text:
    76976.
    STATE OF GEORGIA et al. v. STUCKEY HEALTH CARE, INC.
    (375 SE2d 235)
   Sognier, Judge.

Stuckey Health Care, Inc., the owner and operator of nursing home facilities in Georgia, brought suit against the State of Georgia and the Department of Medical Assistance (DMA), an agency thereof, to recover Medicaid reimbursement for certain patients pursuant to its provider agreement. The trial court granted Stuckey’s motion for summary judgment and denied that of the State and DMA. This appeal ensued.

The record reveals that in August 1982, 33 patients at South Carolina State Hospital relocated to Georgia and were placed in appellee’s nursing homes. At that time, appellants and the State of South Carolina were parties to a reciprocal interstate agreement governing Medicaid coverage for out-of-state long-term care placements, pursuant to which appellants agreed to provide coverage for those long-term care patients in Georgia who were residents of South Carolina and were otherwise Medicaid eligible. This agreement was terminated on March 1, 1983, and thereafter appellants refused to reimburse appellee under the provider agreement between appellants and appellee for the care of these patients, alleging that they were not obligated to do so because the patients were not Georgia residents and thus did not meet appellants’ eligibility requirements. Prior to the termination date of the interstate agreement, representatives of South Carolina met with all the patients in question at appellee’s facilities, and advised them that South Carolina would arrange to transfer them back to South Carolina facilities if they wished, or they could choose to remain in Georgia. Eighteen of the original group of thirty-three patients opted to remain in Georgia and signed statements to that effect.

1. Appellants contend the trial court erred by granting summary judgment to appellee and denying their own motion for summary judgment because under the contract between appellants and appellee (the “Statement of Participation”), reimbursement for services to patients in appellee’s facilities was contingent upon the patients’ eligibility, and these patients were not eligible.

Appellants first argue that under both federal and state law, “eligible” means “certified,” and since it was uncontroverted the patients in question were not “certified,” it follows that they were not “eligible” within the meaning of the Statement of Participation. We do not agree that the terms are synonymous. Certification is not, as appellants argue, a definition of eligibility. Rather, eligibility is first determined by reference to a set of criteria, and then, if determined eligible, the individuals are certified. Appellants’ own “Policies and Procedures for Nursing Home Services (Part I, Policies and Procedures Applicable to All Medicaid Providers),” in Section 102.2, “Medical Assistance Eligibility Certifications,” provides that “[e]ach month Medical Assistance Eligibility Certifications . . . are issued to individuals or families as evidence of eligibility” (Emphasis supplied.) Appellants’ reliance on definitions in OCGA § 49-4-141 (5) and (7) is misplaced here, as those portions of the Georgia public assistance statutory scheme define a “recipient of medical assistance” rather than one who is “eligible.” Thus, appellants’ argument that because these particular patients were not “certified,” they were not “eligible,” has no merit.

Appellants also argue that federal regulations bar patients whose original placement was accomplished by an agency of another state from becoming Georgia residents for the purpose of Medicaid eligibility. We agree with appellants that the regulation in question, 42 CFR § 435.403, does set forth the general rule that “[a]ny agency of the State, including an entity recognized under State law as being under contract with the State for such purposes, that arranges for an individual to be placed in an institution located in another State, is recognized as acting on behalf of the State in making a placement. The State arranging or actually making the placement is considered as the individual’s State of residence.” 42 CFR § 435.403 (e) (1). However, it is not clear from the record here that the original placement was accomplished by a South Carolina state agency. In fact, in their brief appellants themselves argue that appellee sought out these patients and was actively involved in the decision to place them in its facilities in Georgia.

Further, even assuming the original placement was by a South Carolina state agency, the patients who remained in Georgia did not do so as a result of a South Carolina state agency placement. This is borne out by the fact that ten of the original patients returned to South Carolina, and it was only those patients who voluntarily expressed a desire to be in Georgia who remained in Georgia nursing homes. The record indicates that these patients expressed in writing their will and intent to be Georgia residents. 42 CFR § 435.403 sets forth detailed guidelines for determining who is a state resident for Medicaid purposes, and provides that for any institutionalized person over 21 years of age capable of indicating intent, “the State of residence is the State where the individual is living with the intention to remain there permanently or for an indefinite period.” 42 CFR § 435.403 (i) (4). A person is deemed incapable of indicating intent only if the individual has an I.Q. of 49 or less or a mental age of 7 or less, has been judged legally incompetent, or is found incapable of indicating intent based on medical documentation from a licensed medical professional. 42 CFR § 435.403 (c). (Although the regulation provides that for an institutionalized individual who became incapable of indicating intent at or after age 21, the State of residence is the State in which he or she is physically present, except where another State makes a placement, no such exception is made for those individuals who are capable of indicating intent.) While it is true that the record reflects the patients in question here had mental difficulties, nothing in the record suggests, and appellants do not argue, that they were incapable of indicating intent. We conclude, therefore, that these patients expressed their intent to become Georgia residents and that by doing so, they became Georgia residents. This conclusion also comports with principles of Georgia law concerning domicile and residence. See generally Sorrells v. Sorrells, 247 Ga. 9, 12 (3) (274 SE2d 314) (1981). Since it is uncontroverted that these patients were otherwise eligible for Medicaid in Georgia, there remained no genuine issue of material fact for a jury to determine, and the trial court did not err by granting appellee’s motion for summary judgment and denying that of appellants. See Gray v. Gober, 185 Ga. App. 624, 628 (3) (365 SE2d 279) (1988).

