author: Eldridge, Judge. Blackburn, Presiding Judge, Smith, Judge,

text:
    A99A0847.
    ALDRICH v. CITY OF LUMBER CITY et al.
    (530 SE2d 195)
   Eldridge, Judge.

Bobby Aldrich’s application for discretionary review was granted to consider the superior court’s affirmance of a workers’ compensation award in favor of the City of Lumber City, the City of Alamo, the Georgia Municipal Association Workers’ Compensation Fund, and Sedgwick James of Georgia, Inc. (“Sedgwick James”), the servicing agent. The judgment obligates Aldrich to repay the amount of total disability benefits he received over a several-year period during which Aldrich was employed and about which he failed to notify his former employer, the City of Lumber City, or its insurer. Aldrich appeals, contending that the principle of res judicata and the existence of a 1994 settlement agreement foreclosed this result.

In August 1989, while on duty as a police officer for Lumber City, Aldrich sustained a compensable injury when he experienced a “lightning sting” which aggravated his pre-existing diabetic condition. Aldrich asserted that certain medical complications relating to his right foot were caused when lightning struck a nearby pole then exited the top of his shoe. Although Lumber City controverted Aldrich’s claim, and the administrative law judge (“ALJ”) denied benefits, on May 3, 1991, the appellate division of the State Board of Workers’ Compensation decided that Aldrich’s claim was compen-sable and awarded benefits. The appellate division directed Lumber City to pay medical expenses as well as weekly income benefits commencing September 22, 1989, and “continuing until changed or terminated according to law.”

While appealing the initial denial of benefits and after receiving temporary total disability benefits, Aldrich secretly worked for several other employers, including as a contractor for the Department of Family & Children Services in 1991 and later as a night security officer for a Hardee’s restaurant. On August 1, 1994, while still receiving benefits from Lumber City and its insurer, Aldrich began working as a police officer for the City of Alamo. While employed by the City of Alamo, Aldrich continued to receive weekly workers’ compensation benefits as well as Social Security disability payments.

On November 3, 1994, Aldrich’s patrol car struck a cow. Alleging that he had hurt his left knee and sprained his neck, Aldrich then filed a claim for workers’ compensation benefits. When an adjuster, Stella Jones, recognized Aldrich’s name, she confirmed his identity and employment with the City of Alamo. The City of Alamo then controverted Aldrich’s claim on the basis that Aldrich was receiving total disability benefits from Lumber City. Notice of an intent to suspend benefits effective December 7, 1994, was filed with the State Board. According to Jones, she had no record in her files that Aldrich had notified her that he had returned to work.

Aldrich sought additional income and medical benefits based on a change in condition for the worse from his original injury with Lumber City in 1989 or, in the alternative, a new injury while working for the City of Alamo. The ALJ found that Aldrich was “unworthy of belief,” “unresponsive,” and “evasive in his testimony”; that Aldrich had not been injured when his patrol car struck the cow; that he had not undergone a change in condition for the worse with respect to the 1989 injury; that his pre-existing diabetic condition had resolved to its pre-1989 injury state; and that, after February 7, 1991, Aldrich’s physical condition was no longer attributable to the 1989 injury, the aggravation of his pre-existing diabetic condition. The ALJ determined that “through carelessness, work activities and numerous additional accidents, the aggravation of claimant’s diabetic condition ceased to be related to the 1989 injury.” Finding that Aldrich did not qualify for benefits relating to the 1989 injury after February 7, 1991, the ALJ terminated benefits effective that date. The ALJ ordered Aldrich to make reimbursements for the overpaid disability benefits received after February 7, 1991, until the suspension of benefits on December 7, 1994.

In issuing its award, the appellate division embraced the factual findings and legal analysis of the ALJ. The appellate division agreed that Aldrich had undergone a change in condition for the better and was, therefore, not entitled to income benefits and medical expenses after February 7, 1991. Finding evidence in the record which supported the award, the superior court affirmed the appellate division’s decision.

1. Aldrich asserts that the judgment by the superior court violates the doctrine of res judicata. He claims that after the State Board found in its May 3, 1991 award that he had sustained a com-pensable injury, it lacked jurisdiction to alter that award. We disagree.

In 1978, the legislature expressly empowered the State Board to order an employee to repay income benefits to an employer when there has been a change of condition hearing. Bahadori v. Nat. Union Fire Ins. Co., 270 Ga. 203, 204 (1) (507 SE2d 467) (1998).

If the decision determines that an overpayment of income benefits has been made and no future income benefits are due, the administrative law judge or the board, in its discretion, may order the employee or beneficiary to repay to the employer or the insurer[ ] the sum of the overpayments.

(Emphasis in original.) Id. See also OCGA § 34-9-104 (d) (2).

By law, provided that certain statutory requirements are met, an award can be subsequently modified.

[A]ny party may apply under this Code section for another decision because of a change in condition ending, decreasing, increasing, or authorizing the recovery ofmcome benefits awarded or ordered in the prior final decision, provided that the prior decision of the board was not based on a settlement; and provided, further, that at the time of application not more that two years have elapsed since the date [oí] the last payment of income benefits pursuant to Code Section 34-9-261.

OCGA § 34-9-104 (b). Here, the record confirms that the modification was based on a change of condition which altered the recovery of income benefits awarded in a prior final decision; the State Board had approved the 1991 award; and the final award had not been based on a settlement. Nor was the modification untimely since two years had not elapsed since payment of income benefits to Aldrich. See Bahadori, 270 Ga. at 204 (2) (limitation period for recovery of overpaid benefits under OCGA § 34-9-104 (d) (2) is two years from date of last payment of income benefits). Thus, under OCGA § 34-9-104, the State Board had jurisdiction to modify the earlier award.

Notwithstanding Aldrich’s claim to the contrary, Gaddis v. Ga. Mountain Contractors, 213 Ga. App. 126, 127 (1) (443 SE2d 710) (1994) neither authorizes nor requires a different result. In that case, unlike here, because the State Board was not seeking to alter an earlier award based on a change in condition, the doctrine of res judicata precluded any attempt to modify that final judgment. Id. at 127-128 (1). Aldrich’s reliance upon Webb v. City of Atlanta, 228 Ga. App. 278, 279 (1) (491 SE2d 492) (1997) is similarly misplaced. In that case, unlike here, the applicability of the doctrine of res judicata was addressed in the context of whether disability payments should have been credited against income benefits. Webb was not a change of condition case and did not concern the application of OCGA § 34-9-104 (a). Id. at 280 (2).

Aldrich asserts that the ALJ was required to find that the change of condition took place after May 3, 1991, and, thus, erred in finding that it occurred in February 1991. But OCGA § 34-9-104 (d) specifically permits such retroactivity.

[T]he award or order contained in the final decision entered by the administrative law judge or the board shall be effective as of the time of change in condition as found by the administrative law judge or board, notwithstanding the retroactive effect of the award or order.

OCGA § 34-9-104 (d) (1).

The legislature amended the Act in 1978 to provide that where a change in condition action was before the State Board, it could also address any prior overpayment. See OCGA § 34-9-104 (d) (2). But Aldrich’s twisted interpretation of the statutory language of subsection (d) would eviscerate an employer/insurer’s right to recover such overpayments and is counterintuitive to the logic of the Supreme Court in Bahadori, 270 Ga. 203. In construing this subsection, the Supreme Court did not find that the employer and its insurer were limited to recovering only overpayments made to Bahadori after “last established by award or otherwise.” On the contrary, assuming argu-endo that the employer/insurer could surmount the statute of limitation problem by proving fraud, then the overpayments made to Bahadori in 1992 could be recovered for the period during which Bahadori was secretly working for another employer.

OCGA § 34-9-104 (d) (1) expressly authorizes an award to “be effective as of the time of change in condition as found by the administrative law judge or board, notwithstanding the retroactive effect of the award.” In these circumstances, the State Board was authorized to enter an award retroactive to and effective on February 7, 1991, the date on which the ALJ found that a change in condition had occurred.

2. Aldrich contends that the superior court erred as a matter of law in affirming the award because the State Board had previously approved an agreement entered into between Lumber City and the Subsequent Injury Trust Fund (“Trust Fund”) as of June 29, 1994.

Nearly three years after the May 1991 award of benefits to Aldrich, Lumber City, the Georgia Municipal Association (“GMA”), and Sedgwick James entered into a reimbursement agreement with the Trust Fund which was approved by the State Board on June 29, 1994. In that agreement, Lumber City, GMA, Sedgwick James, and the Trust Fund stipulated that Aldrich’s original injury of August 25, 1989, merged with Aldrich’s pre-existing condition. Pointing to this stipulation in the reimbursement agreement as well as to the existence of the agreement itself, Aldrich contends that any subsequent review of the 1991 award was procedurally barred.

The May 1991 award pre-dated the reimbursement agreement by nearly three years and, thus, could not possibly have been based on an agreement not yet in existence. Further, the terms of this contract confirm that it is a plan for repayment, not a settlement agreement between Aldrich as an employee and his employer/insurer to resolve Aldrich’s workers’ compensation claims. Compare Robinson v. Zurich Ins. Co., 131 Ga. App. 795, 796 (207 SE2d 209) (1974) (absent a change of condition, where parties’ agreement approved by the State Board, the State Board cannot later modify it). Moreover, since Aldrich was not a party to the reimbursement agreement and the issues were not identical, the doctrine of res judicata did not apply. Lay Bros., Inc. v. Tahamtan, 236 Ga. App. 435, 436 (511 SE2d 262) (1999). Consequently, the employer/insurer was entitled to reimbursement for the amount overpaid to Aldrich for total disability after the date on which his temporary disability ceased. Cincinnati Ins. Co. v. Minish, 150 Ga. App. 363, 364 (1) (258 SE2d 45) (1979); see Ga. Pacific Corp. v. Wilson, 225 Ga. App. 663, 664 (1) (484 SE2d 699) (1997) (new award not precluded by res judicata where movant sustains burden of proving change of condition).

Judgment affirmed.

Johnson, C. J., Pope, P. J., and Ellington, J, concur. Blackburn, P. J., concurs in Division 1 and concurs specially in part and dissents in part in Division 2. Smith and Barnes, JJ., dissent.

Blackburn, Presiding Judge,

concurring specially in part and dissenting in part.

