author: Carley, Presiding Judge.

text:
    A91A1706.
    SAFETY-KLEEN CORPORATION et al. v. SMITH.
    (417 SE2d 171)
   Carley, Presiding Judge.

Appellee-plaintiff filed suit, alleging that appellant-defendants Safety-Kleen and its employees Tyler, Parker and Lloyd had engaged in a conspiracy to slander him. According to appellee, after he voluntarily left his employment with Safety-Kleen and began working for a competitor, his potential customers and his former customers had been given false information concerning the reasons why he was no longer employed by Safety-Kleen. The case was tried before a jury and a verdict for actual damages only was returned in favor of appellee and against all appellants. Appellants appeal from the judgment that was entered by the trial court on the jury’s verdict.

1. As against Safety-Kleen, there is no evidence to authorize a finding that it expressly directed or authorized any of the other appellants to engage in the slander of appellee. “A corporation is not liable for damages resulting from the speaking of false, malicious, or defamatory words by . . . its agents, even where in uttering such words the speaker was acting for the benefit of the corporation and within the scope of the duties of his agency, unless it affirmatively appears that the agent was expressly directed or authorized by the corporation to speak the words in question.” Behre v. Nat. Cash Register Co., 100 Ga. 213 (1) (27 SE 986) (1897). Accordingly, the trial court erred in denying Safety-Kleen’s motion for directed verdict. Georgia Power Co. v. Busbin, 242 Ga. 612, 615 (4) (250 SE2d 442) (1978).

2. The holding in Division 1 does not, in and of itself, mandate a reversal of the judgment against the remaining appellants. City of Fairburn v. Cook, 188 Ga. App. 58, 61 (4) (372 SE2d 245) (1988); Hubacher v. Volkswagen Central, 164 Ga. App. 791, 793 (2) (298 SE2d 533) (1982).

3. As against appellants Tyler, Parker and Lloyd, the circumstantial evidence would not authorize a finding of the existence of a conspiracy to slander appellee. The mere fact that, in his new employment, appellee lost sales after those appellants had spoken to his prospective customers shows only that they were competing with him for business, and not that they conspired to slander him. However, there was sufficient direct evidence of the existence of a conspiracy so as to withstand a motion for directed verdict. A witness testified to having overheard telephone conversations wherein all three individual appellants said “they were going to customers to let them know [appellee] had stole from the company, that he was dishonest, not to do business with him.”

However, “ ‘the conspiracy of itself furnishes no cause of action. The gist of the action ... is not the conspiracy alleged, but the tort committed against plaintiff and the resulting damage. [Cit.]’ ” Cook v. Robinson, 216 Ga. 328, 329 (1) (116 SE2d 742) (1960). Accordingly, in the absence of evidence that one of the three individual appellants who allegedly conspired to slander appellee had, in fact, made slanderous statements in furtherance of the conspiracy, a verdict against them and in favor of appellee cannot stand.

A witness’ testimony that Tyler “led [her] to believe that [appellee] was fired for being dishonest and stealing from [Safety-Kleen]” is not evidence of a slanderous statement. There was no testimony as to the actual words employed by Tyler and the witness may have been “led to believe” an untruth about appellee without Tyler ever having uttered any defamatory words. Innuendo may be employed to demonstrate that ambiguous words are slanderous, but it does not obviate the necessity for proof of the words that were actually spoken. “ ‘ “The office of an innuendo is to explain that which is of doubtful or ambiguous meaning in the language of the publication, but cannot enlarge the meaning of words plainly expressed therein.” ’ [Cit.] Thus, where the plain import of the words spoken impute no criminal offense, they cannot have their meaning enlarged by innuendo. [Cit.]” Burrow v. K-Mart Corp., 166 Ga. App. 284, 286 (1) (304 SE2d 460) (1983).

Likewise, evidence merely that Parker was present on an occasion when allegedly defamatory words were spoken to another witness proves nothing. If it could not be shown that Parker or another co-conspirator spoke the allegedly defamatory words, neither he nor any of the other alleged co-conspirators could be found liable for slander. Obviously, any recovery based upon a conspiracy to commit slander requires proof that a slander was committed by one of the alleged co-conspirators.

The only probative evidence of any slanderous utterance made by one of the appellants was testimony given by appellee’s own brother. He ^testified that, in a sales meeting of Safety-Kleen’s employees, Tyler made the comment that appellee was a “thief or stole from the company. . . .” The credibility of this witness was for the jury and, if the statement attributed to Tyler was false, this witness’ testimony would be sufficient to require the denial of a motion for directed verdict.

Insofar as the truth of the statement attributed to Tyler is concerned, appellee admitted that he had sold certain of Safety-Kleen’s products and had pocketed the proceeds as “side money.” He defended his conduct in this regard by producing evidence that other Safety-Kleen employees had done likewise. If this practice had not been specifically authorized by Safety-Kleen as its corporate policy, however, the mere fact that other Safety-Kleen employees were doing likewise would not demonstrate that appellee was not a thief. It would show only that the other Safety-Kleen employees were also thieves. However, there is no evidence that the practice had not been authorized by Safety-Kleen and, therefore, it cannot be said that the statement attributed to Tyler was, as a matter of law, true. Accordingly, construing the evidence most favorably for the verdict, there was some evidence to authorize a finding that appellants Tyler, Parker and Lloyd conspired to slander appellee and that one of them made a slanderous statement in furtherance of that conspiracy. It follows that the trial court did not err in denying their motion for directed verdict.

4. Enumerations of error regarding attorney’s fees and punitive damages need not be addressed, since the jury awarded neither.

5. Over appellants’ relevancy objection, appellee was permitted to testify that he had been fired from the employment he had entered into after leaving Safety-Kleen and that his firing had been because he would not forego pursuit of the instant lawsuit. The failure to sustain this objection is enumerated as error.

This testimony has no relevancy whatsoever to the instant lawsuit. There is no evidence that any of the appellants were instrumental in pressuring appellee’s employer to make his dropping of the instant lawsuit a condition of his continued employment. Under the evidence, appellee was given an option by his employer and he made his election. The giving of the option and the consequences of appellee’s decision are matters which should be resolved as between appellee and his employer, not as between him and appellants. The only effect of this irrelevant testimony could have been to evoke sympathy for appellee and prejudice against appellants. Accordingly, a new trial is warranted. “This testimony was prejudicial to [appellants], and was not germane to the issue. It was erroneous to allow it in evidence.” Isley v. Little, 219 Ga. 23, 27 (4) (131 SE2d 623) (1963).

6. A review of the record demonstrates that the trial court gave numerous charges on the principle that damages are presumed or inferred in the case of slander per se. However, we need not decide whether these repeated references were so unnecessarily and unduly repetitive as to constitute an independent ground of reversal. Since the case must already be retried for the reasons given in Division 5, it will suffice merely to direct that, at the retrial, the trial court should tailor its charge so that it is a fair and impartial statement of the applicable law.

7. Appellants enumerate as error the trial court’s refusal to give a requested charge to the effect that the jury “must draw” an adverse inference against a witness who has invoked the Fifth Amendment. It was not error to refuse to give this requested charge, because it is an erroneous statement of the law. “[W]hen a witness invokes a privilege against self-incrimination, an adverse inference may be drawn. [Cits.]” (Emphasis supplied.) In The Matter of Robert A. Meier, 256 Ga. 72, 73 (344 SE2d 212) (1986).

Decided March 4, 1992

Reconsideration denied March 24, 1992

Holt, Ney, Zatcoff & Wasserman, J. Scott Jacobson, Robert F. Leverett, for appellants.

Hardwick & Associates, Clifford H. Hardwick, for appellee.

8. It was error to refuse to give appellants’ request to charge relating to nominal damages and, if requested at the retrial, the charge should be given. Ransone v. Christian, 56 Ga. 351, 357 (6) (1876).

9. Remaining enumerations of error have been considered and are found to be without merit or not likely to recur at retrial.

10. Pursuant to OCGA § 9-11-50 (e), the judgment against Safety-Kleen is reversed with direction that judgment be entered in favor of Safety-Kleen. See generally Belk-Hudson Co. v. Davis, 132 Ga. App. 237, 241 (1c) (207 SE2d 528) (1974). The judgment against Tyler, Parker and Lloyd is reversed with direction that they be granted a new trial.

Judgment reversed with direction.

Johnson, J., concurs. Beasley, J., concurs in the judgment only.


source: Caselaw Access Project

license: Public Domain

text:
    A91A1800.
    VENABLE v. THE STATE.
    (417 SE2d 347)
   Carley, Presiding Judge.

Appellant was tried before a jury and found guilty of distribution of marijuana. He appeals from the judgment of conviction and sentence entered by the trial court on the jury’s guilty verdict.

1. Appellant gave a custodial statement which was reduced to writing and then signed by him. Appellant sought to exclude this statement from evidence on the ground that it had been given only after he had asserted a right to counsel and was inadmissible pursuant to Edwards v. Arizona, 451 U. S. 477 (101 SC 1880, 68 LE2d 378) (1981). A Jackson-Denno hearing was held, wherein the officer who had taken the statement testified that appellant had not asserted his right to counsel. The trial court found appellant’s statement to be admissible and appellant’s enumeration of this evidentiary ruling as error has no merit. Frazier v. State, 257 Ga. 690, 696 (14) (362 SE2d 351) (1987). See also Davis v. State, 255 Ga. 598, 606 (11) (340 SE2d 869) (1986).

2. Appellant urges that he was denied the right to a thorough and sifting cross-examination as to the identity and background of an informant.

The record demonstrates that appellant knew who the informant was. Thus, from a discovery perspective, there was no reason whatsoever for appellant to conduct cross-examination as to the informant’s identity. From an evidentiary perspective, disclosure to the jury of the mere identity of the informant would have no bearing on appellant’s guilt or innocence and he suffered no harm from the trial court’s refusal to allow him to elicit the name of the informant on cross-examination of the State’s witnesses.

Insofar as the background of the informant is concerned, appellant cites only one instance wherein he attempted to pursue that issue on cross-examination. The record shows that, in the context of that cross-examination, appellant was allowed to ask the State’s witness if she knew “why the informant agreed to work with the Georgia Bureau of Investigation. . . .” The State’s witness responded that she did not. Accordingly, even assuming that the informant’s background was a relevant topic of inquiry, appellant was not harmed by the trial court’s ruling that he could not pursue that topic with a State’s witness who had no knowledge thereof.

