text:
    A94A0591.
    PARTON v. HAVILAND et al.
    (442 SE2d 806)
   Birdsong, Presiding Judge.

Grady Allan Parton seeks custody of his child, Rene, born in January 1989, who has lived with her maternal grandmother for all but four months of her life. Parton has legitimated his daughter, has married and is employed, and claims to have established a secure and positive lifestyle. Appellee grandmother has custody by virtue of this order of January 16, 1991: “The . . . matter having come before the court for hearing on January 10, 1990, on [the maternal grandmother’s] complaint for immediate temporary custody of Jennifer Rene Haviland . . . and the Court having heard evidence thereon and arguments of counsel; It is hereby ordered and adjudged as follows: (a) Plaintiff [maternal grandmother] is to have custody and control of the child for one year to give defendants [father and mother] time to get their lives straightened out, at the end of which time the court will review such progress for another determination; (b) Both defendants shall have reasonable visitation rights with the child. So ordered.”

On August 12, 1993, appellant filed the instant petition for change of custody. Appellee grandmother answered, contending that the January 16, 1991 award was not a temporary order but was an order which implicitly determined appellant’s unfitness, and was a final judgment which deprived the court of further jurisdiction to amend or modify it. Draper v. Draper, 170 Ga. App. 727 (318 SE2d 314).

At the hearing on the father’s petition, the grandmother argued that the January 16, 1991 award did not say she was to have “temporary” custody, and that it implicitly made a finding of parental unfitness with the consequence that it was a permanent order and therefore “is subject to change only upon a showing of change of conditions affecting the best interests of the child.” Adams v. State, 218 Ga. 130, 131 (126 SE2d 624). See also Mink v. Mink, 195 Ga. App. 760, 762 (395 SE2d 237) which is physical precedent only (Court of Appeals Rule 35 (b)), but in which the special concurrence agrees with the point just quoted.

The trial court issued an order October 13, 1993, stating that its order of January 16, 1991 “is a permanent award of custody to the grandmother.” We granted an interlocutory appeal. Held:

1. It is very well settled in this state that as between a parent and a third party, “the parent is entitled to custody of the child unless the third party shows by ‘clear and convincing evidence’ that the parent is unfit or otherwise not entitled to custody. . . . Additionally, evidence of past unfitness, standing alone, is insufficient to terminate the rights of a parent in his natural child; clear and convincing evidence of present unfitness is required.” Blackburn v. Blackburn, 249 Ga. 689, 692 (292 SE2d 821).

In the January 16, 1991 order, there is no finding by clear and convincing evidence that appellant was unfit and it is therefore insufficient to terminate appellant’s right to custody of his child.

Where it is unclear what standard of evidence the trial court relied upon in its ruling in a custody case, we must remand the case for a determination of the father’s present fitness for custody under the standard enunciated in Blackburn, supra. In re R. L. L. & J. M. L., 258 Ga. 628 (373 SE2d 363).

2. We reject out of hand appellee’s contention that the January 16, 1991 order was a permanent custody order and not a temporary custody order. We likewise reject appellee’s argument that the order implicitly found the father unfit. The order on its face limits its custody award to the grandmother to one year to give the parents time to get their lives straightened out. Not only does it make no finding of the father’s unfitness, it expressly avoids a finding of unfitness and fully retains to the father his parental rights. There is no bona fide controversy as to the fact that this order on its face was intended to be, and was, an award of temporary custody. The trial court erred in entering an order stating that the January 16, 1991 order was a permanent award of custody.

3. Appellee further contends the January 16, 1991 order was a “permanent” order because the trial court’s attempt to retain jurisdiction to modify the award was a nullity. Banister v. Banister, 240 Ga. 513 (241 SE2d 247); Draper, supra. Assuming that the rule of finality of temporary custody awards with respect to divorce decrees (see Simpson v. Moon, 238 Ga. 152 (231 SE2d 754)) applies to other custody disputes, nevertheless a null attempt to retain jurisdiction of the award does not deprive the order of its nature as temporary.

Moreover, assuming the January 16, 1991 order was a “final” judgment and a “permanent” award, it was insufficient to deprive the father of his prima facie right to custody as against a third party, for it contained no finding of clear and convincing evidence of his unfitness as required by Blackburn, supra.

4. Appellee insists: “Once a third party has been awarded permanent custody of a child in a court proceeding to which a parent was a party, the roles of the parent and the third party reverse . . . the third party now has the prima facie right to custody as against the parent who has lost the right to custody. The parent can regain custody upon showing by clear and convincing evidence his or her present fitness as a parent and that it is in the best interest of the child that custody be changed.” (Emphasis supplied.) Durden v. Barron, 249 Ga. 686 (290 SE2d 923).

This passage refers only to a permanent award which was made properly upon an evidentiary hearing with specific findings as required by Blackburn, supra. As the January 16, 1991 award was not a permanent award and there were no such findings, it cannot operate to remove the parent’s prima facie right to custody, and Durden does not apply.

5. In view of the clear law set forth by the Supreme Court in Blackburn, supra, which is well known in this state and which forbids as unconstitutional the deprivation of a parent’s rights in favor of a third party without an evidentiary showing and finding of clear and convincing evidence of the parent’s present unfitness, we think the approach taken by appellee grandmother to confuse the issues and to represent as “permanent” an award which was clearly intended to be temporary is inappropriate. The special concurrence in Mink, supra at 764, lauds “the wisdom of avoiding protracted hearings and inordinate delays in reaching finality concerning the best interests of the child, who may be adversely affected by the passage of each day (if custody should be changed) and by the uncertainty inherent in temporariness even if the most appropriate custodian is the current one.” It would have been a Solomonic wisdom had appellee eschewed any attempt to avoid the proper judicial process for getting and keeping custody of appellant’s child. The redefining of the January 16, 1991 order by the trial court at appellee’s urging attempts nunc pro tunc to give her permanent custody with no finding of parental unfitness as required by Blackburn, supra; if sustained, it would give the prima facie right to custody to appellee by requiring appellant father to show a change of condition. That the trial court was wrongly persuaded by appellee’s arguments adds no merit to them. If appellee is confident the evidence will support her, she has no reason to avoid producing that evidence. The device of promoting as a “permanent” custody award what was on its face intended to be limited to one year to give the parents time to straighten out their lives perverts the judicial process, deprives the father of his parental rights without due process of law under Blackburn, supra, and does injury to the child. To suggest that the January 16, 1991 order “impliedly” found the father unfit, when it made no such finding and clearly expressed the intent to retain to him his full parental rights, has done nothing but cause unnecessary expense to appellant and unhealthy delay in the status of the child.

The judgment below is reversed and the trial court is directed to vacate its order of October 13, 1993, and proceed not inconsistently with Blackburn, supra.

Judgment reversed.

Cooper and Blackburn, JJ., concur.

On Motion for Reconsideration.

Appellee grandmother insists that “it certainly was not ... a perversion of the judicial process to . . . argue that the trial court’s order which was clearly intended to be temporary, was instead a final judgment,” for cases have held that “a decree awarding child custody is final and may not be modified or changed after the term in which it was rendered except upon a change in conditions affecting the welfare of the child.” Banister v. Banister, 240 Ga. 513, 514 (241 SE2d 247); see Draper v. Draper, 170 Ga. App. 727 (318 SE2d 314).

However, appellee misstates what she contended below and in this appeal. Her argument that the 1991 award was “final” was devised to prove that because the trial court’s attempt to retain jurisdiction for a year was “null,” the award was “permanent” and fixed custody in her, thereby removing the father’s prima facie right to custody, and reversing the roles of parent and third party so that the parent can regain custody only by showing “by clear and convincing evidence his . . . present fitness as a parent and that it is in the best interest of the child that custody be changed.” Durden v. Barron, 249 Ga. 686 (2) (290 SE2d 923)..

We held that the fact that the 1991 order was “final” does not mean it was a “permanent” award removing the father’s prima facie right to custody. In a custody contest between a parent and third party, the parental right to custody “may be lost only ... by clear and convincing evidence one of . . . parental unfitness is shown to exist.” Id. at (1). The father’s prima facie rights to custody were never removed by the 1991 award and merely calling it “permanent” did not have that effect.

Appellee insists that the 1991 order “is not the order on appeal [and] the sufficiency of the findings contained therein [is] not in issue.” However, the sufficiency of the 1991 order is most assuredly in issue today, because appellee convinced the trial court that the order ruled the parents unfit and fixed permanent custody in herself, with the result that the father lost his prima facie right to custody. Appellee’s arguments and procedures, including persuading the trial court to rule that the 1991 order was “permanent,” thwart the law stated in Blackburn v. Blackburn, supra at 692, that where a third party seeks custody from a natural parent, “the parent is entitled to custody of the child unless the third party shows by ‘clear and convincing evidence’ that the parent is [presently] unfit or otherwise not entitled to custody under [OCGA §§ 19-7-1 and 19-7-4].” It is this burden which appellee seeks to avoid by representing the 1991 award as what it never was and was never intended to be. As an effort to remove the father’s prima facie right to custody, reverse the roles of the parties and avoid proving his unfitness while keeping custody of his child, appellee grandmother’s arguments are wholly inappropriate and, as we said, are a perversion of the process by which she, as a third party, may get “permanent” custody of appellant’s child.

Decided March 9, 1994

Reconsideration denied April 6, 1994

Gardner, Willis, Sweat & Goldsmith, William G. Johnston III, for appellant.

Vansant, Corriere, McClure & Dasher, John M. Vansant, Jr., K. Alan Dasher, for appellees.

The 1991 award was “final” and could not be modified including by calling it permanent nunc pro tunc. See Hightower v. Martin, 198 Ga. App. 855 (403 SE2d 862). This “finality” of that award simply means appellant was required to file a “separate suit” to get custody of his child {Bragg v. Bragg, 224 Ga. 733, 734 (164 SE2d 560)), and that is what he did. The appellee third party bears the burden of proof as stated by the Supreme Court in Blackburn, supra.

