text:
    A91A0271.
    LEE v. DEPARTMENT OF TRANSPORTATION.
    (402 SE2d 551)
   Andrews, Judge.

After the Department of Transportation condemned a portion of land owned by Lee, we reversed a jury verdict for the value of the land because the trial court erroneously excluded evidence of consequential damages to the remaining property. Lee v. Dept, of Transp., 191 Ga. App. 1 (380 SE2d 726) (1989). The case was retried before a judge. Lee appeals from the judgment entered on retrial, claiming the trial court violated the law of the case rule by making findings of fact and conclusions of law with respect to consequential damages at odds with our previous ruling in Lee. See OCGA § 9-11-60 (h) (abolishing law of case rule except as applied to rulings by one of the appellate courts); Continental Corp. v. Dept, of Transp., 185 Ga. App. 792, 793 (366 SE2d 160) (1988).

The law of the case is the “controlling legal rule established by a previous decision between the same parties in the same case.” Bradley v. Tattnall Bank, 170 Ga. App. 821, 822 (318 SE2d 657) (1984). “However, the principle only establishes the law of the case in its then existing evidentiary posture.” (Emphasis omitted.) Modern Roofing &c. Works v. Owen, 174 Ga. App. 875 (332 SE2d 14) (1985). “ ‘[A] 11 questions as to pleadings and the effect of evidence adjudicated [by the previous decision] are binding as the law of the case on this court and, on a second trial of the case, in the court below, unless additional pleadings and evidence prevail to change such adjudications.’ ” Monroe Motor Express v. Jackson, 76 Ga. App. 280, 281 (45 SE2d 445) (1947).

We find no violation of the law of the case rule. First, the evidentiary posture of this case with respect to consequential damages has changed. Although we noted in Lee that evidence of consequential damages had been presented, we made no determination as to damages, holding only that the trial court had erroneously excluded this evidence. The judgment in the present appeal refers to findings of fact and conclusions of law based on evidence of consequential damages, or the lack of such evidence, considered by the judge on retrial. Second, because Lee expressly designated that no transcript of the evidence and proceedings on retrial be filed, even if portions of the judge’s findings and conclusions on retrial appear contrary to our determination in Lee, we must assume that any differences were supported by additional evidence or pleadings considered by the judge. Butler v. First Family Mtg. Corp., 191 Ga. App. 360, 361 (381 SE2d 551) (1989); Hunnicutt v. Hunnicutt, 182 Ga. App. 578, 579 (356 SE2d 679) (1987).

Decided February 25, 1991.

Thomas L. Washburn III, for appellant.

Weiner, Dwyer & Yancey, J. Matthew Dwyer, Jr., Carmen D. Smith, Michael J. Bowers, Attorney General, Roland F. Matson, Senior Assistant Attorney General, for appellee.

Judgment affirmed.

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


source: Caselaw Access Project

author: Andrews, Judge.

license: Public Domain

text:
    A91A0386.
    STONICA v. STATE FARM FIRE & CASUALTY COMPANY.
    (402 SE2d 553)
   Andrews, Judge.

Stonica sued Elrod for slander. State Farm, which insured Elrod under a homeowner’s policy, brought a declaratory judgment action against its insured and Stonica, seeking to establish that the policy provided no coverage for the slander claim. Stonica filed a timely answer to the declaratory judgment action, but Elrod did not. The trial court entered an order granting judgment by default to State Farm against Elrod, and declaring that the policy afforded no coverage on the slander claim. Stonica appeals claiming the default judgment against Elrod operated as an erroneous final judgment against him on the merits of the declaratory judgment action.

Stonica has no standing to bring this appeal because the default judgment does not adversely affect him as a co-defendant. Avis Rent a Car System v. Rice, 132 Ga. App. 857, 858 (209 SE2d 270) (1974). The default operates as an admission by Elrod of the truth of the factual allegations in State Farm’s complaint, and bars her from litigating the merits of the claim. Id. at 858; Fred Chenoweth Equip. Co. v. Oculus Corp., 254 Ga. 321, 323 (328 SE2d 539) (1985). See also Town of Thunderbolt v. River Crossing Apts., 189 Ga. App. 607, 608-609 (377 SE2d 12) (1988) (holding that entry of a default judgment pursuant to OCGA § 9-11-55 (a) in a declaratory judgment action was proper). However, the declaratory judgment entered by default against Elrod is not binding against Stonica, nor is it evidence that can be used by State Farm to obtain a judgment against Stonica. Peek v. Southern Guaranty Ins. Co., 240 Ga. 498, 499 (241 SE2d 210) (1978).

Decided February 25, 1991.

Cramer, Weaver & Edwards, Christopher C. Edwards, for appellant.

Bec.k, Owen & Murray, Samuel A. Murray, James R. Fortune, Jr., Long, Weinberg, Ansley & Wheeler, Quinton Seay, Alan L. Newman, for appellee.

Moreover, this is not a directly appealable final judgment since it adjudicates the rights and liabilities of less than all the parties, and the trial court made no express determination and direction for entry of such judgment pursuant to OCGA § 9-11-54 (b). First Union Nat. Bank v. Cumberland Creek Country Club, 194 Ga. App. 332, 333 (390 SE2d 422) (1990).

Appeal dismissed.

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


author: Sognier, Chief Judge.

text:
    A90A1755.
    HICKEY v. ASKREN.
    (403 SE2d 225)
   Sognier, Chief Judge.

Kathy Hickey brought suit against Edward Askren III, M.D., in June 1989 alleging medical malpractice, battery, and intentional infliction of emotional distress on the basis that his treatment of her rendered her so dependent on him that she submitted to sexual relations with him on two instances in 1981. Askren moved for summary judgment' on the basis that the statute of limitation had run on Hickey’s claims. The trial court granted the motion, and Hickey appeals.

The record establishes that appellant was referred to appellee by a state agency and became his patient in July 1978. Appellant admitted in her deposition that she ceased being appellee’s patient in late 1981 after engaging in the second instance of sexual contact with appellee (the first instance having occurred shortly before). Appellant also admitted in her deposition that within a year after the sexual contact, she had informed a doctor of internal medicine and three mental health professionals that she had engaged in sexual contact with appellee. The record also contains a biography she submitted in 1983 to qualify for mental health treatment at Emory University in which she noted that “[a]fter three years of intense psychotherapy [with appellee, I] had sex with him & never saw him again.” After detailing the extensive mental health treatment she received following her contact with appellee, appellant noted that she had “made casual comments to these various therapists” about her treatment with appellee and the sexual contact she had had with him. She stated that until late 1988 she “simply was not aware of the extent” of the harm she allegedly experienced as a result of appellee’s treatment and the sexual contact with him. In her affidavit appellant averred that she telephoned appellee often between 1981 and 1989 and “tried to ask him about our relationship. [Appellee] never revealed to me that his conduct was in any way wrongful, and I understood from our conversation that he thought everything about our relationship was normal.” During the intervening years the record reveals that appellant executed a lease for an apartment she has maintained, has been gainfully employed at various establishments (although her work has been interrupted by extended periods of physical illness, such as severe chicken pox and gynecological ailments), that she has a driver’s license and drives an automobile, and that she reads extensively and socializes with friends. It is uncontroverted that appellant has never been declared legally incompetent, and no legal guardian has ever been appointed for her.

1. Appellant contends the trial court erred by holding that her claims against appellee are time barred. As to appellant’s battery claim (as distinguished from her malpractice claim), we affirm the trial court’s ruling because the record is uncontroverted that the sexual contact which formed the basis for appellant’s battery claim occurred in 1981. Therefore, because that claim is governed by OCGA § 9-3-33, setting forth a two year limitation period for the bringing of actions based on injuries to the person, see generally Gowen v. Carpenter, 189 Ga. App. 477, 478 (1) (376 SE2d 384) (1988), it is barred. Likewise, since the alleged unlawful acts causing the damage to appellant (appellee’s alleged malpractice and the batteries) ended in 1981 and resulted in some damage to appellant at that time, appellant’s cause of action for intentional infliction of emotional distress accrued in 1981, regardless how slight the actual damage may then have been, see Adams v. Emory Univ. Clinic, 179 Ga. App. 620, 621-622 (347 SE2d 670) (1986), and that claim is also time barred under OCGA § 9-3-33. Id.

2. In support of her enumeration that the trial court erred by granting appellee’s motion for summary judgment as to her malpractice claim, appellant asserts that the malpractice statute did not begin to run until 1988 either because she did not discover the injury caused by appellee’s alleged malpractice and sexual contact until then, see OCGA § 9-3-71 (a), or that appellee’s alleged malpractice comes within the theory of continuing tort. We find no merit in either of these arguments.

(a) As noted above, appellant has admitted that appellee’s treatment of her ended in 1981. Thus, the statute of limitation applicable was former OCGA § 9-3-71, which provided that “an action for medical malpractice shall be brought within two years after the date on which the negligent or wrongful act or omission occurred,” and the discovery rule as embodied in the current statute, OCGA § 9-3-71 (a), enacted in 1985, does not apply. (We note that this is not an instance in which all injury resulting from the alleged malpractice did not manifest itself until more than two years after the negligent act so as to render application of that statute constitutionally invalid under the ruling in Shessel v. Stroup, 253 Ga. 56 (316 SE2d 155) (1984).) The record clearly establishes that appellant was aware of the fact that the doctor/patient relationship existing between the parties had culminated in two instances of sexual contact, and was aware enough of the import of that contact to relate it to numerous other mental health professionals in the course of her treatments with them. While there is evidence in the record to support appellant’s claim that she was not aware of the extent of the harm she allegedly experienced as a result of appellee’s treatment and the sexual contact with him until late 1988, the record does not raise any questions of fact whether appellant knew about the nature of appellee’s treatment of her, the sexual contact to which that treatment allegedly led, and the impact to some degree of that negligent treatment on her mental health. Compare Lorentzson v. Rowell, 171 Ga. App. 821 (321 SE2d 341) (1984) (question whether statute tolled by doctor’s evasion regarding plaintiff’s eye difficulties); Stephen W. Brown Radiology Assoc, v. Gowers, 157 Ga. App. 770, 773-775 (1) (278 SE2d 653) (1981) (statute tolled because patient could not have learned of negligent radiation treatment during recovery period from side effects). Thus, we cannot agree with appellant’s argument that any question of fact exists that appellant was so completely unaware of any harm caused her by appellee’s alleged negligent treatment of her and the sexual contact between them that the statute did not begin to run until 1988.

