text:
    A91A1279.
    In the Interest of J. R. et al., children.
    (410 SE2d 458)
   McMurray, Presiding Judge.

The Georgia Department of Human Resources, by and through the Glynn County Department of Family & Children’s Services (DFACS), filed a petition to terminate the parental rights of the natural mother (appellant) of J. R., born on May 18, 1989, and A. R., born on June 5, 1990. An attorney was named and appointed guardian ad litem of the minor children pursuant to OCGA § 15-11-85 (a) and he recommended terminating appellant’s parental rights, alleging facts supporting his recommendation. After a hearing on the petition for termination of parental rights, the juvenile court entered findings of fact and conclusions of law and terminated appellant’s parental rights with regard to J. R. and A. R. This appeal followed. Held:

1. Appellant contends the evidence was insufficient to support a termination of her parental rights.

“ ‘ “ ‘(T)he appropriate standard of appellate review in a case where a parent’s rights to his child have been severed 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 have been lost.” ’ (Cits.)” In the Interest of A. O. A., 172 Ga. App. 364, 365-366 (323 SE2d 208) (1984). “The factfinding and weighing of evidence is to be done in the trial court under the clear and convincing evidence test. 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.” In re B. D. C., 256 Ga. 511, 513 (350 SE2d 444) (1986). “ ‘ “(I)t is not proper to consider the question of termination of parental rights based solely upon a ‘welfare of the (child)’ test, without some required showing of parental unfitness, caused either by intentional or unintentional misconduct resulting in abuse or neglect of the (child), or by what is tantamount to physical or mental incapability to care for the (child).” (Cit.)’ (Cit.)” In the Interest of T. A. L. & L. I. L., 177 Ga. App. 846, 847 (341 SE2d 496) (1986).’ In re A. N. Y., 181 Ga. App. 499 (353 SE2d 8).” In the Interest of A. T., 187 Ga. App. 299 (1) (370 SE2d 48).

In the case sub judice, the evidence reveals that J. R. and A. R. were conceived after their mother exchanged sex for drugs with the same unidentified man; that J. R. contracted syphilis in útero; that A. R. received no prenatal care; that appellant consumed cocaine two days before A. R.’s birth; that appellant is a drug addict; that appellant is a convicted felon and that appellant often prostituted her body. The evidence further reveals that J. R. and A. R. have been in DFACS custody since infancy due to the presence of cocaine in their bodies; that appellant has four other minor children under DFACS supervision and that appellant has failed to comply with court-ordered DFACS guidelines aimed at reuniting appellant with her children, i.e., appellant has not provided DFACS with a home address, she has avoided contact with a DFACS caseworker, she has failed to attend regularly scheduled drug rehabilitation treatments, she has failed to consistently pay child support of $1 per week, she has failed to establish a suitable home for her children, she has rarely visited J. R. and she has never visited A. R. This clear and convincing evidence authorizes a finding that appellant’s intentional misconduct has caused abuse and neglect to her children and that the abuse and neglect is likely to continue. Nonetheless, appellant argues that evidence of her recent transformation through the assistance of a religious organization “leaves no doubt as to how far she has come in a short time, and how eager she is to continue to create a productive environment for rearing her children.”

The trial court must determine whether a parent’s conduct warrants hope of rehabilitation, not an appellate court. In the Interest of A. T., 187 Ga. App. 299 (1), supra. In the case sub judice, evidence of appellant’s recent interest in church-related activities is warmly received. However, it does not change clear and convincing proof supporting the juvenile court’s finding that the abuse and neglect of J. R. and A. R. is likely to continue. See In the Interest of J. L. Y., 184 Ga. App. 254, 255 (2), 257 (361 SE2d 246). Appellant has failed to regularly visit or support J. R. and A. R. and she has repeatedly rejected and ignored DFACS services and encouragement for parental rehabilitation. Further, the record reveals that the unknown father’s parental rights have been terminated and that no other family members are willing or able to support and care for A. R. and J. R. Under these circumstances, we cannot say the juvenile court erred in terminating appellant’s parental rights with regard to J. R. and A. R. See In the Interest of G. K. J., 187 Ga. App. 443 (2), 444 (3) (370 SE2d 490).

Decided September 13, 1991.

R. Dean Weiss, for appellant.

Lane, Tucker & Crowe, Robert L. Crowe, James A. Chamberlin, Jr., Michael J. Bowers, Attorney General, Margot M. Cairnes, Staff Attorney, for appellee.

2. Appellant contends the juvenile court erred in failing to dismiss the petition for termination of parental rights because the petition misstated A. R.’s date of birth. The enumeration raises no harmful error.

Judgment affirmed.

Sognier, C. J., and Andrews, J., concur.


source: Caselaw Access Project

author: McMurray, Presiding Judge.

license: Public Domain

text:
    A91A1452.
    In the Interest of A. N. S., a child.
    (410 SE2d 385)
   McMurray, Presiding Judge.

A. N. S. was 16 years of age when he was charged, via petition of delinquency, with committing acts upon a 16-year-old victim constituting the offense of rape were he 17 years of age at the time of the occurrence. The case was tried before the juvenile court judge. A. N. S. testified that he experienced sexual intercourse with the victim and that the sex act was consensual. The victim testified that A. N. S. forced himself upon her and that she resisted.

A. N. S. was found to be delinquent and in need of treatment and rehabilitation for committing the acts alleged in the petition. This appeal followed. Held:

In three enumerations, A. N. S. challenges the sufficiency of the evidence and argues that the victim’s testimony is insufficient to authorize his adjudication of delinquency. This argument is without merit.

Decided September 13, 1991.

Richard Dickson, Vicki C. Affleck, for appellant.

Harry N. Gordon, District Attorney, Steve C. Jones, Assistant District Attorney, for appellee.

“The credibility of the witnesses is solely a question for the trier of fact. Redd v. State, 154 Ga. App. 373 (268 SE2d 423) (1980).” In the Interest of W. N. N., 196 Ga. App. 30, 31 (1) (395 SE2d 354). In the case sub judice, the victim testified that she “bit [A. N. S.] on his face [during the sexual assault] and then when he wouldn’t stop, [that she] just started scratching him on his back.” Detective Monty Mohr of the City of Athens Police Department testified that he interviewed A. N. S. within 11 days after the alleged delinquent act and discovered “some type of abrasion or injury to the left side of [A. N. S.’s] face ...” and “scratches on his back.” This evidence was sufficient to authorize the juvenile court’s finding, beyond a reasonable doubt, that A. N. S. committed the delinquent act alleged in the petition. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); In the Interest of A. B., 194 Ga. App. 665, 666 (2) (391 SE2d 683).

Judgment affirmed.

Sognier, C. J., and Andrews, J., concur.


text:
    A90A0823.
    WEB, INC. et al. v. AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY, INC.
    (410 SE2d 830)
   McMurray, Presiding Judge.

In accordance with the decision of the Supreme Court of Georgia in American Express Travel Related Svcs. Co. v. Web, Inc., 261 Ga. 480 (405 SE2d 652), that part of our previous judgment as it related to Divisions 3 and 5 of our decision in Web, Inc. v. American Express Travel Related Svcs. Co., 197 Ga. App. 697 (399 SE2d 513) is vacated and the judgment of the superior court is affirmed except as to defendant in counterclaim Becker. Our previous reversal of the superior court’s grant of defendant’s motion to add Becker as a defendant in counterclaim in Web, Inc. v. American Express Travel Related Svcs. Co., 197 Ga. App. 697, 700 (5), supra, is not affected by the Supreme Court of Georgia’s decision.

Judgment affirmed in part and reversed in part.

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

Decided September 16, 1991.

Joel Y. Moss, for appellants.

Alston & Bird, John I. Spangler III, Dennis J. Connolly, for appellee.


text:
    A91A1489.
    ASPINWALL v. THE STATE.
    (410 SE2d 388)
   McMurray, Presiding Judge.

Defendant Aspinwall was charged by indictment with the offenses of one count of child molestation and two counts of aggravated child molestation. On November 9, 1990, defendant filed his demand for trial pursuant to OCGA § 17-7-170, asking that he be tried at the then current term or next term of court, or in default of such trial, that he be fully discharged and acquitted of the offenses charged. Subsequently, defendant filed his motion for discharge and acquittal pursuant to OCGA § 17-7-170, alleging the passage of two terms of court at which jurors had been impaneled and that he had not been tried. Defendant appeals from the denial of his motion for discharge and acquittal. Held:

OCGA § 15-6-3 (7) (C) sets the terms of court of the Superior Court of Glynn County. This statute was amended in 1990 (Ga. L. 1990, p. 920, § 2, effective January 1, 1991) so as to change the dates of commencement of terms of court from the second Monday in January, May, and September to the second Monday in March and Sep-. tember.

Defendant’s demand for trial was filed during the September 1990 term of court and the record shows that jurors were impaneled for the trial of criminal cases during this term subsequent to the filing of defendant’s demand for trial. Pursuant to the amendment to OCGA § 15-6-3 (7) (C), the subsequent term of court commenced in March of 1991. “The regular terms of the superior and state courts shall continue until the commencement of the next regular term, at which time they shall stand adjourned.” OCGA § 15-6-19. It follows that only one term of court had passed in the interval between defendant’s demand for trial and the superior court’s ruling on defendant’s motion for discharge and acquittal.

Nonetheless, defendant contends that due to the change in the period of time permitted the State to try him pursuant to OCGA § 17-7-170, the amendment of the terms of court is an ex post facto law as applied to him. Based upon this supposition, defendant argues that the period allowed the State to try him must be determined under the superseded terms of court provision so that a fictitious January 1991 term of court would be deemed to have also passed.

Decided September 16, 1991.

Lane & Crowe, Robert L. Crowe, for appellant.

W. Glenn Thomas, Jr., District Attorney, Kevin R. Gough, Assistant District Attorney, for appellee.

“A speedy trial is a fundamental constitutional right. . . .” Blevins v. State, 113 Ga. App. 702, 703 (149 SE2d 423). OCGA § 17-7-170 is only one device by which a defendant may assert his constitutional right to a speedy trial. Newman v. State, 121 Ga. App. 692, 693 (3), 694 (175 SE2d 144). While defendant contends that OCGA § 17-7-170 provides substantive rights, we find no support for this position except certain dicta in Jeffries v. State, 140 Ga. App. 477, 478 (1), 479 (231 SE2d 369). This dicta is not supported by subsequent case law and is contradicted by decisions from other jurisdictions which hold that demand for speedy trial provisions are merely procedural devices subject to repeal or revision without any ex post facto consequences. Illinois v. Anderson, 292 NE2d 364; Illinois v. Bivens, 356 NE2d 665; Kantor v. Florida, 265 S2d 742; Alaska v. Williams, 681 P2d 313; Missouri v. Loewe, 756 SW2d 177, 180-181; Missouri v. Maynard, 714 SW2d 552, 554 (1,2); Washington v. Edwards, 616 P2d 620, 623 (3). We find the foreign authority persuasive and also note that the statutory amendment did not make criminal an act that was innocent when done, did not increase the punishment for a previously committed offense, and did not alter the rules of evidence. Nor did the amendment deprive the defendant of any substantive right available to him at the time of the offenses. At no time was defendant entitled to discharge and acquittal of the offenses with which he is charged. See Todd v. State, 228 Ga. 746, 752 (187 SE2d 831). The superior court did not err in denying defendant’s motion for discharge and acquittal.