Motion for reconsideration denied.


source: Caselaw Access Project

author: Blackburn, Judge. McMurray, Presiding Judge, Beasley, Presiding Judge,

license: Public Domain

text:
    A94A0097.
    CONTINENTAL INSURANCE COMPANY v. STATE FARM MUTUAL INSURANCE COMPANY.
    (443 SE2d 509)
   Blackburn, Judge.

On August 23, 1991, Bryan Staggs was involved in a motor vehicle collision with Freddie and Jennie Giddens. Subsequently, State Farm Mutual Insurance Company commenced this declaratory judgment, seeking a determination that an insurance policy it originally issued to Staggs for a six-month term from March 1991 through September 1991 had been cancelled, effective July 3, 1991, and thus provided no coverage for the collision.

Staggs defaulted in the action, and Continental Insurance Company was subsequently added as the uninsured motorist carrier for the Giddenses. Following trial in the matter, the jury returned a verdict for Continental and the Giddenses. However, the trial court directed a verdict for State Farm, and this appeal resulted.

State Farm was the original issuer of an automobile liability insurance policy to Staggs. At trial, State Farm showed that on June 20, 1991, it mailed to Staggs a notice of cancellation, effective July 3, 1991, because of his failure to pay a policy premium due in May 1991. It also produced a United States Postal Service proof of mailing list confirming the mailing.

At the inception of the trial, the trial court entered a default judgment against Staggs. However, Continental was allowed over State Farm’s objection to adduce Staggs’ deposition testimony, in which he denied ever receiving the notice of cancellation but noted that he and his loss payee did receive a notice of non-renewal of the policy on July 30, 1991. State Farm’s underwriting operations superintendent acknowledged that notice of non-renewal, but explained that State Farm had issued two policies to Staggs’ household, one covering Staggs’ vehicle and the other covering his wife’s automobile. Although it was not mailed until July 30, 1991, that notice of non-renewal had been generated several weeks before the cancellation of Staggs’ policy due to an earlier problem with Staggs’ driving record, and had included both vehicles as a matter of convenience.

At the close of the trial, State Farm moved for directed verdict on the grounds that (1) Staggs’ default constituted an admission in judicio, binding on his co-defendants, that State Farm had properly cancelled the insurance policy issued to Staggs, and (2) inasmuch as State Farm had shown a proper mailing of the cancellation notice, it was legally irrelevant whether or not Staggs actually received it. The trial court initially deferred ruling on the motion, but, after the jury’s verdict in favor of the defendants, ultimately directed the verdict for State Farm.

In doing so, the trial court found that the only evidence controverting State Farm’s showing of a proper cancellation of the policy in question was Staggs’ deposition testimony. However, because Staggs’ default constituted an admission in judicio binding upon all co-defendants whose interests in the matter were not adverse to Staggs’, that deposition testimony had no probative value. On appeal, Continental contends that the trial court improperly used Staggs’ default as an admission against all the co-defendants.

1. Initally, we note that the trial court reserved ruling on State Farm’s motion for directed verdict until the jury reached a verdict, but directed the verdict for State Farm without entering judgment on the jury’s verdict. In several recent cases involving this same procedure, this court has reversed the trial court’s judgment, with direction that judgment first be entered on the jury’s verdict, and then the parties could pursue appropriate post-judgment remedies. Fabian v. Dykes, 210 Ga. App. 703 (436 SE2d 819) (1993); Wright v. Millines, 204 Ga. App. 111 (418 SE2d 453) (1992); Anaya v. Brooks Auto Parts, 203 Ga. App. 485 (417 SE2d 423) (1992). In support of its conclusion in Anaya, this court cited Connell v. Long, 248 Ga. 716 (286 SE2d 287) (1982). However, that reliance was misplaced, because this court treated Connell as a case involving a post-verdict grant of a motion for directed verdict, when no motion for directed verdict was filed in the case, and there had been no reservation of its ruling on such motion by the trial court as is herein involved.

It is the better practice in those cases, where the trial court reserves ruling on a motion for directed verdict and submits the case to the jury which renders a verdict, to enter judgment on the jury’s verdict and to then rule on the motion for j.n.o.v., pursuant to OCGA § 9-11-50. Where, however, the trial court fails to follow this procedure and enters judgment on the motion for directed verdict without first entering judgment on the jury verdict, nothing is gained by returning the case to the trial court for entry of judgment on the jury verdict, which the trial court would then be authorized sua sponte to vacate and re-grant the motion for directed verdict. As stated by Judge Johnson in his dissent in Anaya, “ [a] 11 of this is totally unnecessary and could be obviated by simply reaching the merits of the main appeal at the present time.”

Prior to Anaya and its progeny, neither this court nor the Supreme Court insisted on strict adherence to the literal terms of the Civil Practice Act provisions on directed verdicts. “[I]t has been held that a motion for directed verdict is not essential where the evidence demands the verdict, for if it demands it, the granting of the verdict by the court is valid despite the court’s failure to obey the procedural law in the Civil Practice Act. [Cits.]” Gleaton v. City of Atlanta, 131 Ga. App. 399 (206 SE2d 46) (1974). Considerations of judicial economy as codified in OCGA § 9-11-50 have been found to militate in favor of allowing a trial court to grant post-verdict a motion for directed verdict, even though no motion for judgment n.o.v. was filed. See Mayor &c. of Savannah v. Palmerio, 242 Ga. 419 (249 SE2d 224) (1978); Brandvain v. Ridgeview Institute, 188 Ga. App. 106 (372 SE2d 265) (1988).

Believing that the present law frustrates judicial economy and efficiency and adds a needless layer of complexity to post-trial practice in this state, we hereby expressly overrule the holdings in Wright, Fabian, and Anaya, to the extent they are inconsistent with this opinion. We now hold that where an appeal is otherwise properly before this court, we will consider the merits of the appeal where the trial court reserved ruling on a motion for directed verdict and then directed a verdict after the jury has rendered a verdict but before there has been an entry of judgment on that verdict, where no special harm results to either party from such consideration.

2. Where a defendant tortfeasor defaults and thereby waives his right to defend against the action, “his waiver and default can not be permitted to injure the statutory right of the [uninsured motorist] insurer to defend the action in its own name, which would be the result if the insurer were held to be bound by the defendant’s admissions. . . .” Ga. Mut. Ins. Co. v. Willis, 140 Ga. App. 225, 226 (230 SE2d 363) (1976). We agree with Continental that under Willis, it was entitled to use Staggs’ deposition testimony in its defense of State Farm’s declaratory judgment action.

State Farm attempts to distinguish Willis from the instant case on the basis that it involved an uninsured motorist carrier’s statutory right to defend in the tort action, rather than a declaratory judgment action. However, in Peek v. Southern Guaranty Ins. Co., 240 Ga. 498 (241 SE2d 210) (1978), the Supreme Court applied Willis in a declaratory judgment action without making such a distinction, and we likewise decline to do so. “[T]he default of the [former] insured in the case before us is deemed to be an admission by him of the plaintiff’s right to recover, but only against him.” Peek, supra at 499.

Nevertheless, even considering Staggs’ deposition testimony, the evidence still demanded a verdict for State Farm. OCGA § 33-24-45 (c) (1) authorizes cancellation of an insurance policy where the named insured fails to pay a premium when due. Under OCGA § 33-24-45 (d) , notice of cancellation is effective only if mailed or delivered as indicated in OCGA § 33-24-44. In this regard, OCGA § 33-24-44 (b) requires notice of cancellation to be delivered in person or by depositing it in the United States mail to the last address of record of the insured, and obtaining a receipt from the United States Postal Service or other such evidence of mailing. A stamped “PORS” list constitutes such a receipt as contemplated by OCGA § 33-24-44 (b). Hill v. Allstate Ins. Co., 151 Ga. App. 542 (260 SE2d 370) (1979).

In the instant case, State Farm adduced both a stamped “PORS” list showing the mailing of the cancellation notice to Staggs on June 20, 1991, as well as the testimony of its employee who personally (1) verified that the cancellation notice was placed in an envelope with the correct postage, (2) took the notice to the post office for mailing, and (3) obtained the stamped “PORS” list from the postal worker. Staggs’ deposition testimony that he did not receive the cancellation notice, or that he received a notice of non-renewal after the alleged cancellation, does not controvert that evidence of State Farm’s compliance with the statutory requirements for effective cancellation.

Whether or not Staggs actually received the cancellation notice is legally irrelevant. Maddox v. Allstate Ins. Co., 164 Ga. App. 21 (296 SE2d 84) (1982). “The statute only requires proof of mailing, not receipt by the insured of the notice of cancellation. [Cit.]” State Farm Mut. Auto. Ins. Co. v. Harris, 177 Ga. App. 826, 828 (341 SE2d 472) (1986). State Farm’s proof of mailing having been uncontroverted, its cancellation of the policy issued to Staggs was effective July 3, 1991, and no coverage existed under that policy with regard to the collision between Staggs and the Giddenses on August 23, 1991. Accordingly, the trial court properly directed verdict for State Farm.

Judgment affirmed.

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

McMurray, Presiding Judge,

dissenting.

I respectfully dissent, as it is my view that if this Court follows the holding and proposal of the majority, this action would be tantamount to an implicit overruling of the Supreme Court of the State of Georgia in Connell v. Long, 248 Ga. 716 (286 SE2d 287).

In Connell v. Long, 248 Ga. 716, 718 (1), 719, supra, those appellants complained that the trial court was without authority to enter a judgment notwithstanding the verdict prior to entry of a judgment on a jury’s verdict and the Supreme Court held that “the trial court should not in effect have entered a judgment notwithstanding the verdict on [a] legal claim [that was properly resolved by a jury] prior to entry of judgment on the verdict. [Wall v. C & S Bank of Houston County, 153 Ga. App. 29, 30 (2) (264 SE2d 523), affirmed 247 Ga. 216 (274 SE2d 486)].” Connell v. Long, 248 Ga. 716, 718 (1), 719, supra. The Court of Appeals of the State of Georgia recently acknowledged this procedural rule as controlling authority in Anaya v. Brooks Auto Parts, 203 Ga. App. 485 (1), 486 (417 SE2d 423), and a majority of the Court of Appeals recognized the binding effect of the Supreme Court’s holding in Connell. Nonetheless, the majority in the case sub judice revisits this debate and now states that the logic of Anaya “was misplaced, because this Court treated Connell as a case involving a post-verdict grant of a motion for directed verdict, when no motion for directed verdict was filed in the case, and there had been no reservation of its ruling on such motion by the trial court as is herein involved.” It is my view, that this distinction marks no demarcation between Connell and the case sub judice. On the contrary, the circumstances of the cases are the same, i.e., the trial courts entered judgments notwithstanding verdicts before entry of judgments on jury verdicts.