3. Appellant moved for a directed verdict of acquittal based upon his defense of entrapment. The denial of this motion is enumerated as error.

“Entrapment exists where the idea and intention of the commission of the crime originated with a government officer or employee, or with an agent of either, and he, by undue persuasion, incitement, or deceitful means, induced the accused to commit the act which the accused would not have committed except for the conduct of such officer.” OCGA § 16-3-25. There is some question whether appellant’s evidence, standing alone, was sufficient to raise the issue of whether he was entrapped. In any event, when all of the evidence is considered, a finding that appellant was entrapped was certainly not demanded. Compare Hill v. State, 261 Ga. 377 (405 SE2d 258) (1991). The jury was authorized to find that, from his initial contact with the female undercover agent, appellant was predisposed to distribute marijuana and that, without any undue persuasion, incitement, or deceitful means on her part, he eventually did distribute marijuana to her. It is immaterial that the State may not have rebutted appellant’s testimony that the source of the marijuana was an informant who had told him that, if he wished to “get in good” with the female undercover agent, he would give her the marijuana. “The fact that a government informer furnished the contraband to a defendant does not constitute entrapment. [Cit.]” Smith v. State, 239 Ga. 477, 480 (1) (238 SE2d 116) (1977). Likewise, the fact that appellant may have wished to “get in good” with the female undercover agent and that, without any undue encouragement on her part, he believed the informant’s statement that he could accomplish that by providing her with marijuana, would not demand a finding of entrapment. “ ‘[T]here is no entrapment where the officer merely furnishes an opportunity to a defendant who is ready to commit the offense.’ [Cits.]” Howell v. State, 157 Ga. App. 451, 453 (3) (278 SE2d 43) (1981).

Decided March 3, 1992

Reconsideration denied March 24, 1992

Boling, Rice & Bettis, Jeffrey S. Bagley, for appellant.

Garry T. Moss, District Attorney, C. David Turk III, Assistant District Attorney, for appellee.

Judgment affirmed.

Beasley and Johnson, JJ., concur.


author: Cooper, Judge. Pope, Judge,

text:
    A91A1815.
    HARDMAN v. KNIGHT.
    (417 SE2d 338)
   Cooper, Judge.

Appellant, an attorney, filed suit against appellee, a former client, for the recovery of unpaid attorney fees. Appellee answered the suit and filed a counterclaim against appellant alleging professional malpractice. An affidavit of an attorney was attached to the counterclaim as an exhibit as required by OCGA § 9-11-9.1 (a); however, the affidavit was not signed. Less than one month later, appellee filed an amendment to his answer and counterclaim which included an affidavit signed by another attorney. Appellant filed a motion to dismiss the counterclaim pursuant to OCGA § 9-11-9.1 for appellee’s failure to attach an executed affidavit to the initial counterclaim. The trial court first granted the motion to dismiss the original counterclaim because the affidavit filed was insufficient. Further, the court held that the exception of OCGA § 9-11-9.1 (e), which provides that the failure to file an affidavit can be cured by amendment only if the court determines that the claimant had the affidavit prior to filing the complaint and the failure to file was the result of a mistake, did not apply because an affidavit, albeit an insufficient, one, was filed. However, the court then proceeded to hold that appellee could amend the answer to properly assert the counterclaim pursuant to OCGA § 9-11-13 (f), which allows an omitted counterclaim to be asserted by amendment with leave of court, when, among other things, “justice requires.” The court determined that appellant would not be prejudiced or surprised by appellee’s counterclaim since appellant was on notice of such by appellee’s original answer. Also, the court noted the short time period between the original answer and the amendment and found that justice required appellee to be granted leave to present his counterclaim by amendment. Appellant’s interlocutory appeal from this order was granted, and appellant enumerates that the court erred in holding that the affidavit required by OCGA § 9-11-9.1 can be provided by an amendment to a pleading pursuant to OCGA § 9-11-13 (f), and further, that the court erred in failing to dismiss the counterclaim asserted in the amended answer.

Appellant argues that OCGA § 9-11-9.1 is mandatory and provides only limited exceptions to the affidavit filing requirement, none of which is applicable in this case. Therefore, since OCGA § 9-11-9.1 prescribes the dismissal of a complaint if the requisite affidavit is not filed and the limited exceptions are not met, appellant urges that OCGA § 9-11-13 (f) cannot be used to circumvent the provisions of OCGA § 9-11-9.1. Appellee argues that OCGA § 9-11-13 (f) is the controlling statute; that OCGA § 9-11-9.1 does not prohibit amendment by way of OCGA § 9-11-13 (f); and that the court’s discretion to allow the counterclaim to be asserted by an amended answer should be upheld. Although we have discovered no direct controlling precedent on this issue, our review of existing case law and the statutes persuades us to agree with appellant.

We first conclude that OCGA § 9-11-9.1 does apply to the assertion of a counterclaim by a defendant. OCGA § 9-11-9.1 (a) states that “[i]n any action for damages alleging professional malpractice,” the plaintiff must file an expert’s affidavit with -the complaint. In Housing Auth. of Savannah v. Greene, 259 Ga. 435, 437 (2) (383 SE2d 867) (1989), the Georgia Supreme Court stated that “[u]nder the Civil Practice Act, an ‘action’ is defined as meaning ‘the judicial means of enforcing a right’ [cit.],” and held that third-party complaints come within the scope of that definition. Therefore, the Greene court held OCGA § 9-11-9.1 to be applicable to third-party complaints. Counterclaims, as well, are encompassed by the quoted definition of an “action” and are similarly subject to the affidavit requirement. Further, in McLendon & Cox v. Roberts, 197 Ga. App. 478, 479 (398 SE2d 579) (1990), we acknowledged that OCGA § 9-11-9.1 “extends to any litigant who alleges harm as a result of the defendant professional’s negligent performance of professional services. [Cit.]”

OCGA § 9-11-9.1 (e) provides the only method by which the failure to file an affidavit with a complaint can be cured by amendment. Under the statute, an amendment to a complaint to add the affidavit is not allowed unless the court determines the plaintiff had the requisite affidavit available prior to filing the complaint and the failure to file was the result of a mistake. See Cheeley v. Henderson, 261 Ga. 498 (405 SE2d 865) (1991). Having concluded that counterclaims are subject to the requirements of OCGA § 9-11-9.1, we determine that amendments to pleadings to assert counterclaims with respect to the filing of the expert affidavit should be subject to the limitations of paragraph (e) of the statute. In the instant case, the trial court correctly concluded that an amendment to the counterclaim is not allowed under OCGA § 9-11-9.1 (e). However, the trial court erred in circumventing those limitations by relying on OCGA § 9-11-13 (f) to allow the amendment to the answer to assert the new counterclaim. The motion to dismiss the original counterclaim and the amended counterclaim asserted by amendment should be granted.

Decided February 24, 1992

Reconsideration denied March 24, 1992

Shapiro, Fussell, Wedge & Smotherman, Robert B. Wedge, Adrienne L. Anderson, Connie H. Buffington, for appellant.

The constitutional arguments raised by appellee were not raised to the court below, and we will not initially consider them on appeal.

Judgment affirmed in part and reversed in part.

Birdsong, P. J., concurs. Pope, J., concurs specially.

Pope, Judge,

concurring specially.

I concur with the majority’s judgment, but I would note that the reason the trial court could not permit the late filing of the expert affidavit pursuant to the exception provided in OCGA § 9-11-9.1 (e) is not because the original insufficient affidavit had been filed, as opposed to mistakenly not filed. Instead, it was because the defendant could not show, as required by that subsection of the statute, that the affidavit was available prior to the filing of the complaint. It was not merely due to an inadvertent mistake that an unsigned copy of the affidavit was filed with the counterclaim. Instead, the defendant admitted in his brief to the trial court that the attorney for whom the original affidavit had been drafted determined prior to the filing of the counterclaim that he was disqualified from offering an opinion in the case due to a conflict of interest. I do not want it to appear from this opinion that a claimant would necessarily be precluded from filing an amendment pursuant to OCGA § 9-11-9.1 (e) if, by inadvertent mistake, an unsigned copy of an affidavit was filed that was otherwise available to a claimant at the time of filing the malpractice claim.

OCGA § 9-11-9.1 (e) expressly states that the provisions of OCGA § 9-11-15, permitting amendments to complaints, cannot be used to circumvent the requirement of timely filing an expert affidavit with a complaint. By the same reasoning, I agree that the provisions of OCGA § 9-11-13, permitting amendment to pleadings to add a counterclaim, cannot be used to circumvent the requirement of timely filing an affidavit.

Beltran & Coffey, Frank J. Beltran, Simone R. Siex, Ralph Per-ales, for appellee.


text:
    A91A1870.
    In the Interest of L. F., a child.
    (417 SE2d 344)
   Carley, Presiding Judge.

Pursuant to OCGA § 15-11-81 (b) (4), appellee-Georgia Department of Human Resources sought the termination of appellant-father’s parental rights in his daughter. The trial court conducted a hearing, made findings of fact, and terminated appellant’s parental rights. Appellant appeals, enumerating only the general grounds.

The evidence shows that appellant has been incarcerated since his daughter was six months old and he has not seen her since that time. While in prison, appellant has been the subject of several disciplinary actions, one of which was for possession of a weapon. He has previous convictions for voluntary manslaughter and burglary. The child’s mother has voluntarily surrendered her parental rights.

“ ‘Although imprisonment alone does not always compel a termination of parental rights,’ it will support such a ruling when adequate aggravating circumstances are shown to exist. In the Interest of R. L. H., 188 Ga. App. 596, 597 (373 SE2d 666) [(1988)]; compare In the Interest of H. L. T., 164 Ga. App. 517 (298 SE2d 33) [(1982)] (where father was a model prisoner). Thus, in determining whether a child is without proper parental care and control, OCGA § 15-11-81 (b) (4) (B) (iii) provides the court shall consider, ‘without being limited’ thereto, the conviction and imprisonment of a parent for a felony offense which has a demonstrable negative effect on the quality of the parent-child relationship. The ‘demonstrable negative effect,’ however, is capable of being shown by circumstantial as well as by direct evidence. And where, as in this case, an incarcerated parent has a criminal history of repetitive incarcerations for the commission of criminal offenses or parole violations, this constitutes an additional factor which may be considered in determining whether the child presently is without the proper parental care and control of the offending parent, and that such is likely to continue. [Cit.] As a general rule, ‘while . . . past deprivation is not sufficient for termination without a showing of present deprivation, the past conduct of the parent is properly considered by the court in determining whether such conditions of deprivation are likely to continue.’ [Cit.]” (Emphasis in original.) In the Interest of S. K. L., 199 Ga. App. 731, 733 (1) (405 SE2d 903) (1991).