I fully concur with Division 1 of the majority opinion. I concur with the analysis of Division 2 which finds that an award on the overpayment claim is not subject to the express limitation applicable to change of condition orders contained in OCGA § 34-9-104 (d) (1) under the facts of this case. I write separately on that issue to further explicate its intricacies. However, I dissent from the portion of the analysis and holding of Division 2 of the majority that simply affirms because I would remand the case for a determination of whether or not the employer had been reasonably diligent in investigating this claim.

The award on the overpayment claim is not subject to the express limitation applicable to change of condition orders contained in OCGA § 34-9-104 (d) (1) under the facts of this case. Under Bahadori v. Nat. Union Fire Ins. Co., 270 Ga. 203-204 (1) (507 SE2d 467) (1998), the Workers’ Compensation Board’s authority to adjudicate an employer’s overpayment claim is limited to those claims which can be addressed in the context of a change of condition hearing.

Prior to 1978, the Board had no authority to adjudicate claims for reimbursement of overpaid benefits. The purposes of the 1978 amendment to the Workers’ Compensation Act were to encourage judicial economy and to grant authority to the Board, where a change of condition claim is pending, to also adjudicate any overpayment claim which arises in the context thereof. While this overpayment claim arises in the context of this change of condition claim, the overpayment claim itself is not a change of condition claim. Bahadori v. Sizzler No. 1543, 230 Ga. App. 52 (505 SE2d 23) (1997), overruled on other grounds, Bahadori v. Nat. Union Fire Ins. Co., 270 Ga. 203. This case involves a finding by the Board that the claimant had misrepresented facts to the employer, had filed improper multiple claims from which he had received benefits, and was totally lacking in credibility — evidence which authorizes its finding of a change in condition and supports its award on the overpayment claim.

The purpose of the 1978 amendment would be thwarted if employers were limited in their overpayment award in fraudulent claim cases to those sums paid after the last award of benefits, which benefits were obtained by fraud. Where the employer has acted reasonably in investigating the claim and that investigation has been thwarted by claimant’s misrepresentations and failure to disclose, then such employer has a right to recoup all sums wrongfully paid as a result of claimant’s conduct. Under these circumstances, the employer is authorized to controvert the claim as the statute of limitation is tolled by claimant’s conduct. The employer is free to raise all defenses and present all evidence that would have been addressed but for claimant’s conduct. Where the employer’s overpayment claim arises in the context of a change of condition claim the employer is entitled to seek relief through the Board, which is authorized to act under these narrow circumstances. The limitation of OCGA § 34-9-104 (a) (1) applies to a change of condition claim only, not to an overpayment claim based on the fraud of the claimant. The law does not limit the employer’s rights in this regard unless the matter has been settled or in the case of an executed judgment. OCGA § 34-9-104 (b).

The statute of limitation for the filing of a notice to controvert is not tolled as a matter of law based upon claimant’s fraudulent conduct. Whether the employer was diligent in discovering the fraud is a fact question, which, when coupled with the fraudulence of claimant’s conduct, determines whether the employer’s right to controvert the claim has been tolled. See Bahadori, 270 Ga. at 206. Fraud which tolls a statute of limitation must be such actual fraud as could not have been discovered by the exercise of ordinary diligence. See Webb v. Lewis, 133 Ga. App. 18, 21 (209 SE2d 712) (1974). Where the fraud of a claimant thwarts an employer’s reasonably diligent investigation, the time within which the employer could controvert the claim is tolled. See Spiva v. Union County, 172 Ga. App. 151 (322 SE2d 351) (1984).

In Bahadori, the employer sought repayment of benefits overpaid based on claimant’s misrepresentations and the fact that he was, in fact, working while receiving workers’ compensation disability payments. The employer sought to controvert the claim based on the tolling of the statute of limitation as a result of the claimant’s misconduct. Our Supreme Court remanded the case for further findings of fact, concluding that the Board had not answered the question: “Did Bahadori’s fraud thwart [the employer’s] original investigation?” Bahadori, 270 Ga. at 206. The Supreme Court held that it must have done so in order to toll the statute of limitation.

In this case, Bahadori claimed falsely that he did not work between the months of September and December 1992, because of his prior injury. Although this misrepresentation may have been sufficient to thwart a reasonably diligent investigation, the board made no findings in this regard. Therefore, ... we remand. . . . “[T]here must be a balancing between the prompt and voluntary initiation of the payment of workers’ compensation benefit [s] to an employee, on the one hand, and the availability, on the other hand, of an opportunity for the employer/insurer to base a notice to controvert upon evidence which the employer/insurer was unable to discover earlier as a result of the employee’s own misrepresentation.”

Id. at 207. See also Carpet Transport v. Pittman, 187 Ga. App. 463 (370 SE2d 651 (1988). It is implicit in Bahadori v. Nat. Union Fire Ins. Co., that the employer would be entitled to the overpayment of the 1992 benefits as awarded upon a showing that Bahadori had thwarted its reasonably diligent investigation. Otherwise, it would make no sense to remand the case for a factual determination if the employer was not entitled to recover a portion of the award as a matter of law without reference to that fact.

Judge Smith’s dissent’s reliance upon Webb v. City of Atlanta, 228 Ga. App. 278 (491 SE2d 492) (1997), is misplaced as to the doctrine of res judicata. Webb involved a failure of the City of Atlanta to seek credit in the workers’ compensation proceeding for sums paid to claimant under its disability benefits plan, which it was clearly entitled to do. It was not entitled, however, to later unilaterally assert its rights and reduce the claimant’s benefits after an award had been made to claimant as it did. This Court properly held that the City knowingly failed to timely assert its rights and thereby waived them. There was no claimant misconduct or misrepresentation, and this Court properly applied the doctrine of res judicata under those circumstances because the City was fully aware of the facts at the time of the litigation. The doctrine of res judicata has no application however to a fraudulently obtained award.

It is clear from the order of the administrative law judge that the employers in this case argued that Aldrich “is not worthy of belief and that he has made numerous inconsistent and incorrect statements under oath.” They also argued that, contrary to Aldrich’s position, his injuries resulting from striking a cow in his automobile were “neither serious nor disabling.” Based on these arguments and Aldrich’s admissions, the ALJ found, among other things, that Aldrich accepted workers’ compensation benefits which “he knew he was not entitled to receive in 1991, 1992 and 1994.” The ALJ further stated that, during the hearing, “it was evident that [Aldrich] was being uncooperative, untruthful and evasive.”

Here, Aldrich knowingly received funds he was not entitled to by misrepresenting his injuries and his employment status to his employers. But for these misrepresentations, Aldrich’s employers would not have made these payments to him, as they argued before the ALJ. Whether Aldrich’s employers described his behavior as untruthful, evasive, or not worthy of belief, the underlying gist of their argument was that they had been defrauded. The tribunals below us recognized this fact and appropriately ruled on it. We should, and indeed we must, do the same here.

It is abundantly clear from the record that the employer has maintained, at every opportunity, that Aldrich obtained benefits by falsehoods. On January 16, 1998, a hearing was held before the ALJ in which the employer contended Aldrich’s falsehoods required that the benefits be suspended and that they be allowed repayment for the amounts overpaid. After the hearing, the trial court gave the parties ten days from the receipt of the transcript to file briefs. In the briefs submitted to the ALJ on February 20, 1998, the employer argued that Aldrich’s misrepresentations should allow the employer to obtain the overpayment in benefits paid due to such misrepresentations. The employer specifically listed numerous incidents of misrepresentations, including, but not limited to the following: (1) despite claiming to be disabled, Aldrich worked for the Department of Family & Children Services in 1991; (2) despite claiming to be disabled and while applying for Social Security disability benefits, Aldrich worked providing security for Hardee’s in 1992; (3) Aldrich failed to inform the employer about his return to work and did not return money he received as workers’ compensation benefits; (4) despite the fact that Aldrich had injured his feet numerous times during 1992 and 1993 in accidents involving wheelbarrows, concrete blocks and plows, Aldrich asserted at the hearing that the cause of his foot problem was the 1989 injury. And finally, as discussed above, in the ALJ’s order, the AL J makes specific findings of misrepresentations on Aldrich’s part and determines that the employer is entitled to repayment of those benefits which were overpaid.

Whether an overpayment claim which arises in the context of a change of condition claim is of the type which would toll the statute of limitation on an employer’s right to controvert, and thereby authorize repayment without regard to the prior award limitation of OCGA § 34-9-104 (a) (1), depends on whether claimant’s misconduct thwarted the employer’s reasonable investigation. Such right is born out of the evidence presented in the change of condition hearing on the case based on the factual contentions and proof. It is not necessary that the overpayment claim be separately enumerated like a count in an indictment. Its existence is intrinsic in the contentions and facts of the change of condition case. Here, the employer clearly contended and the Board determined that the claimant had misrepresented facts and had knowingly sought and received benefits to which he was not entitled. This proven contention was the basis for the overpayment award which the employer received and to which it would not have been entitled but for its overpayment claim and proof thereof.

Bahadori, 270 Ga. 203, cannot be disregarded because it was a “statute of limitation case relying on OCGA § 34-9-104 (d) (2)” and therefore not applicable to this case. Bahadori v. Nat. Union Fire Ins. Co. is no more confined to statute of limitation cases than Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991) is confined to premises liability cases. Our Supreme Court addressed in great detail therein numerous alternative cases in which this Court had dealt with some of the procedures herein addressed. I have followed the very procedure prescribed by our Supreme Court to address the underlying, unanswered question, “Did Aldrich’s fraud thwart the employer’s reasonable investigation?” There is no more germane case than Bahadori v. Nat. Union Fire Ins. Co.

Therefore, I would affirm that portion of the award based solely on a change of condition from the date of the current award to the employer through the date of the last award on May 3, 1991, under the limitations of OCGA § 34-9-104 (a) (1), pursuant to OCGA § 34-9-104 (d) (1). I would further remand the case for a determination of whether or not the employer had been reasonably diligent in investigating this claim, and, if so, did the claimant’s misrepresentations thwart such investigation sufficiently to toll the statute of limitation on employer’s right to controvert the claim. If so, then the employer would be entitled to recover on the overpayment claim, which would include the additional sums for the period of February 8, 1991, the date the Board determined the claimant no longer qualified for benefits from the 1989 injury, through May 3, 1991, without being subject to the previously described limitations for the reasons outlined above.

Smith, Judge,

dissenting.