(b) We decline appellant’s invitation to apply the theory of continuing tort to claims such as those she alleges against appellee. “A continuing tort is one inflicted over a period of time. [Cit.]” Bitterman v. Emory Univ., 175 Ga. App. 348 (1) (333 SE2d 378) (1985). The fact that appellant may not have recognized, or discovered, the full impact of the alleged harm until 1988 does not obviate the fact that her exposure to the tortious acts producing the injury, i.e., the sexual contact and medical malpractice, ceased in 1981, compare Everhart v. Rich’s, Inc., 229 Ga. 798, 802 (194 SE2d 425) (1972) (continuing tort theory extended to apply to cases of damage from unknown hazard until continuing exposure to act producing injury is eliminated), and thus her reliance on the discovery rule here is misplaced. Bitterman, supra. We note that there is no evidence that appellee’s therapy for appellant included the use of drugs, hypnosis, or any other treatment whereby appellant may have incurred damage without her knowledge, so as to render this case analogous to situations which occur when a patient’s injury has been concealed by the fraud of the tortfeasor. See Schmidt v. Pames, 194 Ga. App. 622, 623 (1) (391 SE2d 459) (1990). .

3. Appellant also argues that the statute of limitation on her malpractice claim was tolled pursuant to OCGA § 9-3-96 based on appellee’s alleged fraudulent misrepresentations to appellant in the form of the telephone conversations outlined above. In view of the uncontroverted evidence adduced in the record, we do not agree with appellant that this argument presents a basis for reversing the trial court’s grant of summary judgment to appellee. Appellant’s extensive history of treatment for her mental problems after ending contact with appellee and her frank recital to successive mental health professionals about her former contact with appellee establishes that no question of fact exists that neither appellee’s treatment and contact with appellant up to 1981 nor his later telephonic communications with her thereafter deterred appellant from seeking appropriate medical treatment elsewhere or prevented her from providing those subsequent therapists with all the facts on which her malpractice claim against appellee is based so as to toll the statute under OCGA § 9-3-96. See Rowell v. McCue, 188 Ga. App. 528, 530-531 (373 SE2d 243) (1988).

4. Appellant’s final argument is that a question of fact exists whether the statute was tolled by appellant’s mental incompetency under OCGA § 9-3-90, with the alternative argument that Georgia courts should recognize the theory of tortiously induced incompetence as set forth in cases like Dundon v. United States, 559 FSupp. 469 (ED NY 1983) (although mental incompetency does not toll statute of limitation in 28 USC § 2401 (b), statute is tolled while patient in coma allegedly induced by tortious act of government doctors). Regardless which version of the tolling statute is applied, see Chapman v. Burks, 183 Ga. App. 103, 104 (1) (357 SE2d 832) (1987), “ ‘[t]he test for mental incapacity is not whether one did not manage his own affairs, acquiescing in the management thereof by others, or whether one has merely managed his affairs unsuccessfully or badly. That one was not “bright” or not clear about some matters occurring during the period is not evidence of mental incompetency. [Cit.] The test is one of capacity — whether the individual, being of unsound mind, could not manage the ordinary affairs of his life. [Cit.] . , . (It means) an individual lacking in the capacity to manage his own affairs.’ ” Id. at 105. Although appellant’s deposition testimony raises questions of fact whether there were periods after 1981 during which she was unable to manage her own affairs, particularly during illness and hospitalization, even construing the evidence in her deposition mostly favorably in her behalf, see generally Thacker v. Matthews Tuxedo, 183 Ga. App. 474, 475 (359 SE2d 231) (1987), these periods would not encompass the five and one half years (outside of the two years before the limitation period expired) which had to be tolled in order to maintain the current suit. Although appellant stated in her affidavit that she was mentally incapable of bringing a legal action against appellee before January 1989, her averment that she was unable to function on a day-to-day basis throughout the seven and one half years since her cause of action arose is rebutted by her deposition testimony. “[T]he testimony of a party [/respondent on motion for summary judgment] is to be construed most strongly against him where it is self-contradictory, vague or equivocal. [Cit.] The standard to be applied is: (1) determined whether the testimony of the party is contradictory, (2) if a reasonable explanation is offered for the contradiction, that testimony will not be construed against the party, (3) the burden is on the party giving the testimony to offer a reasonable explanation, and (4) whether this has been done is an issue of law for the trial judge. [Cit.]” Id. Given the contradiction between appellant’s affidavit and her deposition, the record reveals that appellant has offered no reasonable explanation for the contradiction and, as above, even tolling the statute during those episodes of incompetency she experienced during the relevant period (which may explain, to some degree, her statement in her affidavit), there is no reasonable evidence in the record to rebut appellee’s claim on motion for summary judgment that appellant was able to handle her ordinary affairs of life at least two of the seven and a half years between the negligent acts alleged and the filing of the suit. Accordingly, under the circumstances of this case, we hold that the trial court did not err by concluding as a matter of law that the tolling statute did not apply and by granting summary judgment to appellee based on the running of the statute of limitation. Whisnant v. Coots, 176 Ga. App. 724, 726 (337 SE2d 766) (1985).

Decided February 13, 1991

Rehearing denied February 26, 1991

Aside from noting that the theory of tortiously induced incompetence as set forth in Dundon, supra, appears to have been created in response to the absence of any federal provision similar to OCGA § 9-3-90 for tolling the statue of limitation in 28 USC § 2401 (b) for mental incompetency, we do not find it necessary to address the merits of appellant’s argument urging this court to recognize that theory because the facts of this case render any application thereof inappropriate here.

Judgment affirmed.

McMurray, P. J., and Carley, J., concur.

Kathy Hickey, pro se.

Sullivan, Hall, Booth & Smith, Henry D. Green, Jr., Mark A. Bayless, for appellee.


author: Banke, Presiding Judge.

text:
    A89A2351.
    A89A2352.
    EMANUEL v. THE STATE. BRUNEIO v. THE STATE.
    (403 SE2d 899)
    Decided February 26, 1991.

      Herbert Shafer, Jerome J. Froelich, Jr., for appellants.

      Lewis R. Slaton, District Attorney, Joseph J. Drolet, Rebecca A. Keel, Grover W. Hudgins, Assistant District Attorneys, for appellee.
   Banke, Presiding Judge.

In accordance with the decision rendered by the Georgia Supreme Court in these two cases, see Emanuel v. State, 260 Ga. 425 (396 SE2d 225) (1990), the prior opinion and judgment of this court affirming the appellants’ convictions, reported at 195 Ga. App. 302 (393 SE2d 74) (1990), is hereby vacated, the dissenting opinion reported at 195 Ga. App. 305 is made the opinion of this court, and the judgment of the trial court is hereby reversed.

Judgment reversed.

Sognier, C. J., McMurray, P. J., Birdsong, P. J., Carley, Pope, Beasley, Cooper and Andrews, JJ., concur.


author: McMurray, Presiding Judge.

text:
    A90A1941.
    GWINNETT COUNTY BOARD OF TAX ASSESSORS v. ACKERMAN/INDIAN TRAIL ASSOCIATION, LTD.
    (402 SE2d 794)
   McMurray, Presiding Judge.

Contending the 1989 tax assessments issued by the Gwinnett County Board of Tax Assessors lacked uniformity and equalization, Ackerman/Indian Trail Association, Ltd. (“Ackerman”), the owner of 11 parcels of real estate in a Gwinnett County office park, appealed to the Gwinnett County Board of Equalization. Giving due consideration to Ackerman’s arguments, the board of equalization reduced the total assessed value of the 11 parcels. Still, Ackerman was not satisfied; it sought a jury trial in the superior court to obtain a further reduction of the parcels’ assessed value.

At the conclusion of the trial, the jury found in Ackerman’s favor. Judgment was entered accordingly and the board of tax assessors appealed. Held:

1. Pursuant to our constitution, all taxation, except as otherwise provided, “shall be uniform upon the same class of subjects within the territorial limits of the authority levying the tax.” Ga. Const. 1983, Art. VII, Sec. I, Par. Ill (a). This requirement “ ‘means that all kinds of property of the same class not absolutely exempt must be taxed alike, by the same standard of valuation, equally with other taxable property of the same class, and co-extensively with the territory to which it applies, meaning the territory from which the given tax, as a whole, is to be drawn.’ ” Lott Investment Corp. v. City of Waycross, 218 Ga. 805, 809 (130 SE2d 741). “Realty and tangible personal property are of the same class, and the constitutional rule of uniformity in taxation requires that both be taxed alike.” Hutchins v. Howard, 211 Ga. 830 (1) (89 SE2d 183).

The board of tax assessors contends the evidence was insufficient to support the verdict, claiming that Ackerman failed to demonstrate that its property was not valued uniformly and throughout the county with other properties in the same class. In this regard, appellant argues: “Appellee’s focus was incredibly narrow. [It] did not consider all the commercial property in Gwinnett County in making [its] comparison. [It] did not consider all the office buildings in Gwinnett County. [It] did not consider all the warehouse space in the County. Instead, . . . [its] evidence was limited to consideration of a type of building [it terms] ‘flex space’ within 15 to 20 minutes driving time from [its] property. . . .” We cannot accept this analysis.

An Ackerman agent testified that he personally visited 70 or 80 parcels in Gwinnett County to determine the uniformity of the tax assessments. For comparison purposes, the agent mainly looked at 39 office parks in Gwinnett County. Of these, the agent concentrated on properties within a 15 or 20 minute drive of Ackerman’s property because he believed they would be most comparable. But Ackerman did not limit its evidence to a study of parcels in the neighborhood. It introduced numerous tax assessment cards into evidence. The cards reflect the board of tax assessors’ findings with regard to over 100 various kinds of properties in different parts of the county.

