text:
    A97A1692.
    In the Interest of D. R. W., a child.
    (494 SE2d 379)
   Ruffin, Judge.

The mother of D. R. W. appeals the juvenile court’s termination of her parental rights, alleging that she did not receive proper service of the summons and a copy of the petition prior to the termination hearing. For reasons which follow, we affirm.

D. R. W. was originally placed in the custody of the Houston County Department of Family & Children Services (“DFACS”) because the juvenile court adjudged her deprived. After D. R. W.’s mother continuously failed to comply with a court-ordered reunification plan, DFACS filed a petition to terminate the mother’s parental rights on June 4, 1996, based on the child’s deprivation. Thereafter, DFACS purportedly served three summonses on D. R. W.’s mother. The first summons, which was personally served on the mother, was for a hearing to extend DFACS’s custody of D. R. W. Nothing in the record indicates that DFACS also served the petition for termination of parental rights on the mother at this time. The juvenile court then issued a second summons to the mother regarding a hearing to terminate her parental rights scheduled for November 6, 1996. That summons was “left at [the] residence” of D. R. W.’s mother on October 11, 1996. The record is devoid of any other evidence regarding the November 6, 1996 hearing. On November 20, 1996, one day prior to the actual termination hearing, a third summons was “served ... by delivering to and leaving same with personal [sic].” The summons did not contain the name of the individual who received the summons via “personal” service. D. R. W.’s mother did not come to the hearing; however, her court-appointed attorney did appear. Nevertheless, on November 21, 1996, despite the mother’s absence, the juvenile court proceeded with the hearing to terminate her parental rights.

At that hearing, the attorney for D. R. W.’s mother told the judge: “I object to proceeding in my client’s absence. I think there’s [sic] a number of remedies that are possible. One would be for the Court to issue an order to the sheriff’s department to go pick her up now. . . . I just ask the Court at the very least that we have a deputy go out and pick up [the mother] and proceed when she gets here.” The court declined to do so, and the hearing proceeded. During the hearing and under cross-examination by the child’s guardian ad litem, the child’s DFACS caseworker testified that she had spoken with the mother on November 20, 1996, regarding the hearing. According to the child’s caseworker, the mother knew the time and the place for the hearing and told the caseworker that she would attend.

In its order terminating the parental rights of D. R. W.’s mother, the juvenile court noted, “This [November 21, 1996] hearing was continued from November 19, 1996, at the request of . . . the attorney for [D. R. W.’s mother], [The mother], despite being properly notified, did not appear for the November 19, 1996, hearing. She was notified again of the November 21, 1996, hearing, and again she failed to appear. Present at the hearing on November 21, 1996, were . . . the attorney for [DFACS]; . . . the attorney for [D. R. W.’s mother]; and . . . the guardian ad litem in this matter.” Although the juvenile court’s order does not elaborate on how the mother was “notified” of the November 21 hearing, the record shows that the mother was personally served with a summons on November 20, 1996.

The mother argues on appeal that the juvenile court erred “in terminating [her] parental rights without affording [her] due process and her statutory rights with regard to service of the termination petition, notice of the termination hearing, and scheduling of the termination hearing.” According to the mother, pursuant to OCGA § 15-11-83 (c), she was not properly served with process and a petition to terminate parental rights because that statute requires that a termination petition and summons be served at least 30 days before a hearing.

1. “Service of process in a proceeding for the termination of parental rights is governed by OCGA § 15-11-83, and to the extent that they do not conflict with that section, also by OCGA §§ 15-11-26 and 15-11-27. See OCGA § 15-11-91. Pursuant to OCGA § 15-11-83, once the petition for termination of parental rights is filed, the parent is entitled to service, in accordance with OCGA § 9-11-4, of the summons and a copy of the petition. Service must be made at least 30 days before the time set for the hearing.” In the Interest of S. J M., 225 Ga. App. 703, 704 (484 SE2d 764) (1997). OCGA § 9-11-4 (d) (7) provides for personal service or for service “by leaving copies thereof at [the defendant’s] dwelling house or usual place of abode with some person of suitable age and discretion then residing therein. . . .” The Supreme Court of Georgia has previously determined that “[t]he mere leaving of [a] copy of [the] suit at the residence of the defendant is not reasonably calculated to apprise him of the pendency of an action against him” and is “in violation of the due process clause of the Fourteenth Amendment of the United States Constitution.” Womble v. Commercial Credit Corp., 231 Ga. 569, 571 (203 SE2d 204) (1974).

Applying these legal principles, we conclude that based on this record, the service of the summons and termination petition upon D. R. W.’s mother was ineffective. While the above-referenced statutes do not require personal service on D. R. W.’s mother, service of the summons and petition must at the very least be left “with some person of suitable age and discretion” at the mother’s dwelling house or usual place of abode. (Emphasis supplied.) OCGA § 9-11-4 (d) (7).

In this case, a notation that the summons served on October 11, 1996, was “left at residence[,]” without evidence that it was left with a statutorily appropriate person is insufficient service of process as a matter of law. See Womble, supra; see also Reynolds v. Reynolds, 231 Ga. 178 (200 SE2d 766) (1973). Furthermore, contrary to the juvenile court’s order, our review of the record does not show that D. R. W.’s mother was served with a summons and a copy of the petition for a November 19, 1996 hearing. Nor does the record show that the mother received proper service of the summons and a copy of the petition at least 30 days before the November 21, 1996 hearing. The summons served on November 20, 1996, obviously does not comply with the mandate of OCGA § 15-11-83 (c) that DFACS perfect service “at least 30 days before the time set for the hearing.” The fact that the mother had actual knowledge of the proceedings did not cure the defective service. See, e.g., HAP Farms v. Heard, 209 Ga. App. 684, 685 (1) (a) (434 SE2d 118) (1993). Because DFACS never properly served D. R. W.’s mother, this case is distinguishable from In the Interest of S. J. M., supra, in which a child’s mother was, more than 30 days before a hearing, twice personally served with a summons and a copy of a petition for termination of parental rights. Accordingly, we conclude that the juvenile court erred in determining that DFACS “properly notified” the mother of the termination hearing.

2. We disagree, however, with the mother’s contention that the defective service mandates a reversal of the juvenile court’s order terminating her parental rights. A party can waive defects in service of process unless an “objection is made at the first practicable opportunity. . . .” HAP Farms, supra. At no time did the mother’s attorney object to the hearing on the grounds of insufficiency of service of process. Instead, the attorney for D. R. W.’s mother only asked the court for a continuance until a sheriff’s deputy could bring the mother to court. When the mother failed to appear for the hearings on November 19 and November 21, her attorney had a good faith basis to raise the issue of service at those times.

Additionally, there was ample evidence in the juvenile court clerk’s file with which the mother’s attorney could have verified proper service prior to the hearing, if he had chosen to do so. The summonses in this case, which contained the return of service on the back, were filed with the clerk of the juvenile court pursuant to Uniform Juvenile Court Rule 3.1. Therefore, assuming the attorney for D. R. W.’s mother thought the mother’s absence resulted from insufficiency of service of process, the attorney should have reviewed the return of service information in the clerk’s file, and placed any objections that he had to the service of process on the record prior to proceeding to the merits of the case. “The burden of determining the cause of the [mother’s] absence was on [her] counsel. . . .” Smith v. State, 139 Ga. App. 515, 517 (1) (228 SE2d 705) (1976). See also Code of Professional Responsibility DR 6-101 (A) (2) (a lawyer shall not handle a legal matter without preparation adequate in the circumstances). The decision of the mother’s attorney to proceed instead on the merits of the case in her absence is binding on her. Cf. Smith v. Emory Univ., 137 Ga. App. 785 (225 SE2d 63) (1976). “[B]y failing to raise the issue at the termination hearing, the mother waived the issue of insufficiency of process or service of process. Her attorney appeared at the hearing on her behalf, but at no time did he raise this issue.” In the Interest of S. J. M., supra at 705. The fact that the mother was not actually present in court when the hearing occurred and knew nothing about her attorney’s decision until later is immaterial. Cf. Howell v. Howell, 188 Ga. 803 (4 SE2d 835) (1939).

Decided December 1, 1997.

Diane M. Zimmerman & Associates, Charles P. Taylor, Alan R. Tawse, Jr., for appellant.

Thurhert E. Baker, Attorney General, Jeffrey L. Milsteen, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Stephanie M. Baldauff, Assistant Attorneys General, Walter G. Sammons, Jr., Jennifer De Simone, for appellee.

Furthermore, under the circumstances of this case, we know of no constitutional entitlement mandating the mother’s right to appear personally at the termination hearing. See In the Interest of M. G. F., 222 Ga. App. 816, 818 (476 SE2d 100) (1996) (affirming termination of parental rights despite mother’s absence). The mother’s attorney appeared at the termination hearing and, notwithstanding her absence, cross-examined a DFACS witness and presented a closing argument to the judge. Nothing in the record indicates that the mother’s absence during the hearing was not the natural consequence of her own voluntary actions. As a result, we do not find that the juvenile court violated the mother’s constitutional rights by proceeding without her.

This record does not support the conclusion that the mother could not have raised the defense of insufficiency of process or service of process prior to the termination hearing. “It was [the] obligation [of D. R. W.’s mother] to bring the affirmative defense to the attention of the court at the proper time if [she] wished to make an issue of it.” Wheeler’s, Inc. v. Wilson, 196 Ga. App. 622, 625 (396 SE2d 790) (1990). After proceeding to the merits of the case — and losing — the mother cannot rely on a defect in service to repeat this hearing. We therefore affirm the juvenile court’s order terminating the mother’s parental rights to D. R. W.

Judgment affirmed.