If the ruling in this case depended solely upon “doing the right thing,” I would have no hesitation in agreeing with the majority that Aldrich ought to, injustice, be required to return every penny that he obtained through his wrongful conduct. But we are bound by the clear mandate of OCGA § 34-9-104 (d) (1), limiting the retroactive application of a modified award:

Subject to the limitation in subsection (a) of this Code section that a change of condition was a change which occurred after the date on which the wage-earning capacity, physical condition, or status of the employee was last established by award or otherwise, the award or order contained in the final decision entered by the administrative law judge or the board shall be effective as of the time of change in condition as found by the administrative law judge or board, notwithstanding the retroactive effect of the award or order.

(Emphasis supplied.)

Under this statutory provision, the board was authorized to enter an award “effective as of the time of the change in condition as found by the administrative law judge or board,” OCGA § 34-9-104 (d) (1), but was not authorized to find a change of condition effective before the date of Aldrich’s last award. “An unappealed award of total disability payments is res judicata as to the existence of such disability and the compensation due thereunder.” (Citation, punctuation and emphasis omitted.) Webb v. City of Atlanta, 228 Ga. App. 278, 280 (1) (491 SE2d 492) (1997).

The majority contends that Bahadori v. Nat. Union Fire Ins. Co., 270 Ga. 203 (507 SE2d 467) (1998), disposes of this clear statutory provision. Bahadori addresses the power granted the State Board of Workers’ Compensation under OCGA § 34-9-104 (b) to order repayment of income benefits in the context of a change of condition hearing. But the express limitation on a retroactive award provided by the legislature in OCGA § 34-9-104 (d) (1) was never raised or addressed in Bahadori. Moreover, it was inapplicable there. The 1992 claim as to which the employer sought repayment was never controverted but simply paid by the employer. Id. at 203. Issue was never joined, and the “wage-earning capacity, physical condition, or status of the employee” was never “established by award or otherwise” within the meaning of OCGA § 34-9-104 (d) (1). In contrast, this case involves a prior award of the board which by the statute’s express terms imposes a limit on appellees’ recovery.

It is certainly true that Aldrich’s conduct was both wrongful and fraudulent. But Bahadori provides no support for treating this case as a claim of fraud. First, Bahadori addressed the issue of fraud solely in the clearly permissible context of tolling a statute of limitation, not as somehow contradicting the plain language of the controlling law. Second, the claim of fraud was properly raised by the employer in the course of the litigation. Id. at 205 (3).

Here, in contrast, although the employers argued in their brief before the appellate division that Aldrich’s fraudulent conduct rendered his testimony not credible and supported the ALJ’s finding of no disability, they did not assert fraudulent conduct as a ground in support of their request for reimbursement under OCGA § 34-9-104. Neither employer raised fraud as a defense to Aldrich’s claim or moved to set aside the earlier findings for fraud.

The ALJ and the appellate division based their decisions entirely on the change of condition and reimbursement provisions of the workers’ compensation statutes and never addressed the issue of fraud. Furthermore, the employers’ brief before this court does not raise the issue of fraud. But when fraud is alleged, it must be pled with particularity. OCGA § 9-11-9. Mere references to fraudulent conduct will not suffice when a litigant has failed to assert a cause of action based upon fraud in the trial court. Moore v. Bank of Fitzgerald, 225 Ga. App. 122, 127 (2) (d) (483 SE2d 135) (1997). This court has recognized that “common sense and equity require” that the Civil Practice Act control some procedural aspects of workers’ compensation litigation. Wade v. Harris, 210 Ga. App. 882, 885 (1) (437 SE2d 863) (1993).

The fraudulent conduct of Aldrich, while clearly wrongful, does not constitute a “change in condition” that can be addressed by OCGA § 34-9-104. Even if we assume for the sake of argument that Aldrich’s moral condition underwent some alteration for the worse during the events leading up to this appeal, such an event is not within the purview of the Workers’ Compensation Act.

Decided December 20, 1999

Reconsideration denied January 7, 2000

Larry N. Hollington, for appellant.

Drew, Eckl & Farnham, Daniel C. Kniffen, Terrence T. Rock, for appellees.

A change in condition is defined in OCGA § 34-9-104 (a) as 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 was last established by award or otherwise.

(Punctuation omitted.) Maloney v. Gordon County Farms, 265 Ga. 825, 826 (462 SE2d 606) (1995).

The commission of a fraud on the employer or insurer is obviously not a “change in condition” within the meaning of the statute. The statute does not contemplate a remedy for such conduct, and in this case a retroactive change of condition finding is clearly barred by the express limitation of OCGA § 34-9-104 (a) (1).

But Georgia law has clearly established another remedy, as many cases have held that “the proper way to challenge an award of the Board on the basis that the award was obtained through fraud or misrepresentation is to bring a motion to set aside pursuant to OCGA § 9-11-60 (d) in the superior court.” Hall & Sosebee Trucking Co. v. Smith, 201 Ga. App. 282, 283 (410 SE2d 784) (1991). Nothing prevents appellees from exercising their other remedies under Georgia law. Bahadori itself recognizes that “[i]t is not inconsistent to allow some claims to go before the Board and some claims to continue to be filed in civil courts.” Id. at 205 (2). Those alternative remedies are clearly set out in Hall, supra, and other decisions of this court. See, e.g., Wade, supra; Griggs v. All-Steel Bldgs., 209 Ga. App. 253 (433 SE2d 89) (1993). Appellees failed to employ the recognized and legally proper method for challenging an award they allege was obtained through fraud, and accordingly they are limited to the scope of the particular statutory remedy they sought here.

For these reasons, I respectfully dissent.

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

       The record contains medical evidence which documents that Aldrich had diabetic foot problems including multiple foot infections and cellulitis of his toes before the 1989 compensable injury. An expert, Judson G. Black, M.D., the Medical Director of the Diabetic Treatment Center at West Paces Perry Medical Center, examined Aldrich, who has been diabetic since the age of nine. Dr. Black determined that all of Aldrich’s medical problems “are related to his poorly controlled diabetes mellitis, and that is aggravated by his exogenous obesity.”

       The last benefit check to Bahadori was dated February 16,1993. Sizzler’s request for a hearing and reimbursement was not filed until February 22, 1995, more than two years later. Bahadori v. Sizzler No. 1543, 230 Ga. App. 52, 60 (505 SE2d 23) (1997), overruled on other grounds, Bahadori, 270 Ga. 203. Whereas, here, the claim for reimbursement from Aldrich was not untimely.


source: Caselaw Access Project

author: Andrews, Presiding Judge.

license: Public Domain

text:
    A99A1642.
    In the Interest of J. B. H., a child.
    (527 SE2d 18)
   Andrews, Presiding Judge.

J. B. H. appeals from the juvenile court’s order granting the State’s motion to transfer his case to superior court. Because the juvenile court’s determination is supported by the evidence in the record, we affirm.

The case arose when J. B. H., who was sixteen at the time, and two juvenile girls, J. L. B. and J. R., took his father’s car and ran away, apparently planning to go to Florida. The car broke down, and the three juveniles walked to the house of someone J. L. B. knew through school, Denise McClure. J. L. B. asked McClure to take them to a nearby trailer park. After the three runaways were in McClure’s van, they told her that she must take them to Alabama. When McClure refused, J. R. held a butcher knife to McClure’s throat and told her to stop driving and give her the keys.

McClure stopped the van and got out, and the van took off with J. R. driving. When officers caught up with the van and signaled for them to stop, J. B. H. was driving. He refused to stop and sped up with the officers in pursuit. At some point, the van ran out of gas, and all three of the youths jumped out of the van while it was still coasting. Officers caught them almost immediately. When the officers searched the van, they found another butcher knife in J. L. B.’s bag and a full face mask in J. B. H.’s bag.

J. B. H. was charged with armed robbery, aggravated assault, hijacking, fleeing and attempting to elude police, reckless driving, speeding, giving false information to law enforcement officers, and criminal trespass. The State petitioned the juvenile court to transfer the case to superior court, and the court granted that petition. This appeal followed.

A juvenile court may transfer an offense for prosecution in the superior court if the court determines there are reasonable grounds to believe that (1) the child committed the delinquent act; (2) the child is not mentally ill; (3) the interests of the child and the community require that the child be placed under legal restraint and the transfer be made; and (4) the child was at least 15 years of age at the time of the alleged delinquent conduct or the child was 13 or 14 years of age at the time and committed an offense for which the punishment is loss of life or confinement for life in a penal institution. OCGA § 15-11-39 (a) (3). Here, the juvenile court found that J. B. H. was 16 at the time the acts were committed, that there were reasonable grounds to believe he committed the delinquent acts, that he was not mentally ill, and that he was not amenable to treatment in the juvenile system. This last factor, combined with the seriousness of the offenses, led the juvenile court to conclude that it was in the best interests of the child and the community that the case be transferred to the superior court.

On appeal from this determination, J. B. H. claims the court erred in two ways. First, he argues there were not reasonable grounds to believe that he committed the crimes alleged and, second, there was not sufficient evidence to find that he would not be amenable to treatment in the juvenile system.

When considering an order of the juvenile court transferring jurisdiction,

the function of this court is limited to ascertaining whether some evidence exists to support the juvenile court’s determination. Determinations of a juvenile court made on an exercise of discretion!,] if based upon evidence, will not be controlled by this court.

(Punctuation omitted.) In the Interest of E. M., 198 Ga. App. 729, 732 (402 SE2d 751) (1991).

1. J. B. H. first argues the juvenile court erred because the State did not establish that he committed the offenses alleged. Specifically, J. B. H. argues there is no evidence he was a co-conspirator to the crime of armed robbery. J. B. H. states in his brief that of all the offenses J. B. H. was charged with, “only the offense of Armed Robbery would support transferring his case to Superior Court.” We disagree.

It is true that if the child whom the State is seeking to transfer is only thirteen or fourteen years old, then the alleged delinquent act must be one “for which the punishment is loss of life or confinement for life in a penal institution.” OCGA § 15-11-39 (a) (4). But, J. B. H. was sixteen at the time of the alleged delinquent conduct, and therefore, there is no requirement that the crime be one punishable by loss of life or life imprisonment.

Moreover, the statute requires only that the court find there were “reasonable grounds” to believe the child committed the crime, not proof beyond a reasonable doubt. In re K. S. J., 258 Ga. 52 (365 SE2d 820) (1988). Here, there were reasonable grounds to determine J. B. H. was a party to the crimes charged.