The jury was entitled to consider the tax assessment cards reflecting the board’s findings in reaching its verdict. See Weeks v. Gwinnett County Bd. of Tax Equalization, 139 Ga. App. 37, 38, 39 (227 SE2d 865). Thus, it cannot be said that the evidence was insufficient to support the jury’s verdict. See Aldon Indus, v. Gordon County Bd. of Tax Assessors, 136 Ga. App. 598, 599 (2) (222 SE2d 42) (reversed on other grounds, Gordon County Bd. of Tax Assessors v. Aldon Indus., 237 Ga. 527 (228 SE2d 905)), in which taxpayers introduced the records of 21 pieces of real estate and the county contended “that the cross section was too small. . . .” See also Stoddard v. Bd. of Tax Assessors of Grady County, 163 Ga. App. 499, 501 (3) (295 SE2d 170). This Court considers the sufficiency of the evidence, not its weight. Foster v. Morrison, 177 Ga. App. 250, 252 (6) (339 SE2d 307).

Decided February 26, 1991.

Gary Moore, for appellant.

Alston & Bird, T. Michael Tennant, for appellee.

2. Relying upon Georgia Midland & Gulf R. Co. v. State, 89 Ga. 597, 598 (3) (15 SE 301), the board of tax assessors contends the trial court erred in failing to charge the jury that a “taxpayer cannot protect himself against a legal and proper demand for his own taxes, by alleging that another taxpayer has been assessed for taxation in a way to render his taxes less than they ought to be under a proper administration of the law.” We have no problem with this principle of law. It is not, however, adjusted to the facts of this case. Ackerman did not contest uniformity by showing the amount of taxes paid by one or two other taxpayers. Quite the contrary, it based its case upon the amount of taxes paid by numerous other taxpayers. See Division 1, supra.

3. In its final enumeration of error, the board of tax assessors contends the trial court erred in failing to instruct the jury, pursuant to the board of tax assessors’ request, that it could raise the assessed value of Ackerman’s property over the value set by the board of equalization. We disagree. The board of tax assessors did not appeal from the board of equalization’s findings. Thus, the board of tax assessors did not call the board of equalization’s findings into question. See OCGA § 48-5-311 (f) (1). Besides, the jury’s verdict reduced the assessed value set by the board of equalization. Any error in failing to charge that the board of tax assessors’ assessment could be raised must, therefore, be deemed harmless. See generally Hunter v. Batton, 160 Ga. App. 849, 851 (5) (288 SE2d 244).

Judgment affirmed.

Sognier, C. J., concurs. Carley, J., concurs in Divisions 1 and 2 and in the judgment.


text:
    A90A2242.
    WILLIAMS v. THE STATE.
    (402 SE2d 796)
   McMurray, Presiding Judge.

Defendant was tried before a jury and found guilty of burglary and aggravated assault. This appeal followed the denial of defendant’s motion for new trial. Held:

1. Defendant contends the evidence was insufficient to support his burglary conviction and argues that his accomplice’s testimony “should have been given no credibility by the trial jury . . .” and that “[t]he only other evidence introduced at trial which placed [him] inside the [victim’s] residence . . . was the presence of the stolen weapons in the automobile which was occupied by both [defendant] and [the accomplice].”

“In Georgia, a defendant may not be convicted on the uncorroborated testimony of an accomplice. OCGA § 24-4-8 (Code Ann. § 38-121). The corroboration must be independent of the accomplice’s testimony and it must connect the defendant to the crime or lead to the inference that he is guilty. Allen v. State, 215 Ga. 455 (111 SE2d 70) (1959). ‘However, the corroborating evidence need not of itself be sufficient to warrant a conviction of the crime charged. (Cit.) Slight evidence from an extraneous source identifying the accused as a participant in the criminal act is sufficient corroboration of the accomplice to support the verdict. (Cit.)’ Reaves v. State, 242 Ga. 542, 543 (250 SE2d 376) (1978).” Castell v. State, 250 Ga. 776, 778 (lc), 780 (301 SE2d 234).

In the case sub judice, defendant’s accomplice testified that he and defendant burglarized the victim’s home and took “two guns and a little box. ...” The accomplice further testified that as he and defendant were leaving the scene of the burglary the victim “pulled up behind [them] and . . . flashed his lights ... for us to stop and we pulled over.” The accomplice testified that a verbal confrontation ensued between defendant and the victim; that defendant “got in the car and drove off . . .”; that he (accomplice) fled on foot and that the victim entered his car and “started to chasing . . .” defendant. The victim testified that defendant came by his house on the day of the burglary looking for work; that he later “saw [the] car [defendant was driving when he came by looking for work] coming out of [his] driveway . . .”; that he followed defendant and signaled for defendant to stop; that defendant did stop and that a verbal confrontation ensued between him and defendant because the victim saw what “looked like rifles or guns ...” behind the driver’s seat of defendant’s car. The victim further testified that defendant “jumped in the car and drove off . . .” after he confronted defendant with being in possession of what appeared to be the victim’s “rifles or guns . . .”; that he followed defendant and that defendant ultimately stopped his car in the middle of the road, exited the vehicle and ran toward the victim with a rifle, firing several rounds at the victim. Deputy James Edge of the Worth County Sheriff’s Department testified that he investigated the incident and found “a bullet hole in the grille and the radiator” of the victim’s car. The defendant’s brother testified that defendant turned the victim’s stolen guns over to him and that the guns were subsequently recovered by the police. The victim’s testimony and the defendant’s brother’s testimony sufficiently corroborated the accomplice’s testimony that defendant burglarized the victim’s home. Further, we have reviewed the trial transcript and find more than sufficient evidence to authorize the jury’s finding that defendant was guilty, beyond a reasonable doubt, of burglary as alleged in the indictment. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Adams v. State, 255 Ga. 356, 357 (1) (338 SE2d 860).

Decided February 26, 1991.

Herbert W. Benson, for appellant.

David E. Perry, District Attorney, Howard B. Buchanan, Assistant District Attorney, for appellee.

2. Defendant contends that there was insufficient evidence to authorize his conviction for aggravated assault because “the state failed to produce sufficient evidence to show that [he] ‘intended’ to make an assault upon the [victim].” More specifically, defendant argues that his testimony that he shot at the victim to defend himself and his testimony that he is familiar with weapons, along with “the fact that [there] was a lone shot to the front grille of the [victim’s] automobile rather than a shot to the windshield area of the car shows that he did not intend to harm the [victim], rather that he fired merely to scare [the victim].”

“ ‘On appeal, our review is restricted to the legal sufficiency of the evidence, not the weight of the evidence.’ Carson v. State, 171 Ga. App. 527, 528 (320 SE2d 382) (1984).” McClendon v. State, 187 Ga. App. 666, 668 (371 SE2d 139).

In the case sub judice, the jury was authorized to reject defendant’s claim of self defense and defendant’s explanation for hitting the grille of the victim’s car instead of the windshield. McClendon v. State, 187 Ga. App. 666, 667, supra. Further, the victim’s testimony that defendant shot at him with a rifle, evidence that a bullet hit the victim’s automobile and evidence that defendant was in possession of the victim’s rifle was sufficient to sustain the jury’s finding that defendant is guilty, beyond a reasonable doubt, of aggravated assault as alleged in the indictment. Jackson v. Virginia, 443 U. S. 307, supra; Adams v. State, 255 Ga. 356, 357 (1), supra.

Judgment affirmed.

Sognier, C. J, and Carley, J., concur.


author: Cooper, Judge.

text:
    A90A1642.
    McCRARY v. PREFERRED RISK MUTUAL INSURANCE COMPANY et al.
    (402 SE2d 519)
   Cooper, Judge.

Appellant originally brought this lawsuit to recover damages for personal injuries he sustained in an automobile accident with the defendant, Martin 0. Alin a/k/a Martin O. Aliu (“Alin”) which occurred on July 9, 1986. Alin is not a party to this appeal. All the parties agree that appellant did not attain majority until May 18, 1987, and that the statute of limitation on appellant’s cause of action expired two years later, on May 18, 1989. Appellant filed his complaint on May 15, 1989, and on May 16, 1989, an attempt to serve Alin failed because he did not live at the address provided by appellant. On May 18, 1989 and May 22, 1989, appellant served his two uninsured motorist insurance carriers, the appellees herein, and the record reflects that no further attempt was made to serve Alin subsequent to the May 16 attempt. On December 18, 1989, one of the insurance carriers filed its motion for summary judgment and subsequent thereto, on January 5, 1990, appellant filed his motion for permission to serve Alin by publication. Appellant supported his motion for publication by service with an affidavit and exhibits documenting the efforts made to locate Alin prior to filing suit; however no evidence was submitted showing any efforts made to locate and serve Alin after the complaint was filed. The trial court denied appellant’s motion for service by publication and granted summary judgment for both appellees. Appellant appeals the grant of summary judgment on the ground that appellant’s efforts to locate Alin were reasonable and diligent so that the requested service by publication would relate back to the date of filing for the purposes of the statute of limitation.

“ ‘This court has interpreted the Uninsured Motorist Act to require, as a condition precedent to a suit against the insurance carrier, that the insured first sue and recover a judgment against the uninsured motorist, whether known, or unknown.’ [Cit.]” Boles v. Hamrick, 194 Ga. App. 595, 596 (391 SE2d 418) (1990). In the instant case, no judgment was rendered against Alin, the uninsured motorist, because service was never perfected, either personally or by publication. Appellant’s motion for service by publication was an attempt to toll the statute of limitation by having the service relate back to the date of the filing of the lawsuit, thereby conferring jurisdiction upon the court to render a judgment against Alin and allowing appellant to proceed against the insurance carriers. “ ‘Where service is made after the expiration of the applicable statute of limitation, the timely filing of the complaint tolls the statute only if “the plaintiff (shows) that he acted in a reasonable and diligent manner in attempting to insure that a proper service was made as quickly as possible. [Cit.]” “A reasonable rule must be that in such case the trial judge should look at all the facts involved and ascertain whether the plaintiff was in any way guilty of laches. If he were, of course he would be barred, but if he acted in a reasonably diligent manner then he would not be. [Cits.]” The determination of whether the plaintiff was guilty of laches in failing to exercise due diligence in perfecting service after the running of the statute of limitations is a matter within the trial court’s discretion and will not be disturbed on appeal absent abuse.’ [Cit.]” Brown v. Bailey, 180 Ga. App. 555, 567 (1) (349 SE2d 792) (1986). The trial court’s order clearly indicates that the court exercised its discretion in determining that appellant failed to carry his burden of proving that he acted diligently. Appellant attempted to ascertain the correct address of Alin and mailed certified letters to Alin at various addresses prior to the time the suit was filed. Once the suit was filed, all further attempts to serve Alin ceased until appellant’s motion for publication by service was filed approximately seven months later, even though OCGA § 33-7-11 (e) specifies the method for service by publication of an uninsured motorist who cannot be located. Appellant never requested a special process server or hired an investigator to locate Alin. Under the circumstances, we find that the trial court did not abuse its discretion in determining that appellant had not acted diligently, and in disallowing service by publication.