“ ‘The appropriate standard of appellate review in a case of this sort is whether after reviewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody were lost.’ [Cit.] ‘The reviewing court is to defer to the lower court in the area of factfinding and should affirm unless the appellate standard of review is not met.’ [Cit.] Applying these standards we find the trial court did not err. [Cit.]” In the Interest of S. K. L., supra at 734 (1).

Decided March 2, 1992

Reconsideration denied March 24, 1992

Bates, Kelehear & Starr, James Toland, Jr., for appellant.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Margot M. Cairnes, Staff Attorney, Waycaster, Corn, Murray & Morris, Cynthia N. Johnson, for appellee.

Judgment affirmed.

Beasley and Johnson, JJ., concur.


author: Sognier, Chief Judge.

text:
    A91A1872.
    A91A1873.
    NAZLI et al. v. SCOTT. VIDANAGAMA et al. v. SCOTT.
    (417 SE2d 187)
   Sognier, Chief Judge.

John A. Scott filed a medical malpractice action against Agustín Aguilar, M.D., Mehmet H. Nazli, M.D., Anne Vidanagama, M.D., their professional corporations, and others. The original action was dismissed without prejudice, and the instant action was filed approximately one month before the expiration of the statutory six-month renewal period set forth in OCGA § 9-2-61, and after the expiration of the statute of limitation. Nazli, Vidanagama, and their professional corporations filed motions to dismiss the complaint on the grounds of insufficiency of process and service of process. The trial court denied their motions but granted a certificate of immediate review. We authorized these interlocutory appeals.

The record establishes that when the renewal action was filed, upon appellee’s motion the trial court ordered the appointment of Daryl Washington as special agent for service of process as authorized by OCGA § 9-11-4 (c). In an affidavit proffered in opposition to appellants’ motions to dismiss, Washington averred that he had perfected service on both Nazli and Nazli’s professional corporation by leaving with Nazli’s wife, at their residence, a copy of the complaint and certain discovery documents. In other affidavits, Washington averred that he had accomplished service on appellants Vidanagama and her professional corporation by leaving copies of the same documents with Mildred Willis, Vidanagama’s office manager, at a specified address (which is not Vidanagama’s residence).

1. Nazli’s professional corporation contends the trial court erred by denying its motion to dismiss the complaint on the ground that the service effected upon Nazli’s wife was insufficient as to the professional corporation because Ms. Nazli was not an agent authorized to accept service on its behalf. We agree with the professional corporation that OCGA § 9-11-4 (d) (1) requires that service be accomplished upon a corporation by serving “the president or other officer . . . , secretary, cashier, managing agent, or other agent” of the professional corporation. See DeJarnette Supply Co. v. F. P. Plaza, 229 Ga. 625 (193 SE2d 852) (1972). We have examined the record carefully, however, and find that it contains nothing, beyond the bare assertion in the brief, showing that Ms. Nazli was not such an agent of the corporation. “The burden of showing harmful error is on appellant, which he must do by the record, not by assertions appearing only in his brief or in his enumerations of error. Where there is nothing in the record to support a contention of error, nothing is presented to this court for review.” (Citations and punctuation omitted.) Sun v. Bush, 179 Ga. App. 80, 81 (4) (345 SE2d 85) (1986). Given the presumption in favor of the regularity of all proceedings in a court of competent jurisdiction, see Brown v. Thomas, 191 Ga. App. 679, 680 (1) (382 SE2d 656) (1989), since the record provides no support for Nazli’s corporation’s claim of improper service, we must affirm the trial court’s judgment in this regard.

2. Appellants contend that service was insufficient as to each of them because Washington failed to include a summons in the documents he served upon them. In this renewal action, the tolling of the statute of limitation was dependent on the diligence of the plaintiff in effecting timely service after filing. See Watters v. Classon, 193 Ga. App. 493, 494 (1) (388 SE2d 397) (1989). Thus, if it had been shown that service was not accomplished properly, the plaintiff would have borne the burden of showing lack of fault, to establish its diligence. Bible v. Hughes, 146 Ga. App. 769, 771 (247 SE2d 584) (1978); Watters, supra. If it were shown that service was not made in conformity with the requirements of OCGA § 9-11-4, unless these requirements were waived by appellants no jurisdiction over them was obtained and the statute of limitation was not tolled. See DeJarnette Supply Co., supra. Appellants were required to support their defenses of insufficiency of process and service of process with evidence. As the trial court denied appellants’ motions to dismiss, we must presume they did not do so, unless presented with evidence to the contrary. Sun, supra. Appellants bear the burden of showing error by the record, and the record on appeal in this case does not affirmatively show that service was improperly accomplished. Although appellants assert in their briefs that they were not served with summons, the evidence of record is insufficient to support the truth of this assertion. The affidavits of Washington are simply silent as to whether he served appellants with summons. No affidavits were filed by appellants averring of their own personal knowledge that they were not served with summons and appellee filed no affidavit showing summons was served. Accordingly, as the record fails to support this enumeration of error, we must affirm the trial court’s judgment in this regard as well. Sun, supra.

3. Vidanagama maintains that service upon Willis was insufficient to obtain personal jurisdiction over her individually. OCGA § 9-11-4 (d) (7) provides that with certain exceptions listed elsewhere in the statute which are not applicable here, an individual defendant must be served “personally, or by leaving copies [of the complaint and summons] at [her] dwelling house or usual place of abode with some person of suitable age and discretion then residing therein, or by delivering a copy of the summons and complaint to an agent authorized by appointment or by law to receive service of process.” Appellee concedes, and we agree, that the record contains sufficient evidence to have authorized the trial court to conclude that service on Willis, Vidanagama’s office manager, was not in compliance with OCGA § 9-11-4 (d) (7) and was thus insufficient as to Vidanagama personally. See Adams v. Gluckman, 183 Ga. App. 666-667 (1) (359 SE2d 710) (1987).

We recognize, as appellee argues, that it is well established that process or proof of service thereof may be amended “in [the trial court’s] discretion and upon such terms as [the trial court] deems just.” OCGA § 9-11-4 (h). However, in the case sub judice, the record shows that appellee did not seek to amend or correct the deficiency by serving Vidanagama personally at any time before the trial court ruled on appellants’ motion to dismiss, thereby distinguishing this case from Mincey v. Stamper, 253 Ga. 301, 302-304 (2) (319 SE2d 857) (1984), cited by appellee (no laches on part of plaintiff in perfecting service after original service shown to be defective because amended process filed within same term of court). Consequently, at the time the trial court ruled on her motion Vidanagama had not been personally served in a manner sufficient to satisfy OCGA § 9-11-4 (d) (7). Under these circumstances we conclude that the trial court should have granted Vidanagama’s motion to dismiss on the ground of insufficiency of service of process and abused its discretion by failing to do so.

Decided March 6, 1992

Reconsiderations denied March 19, 1992 and March 24, 1992

Harman, Owen, Saunders & Sweeney, H. Andrew Owen, Jr., Rolfe M. Martin, Robert J. Higdon, for appellants.

Harold M. Harvey, Christopher J. McFadden, for appellee.

Judgment affirmed in Case No. A91A1872. Judgment affirmed in part and reversed in part in Case No. A91A1873.

McMurray, P. J., and Andrews, J., concur.

       We note that in response to this court’s request to supplement the record on appeal designated by appellants, the trial court forwarded affidavits filed by appellee in the trial court showing that appellants had later been served with process which included summons. We cannot, and do not, consider those affidavits, as they were filed in the trial court after the date of this appeal.


author: Beasley, Judge.

text:
    A91A1989.
    DOVER et al. v. MASTER LEASE CORPORATION.
    (417 SE2d 368)
   Beasley, Judge.

A jury awarded Master Lease $8,500 in its suit against Dover for breach of an allegedly non-caneellable equipment lease agreement. Lessee Dover appeals the denial of his amended motion for new trial.

Morales, a sales representative for the vendor of business equipment, submitted Dover’s application to lessor Master Lease, which agreed to finance Dover’s lease purchase of two electronic pay phone systems.

The lease signed by Dover provided: “Lessee has selected both the Equipment and the supplier from whom Lessor covenants to purchase the Equipment at Lessee’s request. . . . Lessor shall conclusively presume that the equipment is in good operating order and accepted by lessee unless lessee gives lessor written notice to the contrary within five (5) business days of the equipment’s delivery. If no notice is so received lessor may pay vendor for the equipment and the lease shall take effect as of the date of delivery; it also being understood that lessor is not responsible for the performance, maintenance or servicing of the equipment and leases same ‘as-is.’ ”

At the time of installation, lessee’s agent signed a delivery and acceptance receipt, acknowledging “that all of the above described Equipment leased from Master Lease Corporation has been received in good condition, installed, operated properly, and is, therefore unconditionally accepted for purposes of the lease. Lessee authorizes Master Lease Corporation to pay the vendor for the Equipment.”

Dover claimed that the equipment malfunctioned two days after its installation, and he so notified Morales. He made no payments under the lease, and he did not notify lessor about the alleged defects until about two-and-one-half months later.

1. Defendant Dover asserts the trial court erred in failing to strike certain rebuttal testimony. Defendant objected to a question posed on rebuttal by defendant. In response, the court limited the form of the question. Plaintiff neither renewed his objection nor moved to strike the response. Since no further ruling was invoked from the trial court, there is nothing to review.

2. It is asserted that matters not in evidence were addressed in closing argument, but it was not transcribed and no effort has been made to complete the record as provided in OCGA § 5-6-41 (d) and (f). Again, there is nothing to review. See generally Campbell v. Crumpton, 173 Ga. App. 488 (2) (326 SE2d 845) (1985).

3. It is contended that the court impermissibly expressed an opinion as to what had been proved at trial (OCGA § 9-10-7) when it instructed the jury that “defendant has admitted to signing the contract.” Not only was there an absence of objection or motion for mistrial (see Southeastern Ambulance Corp. v. Freeman, 185 Ga. App. 119 (3) (363 SE2d 571) (1987)), but appellant had expressly stipulated to that fact at trial.