Everyone concerned in the commission of a crime is a party to that crime and may be charged and convicted. A person is “concerned” in the commission of a crime if he intentionally aids or abets in the commission of the crime or intentionally advises, encourages, hires, counsels, or procures another to commit the crime. OCGA § 16-2-20. Here, the juvenile court could have reasonably concluded from the evidence that there was a common criminal intent between the juveniles to take the van from McClure by using the butcher knife. OCGA § 16-8-41. There was evidence that both girls had butcher knives, that J. B. H. had a face mask, that one of the girls talked McClure into giving them a ride, that the juveniles originally-intended to go to Florida, and that they intended either to force McClure to take them there or to drive her van there themselves. Thus, the evidence supports the juvenile court’s finding that reasonable grounds exist to believe J. B. H. committed the acts alleged. In the Interest of S. B. B., 234 Ga. App. 778, 779 (507 SE2d 879) (1998).

2. J. B. H. also argues the juvenile court erred in finding that he would not be amenable to treatment in the juvenile system. He contends that he should be allowed to go back into the juvenile system because when he was in that system previously, he was not given medications or psychological treatment which might have made a difference and allowed him to be successfully rehabilitated.

The evidence in the record does not support this contention. J. B. H.’s supervising probation officer testified at the hearing. She stated that she had been his probation officer for about five years and that he first came under her supervision in December 1993, after being charged with theft by taking when he stole a gun from his aunt. In January 1995, J. B. H. was charged with being unruly, simple battery, criminal damage to property, and entering an automobile. At that time, he was placed at a youth detention center (YDC), awaiting funding for placement at the “Bridge” in Atlanta, a specialized residential placement program which is extremely expensive. J. B. H. entered the Bridge program but was removed in less than two weeks for failure to comply with the rules and aggressive and disruptive behavior. While awaiting an opening in another facility, J. B. H. was allowed to go home and, in November 1995, was charged with two counts of simple battery when he punched his sister in the stomach and choked her. After this charge, J. B. H. ran out of the probation officer’s office and was missing for about 30 days. He was returned to the YDC and was accepted in the Wolf Creek program, an outdoor wilderness program which he successfully completed. But, in July 1996, he was charged with breaking another boy’s nose while in “lock-up.” J. B. H. then went to Eastman, the most restrictive juvenile placement, and stayed there for approximately 13 months. The probation officer also said that J. B. H. had to be moved from the Paul-ding Regional Youth Detention Center where he was being housed pending these charges because he had physically attacked several other students. Based on all of the above, the probation officer stated that there was no further placement for J. B. H. in the juvenile system.

The psychologist who evaluated J. B. H. testified that he was not mentally retarded or mentally ill and knew right from wrong. She diagnosed J. B. H. with “conduct disorder, severe childhood onset [,] polysubstance dependence [,] and emergent antisocial personality features.” The psychologist stated that J. B. H. had been in treatment, but it did not appear to have been very helpful to him. She concluded that because his behaviors had continued in spite of treatment efforts, that he was not amenable to treatment. The psychologist recommended treatment in a “controlled environment where there are behavioral rewards and consequences for behaviors pro-social as well as not pro-social.”

The trial court property considered the evidence on whether J. B. H. was amenable to treatment in the juvenile system.

[W]hether a child is amenable to treatment in the juvenile system is a factor to consider in determining the child’s and the community’s interest [s]. If the evidence shows the child is not amenable to treatment, the child’s interest in treatment in the juvenile system is minimized because of the treatment’s potential ineffectiveness, and, because of that ineffectiveness, the community has an interest in treating the child as an adult.

State v. M. M., 259 Ga. 637, 639 (2) (a) (386 SE2d 35) (1989). Moreover, even if there is evidence that the child may be amenable to treatment, the juvenile court may still transfer the case if it finds that the amenability factor is outweighed by the interest of the community in treating this child as an adult. In re K. S. J., supra at 54.

In this case, the juvenile court’s order is thorough and well reasoned, setting out in great detail all the factors it considered in determining that J. B. H. was not amenable to treatment in the juvenile system. The order also shows that the court balanced the child’s interest in being treated in the juvenile system against the community’s interest in treating the child as an adult. Waller v. State, 261 Ga. 830, 831 (412 SE2d 531) (1992). The juvenile court noted that one factor supporting a finding of nonamenability to treatment in the juvenile system is that J. B. H. has serious charges pending and a history of past rehabilitative attempts which have proven fruitless. In the Interest of J. D., 195 Ga. App. 801 (395 SE2d 280) (1990). Thus, J. B. H.’s interest in treatment in the juvenile system is minimized because of the potential ineffectiveness of that treatment, and therefore, the community has an interest in treating him as an adult. State v. M. M., supra at 639.

Accordingly, there was sufficient evidence to support the juvenile court’s determination that because of the serious nature of the offenses and in light of J. B. H.’s past history in the juvenile system, the interests of the child and the community would be better served if the case were transferred to superior court. We find no abuse of dis-eretion in the juvenile court’s determination.

Decided December 6, 1999

Reconsideration denied January 7, 2000

Witcher & Witcher, Thomas M. Witcher, James E. Hulsey, Jr., for appellant.

James R. Osborne, District Attorney, for appellee.

Judgment affirmed.

Ruffin and Ellington, JJ, concur.


author: Phipps, Judge.

text:
    A99A1839.
    JORDAN v. THE STATE.
    (527 SE2d 28)
   Phipps, Judge.

Jacob Jordan was convicted by a jury of burglary, aggravated assault, and possession of a firearm during the commission of a crime. Jordan appeals, claiming that his trial counsel was ineffective in failing to object to the admission of a document that sought to influence the State’s witness, Bryan Huff, to exculpate Jordan’s co-defendant, Jami Scott. We find the trial court’s denial of Jordan’s motion for new trial on the basis of ineffective assistance of counsel was not clearly erroneous and affirm.

At trial, Huff testified that on March 14, 1997, he heard Jordan and Scott talking about robbing Huff’s cousin, Henry Patterson. Jordan and Scott asked Huff if he wanted to join them, and Huff agreed, although he claimed he did so only because he was afraid they would come after him if he declined.

At approximately 9:00 p.m., Huff went to his cousin’s house to warn him that he was going to be robbed. Patterson was on the telephone at the time, and Huff was not able to warn him before two men wearing ski masks pushed the door open, told Huff to get on the floor, and demanded money from Patterson. When Patterson responded that he had no money, one of the assailants hit him with a baseball bat. The other assailant shot him in the chest. Patterson told Huff to call the police, and the two assailants ran out the front door.

Patterson testified that he recognized Scott’s voice and knew he was the one who hit him with the baseball bat. Huff confirmed that the voices of the assailants belonged to Jordan and Scott.

During Huff’s testimony, the district attorney asked him to identify a document labeled Exhibit 10. Huff testified that the document was written by Scott and given to him by Scott’s sister, who told him to rewrite it, put his name on it, have his signature notarized, and give it to Scott’s lawyer. Huff did not rewrite it. Instead, he gave it to his mother who gave it to someone “up here at the courthouse.” When the district attorney attempted to tender Exhibit 10 into evidence, Scott’s counsel raised a hearsay objection. The trial judge overruled the objection, and Huff was allowed to read the document to the jury. Exhibit 10 was a statement ostensibly from Huff, swearing that he knew Scott could not have been involved in the March 14, 1997 incident at Patterson’s house. Huff testified the statement was not true. The statement did not mention Jordan.

At the conclusion of Huff’s testimony and outside the presence of the jury, Scott’s counsel moved for a mistrial. He argued that he had filed a motion for reciprocal discovery, Exhibit 10 was not produced by the district attorney, and his client was prejudiced by not having prior notice of the document. The district attorney admitted that the document had not been produced because it was in the investigator’s file. After hearing testimony from the investigator, Huff, and Scott’s sister, the judge denied the motion for mistrial. Jordan’s counsel did not object to the admission of Exhibit 10, make any motion in response to its admission, or join the objection or motion of co-defendant’s counsel.

Jordan took the stand in his own defense and testified that he came to town on March 14,1997, to visit with family and friends. Jessica Howard, a former girlfriend, confirmed that Jordan had come to visit her that evening, but neither she nor Jordan could confirm the time he arrived or left. Jordan’s sister testified that she spoke to him about 9:20 that night and that he called her from Howard’s house. As Jordan was trying to leave Howard’s house, he discovered that his car would not start. He caught a ride to a friend’s house and spent the night there. Jordan also testified that he did not know Patterson and had never been to his house.

After his conviction, Jordan filed a motion for new trial, asserting ineffective assistance of counsel based in part on his trial counsel’s failure to object to the admission of Exhibit 10. Jordan’s trial counsel did not testify at the motion for new trial hearing. After the hearing, the judge denied Jordan’s motion.

To establish ineffectiveness of trial counsel, Jordan must show that his counsel’s performance was deficient and that the deficient performance prejudiced his defense. The standard for attorney performance is reasonably effective assistance considering all the circumstances, with a strong presumption that, under the circumstances, the challenged action might be considered sound trial strategy. The test for reasonable attorney performance is “ ‘whether some reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel acted at trial. . . .’ ”

Decided December 7, 1999

Reconsideration denied January 7, 2000.

William J. Sussman, for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

We review a trial court’s finding that a defendant has been afforded effective assistance of counsel under the clearly erroneous standard. Matters such as calling a particular witness, questioning on direct and cross-examination, making trial motions, and objecting to testimony are strategic and tactical decisions within the exclusive province of the attorney after consultation with the client.

Under the circumstances, Jordan’s trial counsel may have decided not to object to Exhibit 10, which made no mention of Jordan, to avoid any implication that the statement was connected with his client. Jordan’s defense was that he had an alibi which placed him elsewhere at the time the crime was committed. The jury also heard testimony that Jordan and Huff had been in altercations in the past and that their families did not get along. Patterson could not identify Jordan, and Huff (the only person to identify Jordan as one of the assailants) had a possible incentive for linking Jordan to the crime. Scott, on the other hand, was identified by two people as being involved in the crime and was involved in trying to manufacture evidence. If the jury had believed Jordan’s alibi defense, being tried with Scott, against whom the evidence was much stronger, could have worked to Jordan’s benefit because it would allow the jury to hold someone responsible for the crime by placing all of the blame on Scott.

In this situation, we do not find that trial counsel’s failure to object to Exhibit 10 was unreasonable.

Judgment affirmed.