Decided January 11, 1991

Rehearing denied February 27, 1991.

Richard P. Schultz, for appellant.

Murray, Temple & Dinges, Malcolm S. Murray, William D. Temple, Jeffrey P. Raasch, Brock & Clay, Marjorie M. Rogers, for appellees.

Since no service was perfected on Alin and since the statute of limitation has run, the trial court is without jurisdiction to enter judgment against him. Therefore, the condition precedent to obtaining judgment against appellees cannot be accomplished, and summary judgment in favor of the appellees was proper.

Judgment affirmed.

Banke, P. J., and Birdsong, J., concur.


text:
    A90A1699.
    In the Interest of E. M., a child.
    (402 SE2d 751)
   Cooper, Judge.

Delinquency petitions filed in the juvenile court charged appellant with aggravated assault with intent to commit rape and robbery, motor vehicle theft, financial transaction card theft, financial transaction card fraud and attempted financial transaction card fraud. These charges stemmed from two separate incidents, both of which were admitted by appellant. In July 1989, several female real estate agents in Macon, Georgia, received calls from a young man who made appointments to see houses in expensive neighborhoods. On one or two occasions, male agents replaced the female agents on the appointments, and on those occasions, the caller never appeared. On another occasion, a female agent took her husband with her, and she later identified appellant as the person who looked at the house. Finally, one female agent met with appellant alone. The agent picked appellant up at a shopping center, took him to see a house where she sensed he was acting peculiar and then drove him back to the shopping center. He asked her to take him to the back of the shopping center, and when she stopped to let him out, he attacked her. He told her that he had a knife, forced her down in the back seat of her mini-van, began to kiss and fondle her and tore her clothes. As another car approached, the agent was able to escape the vehicle and run to safety. Appellant then took her vehicle, which contained her purse, and used her credit cards later that day to purchase large quantities of merchandise. Appellant was arrested for this attack but was released on bond. Two months later, while awaiting a hearing on the first offense, appellant went to a dog grooming shop in the afternoon to pick up his dog. The young female operator asked appellant to come to the kennels in the back to help her with the dog. On the way back to the front of the store, appellant grabbed the woman, forced her to the floor face-down, fondled her breasts and demanded the keys to her car. As the woman struggled to her feet, appellant tore off her shirt, forced her to the ground and again began to fondle her. As another customer came into the store, the appellant ran away and was later apprehended by the police. Appellant was committed to Central State Hospital for a complete psychological evaluation, and the ensuing report stated that appellant did not meet the criteria for a mentally ill person and did not require hospital treatment. The report went on to state, “[ojnce he has experienced appropriate consequences for his antisocial behavior, it would be imperative that he receive outpatient psychotherapy in order to attempt to prevent future occurrences of antisocial behavior, preferably as a condition of release. Without appropriate intervention, his prognosis is poor; this could be improved with appropriate after-care treatment.” The State moved to transfer the case to superior court and at a transfer hearing, the State argued that the recommendations of the psychological report — appropriate consequences for appellant’s behavior and supervised outpatient treatment — would best be achieved by utilizing the adult criminal system. The State contended that the probationary features of the adult system would best monitor and assure continuing outpatient treatment, and the adult system was thereby in the best interests of the child and the community. The juvenile court granted the transfer, finding “that the seriousness and the frequency of the delinquent acts, indicate that severe consequences are necessary to correct the conduct of the child, and the child’s interest would best be served by the child being placed under legal restraint and transferring the case to the Superior Court. The Court finds that the seriousness of the alleged acts requires that the cases be transferred to the Superior Court to be tried as crimes in the best interest of the community.” Appellant herein appeals this order.

Appellant’s two enumerations of error will be considered together. Appellant first contends that the juvenile court erred in finding that the interest of the child and the community necessitated the transfer, and argues specifically that the court’s order relies on the child’s non-amenability to treatment in the juvenile system and, contrary to controlling law, the court’s order does not state the basis for the non-amenability. Secondly, the appellant argues that the State relied on the child’s non-amenability to treatment in the juvenile system and failed to meet its burden to prove such non-amenability. Agreeing with appellant that the transfer was in error, we reverse.

OCGA § 15-11-39 (a) (3) (C) allows a juvenile court to transfer a case to superior court if in the court’s discretion it determines that there are reasonable grounds to believe that the child committed the acts alleged, the child is not committable to an institution for the mentally infirm, the child was at least 15 years old when the alleged acts occurred and if “[t]he interests of the child and the community require that the child be placed under legal restraint and the transfer be made.” Appellant stipulated that the first three requirements for a transfer were satisfied and the only task before the juvenile court was to perform the balancing test required by the last criteria. A juvenile’s amenability to treatment in the juvenile system is subsumed under the concept, “the interest of the child” as set forth in the statute. See In the Interest of J. J. S., 246 Ga. 617 (1) (272 SE2d 294) (1980). In the recent case of State v. M. M., 259 Ga. 637 (386 SE2d 35) (1989), the Georgia Supreme Court established certain guidelines regarding the determination of amenability. The second guideline provides: “[i]f the state seeks a transfer based at least in part on the child’s non-amenability to treatment in the juvenile system, the state has the burden of proving the child is not amenable to treatment. Moreover, if the juvenile court relies in part on the child’s non-amenability to treatment in ordering the transfer, the transfer order, in performing the balancing test required by § 15-11-39 (a) (3) (C), must reflect why the child is not amenable to treatment. [Cit.]” Id. at 639. In the instant case, the State did base its transfer request, at least in part, on appellant’s non-amenability to treatment in the juvenile system by arguing that appellant would not be satisfactorily rehabilitated due to the probationary features of the juvenile system as opposed to those in the adult system.

Further, the court’s order indicates that the court included in the balancing test a determination that the appellant was not amenable to treatment in the juvenile system since the “severe consequences” attendant to the adult system were “necessary” to correct appellant’s conduct. Although the State and the court’s order relied on non-amenability, no proof of such was offered. Appellant had no prior record and had no previous experience in the juvenile system. The psychological report does not indicate that the juvenile system would be inappropriate or ineffective for appellant’s treatment and rehabilitation. In short, the State did not meet its burden to prove appellant’s non-amenability to juvenile treatment, and the court’s order did not reflect why appellant was not amenable to such treatment. The decision in the M. M. case and the third guideline set forth therein are not applicable herein in that it was conceded in M. M. that the defendant was amenable to treatment in the juvenile system. The M. M. court nevertheless determined that the heinous nature of the crime and the community’s interest outweighed the juvenile’s interest in the juvenile treatment. Appellant’s amenability to treatment as a juvenile is not conceded herein but is instead questioned and disputed by the State. We acknowledge that “[t]he 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.” [Cit.]’ ” In the Interest of R. J., 191 Ga. App. 712 (3) (382 SE2d 671) (1989). Having found no proof and no evidence to support appellant’s non-amenability to treatment as a juvenile, we determine that the trial court’s decision to transfer this case to the superior court must be reversed.

Decided February 6, 1991

Rehearing denied February 27, 1991

Brogdon & Green, Leigh G. Brogdon, for appellant.

Willis B. Sparks III, District Attorney, Thomas J. Matthews, Assistant District Attorney, for appellee.

Judgment reversed.

Banke, P. J., and Birdsong, P. J., concur.


text:
    A90A1830.
    GRANT v. THE STATE.
    (403 SE2d 58)
   Cooper, Judge.

Appellant was convicted by a jury of aggravated assault on a peace officer and possession with intent to distribute marijuana. He appeals the denial of his motion for new trial and raises seven enumerations of error.

1. Appellant first contends that the state failed to prove guilt beyond a reasonable doubt for the offense of aggravated assault on officer W. L. Jones (“Jones”). At trial, Jones testified that he and another officer went to the door of appellant’s apartment to serve a search warrant. Several other officers were waiting in the car to assist once entry had been achieved. Jones knocked at the door and the other officer stood behind him at an angle. When a female voice answered, Jones, who had been in the apartment earlier in the day to purchase drugs prior to obtaining the search warrant, explained that he thought he left his wallet inside and he wanted to look for it. A male voice responded and appellant then opened the door holding a revolver at his side. At this time, Jones and the other officer were dressed in plainclothes, however the other officer was wearing a raid jacket and hat which displayed the Atlanta police emblem. When appellant opened the door, Jones displayed his badge case and said “police.” Jones stated that at this point appellant began raising up the revolver and Jones began moving away from the door while removing his own gun. Jones testified that appellant fired the first shot and then Jones fired two rounds in return. As Jones fell to the ground, he saw appellant moving his gun in the direction of the other officer and Jones fired another shot to allow the other officer to move away. Jones was wounded in the hand from the gunfire. The other officers then arrested appellant, who was also wounded, and searched the premises. At trial, the officer who was at the doorway with Jones corroborated Jones’ account of the incident. Appellant testified that a man came to his door, saying he was “James” that had been there earlier and he thought he left his wallet inside; due to the crime in the area, he was alarmed and got his gun for protection, and cocked it, prior to opening the door; that as he opened the door, a gun suddenly appeared through the doorway and he was shot; that he did not see Jones outside, only the other officer; that he never saw a police badge or heard anyone announce themselves as policemen; and that he did not fire first. Appellant did however admit on the stand that he possessed marijuana and sold it to others and further that he sold non-tax paid liquor and played illegal lottery numbers. We determine that the evidence adduced at trial was sufficient to sustain a finding by a rational trier of fact of guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Appellant next enumerates that the trial court erred in overruling his motion to suppress. Specifically, appellant argues that the admission of a copy of the search warrant was in error because it was not a certified copy and because the original was not accounted for; therefore, it was not the best evidence and the search was not shown to be lawful. Further, appellant argues that it was error to admit the copy upon the State’s motion to re-open evidence after the State had rested. At the hearing on the motion to suppress and at trial, Jones testified that he went to appellant’s apartment to purchase marijuana in response to information that the house was used as a base for the sale of illegal substances, including marijuana. Jones stated that he did in fact make the purchase and then went to obtain the search warrant and that he swore to the contents of the warrant before the judge. At the suppression hearing, Jones did not remember which judge signed the warrant but at trial he named the judge. Jones testified that he did not arrest appellant at the time of the purchase because he wanted to obtain a warrant allowing him to search the entire premises.