4. Next is whether the jury verdict must be set aside because it was unsigned and undated. The verdict was signed by the foreman and was received and published in open court with “no objection” by appellant as to its form.

5. Defendant asserts that the judgment does not conform to the verdict. “In determining whether a judgment conforms to the verdict, the judgment must be construed with reference to the pleadings and the evidence. [Cits.]” Taylor v. Taylor, 212 Ga. 637, 638 (1) (94 SE2d 744) (1956).

The complaint sought damages for breach of contract plus prejudgment interest in accordance with OCGA § 7-4-15 and attorney fees under OCGA § 13-1-11. This demand was restated in the pretrial order. Damages were proved, including the amount of prejudgment interest claimed and attorney fees incurred. The jury found “in favor of the plaintiff and set damages at $8,500.” Judgment was thereafter entered in that amount along with prejudgment interest of $5,758 and attorney fees of $875.

This court cannot consider factual allegations in a brief which are not supported by the record. Behar v. Aero Med Intl., 185 Ga. App. 845 (1) (366 SE2d 223) (1988). Appellee asserts, and appellant does not dispute, that the parties stipulated at the unreported charge conference that issues of attorney fees and prejudgment interest would be withdrawn from the jury’s consideration and instead would be added to the verdict by the court in the event of an award in favor of appellee. The court did not charge the jury on these two items, evidencing the plan. Thus there are stronger hints that there was a stipulation than appeared in the record in Aston Mills v. Suntek Indus., 190 Ga. App. 217 (378 SE2d 399) (1989). In that case, the pretrial order neither stated a claim for interest nor reserved that issue for the court. Nevertheless, as in Aston Mills, “nothing in the record reflects such an agreement.” Id. at 218.

Decided March 9, 1992

Reconsideration denied March 24, 1992.

John W. Knapp, Jr., for appellants.

Victoria J. Hoffman, for appellee.

Nor has appellee sought to complete the record, as provided in OCGA § 5-6-41 (f). Consequently, based on the record before us, we must rule that it was error to add prejudgment interest and attorney fees, because OCGA § 9-12-9 requires that “[j]udgment and execution shall conform to the verdict.” See Erdmier v. Eunice, 143 Ga. App. 505 (3) (239 SE2d 192) (1977). The prejudgment interest and attorney fees must be stricken.

Of course, this does not preclude appellee from seeking an amendment to that revised judgment, which would show that there was in fact a stipulation so as to authorize the restoration of the two items. See Dismuke v. Gibson, 174 Ga. App. 546 (1) (330 SE2d 771) (1985).

6. The remaining enumerations of error complain that the trial court failed to charge the jury on the principle of novation and also gave certain erroneous instructions. Assuming novation was evidenced, there was neither a request for a charge on novation nor an objection to the court’s failure to so charge. Defendant merely “reserve^ his] objection [to the charge as given] to a later time.” It is too late now to complain. OCGA § 5-5-24 (a); Herring v. McLemore, 248 Ga. 808 (3) (286 SE2d 425) (1982); London v. Lavietes, 156 Ga. App. 123 (2) (274 SE2d 120) (1980).

7. Appellee’s motion for damages for frivolous appeal pursuant to OCGA § 5-6-6 is denied.

The judgment is affirmed on the express condition that, within ten days of the date of the remittitur, the prejudgment interest be stricken; otherwise, reversed. Aston Mills, supra at 218.

Judgment affirmed on condition.

Johnson, J., concurs. Carley, P. J., concurs in Divisions 1, 2, 3, 4, 6 and 7 and in the judgment.


author: Beasley, Judge. Carley, Presiding Judge,

text:
    A91A2154.
    THOMAS v. THE STATE.
    (417 SE2d 353)
   Beasley, Judge.

Appellant appeals his convictions of unlawful manufacture of marijuana and unlawful possession of marijuana with intent to distribute. OCGA § 16-13-30 (b). He enumerates error on the trial court’s denial of his motion to suppress marijuana found during a search.

Lieutenant Gene Beck, a helicopter pilot for the Georgia State Patrol, who is a member of a task force engaged in marijuana identification and eradication, testified that on July 6, 1990, he was engaged in a routine fly-by over rural land in Cherokee County at 400-500 feet, which was his normal cruising altitude pursuant to FAA waivers. He had been alerted to marijuana in the area and had just left a patch nearby so was still piloting his helicopter at an altitude of 100 to 150 feet pursuant to FAA waivers allowing him to fly at ground zero. He spotted a large sunken greenhouse in a heavily wooded area.

The greenhouse was located on a triangular tract of land containing approximately two acres and owned by appellant. The apex of the triangle, which points in a westerly direction, is formed by the convergence of two county roads. A driveway to a mobile home in which appellant resided ran from the road forming the southerly side of the tract at an angle of approximately 45 degrees. A jeep was parked in the driveway.

The greenhouse was located approximately 30 yards east of the single-wide mobile home. It was surrounded by trees and could not be seen from either road, although a pathway partially obscured by tree branches led from the greenhouse to the road forming the northerly border. Narrow pathways led from the area of the mobile home to the greenhouse. Otherwise the wooded area separated the two. A jeep and pickup truck were on the premises. On his first pass over the greenhouse, Lieutenant Beck could see heavy green plants in the greenhouse but could not identify them. He passed over the greenhouse a second time at the same low altitude of 100 to 150 feet, and on the outside of the property he could see several trays containing suspected marijuana plants.

Beck relayed this information to two Cherokee County deputy sheriffs who were on the ground in the vicinity of the property, and he instructed them to knock on the door of the mobile home to determine if anyone was home and to obtain permission to go onto the property. No one came to the door when the officers knocked, although the officers could hear a television and some other noises inside the mobile home. Beck then instructed the deputies to go to the greenhouse and see if anyone was there. They went to the greenhouse and heard classical music coming from a radio in the greenhouse but no one was inside. They verified that there was what appeared to be marijuana growing in trays on the outside of the greenhouse, and they saw several hundred marijuana plants inside the greenhouse.

Cherokee County law enforcement authorities subsequently obtained a warrant authorizing a search of the mobile home, as well as its curtilage and out-buildings, for marijuana. Three hundred eighty-five marijuana plants weighing over forty pounds were found in and around the greenhouse. Paper bags containing dried and cultivated marijuana were found in the trailer. One of the deputies executing the warrant testified that the marijuana plants outside of the greenhouse were eight to nine inches tall and were in two little trays.

In his motion to suppress, appellant asserted that the law enforcement agents’ entry into the greenhouse was illegal, in that it was a warrantless search without probable cause and unsupported by any recognized exception to the warrant requirement, and therefore any subsequent seizure of evidence was tainted “fruit of the poisoned tree.”

The trial court ruled that the greenhouse did not lie within the curtilage of appellant’s residence, and the growing of marijuana in the greenhouse constituted an agricultural use in open fields, in that “the only thing that is different about it is, it has a frame of plastic over it. If you took the frame and plastic off, it’d just be like rows of corn.” For these reasons, the trial court concluded that there was no intrusion into an area protected by the Fourth Amendment.

The first issue raised by appellant on appeal is that the search warrant was invalid because it was predicated on information obtained via an illegal search. His reasoning is that the greenhouse was within the curtilage of his residence and not in open fields, and that its aerial surveillance at an altitude from which the marijuana outside of the greenhouse could be viewed constituted an intrusion into an area as to which he had a reasonable expectation of privacy as protected by the Fourth Amendment to the United States Constitution and Art. I, Sec. I, Par. XIII of the Ga. Const, of 1983. He also claims that the warrant for the search on the ground was obtained after or while that search was in progress, also resulting in the ground search’s invalidity.

1. Under principles of federalism in terms of the relationship between the state and federal constitutions, we would properly start first with an analysis of appellant’s state constitutional claim. Massachusetts v. Upton, 466 U. S. 727, 735 (104 SC 2085, 80 LE2d 721) (1984), Stephens, J., concurring opinion. He did raise it below, as required, in his motion to suppress. However, the court ruled only on the Fourth Amendment basis, and there is no state constitutional ruling for us to review. It is appellant’s obligation to pursue the grounds he raises and obtain a ruling on them in the trial court, if he wishes to obtain appellate review. Davis v. Trusthouse Forte Hotels Worldwide, 195 Ga. App. 768, 769 (3) (395 SE2d 235) (1990); Allen v. Montgomery Ward &c., 186 Ga. App. 337, 339 (2) (367 SE2d 120) (1988).

Moreover, his brief in this regard does not make a separate and independent state constitutional argument. He relies primarily on federal constitutional case law. The two provisions are not wholly coextensive in their construction. See Wells v. State, 180 Ga. App. 133, 135 (348 SE2d 681) (1986), Beasley, J., concurring specially. See also Oregon v. Hass, 420 U. S. 714, 719 (95 SC 1215, 43 LE2d 570) (1975). Walker v. Whittle, 83 Ga. App. 445, 449 (1) (64 SE2d 87) (1951), illustrates an independent analysis. The court applied the state constitution, drawing on appellate construction of it, and rejected a federal constitutional basis for appellant’s claim because it was then understood that the Fourth Amendment did not cover state action. The more recent case of Landers v. State, 250 Ga. 808 (301 SE2d 633) (1983), also appears to have been decided on independent state grounds. The state constitutional provision has its own origin, history and meaning.

The result of all of this is that we analyze appellant’s enumerations only against the Fourth Amendment.

2. “A ‘search’ occurs when an expectation of privacy that society is prepared to consider reasonable is infringed.” United States v. Jacobsen, 466 U. S. 109, 113 (104 SC 1652, 80 LE2d 85) (1984).

With respect to the aerial surveillance, the question is whether the greenhouse and the area immediately adjacent to it were within the curtilage. Appellant does not submit that the airspace into which the helicopter was flown and from which the officer saw the suspected marijuana plants outside the greenhouse was itself within the curtilage.