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

        Strickland v. Washington, 466 U. S. 668, 687 (104 SC 2052, 80 LE2d 674) (1984).

       Id. at 687-689.

       (Citations omitted.) Stansell v. State, 270 Ga. 147, 150 (2) (510 SE2d 292) (1998).

        Whitner v. State, 202 Ga. App. 608, 609 (415 SE2d 52) (1992).

        Kinney v. State, 234 Ga. App. 733, 738 (7) (c) (506 SE2d 441) (1998); Hudson v. State, 218 Ga. App. 671, 672 (1) (462 SE2d 775) (1995).


author: Johnson, Chief Judge.

text:
    A99A2076.
    CUNROD v. THE STATE.
    (526 SE2d 900)
   Johnson, Chief Judge.

Thomas Cunrod appeals after being convicted of possessing marijuana with intent to distribute. Cunrod contends that the trial court committed reversible error by allowing the state to introduce: (1) evidence seized from his home pursuant to what he claims was a defective warrant; (2) testimony and a crime lab report identifying the substance as marijuana; and (3) incriminating statements he made while in police custody. Because each of these contentions is without merit, we affirm his conviction.

1. Cunrod asserts that the warrant authorizing the search of his apartment was not valid because it was altered by a police officer after the issuing judge signed it. We hold that the warrant was valid.

The record shows that a sergeant with the Houston County Sheriff’s Department prepared an affidavit and search warrant for Cunrod’s apartment. The documents correctly indicated that the premises to be searched were in Houston County, but the sergeant mistakenly typed “Peach Superior Court [,] Peach County, Georgia” in the heading of the affidavit, “Peach County’ below the magistrate’s signature on the bottom of the warrant, and “Peach County’ once in the body of the warrant. Without detecting the errors, he gave the affidavit and warrant to a second sergeant and investigator, who took the documents to the home of a Houston County magistrate.

The second sergeant noticed the errors and pointed them out to the magistrate before the magistrate reviewed the documents. The magistrate was satisfied with the probable cause aspect of the warrant and told the sergeant to strike out “Peach” and insert “Houston” on the documents, which the officer did before leaving the magistrate’s home.

After the warrant was executed, the sergeant who prepared the original documents presented the magistrate with a written inventory of the items seized in the search. The sergeant noticed that the search warrant signed days earlier still contained one reference to “Peach County.” He asked the magistrate what should be done about it. The magistrate told the sergeant that the documents contained too many corrections and that he wanted “something that looked better.” The sergeant created a new affidavit and warrant which contained the exact same information as the original documents, except that the county name was corrected. The investigator who signed the original affidavit was resworn by the magistrate and signed the new affidavit. The magistrate signed the new affidavit and warrant.

An officer may correct an error in a search warrant after it has been issued by obtaining authorization from the issuing magistrate. State v. Sanders, 155 Ga. App. 274, 275 (270 SE2d 850) (1980). Because the issuing magistrate authorized the changes, the officer acted properly in correcting the original documents.

Furthermore, the changes to the documents were reasonable under the facts presented here. The errors in the affidavit and warrant were clearly typographical and were not so material as to destroy the integrity of the affidavit or the validity of the warrant. See Scott v. State, 213 Ga. App. 84, 86 (1) (444 SE2d 96) (1994). There was never any question regarding the county in which the apartment was located or the county which the magistrate served, and any prudent officer executing the warrant would have been able to locate the premises definitely and with reasonable certainty. See Gumina v. State, 166 Ga. App. 592, 594 (2) (305 SE2d 37) (1983).

While we do not encourage officers to alter the contents of an affidavit or warrant after the warrant is issued, the type of changes made here, with the express authorization of the issuing magistrate, did not vitiate the warrant. See Jackson v. State, 130 Ga. App. 6, 7-8 (4) (202 SE2d 206) (1973); see generally Oliver v. State, 161 Ga. App. 567, 568 (1) (b) (287 SE2d 698) (1982). And, although the evidence as to the circumstances surrounding the making of the changes conflicted in some respects, this court will not disturb the trial court’s findings based upon conflicting evidence if there is any evidence to support them and will construe the evidence so as to uphold the trial court’s findings and judgment. See Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994). We note that because the original amended warrant upon which the search was based was valid, we need not decide whether the officers acted properly in creating, after the search, an affidavit and warrant which purported to replace the original documents. The trial court did not err in denying Cunrod’s motion to suppress.

2. Cunrod argues that the trial court erred in admitting into evidence the substance seized from his home and in admitting testimony and a lab report identifying the substance as marijuana. He claims the state failed to show that the general scientific principles and techniques involved in the testing were valid and reliable and that the technician performed the procedures in an acceptable manner.

A drug chemist from the state crime lab testified that she ran a series of tests on the substance recovered from Cunrod’s home, including microscopic, thin layer chromatography, and Duquenois-Levine tests. Based upon these tests, she concluded that the substance was marijuana.

Although the state did not introduce evidence showing that the scientific principles and techniques used were valid and reliable, the scientific evidence introduced in this case was not novel and has been widely accepted in Georgia courts. See, e.g., Hicks v. State, 228 Ga. App. 235, 238 (3) (494 SE2d 342) (1997); Burch v. State, 213 Ga. App. 392, 393 (444 SE2d 370) (1994); Ray v. State, 205 Ga. App. 866 (424 SE2d 13) (1992). The tests utilized here have also been recognized as reliable in a substantial number of courts elsewhere. See, e.g., Moore v. United States, 374 A2d 299 (D.C. App. 1977) (microscopic, thin layer chromatography, and Duquenois-Levine tests for the identification of marijuana have such standing and recognition among scientists that the results are admissible); People v. Escalera, 541 NYS2d 707 (City Crim. Ct. 1989) (Duquenois-Levine test generally accepted as reliable by experts and appellate courts); Ohio v. Anderson, Ottawa County Court of Appeals (6th Dist.), C.A. No. OT-83-27 (decided March 23, 1984) (Duquenois-Levine test generally accepted as a reliable test for identifying marijuana). Once a procedure has been recognized in a substantial number of courts, a trial judge may judicially notice, without taking evidence, that the procedure has been established with verifiable certainty. See Pye v. State, 269 Ga. 779, 786 (13) (505 SE2d 4) (1998).

As for whether the tests were performed in an acceptable manner, the trial court found that the witness who conducted the tests was an expert in her field, a finding to which Cunrod stipulated. And Cunrod established through cross-examination that the expert witness obtained the results in this case “through the scientific examination techniques [the state crime] laboratory utilizes as a routine matter.”

The trial court did not err in admitting the evidence. See Pruitt v. State, 270 Ga. 745, 749 (4) (514 SE2d 639) (1999).

3. Cunrod urges that his incriminating in-custody statements should not have been admitted because the statements were made while he was under the influence of marijuana. Due to his impairment, he argues, he was unable to make a knowing or intelligent waiver of his rights.

Whether a waiver is knowing, voluntary, and intelligent depends upon the totality of the circumstances. Bishop v. State, 268 Ga. 286, 287 (2) (486 SE2d 887) (1997). Because the issue of waiver depends on the totality of the circumstances, even an impaired person can validly waive his rights. See Shelby v. State, 265 Ga. 118, 119 (2) (453 SE2d 21) (1995).

In this case, one of the officers present during the interview testified that Cunrod appeared to be lucid and to understand what was happening. The other officer testified that Cunrod appeared not to be impaired and apparently understood what was going on. Before Cunrod made any statements, one of the officers read him his Miranda rights. Cunrod was then given a form entitled “YOUR RIGHTS,” which listed his Fifth Amendment rights. After reviewing the form, Cunrod signed his initials next to each one of the rights and signed his name beneath a paragraph stating that he had read and understood his rights, was willing to make a statement and answer questions, understood and knew what he was doing, was not promised anything, and was not threatened, pressured, or coerced. Significantly, as the trial court noted, at trial Cunrod was able to remember many details about the circumstances surrounding his arrest and the interview, a fact which belies his contention that he was so impaired that he did not know what was going on.

Decided December 14, 1999

Reconsideration denied January 7, 2000.

The Lucas Firm, Alex H. Morrow, for appellant.

Kelly R. Burke, District Attorney, Russell B. Mabrey, Jr., Assistant District Attorney, for appellee.

The state established to the trial court’s satisfaction that Cunrod was coherent at the time of questioning. The trial court’s finding that Cunrod’s statements were made with knowledge of his rights was neither clearly erroneous nor an abuse of discretion. See Sanborn v. State, 251 Ga. 169, 170 (2) (304 SE2d 377) (1983); Drake v. State, 231 Ga. App. 776, 779-780 (2) (501 SE2d 14) (1998).

Judgment affirmed.

McMurray, P. J., and Phipps, J., concur.


text:
    A99A2128.
    SHEPARD v. WINN DIXIE STORES, INC.
    (527 SE2d 36)
   Phipps, Judge.

Rosemary Shepard appeals the trial court’s order granting summary judgment to Winn Dixie Stores, Inc. in her slip and fall action. After conducting oral argument on Winn Dixie’s motion, the trial court issued a one-sentence order granting the motion for summary judgment. Because we find genuine issues of material fact remain with respect to Winn Dixie’s constructive knowledge of the hazard and Shepard’s exercise of reasonable care for her own safety, we reverse.

On July 14, 1997, Shepard entered a Winn Dixie supermarket in Tifton and walked to the back of the store. She then returned to the front of the store to get a shopping cart. As she was going through the produce section, she slipped and fell in a four-inch-wide puddle of water with small pieces of ice in it located next to a display of fruits and salads packed in ice. Shepard testified that there were no Winn Dixie employees in the area before she fell, but a store employee did see her while she was still on the floor. She does not claim that anyone actually saw her fall.

Shepard testified that she did not see the puddle before she fell and does not know how long it was there prior to her fall. She also testified that she does not look down when she walks. Instead, she was looking ahead at the time she fell. Shepard admits that if she had been looking down, she probably would have seen the puddle.

In support of its motion for summary judgment, Winn Dixie submitted an affidavit from its location manager, Warren Wohlgemuth. In his affidavit, Wohlgemuth stated that Winn Dixie has an inspection and cleaning policy that requires the floor to be swept and checked for foreign substances every 30 minutes. He also stated that the “procedure was being followed on July 14, 1997,” and that the floor where Shepard fell had been swept within 30 minutes prior to her fall. Wohlgemuth’s affidavit does not recite that it is based on his own personal knowledge. Nor does the affidavit state that Wohlge-muth was present on July 14, 1997, who actually performed the inspection procedures, or the basis for Wohlgemuth’s knowledge that the inspection procedures were followed on that day.