The search warrant itself is the highest and best evidence of its contents. State v. Mincey, 167 Ga. App. 850 (2) (308 SE2d 18) (1983). Ordinarily, if a party seeking to introduce a photocopy of a warrant into evidence does not attempt to show that the copy was made in the regular course of business and does not properly account for the absence of the original, the photocopy would not be admissible. Mincey, supra at Division 1. Since the record does not reveal that the State made either of these showings, the admission of the photocopy of the warrant was in error. However, “admission of improper evidence is harmless when the fact sought to be shown is otherwise fully and properly established. [Cits.]” Barrett v. State, 146 Ga. App. 207 (1) (245 SE2d 890) (1978). Since the copy of the warrant was erroneously admitted, we must examine the transcript to determine if sufficient testimony was presented to carry the State’s burden of proving that facts constituting probable cause were presented to the judge. Mincey, supra at Division 2. See also Bartlett v. State, 165 Ga. App. 18 (1) (299 SE2d 68) (1983). The transcripts from the suppression hearing and the trial reveal the following: Jones testified that he was the affiant before a specific judge; that he swore to the contents of the warrant; that he obtained the warrant for the search of appellant’s apartment; and that he had the warrant when he went to execute the search. He testified as to the purchase of marijuana which preceded the issuance of the warrant and which led him to conclude probable cause existed to support a warrant for the search of the premises. Jones stated that after purchasing drugs from appellant, he immediately went to obtain the warrant. The officer who actually executed the warrant also testified that she had a warrant to execute the search. Thus, the circumstances surrounding the issuance of the warrant and the contents thereof amounting to probable cause appear from the transcript and any error in admitting the photocopy of the warrant was harmless. See Hawkins v. State, 185 Ga. App. 837 (2) (366 SE2d 222) (1988).

Appellant also argues that his motion to suppress should have been granted because the search became a general search when items not named in the warrant were seized. The warrant specified that the search was for marijuana. The executing officer seized, in addition to marijuana, illegal lottery number sheets, U. S. currency, non-tax paid liquor and a joint checkbook of appellant and his wife. “The search was lawful, and when the executing officer is conducting a lawful search, he may seize anything he discovers, possession of which is unlawful, or anything which is tangible evidence of the commission of a crime.” Davis v. State, 159 Ga. App. 356, 360 (2) (283 SE2d 286) (1981). “OCGA § 17-5-21 (b) authorizes an officer in the process of executing a lawful search warrant ‘to seize any stolen property, contraband, or other item, other than private papers, which he has probable cause to consider tangible evidence of the commission of a crime, even though the property is not listed in the warrant. [Cit.]’ ” In the Interest of A. B., 194 Ga. App. 665 (1) (391 SE2d 683) (1990). According to the above tests, all the items seized from appellant were properly taken, except for the checkbook, which was a personal paper of appellant. The executing officer said that she seized it to prove that the appellant and his wife lived at the address, not because she believed it to be tangible evidence of a crime. Although the admission of the checkbook was in error, appellant has not shown it was harmful, especially in light of his admission of the offense relating to the marijuana and his admission of the other unlawful activity.

Appellant further contends that the search was unlawful, and in his third enumeration of error, contends that his convictions should be reversed because the pólice officers improperly executed the warrant and improperly attempted to enter appellant’s apartment. OCGA § 17-5-27 requires officers to give verbal notice of their authority and purpose in the execution of a search warrant. Neal v. State, 173 Ga. App. 71 (1) (325 SE2d 457) (1984). Both officers testified that when appellant opened the door, Jones displayed his badge and announced the police presence. One officer was wearing a police raid jacket and cap and we find no impropriety in the officers’ actions. Appellant’s second and third enumerations are without merit.

3. In his fourth and fifth enumerations, appellant asserts that the court erred in failing to intervene when certain statements were made by the prosecutor during his closing argument. The first comment related to a previous controversial shooting of a police officer in which the defense counsel was involved. Counsel for appellant first injected this issue into evidence in this trial by cross-examining a police officer witness about the incident and again raising the issue in his own closing argument. Clearly, defense counsel “opened the door” by bringing up the incident on these two occasions during the trial. See Rivers v. State, 147 Ga. App. 19 (3) (248 SE2d 31) (1978) (reversed on other grounds). “[I]t is well settled that in closing argument the prosecutor has considerable latitude as to what inferences may be drawn from the evidence and as to the language he may use in expressing his thoughts. . . .” Banks v. State, 191 Ga. App. 344, 345 (1) (381 SE2d 548) (1989). The prosecutor’s response to defense counsel’s injection of the issue into the trial was not error.

Decided January 31, 1991

Rehearing denied February 27, 1991

Guy E. Davis, Jr., for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, William L. Hawthorne III, Assistant District Attorneys, for appellee.

Appellant’s argument regarding the prosecutor’s comments during closing on other incidents involving violence against other police officers is without merit. Appellant made no objection to these comments of the prosecutor nor were curative instructions requested. As such, any objection thereto was waived. Banks, supra.

4. Since appellant did not request a jury charge on impeachment, the court did not err in failing to give such a charge, and appellant’s sixth enumeration has no merit. Perkins v. State, 152 Ga. App. 101 (4) (262 SE2d 158) (1979).

5. Appellant’s seventh enumeration that the court’s charge on intent was burden shifting and therefore erroneous likewise fails. The court’s charge was substantially identical to the charge given in Lingerfelt v. State, 255 Ga. 180 (4) (336 SE2d 250) (1985), which was specifically found not to shift the State’s burden of proof. Therefore, there was no error in giving the charge.

Judgment affirmed.

Banke, P. J., and Birdsong, P. J., concur.


text:
    A90A2323, A90A2324.
    PORTER v. FOOD GIANT, INC.; and vice versa.
    (402 SE2d 766)
   Andrews, Judge.

This appeal arises from the action of Food Giant, Inc. (appellee in Case No. A90A2323 and cross-appellant in Case No. A90A2324), in denying the retirement benefits application of William C. Porter (appellant in Case No. A90A2323 and cross-appellee in Case No. A90A2324). On appeal Porter enumerates as error the award by the Superior Court of DeKalb County, in its order of July 17, 1990, of summary judgment to Food Giant on the basis that Porter’s contract and tort claims are preempted by the Employee Retirement Income Security Act of 1974, as amended, 29 USC § 1001 et seq. (“ERISA”). Food Giant enumerates as error the trial court’s denial of summary judgment on Porter’s claims under the company’s pension plans and ERISA, 29 USC § 1132 (a) (1) (B).

1. Beginning October 10, 1957, appellant Porter was employed by the predecessor of Food Giant, Inc., Alterman Bros., Inc., in several positions in Alterman Bros.’ food retailing business. In July 1970 he voluntarily left Alterman Bros, and shortly thereafter went to work for McCormick Spice Co. In early 1973 he was contacted by Sam Alterman, president of Alterman Bros., regarding the possibility of Porter’s rejoining the firm as manager of one of the company’s retail stores. Upon Sam Alterman’s request, Porter went to the firm’s headquarters, where he conferred with Max Alterman, vice-president of the firm, who also served as director of retail store operations and secretary of the firm’s retirement program. According to Porter’s testimony (subsequently confirmed by Max Alterman in an October 1984 letter to Food Giant’s Insurance Director, and also in an affidavit, as well as in his answer to the original complaint), Porter agreed to return to Alterman Bros, on the express condition that his seniority rights be reinstated as if there had been no break in service, with the sole exception that his vacation time would not exceed that granted new employees. Both Porter and Alterman stated that Alterman had requested, during their discussion of these terms of Porter’s re-employment, that Porter not mention to fellow employees the restoration of his seniority.

According to the record, Porter immediately tendered his resignation to McCormick and reported for work with Alterman Bros, that same week, on February 15, 1973. In October 1982 he decided once more to leave Alterman Bros, and did so. He subsequently applied for pension benefits based on service of approximately 22-Vz years. The insurance director of Food Giant, which had acquired Alterman Bros, in the interim, informed him that he was not vested for a pension under either of the company’s successive pension plans (1967, 1976). The company subsequently alleged that Porter was also ineligible for retirement benefits under the terms of ERISA, which, it was alleged, had preempted the field.

The Code section on which this case must ultimately turn is 29 USC § 1144 (b) (1), which provides: “This section shall not apply with respect to any cause of action which arose, or' any act or omission which occurred, before January 1, 1975.” In the instant case plaintiff’s cause of action — Food Giant’s denial of his application for retirement benefits — indisputably accrued after January 1, 1975, and would therefore not come under the “cause of action” exception to ERISA preemption. Porter contends, however, that the “act or omission” exception does apply to his case, thereby eliminating ERISA, inasmuch as “the substantial conduct [i.e., the 1973 rehiring of Porter and the representations made] forming the basis of the cause of action occurred before January 1, 1975.” Wayte v. Rollins, Intl., 215 Cal. Rptr. 59 (169 Cal. App. 3d 1) (1985), summarizing the Ninth Circuit decisions which the Wayte court believed to embody the most reasonable and desirable interpretation of the “acts or omissions” clause.

The federal circuits are divided almost evenly as to the intent and effect of this clause, certain ones of them (e.g., the Fifth Circuit in the 1981 case of Woodfork v. Marine Cooks &c. Union, 642 F2d 966) holding “act or omission” to be duplicative of, or identical with, “cause of action”; while other circuits consider it to be not mere surplusage (as the reading of Fifth Circuit and its colleagues mandates) but an entirely separate category comprising the pre-preemption conduct of which the subsequent (or post-preemption) accrual of the cause of action is “merely the inevitable consequence.” Menhorn v. Firestone Tire &c. Co., 738 F2d 1496, 1502 (9th Cir. 1984). Food Giant, of course, urges the validity of the former (indeed, this is the entire thrust of the successful motion for summary judgment); Porter argues that the cases in the latter category embody the proper interpretation of the “acts or omissions” language and advance the dual intent of the legislation itself, i.e., not only to provide a set of uniform criteria for determining employee benefit plan issues, but also to prevent cluttering the federal court calendar with cases not properly or necessarily within federal courts’ jurisdiction. See, e.g., Wayte, supra.