Birdsong, P. J., and Senior Appellate Judge Harold R. Banke concur.


source: Caselaw Access Project

author: Blackburn, Judge.

license: Public Domain

text:
    A97A2137.
    PRESTO et al. v. CHARTER PEACHFORD BEHAVIORAL HEALTH SYSTEM, INC.
    (494 SE2d 377)
   Blackburn, Judge.

This is the second appearance of this case before us. In Presto v. Sandoz Pharmaceuticals Corp., 226 Ga. App. 547 (487 SE2d 70) (1997), we upheld the trial court’s dismissal of the plaintiffs’ claims against Sandoz Pharmaceuticals Corporation, and we affirmed the trial court’s grant of summary judgment in favor of Caremark, Inc. on Charles and Mary Presto’s tort and warranty claims. With regard to the present case, Charles and Mary Presto sued Charter Peachford Behavioral Health System, Inc. for negligently failing to warn them about dangerous qualities of Clozaril and for medical malpractice, and they now appeal the trial court’s grant of Charter Peachford’s motion for summary judgment.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a [genuine] jury issue on at least one essential element of plaintiff’s case. ... A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case.” (Citation and emphasis omitted.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Having diagnosed Greg Presto, the adult son of plaintiffs Charles and Mary Presto, as a schizophrenic, Dr. H. Rudolph Warren prescribed Clozaril, a product of Sandoz Pharmaceuticals Corporation, for him. Dr. Warren was not an employee of Charter Peachford while Greg was under his care, although he rented office space from the hospital and received certain corollary privileges. Due to the potential effects Clozaril can have on a patient’s immune system, Caremark was hired to perform certain tests on Greg, monitor the results of those tests, and dispense the medication to him. As part of this treatment, Charter Peachford performed the limited function of drawing the patient’s blood in order to provide it to Caremark for testing.

Clozaril alleviated the symptoms of Greg’s schizophrenia, but, due to certain side effects, Greg and his mother requested that Dr. Warren end Clozaril therapy in August 1993. Dr. Warren allegedly agreed and prescribed another drug as a replacement. According to the Prestos’ complaint, neither Greg nor his parents were informed by anyone that a warning was included in the Clozaril packaging which indicated that Clozaril therapy should be terminated gradually and that, in the case of an abrupt discontinuation, “the patient should be carefully observed for the recurrence of psychotic symptoms.”

Decided December 1, 1997

Chamberlain, Hrdlicka, White, Williams & Martin, Richard N. Hubert, for appellants.

Greg committed suicide on September 6, 1993. The Prestos attribute their son’s suicide to the sudden discontinuation of his Clozaril therapy. They allege that Charter Peachford bears responsibility for Greg’s suicide because it should have warned Greg and his family of the dangers he faced if he abruptly discontinued use of Clozaril and because it was negligent in administering and dispensing the drug. The Prestos claimed below that Charter Peachford negligently hired Dr. Warren and that it was subject to vicarious liability for Dr. Warren’s actions. These claims, however, were not raised before this Court and have been abandoned; therefore, we do not consider them here.

There is no evidence that Charter Peachford had any involvement in the ongoing treatment of Greg at the time of his suicide which would support the Prestos’ claims of negligence. At that time, Charter Peachford’s only connection with Greg’s treatment was that it rented space to Dr. Warren and that Greg had blood drawn in the laboratory on its premises for use by Caremark, Inc. In addition, Dr. Warren stated in his affidavit that Charter Peachford did not participate in the decisions regarding Greg’s Clozaril therapy. Furthermore, the Prestos deposed that they were relying on Dr. Warren, not Charter Peachford, to determine the nature and scope of Greg’s care. Therefore, plaintiffs’ arguments that Charter Peachford’s actions were a proximate cause of Greg’s suicide must fail. See Clough v. Lively, 193 Ga. App. 286 (387 SE2d 573) (1989) (in the absence of a patient-health care provider relationship there is no medical malpractice).

The Prestos’ claims that Charter Peachford had a duty to warn based on warranty law are also meritless. The Prestos base these claims on the Uniform Commercial Code’s warranties of merchantability which are applicable to manufacturers and vendors. See OCGA § 11-2-314. As the evidence shows that Charter Peachford neither manufactured nor prescribed Clozaril, once again, the plaintiffs’ claims must fail.

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.

Alston & Bird, Lawrie E. Demorest, Candice Stone, Love & Wil-lingham, Robert R Monyak, for appellee.


author: Beasley, Judge. McMurray, Presiding Judge,

text:
    A97A1226.
    CHEROKEE COUNTY v. HAUSE et al.
    (494 SE2d 234)
   Beasley, Judge.

Plaintiffs Sam S. Hause and Bob D. Hause, doing business as Hause Brothers, filed a verified complaint on account against Cherokee County, demanding to be paid “for services rendered to the Cherokee County Sheriff’s Department for towing and storage services.” The judgment of the trial court is affirmed because it did not err in granting judgment in favor of the Hause brothers for vehicle storage fees at the rate of $10 per day for one year.

1. First, some preliminary matters with respect to the particulars of the case and the procedure followed to this point.

The order appealed from denied the defendant county’s motion to dismiss and granted the plaintiff Hause brothers’ motion for summary judgment but limited the recovery of storage fees to one year’s worth due to the restriction contained in OCGA § 36-11-1 and did not award towing fees, as they pre-dated the year period. A direct appeal was taken by the county, which is the correct procedure whether the order is a final or a partial judgment. OCGA § 9-11-56 (h). Plaintiffs did not file a cross-appeal from the rulings adverse to them. See Southeast Ceramics v. Klem, 246 Ga. 294, 295-296 (1) (271 SE2d 199) (1980); Seaboard Coast Line R. v. Mobil Chem. Co., 172 Ga. App. 543, 544 (1) (323 SE2d 849) (1984).

After the notice of appeal was filed, the court ruled on defendant’s “motion for reconsideration” and plaintiffs’ “motion for clarification” of the appealed order. In ruling on these motions, the court expressly granted only partial summary judgment, having concluded that certain matters required an evidentiary determination, and it denied summary judgment as to them. This order is not on appeal and is void, as the court lost jurisdiction of the case when the notice of appeal was filed a week earlier. State v. Ganong, 221 Ga. App. 250, 251 (470 SE2d 794) (1996); see Costanzo v. Jones, 200 Ga. App. 806, 811 (3) (409 SE2d 686) (1991) (damages ruling subsequent to notice of appeal cannot be considered on appeal). Because the order is void, the county’s amendment to its notice of appeal to include this order is of no effect.

Thus, the only issue on appeal, subsumed in the three enumerations of error, is whether the plaintiffs have a valid claim against the county.

2. The undisputed facts which led to the lawsuit began on January 4, 1992, when a deputy sheriff at the direction of the sheriff informed the plaintiffs that a search warrant was about to be executed so that their towing and storage services were needed by the county for the items to be seized. Plaintiffs operated an approved wrecker service pursuant to Cherokee County Code § 3-25-20 et seq. (enacted by County Ordinance 91-74). They provided the service requested, transporting some 23 items including vehicles, trailers, and a boat to their lot as required by Section 3-25-30. Some of the items were returned to insurance companies and true owners, who paid the fees. Others were returned, pursuant to court order, to the person whose premises were searched, after he pleaded guilty to certain offenses. The county paid the towing and storage fees for these vehicles.

At that time the plaintiffs submitted to the comity an invoice for the rest of the items still remaining on their lot. Because it was substantial, the chief deputy was dispatched to seek an adjustment, and plaintiffs agreed to submit instead an invoice for one-half of the statutory fee. In response they were informed that the county budget could not accommodate the bill, and it was not paid, unlike all the others submitted and paid during the course of 35 years during which plaintiffs provided 24-hour wrecker service to Cherokee County. After their demand letter was ignored, they filed this suit.

The complaint is based on the obligation created by the ordinance for the services requested and performed, Number 91-14 (Cherokee County Code § 3-25-20 et seq.). Plaintiffs did not seek recovery on a theory of quantum meruit as an alternative, as well they could not, for quantum meruit “is not available when a county is the defendant.” PMS Constr. Co. v. DeKalb County, 243 Ga. 870, 872 (2) (257 SE2d 285) (1979). Compare Walston & Assoc. v. City of Atlanta, 224 Ga. App. 482, 483 (2) (480 SE2d 917) (1997) (quantum meruit is available against a municipality). Restitution is available as a remedy against a county, PMS Constr. Co., 243 Ga. at 872, but plaintiffs did not seek that here. They sought to recover on a commercial account, with interest pursuant to OCGA § 7-4-16.

OCGA § 36-10-1 requires that “[a]ll contracts entered into by the county governing authority with other persons in behalf of the county shall be in writing and entered on its minutes.”

The purpose and reach of this law is stated in Graham v. Beacham, 189 Ga. 304, 305-306 (5 SE2d 775) (1939): “This law is designed to keep the public’s business open to inspection. The legislature, in the exercise of an indisputable right, has provided that there can be no enforceable contract with such county officers unless it be in writing and recorded on the minutes of such officers. In the light of this law, no one can seriously contend that the plaintiff has entered into a legal contract with the county officers and is entitled to the benefits of such alleged contract, unless there has been a full compliance with the requirement of the Code. Any negotiations or oral agreements, or even written agreements that have not been entered on the minutes, fall short of being valid contracts conferring any right upon such party, and will not constitute a basis for an action against the county. These essential requirements of a valid contract with the county cannot be waived. The mandate of this law is absolute and applicable to each and every contract made and executed on behalf of the county; and to be valid and enforceable every contract must conform to these essential requirements.”