Florida v. Riley, 488 U. S. 445 (109 SC 693, 102 LE2d 835) (1989), involved a helicopter surveillance, at an altitude of 400 feet, of the interior of a residential backyard greenhouse. The court regarded the greenhouse as being within the curtilage. This was a crucial factor in the court’s analysis because of Fourth Amendment coverage of the curtilage. A majority of the Court concluded that, because Riley did not have a reasonable expectation that the greenhouse was protected from such observation from a helicopter flying at a lawful and non-interfering altitude which was not “sufficiently rare in this country,” it was not a “search” subject to the Fourth Amendment. Id. at 451. Justice O’Connor, who concurred with four members of the court in the judgment, gave greater significance than did the plurality to whether “the public can generally be expected to travel over residential backyards at an altitude of 400 feet.” She seems to have considered the lawfulness of the altitude only as a starting point. Her conclusion is that “public use of altitudes lower than that — particularly public observations from helicopters circling over the curtilage of a home — may be sufficiently rare that police surveillance from such altitudes would violate reasonable expectations of privacy, despite compliance with FAA air safety regulations.” The court did not address whether the airspace in which the helicopter was flying as being within or without the curtilage and, since appellant does not suggest it, neither do we address such a question.

The Fourth Amendment protects “houses” by its terms, but the “courts have extended Fourth Amendment protection to the curtilage; and they have defined the curtilage, as did the common law, by reference to the factors that determine whether an individual reasonably may expect that an area immediately adjacent to the home will remain private. [Cits.]” Oliver v. United States, 466 U. S. 170, 180 (104 SC 1735, 80 LE2d 214) (1984). The curtilage is “the land immediately surrounding and associated with the home . . . the area to which extends the intimate activity associated with the ‘sanctity of a man’s home and the privacies of life,’ Boyd v. United States, . . .” Ibid. “The protection afforded the curtilage is essentially a protection of families and personal privacy in an area intimately linked to the home, both physically and psychologically, where privacy expectations are most heightened.” California v. Ciraolo, 476 U. S. 207, 212-213 (106 SC 1809, 90 LE2d 210) (1986). Ciraolo also involved observation of curtilage.

Whether the greenhouse and its immediately adjacent ground, on which the trays were observed, were within the curtilage, is tested by the definition in United States v. Dunn, 480 U. S. 294, 300 (107 SC 1134, 94 LE2d 326) (1986). There we were instructed “that curtilage questions should be resolved with particular reference to four factors: the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by.” Id. at 301. The greenhouse and the spot on which the trays sat were 30 yards from the house trailer. In Dunn, which held the barn not to be within the curtilage, it was 60 yards from the house; in Riley, which held the greenhouse to be within the curtilage, it was 10 to 20 feet behind the mobile home. This factor would tend to raise a strike against Thomas’ greenhouse as being within his curtilage.

The area we are concerned with was not fenced with the house-trailer, and there was no enclosure whatsoever other than the woods. Anyone could walk up to it through the woods or up one of the two roads leading in from the public roads. This is another strike against it.

The area was put to the use of a large covered greenhouse full of plants which from an aerial distance of 100-150 feet could be seen to be all the same and thus unlikely to constitute food for the residents of the trailer. In fact, based on what the officer observed, together with his experience and the information which led him to believe there was marijuana growing somewhere in the locale, he suspected that the plants in the greenhouse were marijuana, and it was this suspicion which prompted him to investigate further by flying close again. What he had seen, and then saw more acutely, did not appear to be “so associated with the activities and privacies of domestic life that the officers should have deemed [it] as part of [Thomas’] home.” Dunn, supra at 303. Strike three.

Finally, what steps were taken to protect the area from observation by passersby? No fences were put up, no gates were across the roads, no covering of trees was assured to protect it from aerial view. However, the greenhouse itself was completely closed up so that one could not see into it, and the few plants outside were so small that they could not be seen with the naked eye from routinely traveled airspace.

But even if this factor of protection were scored in Thomas’ favor, the totality of the circumstances leads to the conclusion that “the area in question is [not] so intimately tied to the home itself that it should be placed under the home’s ‘umbrella’ of Fourth Amendment protection.” Dunn, supra at 301. This is not, after all, said the Court in Dunn, a finely tuned formula to be mechanically applied.

Thus, even if the low-flying helicopter would have been in a place which violated an expectation of privacy that society is prepared to honor if the officer was observing activities in the home, it was not violating the resident’s Fourth Amendment rights when it hovered over the non-curtilage area. “[A] police officer who observes contraband in plain view is entitled to seize it, so long as he is at a place where he is entitled to be, i.e., so long as he has not violated the defendant’s Fourth Amendment rights in the process of establishing his vantage point. See Ker v. California, 374 U. S. 23 (83 SC 1623, 10 LE2d 726) (1963); Harris v. United States, 390 U. S. 234 (88 SC 992, 19 LE2d 1067) (1968). . . .” State v. Aultman, 160 Ga. App. 550, 551 (287 SE2d 580) (1981).

The rule allowing the warrantless search of open fields provides that, “an individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home. [Cits.] This rule is true to the conception of the right to privacy embodied in the Fourth Amendment. . . . [0]pen fields do not provide the setting for those intimate activities that the Amendment is intended to shelter from government interference or surveillance. There is no societal interest in protecting the privacy of those activities, such as the cultivation of crops, that occur in open fields.” Oliver, 466 U. S. at 178-189, supra; see Payton v. State, 177 Ga. App. 104, 105 (1) (338 SE2d 462) (1985); compare Karlovich v. State, 165 Ga. App. 761 (302 SE2d 396) (1983), with Meeks v. State, 178 Ga. App. 9, 10 (2) (341 SE2d 880) (1986). Moreover, “[t]he Supreme Court observed in Oliver, supra at p. 180, fn. 11: ‘An open field need be neither “open” nor a “field” as those terms are used in common speech. For example, ... a thickly wooded area nonetheless may be an open field as that term is used in construing the Fourth Amendment.’ ” Gravley v. State, 181 Ga. App. 400, 402 (352 SE2d 589) (1986).

The trial court’s conclusion that appellant’s greenhouse was not within the curtilage of his home is supported by undisputed evidence and we agree with this legal conclusion. Even if there were some dispute about it, we would have to accept the trial court’s findings of fact because there is sufficient evidence to support them. State v. Watts, 154 Ga. App. 789, 790 (4) (270 SE2d 52) (1980); see Williams v. State, 151 Ga. App. 833 (1) (261 SE2d 720) (1979); State v. Smith, 134 Ga. App. 602 (215 SE2d 345) (1975).

Thus the information which was the basis for the search warrant was legitimately obtained.

3. The final ground upon which appellant urges suppression is that the ground search or searches proceeded before the warrant was obtained. There is a great deal of conflicting evidence as to the facts surrounding this point. The trial court is the factfinder in motions to suppress hearings. OCGA § 17-5-30 (b); Brooks v. State, 129 Ga. App. 393 (2) (199 SE2d 578) (1973). “ ‘On appeal of the denial of a motion to suppressQ the evidence is to be construed most favorably to the upholding of the findings and judgment made.’ [Cit.] The trial court’s findings must be adopted unless determined to be clearly erroneous.” Dennis v. State, 166 Ga. App. 715, 716 (305 SE2d 443) (1983). See Lego v. Twomey, 404 U. S. 477 (92 SC 619, 30 LE2d 618) (1972). We have carefully reviewed the evidence and cannot conclude that there is insufficient evidence to support the trial court’s final ruling.

Judgment affirmed.

Johnson, J., concurs. Carley, P. J., concurs specially.

Carley, Presiding Judge,

concurring specially.

I agree that the judgment of the trial court should be affirmed in that there was no error in the denial of appellant’s motion to suppress. However, I cannot agree with Division 2 to the extent that it belabors the issue as to whether the greenhouse was within or without the curtilage. Plainly and simply, this case is controlled by the plurality opinion in Florida v. Riley, 488 U. S. 445 (109 SC 693, 102 LE2d 835) (1989).

Decided March 4, 1992

Reconsideration denied March 24, 1992

Maloy & Jenkins, W. Bruce Maloy, for appellant.

Garry T. Moss, District Attorney, Gregory A. Hicks, Assistant District Attorney, for appellee.


author: McMurray, Presiding Judge.

text:
    A91A2169, A91A2170.
    DEPARTMENT OF MEDICAL ASSISTANCE v. COLUMBIA CONVALESCENT CENTER, INC. et al.; and vice versa.
    (417 SE2d 195)
   McMurray, Presiding Judge.

Defendant Georgia Department of Medical Assistance is the state agency designated pursuant to federal law to supervise administration of Medicaid nursing home reimbursement. The seven plaintiffs are nursing homes which contested a change implemented in the limits for reimbursement in the property and related cost centers for those nursing homes having property transactions after May 6, 1981. A hearing officer concluded that the change in reimbursement rate had been accomplished in compliance with applicable state and federal statutes and regulations. A review by the Commissioner of the Department of Medical Assistance upheld the hearing officer’s decision and the nursing homes filed their petition for judicial review on October 12, 1984.

The superior court overturned the hearing officer’s decision and ordered reinstatement of the previous rate of reimbursement. Defendant moved to set aside the superior court’s order on the ground that the superior court lacked subject matter jurisdiction to enter such an order since the plaintiffs’ case was automatically dismissed by operation of law because no written order was properly entered for a period of over five years. After the superior court denied defendant’s motion to set aside, this court granted defendant’s application for permission to appeal. Defendant Georgia Department of Medical Assistance appeals in Case No. A91A2169 while plaintiffs cross-appeal in Case No. A91A2170. Held-.

1. OCGA § 9-2-60 (b) provides that: “Any action or other proceeding filed in any of the courts of this state in which no written order is taken for a period of five years shall automatically stand dismissed. . . .” The operation of this provision cannot be waived by the parties. Harris v. Moody, 144 Ga. App. 656 (242 SE2d 321).

OCGA § 9-10-2 provides that: “Any verdict, decision, judgment, decree, order, ruling, or other judicial action by any court in this state in any matter in which this state or an official of this state in his official capacity is a party defendant, intervenor, respondent, appellee, or plaintiff in fi. fa. shall be void unless it affirmatively appears as a matter of record either; (1) That the Attorney General was given five days’ advance written notice by the adverse party or his attorney of the time set for the particular trial, hearing, or other proceeding as a result of which the verdict, decision, judgment, decree, order, ruling, or other judicial action was entered; or (2) That the Attorney General or an assistant attorney general was present in person at the trial, hearing, or other proceedings; or (3) That the Attorney General or an assistant attorney general has, in writing, waived the notice.” See generally Caldwell v. Atlanta Bd. of Education, 152 Ga. App. 291, 292 (3), 293 (262 SE2d 573); Cofer v. Williams, 141 Ga. App. 72 (232 SE2d 610).