It is contrary to the generally accepted principles for construing statutes to “read out” any part of the statute as “mere surplusage” unless there is a clear reason for doing so. See, e.g., OCGA § 1-3-1; Exum v. City of Valdosta, 246 Ga. 169 (269 SE2d 441) (1980). The cause of action accrues when the formal act of denial takes place, e.g., Menhorn, supra at 1498 (1); the “acts or omissions” which are the basis of the cause of action may have occurred at any prior time, either before or after the preemption date, January 1, 1975. See, e.g., Ponce v. Constr. Laborers Pension Trust, 628 F2d 537 (9th Cir. 1980) (the only act subsequent to the preemption date was the formal act of denial); Wayte, supra at 67 (state court jurisdiction and application of state law not defeated because cause of action accrued after effective date if such causative factors as exhaustion of administrative remedies occurred before that date); Menhorn, supra (legislative history shows legislative intent, as both “cause of action” and “acts or omissions” clauses appear in Conference Committee Report); Cowan v. Keystone Employee &c. Fund, 586 F2d 888 (1st Cir. 1978) (1977 denial of application for benefits allegedly underpaid in 1974 held erroneous because of “acts or omissions” clause). See also Fort Halifax Packing Co. v. Coyne, 482 U. S. 1 (107 SC 2211, 96 LE2d 1) (1987); Jameson v. Bethlehem Steel, 765 F2d 49 (3rd Cir. 1985); Lafferty v. Solar Turbines Intl., 666 F2d 408, 410 (9th Cir. 1982).

Decided February 13, 1991

Rehearing denied February 27, 1991

Redfern & Green, E. Lee Redfern, Brady D. Green, for appellant.

Troutman, Sanders, Lockerman & Ashmore, Jesse P. Schaudies, Jr., Christopher S. Miller, Dan R. Gresham, for appellee.

Although Food Giant offers persuasive arguments, we are reluctant to conclude, as we must to adopt that position, that Congress did not intend every part of the statute, as finally written, to have effect. We therefore hold that, under the plain language of the statute, the acts or omissions giving rise to the cause of action occurred in 1973, when Alterman induced Porter to return to Food Giant’s employ by promising him that his full seniority rights (with the single exception noted above) would be restored and that the “acts or omissions” from ERISA clearly applies. Under the criteria of OCGA § 9-11-56, the trial court’s award of summary judgment on the basis of ERISA preemption was therefore error and the judgment in Case No. A90A2323 must be reversed.

2. Our holding in Division 1, supra, renders moot that portion of appellee’s enumeration which pertains to ERISA. As to that portion which addresses Porter’s state law claims, we find that these issues do not meet the criteria for summary adjudication. The judgment in Case No. A90A2324 must therefore be affirmed.

Judgment reversed in Case No. A90A2323. Judgment affirmed in Case No. A90A2324.

Pope and Beasley, JJ., concur.

       The order dismissed Counts 1 and 2 of Porter’s amended complaint, alleging breach of contract and vicarious liability on Food Giant’s part; and also those portions of counts 6 and 7 which sought attorney fees and exemplary damages for bad faith and aggravating conduct by Food Giant. This order was clarified nunc pro tunc in an order entered August 30, 1990.

       Decisions of federal trial and intermediate courts are not binding on this court, only persuasive. Felker v. State, 252 Ga. 351, 361 (lb) (314 SE2d 621) (1984).


author: Birdsong, Presiding Judge.

text:
    A90A2357.
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. AINSWORTH.
    (402 SE2d 759)
   Birdsong, Presiding Judge.

Appellant State Farm Mutual Automobile Insurance Company (State Farm) appeals the order of the state court which granted appellee Ann L. Ainsworth’s (Ainsworth) motion for partial summary judgment, awarded appellee $25,000 lost wages, and denied State Farm’s motion for summary judgment on the basis that bad faith penalties and punitive damages are issues for jury resolution.

On July 8, 1988, appellee who was the permissive driver of a vehicle insured by State Farm was injured in a collision. The policy contained optional no-fault coverage; appellee was eligible for personal injury protection benefits of $25,000 and medical payment coverage of $5,000 thereunder.

On August 1, 1988, appellee’s brother submitted an application for benefits in appellee’s behalf upon a State Farm claims form. The application reflected, inter alia, appellant had suffered five broken ribs, three broken vertebrae, and three breaks of the pelvic bone, and on its face, it contained a claim for approximately $30,000 of continuing medical expenses, and a separate claim for $800 lost wages to date. Appellee had not returned to work as of the date of the application. Further, the application apparently did not have any type of medical bills or wage statements attached, and it contains no place thereon where an applicant could make any valid designation or election regarding the priority in which claims are to be paid.

On August 8, 1988, State Farm paid medical providers the amount of $7,620. The record does not clearly establish what medical bills if any were in State Farm’s possession on this date. As it was stipulated that only $5,000 of the existing policy coverage was allocated as medical payment coverage, at least $2,620 of the $7,620 amount apparently was paid from available personal injury protection benefits.

On August 12, 1988, State Farm sent its standard employer’s wage and salary verification form to appellee’s listed current employer. Apparently, on no occasion did State Farm advise either the alleged employer or the appellee that time was of the essence for any reason in responding to this inquiry.

On August 17,1988, State Farm received medical bills, pertaining to appellee, in an amount which exceeded the remaining policy benefits. (In addition to the injuries listed above, appellee apparently had suffered abdominal and intestinal injuries necessitating a colostomy.)

On September 7, 1988, more than 30 days after the receipt of the application for benefits but about 21 days from the stipulated date of receipt of medical bills, State Farm paid medical providers the remaining no-fault benefits of $22,380, thereby exhausting all applicable coverage pertaining to the appellee.

Five days later, on September 12, 1988, State Farm received a relatively ambiguous response from appellee’s alleged current employer to their wage and salary verification inquiry.

On November 15, 1988 appellee’s attorney sent a letter to State Farm demanding $2,500 loss of earnings and that all optional no-fault coverage be paid in payment of loss of earnings, which were predicted to continue for at least 12 months or more. Held:

1. Appellant asserts that the state court erred in granting appellee’s motion for partial summary judgment. Resolution of this contention requires consideration of matters asserted in certain of appellant’s other enumerations of error.

(a) Appellant asserts, in its first enumeration of error, that the lower court erred in holding “an insured can await payment of medical expenses (to a hospital and physicians identified in the application for benefits) and then request payment of another category of covered losses after benefits have been exhausted.” Appellant does not cite a specific part of the record where such holding was affirmatively made, and it is not the function of this court to cull the record in search of error. Armech Svc. Co. v. Rose Elec. Co., 192 Ga. App. 829, 830 (386 SE2d 709). Moreover, the application for benefits, submitted in appellee’s behalf, on its face contained a request for payment of both medical expenses and lost wages, and this application was received by appellant before any benefits had been exhausted. Appellant’s assertion, as crafted in its first enumeration of error, is without merit.

(b) Appellant asserts in its second enumeration the state court erred in holding that the required “direction to pay” had not been provided by the appellee.

OCGA § 33-34-4 (a) (2) prescribes, inter alia, a minimum no-fault motor vehicle accident insurance coverage to provide “[c]ompensation to insured injured persons without regard to fault up to an aggregate minimum limit of $5,000.00 per insured injured person for . . . (A) [a]ll necessary medical expenses, not to exceed $2,500.00 ...(B) [e]ighty-five percent of the loss of income or earnings of the insured during disability with a maximum benefit of $200.00 per week” and, certain other compensable expenses not here applicable. OCGA § 33-34-5 (a) pertinently provides: “Each insurer shall also make available on an optional basis the following coverage . . . (1) [a]n aggregate limit of benefits payable without regard to fault up to $50,000.00 per person. Benefits purchased in excess of $5,000.00 shall be paid as determined by the insured without apportionment to cover any of the following expenses incurred by the insured but not compensated for under paragraph (2) of subsection (a) of Code Section 33-34-4 . . . (A) [a]ny expenses of the type described in subparagraph (a) (2) (A) of Code Section 33-34-4 . . . (B) [e]ighty-five percent of the loss of income or earnings of the insured during disability” and, certain other expenses not here applicable. (Emphasis supplied.)

It is clear on the face of the statute that the insured is statutorily entitled to determine the order in which his legitimate no-fault expense claims will be paid, and the state court did not err in so concluding. As the pertinent language of OCGA § 33-34-5 is plain and susceptible of but one natural and reasonable construction, an appellate court has no authority to place a different construction upon it, but must construe it according to its terms. Ringewald v. Crawford W. Long Mem. Hosp., 258 Ga. 302, 303 (1) (368 SE2d 490). The question remains, however, as to how this right should be exercised,

Appellant, citing inter alia State Farm &c. Ins. Co. v. Penrow, 142 Ga. App. 463, 466 (236 SE2d 275), asserts that appellee by identifying the healthcare providers who were to be paid in the application for benefits is estopped from challenging appellant’s subsequent exhaustion of all optional benefits through the timely payment of these providers. The cases cited by appellant are factually distinguishable from this case. Moreover, the application for benefits, filed in this case upon a form prepared by the appellant State Farm, would reasonably place an insurer on notice the insured was filing both a claim for medical expenses and a claim for lost wages, and that the current aggregate amount claimed by the insured ($30,800) already exceeded the total amount of coverage available. In such circumstances, an insurer pays a claim at its peril if it does so without first diligently obtaining a priority of payment determination from the insured. In this regard, it was the “clear intent of the legislature in OCGA § 33-34-5 (a) (1)” that the optional no-fault benefit coverage would be utilized in the manner “most beneficial to the insured and the beneficiaries” (State Farm &c. Ins. Co. v. Acheson, 182 Ga. App. 218, 219 (1) (355 SE2d 128)), and that an insured would be vested with a statutory right to determine the most beneficial order in which optional benefits would be used in the payment of legitimate expense claims under OCGA § 33-34-5 (a) (1).