There is in .the record no contract in writing between the county and the Hause brothers entered on the minutes of the county commission. In fact, there appears to be no contract in writing at all. Without both, a contract is unenforceable. Floyd v. Thomas, 211 Ga. 656 (87 SE2d 846) (1955), illustrates this. So do Hatcher v. Hancock County Commrs. &c., 239 Ga. 229 (236 SE2d 577) (1977), and Merk v. DeKalb County, 226 Ga. App. 191, 192 (486 SE2d 66) (1997) (Merk’s “sole cause of action [was] breach of contract” although it “actually sounds in tort”). Although a contract may consist of multiple documents, see B&C Tire &c. v. Cooper Tire &c., 212 Ga. App. 228, 229 (1) (441 SE2d 468) (1994), and Bd. of Regents &c. v. Tyson, 261 Ga. 368, 369 (404 SE2d 557) (1991), the combination of (i) the ordinance, (ii) the Hause brothers’ approved application as a wrecker service, and (iii) their inclusion on the “approved list” maintained in the sheriff’s office would not fit the statute because, even if these jointly constituted a contract, the parts were not all entered on the minutes. And procedurally, the approved application and the approved list are not in the record and so are missing ingredients for summary judgment.

But plaintiffs base their claim on the ordinance itself, which was passed pursuant to OCGA § 36-60-4. The ordinance provides in Section 3-25-30 that “[w]hen specifically directed to do so by the Sheriff’s Office, the wrecker service shall hold vehicles for evidence, confiscation or any other purpose permitted by law” and, upon proper authorization of the Sheriff’s Office, shall release any vehicle. The ordinance also sets the rate schedule for the fees which the approved wrecker service is entitled to when it performs a task described in the ordinance. Varying amounts are set for towing, and the daily storage charge beginning after the third day the vehicle is stored is $10.

Thus, the action is based not “on contract” but on a “right to [fees] as fixed by or in pursuance of law.” Graham v. Beacham, supra, 189 Ga. at 306, made this distinction and cited three illustrative cases. In all three, the county was obligated to pay for services set forth by law. See Culberson v. Watkins, 156 Ga. 185 (1) (119 SE 319) (1923) (salary recoverable from county because fixed by law); Sam-mons v. Glascock County, supra (salary of county commissioner of roads and revenues is provided by law rather than contract); Walker v. Stephens, 175 Ga. 405 (1) (a) (165 SE 99) (1932) (appointment of county attorney and his right to salary rest on law, not on contract).

The same is the case here. Regarding this particular assignment involving the removal and safe storage of items seized from the criminal defendant’s premises, the sheriff and the plaintiffs were doing what the county commissioners required them to do by the express terms of the law adopted by the county commission to effectuate the services the county needed to carry out its law enforcement duties in the exercise of its police power. Had the Hause brothers refused the assignment and not performed the services required by the sheriff, they would have been in violation of Section 3-25-30 of the ordinance. The plaintiffs, who provided that wrecker service, are entitled to be paid the fees expressly provided by that same ordinance.

If the county is not obligated by the ordinance to pay for the services required by it, then neither are those private persons who seek return of their property after law enforcement officers seize it and assign physical custody of it to the wrecker services. And if the county is not obligated to pay for the services which were rendered on this occasion, then its payments over 35 years have been illegal, an outcome the county does not even suggest. Shannondoah, Inc. v. Smith, 140 Ga. App. 200, 202-203 (230 SE2d 351) (1976), discusses the distinction between an unenforceable contract and an illegal one. See Overlin v. Boyd, 598 F2d 423, 424, n. 1 (5th Cir. 1979). If the plaintiffs’ right of recovery had been based on contract, then its absence from the minutes (which is undisputed) and its nonexistence in writing (should that be the case) would render past payment of the county-established fees possibly illegal. Compare Floyd v. Thomas, supra, 211 Ga. at 656 (contract with county not in writing and not on minutes is illegal) with City of Atlanta v. North by Northwest &c., 262 Ga. 531, 539-540 (7) (c) (422 SE2d 651) (1992) (procedural irregularities do not render county contract ultra vires). But the claim is founded on a right to payment expressly created by county ordinance.

The order of the trial court is affirmed.

Judgment affirmed.

Andrews, C. J., Birdsong, P. J., Smith and Ruffin, JJ, concur. McMurray, P. J., and Eldridge, J., dissent.

McMurray, Presiding Judge,

dissenting.

I respectfully dissent. In my view, however much we sympathize with the plaintiffs, we are not authorized to affirm the judgment enforcing against the defendant County a claim based on a contract which is not spread upon the minutes of the County’s proceedings.

Plaintiffs Sam S. Hause and Bob D. Hause, doing business as Hause Brothers, brought this verified “COMPLAINT ON ACCOUNT” against defendant Cherokee County, Georgia (“the County”), demanding to be paid “for services rendered to the Cherokee County Sheriff’s Department for towing and storage services. . . .” Certain “vehicles [were] in the possession of Plaintiff [sic] under the direction of the Sheriff’s Department for the purpose of impound and storage with expenses accruing thereon daily.” The complaint also alleged the County acted in bad faith in refusing to pay and demanded interest due on a commercial account under OCGA § 7-4-16. By amendment, plaintiffs alleged that the County still refused to pay, after plaintiffs agreed to a 50 percent reduction in the amount claimed as storage, despite a county ordinance authorizing a daily storage rate at $10 per day per item stored. Plaintiffs demanded $153,620 as the principal sum.

The County denied the material allegations, and subsequently moved to dismiss the action because the agreement was not in writing. Meanwhile, plaintiffs moved for summary judgment. After hearing both motions, the trial court ruled that the 12-month limitation period established at OCGA § 36-11-1 barred collection of any amounts accruing before February 3, 1994, but held the County liable despite the absence of a written agreement, reasoning that since the contract for services was completed by plaintiffs, the instant lawsuit “concerns not so much enforcement of a contract, but collection of an acknowledged debt. To hold otherwise would make it impossible for a county to obtain services without providing a written contract in advance.” In a subsequent order, the trial court granted plaintiff judgment in the principal amount of $42,900.

In three related enumerations of error, the County contends the trial court erred in failing to dismiss the action in its entirety, arguing plaintiffs may not attempt to collect on an unwritten contract. The County also contends the trial court erred in ruling the Sheriff could contract on behalf of the County. Plaintiffs reply that the “CHEROKEE COUNTY WRECKER ORDINANCE, . . . CHAPTER 3-25, ARTICLE II, OF THE CODE OF CHEROKEE COUNTY,” amounts to just such a writing, spread upon the minutes of the County Commission. I agree with the County in this case and would reverse the trial court’s money judgment.

“All contracts entered into by the county governing authority with other persons in behalf of the county shall be in writing and entered on its minutes.” OCGA § 36-10-1. “Oral contracts on behalf of a county have repeatedly been held to be void[.]” City of Warrenton v. Johnson, 235 Ga. 665, 666 (221 SE2d 249). “A mere oral agreement is unenforceable even though it be embodied or recited in a resolution adopted by the county commissioners and entered on the minutes.” Murray County v. Pickering, 42 Ga. App. 739 (1) (157 SE 343).

The Cherokee County Wrecker ordinance defines an approved wrecker service as: “Any wrecker service which submits a successful application . . . and which otherwise [qualifies] for the privilege of engagement by the Sheriff’s Office for the removal or storage of vehicles.” Cherokee County Code, Section 3-25-21. “Whenever any vehicle is removed by a wrecker service at the direction of the Sheriffs Office, the police officer shall make a thorough inventory of all equipment, accessories, personal articles and other items either attached to or located within the vehicle. . . . Upon acceptance of the vehicle and prior to its removal, the agent or employee of the wrecker service . . . shall sign the inventory form.” Cherokee County Code, Section 3-25-29 (a). ‘Whenever specifically directed to do so by the Sheriffs Office, the wrecker service shall hold vehicles for evidence, confiscation or any other purpose permitted by law.” Cherokee County Code, Section 3-25-30. The County Code also prescribes detailed security requirements for impound lots and directs each approved wrecker service to submit “an inventory every two (2) weeks of all vehicles remaining in its possession and unclaimed by the owner.” Cherokee County Code, Section 3-25-34 (d). The County Code also establishes a schedule of permitted fees and requires each approved wrecker service to “post in a conspicuous place on its premises a sign stating . . . : Note: The maximum fees which may be charged by wrecker services for removal and/or storage have been established by a county ordinance. You are entitled to a copy of the fee schedule upon request. Inquiries and complaints concerning any fees charged should be made to the Cherokee County Sheriffs Office.” Cherokee County Code, Section 3-25-37 (c).

An approved wrecker service “shall confine its operations to the zone assigned to it. : . .” Cherokee County Code, Section 3-25-31. “Zone assignments shall be valid for four (4) year periods. . . .” Cherokee County Code, Section 3-25-39 (a).

In my view, this ordinance, by which the county commission agreed to enter into a series of requirement contracts with each approved wrecker service, is not itself a sufficient writing entered upon the minutes of the county commission. Murray County v. Pickering, 42 Ga. App. 739 (1), supra. Consequently, I would hold that the trial court erred in failing to dismiss this action to collect for towing and storage services previously rendered on the ground there was no writing to comply with OCGA § 36-10-1. I express no opinion on the commission’s authority to specify the County’s requirements for law enforcement-related towing and storage services.

Decided November 5, 1997

Reconsideration denied December 2, 1997

Robert M. Mahler, for appellant.

Ted B. Herbert, John R. Earl, for appellees.

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

       Compare Sammons v. Glascock County, 161 Ga. 893, 894 (3) (131 SE 181) (1925), which held the predecessor to what is now OCGA § 36-11-1 did not apply to obligations imposed by law rather than by contract. Because the amount of the obligation varies based on how often the county utilizes the services of a wrecker service, the statute does apply. See Baggett v. Barrow, 166 Ga. 700, 701 (2) (144 SE 251) (1928).


author: Birdsong, Presiding Judge.

text:
    A97A1578.
    WEBB v. CARROLL COUNTY et al.
    (494 SE2d 196)
   Birdsong, Presiding Judge.