Judgment affirmed.

Sognier, C. J., and Andrews, J., concur.


text:
    A91A1588.
    HOLLOWAY v. THE STATE.
    (410 SE2d 799)
   McMurray, Presiding Judge.

Via indictment, defendant was charged with obstructing a correctional officer in violation of OCGA § 16-10-24 (b). He was tried by a jury which returned a verdict of guilty. This appeal follows the imposition of sentence and the denial of defendant’s motion for a new trial. Held:

1. The general grounds are without merit. Viewed in a light favorable to the State, the evidence shows that, as defendant was being removed from his cell for a shower, he struck a correctional officer in the face. Although the officer and defendant had had a verbal confrontation earlier in the day, the officer did nothing to provoke defendant at the time in question. The evidence was sufficient to enable any rational trier of fact to find defendant guilty of obstructing a correctional officer in the lawful discharge of his official duties beyond a reasonable doubt. Salter v. State, 187 Ga. App. 178 (369 SE2d 798).

2. Defendant contends the trial court erred in refusing to permit him to ask a prison administrative assistant whether the prison guards “always abide by [the] post orders.” We find no merit in this contention. Defendant failed to perfect the record by obtaining an answer to the question. Accordingly, we are presented with nothing to review. Byrd v. State, 78 Ga. App. 824, 831-832 (3) (52 SE2d 330). See also Thompson v. State, 187 Ga. App. 152, 153 (369 SE2d 523).

3. In his last enumeration of error, defendant contends the trial court erred in permitting the correctional officer to testify that defendant was housed in “high max segregation,” an area set aside for prisoners who “have been violent toward other staff or other population.” He asserts this evidence was offered for the sole purpose of injecting an inference that defendant is a person of violent character.

When the officer was asked “what type of population is this in the M building,” defendant objected on the ground that he did not “see any relevance as to what type of population is in what building in the prison . . .’’He did not contend, as he does now, that the officer’s testimony injected his character into the case. Thus, we cannot consider defendant’s last enumeration of error. “ ‘Grounds which may be considered on appeal are limited to those which were urged before the trial court. (Cit.)’ Kingston v. State, 127 Ga. App. 660, 661 (194 SE2d 675).” Stephens v. State, 164 Ga. App. 398 (3), 399 (297 SE2d 90).

Even if defendant had objected on the ground now urged on appeal, we would be compelled to find that any error in permitting the officer to testify about the type of building housing defendant was harmless. The prison administrative assistant subsequently testified, without objection, that defendant was housed in the “maximum security segregation unit.” We think this evidence was similar to the evidence about which defendant complains. “ ‘Where certain evidence is admitted over objection, but similar evidence to the same effect is admitted without objection, the admission of the evidence objected to will not constitute reversible error, even if the admission of the evidence was erroneous.’ [Cits.]” Jordan v. State, 77 Ga. App. 700, 703 (1) (49 SE2d 694).

Judgment affirmed.

Sognier, C. J., and Andrews, J., concur.

Decided September 16, 1991.

Cheney & Cheney, Michael L. Chidester, for appellant.

Dupont K. Cheney, District Attorney, Lisa M. Young, Assistant District Attorney, for appellee.


text:
    A91A1687.
    QUALITY FORD SALES, INC. v. GREENE.
    (410 SE2d 389)
   McMurray, Presiding Judge.

Ford Motor Credit Company filed an action against Greene for non-payment of a debt arising from a vehicle retail installment contract. Greene filed a third-party complaint alleging that third-party defendant Quality Ford Sales, Inc., induced the execution of the contract, upon which the main action is predicated, by misrepresentations or nondisclosure of material facts. The third-party action states claims predicated on theories of fraud, fraud in the inducement, and invasion of privacy. This interlocutory appeal is taken from the state court’s denial of Quality Ford Sales, Inc.’s motion to dismiss the third-party complaint for failure to state a claim upon which relief can be granted. Held:

Third-party defendant Quality Ford Sales, Inc. contends that the third-party complaint is proeedurally improper because it fails to meet the requirements of OCGA § 9-11-14 (a). “OCGA § 9-11-14 (a) allows a defendant to become a third-party plaintiff by bringing into the action a third-party defendant ‘who is or may be liable to him for all or part of the plaintiff’s claim against him.’ The third-party defendant’s secondary liability to the original defendant for his liability on the main claim is required if a third-party complaint is to meet the statutory requirements. Wolski v. Hayes, 144 Ga. App. 180 (240 SE2d 720) (1977); Smith, Kline & French Labs. v. Just, 126 Ga. App. 643 (191 SE2d 632) (1972); Koppers Co. v. Parks, 120 Ga. App. 551 (171 SE2d 639) (1969). . . . ‘ “It is immaterial that the liability of the third-party rests on a different theory from that underlying plaintiff’s claim.” (Cit.)’ (Emphasis supplied.) Smith, Kline & French Labs. v. Just, [126 Ga. App. 643, 646, supra]. However, our impleader provision does not allow a defendant ‘to bring in a third-party for the purpose of enforcing a liability against the latter different from that on which the plaintiff is proceeding in an action at law.’ (Emphasis supplied.) Martin Mgt. Corp. v. Farner, 124 Ga. App. 552 (1) (184 SE2d 597) (1971). Impleader is ‘ “not a device for bringing into an action any controversy which may happen to have some relationship with it.” ... (A) defendant cannot assert an entirely separate claim against the third-party even though it arises out of the same general set of facts as the main claim. There must be an attempt to pass on to the third-party all or part of the liability asserted against the defendant (but not to tender the third party as a substitute defendant). (Cit.)’ Mathews v. McConnell, 124 Ga. App. 519, 521 (184 SE2d 491) (1971). See also Cohen v. McLaughlin, 250 Ga. 661, 662 (1) (301 SE2d 37) (1983).” Knapp v. Lolley, 177 Ga. App. 786, 787 (341 SE2d 306) (1986). “Only one who is secondarily liable to the original defendant may be brought in as a third-party defendant, as in cases of indemnity, subrogation, contribution, warranty and the like. [Cits.]” Burroughs Corp. v. Outside Carpets, 127 Ga. App. 622, 623 (2) (194 SE2d 487).

Decided September 16, 1991.

Bentley, Karesh, Seacrest & Labovitz, Gary L. Seacrest, Jeffrey P. Raasch, for appellant.

Ronald S. Iddins, Daniel F. Bridgers, for appellee.

In the case sub judice, the third-party complaint alleges separate and independent causes of action which are not dependent upon the outcome of the main claim against defendant Greene on the debt. If otherwise viable, the claims stated in the third-party complaint will exist regardless of the outcome in the main action. The only connection between the main claim and the third-party action is that the third-party defendant is alleged to have wrongfully deprived Greene of the money which plaintiff now seeks to collect. On similar facts, we held that there was no proper case for a third-party action in Owens v. Citizens Trust Bank, 190 Ga. App. 501 (2) (379 SE2d 594). The state court erred in denying the motion of third-party defendant Quality Ford Sales, Inc., to dismiss the third-party complaint.

Judgment reversed.

Sognier, C. J., and Andrews, J., concur.


author: Carley, Judge.

text:
    A90A0905.
    FELKER et al. v. FENLASON et al.
    (410 SE2d 326)
   Carley, Judge.

In Felker v. Fenlason, 197 Ga. App. 476, 477 (2) (398 SE2d 754) (1990), we reversed the trial court’s award of OCGA § 9-15-14 (b) attorney’s fees in the instant case. On certiorari, however, the Supreme Court reversed and remanded for our reconsideration in light of its opinion. Porter v. Felker, 261 Ga. 421 (405 SE2d 31) (1991).

1. Division 1 of our original opinion related to the scope of the instant appeal. Felker v. Fenlason, supra at 476 (1). Our holding in that regard is unaffected by the Supreme Court’s opinion. Accordingly, Division 1 of our original opinion is hereby readopted in its entirety.

2. The following holding of Division 2 of our original opinion is likewise unaffected by the Supreme Court’s opinion and is hereby readopted: “Although the jury found Dorsey and Fenlason liable on the Porters’ breach of contract claim, this would not necessarily serve to preclude the trial court from awarding OCGA § 9-15-14 (b) attorney’s fees to Dorsey and Fenlason based upon the alleged lack of substantial justification of the Porters’ fraud claim. In relevant part, OCGA § 9-15-14 (b) authorizes a trial court to assess attorney’s fees if ‘it finds that an attorney or party brought... an action, or any part thereof, that lacked substantial justification. . . .’ (Emphasis supplied.)” Felker v. Fenlason, supra at 477 (2).

3. In Division 2 of our original opinion, we had also held that an assessment of attorney’s fees pursuant to OCGA § 9-15-14 (b) was precluded because the trial court’s prior denial of a motion for summary judgment “as to the Porters’ fraud claim was ‘sufficient to constitute “a binding determination” that (that claim) did not lack substantial justification so as to render it frivolous, groundless or vexatious.’ [Cit.]” Felker v. Fenlason, supra at 477 (2). It was this holding that the Supreme Court reversed. “The party opposing the motion [for summary judgment] is to be given the benefit of all reasonable doubts and all favorable inferences that may be drawn from the evidence; thus, in a close case, a trial court may deny summary judgment and anticipate a second opportunity to consider its ruling on a subsequent motion for directed verdict. ... We cannot require trial courts to be infallible. More importantly, if additional facts authorize an award [of attorney’s fees] and the trial court is powerless to make an award, then the purposes of [OCGA § 9-15-14] (deterrence of litigation abuses and recompensation for legal fees and costs) are thwarted.” Porter v. Felker, supra at 422 (2).

Accordingly, our holding that the trial court’s denial of the motion for summary judgment constitutes a “binding determination” as to the non-recoverability of OCGA § 9-15-14 attorney’s fees is vacated and the following is hereby adopted as the holding of this court: “[A] trial court’s award [under OCGA § 9-15-14] to a party whose motion for summary judgment was denied must be vacated except in unusual cases where the trial judge could not, at the summary judgment stage, foresee facts authorizing the grant of attorney fees.” Porter v. Felker, supra at 422 (3).