Appellant, however, citing Strickland v. American Home Assur. Co., 186 Ga. App. 425, 426 (367 SE2d 241) and Jones v. State Farm &c. Ins. Co., 156 Ga. App. 230 (274 SE2d 623), contends that as it was required to pay appellee’s medical expenses within 30 days of receiving “reasonable proof of the fact and the amount of loss sustained” (see, e.g., OCGA § 33-34-6 (b)), and that having done so to the exhaustion of all applicable coverage it is in effect relieved of all further legal responsibility towards the insured. We cannot agree with this logic, as it would transfer the right of determining claims payment priorities to the insurer in derogation of legislative intent. Moreover, although OCGA § 33-34-6 (b) allows insurers to pay basic no-fault payments “directly to persons or firms supplying necessary products, services, or accommodations to the claimant,” this authority must be interpreted in harmony with both OCGA §§ 33-34-4 and 33-34-5. Although “ ‘[i]t is implicit [within OCGA § 33-34-6 (b)] that [basic no-fault] payments may be paid by the insurer to “the person entitled to the benefits,” it remains the general rule, however, that “benefits purchased in excess of $5,000 are to be paid as determined by the insured without apportionment.” Jenkins & Miller, Ga. Auto. Ins. Law (rev. ed.), Payment of No-Fault Benefits, § 27-4. Accordingly, we find appellant’s contention to be without merit.

We need not today decide the legal ramifications upon an insurer who in good faith diligently attempts to obtain a determination from an insured, as to priority of payment, and whether the statutory periods of OCGA § 33-34-6 (b) and (c) either are tolled during such an effort or whether the insurer would have reasonable or probable cause, within the meaning of Binns v. MARTA, 250 Ga. 847, 848 (301 SE2d 877), for not paying no-fault claims on time while awaiting the insured’s determination. We do not, however, believe the legislature intended either for an insurer to use this situation as a shield to divest an uninformed claimant of his statutory right of determination or for an insured to force a diligent insurer into a penalty situation by being dilatory in his determination as to priority of payment of competing claims. Of course, procedures might be considered to inform an insured of his right of determination and to obtain his determination at the time an application for benefits is filed. In any event, appellant’s unilateral election to exhaust all optional benefits by making payments to medical providers without attempting to obtain the insured’s timely determination as to priority of claims payment, does not satisfy its statutory obligation to the insured.

Appellant next asserts that the insured’s silence as to payment order justifies payment in the order sufficient proof of claim was received. Appellant’s reliance on Santiago v. Safeway Ins. Co., 196 Ga. App. 480 (396 SE2d 506) is misplaced. The facts of this case unlike Santiago do not involve an assignment of the right to insurance proceeds to a medical provider. Appellant’s reliance upon the hospital lien authority of OCGA § 44-14-470 to establish a priority for lien payment in the absence of a determination under OCGA § 33-34-5 (a) (1) also is without merit. OCGA § 44-14-474 expressly provides that Title 44, Chapter 14, Article 8, Part 8, which includes OCGA § 44-14-470 therein, does not “apply to benefits for loss of income or earnings which are provided pursuant to Chapter 34 of Title 33.” Thus, OCGA § 44-14-470 could not provide a lien priority over claims for lost wages or income under Chapter 34 of Title 33 (Georgia Motor Vehicle Accident Reparations Act). As appellant’s contention that it obtains a right to determine priority of claims payment merely due to the insured’s silence runs contrary to the legislative intent of OCGA § 33-34-5 (a) (1) in vesting the insured with such right of determination, it is without merit. As appellant has not enumerated as error, argued or provided any citations of authority as to the issue of waiver of the insured’s statutory right of determination, see generally OCGA § 1-3-7, we need not address this issue. Roberts v. Cotton States &c. Ins. Co., 186 Ga. App. 371, 373 (367 SE2d 272); Court of Appeals Rule 15 (c).

(c) Appellant contends that it has not received sufficient information to justify payment of loss of income benefits. The record reflects that the application for benefits filed on appellee’s behalf contained a claim for $800 lost wages or salary, it asserted that the loss resulted from appellee’s injury, and it asserted that appellee had been disabled since July 8, 1988, and had not yet returned to work. The application further revealed the names and addresses of appellee’s alleged current employer, appellee’s former employment history, and the alleged dates of appellee’s employments. The wage and salary verification form in the record does not expressly support appellee’s claim for loss of wages; rather, it reflects that appellee was an independent contractor who performed in-home patient sitting for the alleged employer’s mother on an “as needed basis.”

At trial, lost wages and earnings are not recoverable where the evidence does not show the amount of the loss with reasonable certainty, and lost wages and earnings cannot be recovered if the evidence permits the jury to no more than speculate or guess as to the amount of loss. See generally Allison v. Auto-Owners Ins. Co., 256 Ga. 446 (349 SE2d 682); Beal v. Braunecker, 185 Ga. App. 429 (5) (364 SE2d 308); Rosser v. Atlanta Coca-Cola Bottling Co., 162 Ga. App. 503 (1) (291 SE2d 109), rev’d on other grounds, Atlanta Coca-Cola Bottling Co. v. Rosser, 250 Ga. 52 (295 SE2d 827). However, OCGA § 33-34-6 (b) provides in pertinent part that benefits required to be paid without regard to fault “are overdue if not paid within 30 days after the insurer receives reasonable proof of the fact and the ¿mount of loss sustained.” “OCGA § 33-34-6 (b) is silent as to what constitutes reasonable proof of the fact and the amount of loss sustained. In Jones v. State Farm &c. Ins. Co., 156 Ga. App. 230 (274 SE2d 623) (1980), we held that the date on which an insurer should be deemed to have received reasonable proof of the fact and the amount of loss sustained by its insured is that date upon which the insurer receives sufficient proof from the insured to enable the insurer to verify or disprove, through the exercise of reasonable diligence, the basic components of the insured’s claim. Thus, OCGA § 33-34-6 (b), as interpreted by Jones, does not require a claimant to submit proof of loss of such exactitude as would verify the claim in and of itself. The proof of loss submitted need only be such as would enable the insurer to verify the basic components of the claim through the exercise of reasonable diligence.” (Citations and punctuation omitted.) Strickland v. American Home &c. Co., supra at 427-428; Hufstetler v. Intl. Indem. Co., 183 Ga. App. 606, 607 (359 SE2d 399).

As a general rule, when claimant asserts in an application for benefits a claim for lost wages or income, and in support thereof lists thereon a description of injuries received, place of hospitalization, date and duration of the asserted disability, the date, duration, and average wage or salary of asserted current employment, amount of lost income to date, history of past employment, and accurate names and addresses or telephone numbers of asserted current and former employers, this information will constitute sufficient proof, within the meaning of Strickland and Hufstetler, from which an insurer with the exercise of reasonable diligence could verify or disprove the basic components of the claim. Such information was provided in this case. However, the wage and salary verification form received by the insurer from the alleged employer was relatively noncommittal and stated inter alia that appellee was an independent contractor who worked on an “as needed basis.” This information arguably could tend either to verify or dispute appellee’s claim for lost wages, as that claim is crafted in the application for benefits, depending upon whether the reasonable inferences to be drawn therefrom were drawn to the benefit of the appellant or to the appellee. On summary judgment, the party opposing a motion for summary judgment is entitled to a favorable construction of the evidence and the benefit of all reasonable inferences and conclusions. Moore v. Goldome Credit Corp., 187 Ga. App. 594 (370 SE2d 843). When appellant is given such benefit, it may reasonably be inferred from the information reported in the wage and salary verification form that appellee was not working for the continuous period of March 1988 to July 7, 1988, as asserted in the application for benefits. This factual inference and the reasonable conclusion which could be drawn from the noncommittal manner in which the alleged employer responded would tend to cast doubt on the credibility of appellee’s lost wages claim, as “ ‘a person must be employed at the time of his injury to be entitled to compensation for lost earnings under the Georgia Motor Vehicle Accident Reparations Act (cit.), and the same rule applies even though a person’s unemployment is only temporary.’ ” Aetna Cas. &c. Co. v. Revere, 160 Ga. App. 316, 317 (287 SE2d 251).

But whether appellant with the exercise of reasonable diligence could have verified timely the basic components of appellee’s claim for lost wages normally would be an issue for jury determination. We see no reason to hold otherwise in this instance, particularly as the evidence of record includes but is not limited to the fact the employer’s wage and salary verification inquiry was not dated until August 12, 1988, 11 days after the application for benefits was submitted and four days after $7,620 had already been paid to medical providers, and that neither the claimant nor the alleged employer was advised that time was of the essence in response thereto.

Thus, we conclude a genuine issue of material fact exists regarding the adequacy of appellee’s claim for lost wages under the test prescribed by Strickland, Hufstetler, and Jones.

(d) Appellant asserts the lower court erred in holding that plaintiff is entitled to lost wage payments in the amount of $22,500. We agree. No facts exist in the record, as would be admissible in evidence establishing appellant suffered a loss of wages in this particular amount. OCGA § 9-11-56.

“If a policy of insurance is issued it must contain the coverages of [OCGA § 33-34-4] and may contain the coverages of [OCGA § 33-34-5] at the election of the insured.” Hall v. State Farm &c. Ins. Co., 254 Ga. 633, 634 (331 SE2d 530). Appellee in essence asserts that pursuant to OCGA § 33-34-4 (a) (2) (A) there exists under the mandatory minimum or basic no-fault coverage of the policy a $2,500 ceiling on medical expenses, but that under the precedent of Glover v. Grogan, 162 Ga. App. 768, 772 (292 SE2d 465), no ceiling exists for loss of income or earnings except for the aggregate minimum or basic no-fault limit of $5,000 per insured injured person. See generally Jenkins & Miller, supra at §§ 24-3; 24-5; 24-6; 24-15; 25-3; and 25-4. Thus, appellee contends the portion of the basic or minimum no-fault coverage paid to the medical providers in excess of the $2,500 ceiling was paid contrary to law. Appellee also asserts that under OCGA § 33-34-5 (a) (1) she is entitled to designate how the benefits are to be paid, that under Acheson, supra, she is entitled to utilize the benefits in a manner most useful to her, and that she elected to have her benefits paid in the form of lost wages. Thus, appellee concludes the order granting partial summary judgment in the amount of $22,500 should be affirmed. This is a misconstruction of no-fault automobile insurance law. Appellee is not entitled to a windfall merely because she elects to have her benefits paid in a certain priority. OCGA §§ '33-34-4 (a) (2) (B) and 33-34-5 (a) (1) (B) provide, as therein stated, for compensation of 85 percent of the loss of income or earnings of the insured during disability; and, OCGA § 33-34-6 provides that no-fault benefits shall be payable monthly as loss accrues. Thus, it was the legislature’s intent that under basic or minimum and optional no-fault coverage an insured is entitled to receive compensation for income or earnings actually lost due to injury, and payable monthly in accordance with the applicable statute as such loss accrues. The record fails to establish that there exists no genuine issue of material fact regarding the actual loss of income or earnings accrued in the amount of $22,500, and also fails to establish appellee is entitled to a judgment as a matter of law to such an amount. OCGA § 9-11-56 (c).

