this court can affirm the jury’s implicit finding that Kennedy entered the premises without authority.

Decided October 24, 1994

Reconsideration denied November 16, 1994

Mark B. Beberman, for appellant.

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

Judgment reversed.

McMurray, P. J., concurs. Pope, C. J., concurs specially.

Pope, Chief Judge,

concurring specially.

This disturbing result is mandated by the Supreme Court’s holding that a married defendant cannot be convicted of burglarizing the home of his or her spouse as a matter of law, even if the couple is no longer living together. See Mitchell v. State, 263 Ga. 129 (3) (429 SE2d 517) (1993).

I am tempted to try to distinguish this case on the grounds that the burglarized dwelling was the home of defendant’s mother-in-law rather than his estranged wife. As the trial court recognized at the conclusion of the bench trial, however, the evidence did not support this distinction. Moreover, such a distinction might narrow the holding of Mitchell, but leave its core unchallenged; and we should not allow this to happen. I doubt that the apparent holding of the third division of Mitchell is what a unanimous Supreme Court meant to say, and therefore urge that Court to grant certiorari in this case and clarify or correct that holding.

       “Although the evidence was in conflict' on Mitchell’s claims that he and Daniel lived together or were married, there was some evidence ... to support these claims. Since there could he no illegal entry under these circumstances, he was entitled to charges to that effect.” Mitchell at 131. The State suggests that the actual focus of Mitchell was the failure of the court to charge that the defendant could not burglarize his own house. However, we must follow the holding as written and in light of the contentions underlying it.

       The State concedes that it is a legal impossibility to burglarize one’s own residence.


text:
    A94A1666.
    CRAWFORD v. CITY OF FOREST PARK.
    (450 SE2d 237)
   Pope, Chief Judge.

Defendant appeals a superior court order affirming his DUI conviction in municipal court. See OCGA § 40-13-28.

Evidence at trial showed that Officer Randall stopped defendant’s vehicle in the early morning hours of June 13, 1993, because defendant did not have a 1993 decal on his license tag. Defendant showed Randall he had the decal in the car, but Randall noticed that defendant had a strong odor of alcohol on his breath and his person, that his eyes were glassy and bloodshot, that his speech was slightly slurred, and that there were several open cans of beer in his car. Randall therefore asked defendant to get out of the car and recite the alphabet. Although defendant said he knew the alphabet, he left out a number of letters in his recitation. Randall also asked defendant to touch each of his fingers to his thumb while counting one-two-three-four-four-three-two-one. Defendant said he understood and could do that, but he could not. Randall then administered an alco-sensor test, which showed the presence of alcohol. Based on all these things, Randall concluded defendant was a less safe driver and arrested him. Defendant was taken back to the station where an intoximeter test was taken, and the result of that test was .09.

1. Viewed in a light most favorable to support the verdict, this evidence was sufficient to enable a reasonable factfinder to find defendant guilty beyond a reasonable doubt of driving while under the influence of alcohol to the extent that it was less safe for him to drive. OCGA § 40-6-391 (a) (1); see also OCGA § 40-6-392 (b) (3) (intoximeter test result in excess of .08 gives rise to presumption that person was under influence of alcohol).

2. Defendant argues that his accusation (the Uniform Traffic Citation issued at the time of his arrest) should have been quashed as too vague to provide notice of what he was accused. The citation informed defendant that he was accused of operating a specific vehicle at a specific time on a specific date while under the influence of alcohol in violation of OCGA § 40-6-391, and that a breath test given him showed a result of .09. As this was sufficient to inform defendant of the charges against him so he could present a defense at trial, the trial court’s refusal to quash the accusation was proper. See Broski v. State, 196 Ga. App. 116 (1) (395 SE2d 317) (1990).

Citing Scott v. State, 207 Ga. App. 533 (428 SE2d 359) (1993), defendant contends the accusation was insufficient because it failed to specify under which subsection of OCGA § 40-6-391 (a) the State was charging him. In Scott, the alleged facts would have allowed the State to proceed against the defendant under either § 40-6-391 (a) (1) (less safe driver) or § 40-6-391 (a) (4) (test result of .10 or more), and we said the State should have indicated in the accusation which subsection it was proceeding under to avoid confusion. In this case, on the other hand, the facts alleged could only support a prosecution under subsection (a) (1), so the failure to specify that subsection could not have confused defendant.