4. “While [OCGA § 9-15-14 (b)] vests the trial court with the discretion to award attorney [’s] fees . . . , that power is contingent upon the trial court finding that [the Porters’ fraud claim] lacked substantial justification. . . .” Market Ins. Corp. v. IHM, Inc., 192 Ga. App. 441, 442 (3) (385 SE2d 307) (1989). The trial court’s order in the instant case makes the requisite finding that the Porters’ fraud claim “did lack substantial justification. . . .” Compare Coker v. Mosley, 259 Ga. 781, 782 (2c) (387 SE2d 135) (1990); Market Ins. Corp. v. IHM, Inc., supra at 442 (3).

Decided September 3, 1991

Reconsideration denied September 17, 1991.

Raiford, Dixon & Thackston, Tyler C. Dixon, for appellant.

King, Taylor & Stovall, James F. Stovall III, Edward E. Carriere, William E. Mumford, Walter B. McClelland, for appellees.

William C. Porter, pro se.

5. Although the trial court’s order makes the requisite findings, the issue yet remains as to whether the evidence authorized the trial court to make those findings. As noted, the Supreme Court has held that it is an “unusual” case wherein one whose motion for summary judgment has previously been denied will be entitled to a subsequent award of OCGA § 9-15-14 attorney’s fees. “[A] trial court’s award to a party whose motion for summary judgment was denied must be vacated except in unusual cases where the trial judge could not, at the summary judgment stage, foresee facts authorizing the grant of attorney fees.” (Emphasis supplied.) Porter v. Felker, supra at 422 (3). A review of the record demonstrates no evidence that the instant case is such an “unusual” case. Accordingly, we must reverse the award of attorney’s fees.

Judgment reversed.

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


text:
    A91A0808.
    CHAFIN et al. v. WINN-DIXIE ATLANTA, INC.
    (411 SE2d 64)
   Carley, Judge.

Appellant-plaintiffs brought this action, seeking to recover for a slip-and-fall that occurred in appellee-defendant’s grocery store. Appellee answered and, after discovery, moved for summary judgment. The trial court granted appellee’s motion and appellant appeals.

The undisputed evidence shows that appellant, who allegedly slipped on rainwater that had dripped from shopping carts inside appellee’s store, “knew of the rainy conditions. [The evidence also shows that appellee’s] employees took reasonable steps to keep the rainwater mopped.” Hagin v. Winn-Dixie Stores, 180 Ga. App. 303, 304 (348 SE2d 766) (1986). “It is not the duty of persons in control of such buildings to keep a large force of moppers to remove the rain as fast as it collects. [Cit.]” Colbert v. Piggly Wiggly Southern, 175 Ga. App. 44, 45 (1) (332 SE2d 304) (1985).

Decided September 3, 1991

Reconsideration denied September 17, 1991

John L. Blandford, for appellants.

Fain, Major & Wiley, Gene A. Major, Bruce A. Maxwell, for appellee.

Rodriguez v. Piggly Wiggly Southern, 185 Ga. App. 79, 80 (363 SE2d 291) (1987) and similar cases are distinguishable. In those cases, unlike here, a genuine issue of material fact remained as to whether the proprietor had exercised ordinary or reasonable care in the maintenance of the premises under the prevailing weather conditions. Colbert v. Piggly Wiggly Southern, supra at 46 (1). Being indistinguishable in all material respects, Hagin v. Winn-Dixie Stores, supra, is controlling and “[w]e find no error in the trial court’s ruling.” Hagin v. Winn-Dixie Stores, supra at 304.

Judgment affirmed.

Banke, P. J., and Beasley, J., concur.


text:
    A91A0825.
    DILLMAN et al. v. KAHRES.
    (411 SE2d 43)
   McMurray, Presiding Judge.

Bonnie N. Hartley, on behalf of her minor children Beth Dillman and Mark Dillman (plaintiffs), brought an action against Teresa Kahres (defendant) for intentional infliction of emotional distress, seeking damages for the emotional trauma her children allegedly experienced after they witnessed defendant recklessly drive an automobile “into a car parked in the front of Plaintiffs’ house.” Defendant denied the material allegations of the complaint and moved for summary judgment.

Plaintiffs’ version of the facts shows that defendant collided a car into a vehicle that was parked in plaintiffs’ front yard, a few feet from plaintiffs’ house. The collision was the result of an emotionally-charged-high-speed chase between defendant and her estranged husband. The plaintiff children and their mother Bonnie N. Hartley were inside the house at the time of the collision, but the children heard noise from the collision and plaintiff Beth Dillman witnessed the collision.

The trial court granted defendant’s motion for summary judgment. This appeal followed. Held:

The plaintiffs state in their notice of appeal that “[pjortions of the record will be omitted where it does not pertain to any issue on appeal.” Such omissions from the appellate record from matters on summary judgment generally prove fatal to appellate review since it must be assumed by a reviewing court that the trial court’s grant of summary judgment is properly supported by the trial court record and since appellant has the burden of showing error affirmatively by the record on appeal. Transport Indem. Co. v. Hartford Ins. Co., 198 Ga. App. 265, 266 (401 SE2d 294). This is particularly true under circumstances such as the case sub judice where the trial court states in its order on summary judgment that it considered the entire record before entering summary judgment. However, even considering those portions of the record plaintiffs apparently directed to this Court for review, we find no merit in plaintiffs’ sole contention, i.e., that genuine issues of material fact remain as to the children’s claim for emotional distress and mental pain and suffering.

“Georgia follows the so-called ‘impact rule,’ which requires that, there must have been actual bodily contact with plaintiff as a result of defendant’s conduct for a claim for emotional distress to lie.” OB-GYN Assoc. of Albany v. Littleton, 259 Ga. 663, 665 (2) (386 SE2d 146). More precisely, “the impact which will support a claim for damages for emotional distress must result in a physical injury.” OB-GYN Assoc, of Albany v. Littleton, 259 Ga. 663, 665 (2), 666, supra. In the case sub judice, plaintiff does not allege, nor is there evidence in the record showing that plaintiff children suffered physical injury as a result of defendant’s alleged wrongful acts. Nonetheless, plaintiffs contend they are entitled to recover damages for intentional infliction of emotional distress because of defendant’s reckless, wilful and wanton conduct. We do not agree.

“Our Georgia decisions have permitted recovery for emotional distress without physical impact under circumstances where the wilful act was directed towards the plaintiff [and it] was the absence of this element of being ‘directed towards the individual plaintiff’ which was the basis of other decisions holding that without a showing of physical injury there was no cause of action for emotional harm.” Strickland v. Hodges, 134 Ga. App. 909, 912 (216 SE2d 706). In the case sub judice, the record includes undisputed evidence that defendant’s reckless conduct was not directed toward the plaintiff children. Consequently, the trial court did not err in granting defendant’s motion for summary judgment. See OB-GYN Assoc. of Albany v. Littleton, 259 Ga. 663, 665 (2), 666, supra.

Judgment affirmed.

Sognier, C. J., and Andrews, J., concur.

Decided September 3, 1991

Reconsideration denied September 17, 1991

Allen W. Johnson, for appellants.

Dye, Miller, Tucker & Eueritt, Benjamin H. Brewton, for appellee.


author: Sognier, Chief Judge.

text:
    A91A0843.
    ROACH v. BOYCE, THOMPSON & O’BRIEN, P.C.
    (410 SE2d 748)
   Sognier, Chief Judge.

A law firm, Boyce, Thompson & O’Brien, P.C., brought suit against a former client, Ronnie D. Roach, to foreclose on an attorney’s lien. The parties submitted cross motions for summary judgment, and the trial court granted the plaintiff’s motion and denied that of the defendant. Roach’s notice of appeal from that judgment was dismissed by the trial court in an order dated June 4, 1990 because it was not timely filed. Roach then filed a notice of appeal from the June 4 order, which was dismissed by the trial court on December 3, 1990 after notice and a hearing on the ground that the delay in paying costs was unreasonable and inexcusable. Roach appeals.

The record reveals that after the June 4 order was entered, appellant filed his notice of appeal from that order on June 25, 1990. The clerk of court sent a notice of costs on July 9,1990, and appellant received the notice two days later. Appellant did not pay the costs until October 25, 1990, six days after appellee moved to dismiss the notice of appeal for nonpayment of costs. The record also reveals that this action was administratively terminated on August 21, 1990 because of a bankruptcy stay, but at a meeting of creditors on September 26, the bankruptcy court authorized appellant to pursue the instant appeal, and an order memorializing that decision was entered on October 10.

1. OCGA § 5-6-48 (c) provides in part that “the trial court may, after notice and opportunity for hearing, order that the appeal be dismissed where there has been an unreasonable delay in the . . . transmission of the record to the appellate court, and it is seen that the delay was inexcusable and was caused by the failure of a party to pay costs in the trial court or file an affidavit of indigence.” The trial court is authorized to enter such a dismissal only upon a finding that the delay was both unreasonable and inexcusable. Young v. Climatrol &c. Corp., 237 Ga. 53, 55 (226 SE2d 737) (1976). This court has held that delays of more than 30 days are prima facie unreasonable and inexcusable. Bouldin v. Parker, 173 Ga. App. 526, 527 (1) (327 SE2d 760) (1985).

Decided September 3, 1991

Reconsideration denied September 17, 1991

Floyd H. Farless, for appellant.

Boyce, Thompson & O’Brien, J. Patrick O’Brien, Betty H. Morris, pro se.

There is no evidence in the record to explain appellant’s 106 day delay in paying costs. Although in his briefs before the trial court and this court appellant maintains the delay resulted in part because the first check sent was returned for insufficient funds and counsel subsequently received conflicting advice from the clerk concerning the type of tender required, we find no abuse of discretion in the trial court’s conclusion that the delay was unreasonable and was not excused by this explanation. In addition, we agree with the trial court’s conclusion that the bankruptcy stay did not excuse the delay, as appellant failed to pay the costs in the 42 days prior to entry of the stay, nor did he tender payment until a month after he received authorization from the bankruptcy court to continue with the appeal. Moreover, if appellant was unable to obtain the necessary funds, he could have filed an affidavit of indigency, but he did not do so. Under the circumstances, we find that dismissal was warranted. See Hatfield v. Great Amer. Mgmt. &c., 190 Ga. App. 534, 535 (2) (379 SE2d 544) (1989); Little v. Thompson Co., 140 Ga. App. 238, 239 (2) (230 SE2d 316) (1976).

2. Since we have ruled the dismissal of appellant’s appeal was not error, we need not consider his remaining enumerations. Hatfield, supra at 535-536 (2).

Judgment affirmed.

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


author: Beasley, Judge.

text:
    A91A0915.
    HUBBARD v. STATE OF GEORGIA.
    (411 SE2d 44)
   Beasley, Judge.

On August 20, 1990, appellee, the State of Georgia (through the District Attorney of the Northeastern Judicial Circuit) filed the present petition pursuant to OCGA § 16-13-49 (e) to condemn a motor vehicle which had been seized from Robert Hubbard, who allegedly was using the vehicle to transport amphetamine powder, a controlled substance.