2. Although appellants enumerate as error the grant of relief to appellee based on the doctrine of sovereign immunity, such immunity was waived “as to any action ex contractu for the breach of any written contract now existing or hereafter entered into by [appellants].” Ga. Const. 1983, Art. I, Sec. II, Par. IX (a). See also OCGA § 50-21-1 (a). Having determined in Division 1, supra, that recovery was proper under the contract between appellants and appellee, it follows that a defense based on sovereign immunity is not available to appellants.

Decided September 28, 1988 —

Rehearing denied October 14, 1988

Michael J. Bowers, Attorney General, H. Perry Michael, First Assistant Attorney General, William C. Joy, Senior Assistant Attorney General, Kathryn L. Allen, Assistant Attorney General, for appellants.

3. We find no merit in appellants’ contention that appellee lacks standing to challenge appellants’ determination of the recipients’ eligibility. The Statement of Participation which forms the contract between appellants and appellee provides that appellants will reimburse appellee only for eligible recipients. A decision by appellants that certain recipients are ineligible results in a decision not to reimburse appellee under the contract. If appellee is deprived of a benefit to which it deems itself entitled under the terms of the contract, it has standing to address such a breach, regardless of the fact that the designation “eligible” applies to third parties. Appellee’s action is, in actuality, no more than a suit for breach of contract against the State, which is specifically permitted by OCGA § 50-21-1.

4. Appellants finally contend the trial court erred by granting summary judgment to appellee and by denying their own motion for summary judgment because appellee failed to exhaust its administrative remedies. We note in this connection the conflict between this enumeration and both appellants’ own argument, addressed in Division 3, supra, that appellee has no standing to raise the issues with which this action is concerned and the deposition testimony of Beth McGown, Director of the Division of Program Integrity for appellant Department of Medical Assistance, that no method exists for nursing home directors to challenge eligibility decisions administratively. However, we need not address this enumeration, as it was not raised below. It is well established law that “ ‘ “[enumerations of error which raise questions for the first time on appeal present nothing for decision. (Cits.)” [Cit.]’ [Cit.]” Wilson v. City of Atlanta, 184 Ga. App. 651 (362 SE2d 460) (1987).

Judgment affirmed.

Deen, P. J., and Corley, J., concur.

Stanley G. Jackson, for appellee.


source: Caselaw Access Project

author: Pope, Judge.

license: Public Domain

text:
    76847.
    B. K. C., INC. v. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY et al.
    (375 SE2d 127)
    Decided November 2, 1988.

      John G. Haubenreich, for appellant.

      Murray, Temple & Dinges, William D. Strickland, for appellees.
   Pope, Judge.

Appellant B. K. C., Inc. (B. K. C.) brought an action for declaratory judgment against its insurer, appellee Nationwide Mutual Fire Insurance Company (Nationwide), and John H. Smallwood, the Nationwide agent who sold B. K. C. the policy, seeking a determination of Nationwide’s obligations under the policy and a determination of Smallwood’s liability for failure to obtain the coverage allegedly requested by B. K. C. The parties stipulated the facts and the trial court determined that, pursuant to an exclusion contained in Paragraph (h) of the policy, Nationwide had no obligation either to defend or indemnify B. K. C. in a personal injury lawsuit brought against it by one of its customers.