2. Appellant, relying upon Leonaitis v. State Farm &c. Ins. Co., 186 Ga. App. 854 (368 SE2d 775), asserts that the trial court erred in failing, to grant summary judgment as there exists an absence of any documentation to substantiate a claim for lost income. We disagree. Leonaitis, supra, is factually distinguishable from this case. In Leonaitis, the record contained no evidence substantiating the claim of income loss beyond claimant’s salary from the corporation of which he was president and majority stockholder. In this case, appellee’s claim for lost wages in the application for benefits, coupled with the stipulation of the parties as to the clearly disabling serious injuries she sustained and her hospitalization from July 8, 1988 to August 13, 1988, and the partially corroborating information in the wage and salary verification to the effect that she did in fact work as an independent contractor on an as-needed basis as a patient sitter for her alleged employer’s mother, was sufficient to create a genuine issue of material fact as to the issue of whether loss of wages had occurred. See Division 1 (c) above.

3. Appellant asserts that as the facts do not support a finding of bad faith on its part, the trial court erred in failing to grant it summary judgment on this issue. “While ordinarily the question of the insurer’s good faith or lack thereof is one of fact for the jury, where there is no evidence of bad faith and/or where the evidence on the issue of liability is so close as to demand a finding of good faith, the issue can be decided as a matter of law.” Strickland, supra at 427; compare International Indem. Co. v. Collins, 258 Ga. 236, 238 (367 SE2d 786).

Appellee, however, relies upon Insurance Co. of N. America v. Smith, 189 Ga. App. 353 (375 SE2d 866) (record shows insurer did not seek any further proof or inform the claimant that further proof would be needed) and Hufstetler, supra, as establishing a duty of insurer to exercise reasonable diligence to verify the basic components of a claim. See Insurance Co. of N. America v. Smith, 183 Ga. App. 266 (2) (358 SE2d 658). The evidence in this record reflects certain delay on the part of the insurer in promptly obtaining wage and salary verification. The record also reflects that merely seven days after the application for benefits was filed a $7,620 benefit payment was made directly to medical providers before the insurer even signed the wage and salary verification form. Further, the record is devoid of any showing that appellant ever sought to inform the alleged employer or the claimant of the necessity for prompt wage and salary verification or of the necessity of other additional proof. Nor did appellant seek to obtain claimant’s determination as to priority of benefit payment. Thus, the facts of this case are clearly distinguishable from those in Equitable Gen. Ins. Co. v. Johnson, 166 Ga. App. 215 (303 SE2d 757). We find based on the posture of the record that a genuine issue of material fact exists as to appellant’s good faith within the meaning of OCGA § 9-11-56 (c).

Decided February 12, 1991

Rehearing denied February 27, 1991

Harper, Waldon & Craig, Thomas D. Harper, for appellant.

Dietrick, Evans & Scholz, William P. Evans, for appellee.

Appellant’s remaining assertions are without merit.

Judgment denying defendant’s motion for summary judgment is affirmed; judgment granting plaintiff’s motion for partial summary judgment is reversed.

Banke, P. J., and Cooper, J., concur.


text:
    A90A1799.
    EXLEY v. THE STATE.
    (402 SE2d 798)
   Cooper, Judge.

Appellant was charged in five indictments with five counts of child molestation, one count of rape, two counts of aggravated sodomy and two counts of aggravated child molestation. He was tried before a jury and was acquitted of one count of child molestation and convicted of the remaining counts. This appeal follows the entry of judgment on the verdict and sentencing.

1. Appellant enumerates as error the admission of testimony of a psychiatrist and a counselor which appellee contends improperly placed his character in issue. Relying on Sanders v. State, 251 Ga. 70 (303 SE2d 13) (1983), appellant argues that the testimony of a psychiatrist, who treated one of the victims, describing a pedophile, the general difficulties suffered by their victims and the particular problems of one of the victims’, coupled with the testimony of appellant’s former counselor that appellant admitted having a sexual preference for eight to ten-year-old-girls, was improper. In Sanders, however, the court held that evidence of a syndrome, in that case the “battering parent syndrome,” and “character evidence showing a defendant’s personality traits and personal history as [the] foundation for demonstrating the defendant has the characteristics of a typical battering parent” were inadmissible “unless a defendant has placed [his] character in issue or has raised some defense which the battering parent syndrome is relevant to rebut. . . .” Id. at 76. A review of the psychiatrist’s testimony in the instant case reveals that he did not set forth the profile of a pedophile but merely defined the term, and there was no discussion of appellant’s personal history or traits in connection with the definition of the term. Therefore, this testimony did not place appellant’s character in issue. The counselor’s testimony was properly admitted (Lipsey v. State, 170 Ga. App. 770 (3) (318 SE2d 184) (1984)) and may have incidentally placed appellant’s character in issue (see Walls v. State, 166 Ga. App. 503 (2) (304 SE2d 547) (1983)); however, it is highly probable that such error, if any, did not contribute to the conviction, in view of the extensive evidence provided by the victims, girls between the ages of eight and 11. See Stevens v. State, 195 Ga. App. 324, 326 (393 SE2d 482) (1990).

2. Appellant charges that the trial court abused its discretion in refusing to allow appellant to recall one of the victims for cross-examination after a videotaped interview of the victim was shown. “ ‘Pursuant to OCGA § 24-3-16, a statement made by a child under the age of 14 to another concerning sexual contact or physical abuse is admissible if the child is available to testify and the court finds sufficient indicia of reliability in the statement.’ [Cit.] It is well settled that the admission of such evidence under these circumstances does not violate the constitutional right of confrontation ‘if the witness testifies at trial and is subject to cross-examination.’ [Cit.]” McCoy v. State, 194 Ga. App. 244 (3) (390 SE2d 251) (1990). Appellant contends the trial court deprived him of the opportunity to cross-examine the witness on certain allegations made in the videotaped interview. The record shows that this witness was extensively cross-examined by appellant and answered questions under recross-examination. She was excused without objection before the tape was played, and appellant was aware that the State intended to use the videotape. Four days later, after the State rested, appellant’s motion for directed verdict had been denied, and appellant stated that he had no further evidence to present, appellant asked if the witness could be called for a “brief cross.” “ ‘ “The scope of cross-examination is not unlimited. That extent necessarily must rest largely within the discretion of the trial judge in order to keep the questioning within reasonable bounds. It is error only when this discretion is abused.” ’ [Cit.]” Lucas v. State, 192 Ga. App. 231, 233 (2) (384 SE2d 438) (1989). Based on the foregoing, we find no such abuse of discretion. See White v. State, 193 Ga. App. 428 (6) (387 SE2d 921) (1989).

3. Appellant next contends his right to a thorough and sifting cross-examination of a victim was abridged by the chilling effect of the court’s citing his counsel for contempt and the court’s command of counsel, in a threatening tone, to “be quiet” and to “finish up.” The trial transcript reveals that prior to the court’s action the State had objected to appellant’s question challenging the witness’ memory on recross-examination. Without pausing for the court’s ruling on the objection, appellant’s counsel continued his questioning, and the court responded citing him for contempt. The court then ordered counsel to “be quiet” and “finish up.” The court did not “abruptly terminate the recross-examination,” as appellant contends, and it appears that events immediately preceeding the trial court’s action and prior warnings to counsel by the court constituted sufficient evidence upon which a rational trier of fact could find counsel guilty of wilful contempt beyond a reasonable doubt. See In re Irvin, 254 Ga. 251 (2) (328 SE2d 215) (1985). Given that counsel’s conduct triggered the court’s action, we find appellant’s contention to be without merit. “It is never permissible to base appellate error on induced error. [Cit.]” Bone v. State, 178 Ga. App. 802, 806 (3) (345 SE2d 46) (1986).

Decided February 27, 1991.

John Van Lloyd, for appellant.

Spencer Lawton, Jr., District Attorney, Gregory M. McConnell, Assistant District Attorney, for appellee.

4. Finally, appellant enumerates as error the failure of the trial court to order separate trials because of the likelihood of prejudice resulting from the jury’s inability to distinguish the evidence and the lack of evidence of a scheme or plan. “ ‘ “[T]wo or more offenses may be joined in one charge, with each offense stated in a separate court, when the offenses are of the same or similar character, even if not part of a single scheme or plan. However, whenever two or more offenses have been joined for trial solely on the ground that they are of the same or similar character, the defendant shall have a right to a severance of the offenses.” ’ [Cit.] Where offenses are similar in nature and show a common plan or scheme, whether to grant a defendant’s motion for severance is an exercise of the trial court’s discretion since the crimes are not joined simply because they are similar. [Cit.] All of the charges leveled against appellant [in the instant case] involved sexual activity with young girls, reaching the level of a pattern.” Franklin v. State, 185 Ga. App. 502, 503 (364 SE2d 632) (1988). In addition, “ ‘[s]ince appellant was acquitted [of one] of the [child molestation] counts, it is clear that the jury was “ ‘able to distinguish the evidence and apply the law intelligently as to each offense.’ ” The trial court did not err in denying the motion to sever.’ [Cit.]” Langston v. State, 195 Ga. App. 873 (1) (395 SE2d 74) (1990).

Judgment affirmed.

Banke, P. J., and Birdsong, P. J., concur.