On August 22, a copy of the petition was served on Robert Hubbard and on his wife, appellant Darlene Hubbard, who, as stated in the petition, is the owner of the vehicle. In the summons, these parties were directed to file an answer to the petition within 30 days “of the filing of the action, exclusive of the day of filing.” As provided for in OCGA § 16-13-49 (e), a notice of the proceeding was also published once a week for two weeks in the newspaper in which sheriff’s advertisements are placed. This notice was published on August 30 and Hubbard answered on September 21, the thirty-second day, confirming that she was the owner of the vehicle and denying any knowledge that it was operated for the purpose of violating the Controlled Substances Act. On October 3, a bank moved to intervene, claiming it had a perfected security interest in the vehicle. By consent of the State and Darlene Hubbard, the court granted this motion.

Thereafter, the State moved to strike Darlene Hubbard’s answer on the ground that it was not filed within 30 days of the filing of the petition. The court granted the motion. By final judgment, it condemned the vehicle and ordered its disposition to the narcotics squad.

On three grounds set out in three enumerations of error, appellant Hubbard urges that the court erred in striking her answer as untimely.

1. The first ground is that the petition did not “conclude with a prayer of due process to enforce the forfeiture,” as required by subsection (e) of the statute. If the court did not err in striking her answer, she is in no position to challenge the sufficiency of the petition with respect to its omission of the express language described. This would be a defense, which the court would not reach because of the tardy attempt to raise the issue. Moreover, the petition’s lack of the precise wording would be no legal excuse for the late filing of the claim.

Moreover, the petition is not defective as asserted. Its prayer for relief seeks, among other things, that the court “issue an order directing the custodian to seize said motor vehicle . . . and hold it until further order of this Court.” This in essence is a prayer of the nature described by the statute. It was unnecessary to explicitly pray that the ultimate court order prayed for be one which would “enforce the forfeiture.” That is inherent in what was stated, especially considering the entire context of the petition. It clearly advised potential claimants including appellant of its purpose and intent, and appellant does not assert otherwise. In fact, it is styled “Petition for the Condemnation of a Motor Vehicle,” which claimant acknowledges an awareness of in repeating it on her answer, and the petition recites the governing Code section at the outset.

OCGA § 16-13-49, a forfeiture statute, is “a special statutory proceeding which must be strictly construed and complied with. [Cits.]” Fulton v. State of Ga., 183 Ga. App. 570, 571 (359 SE2d 726) (1987). “[It] sets out and balances two legislative intentions: (1) the prompt disposition of property subject to forfeiture under the statute . . .; and (2) the protection of property interests of innocent owners, as defined by the statute.” State of Ga. v. Jackson, 197 Ga. App. 619, 621 (1) (399 SE2d 88) (1990). The direction given in the statute with respect to what the petition must contain is descriptive, not a recitation of “magic words” which must be included. Its purpose is notice. The petition in this case fulfilled the requirement.

2. The second ground is that the late answer should have been allowed because the “intervenor” filed its claim even later in time and the tardiness was waived by the State. Appellant should enjoy the same privilege, she asserts, because “prompt disposition,” one of the legislative intentions of the prescribed procedure, will not be any more frustrated than has already been allowed.

Appellant consented to the waiver given the bank for its totally independent interest, and thus she cannot complain of it. This waiver does not, as a matter of law, entitle her to the same thing for her failure to comply with the statutory mandate of which she had due notice. Nor does she point to any authority which supports her contention. Fulton v. State of Ga., supra, wherein it appears there was a late claim, does not hold that a claimant has a right to such. The tardiness of the claim was not in issue, and the opinion merely intimates that the lateness of the filing can be waived by the State.

Appellant shows no harm which would come to her as a result of the waiver given the bank. Moreover, contrary to her argument, the litigation of her claim would delay disposition, as there was no contest with, respect to the bank’s interest.

3. Appellant’s third ground is that there is a “clear trend” in this court toward application of the Civil Practice Act in these condemnation cases under OCGA § 16-13-49 insofar as the opening of defaults is concerned. It is contended that the court’s opinion in State of Ga. v. Britt Caribe, Ltd., 154 Ga. App. 476 (268 SE2d 702) (1980), has been softened by its opinions in the Fulton and Jackson cases, supra.

Britt Caribe held that what is now OCGA § 9-11-55 does not apply to the forfeiture statute, and we reaffirm it for the sound reasons stated therein. Particularly pertinent here, “[t]he disposition of unclaimed property under [OCGA § 16-13-49 (e)] ... is not a default judgment, inasmuch as the property is unclaimed and the judgment, if it is one, is against the property and there is no party in default.” Id. at 477. That was repeated in Fulton, which recognized that “this is a special statutory proceeding to which default is not applicable.” Fulton, supra at 572. The Jackson case does not involve an application of the CPA.

Appellant, not having available to her the CPA mechanism for “opening her default” or, more accurately, achieving a waiver of her tardy filing, is confronted with the statute’s mandate that “[a]t the expiration of 30 days after [the] filing, if no claimant has appeared to defend the action, the court shall order the disposition of the seized merchandise as provided for in this Code section.” OCGA § 16-13-49 (e).

Decided September 3, 1991

Reconsideration denied September 17, 1991

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

C. Andrew Fuller, District Attorney, Lee Darragh, Anne M. Bishop, Assistant District Attorneys, for appellee.

The claimed error was not one.

Judgment affirmed.

Banke. P. J., and Carley, J., concur.


text:
    A91A0970.
    FREEMAN v. THE STATE.
    (410 SE2d 749)
   Sognier, Chief Judge.

Marty Raby Freeman was convicted of selling methamphetamine to an undercover agent. He appeals from the denial of his motion for new trial.

1. The indictment charged appellant with “the offense of VIOLATION GEORGIA CONTROLLED SUBSTANCES ACT, for that [appellant] in the County of Clayton and State of Georgia, on the 7th day of December, 1988, did unlawfully sell to [the agent] METHAMPHETAMINE, in violation of Schedule II of the Georgia Controlled Substances Act.” Appellant contends the trial court should have granted his demurrer to this indictment because Schedule II of the Georgia Controlled Substances Act, OCGA § 16-13-20 et seq. (hereinafter “GCSA”), does not prohibit any act or make any conduct illegal, and thus the indictment charged no crime.

“An indictment substantially in the language of the Code is sufficient in form and substance. . . . [T]he true test of the sufficiency of the indictment is not whether it could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for ,a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction.” (Citations and punctuation omitted.) Moran v. State, 170 Ga. App. 837, 841-842 (2) (318 SE2d 716) (1984). OCGA § 16-13-30 (b) provides that “it is unlawful for any person to manufacture, deliver, distribute, . . . [or] sell . . . any controlled substance,” and paragraphs (d), (f), and (h) of this Code section specify the punishments to be imposed for violation of paragraph (b), with the severity of the punishment depending on whether the controlled substance is a narcotic drug and whether it is listed in Schedules I, II, III, IV, or V of the GCSA (OCGA §§ 16-13-25 — 16-13-29). Methamphetamine is listed in Schedule II. OCGA § 16-13-26 (3) (B).

Decided September 3, 1991

Reconsideration denied September 17, 1991

Michael R. Hauptman, for appellant.

We hold the indictment at issue was sufficient in form and substance because it contained the elements of the charged crime of sale of a controlled substance as defined in OCGA § 16-13-30 (b); it spelled out the details of the alleged criminal act with sufficient certainty to apprise appellant of the proof he must have been prepared to meet; and it was phrased in substantially the language of OCGA § 16-13-30 (b). See Moran, supra at 842 (2); see also OCGA § 17-7-54 (a) . Although the indictment technically was partly inaccurate in that the State was required to prove that appellant sold a Schedule II drug in violation of OCGA § 16-13-30 (b), not that he violated Schedule II, this inaccuracy does not invalidate the indictment because the facts stated in the indictment clearly indicate that the charged crime is unlawful sale of methamphetamine, a Schedule II drug, to an undercover agent. Parker v. State, 124 Ga. App. 317 (183 SE2d 612) (1971); accord State v. Pettus, 133 Ga. App. 622-623 (1, 2) (212 SE2d 9) (1974) . In addition, since the law does not require that an indictment state the statute on which it is based, the fact that the instant indictment alleged a violation of Schedule II of the GCSA (OCGA § 16-13-26) rather than OCGA § 16-13-30 (b) is not material. Parker, supra at 317-318.

2. Similarly, we find no fatal variance between the allegata and the probata. Because a “violation of Schedule II of the [GCSA]” is not an element of the charged crime of violation of OCGA § 16-13-30 (b) , and the reference to Schedule II was not required by OCGA § 17-7-54 (a) to be made a part of the indictment, the allegation concerning Schedule II is mere surplusage and may be disregarded. Anderson v. State, 149 Ga. App. 460 (1) (254 SE2d 459) (1979). Contrary to appellant’s argument, the reference to Schedule II was not an unnecessarily minute description of a necessary fact, which must be proved, but instead was an unnecessary description of an unnecessary fact, which need not be proved, because the State was not required to prove a “violation of Schedule II” in order to convict appellant of the charged crime. See McHugh v. State, 136 Ga. App. 57 (220 SE2d 69) (1975) .

Judgment affirmed.

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

Robert E. Keller, District Attorney, Albert B. Collier, Assistant District Attorney, for appellee.


text:
    A91A1093.
    BELL v. BELL.
    (411 SE2d 47)
   McMurray, Presiding Judge.

Following the death of her husband, Miller Bell, Sr., appellee Beatrice Bell filed an application for a year’s support. She proposed to have set aside a certificate of deposit, a savings account, a bed, chest of drawers and refrigerator and a house (appraised for tax purposes at $26,640). Appellant Miller Bell, Jr., the decedent’s son, filed a caveat contending that (1) the amount sought to be set aside for year’s support was excessive and (2) it would be inequitable to award appellee a year’s support because she treated the decedent cruelly.

The probate court set aside the furnishings and house for a year’s support (after determining that no funds remained in the decedent’s bank accounts). In large measure, the probate court was persuaded by the fact that appellee was 79 years old when her husband died; that the major source of her income was social security; and that she “entered upon her marriage [to the decedent] owning a home free and clear of liens and that it was sold [for $16,000] and the proceeds [were] used in the marriage.” Held:

1. Appellant acknowledges that appellee is entitled to a year’s support inasmuch as she was the spouse of the decedent. OCGA § 53-5-2 (b); Gentry v. Black, 256 Ga. 569, 570 (351 SE2d 188). He takes the position, however, that appellee is entitled to no more than the minimum statutory award ($1,600). In this regard, he asserts that anything above the minimum statutory award exceeds the “amount sufficient to maintain the standard of living that the surviving spouse . . . had prior to the death of the [decedent] . . . OCGA § 53-5-2 (c). We disagree.