Michael D. Webb appeals the grant of summary judgment to Carroll County, Richard Turner, Fred Robbells, and David Wilson on his claims against them arising from his injury incurred while a prisoner in the county correctional institute. Webb was injured while he was installing a plow point on a piece of county equipment when either the point or the hammer Webb was using to pound the point into place broke off and struck him in the eye. As a result of the injury, Webb lost his eye. Webb contends that because the defendants did not provide him with protective goggles and provide him with prompt medical care, the defendants violated his rights under the Eighth Amendment to the United States Constitution, 42 USC § 1983, and Georgia tort law. After the trial court granted the appel-lees’ motion for summary judgment, this appeal followed. Held:

1. Webb’s allegations concerning the Eighth Amendment violation and 42 USC § 1983 are without merit. “ ‘Not every governmental action affecting the interests or well-being of a prisoner is subject to Eighth Amendment scrutiny. . . . After incarceration, only the unnecessary and wanton infliction of pain constitutes cruel and unusual punishment forbidden by the Eighth Amendment. To be cruel and unusual punishment, conduct that does not purport to be punishment at all must involve more than ordinary lack of due care for the prisoner’s interests or safety. . . . It is obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel and Unusual Punishments Clause, whether that conduct occurs in connection with establishing conditions of confinement, supplying medical needs or restoring official control over a tumultuous cellblock. . . .’ Whitley[ v. Albers, 475 U. S. 312,] 319 [(106 SC 1078, 89 LE2d 251)].” Alford v. Osei-Kwasi, 203 Ga. App. 716, 718-719 (418 SE2d 79).

Decided October 10, 1997

Reconsideration denied December 2, 1997

Carl V. Kirsch, Dock H. Davis, for appellant.

“To state an Eighth Amendment violation for inadequate medical care under Estelle v. Gamble, [429 U. S. 97, 104 (97 SC 285, 50 LE2d 251)], it must be shown that [Webb’s] treatment was ‘so grossly incompetent, inadequate or excessive as to shock the conscience or to be intolerable to fundamental fairness or where the medical care is so inappropriate as to evidence intentional maltreatment or a refusal to provide essential care.’ Rogers v. Evans, 792 F2d 1052, 1058 (11th Cir. 1986).” Id. at 722-723. The claims that Webb asserted fail to reach this standard. Accordingly, the trial court did not err by granting summary judgment to the appellees on Webb’s claims under the Eighth Amendment and 42 USC § 1983.

2. Nevertheless, we must reverse the grant of summary judgment on the state law tort claims. As the trial court’s determinations that sovereign immunity was waived by the purchase of insurance and that Webb could be considered an employee of the county were not challenged on appeal, we must consider whether the defendants breached their obligations to Webb as his employer and supervisors. Under OCGA § 34-7-20 an employer shall exercise “ordinary care in . . . furnishing machinery equal in kind to that in general use and reasonably safe for all persons who operate it with ordinary care and diligence. If there are latent defects in machinery or dangers incident to an employment, which defects or dangers the employer knows or ought to know but which are unknown to the employee, then the employer shall give the employee warning with respect thereto.” (Emphasis supplied.) Under the evidence in this record in which it has been shown that the defendants had possession of a booklet stating that employees changing pins on this equipment should wear safety goggles, it is a jury question whether the defendants were required to provide safety goggles or warn Webb of the dangers of working without them. The evidence that the supervisor concerned had never seen anyone wearing safety goggles while working with such equipment is not sufficient to remove this issue from the jury. Strickland v. Howard, 214 Ga. App. 307, 308 (447 SE2d 637).

3. As Webb has not challenged the trial court’s ruling in favor of appellees Wilson and Robbells, the judgment in their favor is also affirmed.

Judgment affirmed in part and reversed in part.

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

Barnhart, O'Quinn & Williams, Terry E. Williams, Kristina H. Blum, for appellees.


text:
    A97A1057.
    JOHNSON v. THE STATE.
    (494 SE2d 382)
   Beasley, Judge.

James Johnson was convicted of voluntary manslaughter (OCGA § 16-5-2), aggravated assault (OCGA § 16-5-21), and possession of a firearm during the commission of a crime (OCGA § 16-11-106).

1. The three enumerations of error that challenge the denial of motions for directed verdict or for new trial concern sufficiency of the evidence, which is viewed in the light most favorable to sustaining the verdict.

Johnson and LeCroy were neighbors. One evening LeCroy, who was intoxicated, carried on a lengthy tirade from a corner of his property. LeCroy stood cursing, screaming, and threatening to kill Johnson for a period of 15 minutes or more. Johnson was some distance away at his residence but drove his truck to a position adjacent to LeCroy’s property. He got out and waited near his truck, gesturing LeCroy to come down to the road.

LeCroy advanced and adopted an aggressive stance with his arms raised and his fists closed. When LeCroy was approximately six or seven feet away, Johnson raised and fired a handgun four times, fatally wounding, him. While in custody shortly after the shooting, he stated to the officer: “A man can just take so much.”

Johnson maintains the homicide was justified as self-defense, pointing out that LeCroy was a larger and younger man and that he had been told LeCroy was armed. Johnson testified that he thought LeCroy was reaching for a weapon when he turned sideways and his hand went out of sight, but several witnesses testified that LeCroy had not made any movement which appeared to be reaching for a weapon and had kept his hands raised and easily within Johnson’s view. LeCroy had no weapon and did not attempt to strike Johnson, who did not withdraw or warn LeCroy that he was armed. Other evidence suggested that Johnson should have been aware that neighbors seeking to intervene to prevent a fight had approached to within a few feet at the moment he shot LeCroy.

“‘The evidentiary circumstances necessary to show voluntary manslaughter, as opposed to circumstances showing the homicide was justified (because committed in self-defense), relate to a situation which arouses sudden passion in the person killing so that, rather than defending himself, he wilfully kills the attacker, albeit without malice aforethought, when it was not necessary for him to do so in order to protect himself. The distinguishing characteristic between voluntary manslaughter and justifiable homicide in such cases is whether the accused was so influenced and excited that he reacted passionately or whether the defendant acted simply to defend himself.’” Lee v. State, 202 Ga. App. 708, 709-710 (1) (415 SE2d 290) (1992). The evidence supported a finding that the lengthy verbal tirade and posturing by LeCroy was not followed by any actual physical assault and that Johnson could not have reasonably concluded he was in physical jeopardy when he suddenly fired.

“ ‘The evidence here was in dispute as to whether appellant shot [LeCroy] with malice aforethought (since he was charged with murder), out of passion, or out of justification in self-defense. The resolution of this question depended heavily on the credibility of the witnesses, including appellant. Decisions regarding credibility are exclusively for the jury. A rational trier of fact was authorized to find the elements of voluntary manslaughter beyond a reasonable doubt.’ (Punctuation and citations omitted.) Watkins v. State, 191 Ga. App. 325-326 (1) (382 SE2d 107) (1989).” Lee, supra, 202 Ga. App. at 710. Johnson’s contention that the conviction of possession of a firearm during commission of a crime was not authorized fails because it is predicated entirely on the hypothesis that the conviction on the underlying felony count was not authorized.

A rational trier of fact was authorized to conclude that defendant was guilty beyond a reasonable doubt of all offenses of which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Lee, supra at 709-710.

2. Johnson claims error in the court’s failure to give a requested jury charge which he characterizes as “relating to the logical basis for the admission of specific acts of violence of the accused.” These issues were waived when he failed to object on this basis after the court asked for exceptions following the charge. Counsel objected as to other issues and finally indicated there were no further objections, without reserving any right to raise additional issues on motion for new trial or appeal. Russell v. State, 264 Ga. 121, 122 (3) (441 SE2d 750) (1994); Crosby v. State, 188 Ga. App. 191, 194 (6) (372 SE2d 471) (1988).

3. Johnson objected to the introduction of recordings of conversations which a number of persons held with 911 emergency operators during the time of the confrontation. One objection was that no proper foundation had been developed for the introduction of this evidence according to the seven criteria set forth in Brooks v. State, 141 Ga. App. 725, 734 (8) (a) (234 SE2d 541) (1977), and Steve M. Solomon, Jr., Inc. v. Edgar, 92 Ga. App. 207, 211-212 (3) (88 SE2d 167) (1955). Johnson emphasizes the requirement that the speakers be identified. Most of the speakers can be determined, but the identity of one or more of them remains unknown. Any resulting error was harmless since the information contained in the recording is cumulative of properly admitted testimony. Crews v. State, 226 Ga. App. 232, 234-235 (3) (486 SE2d 61) (1997).

4. The court did not err in sustaining the State’s objection to defendant’s attempt during closing argument to comment on the failure of the State to call the victim’s widow and child as witnesses. There was no evidence that these family members of the victim knew facts relevant and material to the case. The assertion that these persons were witnesses to the shooting is not supported by the record. Their names on the State’s list of witnesses did not alone provide authority for the defense comments. See Morgan v. State, 267 Ga. 203, 205 (3) (476 SE2d 747) (1996).

5. The court did not err in charging the jury that a person is not justified in using force if that person initially provoked the use of force against himself with the intent to use such force as an excuse to inflict bodily harm on the assailant. See OCGA § 16-3-21 (b) (1). The argument that this “first aggressor” charge was not authorized by the evidence is without merit. The victim’s verbal tirade was delivered from the victim’s property and at a substantial distance from defendant’s home. The jury could reasonably have viewed Johnson’s actions in driving to a location adjacent to the victim’s property so they were closer together, and in gesturing to the victim to come to where he was located, as being intended to provoke the use of force.