“It is as elemental as ABC that the Court of Appeals is bound by decisions of the Supreme Court.” Hogan v. State, 118 Ga. App. 398, 400 (163 SE2d 889). In the case sub judice, the majority would overrule three decisions of the Court of Appeals which follow the Supreme Court’s lead in Connell v. Long, 248 Ga. 716, 718 (1), supra. It is my view, that overruling these decisions would be tantamount to an implicit overruling of the Supreme Court of the State of Georgia in Connell v. Long, 248 Ga. 716, supra, and that any ruling on the merits of the case sub judice is premature and void. OCGA § 9-12-16. Consequently, I would reverse the case sub judice with direction that judgment be entered on the jury’s verdict. Post judgment remedies may thereafter be pursued. See Anaya v. Brooks Auto Parts, 203 Ga. App. 485 (1), 486, supra. Compare Anthony v. Anthony, 236 Ga. 508, 509 (224 SE2d 349), where the Supreme Court dismissed the appeal under similar circumstances.

I am authorized to state that Presiding Judge Beasley and Judge Andrews join in this dissent.

Beasley, Presiding Judge,

dissenting.

I agree with the other dissent. Even if we would not be departing from the precedent set in Connell v. Long, 248 Ga. 716 (286 SE2d 287) (1982), we should not set aside the rules of proper procedure or create exceptions thereto, without analyzing the consequences of doing so. The expressly delineated procedure set out in the Civil Practice Act § 50 has been in existence for almost 30 years, and if it need not be adhered to, it should be changed rather than ignored. Section 58, for example, governs the entry of judgment. There has been no judgment entered in this case, so it is difficult to identify what appealable decision gives the right to a direct appeal. See OCGA §§ 5-6-34 (a) (1); 5-6-38 (a).

How can a verdict be directed after the jury returns its verdict and is disbanded, as was done here? The verdict was returned on July 1 and entered on July 2, and the order granting the motion for directed verdict was entered on July 7. The appeal is from the order, not from any judgment.

The procedure utilized is further confused by the effort of plaintiff to move for j.n.o.v. or for new trial pursuant to OCGA § 9-11-50 (b) four days after the verdict was entered, but there was no judgment. Subsection (b) provides that such a motion may be made “[n]ot later than 30 days after entry of judgment.” This was even before the motion for directed verdict was ruled on. The plaintiff’s subsection (b) motion was never ruled on. However, the court did deny defendant’s motion for reconsideration of the order granting a directed verdict to plaintiff.

Decided March 22, 1994

Reconsideration denied April 7, 1994.

Brannen, Searcy & Smith, David R. Smith, Wayne L. Durden, for appellant.

Duffy & Feemster, Robert J. Duffy, Dwight T. Feemster, Jo Beth Gosdeck, Kent, Williamson & Brannon, A. Martin Kent, Doris E. Brannon, for appellee. .

Certainly the administration of the judicial system should seek to achieve “the speedy, efficient, and inexpensive resolution of disputes,” 1983 Ga. Const., Art. VI, Sec. IX, Par. I. In that regard, it may be high time to revisit the Civil Practice Act and streamline the process so as to reduce costs and delay while maintaining order, predictability, and due process. However, a departure such as the one employed here not only fails to take into account the ramifications of failing to enter judgment on the jury verdict but also invites other piecemeal alterations based on consideration of discrete cases. Amendment to the Civil Practice Act in such a fashion lacks wisdom and authority.

I am authorized to state that Presiding Judge McMurray and Judge Andrews join in this dissent.

       Compare Bennett v. Associated Food Stores, 118 Ga. App. 711, 712 (1) (165 SE2d 581) (1968), which held in a case where there was no verdict that the court could direct one after dispersal of the jury.


author: Birdsong, Presiding Judge.

text:
    A94A0393.
    FREYERMUTH v. CHON et al.
    (443 SE2d 636)
   Birdsong, Presiding Judge.

Brian Keith Freyermuth appeals from a judgment, based upon a jury verdict, in favor of Yung II Chon. Appellant’s sole enumeration of error asserts that the trial court erred by denying his motions for a directed verdict made at the close of Chon’s case and at the close of the evidence.

Chon asserted claims for damages incurred when he was injured in an automobile collision, and Freyermuth’s defense was based upon intervening cause, failure of Chon to exercise ordinary care for his own safety, and Chon’s assumption of the risk. After the jury found for Chon, Freyermuth filed this appeal. Held:

Contrary to Freyermuth’s assertion, he is not entitled to a de novo review of this issue. The standard of appellate review of the trial court’s denial of a motion for directed verdict in a civil case is the “any evidence” standard. Miller v. Economy Trading &c., 193 Ga. App. 344, 345 (387 SE2d 620). Thus, Freyermuth is not entitled to a directed verdict if any evidence supported Chon’s claims. It is not enough that the evidence might support a verdict in favor of Freyermuth; there must be no evidence of any kind supporting Chon’s position. Moore v. American Suzuki Motor Corp., 203 Ga. App. 189 (416 SE2d 807).

Further, in considering whether the trial court erred by denying Freyermuth’s motion for a directed verdict, this court must review and resolve the evidence and any doubt or ambiguity in favor of the verdict; a directed verdict is not authorized unless there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demands a verdict in favor of Freyermuth. OCGA § 9-11-50 (a); Southern Store &c. Co. v. Maddox, 195 Ga. App. 2, 3 (392 SE2d 268). Further, in ruling on such a motion, the trial court is not authorized to weigh the evidence or decide issues of fact. Moore v. American Suzuki Motor Corp., supra.

Viewed in support of the verdict, the evidence shows that one night Freyermuth was driving in the left lane for traffic in his direction on a highway with two lanes of traffic in either direction and a center turn lane. At the time, however, barrels blocked the center lane because of construction on the road. When Freyermuth attempted to pull into the right lane, he could not because of another car. As he was traveling too fast to stop his car before hitting the traffic stopped in his lane of traffic, he hit the car in front of him and one of the construction barrels. The barrel was knocked across the center lane and across a lane of traffic in the other direction before it struck and lodged under the front of Chon’s car that was traveling in the curb lane for traffic in the other direction. Because the barrel was jammed under it, Chon’s car stopped and he could not move it. After he turned on his flashing emergency lights, he looked for other traffic before he got out of his car, and walked to the front of his car to look at the barrel jammed under his car. Shortly thereafter, Chon was injured when his car was struck from the rear by another car and the force of the collision knocked Chon’s car into him.

Reduced to its simplest terms, Freyermuth contends this evidence showed that Chon’s injuries were not caused until Chon’s car was knocked into him by the other car; therefore, Freyermuth is not liable. He argues that whether considered as issues of intervening negligence of the other party, the failure of Chon to exercise ordinary care, or Chon having assumed the risk, a proximate cause analysis of the evidence must lead to the conclusion that the chain of causation between Freyermuth’s negligence and Chon’s injuries was broken.

The defect in this argument, however, is that to reach the result for which Freyermuth calls, the trial court must weigh the evidence, which in this case is at best conflicting on the issues necessary to support the defenses Freyermuth asserts. Because we cannot say that the evidence summarized above demands a verdict for Freyermuth on any of these defenses or that there is no evidence supporting Chon’s claims, we will not cite and analyze the legion of cases holding that the defenses Freyermuth asserts present jury issues in all but the most extraordinary cases. Accordingly, given the posture of the evidence, the trial court did not err by denying the motions for directed verdicts.

Decided April 7, 1994.

Harper, Waldon & Craig, Russell D. Waldon, Hilliard V. Castilla, for appellant.

Finch, McCranie, Brown & Thrash, David E. Naylor, Jane C. Taylor, for appellees.

Judgment affirmed.

Cooper and Blackburn, JJ., concur.


author: Johnson, Judge.

text:
    A94A0421.
    BLUE v. THE STATE.
    (443 SE2d 635)
   Johnson, Judge.

Lester Bernard Blue appeals his conviction of five counts of aggravated assault, conspiracy to commit trafficking in cocaine and violation of OCGA § 16-11-120, the Georgia Firearms & Weapons Act. The convictions arose out of events culminating in a shoot-out with police. Two co-indictees pled guilty, and Blue was tried alone.

1. Blue argues that the trial court erred in refusing to give a requested charge on the “two theories” principle. Blue relies on Lowe v. State, 208 Ga. App. 49, 53 (3) (430 SE2d 169) (1993) in which this court reversed a case in which the trial judge refused to give a “two equal theories” charge pursuant to § 24-4-6 when all of the evidence presented in the case was circumstantial. We do not have benefit of the exact language of the requested charge in Lowe. However, the charge requested by Blue is as follows: “Where the facts in evidence and all reasonable deductions therefrom present two theories, one of guilt and one of innocence, the justice and humanity of law compel the acceptance of the theory which is consistent with innocence.” This charge is substantially the same as the charge which was disapproved in Langston v. State, 208 Ga. App. 175 (430 SE2d 365) (1993). See also Johnson v. State, 210 Ga. App. 99, 102 (2) (435 SE2d 458) (1993), which referred to Langston, noting: “[W]e have recently held that this statement of law does not accurately state the principle addressed and should never be given.” See also Kelly v. State, 212 Ga. App. 278 (442 SE2d 462) (1994).