As this court recently reiterated in the case of Argonaut Ins. Co. v. Atlantic Wood Indus., 187 Ga. App. 471 (1) (370 SE2d 765) (1988), it has long been the rule in this state that an alleged insured, as opposed to an alleged insurer, has no right to pursue a declaratory judgment action to determine the obligations of the alleged insurer with respect to settling, defending or indemnifying a judgment in a pending tort action against the alleged insured. Hoffman v. Insurance Co. of North America, 130 Ga. App. 777 (204 SE2d 520) (1974); United States Cas. Co. v. Ga. &c. R. Co., 95 Ga. App. 100, 103-104 (97 SE2d 185) (1957). Consequently, we are constrained by the case law of this state to reverse the trial court’s order on the insured’s complaint for declaratory judgment. See Darden v. Ravan, 232 Ga. 756 (208 SE2d 846) (1974) (holding that an appeal from a void or illegal judgment will not be dismissed but instead the void judgment will be reversed).

Judgment reversed.

McMurray, P. J., and Benham, J., concur.


text:
    76991.
    LONG v. THE STATE.
    (375 SE2d 274)
   Pope, Judge.

Ernest F. Long, Jr., was found guilty of statutory rape of his nine-year-old step-granddaughter, and appeals from the denial of his motion for new trial.

1. Appellant contends that the evidence was insufficient to support his conviction, and that the trial court erred in denying his motion for directed verdict, because the child’s testimony was not corroborated as required by OCGA § 16-6-3. We do not agree. “Prior consistent statements of a witness who takes the stand and is subject to cross-examination are admissible as substantive evidence. See Richardson v. State, 256 Ga. 746 (353 SE2d 342) (1987); Cuzzort v. State, 254 Ga. 745 (334 SE2d 661) (1985).” Newberry v. State, 184 Ga. App. 356, 357 (1) (361 SE2d 499) (1987).

The victim testified both directly and under cross-examination that on at least ten occasions her fourteen-year-old stepbrother had performed sexual acts upon her, and that one of these occurred while her family was visiting at appellant’s house on the Saturday before the holiday honoring Martin Luther King, Jr. Appellant discovered her and her stepbrother locked in the bathroom together. When she came out, appellant had her pull down her pants, and then he pulled down his pants and “put his private inside mine,” while she stood in front of him. Appellant then told the victim not to tell anyone or he would tell on her and her stepbrother. Shortly thereafter, appellant told the victim’s stepfather, his son, that he suspected there was some sexual activity going on between the victim and her stepbrother, and to keep an eye on the boy. When the victim’s mother questioned her, the child readily told her about what her stepbrother had done; she was taken to the emergency room for examination where it was discovered that she had a gonorrheal infection in her throat, for which she was treated. The stepbrother, who was also tested but found negative for gonorrhea, was taken into custody by juvenile court authorities.

The child’s mother testified that she was convinced that something else was bothering the child, but when she asked her she said “she didn’t think she should tell. . . .” In a subsequent conversation the victim did tell her mother about appellant’s actions and her parents informed appellant’s wife, who asked them not to go to the police at that time because appellant’s mother was dying. Before the parents notified authorities, the victim was interviewed by a Department of Family and Children Services protective custody investigator, to whom she also revealed the sexual assault by appellant. This was reported by the investigator to the police. Appellant was tested and found negative for gonorrhea, but was apparently being treated with antibiotics for another ailment.

Decided November 2, 1988.

Wallace & Moss, Howard P. Wallace, for appellant.

Johnnie L. Caldwell, Jr., District Attorney, J. David Fowler, Anne Cobb, Assistant District Attorneys, for appellee.

“The statutory rape statute provides no conviction shall be had for this offense on the unsupported testimony of the child (OCGA § 16-6-3 (a)), but it is well settled that it is not necessary that the child be corroborated as to every essential element of the crime, or that it establish the defendant’s guilt, but only that the corroborating evidence tend to establish his guilt and be of ‘ “such a character and quality as tends to prove the guilt of the accused by connecting him with the crime.” ’ [Cit.] Moreover, the quantum of corroboration needed is not that which is in itself sufficient to convict the accused, ‘ “but only that amount of independent evidence which tends to prove that the incident occurred as alleged. . . . Slight circumstances may be sufficient corroboration, and ultimately the question of corroboration is one for the jury.” (Cit.)’ [Cit.]” Timmons v. State, 182 Ga. App. 556, 557 (356 SE2d 523) (1987). Accord McClendon v. State, 187 Ga. App. 666 (371 SE2d 139) (1988).

We consider the victim’s prior consistent statements, as recounted by the victim’s mother and the DFAC’s worker, to be sufficient substantive evidence of corroboration from which any rational trier of fact could conclude beyond a reasonable doubt that appellant was guilty of statutory rape. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Therefore a directed verdict of acquittal was not demanded. Runion v. State, 180 Ga. App. 440 (1) (349 SE2d 288) (1986).