“Examining the evidence of record in its totality, including but not limited to [appellee’s] living expenses . . . her gross income . . . [and] her monthly Social Security benefit, ... we are satisfied that the trial court did not abuse its discretion in the manner in which it applied the statutory year’s support determination methods of OCGA § 53-5-2 (b) & (c).” Baker v. Baker, 194 Ga. App. 477, 478 (390 SE2d 892). See also Johnson v. Johnson, 199 Ga. App. 549, 550 (2) (405 SE2d 544). The mere fact that the trial court may have slightly miscalculated appellee’s gross income or living expenses is of no consequence in light of the entire record.

2. The evidence of appellee’s “cruel treatment” toward decedent was conflicting. Thus, even if such evidence can be used to diminish a year’s support award, but see Hunnicutt v. Hunnicutt, 180 Ga. App. 798 (1) (350 SE2d 770), it cannot be said that the trial court abused its discretion in setting aside the decedent’s house and furnishings.

Decided September 3, 1991

Reconsideration denied September 17, 1991

Brennan, Harris & Rominger, Richard J. Harris, for appellant.

Hendrix & Sanders, John W. Hendrix, for appellee.

Judgment affirmed.

Sognier, C. J., and Andrews, J., concur.


text:
    A91A0873, A91A0874.
    ROLLESTON v. MUNFORD; and vice versa.
    (410 SE2d 801)
   Sognier, Chief Judge.

These appeals arise from a ruling made in an action brought by M. Aubrey Munford as guardian of Lara Llewellyn Munford, a minor, against the trustees of a trust administered for the minor’s benefit. Munford filed a motion for an award of attorney fees under OCGA § 9-15-14 (a), (b) for expenses incurred in obtaining the release of documents held by her former counsel, Moreton Rolleston, Jr. Munford was awarded $2,000 in attorney fees, and we granted Rolleston’s discretionary appeal from that ruling in Case No. A91A0873. Munford cross-appeals in Case No. A91A0874, challenging the trial court’s failure to award the full amount she sought.

Rolleston initially represented Munford in a series of matters arising from her dispute with the trustees, but she later terminated his services and engaged W. Stell Huie as her counsel. Rolleston then presented Munford with a bill for $100,000 for services rendered but not yet compensated. When Huie requested that Rolleston forward the files and documents he held concerning Munford’s matters Rolleston refused, citing his right under OCGA § 15-19-14 (a) to hold a lien on the documents and to retain them until his fee was paid. Huie responded by sending Rolleston a copy of the Formal Advisory Opinion of the State Bar of Georgia No. 87-5 previously issued in 1987, which states that “[a]n attorney’s ethical obligation not to cause prejudice to his or her client is paramount over rights under [OCGA § 15-19-14; accordingly, an attorney may not to the prejudice of a client withhold the client’s papers or properties upon withdrawal [from representation] as security for unpaid fees.” When Rolleston rejected Huie’s assertion that this advisory opinion required him to release the files, Munford filed a motion in this pending action in Fulton County Superior Court seeking an order compelling Rolleston to deliver the files. The court ruled in favor of Munford. Rolleston complied with the order but appealed the ruling to the Supreme Court, which dismissed the appeal as moot. Rolleston v. Munford, Case No. S90A0104 (unreported case decided January 5, 1990). Munford then moved the trial court for recovery of $9,915 in attorney fees for services rendered by Huie and his law firm in obtaining release of the files. The court held that an award was authorized under OCGA § 9-15-14 (a) and (b), but found the reasonable value of the services provided to be only $2,000.

1. The issue presented by Rolleston’s third enumeration of error is whether the advisory opinion so resolved the question of Rolleston’s lien rights under OCGA § 15-19-14 that he could not present a justiciable issue of law or fact (OCGA § 9-15-14 (a)) or a legal argument that was substantially justified (OCGA § 9-15-14 (b)). We agree with Rolleston that it did not, and accordingly we reverse.

The attorney disciplinary rules in force in Georgia are promulgated by the Supreme Court pursuant to its inherent power to regulate the practice of law. Cambron v. Canal Ins. Co., 246 Ga. 147, 151-152 (8) (269 SE2d 426) (1980); see Wallace v. Wallace, 225 Ga. 102, 109-112 (7) (a) (166 SE2d 718) (1969). Since the creation of the State Bar of Georgia in 1963 (Ga. Laws 1963, p. 70), the State Bar Rules have provided for issuance of advisory opinions concerning the disciplinary rules. See former State Bar Rule 4-217, 219 Ga. 873, 914 (1963). Advisory opinions formerly were issued by the State Disciplinary Board “concerning a proper interpretation of the Canons of Ethics or any of the grounds for disciplinary action as applied to a given state of facts.” Id. In 1986, the rules were amended to provide for the issuance of formal and informal advisory opinions. See 1986 amendment to State Bar Rules at 255 Ga. 860, 887-888. Formal advisory opinions are prepared by the Formal Advisory Opinion Board, State Bar Rules 4-402, 4-403 (a)-(c), and issued by the Supreme Court after a review and comment period. State Bar Rule 4-403 (c), (d). Formal advisory opinions, which by definition “address prospective conduct,” are issued on the same grounds as stated in former Rule 4-217 for the issuance of advisory opinions. State Bar Rule 4-403 (a).

Although the Supreme Court has held that the disciplinary rules “have the effect of law,” Cambrón, supra at 151 (8), the court has not declared whether the interpretation given to those rules in formal advisory opinions constitutes controlling authority. Rule 4-403 (e) does provide that action in accordance with a formal advisory opinion “shall be a complete defense to any [disciplinary] grievance or formal complaint” (emphasis supplied), but the bar rules do not specify whether or to what extent conduct not in accordance with a formal advisory opinion constitutes an action contrary to established law. See generally Sammons, “Legal Ethics,” 41 Mercer L. Rev. 237, 238-241 (1989). Following the statutory mandate to construe the term “advisory” in Rules 4-402 and 4-403 according to its ordinary signification, OCGA § 1-3-1 (b), we recognize that the adjective has been defined to mean “of, giving, or containing advice.” Random House Dictionary p. 30 (2d ed. 1987). Similarly, “advisory opinion” is defined as “[a] formal opinion by [a] judge or judges or a court or a law officer upon a question of law . . . not actually presented in a concrete case at law[;] . . . [m]erely opinion of judges or court, which adjudicates nothing and is binding on no one.” Black’s Law Dictionary p. 75 (4th ed. 1951).

Given this ordinary meaning, and considering also that a formal advisory opinion is issued prospectively, Rule 4-403 (a), we hold that the trial court erred by concluding that Formal Advisory Opinion 87-5 so controlled the issue sub judice that Rolleston was unable, as a matter of law, to present a justiciable issue of law or fact or to advance a substantially justifiable argument against the application of the opinion to the particular facts at bar. Formal advisory opinions may constitute persuasive authority on ethical questions, but we find nothing in the State Bar Rules to suggest that an attorney is precluded as a matter of law from challenging the applicability of such opinions in a concrete context. Since the opinion here was issued to provide advice concerning prospective conflicts between State Bar Standard 22 and OCGA § 15-19-14, but had not been held by a court of law to be applicable to the precise situation confronted by Rolleston (or indeed to any actual circumstance), he was entitled to argue that the opinion did not control the issue.

Furthermore, Rolleston also was entitled to argue, as he did below, that regardless of the controlling nature of formal advisory opinions in general, the opinion at issue was not applicable to the particular facts at bar. Rolleston argued below that the opinion did not require him to surrender the documents at issue because he was fired and thus did not “withdraw” from representation as defined in Standard 22; that his client was not prejudiced as defined in the opinion or that the prejudice could be avoided or minimized; and that the opinion was incorrect or overbroad. Having reviewed Rolleston’s arguments in the context of our holding concerning the legal effect of formal advisory opinions (but without intimating an opinion whether he should have prevailed on these arguments in the trial court), we conclude these arguments had some basis in law or fact, and thus hold his conduct did not support an award of attorney fees under OCGA § 9-15-14 (a), (b). Compare Haggard v. Bd. of Regents, 257 Ga. 524, 527 (4) (b) (360 SE2d 566) (1987) (fee award upheld where litigants made inaccurate allegations that easily could have been verified, asserted meritless claims, and engaged in unnecessary and abusive discovery).

2. Our decision in Division 1 renders moot both Rolleston’s remaining enumerations and Munford’s cross-appeal in Case No. A91A0874. The cross-appeal, therefore, is dismissed.

Decided September 17, 1991.

Moretón Rolleston, Jr., pro se.

Long, Aldridge & Norman, John L. Watkins, W. Stell Huie, Jack H. Watson, Jr., for appellee.

Judgment reversed in Case No. A91A0873; appeal dismissed in Case No. A91A0874.

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


text:
    A91A1009.
    PATTERSON v. COX ENTERPRISES, INC.
    (411 SE2d 85)
   Beasley, Judge.

The issue is whether or not as a matter of law a workers’ compensation claimant may assert a claim for abusive litigation under OCGA § 51-7-81 against an employer (self-insurer) based on the employer’s allegedly meritless appeal to the superior court of the workers’ compensation award.

Patterson, who worked part-time for the Atlanta Journal and Constitution as a tractor-trailer driver, filed with the State Board of Workers’ Compensation a request for a change in condition. The ALJ determined that Patterson had sustained a change in condition and was entitled to additional income benefits. The full Board adopted the ALJ’s award, and the superior court affirmed the Board.

Patterson sought damages against the employer/self-insurer and its servicing agent, alleging that the appeal to the superior court was without merit and asserted no error of law, so that it constituted abusive litigation. He sought damages against them jointly and severally. The trial court granted defendants’ motion to dismiss.

By its own terms, OCGA § 51-7-81 does not apply to appeals from workers’ compensation proceedings. The statute provides that “[a]ny person who takes an active part in the initiation, continuation, or procurement of civil proceedings against another shall be liable for abusive litigation. . . .” [Emphasis supplied.]

“Civil proceeding” is expressly defined. It “includes any action, suit, proceeding, counterclaim, cross-claim, third-party claim, or other claim at law or in equity.” OCGA § 51-7-80 (1). ,

“ ‘Claim’ includes any allegation or contention of fact or law asserted in support of or in opposition to any civil proceeding, defense, motion, or appeal.” OCGA § 51-7-80 (2).

Proceedings under the Workers’ Compensation Act are administrative in nature because the State Board of Workers’ Compensation “is not a court . . . but is an administrative body with only those powers and duties given it by statute. [Cits.]” Bishop v. Weems, 118 Ga. App. 180 (2) (162 SE2d 879) (1968). See also Cotton States Ins. Co. v. Bates, 140 Ga. App. 428 (231 SE2d 445) (1976). It is the appeal to the superior court from the final decision of the administrative agency which brings the case into the judicial arena. OCGA § 34-9-105. The appeal is not a civil proceeding within the scope of the abusive litigation statute but rather a review upon the record made in the administrative agency, limited to the list of permissible inquiries legislatively provided for in OCGA § 34-9-105 (c).