6. There is one problematic issue. Johnson is entitled to a new trial at which his witnesses Childers and Todd are permitted to testify about the shooting victim’s “prior specific acts of violence ... against third persons.” The rule announced in Chandler v. State, 261 Ga. 402, 407 (3) (405 SE2d 669) (1991), authorizes this evidence and provides the procedure for notifying the State prior to trial, which Johnson did.

At Johnson’s first trial, the jury found him guilty of malice murder, aggravated assault and possession of a firearm during the commission of a crime. The Supreme Court reversed the conviction because of counsel’s ineffectiveness in failing to give the State advance notice of the victim’s prior acts of violence and threats, which procedural failure precluded this evidence. Johnson v. State, 266 Ga. 380, 383 (2) (467 SE2d 542) (1996). Since the evidence was germane to Johnson’s defense of justification, the Supreme Court concluded that its exclusion created “a reasonable probability that his trial might have resulted in conviction of a lesser offense, if not of acquittal, had the jury heard those witnesses.” Id.

In anticipation of retrial, Johnson notified the court and the State over two months before trial that he intended to present seven witnesses (with an eighth added a week before trial) who would testify about specific acts of violence. He enumerates as error the exclusion of Lucille Childers’ and Donny Todd’s testimony.

(a) As to Childers, the notice gave her exact address and telephone number in Rome and stated that she “is expected to testify that the alleged victim would regularly become intoxicated and assault any person in his presence. She contends she lived in pure torment of the alleged victim. She has seen the alleged victim knock people down with his fist within the last 2 years before his death.” The trial court ruled the notice deficient in that it did not state the dates of these occurrences.

Chandler ruled that fundamental fairness requires advance notice so the opponent can prepare to rebut such evidence rather than being caught off guard and unable to produce evidence which would give the true picture. 261 Ga. at 408. The court foresaw that a procedural rule would be incorporated into the Uniform Superior Court Rules to achieve this purpose of providing “reasonable notice of [defendant’s] intention and of the nature of such evidence,” id. at 408 (3) (c), and USCR 31.6 was indeed adopted some two years later. The rule does require that the notice state the “date ... for each specific act of violence sought to be introduced.” USCR 31.6 (B).

In this instance Johnson pinpointed the date as best he could. As counsel explained to the trial court, what the notice stated was as close as Childers could get in identifying the dates of the incidents. That does not render the notice deficient. It told the State precisely that Childers could not remember the exact dates these repeated incidents constituting a pattern of behavior occurred but that this neighbor of the victim and the appellant (they all lived on the same road) would testify as to specific acts of violence. That is understandable, in that such a course of conduct apparently was not out of the ordinary for the victim and it would be unlikely that a neighbor would note the date each time an incident occurred and record it or commit it to memory.

This inability of Childers to pinpoint the dates would not preclude her testimony but would go only to its weight. See Tidwell v. State, 219 Ga. App. 233, 236 (2) (c) (464 SE2d 834) (1995) (two-year range is sufficient if that is best witnesses can do); Parcell v. State, 198 Ga. App. 439, 440 (1) (401 SE2d 628) (1991) (six-month range sufficient); Willett v. State, 223 Ga. App. 866, 873 (3) (b) (479 SE2d 132) (1996) (“approximate range of time” sufficient). Imprecision as to date would not mean that the specific acts did not happen. Nor is the time of the incidents, within two years of the shooting, too remote. See Bohannon v. State, 208 Ga. App. 576, 578 (2) (431 SE2d 149) (1993) (prior act of violence from year earlier admissible); Joiner v. State, 204 Ga. App. 592 (1) (420 SE2d 73) (1992) (acts of violence over period of time admissible); compare Anderson v. State, 138 Ga. App. 871, 872 (1) (227 SE2d 783) (1976) (too remote where several years prior to incident).

To require the notice to have a precise date when the testimony itself would be admissible without a precise date would automatically preclude relevant evidence every time, evidence which in this case was regarded as so significant that the Supreme Court reversed Johnson’s conviction because the jury was not aware of it. Such a barrier could not have been intended by the Supreme Court in Chandler and subsequent cases on the subject nor by the Uniform Superior Court Rules. Such a barrier would do much more than serve the purpose of the notice, which is merely “a mechanism by which the State is given an opportunity to investigate and to ferret out the facts,” as Johnson argued below.

Defendant complied with the rule, but even substantial compliance would be sufficient to pass muster, as it does with respect to the notice required of the State by USCR 31.3 when it intends to present evidence of similar transactions of defendant. See Jackson v. State, 217 Ga. App. 485, 489 (4) (b) (458 SE2d 153) (1995); Payne v. State, 184 Ga. App. 366, 367-368 (2) (361 SE2d 666) (1987). The requirement for compliance by defendant with USCR 31.6 is to be applied evenhandedly with the requirement for compliance by the State with USCR 31.3. Watkins v. State, 264 Ga. 657, 662 (4) (449 SE2d 834) (1994).

The notice here did not lack the specificity required to alert the State so it could rebut it, as did the totally imprecise notices given in Miller v. State, 263 Ga. 723, 724 (2) (438 SE2d 81) (1994) (no description of nature or substance of evidence given in filed notice), and Wai-kins, supra (only oral notice of general nature given to State and none given to court).

(b) As to Todd, defendant gave his telephone number and exact address (thereby marking him as another same-road neighbor) and stated that he “is expected to testify that in January, 1994, the alleged victim shot Mr. Todd’s dog to death while Mr. Todd was calling to the dog and pleading with [LeCroy] not to shoot. Mr. Todd is further expected to testify that the assault of [LeCroy] caused him to be in fear of great bodily harm.”

Justice Weltner pointed out in his concurring opinion in Lolley v. State, 259 Ga. 605, 608 (3) (b) (385 SE2d 285) (1989), that “evidence of the violent nature of a victim can be critically important to the discovery of truth.” The Supreme Court adopted Justice Weltner’s reasoning, stating in Chandler, supra at 407 (3) (b), that he “cogently explained why this Court ought to change the rule.” Both Chandler, supra at 407, and USCR 31.6 (A) limit such other-acts evidence to those acts directed against defendant or third persons. Unlike the situation in Marks v. State, 210 Ga. App. 281, 282-283 (1) (435 SE2d 703) (1993), where the act was directed solely toward a family pet, Todd was offered to testify that he himself was put in fear of great bodily harm because of the shooting of his dog. As counsel explained in the hearing, “Mr. Todd . . . [would] testify that Mr. LeCroy was standing out there cursing him and his dog, that [Mr. Todd] began to call his dog, and Mr. LeCroy shot. The dog got hit, and Mr. Todd thought he was being shot at, that the bullets were flying.” Such testimony could very well constitute an act of violence against a person and was not excludable out of hand.

The judgment is reversed and the case remanded for new trial.

Judgment reversed and case remanded.

Andrews, C. J., Birdsong, P. J., Smith and Ruffin, JJ., concur. McMurray, P. J., and Eldridge, J., dissent.

McMurray, Presiding Judge,

dissenting.

As I cannot concur with Division 6 of the majority opinion, I respectfully dissent. In my view, the majority has misapplied the decision of Chandler v. State, 261 Ga. 402, 407 (3) (405 SE2d 669). “The Chandler procedure sought to avoid a ‘battle by surprise’ by providing the State with ‘reasonable notice’ of the defendant’s intent to introduce specified evidence of a victim’s violent acts against third parties.” Watkins v. State, 264 Ga. 657, 661 (4), 662 (449 SE2d 834). The procedure originally stated in Chandler is consistent with subsequently adopted Uniform Superior Court Rule 31.6 which provides, in part, that the defendant’s notice of intent to present evidence or acts of violence by the victim against the defendant or third persons “shall state the act of violence, date, county and the name, address and telephone number of the person for each specific act of violence sought to be introduced.” With regard to witness Childers, defendant failed to provide any particulars as to date, place, names of victims, or other details such as would identify any specific incident. Thus, the defendant “failed to provide any information which would put the state on notice of the evidence it intended to offer such that the state would have the opportunity for rebuttal.” Miller v. State, 263 Ga. 723, 724 (2) (438 SE2d 81). Accepting that Childers’ inability to pinpoint the dates would not alone preclude admission of her testimony, there are additional circumstances which render the proffered testimony so general and equivocal in nature that the State is afforded no opportunity for rebuttal. In addition to the absence of dates, the proffer fails to identify any person assaulted by the victim or the place where any of the alleged events occurred. The proffered evidence affords the State no opportunity to identify any specific event about which Childers may testify. Under these circumstances, I would hold that the trial court did not err in excluding the testimony of witness Childers.

Decided December 2, 1997.

Patton & Price, Clarence R. Patton, for appellant. Tambra P. Colston, District Attorney, C. Stephen Cox, Assistant District Attorney, for appellee.

Nor do I believe the trial court erred in refusing to admit the testimony of witness Todd concerning an incident during which his dog was shot by the victim. The rule adopted in Chandler has been held to be applicable only to prior acts of violence toward a human. Marks v. State, 210 Ga. App. 281, 282 (1) (435 SE2d 703). The State was not provided with any notice of an act of violence against witness Todd. Defendant’s notice to the State related the shooting of a dog owned by witness Todd and that this witness “is further expected to testify that the assault of the alleged victim [on his dog] caused him to be in fear of great bodily harm.” This expression of apprehension or fear does not amount to a statement that an act of violence was directed by the victim toward witness Todd. Nonetheless, at the hearing on the admissibility of the defense evidence of acts of violence by the alleged victim, defense counsel restated the testimony anticipated from witness Todd to include the statement quoted by the majority that “Mr. Todd thought he was being shot at, that the bullets were flying.” Defense counsel also inquired of the trial court during colloquy: “[Witness Todd] cannot testify that Mr. LeCroy was pointing a gun in his direction and shooting?” However, the scope of the statements attributed to witness Todd at the hearing by defense counsel exceeded that of the notice provided the State. If the statements of the anticipated testimony of witness Todd are considered separately, the statements provided in the notice to the State were properly excluded pursuant to the Marks decision, while the expanded statements of witness Todd’s testimony provided by defense counsel at the hearing were properly excluded because no notice was provided the State pursuant to USCR 31.6.