2. Blue asserts that the trial court erred in denying his motion for a directed verdict of acquittal and makes the related assertion that the evidence was insufficient to support the verdict as a matter of law. “On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence.” (Citations and punctuation omitted.) Curtis v. State, 208 Ga. App. 720, 721 (431 SE2d 719) (1993). Viewing the evidence in this light, the evidence presented at trial is as follows: Two undercover police officers set up a “reversal” drug sting with Blue and two accomplices. The police testified that three men arrived at the designated place in a large, old, blue car. The two men in the front seat got out of their car to see the kilogram of cocaine which was under the driver’s seat in the officers’ pickup truck. In turn, one of the officers went over to the car and asked the third man, ultimately identified as Blue, who was seated in the back seat, holding a brown paper bag on his lap, to “flash” him the money. Blue told him he did not want to do the deal in a parking lot. The police officer offered to get a motel room, but before doing so, he wanted to see that the men had brought $25,000 to purchase the cocaine. Blue refused to show it to him, perhaps because the bag actually contained paper napkins, with $200 visible on the top. The officer said that he guessed the deal was not going to happen and started walking back to the pickup. At that point the shooting started. One of the police officers was shot with a handgun and fell to the ground. He looked toward the car and saw Blue lean out the window with a sawed-off shotgun. He heard the shotgun being “racked” and Blue told him not to move. He rolled over and heard a blast and the loud sound of a bullet hitting the ground. After his arrest, Blue gave a statement to police which was introduced at trial. In the statement Blue acknowledges that he stuck the shotgun out of the window of the car, but did not know if it went off or not. The evidence justified the denial of Blue’s motion for a directed verdict of acquittal and was sufficient to permit the jury to find Blue guilty beyond a reasonable doubt of all the charges brought against him. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

3. The trial court did not err in admitting evidence of conversations between the undercover police officers and Blue’s co-defendant when evidence linking Blue to any conspiracy to traffic cocaine had not yet been presented. OCGA § 24-3-5 provides: “After the fact of conspiracy is proved, the declarations by any one of the conspirators during the pendency of the criminal project shall be admissible against all.” Blue argues that the only evidence which had been offered by the State to establish the conspiracy at the time the statements of the co-conspirators were introduced was the fact that Blue was removed from the car at the time he was arrested. In fact, all of the evidence that there were three men involved in the planned purchase, as well as the testimony describing the refusal of the man in the back seat of the car to show the purchase money, had already been introduced. “Hearsay statements made by a conspirator during the course of a conspiracy, including the concealment phase, are admissible against all conspirators. At the time [the testimony was] admitted, circumstantial evidence of conspiracy was before the jury. . . . Moreover, the trial judge may admit testimony or statements by co-conspirators before the conspiracy has been proved, provided that such existence is afterwards shown during the trial.” (Citations and punctuation omitted.) Guerra v. State, 210 Ga. App. 102, 105 (3) (a) (435 SE2d 476) (1993). The trial court did not err in allowing the hearsay statements of co-conspirators.

Decided April 7, 1994.

B. Thomas Cook, Jr., for appellant.

J. Tom Morgan, District Attorney, J. Mike McDaniel, Robert E. Statham III, Barbara B. Conroy, Assistant District Attorneys, for appellee.

Judgment affirmed.

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


author: Blackburn, Judge.

text:
    A94A0437.
    SKIPPER v. FIREMAN’S FUND INSURANCE COMPANY.
    (443 SE2d 302)
   Blackburn, Judge.

The appellee, Fireman’s Fund Insurance Company, filed the instant action against the appellant, John D. Skipper d/b/a Decatur Pulpwood Company, to recover an overpayment of excess workers’ compensation premiums refunded to Skipper. In his responsive pleading, Skipper admitted that he had been overpaid, but contends that the amount of the overpayment was significantly lower than Fireman’s Fund alleges based upon Fireman’s Fund’s incorrect calculation of the premiums due. Fireman’s Fund moved for summary judgment, and the motion was subsequently granted by the trial court. This appeal followed.

In his sole enumeration of error, Skipper maintains that Fireman’s Fund was not entitled to summary judgment as a matter of law because material issues of fact remain for jury resolution as to whether he received proper notice of the increase in the experience modification factor which resulted in an increase in the amount of premiums due, and whether the parties mutually assented to the amount of premiums due under the terms of the insurance contract. We disagree.

While, as a general rule, it is true that the premium to be charged on an insurance policy is an essential term of the contract which requires the mutual assent of the parties for validity, this element usually arises from negotiations between the parties, which is absent when insurance coverage is provided through an assigned risk plan, as in this case. “Generally, any insurer to whom a particular risk is assigned by the assigned risk plan must accept the assignment and provide coverage, but is allowed a higher premium commensurate with the risk. The premium is determined by a rating system approved by the Insurance Commissioner which is keyed to the nature, number and severity of [incidents of] violations applicable. . . . From this perspective, it is apparent that insurance coverage under the assigned risk plan is not the subject of normal negotiations between contracting parties, but is made effective by operation of law to serve the best interests of the general public. It thus follows that the general rule of “mutual assent” as to the amount of the premium does not apply under the circumstances of the case sub judice. This conclusion is supported by undisputed evidence showing that [Skipper] was a qualified applicant under the assigned risk plan; that [his insurance agency] was not acting as an agent of [Fireman’s Fund]; and that there was no communication by either [Skipper] or [the insurance agency] with [Fireman’s Fund] before the effective date of the policy.” (Citations and punctuation omitted.) Rondale Bus Svc. v. American Cas. Co., 189 Ga. App. 869, 870-871 (1) (377 SE2d 726) (1989).

In the present case, Skipper was aware that he was obtaining insurance under an assigned risk plan and since Fireman’s Fund was required by law to provide Skipper with coverage, he is bound by the mandatory premium prescribed under the plan which was based upon an increase in the experience modification factor. We reject Skipper’s assertion that he was entitled to notice of the increase in the experience modification factor under OCGA § 33-24-47 (b) as that Code section does not require that an insurer provide notice of a change in risk or exposure. In any event, the record indisputably shows that Skipper was provided with notice of the change in the experience modification factor by Fireman’s Fund, which resulted in an increase in the amount of premiums due under the policy, and in fact paid the increased premium without question. While Skipper further argues that the terms of the insurance contract were contrary to his understanding of the policy’s provisions, the record shows that the policy specifically provided that the premium was subject to a change in the experience modification factor. Under these circumstances, Skipper’s misunderstanding as to the amount of premium due under the policy based upon an increase in the experience modification factor was the result of his failure either to read the contract or “ignorance as to the nature of the assigned risk plan. Consequently, neither law nor equity will relieve [Skipper] of the consequences of [his] submission to the assigned risk plan. [Cit.]” Id. at 872.

Decided April 7, 1994.

Randall E. Chew, for appellant.

Lambert, Floyd & Conger, L. Catharine Cox, for appellee.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.


text:
    A94A0504.
    MILLER v. THE STATE.
    (443 SE2d 524)
   Blackburn, Judge.

Mickey Lamar Miller appeals his conviction by a jury of aggravated assault upon a peace officer, theft by receiving, criminal damage to property in the second degree, interference with government property, violation of the Georgia Controlled Substances Act, possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon. Miller asserts that the trial court erred in denying his motion for mistrial.

Viewed in the light most favorable to support the verdict, the evidence revealed that Miller, driving a blue pickup truck, attempted to evade a police officer. During the ensuing chase, the truck spun around 180 degrees and stopped facing the pursuing police officer. The officer stopped his vehicle ten feet from the truck and was able to positively identify Miller as the driver. As the chase continued, Miller shot at the officer through the back window of the truck. Miller’s truck left the road and continued into a wooded area. The police set up a containment perimeter around the wooded area and located the truck where it had struck a tree. Several hours later Miller was located; he was wet, muddy and cold. Miller was arrested and searched. The search revealed approximately one-half of a gram of methamphetamine and nicotinamide, a controlled substance.

Miller complains that the State’s witness’ testimony regarding factors which may affect the reliability of an atomic absorption test, despite the witness’ failure to be qualified as an expert, required the grant of his motion for mistrial. The witness was an investigator with the Gwinnett County Police Department who investigated the scene of Miller’s arrest. The witness testified that an atomic absorption test is the most common test used to determine whether a person had recently fired a gun. Thereafter the State asked: “Based on your personal experience and not upon what somebody else may have told you, do you have a professional opinion as to the reliability of that test?” The witness testified, without objection: “The test varies upon conditions and types of weapons that are fired. For example, a semiautomatic weapon would not, in some cases, blow back the powder that would be detected on the atomic absorption test. Whereas the revolvers having the less closer tolerances would. Also factors that would affect the results would be wind, weather, wetness, anything such as that.”

The witness further affirmed, without objection, that the surface or contact points upon a subject’s actual hand would affect the validity of the test. After the trial court sustained Miller’s counsel’s leading objection, the State asked: “What factor, if any, might lend themselves [sic] to the reliability or unreliability of that test regarding a person’s skin?” The witness responded: “In this particular case, the weather at the time of this incident was rainy, wet, the ground undergrowth, anything such as that was fairly wet. The gun powder residue can be washed off of a person’s skin.” Miller’s counsel then objected. The court “order [ed] the jury to disregard that, disabuse it from your mind. He has not been qualified as an expert, and it’s inadmissible.” Thereafter, Miller’s counsel moved for a mistrial. The court admonished the prosecutor, sustained the objection, ordered “once again the jury disabuse it from your mind,” and overruled the motion for mistrial.

“When prejudicial matter is placed before the jury in a criminal case, the trial judge must decide whether a mistrial must be granted as the only corrective measure or whether the prejudicial effect can be corrected by withdrawing the testimony from the consideration of the jury under proper instructions. Whether the giving of corrective instructions is sufficient to cure the error, or whether the declaration of a mistrial is necessary, are questions addressing themselves to the discretion of the trial judge.” (Citations and punctuation omitted.) Grier v. State, 209 Ga. App. 283, 284 (433 SE2d 685) (1993). The Supreme Court of Georgia established relevant circumstances to consider in determining whether the trial court abused its discretion in denying a motion for mistrial in Sabel v. State, 250 Ga. 640, 644 (300 SE2d 663) (1983), overruled on other grounds Massey v. Meadows, 253 Ga. 389 (321 SE2d 703) (1984). “Some of the factors and circumstances to be reviewed include the nature of the statement, the other evidence in the case, and the action taken by the court and counsel concerning the impropriety. [Cits.]” Sabel, supra.