2. During deliberations the jury requested to have access to a legal dictionary or be given the legal definition of the two terms “statutory rape” and “child molestation.” The trial court recharged the statutory law, as previously given, and defense counsel objected on the ground that this exceeded the request and overemphasized the more serious of the two offenses. The recharge was a correct statement of the applicable law. “It is well settled that the extent and character of any supplemental instructions to the jury are matters within the sound discretion of the trial court. Absent an abuse of that discretion, such decisions will not be disturbed on appeal. [Cit.] We find no abuse of discretion here.” Davis v. State, 184 Ga. App. 415, 416 (3) (361 SE2d 547) (1987).

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.


text:
    77018.
    WALDON v. THE STATE.
    (375 SE2d 128)
   Pope, Judge.

Curtis A. Waldon appeals his conviction of armed robbery and the denial of his motion for new trial. Held:

1. Appellant urges the general grounds. The evidence showed that on September 4, 1987, Leonard Haas was robbed of $2 at gunpoint as he returned to work from lunch. Haas immediately notified the police and informed them that he had been robbed by a man wearing a blue zippered jogging jacket and black slacks. This description was broadcast, and some fifteen minutes later appellant was apprehended and returned to the scene. He was carrying the described jacket under his arm and wearing a baseball cap. A .32 caliber revolver was recovered from the crime scene, which Haas identified as the weapon used by the robber. After appellant removed his cap Haas identified him as the perpetrator. Two one dollar bills and two .32 caliber bullets were found on appellant’s person. While appellant was being interviewed at the police station, a detective commented that appellant was lucky he had not been hurt by the pistol, which he described as “falling apart in [his] hands.” Appellant responded that he “meant to get a better, one.” The evidence was sufficient to authorize a rational trier of fact to find appellant guilty of the crime charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); accord Powell v. State, 185 Ga. App. 464 (1) (364 SE2d 599) (1988).

2. Appellant complains that the trial court violated his constitutional right against self-incrimination by impermissibly informing the jury that although he did not testify, he was available to do so. We do not agree. This question was posed by an interrogatory sent to the trial court by the jury during deliberations. The court conferred with both counsel and, agreeing that there must not be an impermissible comment on appellant’s silence, they jointly decided that the appropriate answer was a simple “yes.” Even if it might have been preferable for the trial judge to advise the jurors that the answer to their question was not in evidence (as it did in regard to two other questions), having acquiesced in the response as given appellant cannot now object to it on appeal. See Williams v. State, 183 Ga. App. 373 (1) (358 SE2d 914) (1987); Riley v. State, 180 Ga. App. 409 (1) (349 SE2d 274) (1986).

3. Appellant’s final enumeration of error, that the handgun was improperly allowed in evidence because the State did not prove the chain of custody by placing it at the location where he was arrested, is without merit. The pistol was found at the scene by a witness who turned it over to police immediately after appellant was apprehended, and it was identified by this witness at trial as the one he found. Appellant also tacitly identified the weapon as his by admitting he meant to get a better one. The rule is that “items of evidence which are distinct and recognizable physical objects, such that they can be identified by the sense of observation, . . . are admissible in evidence without the necessity for showing a chain of custody. [Cits.]” Harper v. State, 251 Ga. 183, 185 (1) (304 SE2d 693) (1983). Accord Hanvey v. State, 186 Ga. App. 690 (6) (368 SE2d 357) (1988). We find no grounds for reversal.

Decided November 2, 1988.

Chandelle Turner, for appellant.

Lewis R. Slaton, District Attorney, R. Andrew Weathers, Joseph J. Drolet, John G. Isom, Assistant District Attorneys, for appellee.

Judgment affirmed.

McMurray, P. J., and Benham, J., concur.


author: McMurray, Presiding Judge.

text:
    76413.
    WEATHERS et al. v. FOOTE & DAVIES TRANSPORT COMPANY et al.
    (375 SE2d 97)
   McMurray, Presiding Judge.

This is a wrongful death case. Plaintiffs are the surviving children and executor of Arah Weathers who died from injuries received when she was struck by a tractor-trailer. The vehicle was operated by defendant Norton, an employee of defendant Foote & Davies Transport Company, which was insured by defendant Liberty Mutual Insurance Company. Plaintiffs alleged that defendant Norton’s negligence in the operation of the tractor-trailer was the proximate cause of the death of Arah Weathers. Plaintiffs appeal following a jury verdict in favor of defendants. Held:

1. Plaintiffs enumerate as error the denial of their motion for new trial on the general grounds. The uncontroverted evidence shows that defendant Norton stopped his tractor-trailer at the T-shaped intersection of a private driveway and a public street, awaiting an opening in traffic which would permit him to make a right turn. The decedent and two companions were pedestrians who approached the intersection from the right of defendant Norton along a sidewalk. As defendant Norton waited at the intersection he was westbound, about to turn north. The pedestrians were traveling southward on the east side of the public street.