In the five-year interval following the filing of the plaintiffs’ petition for judicial review on October 12, 1984, two orders of the superior court were entered. However, in neither instance was there compliance with the notice provisions of OCGA § 9-10-2. Therefore, the two orders are void and ineffective to prevent an automatic dismissal pursuant to OCGA § 9-2-60 (b). Thus, the case sub judice was dismissed by operation of law on October 12, 1989, and any further action in the case other than dismissal is a mere nullity. Stephens v. Stovall & Co., 184 Ga. App. 78, 79 (1) (360 SE2d 638); Bainbridge & Assoc. Architects, P.A. v. Johnson, 183 Ga. App. 784 (360 SE2d 273). It follows that the February 14, 1991, order of the superior court, nunc pro tunc to September 28, 1989, which records an oral continuance agreement of that date between counsel and confirmed by the superior court, was not effective to revive the already extinguished case. An automatic dismissal under OCGA § 9-2-60 (b) results as a matter of law, and the court has no discretion to order it reinstated. Kachwalla v. Byrne, 198 Ga. App. 454 (402 SE2d 74); Earp v. Kranats, 184 Ga. App. 316, 317 (361 SE2d 217). See also Paris v. C & S Nat. Bank, 140 Ga. App. 417 (231 SE2d 357) and Freeman v. Ehlers, 108 Ga. App. 640 (134 SE2d 530). The superior court erred in entering the February 14, 1991, order and in denying defendant’s motion to set aside.

2. In the cross-appeal, plaintiffs challenge the constitutionality of OCGA §§ 9-2-60 and 9-10-2. These issues lie within the exclusive jurisdiction of the Supreme Court of Georgia. Article 6, Section 6, Paragraph II (1) of the Constitution of the State of Georgia of 1983. Therefore, upon receipt of these appeals they were transferred to the Supreme Court, but were returned because the constitutional issues raised in the cross-appeal had not been ruled on by the trial court. In this regard, we note that the constitutional issues were raised in the superior court by plaintiffs in opposition to defendant’s motion to set aside but were not reached under the view of the case taken by the superior court and which we reverse in Division 1 of this opinion. Therefore, we remand Case No. A91A2170 to the superior court in order that the court may consider plaintiffs’ constitutional issues in the light of our holding in Division 1.

Decided March 11, 1992

Reconsideration denied March 24, 1992

Michael J. Bowers, Attorney General, William C. Joy, Kathryn L. Allen, Senior Assistant Attorneys General, for appellant.

Heard, Leverett & Phelps, E. Freeman Leverett, Dallas, Fowler & Wills, Albert H. Dallas, for appellees.

Judgment reversed in Case No. A91A2169. Case No. A91A2170 remanded with direction.

Sognier, C. J., and Cooper, J., concur.


author: Judge Arnold Shulman.

text:
    A91A2202.
    HAWKINS v. RICE et al.
    (417 SE2d 174)
   Judge Arnold Shulman.

Freddie Hawkins submitted to the Clerk of the Superior Court of Ware County an affidavit of indigency and a pro se complaint naming five defendants. Pursuant to OCGA § 9-15-2 (d) the clerk presented the pleading to the superior court judge who entered an order on August 5, 1991, refusing to allow the complaint to be filed against any of the defendants. This appeal followed.

When a civil action is instituted by an indigent party who is not represented by an attorney the trial judge is required to “review the pleading and, if the judge determines that the pleading shows on its face such a complete absence of any justiciable issue of law or fact that it cannot be reasonably believed that the court could grant any relief against any party named in the pleading, then the judge shall enter an order denying filing of the pleading.” OCGA § 9-15-2 (d). “ ‘When examining a complaint, courts are compelled to determine whether the facts alleged state a claim for relief under which the plaintiff may recover. It is not necessary that the complaint be perfect in form or set out all of the issues with particularity, it is necessary only to place the defendant on notice of the claim against him. OCGA § 9-11-8; [Cit.]’ [Cit.].” Evans v. City of Atlanta, 189 Ga. App. 566 (377 SE2d 31) (1988).

The complaint is convoluted at best; however, the apparent genesis of the appellant’s lawsuit is a work-related injury he sustained on September 11, 1984, while employed by the Salvation Army. The administrative law judge awarded the appellant workers’ compensation benefits but denied his subsequent claim for additional benefits based on a change in condition. The appellant now seeks to sue the ALJ for “obstruction of justice” and “cruel and unusual punishment,” along with his employer’s insurance carrier and the trucking firm which operated the truck on which he claims he suffered his disabling injury. He additionally advances “ineffective assistance of counsel” and “breach of contract” with regard to two attorneys who had represented him during various stages of his workers’ compensation case. From the outset, it is apparent that there exists no justiciable issue against the ALJ as the claim against him is barred by the doctrine of judicial immunity. See Evans v. City of Atlanta, supra. Likewise, any claim against his employer’s insurance carrier is precluded by the exclusive remedy provision of the Workers’ Compensation Act (OCGA §§ 34-9-11 (a); 34-9-1 (3)). And, the claim asserted against the trucking company is not a cognizable claim as it is based solely on allegations that it obstructed justice by failing to acknowledge receipt of correspondence. The appellant’s claims as to both of his attorneys, that he was deprived of counsel because they refused to continue to represent him, and his allegation that one attorney, Johnson, breached his contract by failing to continue as his legal representative, does not set forth a claim for relief. Accord Hogan v. Peters, 181 Ga. App. 670 (353 SE2d 601) (1987). Accordingly, as the pleading sought to be filed by the appellant demonstrates a complete absence of any justiciable issue of law or fact, the trial court did not err in entering an order denying filing of the pleading against any of the parties. Cf. Acker v. Veal, 183 Ga. App. 297 (359 SE2d 7) (1987).

Decided March 4, 1992

Reconsideration denied March 24, 1992.

Freddie Hawkins, pro se.

McGee & McGee, J. B. McGee, Jr., for appellees.

Judgment affirmed.

Carley, P. J., and Beasley, J., concur.


text:
    A91A2222.
    SHIELDS v. THE STATE.
    (417 SE2d 168)
   Carley, Presiding Judge.

Appellant was tried before a jury and found guilty of selling cocaine. He appeals from the judgment of conviction and sentence entered by the trial court on the jury’s guilty verdict.

1. At trial, an officer testified he had made initial contact with an individual named Danny Wehunt. Wehunt had become the target of an undercover investigation because the officer had previously purchased stolen property and controlled substances from him. After a short negotiation with Wehunt, which the officer secretly taped, Wehunt left the officer’s immediate presence and another individual soon arrived to complete the sale. The officer subsequently determined that this individual was appellant.

Appellant urges that this testimony was an improper attempt by the State to impugn his character and establish his guilt by association with Wehunt. See Johnson v. State, 202 Ga. App. 590 (1) (415 SE2d 189) (1992). However, Wehunt was shown to be directly involved in the crime for which appellant was being tried. Compare Johnson v. State, supra. Not only was Wehunt the original target of the undercover investigation which ultimately led to appellant’s arrest, he was instrumental in arranging the actual sale of cocaine for which appellant was being tried. Accordingly, the testimony was clearly admissible as part of the res gestae of the crime that appellant was charged with having committed. Lawrence v. State, 187 Ga. App. 211, 212 (1) (369 SE2d 531) (1988); Osborn v. State, 161 Ga. App. 132, 138 (7) (291 SE2d 22) (1982); Thompson v. State, 4 Ga. App. 649 (1) (62 SE 99) (1908). “The [Sjtate is entitled to inform the jury of all the circumstances surrounding the commission of the crime or crimes charged and we find no error in admitting this evidence as part of the res gestae even though it may have incidentally placed [appellant’s] character in evidence. [Cit.]” Chambers v. State, 250 Ga. 856, 859 (2) (302 SE2d 86) (1983).

The officer further testified that he had determined the name of the individual who had sold him the cocaine by checking the records that he had personally compiled on Wehunt. According to the officer, his records indicated that Wehunt had an “associate” whose name was that of appellant. This testimony prompted a motion for mistrial. The denial of this motion is enumerated as error.

The officer’s testimony regarding the contents of his personal files would be inadmissible hearsay unless it was relevant to explain his conduct in identifying and arresting appellant. That the officer had subsequently identified and eventually arrested appellant was obviously relevant, but it does not appear that the specifics of how or why he had come to do so was. See generally Momon v. State, 249 Ga. 865 (294 SE2d 482) (1982); Thompson v. State, 201 Ga. App. 646, 647 (3) (411 SE2d 886) (1991). However, even if the officer’s testimony in this regard was inadmissible hearsay, its admission would nevertheless constitute reversible error only if appellant was harmed thereby.

That he was an “associate” of Wehunt does not necessarily impugn appellant’s character as a participant in Wehunt’s criminal activity. One may be an “associate” of the target of a criminal investigation without being associated in his criminal activity. See Tinch v. State, 170 Ga. App. 714 (318 SE2d 505) (1984). That appellant did in fact have such a non-criminal association with Wehunt was shown by appellant’s own testimony that he and Wehunt lived together. Even if the officer had testified that the source of his information was official police files, rather than his own personal files, appellant’s character would not necessarily be impugned thereby. Hall v. State, 177 Ga. App. 464 (339 SE2d 658) (1986). Compare Stanley v. State, 250 Ga. 3 (1) (295 SE2d 315) (1982). Moreover, the record shows that the trial court’s instructions to the jury were sufficient to preclude erroneous consideration of the evidence as being admissible to prove the truth of the information in the officer’s records and somehow relevant to appellant’s guilt. See Laney v. State, 159 Ga. App. 609 (2) (284 SE2d 114) (1984). Since it cannot be said that the officer’s testimony had the harmful effect of impugning appellant’s character, it was not reversible error to deny the motion for mistrial.

Decided February 24, 1992

Reconsideration denied March 24, 1992.

Watson & Watson, Herman A. Watson III, for appellant.

C. Andrew Fuller, District Attorney, for appellee.

2. The trial court did not err in admitting evidence of Wehunt’s conversation with the officer, wherein the sale of the cocaine was negotiated. Cromer v. State, 253 Ga. 352, 357 (4) (320 SE2d 751) (1984); Mooney v. State, 243 Ga. 373, 388 (3) (254 SE2d 337) (1979); Baker v. State, 172 Ga. App. 877 (324 SE2d 818) (1984).