Considering the witness’ testimony that was allowed without objection, additional testimony by the officer who was following Miller when shots were fired, and the trial court’s action in withdrawing the objectionable testimony from the jury’s consideration we conclude that the trial court did not abuse its discretion in denying Miller’s motion for mistrial.

Decided April 7, 1994.

Ronnie K. Batchelor, for appellant.

Daniel J. Porter, District Attorney, George F. Hutchinson III, Assistant District Attorney, for appellee.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.


text:
    A94A0543.
    BRADY v. THE STATE.
    (443 SE2d 522)
   Blackburn, Judge.

Following a joint trial by jury with co-defendant Betty Tuck, the appellant, Gary Brady, was found guilty of misdemeanor possession of marijuana and not guilty of possession of methamphetamine. Tuck was found not guilty of both offenses. On appeal, Brady maintains that the trial court erred in denying his motion to suppress based upon the insufficiency of the probable cause affidavit, and erred in sentencing him. We disagree and affirm his conviction.

At the hearing on the motion to suppress, Agent Randall Young of the Forsyth-Pickens-Jasper Drug Task Force testified that on January 11, 1991, he applied for a search warrant on a vehicle registered in Brady’s name. The application was based in part upon information that the agent had received from a reliable informant. No oral testimony was considered by the issuing magistrate. The affidavit at issue stated that three days earlier, Brady had been seen by a reliable informant in Pickens County with a quantity of methamphetamine powder and marijuana in his 1978 Camaro bearing a particular license tag number. The reliable informant had also observed the sale of controlled substances from the automobile within the preceding six-month period. The reliable informant had previously provided the task force with information in numerous drug seizure cases which led to the arrests of at least ten individuals, and the agent knew that the informant was in a position to have knowledge of drug trafficking in the area. The affidavit also indicated that an independent investigation conducted by the agent revealed that the vehicle was registered to Brady and that Brady had been arrested previously for at least three violations of the Georgia Controlled Substances Act.

After the chief magistrate signed the warránt, a lookout was placed on Brady’s vehicle and the vehicle was spotted later that day by other officers assisting in the investigation. The vehicle was pulled over and Agent Young presented Brady with the warrant and began to search the vehicle. Marijuana cigarette butts were found in the ashtray of the vehicle and Brady was arrested and placed in the patrol car. The search of the vehicle revealed three round plastic pill bottles which contained methamphetamine residue. When Brady was informed of the results of the subsequent search, he denied that he had been involved with methamphetamine but admitted that he sold marijuana.

1. “In determining whether an affidavit sufficiently establishes the probable cause necessary for issuance of a warrant, we employ the ‘totality of the circumstances’ analysis enunciated in Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983), and adopted by [the Supreme Court] in State v. Stephens, 252' Ga. 181 (311 SE2d 823) (1984). Under that analysis, the task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed.” (Citations and punctuation omitted.) Munson v. State, 211 Ga. App. 80, 81 (438 SE2d 123) (1993).

Brady argues that the trial court did not have a substantial basis for concluding that probable cause existed because the affidavit did not state the basis for the informant’s reliability. However, the informant’s reliability was shown by the fact that information that he supplied in other investigations led to the arrests of other individuals in addition to numerous seizures of contraband. Moreover, the information provided by the informant about Brady and his vehicle was corroborated by an independent investigation conducted by the agent. “Indeed, corroboration of the information given by an informant may provide a substantial basis for finding probable cause.” (Citations and punctuation omitted.) Id. at 82. Considering the information contained in the affidavit and the independent verification by the officer of the information supplied by the informant, we conclude that the trial court did not err in denying Brady’s motion.

2. Next, Brady maintains that the trial court erred in sentencing him to 12 months’ probation, and as a condition of that probation, requiring that he satisfactorily complete counseling and treatment at a community corrections center, pay a fine of $1,000 in addition to a $10 per month probation fee, refrain from using alcohol or prohibited substances, submit to blood or urine tests, consent to searches of his person and property without a search warrant, and attend counseling sessions as directed by his probation officer. Brady asserts that this sentence was too severe. However, “ ‘OCGA § 17-10-1 (a) (1) authorizes the trial judge to impose sentence “within the minimum and maximum prescribed by law as the punishment for the crime.” ’ ” Jefferson v. State, 209 Ga. App. 859, 863 (2) (434 SE2d 814) (1993). Although Brady maintains that the sentence imposed was based upon his failure to accept the terms of an earlier plea bargain, the transcript of the sentencing hearing shows that the plea bargain agreement was not argued by the prosecution for consideration in imposition of punishment, but was instead argued by Brady’s counsel for consideration of a more lenient punishment since Brady never denied possession of the marijuana. Inasmuch as the trial court’s imposition of the above sentence for misdemeanor possession of marijuana was within the minimum and maximum prescribed as punishment for the offense, we must conclude that the sentence was not erroneous. Id.

Decided April 7, 1994.

Weaver & Weaver, George W. Weaver, for appellant.

Roger Queen, District Attorney, for appellee.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.


text:
    A94A0855.
    FREEMAN v. CONTINENTAL BAKING COMPANY et al.
    (443 SE2d 520)
   Blackburn, Judge.

This is an appeal from an order of the Superior Court of Floyd County reversing an award of workers’ compensation indemnity benefits in favor of the appellant, Kenneth Scott Freeman.

Freeman had been employed with Continental as a maintenance engineer for six years prior to sustaining a disabling injury to his knee on March 23, 1990, during a fall on Continental’s premises. His claim for benefits was accepted as compensable by Continental and Freeman was provided medical benefits, including rehabilitation services, and weekly indemnity benefits. In May 1990, surgery was performed on the knee, and four months later, Freeman was informed by his authorized treating physician that he should change vocations and seek a position that did not involve heavy labor. Freeman was assigned a 15 percent impairment rating to his left lower extremity as a result of the knee injury, and was given restrictions against squatting, climbing, and heavy lifting.

Based upon his physician’s recommendation, on April 16, 1992, Freeman made a bid on a position in the shipping department pursuant to the labor agreement with the company. The position would have been awarded based upon seniority, and it is undisputed that Freeman had the most seniority and would have been awarded the position if he passed the company’s pre-employment physical examination which included a routine drug test. Freeman had performed the job before and knew that the position was within his physical limitations and that he was capable of performing the job. Freeman admittedly passed the physical examination but he failed the company’s drug test, and was subsequently terminated. Four months later, Continental unilaterally suspended his weekly indemnity benefits.

Following a hearing on Freeman’s request for the recommencement of income benefits, the ALJ found that Freeman was never offered the position prior to his termination, and therefore Continental had not met its burden of showing that Freeman had undergone a change in condition for the better. The Board, with one member dissenting, affirmed the award of the ALJ based upon Continental’s failure to offer Freeman the position.

1. Initially, Freeman maintains that the trial court erred as a matter of law in reversing the award of the Board because the Board’s factual findings on the unavailability of suitable employment was supported by the evidence. We disagree.

“ ‘(T)he term “change in condition” means a change in the wage-earning capacity, physical condition, or status of an employee, which change must have occurred after the date on which the wage-earning capacity, physical condition, or status of the employee or other beneficiary was last established by award or otherwise.’ OCGA § 34-9-104 (a) (1).” Atlanta Hilton & Towers v. Gaither, 210 Ga. App. 343, 345 (1) (436 SE2d 71) (1993). The statutory test for “change in condition” under this section is “ ‘[s]olely an economic change in condition occasioned by the employee’s return or ability to return to work for the same or any other employer.’ [Cit.]” Morrison Assurance Co. v. Hodges, 130 Ga. App. 436 (203 SE2d 629) (1973). See Employers Ins. of Wausau v. Carnes, 148 Ga. App. 767 (252 SE2d 654) (1979).

In order for an employer to justify a unilateral suspension of an injured employee’s workers’ compensation income benefits based upon a change in condition for the better, the employer must show that the employee is able to return to work and that suitable work is available. Peterson/Puritan v. Day, 157 Ga. App. 827 (278 SE2d 674) (1981); Hercules, Inc. v. Adams, 143 Ga. App. 91 (237 SE2d 631) (1977). In Peterson/Puritan, supra, this court recognized that the employer, in satisfying its burden of proof in such an instance, is not required to show that a specific job offer has been made to the injured employee.

In the present case, the evidence shows that suitable employment was made available to Freeman by Continental, and the fact that the job was not officially offered to him after he failed the company’s drug test is not dispositive of the issue. Id. Continental has shown by a preponderance of the evidence that Freeman’s economic condition is not causally related to his work-related injury, but is proximately caused by his impermissible drug use, and accordingly, the suspension of benefits was warranted. Since the ALJ’s factual finding that suitable employment was not made available to Freeman was unsupported by the evidence, the trial court did not err in reversing the award of the ALJ as affirmed by the majority of the Board. As Freeman correctly argues, findings of fact of the Board, when supported by any evidence, are conclusive and binding upon reviewing courts. Durham v. Twiggs County Bd. of Commrs., 210 Ga. App. 203, 204 (435 SE2d 688) (1993). However, “where there is plain error of fact ... an appellate court [is] authorized to reverse the Board’s award. [Cits.]” Carroll v. Dan River Mills, 169 Ga. App. 558, 562 (1) (313 SE2d 741) (1984).

Decided April 7, 1994.

Mundy & Gammage, E. Lamar Gammage, Jr., for appellant.

Saveli & Williams, Mark S. Gannon, Carrie L. Christie, for appellees.