We review the trial court’s grant of summary judgment de novo to determine if the evidence demonstrates any genuine issue of material fact. To prevail, the moving party must demonstrate that there are no genuine issues of any material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, support 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 jury issue on at least one essential element of plaintiff’s case.”

1. To prove negligence in a slip and fall premises liability case, the plaintiff must show (1) the defendant had actual or constructive knowledge of the foreign substance and (2) the plaintiff lacked knowledge of the substance or for some reason attributable to the defendant was prevented from discovering it. Shepard presented no evidence that Winn Dixie had actual knowledge of the hazard which caused her fall. To establish constructive knowledge, Shepard must show that (1) a Winn Dixie employee was in the immediate area of the hazard and could have easily seen the substance or (2) the foreign substance remained long enough that ordinary diligence by Winn Dixie should have discovered it.

Because no Winn Dixie employees were in the immediate area when Shepard fell, she must use the second method of proving constructive knowledge.

“Constructive knowledge may be inferred when there is evidence that the owner lacked a reasonable inspection procedure. In order to prevail at summary judgment based on lack of constructive knowledge, the owner must demonstrate not only that it had a reasonable, inspection program in place, but that such program was actually carried out at the time of the incident.”

In addition, to withstand a motion for summary judgment, the plaintiff need not show how long the hazard had been present unless the owner has demonstrated its inspection procedures.

In the Wohlgemuth affidavit, Winn Dixie presented evidence of its general inspection procedures and the procedures utilized the day Shepard fell. Affidavits submitted in support of a motion for summary judgment must be based on personal knowledge. Although an affidavit need not expressly state that it is based on personal knowledge, it must at least reflect that its contents are rooted in the affi-ant’s personal knowledge and observation.

Wohlgemuth, as the store’s location manager, would almost certainly have personal knowledge of the general inspection procedures utilized by his store. But the same is not necessarily true with respect to the inspection procedures carried out on the day Shepard fell. Because Wohlgemuth’s affidavit does not recite that it is based on personal knowledge and the contents do not reflect that he observed or had personal knowledge of the inspection procedures carried out on that particular day, Winn Dixie failed to meet its burden.

Even if the Wohlgemuth affidavit was not defective, we cannot conclude as a matter of law that Winn Dixie’s inspection procedures were reasonable under the circumstances. The length of time the substance must remain on the floor before the owner should have discovered it and what constitutes a reasonable inspection procedure vary with each case, depending on the nature of the business, the size of the store, the number of customers, the nature of the dangerous condition, and the store’s location. When a supermarket fills a table with crushed ice and produce, knowing that customers will remove the produce and likely cause at least some ice to fall on the floor, it creates a potential hazard to customers that may be very difficult to see and avoid. Thus, an inspection may be required more frequently than every 30 minutes. Under these circumstances, we find that the reasonableness of Winn Dixie’s inspection procedures was for the jury to determine.

Decided December 7, 1999

Reconsideration denied January 7, 2000

Beauchamp & Associates, Robert M. Beauchamp, Patrick S. Eid-son, Mark G. Pitts, for appellant.

Clyatt, Clyatt & DeVaughn, Robert M. Clyatt, Carl G. Fulp III, Sandra K. Sanders, for appellee.

2. Winn Dixie contends Shepard failed to exercise reasonable care for her own safety because she was looking ahead when she fell instead of looking down at the floor. In Robinson v. Kroger Co., the Supreme Court of Georgia rejected any requirement that an invitee look continuously at the floor for defects because “the invitee is entitled to assume that the owner/occupier has exercised reasonable care to make the premises safe.” Shepard’s decision to look ahead instead of down as she was walking through the store does not establish her negligence as a matter of law.

Nor does the fact that Shepard probably could have seen the puddle if she had been looking down constitute a failure to exercise ordinary care as a matter of law. Under these circumstances, “the evidence does not plainly, palpably, and indisputably lead to the conclusion that [Shepard’s] placement of her foot on a site she had not previously inspected visually is an act . . .” that an ordinarily prudent person would not take in this situation. Winn Dixie was not entitled to summary judgment on this issue.

Judgment reversed.

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

        Howell v. Styles, 221 Ga. App. 781, 784 (4) (472 SE2d 548) (1996).

        Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

       (Emphasis omitted.) Id.

        Robinson v. Kroger Co., 268 Ga. 735, 736 (1) (493 SE2d 403) (1997).

        Brown v. Piggly Wiggly Southern, 228 Ga. App. 629, 631 (3) (b) (493 SE2d 196) (1997).

        Avery v. Cleveland Ave. Motel, 239 Ga. App. 644, 645-646 (2) (521 SE2d 668) (1999); see Ingles Markets v. Martin, 236 Ga. App. 810, 811 (513 SE2d 536) (1999); Straughter v. J. H. Harvey Co., 232 Ga. App. 29, 30 (1) (500 SE2d 353) (1998).

       Id.

       OCGA § 9-11-56 (e).

       See Edwards v. Campbell Taggart Baking Cos., 219 Ga. App. 806, 808 (2) (466 SE2d 911) (1996).

        J. H. Harvey Co. v. Reddick, 240 Ga. App. 466, 469 (1) (b) (522 SE2d 749) (1999); Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980).

       See Jones v. Krystal Co., 231 Ga. App. 102, 104-105 (d) (498 SE2d 565) (1998) (failure to inspect fast food restaurant during 20-minute period may be unreasonable).

        Robinson, supra at 743.

       Id.

       Id.


text:
    A99A2155.
    LATHAN v. THE STATE.
    (526 SE2d 350).
   Phipps, Judge.

James Lathan was convicted of first degree arson by knowingly causing fire damage to a dwelling house owned by Emily Rousey and leased to Chris Smith. Among other things, Lathan challenges the sufficiency of the evidence and the admission of testimony from Rousey concerning other instances of arson years before the one in this case. Finding the evidence sufficient and an absence of reversible error, we affirm.

The fire occurred in 1997. Lathan and Rousey are former spouses who divorced in 1982, when Rousey resided in the house she currently rents to Smith. Following the divorce, Lathan attempted to reconcile with Rousey, but she was beginning to date other men. On two occasions, fires were set at her house after Lathan had seen Rousey dating. Two other fires were also set at her house after the divorce. One of the four fires had been set with a plastic jug containing gasoline and a piece of a cloth towel used as a wick. The jug was found in a cardboard box in the utility room. Another fire was set in the crawl space of the house with a gasoline jug containing a candle.

The 1997 fire was also started in the utility room of the house, sometime before 2:00 a.m. The fire was started with a plastic milk jug containing gasoline and a cloth wick. The jug was in a cardboard box containing newspapers. Another jug with gasoline was found next to the box. The fire damaged a washer, dryer, and other property owned by Smith and valued at about $600 and required some repainting of the utility room. Rousey waived one month’s rent of $300 to help defray Smith’s losses and gave him some money to repaint.

Georgia Bureau of Investigation Agent Attaway interviewed Lathan and conducted a consent search of his barn and later his residence. In the barn, Attawáy found numerous small boxes very similar in appearance to the box in which the fire was set. Some of the boxes at Lathan’s residence bore similar type stamping and dates as the box found at the crime scene. Attaway also found a torn towel which had an unusual type of cross-stitching consistent with that found on the wick at the crime scene. In the refrigerator in Lathan’s kitchen, Attaway found a milk jug with labeling consistent with that on the jug used to set the fire. Lathan’s wife told police that there were three or four empty milk jugs on the back porch, but only one was found. Unidentified newspapers and a container of gasoline were also found.

A GBI microanalyst examined the towel found in Lathan’s bam and the wick found at the crime scene. He testified that both were made of cotton fibers and were similar in design, as both had matching grids and the hem on each was composed of similar pink polyester fibers. The microanalyst further testified that because the edges of the towel and wick were frayed, he could not fit them together so as to conclude that the wick definitely came from the towel. But he testified that “when you place the two together you can see where the towel and the wick were probably once one in the same.”

Lathan resides approximately 20 miles, a 25-minute drive, from the crime scene. Lathan’s wife informed Attaway that she had been with Lathan on the night of the fire but that she had gone to sleep at about midnight. She told Attaway that she did not believe that Lathan left the house later that evening, but she acknowledged that if he had done so “I cannot say if I would have heard him leave or not.”

1. Lathan challenges the sufficiency of the evidence to support the verdict on the ground that this is a case built on circumstantial evidence which does not exclude every reasonable hypothesis save that of guilt.

“Whether or not in a given case circumstances are sufficient to exclude every reasonable hypothesis save the guilt of the accused, is primarily a question for determination by the jury. This of necessity is so, for we have no legal yardstick by which we can ordinarily determine what in a given case is a reasonable hypothesis, save the opinion of twelve upright and intelligent jurors.” [Cits.] Only where the evidence is insupportable as a matter of law may the jury’s verdict be disturbed, even where the evidence is circumstantial. [Citji

We do not find the verdict in this case legally unsupportable. Viewed in a light most favorable to the verdict, the evidence authorized a rational trier of fact to find the essential elements of arson beyond a reasonable doubt.

2. Lathan charges the court with error in admitting certain hearsay testimony.

At trial, Lathan’s wife was asked whether she had stated when being interviewed by Attaway that she would not have known if her husband had gotten up during the night in question. She denied making such a statement. Attaway later testified that Lathan’s wife had told him that she would not necessarily have known if Lathan had left the house that night. Lathan now complains of the court’s overruling his hearsay objection to Attaway’s testimony. We find no error, as the witness’s out-of-court statement to Attaway was admissible as a prior statement inconsistent with her trial testimony.

3. Latean contends that the court erred in admitting Rousey’s testimony concerning the earlier fires at her house without (a) comparing the probative value of this testimony to its prejudicial effect, and (b) giving a limiting instruction to the jury.

(a) Generally, where the State seeks to admit evidence of similar transactions, the court must conduct a pretrial admissibility hearing at which it determines, among other things, whether the prejudicial effect of the testimony is outweighed by its probative value. But Wall v. State held that this pretrial procedure is not required where, as here, the State seeks to prove transactions which are alleged to have arisen out of prior difficulties between the defendant and victim. Consequently, the burden was on Lathan to object to Rousey’s testimony on grounds of prejudice outweighing probity. Because no such objection was made, the issue has been waived.