Judgment affirmed.

Beasley, J., and Judge Arnold Shulman concur.


author: Andrews, Judge. McMurray, Presiding Judge,

text:
    A91A1573.
    VLAHOS v. SENTRY INSURANCE COMPANY.
    (417 SE2d 180)
   Andrews, Judge.

Angie Vlahos instituted an action against Sentry Insurance Company (“Sentry”), seeking personal injury protection benefits under a Sentry automobile liability insurance policy. Sentry admitted Vlahos had wrecked a vehicle that was covered under a Sentry automobile liability insurance policy, but claimed she was not entitled to lost income benefits because she had no income at the time of the collision. The parties filed opposing motions for summary judgment and entered into a stipulation which included the following facts.

Plaintiff Vlahos was involved in an automobile accident on October 29, 1988. At the time of the accident, she was employed by All Auto Parts, but she did not return to work after the accident and claimed to be physically incapable of returning to work with All Auto Parts. All Auto Parts closed shortly after the accident.

Plaintiff’s husband, Louis Vlahos, and his brother, Theodore Vlahos, started All Auto Parts in 1966. The Vlahos brothers were partners. Plaintiff began work in the business full-time in 1980 and her husband died in 1982. Theodore Vlahos died in 1985 and his wife, Georgia Vlahos, continued working part-time in the business doing the books.

Plaintiff Vlahos and her sister-in-law, Georgia, created a partnership in 1983 to continue operating All Auto Parts. The partnership continued through 1985. Plaintiff Vlahos was a 75 percent owner of the partnership and her sister-in-law was a 25 percent owner. Effective January 2, 1986, All Auto Parts was incorporated and plaintiff and her sister-in-law kept the same percentages of ownership.

Vlahos’ goal with the business was to increase sales and neither she nor her sister-in-law ever tried to reduce sales. Vlahos never took any cash out of the business that was not reflected in the books, although she was not involved in the bookkeeping aspects of the business. If any money went to her, it was reported as income. A certified public accountant kept the books of the business, prepared the partnership and corporate income tax returns and the financial statements for All Auto Parts, and prepared Vlahos’ individual tax returns.

The gross sales for All Auto Parts for 1984 through 1988 were: a) 1984 — $196,994, b) 1985 — $161,198, c) 1986 — $135,739, d) 1987 — $99,767, e) 1988 — $54,846. The last time that All Auto Parts’ records reflect that a salary was paid to Vlahos was for the year 1986. In 1986, $7,665 was paid to Vlahos for her work throughout the year and a W-2 was given to her confirming that payment. She was not paid any amount of money for the work she did for All Auto Parts in 1987 and was not paid any amount of money for the work she did for All Auto Parts in 1988.

For the year 1986, while All Auto Parts paid wages to Vlahos in the amount of $7,655, the company had a net loss of $976. For the year 1987, it had a net loss of $12,739. For 1988, All Auto Parts had a net loss of $122,758.

All Auto Parts was a regular, not a Subchapter S, corporation. If any monies were paid to Vlahos, they would have been paid to her as an employee, and she would have received a W-2 form for them. In 1986, she received a W-2 for $7,665. She did not receive a W-2 for either 1987 or 1988.

In 1987, All Auto Parts began keeping an entry on its books reflecting that salary was accruing for plaintiff at the rate of $300 per week. Although the corporate books reflected that salary was accruing for her, she was not paid any money during 1987 or 1988. Further, All Auto Parts did not pay social security taxes, withholding taxes or unemployment taxes on the salary which accrued on the books.

No income tax return was filed for or by plaintiff in 1987 or 1988, because Plaintiff had insufficient income to justify filing a return. In fact, she had no income from All Auto Parts or from any other source for those years.

Although All Auto Parts’ books for 1987 and 1988 showed accrued wages to plaintiff, those accrued wages were not paid. Plaintiff thus had no income tax obligation on those monies. The reason that the wages, which accrued on the books, were not paid to plaintiff was because All Auto Parts did not have sufficient income to pay them.

In connection with her claim for benefits, Vlahos signed a Wage and Salary Verification in which she stated that she made $250 to $300 a week. Plaintiff does not remember the basis for the figures that she set forth in that Verification.

The trial court granted Sentry’s motion for summary judgment and denied Vlahos’ motion for summary judgment, finding that plaintiff was not entitled to lost income benefits under OCGA § 33-34-4 (a) (2) (B) because she had no loss of income or earnings as a result of the collision. Vlahos claims that the trial court erred in granting Sentry’s motion and in denying her motion, or at least, that a genuine issue of material fact existed regarding her lost income.

The trial court’s grant of summary judgment to Sentry was proper and we find that as a matter of law, Vlahos failed to establish the fact of her lost income claim with reasonable certainty. Here, the stipulation established that All Auto Parts had not paid a salary to Vlahos since 1986, when she was paid $7,665 and the company showed a net loss of $976. In 1987, Vlahos was not paid any salary and the corporate records reflected a net loss of $12,739. Again in 1988, Vlahos received no salary and All Auto Parts had a net loss of $122,758. Vlahos did not receive a W-2 for 1987 or 1988, nor did she pay income tax for those years. Furthermore, the sales figures showed that All Auto Parts’ gross sales had steadily decreased from 1984 until 1988, and the parties admitted that Vlahos’ salary was not paid because the corporation simply did not have the money to pay it.

Given these facts, the trial court did not err in granting summary judgment on the lost wage claim, because the claim was too speculative. Although there appear to be no Georgia cases which directly address this factual situation, OCGA § 33-34-4 (a) (2) (B) does not authorize payment of lost wages in a situation in which a lost wage claim is so speculative.

An insured must establish with reasonable certainty his entitlement to benefits for loss of income during the period of his disability. See generally Midland Ins. Co. v. West, 175 Ga. App. 419 (333 SE2d 628) (1985); Leonaitis v. State Farm Mut. Ins. Co., 186 Ga. App. 854 (368 SE2d 775) (1988). In turning to cases decided under tort law for guidance we find that “ ‘[l]ost wages and earnings are not recoverable where the evidence does not show the amount of the loss with reasonable certainty.’ ” (Emphasis and citations omitted.) Midland Ins. Co., supra at 421; State Farm Mut. Ins. Co. v. Moss, 152 Ga. App. 84, 85 (2) (262 SE2d 248) (1979). In the context of lost profits in a tort case, a plaintiff must show a “track record” of profitability since the amount claimed cannot be based on speculation, conjecture or guesswork. See generally Pounds v. Hosp. Auth. of Gwinnett County, 197 Ga. App. 598 (399 SE2d 92) (1990).

Applying these principles to the instant case, we find that the trial court’s grant of summary judgment was proper since as a matter of law, Vlahos failed to establish with reasonable certainty her lost wage claim. All Auto Parts’ financial history established that Vlahos had no reasonable expectation that her accrued income would ever mature into cash income. In fact, there was no evidence that Vlahos’ accrued salary was anything other than an accounting practice. Although there are situations in which a plaintiff could properly assert a claim of lost wages under OCGA § 33-34-4 (a) (2) (B) based on accrued income, the stipulated facts here established that this case is not one of them, since there was no reasonable proof of Vlahos’ claim of $300 a week. “In other words [s]he has not shown with reasonable certainty that [s]he has incurred a loss of income or earnings which, if not for the accident and alleged disability, [s]he would otherwise have collected.” (Citations omitted.) Midland Ins. Co., supra at 421; see generally Southeastern Fidelity Ins. Co. v. Hicks, 143 Ga. App. 165 (237 SE2d 655) (1977).

We are aware that “[t]o recover benefits for ‘loss of income or earnings during disability’ pursuant to OCGA § 33-34-4 (a) (2) (B), an insured is required merely to establish with ‘reasonable certainty’ the fact and amount of such lost income or earnings, and this he may accomplish either by showing that he previously had accepted an offer of income-generating employment for the period in question or by showing ‘a continuous pattern of employment prior to the period of disability.’ Allison v. Auto-Owners Ins. Co., 256 Ga. 446, 447 (349 SE2d 682) (1986), citing Leonard v. Preferred Risk Mut. Ins. Co. v. West, 175 Ga. App. 419, 420-421 (333 SE2d 628) (1985). Accord Insurance Co. of North America v. Smith, 183 Ga. App. 266 (1) (358 SE2d 658) (1987).” (Emphasis omitted.) Auto-Owners Ins. Co. v. Sapp, 185 Ga. App. 661, 662 (365 SE2d 286) (1988). We do not interpret these cases as dispensing with the requirement that a claimant show with reasonable certainty that the continuous employment was “income-generating.” See generally State Farm Mut. Auto. Ins. Co. v. Smith, 245 Ga. 654 (266 SE2d 505) (1980). Here the fact that Vlahos was continuously employed and that All Auto Parts was obligated to record an accrued salary of $300 per week is outweighed by the fact that she had not been paid a salary in the 22 months preceding the accident and that there was no evidence the accrued amounts would ever be paid.

Vlahos’ argument from Vansant v. Allstate Ins. Co., 142 Ga. App. 684 (236 SE2d 858) (1977), that “ ‘income or earnings’ includes delayed earnings such as pensions or annuities under the statutory scheme” does not apply here since the earnings were not established with reasonable certainty. Id. at 687; see also State Farm Mut. Auto. Ins. Co. v. Chastain, 167 Ga. App. 822 (307 SE2d 717) (1983). Therefore, the trial court did not err in granting Sentry’s motion for summary judgment.

Judgment affirmed.

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

McMurray, Presiding Judge,

dissenting.

I respectfully dissent. It is my view that the undisputed evidence requires a finding that Angie Vlahos is entitled to lost income benefits under OCGA § 33-34-4 (a) (2) (B).