Furthermore, even if the excluded evidence of acts of violence by the victim should have been admitted, there was no harm since the excluded evidence was at most cumulative of defendant’s admitted evidence by other witnesses concerning the victim’s propensity for violence. It is highly unlikely that the excluded evidence would have altered the verdict. Johnson v. State, 238 Ga. 59, 61 (230 SE2d 869); Marks v. State, 210 Ga. App. 281, 283 (1), supra. The judgment of the trial court should be affirmed.

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


author: Andrews, Chief Judge.

text:
    A97A1136.
    SECURITY LIFE INSURANCE COMPANY v. CLARK et al.
    (494 SE2d 388)
   Andrews, Chief Judge.

Security Life Insurance Company (Security) appeals from the $14,476,694.18 judgment entered against it on the jury’s verdict in Mr. and Mrs. Clark’s suit for interference with a property right, fraud, and violation of OCGA § 16-14-1 et seq., Georgia’s Racketeer Influenced & Corrupt Organizations (RICO) statute. Judgment was entered only on the RICO claim. The Clarks’ claims arose from the February 1994 sale by Fipps, Security’s agent, to Mr. Clark of health insurance under the Insight Answer Plan, underwritten by Security, and the subsequent -wrongful rescission of that insurance in November 1994.

The following facts were either stipulated to, were not contested, or come from evidence viewed in favor of the Clarks, opponents of Security’s motion for directed verdict. Security is a Minnesota corporation which is wholly owned by Security American Financial Enterprises, Inc., a holding company, and Security is authorized to sell insurance in Georgia. Security, in the life and health insurance business over 25 years, is 80 percent owned by its employees, with 130 individuals, including its executives, owning the remaining 20 percent. Congress Life Insurance Company is wholly owned by Security and underwrites only in Alabama, due to the existence of another Alabama company named Security. Security does business in 43 states, including Georgia, and the District of Columbia.

Insurers Administrative Corporation (IAC), an Arizona company, acts as a third-party administrator of insurance policies for various insurers, including Security, with which it entered into an Administrative Agreement in August 1990. Pursuant to that agreement, IAC used an underwriting manual produced by Lincoln National Corporation to process applications for insurance and administer the claims process for Security under the Insight Answer Plan. In addition, IAC was responsible for investigating suspected misstatements on applications for insurance and making recommendations to Security and Hassan, a California attorney used by Security as outside counsel for rescission matters, regarding rescinding insurance based upon alleged material misrepresentations on applications.

In 1992, IAC set up a trust in Mississippi, known as Multiple Unit Security Trust II (MUST II), for the sole purpose of issuing to MUST II Group Policy No. GH840, the Insight Answer Plan underwritten by Security. This policy was submitted to and approved by the Mississippi Insurance Commissioner, although the trust document and name of the administrator were not filed with the Commissioner as required and the cover letter accompanying the policy stated that it provided “employee” major medical benefits, which it did not. TrustMark Bank in Mississippi was the initial trustee, serving from June 15, 1992 until June 15, 1995. After TrustMark raised its charges, SentryCorp., Ltd. of New Jersey became successor trustee, although there was a gap of several months before the appointment was formalized.

The practice of setting up trusts for issuance of policies originated with multiple employer trusts used by small employers to gain the benefits of a larger group for insurance purposes. Multiple Unit Security Trust, set up in Mississippi by LAC in 1990, was such a multiple employer trust. MUST was not marketed in Georgia because, while Georgia allows multiple employer trusts, it would not allow Security to tier rate such a trust.

MUST IL was conceived in 1991 as a method by which to “provide major medical insurance for individuals and families, and [was] not employment related.” Scott Wood of LAC approached Security with the concept, and the program was developed by IAC along with Insurance Compliance Services (ICS).

ICS was a New Jersey company composed of Ms. Alexander, who had previously worked with Union Fidelity Life Insurance Company as a claims adjuster, and Ms. Massey, a former employee of the Nevada Insurance Division who examined forms for compliance with Nevada requirements. Neither was an attorney. They gave compliance' advice to insurance companies, including Security, based on their review of state statutes and regulations. They did not examine court decisions in giving their advice. ICS, which had also advised Security in forming MUST, used the MUST trust agreement and the policy issued to MUST as a guideline in developing Group GH840. They also formed SentryCorp., Ltd. to become the successor trustee to TrustMark Bank for MUST II.

Bulletin 88-E-l was issued by Georgia’s Insurance Commissioner October 6, 1988, and stated that “[i]t is the position of the Georgia Department of Insurance that it has extraterritorial jurisdiction over all group health policies that are issued to trusts situated outside the State of Georgia covering insureds within the State of Georgia, unless said plans are subject to the exclusive jurisdiction of the federal government.” The Bulletin apparently was premised on the Commissioner’s Directive 88-EX-l, dated April 29, 1988, and titled “Insured Trusts Marketed As Employee Health Benefit Plans,” which required insurers to file certain information with the Georgia Department of Insurance for “all group health plan business written on a trust. . . .” Representatives of Security had previously complied with Georgia’s claimed extraterritorial jurisdiction for another insurance product offered in Georgia where the policy was issued to an out-of-state multiple employer trust.

It was the contention of ICS that, because certificates for Group GH840 were being sold to individuals and not to “employer groups” and because MUST II was a Mississippi “one life discretionary group” formed solely for the purpose of allowing otherwise unconnected individuals to purchase insurance at a group rate, which is allowed in Mississippi, Bulletin 88-EX-l did not apply and Georgia did not have extraterritorial jurisdiction over the trust and policy.

Security intended to avoid compliance with Georgia laws and regulations which would have required it to provide Georgia’s “mandated benefits” to certificate holders, since such benefits are generally “producer driven” and tend to raise rates charged insureds. Also, the program was designed in an effort not to be covered by small group laws regulating rates and benefits. Georgia defines small groups as groups of 50 or fewer. From 1992 to 1996, there were from 7,000 to 30,000 certificate holders, not counting dependents, insured under Insight Answer. Mississippi provides fewer mandated benefits, and the only requirement is that they be offered to the policyholder. ICS sent the Mississippi trustee the offer form and directed him to reject the offer of Mississippi mandated benefits, which he did.

John Fipps, a Conyers resident, was licensed to sell health and life insurance in Georgia in 1990 and was authorized to transact business for ten to fourteen insurance companies in Georgia. He was not, however, specifically appointed by Security to sell its products in Georgia until March 1994. Although the Request for Agent Certificate of Authority filed by Security with the Georgia Insurance Department stated that it had made a diligent inquiry regarding Fipps’ qualifications, “including a character report by an agency not affiliated with this company,” no such inquiry had been made. Security checked only to determine that Fipps was licensed in Georgia.

Fipps worked with Gregory Rosenthal, who had been appointed by Security to represent it in Georgia in January 1993. Rosenthal and Fipps became aware of the Insight Answer product in January 1994 and, although Fipps never saw the Group GH840 policy, he was provided with marketing materials on it.

In early February 1994, Fipps contacted Clark’s son, Ricky, after Ricky had responded to an ad in a magazine for an insurance product for Sepulveda, an insurance agency. Fipps got the referral, contacted Ricky Clark, and presented different proposals to him, including the Insight Answer Plan. On February 11, 1994, Fipps was introduced by Ricky to his father, Mr. Clark, at the elder Clark’s store in Damascus, Georgia. Fipps asked Mr. Clark about his health insurance, and Clark informed him he had had coverage with National Health for years. Fipps told Clark about Insight Answer, including the fact that Clark’s deductible would be $1,000 instead of National Health’s $2,500 and Insight Answer’s lifetime coverage was $2,000,000.

Clark decided to apply for the coverage and “Mr. Fipps read the application to me and I answered the questions for him.” In the section of the application headed “Medical Questions,” the form stated that “[f]ailure to divulge complete facts can be cause for rescission of your coverage.” Clark answered affirmatively Questions 1 and 2 dealing with treatment within the last year by any health care provider for any medical condition and treatment within the last five years for any heart condition. Although Clark told Fipps he had had five heart bypasses within the past five years, Fipps told him only the last year’s information was required, despite the specific five-year language, and “arteriosclerosis” was the only heart condition circled in response to the second question. Mr. and Mrs. Clark signed the application after it had been filled out by Fipps. Mr. Clark stated that he did not read over the application carefully before he signed it, but Questions 1 and 2 were marked “yes.” Below the health questions, the application stated that “I hereby apply for insurance to which I am now or may become entitled under the provisions of the Master Policy issued to the Multiple Unit Security Trust II by Security Life Insurance Company of America. I understand that my application is subject to approval by the Insurance company. I understand that my coverage, if approved, . . . will be subject to the pre-existing condition provision specified in the Master Policy and that this provision has been fully explained to me.”

Fipps also represented Southland Life Insurance Company and sold Mrs. Clark a $10,000 life insurance policy. Mr. Clark was entitled to a $10,000 life benefit under the Insight Answer Plan. Fipps told the Clarks that he did not make much commission on health coverage and would make better commission on the Southland policy. Fipps received an advance of commissions on life products, amounting to 75 to 80 percent of the first year’s premium, while only receiving 15 percent of the Insight Answer premium as it was paid monthly. The initial premium for the Insight Answer Plan was $289.16 per month, while the National Health Care premium was $445 per month. Mrs. Clark gave Fipps a check for the first month’s premium.