(b) Wall does, however, hold that admission of evidence of prior difficulties between the parties should be accompanied by an instruction from the judge explaining the limited use to which the jury may put such evidence. Here, the court did give such an instruction albeit in its general charge to the jury. Certainly in the absence of a request, failure to give the instruction at the time the evidence was introduced does not constitute reversible error.

4. Lathan next complains of the limiting instruction given in the general charge on the ground that there was insufficient evidence to tie him to the earlier fires.

The evidence concerning the similarity of the materials used in both the earlier and the 1997 fires and those found in Lathan’s barn, together with Rousey’s testimony showing that two of the fires were set at specific times when Lathan could have had a motive to start them, was sufficient to establish by a preponderance of the evidence that Lathan set the earlier fires.

5. Finally, Lathan contends that the court erred in ordering him to pay restitution to Rousey and Smith without holding a hearing and entering written findings.

Immediately after the guilty verdict was announced, the court without objection proceeded to consider the matter of sentencing. The prosecutor thereupon recommended that as a condition of probation, Lathan be ordered to pay restitution to Rousey and Smith in the amounts later ordered by the court. Defense counsel acknowledged that Lathan was gainfully employed, was able to pay reasonable court-ordered sums, and that restitution would be appropriate. Contrary to arguments advanced by Lathan, a sentencing hearing was thus held, and under the circumstances, the absence of written findings does not require a remand.

Decided December 3, 1999

Reconsideration denied January 7, 2000

Leo E. Benton, Jr., for appellant.

Michael H. Crawford, District Attorney, William C. Akins, Assistant District Attorney, for appellee.

Judgment affirmed.

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

        Wilson v. State, 230 Ga. App. 271, 273 (2) (495 SE2d 894) (1998).

       See Kovacs v. State, 227 Ga. App. 870 (1) (490 SE2d 539) (1997).

       See, e.g., Berry v. State, 268 Ga. 437, 438 (1) (490 SE2d 389) (1997).

       See Hightower v. State, 210 Ga. App. 386, 387 (1) (436 SE2d 28) (1993).

       269 Ga. 506, 509 (2) (500 SE2d 904) (1998).

       Id.

       Cf. State v. Belt, 269 Ga. 763 (505 SE2d 1) (1998).

       See Freeman v. State, 268 Ga. 185, 188 (4) (486 SE2d 348) (1997).

       See Cannon v. State, 246 Ga. 754, 755-756 (3) (272 SE2d 709) (1980); compare Patterson v. State, 161 Ga. App. 85, 86 (5) (289 SE2d 270) (1982).


text:
    A99A2203.
    MEADOWS v. BARKER et al.
    (526 SE2d 643)
   Johnson, Chief Judge.

Jason Barker and Candace Barker constructed a driveway on their property in Floyd County. W. D. Meadows, the owner of the property north of the Barkers’ lot, sued the Barkers in superior court, alleging that the driveway was on his property and asking that the court determine the location of the boundary line between the southern edge of his property and the northern edge of the Barkers’ property. The court appointed a special master, who held an evidentiary hearing on the matter. After the hearing, the special master issued his report in favor of the Barkers, finding that the boundary line is located farther north than Meadows claims. The superior court adopted the special master’s report as its own order. Meadows appeals from the court’s order.

1. Meadows argues that at the hearing the special master erred by allowing the Barkers to introduce three plats and a contract because the Barkers had not shown any of those documents to Meadows before the hearing as required by a prehearing discovery agreement. In support of his argument, Meadows cites D. Jack Davis Corp. v. Karp, in which this court upheld a trial court’s exclusion of a document not listed in a pretrial order.

Meadows’ reliance on that case is misplaced because here, unlike Karp, no prehearing order was actually entered. Although the parties held a prehearing conference with the special master, no binding prehearing order was written, let alone signed, by the parties or the special master. Any discovery agreement that Meadows thought he and the Barkers may have reached at the conference had no effect as an enforceable prehearing order without the signature of the special master.

Moreover, the general rule is that when at trial a party offers evidence which should have been disclosed during discovery, exclusion of the evidence is not the authorized sanction. Instead, the proper sanction is to order a postponement or a mistrial. So even if the documents proffered by the Barkers should have been disclosed to Meadows pursuant to a valid prehearing discovery agreement, the harsh sanction of excluding those documents would not have been authorized because the special master could have instead ordered a continuance to give Meadows time to look at the documents. Meadows, however, did not move for a continuance and instead insisted only on the exclusion of the documents.

The special master in a quiet title action has the right to require the parties to file pertinent evidence. In the instant quiet title case, the special master properly exercised that right by allowing the Barkers to introduce the pertinent plats and contract, all of which provide some evidence of the location of the boundary line in dispute.

2. Meadows further contends that the special master erred in admitting two of the aforementioned plats because they were not properly authenticated. Even if the admissibility of a plat is doubtful, the plat should be admitted for whatever it may be worth to the factfinder, not as original evidence, but as nothing more than a pictorial representation of a matter about which a witness has testified. Here, the special master did not err in admitting the plats because the Barkers presented testimony about the location of the boundary line, and the plats were nothing more than pictorial representations supporting such testimony.

3. Meadows claims that the special master violated the rule of sequestration, which had been invoked at the start of the hearing, by allowing Sharon Barker, Jason Barker’s mother, to testify after having been present in the hearing room during prior testimony. The claim is without merit because a violation of the rule of sequestration affects only a witness’ credibility and does not render a witness incompetent to testify. Moreover, any ruling allowing an exception to the rule was fully within the special master’s discretion and cannot be reversed absent an abuse of that discretion. The special master did not abuse his discretion by allowing Sharon Barker to testify briefly — her entire testimony takes up approximately two pages of the hearing transcript — about how she came into possession of one of the plats discussed above.*

4. Meadows complains that the special master improperly allowed the Barkers’ attorney to testify during the hearing. The complaint mischaracterizes what took place during the hearing. All of the alleged instances of attorney testimony cited in Meadows’ brief are nothing more than appropriate arguments being made by the attorney regarding the admissibility of documents. The complaint is specious.

5. Meadows claims that the special master erred in allowing witness Freeman Davenport to give hearsay testimony about a conversation he had with a now-deceased previous owner of the property in question. Again, Meadows mischaracterizes what occurred at the hearing.

When Davenport began describing his conversation with the previous owner, Meadows objected, and the lawyers had a lengthy argument about the admissibility of the conversation. The special master indicated that the witness should not testify about direct quotes from the conversation. Thereafter, on direct examination, Davenport did not give any hearsay testimony about the conversation. Contrary to Meadows’ claim, the special master did not allow hearsay testimony.

Moreover, even if Davenport’s testimony concerning his understanding of the location of the boundary line was based in part on hearsay from the prior landowner, his testimony was admissible as competent evidence of an ancient landmark or private boundary.

6. Meadows’ challenge to the sufficiency of the evidence supporting the special master’s findings is without merit. In a quiet title action, the findings of the special master which are adopted by the trial court will be upheld unless clearly erroneous. In this case, there was substantial testimony and documentary evidence to support the special master’s findings that the boundary is in the location claimed by the Barkers, not the location claimed by Meadows. Because the findings are not clearly erroneous, they must be upheld.

Decided December 8, 1999

Reconsideration denied January 7, 2000

Robert N. Farrar, for appellant.

Barkley & Garner, Larry J. Barkley, for appellees.

Judgment affirmed.

McMurray, P. J., and Phipps, J., concur.

       175 Ga. App. 482, 486 (6) (333 SE2d 685) (1985).

       See Myers v. Myers, 195 Ga. App. 529, 531 (6) (394 SE2d 374) (1990).

       See Wilson Foods Corp. v. Turner, 218 Ga. App. 74, 77 (3) (460 SE2d 532) (1995).

        Wilson v. Southern R. Co., 208 Ga. App. 598, 603 (3) (431 SE2d 383) (1993).

       See Wilson Foods Corp., supra.

       OCGA § 23-3-64; Woelper v. Piedmont Cotton Mills, 266 Ga. 472, 473 (1) (467 SE2d 517) (1996).

        Dept. of Transp. v. Edwards, 267 Ga. 733, 738 (3) (482 SE2d 260) (1997); Clark v. Stafford, 239 Ga. App. 69, 70 (1) (522 SE2d 6) (1999).

       See Purcell v. C. Goldstein & Sons, Inc., 264 Ga. 443, 444 (1) (448 SE2d 174) (1994).

        Bean v. Landers, 215 Ga. App. 366, 369 (3) (450 SE2d 699) (1994).

        Simonds v. Conair Corp., 185 Ga. App. 664, 665 (2) (365 SE2d 507) (1988).

       See generally Monroe v. Kersey, 207 Ga. App. 108 (4) (427 SE2d 80) (1993).

       See Resseau v. Bland, 268 Ga. 634, 636 (2) (491 SE2d 809) (1997).

        Penn v. McElheney, 191 Ga. App. 465, 466 (382 SE2d 185) (1989).


text:
    A99A2481.
    PARKMAN v. THE STATE.
    (526 SE2d 640)
   Johnson, Chief Judge.

Kevin Parkman and Wade Gomillion accosted a couple walking in Augusta. Parkman punched the man in the face while Gomillion pointed a gun at the woman and took her backpack. Parkman and Gomillion then ran from the area with the backpack, and the couple reported the assaults to a nearby police officer. A short time later, that officer and others found and arrested Parkman and Gomillion.

Parkman and Gomillion were indicted for armed robbery, aggravated assault, and possession of a firearm during the commission of the armed robbery. Gomillion was also charged with giving a false name. After a jury trial, Parkman was convicted of armed robbery and aggravated assault but acquitted of possessing a firearm during the armed robbery. Gomillion was convicted of all the charges.

Gomillion’s convictions were upheld in Gomillion v. State. Parkman now appeals, challenging a jury recharge by the court, the admission into evidence of his statement to police, and the legality of the armed robbery verdict. He also requests a remand to the trial court for a hearing on the effectiveness of his trial counsel. Because none of the challenges nor the remand request is meritorious, we affirm his convictions.

1. Parkman claims the court erred when it recharged the jurors that they must unanimously find him not guilty of armed robbery before considering the lesser included offense of robbery and that the court improperly defined robbery during the recharge. But when the judge asked Parkman’s attorney if he was satisfied with the recharge, the attorney stated that he was satisfied and he did not reserve any later exceptions to the charge. Parkman therefore waived the right to object to the recharge on appeal.