“To recover benefits for ‘loss of income or earnings during disability’ pursuant to OCGA § 33-34-4 (a) (2) (B), an insured is required merely to establish with ‘reasonable certainty’ the fact and amount of such lost income or earnings, and this he may accomplish either by showing that he previously had accepted an offer of income-generating employment for the period in question or by showing ‘a continuous pattern of employment prior to the period of disability.’ Allison v. Auto-Owners Ins. Co., 256 Ga. 446, 447 (349 SE2d 682) (1986), citing Leonard v. Preferred Risk Mut. Ins. Co., 247 Ga. 574 (1) (277 SE2d 675) (1981), and Midland Ins. Co. v. West, 175 Ga. App. 419, 420-421 (333 SE2d 628) (1985). Accord Insurance Co. of North America v. Smith, 183 Ga. App. 266 (1) (358 SE2d 658) (1987).” Auto-Owners Ins. Co. v. Sapp, 185 Ga. App. 661, 662 (365 SE2d 286). In the case sub judice, the stipulated facts reveal that Angie Vlahos was continuously employed by All Auto Parts from January 2, 1986; that she was involved in an automobile collision on October 29, 1988, and has not worked since as she was physically incapable of returning to work with All Auto Parts which closed shortly after the collision. Further, the undisputed evidence shows that All Auto Parts was obligated to pay Angie Vlahos a salary of $300 per week. This evidence is sufficient to establish plaintiff’s entitlement to lost income benefits for the entire period of her disability under OCGA § 33-34-4 (a) (2) (B). Nonetheless, Sentry contends plaintiff Vlahos is not entitled to recover lost income benefits because All Auto Parts did not pay plaintiff’s salary for almost 22 months before the collision. In this vein, the majority contends there is insufficient evidence to establish plaintiff’s “lost income with reasonable certainty.” These contentions are misplaced.

Decided March 5, 1992

Reconsideration denied March 25, 1992

Zipperer & Lorberbaum, Ralph R. Lorberbaum, for appellant.

Karsman, Brooks & Calloway, R. Kran Riddle, for appellee.

Sentry and the majority rely heavily upon the profit and loss history of All Auto Parts in concluding that plaintiff had no lost income as a result of her disability. The majority even states that Angie Vlahos “must show a ‘track record’ [of her corporate employer’s] profitability . . .” before she can recover “lost profits in a tort case. ...” The majority concludes that Angie Vlahos is not entitled to lost income benefits because she has “no reasonable expectation that her accrued income would ever mature into cash income.” These positions are dependent upon the unsupported conclusion that All Auto Parts is insolvent, i.e., so capital poor that All Auto Parts is unable to cover its corporate liabilities. Further, the positions taken by Sentry and the majority focus on the wrong issue, i.e., a corporation’s ability to pay debt.

The controlling issue in the case sub judice is whether plaintiff was continuously employed before disability and how much income she is entitled to recover as a result of her loss. Auto-Owners Ins. Co. v. Sapp, 185 Ga. App. 661, 662, supra. The inability of All Auto Parts to pay plaintiff’s salary is not relevant to plaintiff’s undisputed right to collect $300 per week from her employer. To say otherwise, would ignore the corporate entity (All Auto Parts) and assume fraud on the part of a corporate officer. Consequently, since the stipulated facts show a continuous pattern of employment prior to the period of disability and since there is no evidence that plaintiff’s salary was fraudulently accrued, it is my view that Angie Vlahos is entitled to recover lost income benefits based on her $300 per week salary for the entire period of disability. See Leonaitis v. State Farm Mut. Ins. Co., 186 Ga. App. 854, 855 (1) (368 SE2d 775), where the insured’s compensation for lost income from the corporation he owned and operated was limited to his corporate salary. Compare Southeastern Fidelity Ins. Co. v. Hicks, 143 Ga. App. 165 (1) (237 SE2d 655), where income benefits were denied because the insured was working at her mother’s place of employment without pay and as an accommodation to her mother.

I am authorized to state that Chief Judge Sognier and Judge Johnson join in this dissent.


author: Andrews, Judge.

text:
    A91A1667.
    EVERS v. MONEY MASTERS, INC.
    (417 SE2d 160)
   Andrews, Judge.

Evers attempted to purchase a controlling interest in a Cobb County business, Express Nurses, Ltd., from Elena Duncan and Valerie Brown. In connection therewith, he executed two checks in September 1989, one to Duncan and one to Brown. After writing the checks Evers became aware that Duncan and Brown had failed to fulfill their obligations in connection with his purchase, and he stopped payment on the checks. In the meantime, Brown and Duncan had presented the checks to Money Masters and been paid.

On September 27, 1989, Evers filed suit in Cobb County against three defendants, including Duncan and Brown, in which he claimed breach of contract. Money Masters filed suit in Cobb County on May 2, 1990 against Brown, Duncan and Evers for damages it claimed as a holder in due course. The instant appeal involves various issues arising out of Money Masters’ lawsuit.

Brown, who resided in Indiana, was served with that lawsuit on May 31, 1990. Evers, who resided in Florida, was served with the complaint on July 20, 1990. Brown never filed an answer to the lawsuit and defendant Duncan, who resided in Cobb County, was never served with the complaint.

The 30-day period within which Evers was required to file his answer to the suit expired on August 20, 1990. On August 21, without paying court costs, Evers filed a motion to dismiss the complaint based on the alleged lack of personal jurisdiction, which the trial court denied. Accompanying Evers’ motion to dismiss was his affidavit in which he claimed that none of his actions relevant to the lawsuit occurred in Cobb County.

On November 29, 1990, Money Masters moved for a default judgment against Brown and Evers on the basis that neither party had filed an answer. On December 10, 1990, Evers filed a motion to open the default in which he stated that his failure to file an answer resulted from excusable neglect in that Evers’ counsel had been busy with other matters and was inexperienced in the field of commercial paper. In this motion, he offered to pay into the registry the court costs, though there is no evidence that these costs were ever paid. Also on December 10, Evers filed an answer, counterclaim and cross-claim. In the answer Evers denied venue was proper and in the counterclaim, Evers affirmatively alleged that Cobb County was not a proper venue and he subsequently filed a motion to dismiss on the basis of improper venue.

On February 4, 1991, the trial court entered an order denying Evers’ motion to open the default, denying Evers’ motion to dismiss and finding that Money Masters was entitled to a default judgment against him. Subsequently, Money Masters dismissed defendant Duncan without prejudice. On February 18, after conducting a hearing on the issue of damages, the state court entered a default judgment against Brown and Evers.

1. In his first enumeration of error, Evers claims that the trial court erred in issuing a final judgment against the two nonresident defendants, when Duncan, the resident defendant, had not been served. Evers argues that there can be no final judgment in the case until all joint obligors are adjudicated liable.

First, we note that the alleged liability in this case was joint and several and that defendant Duncan was dismissed from the action prior to the entry of judgment. The trial court’s conclusion that Evers and Brown were in default and its entry of final judgment against them was proper. Fred Chenoweth Equip. Co. v. Oculus Corp., 254 Ga. 321 (328 SE2d 539) (1985). “The default judgment merely determined that [Evers] failed to follow the procedural requirement that a timely answer be filed. The consequence of this failure was that judgment was entered against [Evers].” Chenoweth, supra at 323.

2. Evers contends that the court erred in denying his motion to open default and by failing to find that a proper case had been made for the default to be opened under OCGA § 9-11-55 (b). This contention is without merit.

Evers moved to open the default more than four months after the deadline for filing the answer had passed. He made no showing under oath as required by § 9-11-55 in connection therewith and simply offered to pay court costs. The trial court concluded that the motion was not filed in a timely manner and refused to open the default. See Stinson v. Dept. of Human Resources Credit Union, 171 Ga. App 303, 305 (5) (319 SE2d 508) (1984). “Upon review of the circumstances, we cannot conclude as a matter of law the court’s denial of the request to open the default was a manifest abuse of discretion.” (Quotations and citations omitted.) Womack Indus. v. Tifton-Tift County &c., 199 Ga. App. 237, 239 (2) (404 SE2d 618) (1991).

3. In a separate enumeration of error, Evers claims that the trial court erred in determining that venue was proper. He contends that the sole connection to Cobb County was defendant Duncan and that venue became improper in her absence. Further, Evers claims that venue was proper only in DeKalb County which was the county in which the closing on the sale occurred. He claims that he did not waive the venue defense since until Duncan was dismissed, venue was proper and became improper only after defendant Duncan was dismissed.

Pretermitting the question of whether Evers waived the venue argument, see generally Hazzard v. Phillips, 249 Ga. 24 (1) (287 SE2d 191, 193) (1982), we find this enumeration without merit. Evers’ basic assumption that Duncan’s residence in Cobb County justified the forum choice is misplaced, since it is the venue provisions of the Long Arm Statute which control here. Despite the joint obligor provisions of the Georgia Constitution, in cases involving defendants who are nonresidents, “venue against the nonresident individual is proper only where authorized by the Long Arm Statute.” Goodman v. Vilston, Inc., 197 Ga. App. 718, 721 (399 SE2d 241) (1990). “When jurisdiction is obtained under the Long Arm Statute, venue is proper ‘in any county wherein the business was transacted, the act or omission occurred, or the real property is located.’ ” Id. at 719; OCGA § 9-10-93; see also Bergen v. Martindale-Hubbell, Inc., 245 Ga. 742 (267 SE2d 10) (1980).

Decided February 12, 1992

Reconsideration denied March 25, 1992.

Gary R. Pelphrey, for appellant.

Despite Evers’ contentions that the only connection with Cobb County was Duncan’s residence, the record establishes otherwise. Express Nurses was located in Cobb County and the sales contract provided that all notices to the sellers were to be sent to a Cobb County address. Evers filed his lawsuit in Cobb County and the undenied allegations of the complaint establish that Duncan and Brown presented the checks from Evers to Money Masters in Cobb County.

We recognize that potential problems in the determination of venue may arise where “the transaction occurred in more than one county, or the act or omission was set in motion in one county, furthered by acts in a second county, and injury results in a third county. As long as there is evidence that a significant part of the occurrence giving rise to jurisdiction took place in a county the statutory requirement is met even though there may be also other counties where other significant conduct transpired.” Davis & Shulman, Georgia Practice & Procedure, 6th ed., § 5-10 at 121.

4. Evers alleges in his fourth enumeration that the trial court erred in refusing to certify the judgment against him and Brown under OCGA § 9-11-54 (b) for appeal to this court. Given that defendant Duncan had been dismissed from the action and there were no claims pending below, this enumeration is without merit. See generally Cherry v. Hersch, 193 Ga. App. 471 (388 SE2d 64) (1989).

5. Finally, Evers claims that the decision of the state court was manifestly unjust. For the reasons set forth above, this enumeration is without merit.

Money Masters’ motion for sanctions is denied.

Judgment affirmed.

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

Campbell & Dreger, Richard J. Dreger, for appellee.