2. Next, Freeman asserts that the facts of the case at bar are not controlled by our decision in Aden’s Minit Market v. Landon, 202 Ga. App. 219 (413 SE2d 738) (1991). We agree. In Landon, the claimant sustained a compensable injury, and after a period of disability and after she had actually returned to work with another employer, Landon was terminated for misconduct. This court found that under the facts therein, the burden was on the claimant to show that her inability to find suitable full-time employment was proximately caused by her work-related injuries. In the present case, Freeman had not returned to work following his disabling injury when he was terminated for cause, and contrary to the superior court’s conclusion, “[u]nder these circumstances, the burden was placed properly upon the employer to justify the suspension of benefits. [Cit.]” State of Ga. v. Graul, 181 Ga. App. 573, 575 (1) (353 SE2d 70) (1987). Consequently, the superior court erred in concluding that Freeman had the initial burden of proof to establish a change in condition following his termination for misconduct. However, in light of our decision in Division 1 of this opinion, we affirm the trial court’s decision.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.


text:
    A94A0209, A94A0210.
    GYNECOLOGIC ONCOLOGY, P.C. v. WEISER; and vice versa.
    (443 SE2d 526)
   Birdsong, Presiding Judge.

Gynecologic Oncology, P.C. (GOPC) brought suit against Dr. Edward B. Weiser to enforce a professional employment agreement and a promissory note; the complaint contained four counts. In Count I, GOPC sought recovery of liquidated damages resulting from the alleged breach of a covenant not to compete in the employment agreement; in Counts II-IV, GOPC sought to recover the outstanding balance allegedly owed under an unsecured promissory note of Dr. Weiser with interest and attorney fees. Dr. Weiser filed an answer and counterclaim averring a variety of claims, including claims for declaratory judgment, attorney fees, and litigation expenses.

The parties filed cross-motions for summary judgment. The trial court granted GOPC’s motion for summary judgment as to Counts II and III of its complaint; denied GOPC’s motion for summary judgment as to Counts I-VIII of Dr. Weiser’s counterclaim; granted Dr. Weiser’s motion for summary judgment on Count I of GOPC’s complaint; denied GOPC’s motion for summary judgment on Counts I and IV of its complaint; and denied Dr. Weiser’s motion for summary judgment as to Count IV of the complaint. GOPC appeals and Dr. Weiser cross-appeals. Held:

Case No. A94A0209

1. On summary judgment, movant has the burden of showing there is no genuine issue as to any material fact and that he is entitled to a judgment as a matter of law. In ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions arising therefrom most favorably toward the party opposing the motion. Moore v. Goldome Credit Corp., 187 Ga. App. 594, 595-596 (370 SE2d 843). However, at summary judgment a party who will not bear the burden of proof at .trial need not conclusively prove the opposite of each element of the non-moving party’s case. Rather, that party must demonstrate by reference, to evidence in the record that there is an absence of evidence to support at least one essential element of the non-moving party’s case. Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (405 SE2d 474).

2. The record establishes that, less than five months from the date he terminated his employment with GOPC, Dr. Weiser opened a medical office, a professional corporation, within one-half mile of GOPC’s office; this was done notwithstanding a covenant not to compete in the employment contract. The covenant in essence provides that Dr. Weiser will refrain for a two-year period, following termination of employment, from conducting the practice of medicine in any capacity within a radius of ten miles of the GOPC office where he was employed (a certain address in a hospital complex). The two-year period, however, was subject to being tolled pursuant to the following provision: “The provisions of this paragraph 6 are intended to constitute an agreement in partial restraint of trade, of the type described in OCGA § 13-8-2.1 (c). Such provisions shall be construed accordingly. Any violation of the restraint shall automatically toll and suspend the duration of this post-employment covenant for the amount of time that the violation continues, provided that employer seeks enforcement promptly after discovery of the violation.”

“This tolling provision potentially extends the duration of the covenant without limit and renders it unreasonable and unenforceable on its face.” ALW Marketing Corp. v. McKinney, 205 Ga. App. 184, 188 (421 SE2d 565). Moreover, the tolling provision is not severable and renders the entire covenant invalid and unenforceable. ALW Marketing Corp. v. Hill, 205 Ga. App. 194, 198 (5) (422 SE2d 9). McKinney and Hill are not distinguishable and are controlling as to these issues. The trial court did not err in granting Dr. Weiser’s motion for summary judgment as to Count I of GOPC’s complaint and denying GOPC’s motion for summary judgment as to said count.

3. Appellant GOPC asserts the trial court erred in denying GOPC’s motion for summary judgment as to Count I of Dr. Weiser’s counterclaim seeking declaratory judgment. In view of our holding in Division 2 above, this issue is moot.

4. The trial court did not err in denying GOPC’s motion for summary judgment with respect to Count II (amounts due under the employment agreement), Count III (amounts due outside the professional agreement), Count IV (accounting), Count V (setoff; see Ben L. O’Callaghan Co. v. Bond Supply Co., 138 Ga. App. 186 (1) (225 SE2d 774)), Count VI (tortious interference with business relationships), Count VII (fraud and fraud in the inducement to contract) and Count VIII (attorney fees and litigation expenses; compare Gunnin v. Dement, 205 Ga¡ App. 631, 633 (2) (422 SE2d 893) and Bowdish v. Johns Creek Assoc., 200 Ga. App. 93, 95 (4) (406 SE2d 502) with Eisner v. Cathcart Cartage Co., 124 Ga. App. 615 (1) (184 SE2d 685)) of Dr. Weiser’s counterclaim. There exist genuine issues of material fact within the meaning of Moore, supra, as to these counterclaims, including the issue of fraud (albeit the evidence of fraud is by no means compelling). While generally hearsay evidence (unless part of the res gestae) has no probative value in summary judgment proceedings (Strickland v. DeKalb Hosp. Auth., 197 Ga. App. 63, 65 (2a) (397 SE2d 576)), opinion evidence can preclude grant of summary judgment. Mitchell v. Rainey, 187 Ga. App. 510, 513 (370 SE2d 673).

Case No. A94A0210

5. Dr. Weiser asserts the trial court erred in granting GOPC’s motion for summary judgment on Count II of its complaint (promissory note). This contention is without merit.

The trial court has discretion to permit affidavits and other admissible evidence in summary judgment proceedings to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. OCGA § 9-11-56 (e). Generally, when signatures are admitted or established, production of a note entitles a holder to recover on it unless the defendant establishes a defense (and even then if the plaintiff can successfully overcome any defense raised). Gate City Furniture Co. v. Rumsey, 115 Ga. App. 753 (2) (156 SE2d 221).

Under the Civil Practice Act, an ex delicto counterclaim may be asserted against an ex contractu action. See OCGA § 23-2-76; Ben L. O’Callaghan Co. v. Bond Supply Co., supra. Cross-appellant asserts, inter alia, by way of purported defense, the right of equitable setoff pursuant to OCGA § 23-2-76. Under the facts before us, the type of setoff asserted by cross-appellant, Dr. Weiser, does not operate as a denial of GOPC’s claim on the note. Rather such a setoff merely allows Dr. Weiser to setoff a debt owed him by GOPC, if any is proven at trial, against the claim of the GOPC on the note. “As such, it must be asserted as a counterclaim rather than a defense . . . This is true whether [Dr. Weiser’s] claim of setoff be asserted as a legal right pursuant to OCGA § 13-7-5 or as an equitable right pursuant to OCGA § 23-2-76.” Nat. City Bank of Rome v. Busbin, 175 Ga. App. 103, 106 (3) (332 SE2d 678).

GOPC has established, through the note at issue, admissions of Dr. Weiser and its own responses to interrogatories, a prima facie case of indebtedness by Dr. Weiser on the note in the amount $41,773.20 as averred in Count II of its complaint. Dr. Weiser has responded with generalized conclusory testimony to the effect that he owes GOPC approximately $39,000 “and change.” See Sullivan v. Fabe, 198 Ga. App. 824, 826 (403 SE2d 208). “In response to a motion for summary judgment, the non-moving party may not rest on generalized allegations, but must come forward with specific facts to show that there is a genuine issue for trial. . . . [Dr. Weiser] has not met his burden to go forward with this claim.” Precise v. City of Rossville, 261 Ga. 210, 212 (3) (403 SE2d 47).

6. Dr. Weiser asserts that in light of the lower court’s error in granting summary judgment on the note, the grant of prejudgment interest is also in error, requiring reversal. The trial court did not err in granting summary judgment on the note. See generally OCGA § 7-4-15; compare Vulcan Life Ins. Co. v. Davenport, 191 Ga. App. 79, 84 (5) (380 SE2d 751), overruled on other grounds, Santiago v. Safeway Ins. Co., 196 Ga. App. 480, 482 (396 SE2d 506).

Decided April 8, 1994.

Boyce, Ekonomou & Atkinson, Andrew J. Ekonomou, Catherine M. Packwood, for appellant.

Powell, Goldstein, Frazer & Murphy, Douglas L. Brooks, W. Dennis McKinnie, John W. Harbin, for appellee.

7. The trial court did not err in denying Dr. Weiser’s motion for partial summary judgment as to Count IV of GOPC’s complaint for attorney fees and litigation expenses. There exist genuine issues of material fact regarding this claim within the meaning of Moore, supra, and Lau’s Corp., supra.

We conclude that all enumerations of error of appellant and cross-appellant are without merit.

Judgments affirmed.

Cooper and Blackburn, JJ., concur.


author: McMurray, Presiding Judge.

text:
    A94A0080.
    CAGE v. CHASE HOME MORTGAGE CORPORATION.
    (443 SE2d 504)
   McMurray, Presiding Judge.

Chase Home Mortgage Corporation filed a petition to dispossess Shirley Cage of premises it allegedly acquired via foreclosure. After a trial, an order granting a writ of possession was entered. This pro se appeal followed. Held:

1. Cage contends the trial court erred in failing to enter findings of fact and conclusions of law as required by “Chapter 9 of the Official Code of Georgia. ...”

OCGA § 9-11-52 (a) provides that “in all nonjury trials in courts of record, the court shall upon request of any party made prior to such ruling, find the facts specially and shall state separately its conclusions of law.” See Browning v. Fed. Home Loan &c. Corp., 210 Ga. App. 115, 116 (2) (435 SE2d 450). The record in the case sub judice does not reflect that Cage made a timely request for entry of such findings and conclusions. In fact, there is no indication that Cage raised this issue in the trial court. Consequently, this enumeration provides nothing for review. State v. Cobb, 208 Ga. App. 752, 753 (432 SE2d 112).