The unavailability to workers’ compensation claimants of a statutory cause of action for abusive litigation is consistent with decisions under the common law that where the Workers’ Compensation Act applies, it provides the employee’s exclusive remedy against his employer for injuries within the terms of the Act. See OCGA § 34-9-11; Bright v. Nimmo, 253 Ga. 378, 379 (320 SE2d 365) (1984); Freeman v. Ryder Truck Lines, 244 Ga. 80, 82 (2) (259 SE2d 36) (1979). The Georgia Supreme Court “considered and declined to adopt decisions of some other jurisdictions finding that intentional delay of compensation payments gives rise to an independent cause of action. See 2A Larson, Workmen’s Compensation Law, § 68.34 (c); ‘Tort Liability of Worker’s Compensation Insurer for Wrongful Delay or Refusal to Make Payments Due,’ 8 ALR 4th 902 (1981).” Aetna Cas. &c. Co. v. Davis, 253 Ga. 376, 377 (2) (320 SE2d 368) (1984). This is not to say that a claimant has no remedy.

OCGA § 34-9-108 (b) (1) & (2) provide for attorney fee assessments against a party who, without reasonable grounds, has brought, prosecuted, or defended in whole or in part proceedings brought under the Act, or who, without reasonable grounds, has failed to comply with OCGA § 34-9-221. Subsection (2) also allows costs. Thus, the statute addresses and penalizes frivolous or groundless actions as does the abusive litigation statute. See OCGA §§ 51-7-80 (7); 51-7-81 (2). OCGA § 34-9-108 (b) (1) & (2) specifically targets conduct in the course of a workers’ compensation proceeding, which proceeding may include appeal to the superior court. Unlike OCGA § 51-7-81, it does not impose the additional burden of demonstrating that the complained of actions were done with ill will or for a wrongful purpose. See OCGA § 51-7-80 (5).

As a matter of law, OCGA § 51-7-81 does not authorize a claim for abusive litigation in the context of the Workers’ Compensation Act, OCGA § 34-9-1 et seq. The trial court correctly granted defendants’ motion to dismiss.

Judgment affirmed.

Carley, P. J., and Andrews, J., concur.

Decided September 17, 1991.

Finch, McCranie, Brown & Thrash, John S. D’Orazio, for appellant.

Swift, Currie, McGhee & Hiers, James T. McDonald, Jr., R. Briggs Beery, for appellee.


author: Andrews, Judge. Sogniee, Chief Judge,

text:
    A91A0731.
    HOLLIS v. THE STATE.
    (411 SE2d 48)
   Andrews, Judge.

Defendant, Gary Hollis, was indicted for the offenses of murder and possession of a firearm by a convicted felon. After being charged at the defendant’s request on voluntary manslaughter, the jury returned a verdict of guilty as to voluntary manslaughter and not guilty on the firearm charge.

The defendant admitted killing the boyfriend of his estranged wife by firing three shotgun blasts through the windshield of the parked car occupied by the victim. He testified that he thought the victim had a gun, though he saw no weapon, and that he acted in self-defense because the victim was waving and yelling at him and had previously threatened him with a gun at an earlier date. No weapon was found on or near the victim. Other testimony showed that a week after the defendant borrowed the shotgun from a neighbor to “kill a cat,” the defendant drove his vehicle rapidly up to the victim’s car, got out with the shotgun and immediately fired three shots into the car, and then sped away. After the shooting, the defendant returned the shotgun and told his neighbor he shot the cat three times.

1. In his first enumeration of error, defendant claims the trial court erred by recharging the jury when he was not present in the courtroom. Defendant has not pointed out any portion of the record which establishes that he was absent from the courtroom when the recharge was given and we have reviewed the record and find no basis for this asserted error. The record reflects that a recess was taken after the recharge, and that upon return from the recess, the prosecuting attorney inquired about the defendant’s absence. In response, the defense attorney waived the defendant’s presence for the purpose of making an exception to the portion of the recharge dealing with possession of a firearm by a convicted felon.

The defendant has the burden on appeal to affirmatively show asserted error by the record. State v. O’Quinn, 192 Ga. App. 359, 360 (384 SE2d 888) (1989). Having failed to demonstrate support in the record for this enumeration, we find no error. Lowery v. Horn, 147 Ga. App. 880 (251 SE2d 840) (1978).

2. In enumeration two, defendant claims the trial court erred by refusing to give his requested charge that the state has the burden of proving beyond a reasonable doubt that he did not act in self-defense. Where evidence of self-defense is presented, it is reversible error for the trial court to refuse to give a requested charge that the state has the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense. State v. Shepperd, 253 Ga. 321 (320 SE2d 154) (1984), aff’g 170 Ga. App. 286 (316 SE2d 785) (1984).

Defendant requested, and the trial court refused to give, the following charge: “I charge you that the burden of proof rests entirely upon the State even when a Defendant asserts an affirmative defense such as self-defense or justifiable homicide.” We find no reversible error in the refusal of the trial court to give the requested charge. The charge does not accurately state the principle that “the State has the burden of proving beyond a reasonable doubt that the defendant did not act in self-defense.” Shepperd, supra. In general terms, the requested charge simply states that the burden of proof remains with the state even when the defendant claims self-defense. “A request to charge should in itself be correct, and even perfect; otherwise the refusal to give it will not be cause for a new trial.” (Citation and punctuation omitted.) Daniels v. State, 184 Ga. App. 689, 690 (362 SE2d 775) (1987).

Before charging on self-defense, the trial court instructed the jury that the defendant enjoys a presumption of innocence until proven guilty, and that the state has the burden of proving guilt beyond a reasonable doubt. Given that the defendant failed to make a proper request on the principle of law he claims the court refused to charge, and the charge as a whole was otherwise sound, we find no error. See Boyd v. State, 253 Ga. 515, 517-518 (322 SE2d 256) (1984).

3. Next, defendant asserts the trial court erred by refusing his request to strike a law enforcement officer from the jury panel for cause. The trial court must grant a defendant’s request to strike a full-time police officer from the jury panel for cause. “It is inherent in the nature of police duties and the closeness with which such officers are identified with criminal procedures that questions regarding possible bias, fairness, prejudice or impermissible influence upon jury deliberations inevitably arise.” Hutcheson v. State, 246 Ga. 13, 14 (268 SE2d 643) (1980).

The only response in the record from the juror at issue was to the trial court’s question, “Do you have any arrest powers, sir?,” to which the juror replied, “No sir, not arrest powers, just for enforcement of animal ordinance only.” The juror was apparently an animal control officer with no arrest powers. The defendant has failed to demonstrate by the record that this juror would be a source of the type of inherent influence on the jury associated with full-time police officers as defined in Hutcheson, supra. Accord Kent v. State, 179 Ga. App. 131 (345 SE2d 669) (1986) (correctional officer not struck for cause — no evidence of participation in criminal investigation or prosecution); Anderson v. State, 169 Ga. App. 729, 730 (314 SE2d 735) (1984) (building code officer not struck for cause — not connected to felony prosecutions). There was no error in refusing to strike the juror for cause.

4. Defendant contends the trial court erred by allowing the prosecuting attorney to question him, over objection, on matters related to his right to remain silent. After the defendant testified he shot the victim in self-defense before fleeing the scene, the trial court allowed the prosecuting attorney on cross-examination to ask the defendant why he did not wait at the scene and tell the police he acted in self-defense. The defendant’s silence prior to receipt of the Miranda warnings may be used for purposes of impeachment by the prosecution. Osborne v. State, 193 Ga. App. 276 (387 SE2d 383) (1989). Since the question was directed to a pre-arrest time period before defendant’s receipt of Miranda warnings, there is no merit in the fourth enumeration of error.

5. In his fifth enumeration, defendant complains the trial court erroneously refused to give his requested jury charge related to self-defense and the reasonable belief that one is in imminent danger of death or great bodily injury which must exist before the justifiable use of deadly force in self-defense. The court covered this principle when it charged the jury on the law of self-defense in the language of OCGA § 16-3-21. It is not error to refuse to charge in the exact language requested when the legal principle at issue is substantially covered in the charge given. Stephens v. State, 196 Ga. App. 29, 30 (395 SE2d 353) (1990).

6. After the prosecution introduced evidence of the defendant’s prior felony convictions to prove the charge of possession of a firearm by a convicted felon, defendant contends the trial court erred by excluding defense evidence relating to his mental condition and criminal intent at the time of the prior convictions. The prior felony convictions were alleged in the possession count of the indictment and were admissible evidence. OCGA § 24-9-20 (b). The defendant’s state of mind at the time he was charged and convicted of the prior offenses was not relevant to any issue in the case. The trial court did not err in excluding this evidence.

7. In the seventh enumeration of error, defendant claims the evidence was insufficient to sustain the conviction. There was ample evidence for a rational trier of fact to conclude beyond a reasonable doubt that the defendant was guilty of voluntary manslaughter. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

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

Sogniee, Chief Judge,

concurring specially.

While I concur fully in the judgment in this case, I write specially in regard to Division 1. “In Georgia, a criminal defendant is constitutionally guaranteed the right to be present at all stages of his trial. [Cits.]” Lewis v. State, 164 Ga. App. 549 (1) (297 SE2d 303) (1982). This right cannot be waived by a defendant’s attorney unless the waiver is made in the defendant’s presence, or by his express authority, or is subsequently acquiesced in by him. Wilson v. State, 212 Ga. 73, 77-78 (90 SE2d 557) (1955). While the majority correctly states that the transcript does not support appellant’s assertion that he was absent from court during the recharge to the jury, the transcript does reflect that during the jury’s deliberations and while appellant was absent, appellant’s counsel “waived” appellant’s presence when making an objection to the trial court regarding the recharge. We have held that a criminal defendant is not entitled to be present during jury deliberations because it is not a stage of the trial covered by the above principle. E.g., Fowler v. Grimes, 198 Ga. 84, 90-91 (3) (31 SE2d 174) (1944); Holbrooks v. State, 48 Ga. App. 850-851 (3) (174 SE 168) (1934). Unlike the situation in Seay v. State, 111 Ga. App. 22, 25 (3) (140 SE2d 283) (1965), the transcript in the case sub judice discloses that the jury’s deliberations were not disturbed and no communication was had with the jury during appellant’s absence on account of the objection posed by appellant’s counsel. “ ‘[T]he presence of the defendant is a condition of due process to the extent that a fair and just hearing would be thwarted by his absence, and to that extent only.’ [Cit.]” Fowler, supra at 91 (3). Applying the precepts set forth in Stewart v. State, 165 Ga. App. 428, 429-430 (2) (300 SE2d 331) (1983), in which we found no reversible error due to the nature of the communication between trial court and jury in the absence of the defendant and her counsel, I do not find the communication here between trial court and appellant’s counsel was so material to appellant’s case as to require his presence or of a character to have been prejudicial to him so as to render his absence during the communication reversible error. See id. at 430.