3. Defendant also enumerates as error the trial court’s denial of his motion to suppress the results of his intoximeter test. Specifically, defendant argues the results should have been suppressed because he was not afforded an opportunity for an independent test of his own choosing. See OCGA § 40-6-392 (a) (3).

After being informed of his right to an independent test, defendant said he wanted a blood test, and Officer Randall took him to a hospital for that purpose. According to defendant’s testimony, however, when he got to the hospital a nurse told him his blood alcohol level would register higher on a blood test. Officer Randall did not say anything, but when defendant turned around and looked at him he “kind of gave me a nod as in yes.” Defendant then concluded he was wasting his time and money, and decided he did not want an independent blood test after all. Contrary to defendant’s assertion, Officer Randall did not misinform defendant in any respect or prevent him from pursuing his options under the statute. Compare O’Dell v. State, 200 Ga. App. 655 (409 SE2d 54) (1991) (officer failed to make reasonable accommodation where he actually misinformed defendant about admissibility of independent test and refused to allow defendant to call around to find a hospital which could do an admissible test). While the officer must not prevent a defendant from exercising his right to an independent test, it is not his duty to ensure the performance of such a test. See State v. Buffington, 189 Ga. App. 800 (377 SE2d 548) (1989). In this case, Officer Randall made reasonable efforts to accommodate defendant’s request for an independent test, but defendant changed his mind about having it. Accordingly, the test results were admissible, and the trial court did not err in denying defendant’s motion to suppress.

Decided October 18, 1994

Reconsideration denied November 16, 1994

Virgil L. Brown & Associates, Virgil L. Brown, Eric D. Hearn, Bentley C. Adams III, James D. Rogers, for appellant.

Carl A. Adcock, for appellee.

4. Lastly, defendant argues the trial court should not have admitted evidence of the “finger to thumb” test because there was no proof that such a test is generally accepted in the scientific community as an accurate and reliable means of ascertaining whether a person is intoxicated. “Absent such preliminary proof, the results of a scientific procedure or technique should not be admitted into evidence. [Cit.]” Foster v. State, 204 Ga. App. 632 (420 SE2d 78) (1992). However, we agree with the superior court that the challenged testimony about defendant’s inability to touch his fingers to his thumb while counting was not testimony regarding the results of a scientific procedure but was simply a behavioral observation on the officer’s part. Thus, this enumeration of error is also without merit.

Judgment affirmed.

McMurray, P. J., and Smith, J., concur.


text:
    A94A2225.
    GEORGIA RECOVERY, INC. v. DANLEY et al.
    (450 SE2d 263)
   Birdsong, Presiding Judge.

Appellant/defendant Georgia Recovery, Inc. appeals the order granting summary judgment in favor of appellees/plaintiffs, the Danleys, and from the final order and judgment of the superior court entered in favor of appellees. Appellees brought suit after an agent of defendant attempted to repossess an automobile titled in Mrs. Danley’s name but being used by Mr. Danley who was making late payments thereon. The Danleys averred, under the liberal notice pleading procedures of the Civil Practice Act (see generally Wade v. Polytech Indus., 202 Ga. App. 18, 21 (2) (413 SE2d 468)), several causes of action including that of an attempted wrongful repossession resulting in a breach of the peace. Appellant enumerates four errors. Held:

1. The trial court did not err in entering final judgment against appellant merely because appellees had compromised and settled their claim against NationsBank and dismissed said claim with prejudice. Appellant’s contention that it was an agent of NationsBank is not supported by the record before us. Rather, the record before us on appeal establishes, without contravention, that appellant was hired only as an independent contractor of NationsBank. Thus, appellant’s assertion that release of the principal, NationsBank, extinguished any claims against appellant as NationsBank’s agent is inapposite and the cases cited in support of such proposition are not controlling. There is direct and unrefuted evidence in this case that appellant was hired by NationsBank only as an independent contractor and that Nations-Bank at no time directed or controlled the manner and method of appellant’s automobile repossession operation. This direct evidence pierced the general averments of agency in the pleadings of the parties. In response to a motion for summary judgment, a party cannot rest on generalized allegations, but must come forward with specific facts to show that there is a genuine issue for trial. Precise v. City of Rossville, 261 Ga. 210, 212 (3) (403 SE2d 47). Appellee Leonard Danley testified by way of deposition that the tow-truck operator (who appellant concedes in its brief was the employee of Georgia Recovery, although he did not identify himself as such at the time of attempted repossession) said that NationsBank had ordered him to repossess the truck. However, this evidence is entirely consistent with the direct evidence that Georgia Recovery was acting as an independent contractor and does not raise a genuine issue of agency between Nations-Bank and Georgia Recovery. Moreover, “it is a long-standing rule that a finding of fact which may be inferred but is not demanded by circumstantial evidence has no probative value against positive and uncontradicted evidence that no such fact exists.” Johnson v. Rogers, 214 Ga. App. 557 (448 SE2d 710), and cases cited therein.

2. Further, this court is obliged to conclude that the trial court did not err as enumerated and to affirm the judgment of the trial court. Appellant averred in his notice of appeal that the transcript of the evidence and proceedings in this case would be forwarded; but the court reporter has certified that “there is a transcript of evidence, however, the appellant’s attorney has. never ordered the transcript from the court reporter, nor was the appellant’s attorney present to share in the take down cost.” A grant of summary judgment must be affirmed if it is right for any reason. Malaga Mgmt. Co. v. John Deere Co., 208 Ga. App. 764, 767 (5) (431 SE2d 746). Examination of the order of the trial court granting appellees’ motion for summary judgment and its final order and judgment reveals that a summary judgment hearing was held, evidence was presented at that hearing, and the trial court considered all the evidence before it, prior to granting summary judgment and entering a final order and judgment in behalf of appellees/plaintiffs. It thus would be necessary for purposes of appellate review to have access to and examine the evidence contained in the hearing transcript. “Without a transcript to review, this court must assume as a matter of law that the evidence presented . . . supported the [trial] court’s findings.” Johnson v. State, 261 Ga. 678, 679 (2) (409 SE2d 500); compare Malin Trucking v. Progressive Cas. Ins. Co., 212 Ga. App. 273 (1) (441 SE2d 684); see Nodvin v. West, 197 Ga. App. 92, 97 (3c) (397 SE2d 581).

Judgment affirmed.

Blackburn and Ruffin, JJ., concur.

On Motion for Reconsideration.

Appellant Georgia Recovery, Inc. has filed a motion for reconsideration. Appellant contended inter alia that the Clerk of the State Court of Fulton County agreed to correct a statement in the certificate of the record to reflect that a certain transcript therein referenced pertains to the hearing on NationsBank’s motion of May 27, 1993, and in no relevant manner pertains to appellees’ motion for summary judgment. As of the date of our determination of this motion, the trial record has not been corrected by any procedure authorized by statute. It is not the duty of this appellate court to correct any asserted deficiencies in the record to the benefit of one party to an appeal. Appellant’s factual contentions in its reconsideration motion regarding this matter are not supported by the existing appellate record and therefore cannot be considered. Behar v. Aero Med Intl., 185 Ga. App. 845, 846 (1) (366 SE2d 223). As a general rule, “it is the state of an appellate record and transcript duly before us at the time of our original disposition of [an] appeal, and not the state of the record as amended in an attempt to support an appellate position argued on motion for reconsideration, that is controlling as to the adequacy of the record for purposes of appellate review.” Williams v. Food Lion, 213 Ga. App. 865, 868 (446 SE2d 221). We see no reason to depart from a general rule fashioned to protect our judgments (Ga. Const. of 1983, Art. VI, Sec. I, Par. IV), particularly as the alleged deficiency in the certificate was not detected and corrected during the original appellate process. Moreover, the record was not even corrected in a manner authorized by statute as of the date this reconsideration motion was considered by this court.

Decided October 31, 1994

Reconsideration denied November 16, 1994

McLanahan & Comolli, John M. Comolli, for appellant.

Danley & Associates, Timothy J. Crouch, for appellees.

Motion for reconsideration denied.