2. Cage next contends the trial court erred in granting a writ of possession “in light of the stay in bankruptcy.” This enumeration presents nothing for review as there is no indication in the record that the case sub judice was stayed pending bankruptcy. State v. Cobb, 208 Ga. App. 752, 753, supra.

Decided March 21, 1994

Reconsideration denied April 11, 1994.

Shirley Cage, pro se.

Fowler, Hine & Kreimer, David Passino, Shapiro & Swertfeger, L. Jack Swertfeger, for appellee.

Judgment affirmed.

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


author: Pope, Chief Judge.

text:
    A94A0341.
    McLEMORE et al. v. CITY COUNCIL OF AUGUSTA et al.
    (443 SE2d 505)
   Pope, Chief Judge.

Plaintiffs Odie and Dot McLemore appeal from the trial court’s grant of summary judgment in favor of defendants City Council of Augusta, Georgia (the city) and Anthony Charles Powell on the grounds that both defendants had immunity under the facts of this case. This action arises from a traffic accident which occurred when the police vehicle driven by Powell, who at that time was an officer of the Augusta Police Department, collided with a vehicle driven by Odie McLemore.

The accident occurred on April 9, 1991. At approximately 9:00 a.m. that day, Powell and other officers were dispatched to respond to an emergency alarm emitting from another officer’s car. Powell turned on his blue lights and proceeded toward the emergency dispatch. Powell first went through the intersection where the accident occurred traveling westward. Powell testified that approximately one block away from that intersection, he realized he had to turn back to reach the officer’s location, and therefore made a U-turn and proceeded in the opposite direction. As he entered the intersection again, against a red light, he struck the car driven by McLemore.

It is undisputed that until Powell made the U-turn his blue lights were flashing. Witnesses testified that after making the turn Powell’s blue lights were off. Powell admits that his blue lights were off at the time of the accident, although he does not remember turning them off.

In granting summary judgment to the defendant city, the trial court based its decision on three grounds: (1) the city cannot be held liable for the alleged tortious acts of Powell pursuant to OCGA § 36-33-3; (2) the act giving rise to the alleged liability in this case was a governmental function entitling the city to immunity pursuant to OCGA § 36-33-1 (b); and (3) the 1991 Amendment to Art. I, Sec. II, Par. IX of the Georgia Constitution is applicable to cities and provides that municipalities do not waive their sovereign immunity by obtaining liability insurance. The trial court granted summary judgment to defendant Powell on the ground that his actions at the time of the accident were discretionary in nature rather than ministerial, entitling him to summary judgment.

1. Initially, we note our Supreme Court recently held that the 1991 Amendment to Art. I, Sec. II, Par. IX is not applicable to municipalities. City of Thomaston v. Bridges, 264 Ga. 4 (439 SE2d 906) (1994).

2. We next consider whether the trial court properly granted summary judgment to the defendants based on OCGA § 36-33-3.

(a) OCGA § 36-33-3 provides: “A municipal corporation shall not be liable for the torts of policemen or other officers engaged in the discharge of the duties imposed on them by law.” As the trial court correctly noted, this statute generally relieves a city of liability for the alleged torts of police officers engaged in the discharge of their duties. Poss v. City of North Augusta, S. C., 205 Ga. App. 894 (424 SE2d 73) (1992). The trial court failed to note, however, that in Ekarika v. City of East Point, 204 Ga. App. 731 (420 SE2d 391) (1992), this court held that OCGA § 36-33-3 is a governmental immunity statute and as such is subject to the waiver of immunity provision contained in OCGA § 33-24-51 (b). That statute provides in pertinent part that municipalities can by purchasing insurance “provide liability coverage for the negligence of any duly authorized officer, agent, servant, attorney, or employee in the performance of his official duties.”

(b) The city argues it has not waived its immunity through the purchase of insurance. The city contends that although it has a policy covering claims in excess of $250,000, its policy is not a policy within the meaning of OCGA § 33-24-51 because its policy is a general liability policy rather than an automobile liability policy. However, it is the nature of the insurance coverage provided by a policy rather than title of the policy which determines if it is a policy within the meaning of OCGA § 33-24-51. The language of the policy in question is sufficient to encompass claims arising from an automobile collision which exceed the $250,000 minimum. Accordingly, the general liability insurance policy purchased by the city is a policy within the meaning of OCGA § 33-24-51. Because the city has insurance as contemplated by OCGA § 33-24-51, it follows that the city can be held liable for the alleged negligence of Powell to the limits of its insurance policy covering the same.

(c) Relying on our Supreme Court’s decisions in Litterilla v. Hosp. Auth. of Fulton County, 262 Ga. 34 (413 SE2d 718) (1992); Hiers v. City of Barwick, 262 Ga. 129 (414 SE2d 647) (1992) and Price v. Dept. of Transp., 257 Ga. 535 (361 SE2d 146) (1987), plaintiffs argue the city is self-insured for all amounts for which it is held liable up to the $250,000 threshold of its insurance policy. The city maintains it is uninsured up to the $250,000 threshold. Both the city administrator and an insurance claims representative who handled claims on behalf of the city testified that the city did not have a self-insurance plan for claims not exceeding $250,000, that the city did not participate in any sort of insurance fund or pool, and that the city did not set aside funds specifically for the purpose of paying liability claims. The evidence presented by the plaintiffs on this issue did not refute that testimony.

The cases relied upon by plaintiffs are factually distinguishable from this case. In Litterilla, the hospital authority maintained a commercial liability policy covering all claims in excess of $2,000,000 and a liability trust fund for other claims. Our Supreme Court held the liability trust fund constituted liability insurance protection. 262 Ga. at 36. In Hiers, the city participated in the Georgia Interlocal Risk Management Agency (GIRMA), which was created pursuant to OCGA § 36-85-1 et seq. Our Supreme Court held that even though the act creating the GIRMA provided that participation in that agency did not constitute a waiver of immunity, a statute which sought to reserve immunity despite the existence of liability insurance could not stand in light of the mandate of Art. I, Sec. II, Par. IX of the Georgia Constitution, before it was amended in 1991. 262 Ga. at 131. In Price, the DOT had an insurance policy which named employees as insureds. The court held that such a policy constituted a waiver of sovereign immunity. 257 Ga. at 537.

“Sovereign immunity is not an affirmative defense . . . that must be established by the party seeking its protection. Instead, immunity from suit is a privilege that is subject to waiver by the [city], and the waiver must be established by the party seeking to benefit from the waiver. [Cit.]” Ga. Dept. of Human Resources v. Poss, 263 Ga. 347, 348 (1) (434 SE2d 488) (1993). Plaintiffs have not met that burden as they did not present evidence that the city has insurance coverage other than the policy which covers claims in excess of $250,000.

3. The trial court also erred by holding that any immunity provided to municipalities pursuant to OCGA § 36-33-1 is not waived by the purchase of insurance. OCGA § 36-33-1 (a); Hiers, supra. Thus, to the extent the city is entitled to immunity pursuant to OCGA § 36-33-1, its immunity is waived to the extent it has insurance as discussed supra. Contrary to the trial court’s holding, the city can be held liable pursuant to either OCGA § 36-33-1 or § 36-33-3 for the alleged negligent acts of Powell for all amounts exceeding the minimum threshold of its insurance coverage of $250,000.

4. Because Powell was acting in his official capacity at the time of the accident, he is entitled to immunity if his allegedly negligent act was discretionary rather than ministerial. See Hennessy v. Webb, 245 Ga. 329 (264 SE2d 878) (1980). Our Supreme Court’s decision in Logue v. Wright, 260 Ga. 206 (392 SE2d 235) (1990) is instructive concerning whether the officer’s acts were discretionary or ministerial in nature.

In Logue, a police officer, responding to a dispatched call concerning a fight, entered an intersection without using his siren or blue light and struck a vehicle in that intersection. Id. at 207. Our Supreme Court held that although the officer performed his duties negligently by proceeding through the intersection without activating his blue light in contravention of OCGA § 40-6-6, immunity still attached because it is the nature of the official’s action rather than the manner in which the official performed the action that determines whether the official is entitled to immunity. The Court further held that the decision of whether to rush to “the scene of disorder” lay within the officer’s discretion, thus entitling him to immunity. Id. at 208.

Pursuant to Logue, if Powell was responding to an emergency call of the other officer his allegedly negligent act would be discretionary in nature; however, if he had returned to routine patrol his conduct would be considered ministerial in nature. See Joyce v. Van Arsdale, 196 Ga. App. 95 (395 SE2d 275) (1990). In this case, unlike Logue, there remains an issue of material fact that must be resolved by a jury before the trial court can properly determine whether his allegedly negligent act was discretionary in nature.

Powell testified that after he was dispatched to the emergency call of another officer, he heard that officer come on the radio, give his location as Seventh Street and attempt to clear the emergency. Several officers, including Powell, testified that the proper procedure was not used to clear the emergency. Because the officer did not at first clear the emergency call for assistance properly, it was within Powell’s discretion to decide whether to continue to respond to that call as an emergency. Powell testified he called the dispatcher and stated that because the emergency had not been cleared properly he was continuing to respond to it, and the dispatcher acknowledged his call. Powell further testified that he was traveling westerly on Walton Way past Eighth Street at the time he heard the officer attempt to clear the emergency call and state his location on Seventh Street. For that reason he testified he made a U-turn and began to travel easterly on Walton Way before re-entering the intersection of Walton Way and Eighth Street striking the McLemore vehicle. However, in the affidavit of the officer who created the emergency, that officer averred his location at the time of the emergency call was at a service station located at Fifteenth Street and Laney Walker Boulevard. That station is located west of the area where Powell made his U-turn and began to proceed easterly. Accordingly, a jury issue is presented concerning whether Powell was continuing to respond to the emergency call at the time of the accident. See Joyce, supra.

Decided March 22, 1994

Reconsideration denied April 11, 1994.

David B. Bell, for appellants.

Hull, Towill, Norman & Barrett, George R. Hall, Capers, Dunbar, Sanders, Bruckner & Clarke, E. Freddie Sanders, Ziva P. Bruckner, for appellees.