Decided September 3, 1991

Reconsideration denied September 19, 1991

Alden W. Snead, J. M. Raffauf, for appellant.

J. David McDade, District Attorney, William, H. McClain, Assistant District Attorney, for appellee.

I am authorized to state that Presiding Judge McMurray joins in this special concurrence.

       The special concurrence correctly concludes that the exception to charge involving communication between counsel and the court on an issue of law, but not involving further proceedings or communication with the jury, which was deliberating at the time, is not a stage of trial requiring the presence of the accused. However, this was not an issue presented for appellate review, accordingly no decision is rendered thereon. The defendant enumerated as error and argued only the contention that he was not present during the court’s recharge to the jury. The defendant’s absence after the jury retired for deliberations was not arguably within the scope of the error asserted, nor was it raised in the defendant’s brief. See Williams v. State, 178 Ga. App. 581, 587 (344 SE2d 247) (1986) (appellate jurisdiction limited to legal points raised by enumerations of error); OCGA § 5-6-48 (f) (errors not specified considered only where it is apparent from the notice of appeal, the record, the enumeration of errors, or any combination thereof, that such error was sought to be reviewed).


author: Andrews, Judge.

text:
    A91A0749.
    BARNES v. WALL.
    (411 SE2d 270)
   Andrews, Judge.

After a jury verdict in favor of defendant Wall, M.D., in this medical malpractice action, plaintiff Barnes, Executor of the Estate of Nataline Lee, appeals. The plaintiff originally sued four defendants as joint tortfeasors: three physicians, including Wall, and the hospital where the medical care at issue was rendered. Prior to trial, the plaintiff settled with two of the physicians and the hospital, and executed a covenant not to sue which reserved the right to pursue this action against defendant Wall.

1. In the first enumeration of error, plaintiff contends the trial court erred by admitting, over objection, the testimony of an annuity expert to establish how the plaintiff might profitably invest the money she had already received from the settlement with the former co-defendants. “Expert testimony as to annuities which could be purchased with the settlement proceeds is irrelevant as it is antithetical to the requirement stated in Jones v. Hutchins, 101 Ga. App. 141, 149 (113 SE2d 475), that future pecuniary damages are to be reduced by the jury to the present value. Such evidence may also serve to circumvent OCGA § 51-12-13 which requires that future amounts be reduced to present value upon the basis of interest calculated at 5 percent per annum.” Gusky v. Candler General Hosp., 192 Ga. App. 521, 524 (385 SE2d 698) (1989). The trial court erred by admitting this testimony.

2. Secondly, plaintiff asserts the trial court erroneously charged the jury on the procedure by which the settlement amount with the former co-defendants would be deducted from any damages awarded on account of defendant Wall’s alleged negligence.

Where the plaintiff has settled with one or more of the claimed joint tortfeasors, and proceeds to trial against the remaining tortfeasor [s], any damages awarded at trial must be reduced by the amount of the settlement. “An injured person can have but one satisfaction for his injuries; and therefore the amount paid by the tortfeasor in whose favor the covenant not to sue was given will be regarded as a satisfaction pro tanto as to the joint tortfeasors.” (Citations and punctuation omitted.) Ford Motor Co. v. Lee, 237 Ga. 554, 556 (229 SE2d 379) (1976). This may be accomplished by withholding the settlement amount from the jury; informing the jury to disregard any evidence of settlement or dismissals from the action, and instructing the jury to return a verdict for the full amount of any damages to which the plaintiff may be entitled without consideration of any amount previously paid to the plaintiff in the settlement. In this event the trial court would reduce any damages awarded by the jury by the amount of the settlement. Or the trial court may inform the jury to consider the settlement amount disclosed to them in determining any damages to be awarded. See Ford Motor Co., supra at 555-556; King Cotton Ltd. v. Powers, 190 Ga. App. 845, 849 (380 SE2d 481) (1989).

Here, the jury was informed of the settlement amount, and charged as follows:

“Now, members of the jury, in this case, the first thing you should determine is whether or not the plaintiff, by a preponderance of the evidence, has proven that she is entitled to a verdict against Dr. Albert Wall.

“If, from the evidence presented, you determine that the plaintiff is not entitled to to a verdict against Dr. Wall, then that is the end of your inquiry, and you should stop there and find in favor of defendant Wall and against the plaintiff.

“On the other hand, if you determine that the plaintiff is entitled to a verdict against the defendant Albert Wall, then you would return a verdict against him in the full amount of damages incurred by the plaintiff . . . arising out of the subject matter of this legal action.

“In that regard, you have heard evidence that the plaintiff has settled with other defendants involved in this case, and you have heard the amounts. You may take into consideration those amounts in setting the full damages incurred by the plaintiff in this case, should you award damages. The court will set off or deduct the previous settlement amounts from any amount you award the plaintiff against Dr. Wall.

“In [sic] the amount you award exceeds the sum previously received by the plaintiff in settlement, then Dr. Wall will be required to pay the difference. If the amount you award is less than the sums previously received by the plaintiff in settlement, then Dr. Wall would not be required to pay the plaintiff any amount.” (Emphasis supplied.)

These charges first instruct the jury to take into consideration the disclosed settlement amount in determining damages, then confuse the issue by informing the jury that the court will deduct the settlement from any amount awarded. The charge is misleading and clearly erroneous. See King Cotton Ltd., supra at 848-849.

3. Because the errors in Divisions 1 and 2 both relate to the issue of damages, and the jury found the defendant was not liable, neither require reversal. Where an error in the admission of evidence or the giving of a charge relates only to the issue of damages, and the jury finds the defendant was not liable, the error is harmless because it does not affect the verdict. Southern Bell Tel. &c. Co. v. Don Hammond, Inc., 198 Ga. App. 517, 518 (402 SE2d 112) (1991); Whelchel v. Thomas Ford Tractor, 190 Ga. App. 156 (378 SE2d 510) (1989).

The trial court instructed the jurors that only if they determined the plaintiff was entitled to a verdict against defendant Wall should they proceed to determine the amount of damages. The court further charged:

“I’m going to send out a form of verdict with you.

“If, in your consideration of the evidence you find in favor of the plaintiff on her claim for general damages for pain and suffering and special damages for the medical expenses, the form of your verdict would be, we, the jury, find for the plaintiff . . . and against the defendant, Albert Wall, in the amount of blank dollars and I just left it blank. You just put one lump sum in there.

“Now, on the other hand, if you should find for the defendant in this case, the form of your verdict would be, we, the jury, find in favor of defendant, Albert Wall, and against the plaintiff. . . .You select one or the other of those. ...

“It should be signed and dated by your foreperson. I want you to make it very clear to us what you do, so I would suggest that when you have an alternate verdict, you strike out the one you do not find, as well as putting a checkmark or something by the one you do find.”

The form of the verdict rendered by the jury is reproduced below.

FORMS OF VERDICT

Select one of the following:

1. We, the jury, find for. the Plaintiff Nataline Lee and against Defendant Albert Wall in the amount of

$ —o—'

or

We, the jury, find in favor of Defendant Albert Wall and against Plaintiff Nataline Lee.

If your verdict is <1 above, then find one of the following:

1. We, the jury, award exemplary damages to Plaintiff Nataline Lee from Defendant Albert Wall in the amount of

$ — o

or

*^2. We, the jury, do not award exemplary damages to Plaintiff Nataline Lee from Defendant Albert Wall.

Plaintiff does not claim the verdict is unclear or susceptible of more than one construction. We conclude that the jury, following the court’s suggestion, found for the defendant by placing the checkmark before the initial paragraph 2, and added the zero dollar amounts and the second checkmark to emphasize its determination that the defendant was not liable. OCGA § 9-12-4; Jordan v. Ellis, 148 Ga. App. 286, 289 (250 SE2d 859) (1978) (verdict construed in light of pleadings, issues made by evidence, and the charge of the court). Even if the zero dollar entries may indicate the jury first reached this figure under the court’s damage charge by deducting or not deducting the settlement amount, we can discern no harm to the plaintiff given that no damages were awarded, and the verdict form clearly indicates the jury found the defendant not liable.

4. As Enumeration 3, plaintiff claims the trial court erred by giving the jury the hindsight charge approved in Haynes v. Hoffman, 164 Ga. App. 236, 238 (296 SE2d 216) (1982). The trial court instructed the jury: “I charge you that in a medical malpractice action against a physician, the physician cannot be found negligent on the basis of an assessment of a patient’s condition which only later or in hindsight proved to be incorrect, as long as the initial assessment was made in accordance with the then reasonable standards of medical care. The concept of negligence does not encompass hindsight. Negligence consists of not foreseeing and guarding against that which is probable and likely to happen, not against that which is only remotely and slightly possible.”

Decided September 3, 1991

Reconsideration denied September 19, 1991

Michael T. Bennett, Robert P. Phillips III, Williams & Henry, Benjamin S. Williams, for appellant.

Beckmann & Pinson, William H. Pinson, Jr., Walter W. Ballew III, for appellee.

In other words, in a proper case, this instruction informs the jury that in reaching a verdict as to whether the medical care at issue was within or below the appropriate standard of care, they should consider the knowledge and information which the health care provider had, or in the exercise of reasonable diligence should have had, at the time the care was rendered, and should not consider knowledge or information which was otherwise available only after the care was rendered. The charge becomes appropriate in a medical malpractice case where the evidence raises an issue as to whether the negligence claim is based on later acquired knowledge or information not known or reasonably available to the defendant physician at the time the medical care was rendered. McCoy v. Alvista Care Home, 194 Ga. App. 599, 600-601 (391 SE2d 419) (1990).

Since the record on appeal does not contain a transcript of the medical evidence presented to the jury, we are unable to determine whether the charge was appropriate. Welch v. Mercer, 165 Ga. App. 776, 777 (302 SE2d 629) (1983). “ ‘The burden is on the party alleging error to show it affirmatively by the record.’ ” (Citation omitted.) Gillespie v. Gillespie, 259 Ga. 838 (388 SE2d 688) (1990). Accordingly, there is no basis upon which to review this enumerated error. Welch, supra.

Judgment affirmed.

Sognier, C. J., concurs. McMurray, P. J., concurs in the judgment only.


text:
    A91A0841.
    CONSOLIDATED FREIGHTWAYS CORPORATION OF DELAWARE v. FUTRELL et al.
    (410 SE2d 751)
   Andrews, Judge.

Donnell Lathon and Nora Lathon, husband and wife, were killed in an automobile crash with a Consolidated Freightways truck. This wrongful death action was brought by the plaintiffs on behalf of the minor child of Donnell Lathon and the minor children of Nora Lathon. Consolidated appeals from the jury verdict and judgment in favor of the plaintiffs.