When the application was received by IAC, the Clarks’ affirmative answers to the two health questions had been changed to “no” and their signatures had been forged. A default judgment was entered against Fipps, and it was stipulated at trial that he had forged the signatures and submitted the altered application.

A certificate of insurance under Group GH840 was issued by IAC for Security, and the certificate was delivered to the Clarks by Fipps in March 1994. The certificate, as well as the cover letter accompanying it, identified the policyholder as “Multiple Unit Security Trust II” and stated that “[y]ou are eligible for insurance under the Policy as a member of the trust if you meet the eligibility requirements.” Group Policy GH840 stated that persons eligible for insurance under it were “all members of the trust who meet the eligibility requirements in the Schedule of Insurance.” The Schedule of Insurance identified as eligible “[a]ll individuals who are under the age of 65 and request to participate as a member of the Trust.” The Trust Agreement defined as members “an eligible person to whom a group certificate is issued.”

Although the front page of the application for insurance was attached to the certificate delivered to the Clarks, the back, containing the changed answers and forged signatures, was not. The Clarks then cancelled their National Health policy.

In June 1994, Mr. Clark went to see his doctor for a routine visit and submitted the $41 bill to IAC for payment. The bill showed a diagnosis of arteriosclerosis, which triggered an investigation by IAC based on the application submitted. Shortly after this inquiry began, as a result of the expiration of his six-month premium rate guarantee, Mr. Clark was notified by IAC that his premium was being increased from $299 per month to $419 per month “[i]n order to preserve the financial stability of the Multiple Unit Security Trust II.” The trust’s only asset was Group Policy GH840. Mr. Clark thereafter increased his stop loss to $4,000, lowering the premium and maintaining his Insight Answer coverage.

By letter of November 16, 1994, LAC notified Mr. Clark that his coverage was being rescinded effective March 1,1994, due to the failure to provide accurate information concerning his medical history. Later, a refund check for his premiums minus paid claims was sent to him, which he did not cash because “I don’t accept it.”

As brought out by the Clarks during trial, Security and Phi-ladephia Life Insurance Corporation entered into an Assumption Agreement on June 1, 1996, whereby Philadelphia, a company rated “A” by A. M. Best, assumed “certain group medical business,” including the Insight Answer Plan, from Security, a “B+” rated company. In the agreement, the assumed business was described as “under a master policy issued to the Multiple Unit Security Trust II situated in Mississippi.” Philadephia’s Group Series 100 policy, issued to MUST II, has been filed with and approved by the Georgia Insurance Department since the docketing of this appeal. This policy includes the “Insight Answer 50/50 Indemnity” coverage, which is the plan opted for by Mr. Clark under his certificate of insurance under Security’s Group GH840 policy, with the added Georgia-mandated benefits.

In the Pretrial Order, the Clarks’ outline of their claim states they had been defrauded by Security, in “that Security . . . devised a scheme to defraud them and others and executed that scheme by unlawfully selling a life, accident and health insurance policy to them which had not been approved by the Georgia Insurance Commissioner’s office.” The Clarks’ brief likewise describes a “wide-ranging fraudulent scheme which involved pawning off illegal, unapproved, pseudo ‘group’ insurance on an unsuspecting public, while deliberately avoiding regulatory compliance with insurance laws in the jurisdictions where it was sold” through the mechanism of an “air-breather group,” i.e., MUST II.

1. Security’s second enumeration, which we address first, is that the trial court erred in denying its motion for directed verdict at the close of the evidence. The motion was that (a) there had been no showing of a scheme to defraud insureds and that any errors in establishing the MUST II trust and issuing the policy to it were not the source of any injury to the Clarks; (b) there was no evidence of injury caused to the Clarks even if the Insight Answer Plan were part of an attempt to avoid regulatory oversight by the Georgia Department of Insurance; (c) there was no evidence of any crime indictable under OCGA § 16-14-3 (9) (A); and (d) the harm to the Clarks, the issuance to them and cancellation of their Insight Answer insurance, was the sole result of Fipps’ independent forgery of their application and not the result of any alleged illegality of the Insight Answer Plan.

(a) Because the Pennsylvania Life group policy has now been approved by the Georgia Insurance Commissioner, this resolves adversely to the Clarks the issues of whether MUST II is a viable policyholder for certificates issued in Georgia, whether discretionary trusts are group or individual insurance under Georgia law, and whether individual underwriting may be done for group policies, as far as the Georgia Insurance Commissioner is concerned. See Owens v. Ga. Underwriting Assn., 223 Ga. App. 29, 32 (3) (476 SE2d 810) (1996) (judicial notice may be taken of the Insurance Commissioner’s filings).

(b) This leaves as the claimed “illegalities” in the Insight Answer Plan, as sold in Georgia, the failure of Security to file it with the Department and the failure of Fipps to have a certificate of authority issued by Security before selling the policy to the Clarks. For purposes of this opinion, we assume, without deciding, that such a filing was mandated.

The Clarks rely upon Olukoya v. American Assn. of Cab Cos., 219 Ga. App. 508 (465 SE2d 715) (1995) for the proposition that failure to file the policy with the Georgia Insurance Commissioner’s office before marketing it in Georgia and to comply with other provisions of the insurance laws and regulations can serve as a predicate act of theft or mail and wire fraud under OCGA §§ 16-14-3 (9) (A) (ix), (xxiv) and 16-14-4. In Olukoya, Olukoya sued American Association of Cab Companies, Inc. (AACCI), claiming coverage under AACCI’s self-insurance plan based on breach of contract as well as RICO. Olukoya’s appeal was from the denial of his motion for partial summary judgment which sought a determination that “operation of AACCI’s self-insurance plan constituted an illegal scheme to sell insurance without a license.”

In reversing the denial of this very specific motion, this Court concluded only that marketing of AACCFs self-insurance plan to third parties “constituted the illegal sale ... of insurance in this state without a license” (a misdemeanor under OCGA § 33-23-4 (b) & (h)) and added “[i]n so holding, we note that the illegal sale of insurance is not in and of itself a basis for a civil RICO action in this State, but it may serve as such if it was conducted in violation of federal mail and wire fraud statutes or if it is proven to have been a fraud amounting to theft committed against plaintiff.” (Emphasis supplied.) Id. at 510.

That failing to comply with the filing requirement is not sufficient to prove a RICO violation is also strongly supported by Penn America Ins. Co. v. Miller, 228 Ga. App. 659 (492 SE2d 571) (1997). There, Presiding Judge Pope, the author of Olukoya, determined that an insurer’s failure to file a policy exclusion with the Insurance Commissioner pursuant to OCGA § 33-24-9 (a) does not void that provision, because that section “specifies no penalty for failure to file, much less the penalty exacted by the trial court.” Id. at 660. Penn America also relies upon OCGA § 33-24-12 (a) which provides that “[a]ny insurance policy, rider, or endorsement . . . otherwise valid which contains any condition or provision not in compliance with the requirements of this title shall not be rendered invalid due to the noncomplying condition or provision but shall be construed and applied in accordance with such conditions and provisions as would have applied had the policy, rider, or endorsement been in full compliance with this title[,]” pointing out that “[tjhis . . . statute shows the legislature did not intend a technical violation of OCGA § 33-24-9 (a) automatically to invalidate an unfiled exclusion.” Penn America, supra at 660.

While Penn America deals only with failure to file an exclusion, the same rationale applies to failure to file the entire policy. We find persuasive in this regard McCullough Transfer Co. v. Virginia Surety Co., 213 F2d 440 (6th Cir. 1954) and Franklin v. St. Paul Fire &c. Ins. Co., 534 SW2d 661 (Tenn. App. 1975) which hold that, although failing to file the policy is a misdemeanor, such failure does not void the policy. See generally Annot., 55 ALR2d 481 (1957).

Since violation of this provision is a misdemeanor and will not result in the voiding of the policy, it cannot serve as the basis for a theft, fraud or mail fraud predicate act for RICO in this case. See Moore v. Barge, 210 Ga. App. 552, 557 (3) (436 SE2d 746) (1993).

This conclusion is buttressed by OCGA § 16-14-2 (b) in which “[t]he General Assembly declares that the intent of this chapter [RICO] is to impose sanctions against those who violate this chapter. .. .It is not the intent of the General Assembly that isolated incidents of misdemeanor conduct... be prosecuted under this chapter.” (Emphasis supplied.)

(c) Even assuming that the evidence presented below was sufficient to show a mail and wire fraud scheme by Security to avoid compliance with state laws and illegally sell insurance without properly appointing agents, there still has been no showing that the harm suffered by Mr. Clark, the wrongful rescission of his Insight Answer insurance, flows from such a scheme so as to make him an “aggrieved person” or one who is “injured by reason of any violation of Code Section 16-4-4” within Georgia’s civil RICO statute. OCGA § 16-14-6 (b) and (c).

“In order for an individual to recover under RICO, his injuries ‘must “flow from the commission of the predicate acts.” Sedimaf S.P.R.L. v. Imrex Co., 473 U. S. 479 (105 SC 3275, 87 LE2d 346) (1985)). This means that a private plaintiff who wants to recover under civil RICO must show some injury flowing from one or more predicate acts. A plaintiff cannot allege merely that an act of racketeering occurred and that he lost money. He must show a causal connection between his injury and a predicate act. If no injury flowed from a particular act, no recovery lies for the commission of that act.’ Pelletier v. Zweifel, 921 F2d 1465, 1497 (11th Cir. 1991). . . . ‘This means that, when the alleged predicate act is [mail or wire fraud], the plaintiff must have been a target of the scheme to defraud and must have relied to his detriment on misrepresentations made in furtherance of that scheme. (Cits.)’ Id. at 1499-1500.” (Emphasis supplied.) Longino v. Bank of Ellijay, 228 Ga. App. 37, 40-41 (2) (491 SE2d 81) (1997). This is a proximate cause requirement for recovery by a civil RICO plaintiff. Pelletier, supra at 1499 [12, 13].