Judgment vacated and remanded for proceedings consistent with this opinion.

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

       Although the city’s waiver of immunity for claims exceeding $250,000 creates an anomalous result by allowing the plaintiff to recover only damages exceeding $250,000, we note that Georgia law allowing recovery against a sovereign only to the extent that there is available insurance proceeds is consistent with several sisters’ jurisdictions that have similar statutes. See, e.g., Evanston Ins. Co. v. City of Homestead, 563 S2d 755 (Fla. App. 1990); Espinosa v. Southern Pac. Transp. Co., 635 P2d 638 (Or. 1981).


text:
    A94A0064.
    McKIBBEN v. THE STATE.
    (443 SE2d 640)
   McMurray, Presiding Judge.

Defendant McKibben appeals the denial of his motion to withdraw his plea of guilty of aggravated assault with intent to rape. Held:

Defendant was charged by indictment with rape. Upon the trial of the case he was convicted of the lesser included offense of simple battery and sentenced on November 2, 1988, to serve 12 months in jail. Defendant was released on an appeal bond and when no appeal was filed within the statutory time for appeal, a bench warrant was issued for defendant’s arrest. Several years passed before defendant was arrested.

After his arrest, the defendant filed an out-of-time motion for new trial showing that following his release on appeal bond he had returned to his prior life, residing and working in the same locations while awaiting the results of the appeal which he. presumed were pending. The colloquy at the hearing on this motion showed that despite his continued presence in the community, his arrest resulted only coincidentally due to an identification check at a roadblock. Also, the public defender’s office which had represented defendant at trial and may have undertaken to appeal his conviction had lost most, if not all, of their records relating to him.

After a recess of the hearing to permit negotiations concerning the status of defendant, the hearing was reconvened to permit submission of a plea bargain to the superior court under which defendant would plead guilty to aggravated assault with intent to rape with a sentence recommendation of five to serve one, with probation to begin immediately, that is, the one year to serve being commuted to time served, and first offender status to be afforded defendant.

In order to facilitate this agreement, the superior court granted defendant’s out-of-time motion for new trial before receiving defendant’s plea of guilty of aggravated assault with intent to rape. Defendant was then sentenced in accordance with the provisions of the plea bargain, but within 30 days thereafter defendant filed his motion to withdraw the guilty plea, which was denied.

After the grant of defendant’s motion for new trial and before the submission of the plea of guilty, thus while defendant stood before the trial court with the right to trial intact, defendant’s trial counsel stated for the record the substance of certain conversations with defendant and advice he and others had provided defendant. Included in this statement were suggestions that under certain circumstances defendant might be retried on the rape charge. We also note that during colloquy with counsel prior to the recess of the hearing, the trial court had stated that retrial on the rape charge was a possibility if defendant’s misdemeanor conviction was overturned on appeal.

The suggestions that defendant could be retried on the rape charge were entirely unfounded as the verdict of guilty of the lesser included offense of simple battery at defendant’s rape trial amounted to an implicit acquittal of defendant on the rape charge. See Potts v. State, 258 Ga. 430, 431 (1) (369 SE2d 746).

Under the procedure for the receipt of guilty pleas set out in Uniform Superior Court Rules 33.7, 33.8, and 33.9, it is incumbent upon the trial court to determine that the defendant understands the nature of the charge against him. Uniform Superior Court Rule 33.8 (A). In this case, there was no determination on the record of defendant’s actual understanding of the nature of the charges against him and whether his plea of guilty was motivated by a desire to avoid retrial on the rape charge. While our case law does not require a strict point-by-point compliance with the directions provided by the uniform rules related to the reception of guilty pleas, they do require that the record as a whole show defendant’s action was knowing and voluntary. Watt v. State, 204 Ga. App. 839 (1) (420 SE2d 769); Wood v. State, 190 Ga. App. 179, 181 (2) (378 SE2d 520). Under these circumstances, this standard was not reached and the withdrawal of defendant’s plea of guilty to the aggravated assault charge is necessary.

Judgment reversed.

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

Decided April 11, 1994.

Steven J. Jackson, for appellant.

Lewis R. Slaton, District Attorney, Charles W. Smegal, Carl P. Greenberg, Assistant District Attorneys, for appellee.


text:
    A94A0398.
    POSTELL v. THE STATE.
    (443 SE2d 530)
   McMurray, Presiding Judge.

Defendant and co-defendant Curtis Hunnicutt were jointly indicted for possession of cocaine with intent to distribute. Co-defendant Hunnicutt entered a plea of guilty to the crime charged and testified at a jury trial that defendant used his apartment on March 13, 1992, to sell drugs.

At trial, Sergeant Woodrow W. Tripp of the City of Atlanta Police Department testified that he received information from a confidential informant that illegal drugs were being sold from an apartment building in the City of Atlanta and that he and other law enforcement officers began a surveillance of the apartment building at about 2:50 in the morning on March 13, 1992. Sergeant Tripp testified that during the surveillance he observed a man enter a well-lighted flat in the apartment building; that he peeked into the flat through a window and observed defendant and co-defendant Hunnicutt exchange money with the man who entered the apartment for an object which Sergeant Tripp suspected to be narcotics. Sergeant Tripp testified that he observed the suspected drug buyer leave the flat immediately after the suspected drug transaction; that he then watched defendant and co-defendant Hunnicutt execute two similar drug transactions and that he and other law enforcement officers raided the apartment and seized several plastic containers “on [a] table in plain view ...” which were identified at trial as containing cocaine. Officers E. W. Irish, J. D. Stephens, G. Ramsey and Patrick James Girvan of the City of Atlanta Police Department testified that they participated in the raid which led to defendant’s arrest and substantially corroborated Sergeant Tripp’s testimony.

The jury found defendant guilty of possession of cocaine with intent to distribute. This appeal followed the denial of defendant’s motion for new trial. Held:

In two enumerations, defendant contends his trial attorney was ineffective because she did not adequately prepare for trial and because she failed to associate an experienced criminal defense lawyer to compensate for her inexperience in defending major felony cases. Defendant argues that defense counsel’s inexperience resulted in improper argument and inadmissible evidence at trial and a strategy which placed defendant’s prior conviction for aggravated assault of a police officer into evidence.

“In order to show ineffective assistance of counsel, [defendant] must show that counsel’s actions fell below an objective standard of reasonableness and that, but for the alleged ineffective act, there is a reasonable probability that the result of the proceeding would have been different. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Jowers v. State, 260 Ga. 459 (396 SE2d 891) (1990). ‘(B)oth the performance and prejudice components of the ineffectiveness inquiry are mixed questions of law and fact.’ Strickland, 466 U. S. at 698.

“Although the Supreme Court in Strickland discussed the performance component prior to the prejudice component, it acknowledged that a court addressing the ineffective assistance issue is not required to approach the inquiry in that order or even to address both components if the defendant has made an insufficient showing on one. ‘In particular, a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel’s performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed. Courts should strive to ensure that ineffectiveness claims not become so burdensome to defense counsel that the entire criminal justice system suffers as a result.’ Strickland, 466 U. S. at 697.” (Footnote omitted.) Lajara v. State, 263 Ga. 438, 440 (3) (435 SE2d 600).

Decided April 11, 1994.

Richard A. Grossman, for appellant.

Lewis R. Slaton, District Attorney, Carole E. Wall, Assistant District Attorney, for appellee.

In the case sub judice, we direct our inquiry to the prejudice component of the test announced in Strickland v. Washington, 466 U. S. 668, supra, and adopted by the Supreme Court of Georgia in Smith v. Francis, 253 Ga. 782 (325 SE2d 362), and find that defendant has failed to “ ‘show that there is a reasonable probability (i.e., a probability sufficient to undermine confidence in the outcome) that, but for counsel’s [alleged] unprofessional errors, the result of the proceeding would have been different. [Strickland v. Washington, 466 U. S. 668, supra.]’ Smith v. Francis, 253 Ga. 782, 783 (1) (325 SE2d 362) (1985).” Jowers v. State, 260 Ga. 459, 461 (2), 462 (396 SE2d 891). In fact, the evidence of defendant’s guilt of the crime charged in the case sub judice is so overwhelming that it is highly unlikely that even the most seasoned criminal defense lawyer could have altered the jury’s finding that defendant is guilty, beyond a reasonable doubt, of possession of cocaine with intent to distribute. See Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869). Consequently, the trial court did not err in denying defendant’s motion for new trial based on his claim of ineffective assistance of trial counsel.

Judgment affirmed.

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

       Defendant argues that his trial attorney ineffectively failed to produce evidence supporting her opening statement “that testimony would show the police officers could not have seen inside the apartment [where defendant was purportedly seen engaging in criminal activity], because their view through a window was blocked by blinds and a blanket.” Defendant argues that his trial attorney deficiently decided to introduce evidence of defendant’s prior conviction for aggravated assault of a police officer (by shooting) in support of a theory that Sergeant Tripp testified falsely against defendant because the victim of defendant’s aggravated assault of a police officer was the sergeant’s law enforcement partner. Defendant then points out that his trial attorney failed to object when State’s witnesses testified that defendant’s “street name was ‘Money’ [and that defendant] was a member of the ‘Miami Boys’ criminal drug organization!,]” when a law enforcement officer affirmed that he “followed [defendant’s] career since prior to 1988” and when the State’s attorney portrayed defendant during closing argument “as a Miami boy drug dealer who shot at police officers.” Defendant then argues that his trial attorney was ineffective because she did not “understand the elements of the offense [defendant] was charged with, as evidenced by her motion to dismiss and motion for directed verdict, both based upon the trafficking statute.” Defendant alleges that “trial counsel failed to properly question prior to trial the sole defense witness, Jacqueline Shorter, who had been arrested for possession of cocaine stemming from the same incident [and points out that] Ms. Shorter testified on cross-examination that she had seen [defendant] in the area on several occasions selling drugs.” Defendant also points out that defense counsel failed to request a charge on the lesser included offense of simple possession of cocaine and that such a charge was given only “at the suggestion of the assistant district attorney.”