1. In enumeration one, Consolidated contends the trial court erroneously allowed the jury to consider evidence that Donnell Lathon received veteran’s disability benefits in reaching their determination on damages. In a wrongful death action damages may be awarded for the full value of the deceased’s life. OCGA §§ 51-4-2; 51-4-1. Generally, these damages may be categorized as: (1) those items having a proven monetary value, such as lost potential lifetime earnings, income, or services, reduced to present cash value (Elsberry v. Lewis, 140 Ga. App. 324, 327 (231 SE2d 789) (1976); Bulloch County Hosp. Auth. v. Fowler, 124 Ga. App. 242, 247 (183 SE2d 586) (1971); City of Macon v. Smith, 117 Ga. App. 363, 374-375 (160 SE2d 622) (1968)), or (2) lost intangible items whose value cannot be precisely quantified, such as a parent’s “society, advice, example and counsel. . .” as determined by the enlightened conscience of the jury. City of Macon, supra; Collins v. McPherson, 91 Ga. App. 347, 349 (85 SE2d 552) (1954). In assessing economic damages having proven monetary worth, the courts have uniformly held that the decedent’s income from a pension, retirement plan payments, social security benefits, and other receipts of like nature, [are] considered, along with other relevant factors, in substantially the same manner as actual earnings in the calculation of pecuniary loss for the purpose of determining the recovery.’ [Cit.]” Miller v. Tuten, 137 Ga. App. 188, 191 (223 SE2d 237) (1976).

Consolidated argues that the economic component of damages can only be derived from lifetime loss of earnings generated by the decedent’s services. Thus, evidence of pension, retirement benefits and social security is admissible as items derived from services rendered by the decedent, whereas evidence of disability benefits is excluded because it is compensation for a disability and unrelated to services rendered by the decedent. We disagree with this limited view of disability benefits, and find no error in the admission of the decedent’s veteran’s disability benefits in proving the economic component of the full value of his life. Regardless of whether compensation paid to a veteran for disability is characterized as arising from services rendered by the decedent, or as compensation for a disability, the benefits constitute readily provable income of the decedent which ceased because of his death. The trial court properly admitted this evidence.

2. Consolidated claims the jury verdict awarding damages of $1,000,000 as to Nora Lathon and $800,000 as to Donnell Lathon for the intangible component of the full value of their lives was excessive, and should be set aside on appeal. “The general rule on appeal of an award of damages is that the jury’s award cannot be successfully attacked so as to warrant a new trial unless it is so flagrantly excessive or inadequate, in the light of the evidence, as to create a clear implication of bias, prejudice or gross mistake on the part of the jurors. Even though the evidence is such as to authorize a greater or lesser award than that actually made, the appellate court will not disturb it unless it is so flagrant as to ‘shock the conscience.’ . . . Moreover, the trial court’s approval of the verdict creates a presumption of correctness that will not be disturbed absent compelling evidence.” (Citations omitted.) Cullen v. Timm, 184 Ga. App. 80, 82-83 (360 SE2d 745) (1987). “ ‘After a verdict, the evidence is construed in its light most favorable to the prevailing party, for every presumption and inference is in favor of the verdict.’ [Cit.]” McKinney & Co. v. Lawson, 257 Ga. 222, 224 (357 SE2d 786) (1987).

There was evidence upon which the jury could base an award for loss of intangible aspects of the decedents’ lives. Testimony was given concerning the character and family circumstances of the decedents, and there was evidence, though scant, of the decedents’ relationships with their respective children. In considering this evidence in light of their own experience and knowledge of human affairs, and governed by their enlightened conscience (City of Macon, supra at 375; Collins, supra at 349), we cannot say the jurors’ verdict shocks the conscience, nor is there any clear indication the jury was biased, prejudiced or grossly mistaken. The award was not, as a matter of law, excessive. Calloway v. Rossman, 150 Ga. App. 381, 386 (257 SE2d 913) (1979); Blue’s Truck Line v. Harwell, 59 Ga. App. 305, 310 (200 SE 500) (1938); Georgia Railway & Power Co. v. Shaw, 25 Ga. App. 146, 147 (102 SE 904) (1920).

3. In its third enumeration of error, Consolidated claims the trial court erred in admitting testimony regarding the decedents’ religious activities. Generally, evidence of a decedent’s church activities and religious beliefs are not relevant to prove pecuniary loss in a wrongful death action. Atlantic Coast Line R. Co. v. Daugherty, 116 Ga. App. 438, 444 (157 SE2d 880) (1967); OCGA § 24-2-2. However, such evidence may be relevant as an aspect of the intangible element of the full value of the life of a deceased. In proving the nature and extent of intangibles lost by a deceased as the result of a destroyed relationship, the decedent’s religious beliefs or church activities may be relevant, along with other circumstances of life, to the extent they help the jury determine the loss from the standpoint of the deceased. The plaintiffs presented evidence that the decedents’ religious activities were an important and stabilizing aspect of their lives. The defendant introduced testimony from a psychiatrist that Donnell Lathon had been diagnosed as suffering from chronic paranoid schizophrenia with religious preoccupation and delusions. It was up to the jury to consider the effect of this evidence upon the value of the non-economic elements of the deceaseds’ lives. We find no error in admission of this evidence under the facts of this case.

4. In its fourth enumeration of error, Consolidated contends there was no evidence to support the jury’s finding that it was liable for the deaths. For this court to reverse the jury verdict in favor of the plaintiffs would require the absence of any evidence of the defendant’s liability for damages. Denny v. D. J. D., Inc., 188 Ga. App. 431, 433 (373 SE2d 383) (1988). “[W]here a verdict has been returned by the jury and approved by the trial judge, the evidence is to be construed in the light most favorable to the prevailing party, and every presumption and inference is in favor of sustaining the verdict.” Perfect Image v. M & M Elec. Constructors, 191 Ga. App. 605, 607-608 (382 SE2d 405) (1989). Construed under this standard, there was evidence supporting the verdict that Donnell and Nora Lathon were killed as the proximate result of the negligent operation of Consolidated’s truck as it collided with the rear of the decedents’ vehicle.

5. Consolidated claims the trial court erred by refusing to instruct the jury that “the mere fact the [decedents’] vehicle was struck in the rear by [Consolidated’s vehicle] is insufficient to fix liability on the defendant.” The charge, as requested, is an incomplete and vague statement of the legal principle that the lead vehicle in a rear-end collision case holds no superior legal position over the following vehicle; that both drivers must exercise ordinary care, and the mere fact that one vehicle is struck in the rear is not, in and of itself, sufficient to fix liability on the driver of either vehicle. Atlanta Coca-Cola Bottling Co. v. Jones, 236 Ga. 448, 450 (224 SE2d 25) (1976); Blalock v. Staver, 132 Ga. App. 628, 629-630 (208 SE2d 634) (1974).

Though a charge on this principle would have been appropriate, we find nothing in the court’s charge as a whole which would have misled the jury to believe that the lead vehicle held a superior legal position. Plyler v. Smith, 193 Ga. App. 114, 116 (386 SE2d 881) (1989). “In rear-end collision cases the liability, degree of liability, or lack of liability on the part of any involved driver depends upon a factual resolution of the issues of diligence, negligence, and proximate cause.” Jones, supra at 451. The trial judge fully charged the jury on principles of negligence, proximate cause, and the plaintiffs’ burden of proof. Moreover, the court instructed the jury that the mere occurrence of the accident created no presumption that the defendant was negligent, or that the plaintiffs were entitled to recover damages. Considering the charge as a whole, there was no error in the failure to give the requested instruction.

6. In its sixth enumeration of error, Consolidated argues the trial court erroneously refused to charge the jury that any damages awarded to the plaintiffs will not be subject to income taxes, therefore the jury should not consider such taxes in determining the amount of any award. In Atlantic Coast Line R. Co. v. Brown, 93 Ga. App. 805, 807 (92 SE2d 874) (1956), we held in a case arising under the Federal Employers’ Liability Act, that it was not error for the trial court to refuse to charge the jury that any amount awarded as damages would not be subject to federal income tax. We further stated: “In arriving at its verdict it is of no concern to the jury what attorney’s fees, income tax, or other expenses might have to be paid out of the recovery. For the court to have charged the jury that any amount awarded the plaintiff would not be subject to Federal income tax would have been improper.” Id. at 807.

Since the Brown decision, the U. S. Supreme Court has ruled that questions concerning damages in FELA cases are governed by federal law, and that in such cases it is error to refuse to instruct the jury that an award of damages is not subject to federal income tax. Norfolk & Western R. Co. v. Liepelt, 444 U. S. 490 (100 SC 755, 62 LE2d 689) (1980); see Seaboard System Railroad v. Taylor, 176 Ga. App. 847, 850 (338 SE2d 23) (1985) (a FELA case applying the Liepelt rule). Liepelt was responding to a perceived danger that a jury might improperly inflate the award to compensate for an imaginary tax. Though Liepelt establishes the law in cases arising under the FELA, it is not binding in this case arising under Georgia’s wrongful death law. See Ageloff v. Delta Airlines, 860 F2d 379, 390 (11th Cir. 1988); Croce v. Bromley Corp., 623 F2d 1084, 1096-1097 (5th Cir. 1980).

It is not necessary to decide here whether giving such an instruction would have been proper.

Decided September 3, 1991

Reconsideration denied September 19, 1991

Neely & Player, Edgar A. Neely, Jr., Richard B. North, Jr., Kurt N. Peterson, for appellant.

Cuffie & Smith, Thomas F. Cuffie, Rufus Smith, Jr., for appellees.

We hold that the trial court did not err in refusing to give the requested instruction. The jury was otherwise properly instructed on damages, and there is no indication from the present record that the jury’s award may have been affected by a misapprehension as to tax consequences. Compare Stolz v. Shulman, 191 Ga. App. 864, 866-867 (383 SE2d 559) (1989) (not error to instruct jury on tax consequences concerning the award where tax evidence admitted in the case required the clarifying instructions).

Judgment affirmed.

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

       The issue appears to be unresolved in Georgia. Although dicta in Brown, supra, indicates the charge, if given, would have been improper, the holding was only that the refusal to give the charge was not error. In any event, Brown, generally cited as authority that the requested instruction should not be given, was a FELA case superseded on this issue by Liepelt, supra. Declining to follow Liepelt in cases arising under state law, the majority of states has held that the refusal to give the instruction is not reversible error, a minority has followed Liepelt, and a few have held the matter to be within the discretion of the trial court. Rego Co. v. McKown-Katy, 801 P2d 536 (Colo. 1990); see Gray Drugfair v. Heller, 478 S2d 1159 (Fla. App. 3 Dist. 1985) (declining to follow Liepelt, and holding that refusal to so instruct was in the discretion of the court). See generally Propriety Of Taking Income Tax Into Consideration In Fixing Damages In Personal Injury Or Death Action, 16 ALR 4th, p. 589.