Moreover, even if Parkman had not waived appellate review of the recharge, he has shown no basis for reversal. Although it is error to require a jury to unanimously agree on the greater offense before considering the lesser included offense, contrary to Parkman’s claim, the trial court imposed no such requirement in this case. Rather, a review of the entire charge and recharge reveals that, among other things, the court properly instructed the jurors on the possible verdicts, the need for a unanimous verdict, the charged offense of armed robbery, and the lesser included offense of robbery. The court never insisted that the jury unanimously reach a verdict on the greater offense before considering the lesser one. Also, contrary to Parkman’s claim, the court accurately gave the statutory definition of robbery. We find no reversible error in the recharge.

2. Parkman contends that the court erred in admitting into evidence his taped statement to a sheriff’s investigator because the statement was not freely and voluntarily given. Parkman’s attorney, however, did not object either to the court’s finding that the statement was voluntary and admissible or to the playing of the taped statement to the jury. Parkman therefore failed to preserve the issue of the statement’s admissibility for appellate review.

Furthermore, the waiver of rights form signed by Parkman, the testimony of the officer who interviewed Parkman, and the transcript of the statement all support the trial court’s finding that Parkman gave the statement freely and voluntarily. The court did not err in admitting the statement into evidence.

3. In his third assertion of error, Parkman states that the guilty verdict as to armed robbery is void and illegal. His argument in support of this assertion is unclear, but it appears he is claiming that the jury’s verdict, guilty of armed robbery but not guilty of possessing a firearm during the commission of the armed robbery, is inconsistent and therefore impermissible. The argument is without merit.

The pertinent facts of the instant case are identical to those in Varnadoe v. State. Just as there was evidence in that prior case that Vamadoe participated in an armed robbery but did not wield a gun during the crime, the evidence in the instant case proved that although Parkman did not hold the gun, he helped accomplish the armed robbery by punching the male victim while Gomillion took the backpack from the female victim. Also, as in Vamadoe, the court in the present case instructed the jury on the law of parties to a crime. Thus, the jury was authorized to find Parkman guilty of armed robbery as a party to the crime but not guilty of actually possessing the weapon.*

Decided December 8, 1999

Reconsideration denied January 7, 2000

Dwight L. Thomas, for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

4. Parkman asks us to remand the case to the trial court for an evidentiary hearing on his claim of ineffective assistance of counsel. A remand in this case would be inappropriate.

After the trial, Parkman obtained a new attorney to represent him on appeal. Parkman’s new attorney moved for a new trial, alleging, among other things, ineffective assistance of trial counsel. A hearing was held on the motion for a new trial. At the hearing, Parkman’s attorney argued that trial counsel was ineffective, but he did not call trial counsel to testify, and he did not present any other evidence regarding the matter. The court subsequently denied the new trial motion. Parkman is now represented on appeal by the same attorney who represented him at the new trial hearing.

Under these circumstances, Parkman’s appellate counsel has already had the opportunity to present evidence to the trial court on the issue of ineffective assistance of counsel. By failing to take advantage of that opportunity at the hearing, after which the court ruled on the new trial motions, Parkman is now barred from another chance at an evidentiary hearing. The request for a remand is without merit.

Judgment affirmed.

McMurray, P. J., and Phipps, J., concur.

       236 Ga. App. 14 (512 SE2d 640) (1999).

       See Johnson v. State, 236 Ga. App. 764, 766 (3) (513 SE2d 291) (1999); Robertson v. State, 225 Ga. App. 389, 390 (2) (484 SE2d 18) (1997).

       See Piefer v. State, 228 Ga. App. 385, 386 (2) (491 SE2d 836) (1997).

       Compare Cantrell v. State, 266 Ga. 700 (469 SE2d 660) (1996); Kunselman v. State, 232 Ga. App. 323, 324-325 (1) (501 SE2d 834) (1998).

       See OCGA § 16-8-40.

       See Carter v. State, 235 Ga. App. 260, 261 (2) (510 SE2d 539) (1998).

       See Bishop v. State, 268 Ga. 286, 287-288 (2) (486 SE2d 887) (1997); Gadson v. State, 197 Ga. App. 315-316 (1) (398 SE2d 409) (1990).

       227 Ga. App. 663, 664-665 (2) (490 SE2d 517) (1997).

       id.

       See OCGA § 16-2-20.

        Varnadoe, supra.

        See Rucker v. State, 270 Ga. 431, 435-436 (6) (510 SE2d 816) (1999); Baldwin v. State, 217 Ga. App. 866, 867 (1) (460 SE2d 80) (1995).


text:
    A00A0210.
    U. S. FILTER DISTRIBUTION GROUP, INC. v. BARNETT et al.
    (526 SE2d 912)
   Johnson, Chief Judge.

We granted U. S. Filter Distribution Group, Inc.’s (“U. S. Filter”) motion for interlocutory review to determine whether the time computation method adopted in OCGA § 1-3-1 (d) (3) applies to the filing of materialman’s liens. We conclude that it does not and affirm the trial court’s denial of U. S. Filter’s motion for summary judgment.

This case involves a suit to foreclose a materialman’s lien. The record shows that Ranger Construction contracted with Jimmy Barnett and Buckeye Land & Timber Company, Inc. (“Barnett and Buckeye”), the appellees, to install a water system in connection with the development of a residential subdivision. Ranger Construction installed the subdivision’s water system pipes, valves and fire hydrants. U. S. Filter supplied the materials Ranger Construction used to install the water system.

By December 9, 1996, Ranger Construction had installed the complete water system except for three of the eleven fire hydrants required by the local governmental authorities. Ranger Construction installed the valves to which the three fire hydrants would be connected so that chemical testing of the system could be performed. The system was tested on December 9, 1996, and approved by the City of Jefferson. Based on this approval, Barnett and Buckeye made its final payment to Ranger Construction.

On January 20, 1997, U. S. Filter delivered the final three fire hydrants which were installed by Ranger Construction in early February. When Ranger Construction failed to pay for the materials supplied by U. S. Filter, U. S. Filter recorded a materialman’s lien on Barnett and Buckeye’s property. This lien was recorded on April 21, 1997.

U. S. Filter sued Barnett and Buckeye to foreclose on the materi-alman’s lien. The trial court denied its motion for summary judgment, finding, in part, that U. S. Filter failed to file its property lien within the three-month time limit required by the lien statute. OCGA § 44-14-361.1 (a) (2). This denial of summary judgment must be affirmed if it is right for any reason. See Phinazee v. Interstate Nationalease, 237 Ga. App. 39, 40 (514 SE2d 843) (1999).

1. In its order, the trial court finds that U. S. Filter failed to file its lien within the required three-month period because (1) there is no evidence that a contract existed between Ranger Construction and Barnett and Buckeye after the water system was approved on December 9, 1996, and (2) there is no evidence that the fire hydrants delivered on January 20, 1997, were ordered prior to December 9, 1996. In our de novo review of the record, we have found evidence showing that the fire hydrants at issue were ordered prior to December 9, 1996, and that Barnett and Buckeye contracted with Ranger Construction for the installation of eleven fire hydrants, including the three delivered on January 20, 1997. However, we need not delve into this issue because regardless of any contract and regardless of when the fire hydrants were ordered, it is undisputed that the final three fire hydrants were delivered on January 20, 1997. This being the case, the lien filed by U. S. Filter on April 21, 1997, was not timely filed.

OCGA § 44-14-361.1 (a) (2) specifically provides that liens must be filed “within three months after the material or machinery is furnished.” In this case, the final delivery of the material was January 20,1997. Thus, U. S. Filter needed to file its lien within three months of January 20, 1997. It is undisputed that the lien was not filed until April 21, 1997.

U. S. Filter argues that the trial court erred in failing to apply the time computation method of OCGA § 1-3-1 (d) (3) to the three-month recording requirement of OCGA § 44-14-361.1 (a) (2). This time computation would have allowed U. S. filter to file its lien after the three-month period expired because the three-month period expired on a weekend. Because the lien statute is in derogation of common law and is strictly construed, we find that it falls within the exception provided in OCGA § 1-3-1 (d) (3).

In effect, a materialman’s lien allows the transfer of liability from the person who actually contracted with the materialman for materials to be used in improving real estate to the owner of the improved property, even though that property owner has no relationship with the materialman. Consequently, both the Supreme Court and this court have consistently held that the materialman’s lien statute is in derogation of common law and must be strictly construed in favor of the property owner and against the materialman. Palmer v. Duncan Wholesale, 262 Ga. 28, 29-30 (1) (413 SE2d 437) (1992); Womack Indus. v. B & A Equip. Co., 199 Ga. App. 660, 661 (1) (405 SE2d 880) (1991). We have specifically held that the intent of OCGA § 44-14-361.1 as to timely filing of liens is to establish a time certain beyond which liens cannot be filed for the protection of the contracting parties and innocent third parties. Womack Indus., supra.

Contrary to U. S. Filter’s argument, Davis v. Desa Intl., 209 Ga. App. 318 (433 SE2d 410) (1993), is not analogous to this case. In Davis, we held that the time computation method in OCGA § 1-3-1 (d) (3) applies to the requirement that personal injury actions must be brought within two years after the right of action accrues. We concluded that the exception for “ ‘time period computations specifically applying to other laws’ ” did not apply because the statute addressing personal injury actions did not itself provide for any method of computing the two-year period provided within the statute. Davis, supra at 319. However, the statute addressing personal injury actions is not in derogation of common law and is not strictly construed.

Decided December 14, 1999

Reconsideration denied January 7, 2000

McCorkle, Pedigo & Johnson, David H. Johnson, Kenneth P. Johnson, for appellant.

Barry L. Fitzpatrick, for appellees.

While there is no specific method of time computation provided for in the lien statute itself, we refuse to extend the filing requirement by imposing the method of time computation prescribed in OCGA § 1-3-1 (d) (3). The materialman’s lien statute requires that a lien be filed “within three months.” Strictly construed, U. S. Filter’s lien filing did not meet this statutory requirement. The trial court correctly denied U. S. Filter’s motion for summary judgment.

2. Based on our holding in Division 1, we need not reach U. S. Filter’s remaining assertion of error.

Judgment affirmed.

McMurray, P. J, and Phipps, J., concur.