Mr. Clark testified that he was never told about MUST II and did not know what it was; he did not know that the Insight Answer policy had not been filed with or approved by the Georgia Insurance Commissioner; and if he had been told these things, he would not have continued doing business with Fipps. He had no knowledge of any of the alleged misstatements made to various insurance regulatory agencies in Georgia and other states.

Further, Mr. Clark read only the front page of the certificate of insurance when Fipps delivered it to him to check the deductible amounts and coverage and did not discover anything about MUST II and the way the policy was being marketed without approval until his attorney explained it to him.

As in Longino, all of the alleged predicate acts, i.e., setting up MUST II, drafting the policy, establishing marketing materials, misleading various insurance commissioners regarding the policy, and avoiding compliance with insurance laws and regulations, occurred before the Clarks had ever met Fipps or heard of the policy.

Therefore, Security was entitled to a directed verdict on this ground also. See also Mullen v. Nezhat, 223 Ga. App. 278, 281 (3) (477 SE2d 417) (1996) (physical precedent).

(d) Another ground urged below by Security was that the harm suffered by the Clarks was attributable solely to the acts of Fipps and not participated in by Security. We also find this ground meritorious.

“Generally, an employer may be held responsible for the tortious act of an employee where the act was ‘authorized by the employer prior to its commission, ratified (by the employer) after its commission, or committed within the scope of the employment. (Cit.)’ [Cit.]” Modern Woodmen of America v. Crumpton, 226 Ga. App. 567, 568 (487 SE2d 47) (1997).

There is no evidence that Security was even aware of, much less approved of or ratified, the forgery committed by Fipps until months after the event when the June claim was submitted by Mr. Clark, leaving for consideration only the scope of employment issue.

As fully discussed in Modern Woodmen, the standard for holding the employer liable is “ ‘not whether the act was done during the existence of the employment, but whether it was done within the scope of the actual transaction of the master’s business for accomplishing the ends of his employment. (Cits.) If a servant steps aside from his master’s business to do an act entirely disconnected from it, and injury to another results from a doing of the act, the servant may be liable, but the master is not liable.’ (Punctuation omitted.) Wittig v. Spa Lady &c., 182 Ga. App. 689, 690 (356 SE2d 665) (1987).” Id. at 568-569.

Here, as brought out by the Clarks, Fipps was not formally authorized by Security to sell the Insight Answer Plan until after he took their application. Also, the only one who had something to gain from the falsification was Fipps. As he testified, he was using the Insight Answer product as an attractive product to get the customer’s attention, and then attempting to sell them life insurance, from which he made a better commission. Of course, until the forgery was discovered, if at all, he collected some commission on the health business he sold.

Security did not benefit from the falsification because it did not have the opportunity to evaluate Mr. Clark’s true medical condition before accepting the risk of insuring him. Although Fipps forged the application, Security “cannot avoid its obligations under the contract of insurance by denying responsibility for fraudulent acts committed by its agent outside the scope of employment which altered the contract to the detriment of the insured. [Stillson v. Prudential Ins. Co. &c., 202 Ga. 79, 83 (42 SE2d 121) (1947)].” Modern Woodmen, supra at 569. Therefore, Security has a contractual obligation it would not otherwise have assumed.

2. Security’s first enumeration is that the trial court erred in directing a verdict in favor of the Clarks on their wrongful interference with property rights claim. We agree.

“ ‘It is well settled that misfeasance in the performance of a contractual duty may give rise to a tort action. But in such cases the injury to the plaintiff has been an independent injury over and above the mere disappointment of plaintiff’s hope to receive the contracted-for benefit.’ (Citations and punctuation omitted.) [Cit.] Mere breach of the contract’s terms is insufficient to create a tort cause of action; the defendant must also breach an independent duty created by statute or common law. [Cit.]” Construction Lender v. Sutter, 228 Ga. App. 405, 409 (2) (491 SE2d 853) (1997).

Globe Life &c. Ins. Co. v. Ogden, 182 Ga. App. 803, 804 (1) (357 SE2d 276) (1987) determined that, as between insured and insurer, there had been no showing made of any such “special relationship . . . involving ‘a public duty the breach of which will support an action in tort.’ Leonard [v. Firemen’s Ins. Co., 100 Ga. App. 434, 435 (111 SE2d 773) (1959)].” Neither was any such showing made in the Clarks’ case. Tate v. Aetna Cas. &c. Co., 149 Ga. App. 123, 124 (253 SE2d 775) (1979); see Bowdish v. Johns Creek Assoc., 200 Ga. App. 93, 94 (3) (406 SE2d 502) (1991).

The two cases relied upon by the Clarks in support of this claim both deal with wrongful foreclosure where there is a statute providing the public duty which, although arising from contract, supports the tort. There is no such basis for the tort in the Clarks’ situation, and their remedy was contractual. Globe Life &c. Ins. Co., supra.

3. The fifth enumeration deals with the trial court’s pretrial sanctions, including attorney fees, imposed on Security based on discovery disputes.

An order was entered on November 22, 1995, overruling Security’s objections and compelling discovery responses. That order is not included in the enumeration of error. On March 19, 1996, the trial court entered an order finding that “Security’s failure to comply with plaintiffs’ discovery requests and the Court’s order is willful and deliberate, is without substantial justification in fact or law” and granting plaintiffs’ motion for sanctions. The order “finds that the appropriate sanction here is to find Security in civil contempt for failing to comply with the Court’s procedures and order and for misrepresenting the non-existence of relevant documents to the Court. The appropriate remedy, at least for the present, is an order requiring Security to compensate the plaintiffs for their expense and inconvenience caused by Security’s misconduct.” No amount was designated.

Decided December 2, 1997

Sutherland, Ashill & Brennan, William D. Barwick, Teresa W. Rosehorough, Rowan & Neis, Robert J. Neis, for appellant.

William S. Stone, Kevin R. Dean, for appellees.

Beckmann & Pinson, William H. Pinson, Jr., Goldner, Sommers, Scrudder & Bass, Henry E. Scrudder, Jr., Morris, Manning & Martin, Lewis E. Hassett, amici curiae.

On May 21, 1996, a second order imposing sanctions was filed, striking certain defenses and denials of Security and, again, “awarding plaintiffs] their reasonable attorney’s fees and expenses in taking the deposition of [Security’s in-house counsel] and in connection with their second motion for sanctions.”

During trial, evidence of these discovery disputes and these orders were introduced and the trial court instructed the jury on OCGA § 9-15-14. A total of $792,902.08 in attorney fees and expenses was imposed, and the court held that the earlier orders were “subsumed in the amount awarded in this final judgment.”

Therefore, the issues in the fifth enumeration are moot.

4. The remaining enumerations are rendered moot by the holdings in Divisions 1 and 2.

Judgment reversed.

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

       This sum consisted of $4,073,000 in compensatory damages (the $2,000,000 maximum benefit available for medical expenses to each Clark during the life of the policy, Mr. Clark’s $10,000 life benefit, and $31,500 for each of the Clarks for mental suffering), trebled pursuant to OCGA § 16-14-6 (c) to $12,219,000, plus attorney fees and litigation expenses of $792,902.08, punitive damages of $1,500,000, and prejudgment interest of $374,792.10, reduced by pretrial settlements with other defendants of $410,000.

       The complaint, as originally filed, contained claims for breach of contract and wrongful interference with contract rights. These, however, were not pursued at trial. The wrongful interference with contract rights claim was replaced by the wrongful interference with property rights claim, upon which a verdict in the Clarks’ favor was directed.

       Mrs. Clark was insured as a dependent.

       See OCGA § 33-30-1 (a); Rules of Comptroller General, Insurance Dept., Chapter 120-2-50.

       Rosenthal was also named as a defendant, but a verdict was directed in his favor.

       On cross-examination, Clark, asked about the application, stated that “I didn’t read any of it.”

       This policy remains in effect.

       In addition to the briefs of the litigants, we have been aided in our consideration of this case by amicus curiae briefs filed pursuant to Court of Appeals Rule 25, listed in the order filed, by the Reinsurance Association of America, the Georgia Insurance Commissioner, the Georgia Defense Lawyers Association, the Health Insurance Association of America, the American Council of Life Insurance, and the Georgia Trial Lawyers Association.

       The legislature amended Chapter 30 of Title 33, Group or Blanket Accident & Sickness Insurance, by enacting OCGA § 33-30-1.1, effective July 1, 1997, which added specific language that “[t]his chapter shall apply to policies of insurance, certificates evidencing coverage under a policy of insurance. . . .” (Emphasis supplied.) Since the legislature is presumed to enact legislation with “full knowledge of the existing condition of the law and with reference to it[,]” Wigley v. Hambrick, 193 Ga. App. 903, 905 (4) (389 SE2d 763) (1989), this enactment lends credence to Security’s argument that, before this enactment, OCGA § 33-24-9 did not mandate filing with the Commissioner of group policies issued to out-of-state trusts. See Boseman v. Connecticut Gen. Life Ins. Co., 301 U. S. 196 (57 SC 686, 81 LE2d 1036) (1936) (state where policy, not certificate, issued determines applicable law).

       Mrs. Clark did not testify at trial, and therefore, nothing has been proven regarding any influence on her of the alleged scheme.

        Clark v. West, 196 Ga. App. 456 (395 SE2d 884) (1990) and Gilbert v. Cherry, 136 Ga. App. 417, 418 (1) (221 SE2d 472) (1975).