Defendant Norton looked to the right as he approached the intersection, and saw nothing. For the approximately three minutes that he waited at the intersection defendant Norton looked to the left and didn’t look again to the right until he did so as he started forward out of the driveway. Contemporaneously decedent, preceded by her companions, was attempting to pass in front of defendant Norton’s tractor. Defendant Norton did not see decedent or her companions prior to the time his tractor struck decedent apparently due to a blind spot immediately in front of and to the right side of the tractor cab.

Plaintiff relied upon further evidence that defendant Norton had stopped at a point such that decedent and her companions had ample room to cross in front of the tractor-trailer from sidewalk to sidewalk, through the unmarked crosswalk. One of decedent’s companions testified that defendant Norton had waved his hand to them indicating for them to go on across. Plaintiffs contend that the evidence shows that their decedent was struck as she proceeded through the unmarked crosswalk.

Defendant Norton testified that due to the nature of the intersection it was necessary to pull up close to the street in order to see approaching traffic. The tractor-trailer was therefore pulled all the way up to and partially into the street blocking the unmarked crosswalk. One of decedent’s companions testified that they passed so close by the front of the tractor that she could have touched the grille. Defendants also argue that evidence of conversations between decedent and her companions suggesting a need for haste in crossing in front of the tractor, showed a recognition of the hazard posed by the motor vehicle. Defendants contend that decedent and her companions while attempting to cross in front of the tractor-trailer were not in the unmarked crosswalk but were out in the street and passed so closely to the tractor as to be in the readily apparent blind spot immediately in front of the tractor.

“This court will not disturb a judgment when there is any evidence to sustain it, in the absence of a material error of law. Menendez v. Ellis, 149 Ga. App. 684 (255 SE2d 70). If the verdict is wholly without supporting evidence, it will be set aside, but where the evidence is in conflict and a properly instructed jury resolves the conflicts against the plaintiff, and that decision is approved by the trial judge and is supported by the evidence of record, this court, in the absence of material errors of law, will affirm. Scott v. Scott, 243 Ga. 472, 473 (254 SE2d 852). The trial court did not err in denying plaintiff’s motion for new trial.” Hester v. Baker, 180 Ga. App. 627, 631 (6) (349 SE2d 834). See also Spivey v. Vaughn, 182 Ga. App. 91, 92, 93 (354 SE2d 870).

2. Plaintiffs’ remaining enumerations of error address the trial court’s charge to the jury. The trial court’s charges on the avoidance rule, on the assumption of risk, on comparative negligence and on the provisions of OCGA § 40-6-92 (a) were properly adjusted to and authorized by the evidence.

It was not error to give in charge the language of OCGA § 40-6-91 (b) even though the vehicle was not 'moving when the pedestrians attempted to cross. The circumstances of the case sub judice present an appropriate application of this rule to a situation involving a stationary vehicle.

Decided October 17, 1988 —

Rehearing denied November 3, 1988

Robert P. Wilson, W. John Wilson, for appellants.

G. Michael Banick, Lowell S. Fine, for appellees.

In Enumeration of Error No. 6 plaintiffs contend the trial court erred in refusing to charge the jury as requested concerning a pedestrian’s right to assume a driver’s compliance with the law. However, the principles embodied in the request were covered substantially in the trial court’s charge, so the failure to charge the exact language requested is not ground for reversal. Davis v. Glaze, 182 Ga. App. 18, 23 (12) (354 SE2d 845); Wood v. Jones, 175 Ga. App. 534, 537 (5) (334 SE2d 9).

“ ‘ “The well-established rule is that where the court incorrectly instructs the jury as to the measure of damages to be applied, if the jury exonerates the defendant so that the consideration of the measure of damages is eliminated from the case, the instructions given, even if erroneous, cannot be held to prejudice the plaintiff’s cause.” (Cit.)’ Jackson v. Miles, 126 Ga. App. 320 (3) (190 SE2d 565) (1972).” Minter v. Leary, 181 Ga. App. 801 (1) (354 SE2d 185). Since the jury returned a verdict in favor of defendants, any error in charging the jury regarding nominal damages was harmless error.

Judgment affirmed.

Pope and Benham, JJ., concur.


author: Birdsong, Chief Judge.

text:
    76919.
    BARR v. JOHNSON.
    (375 SE2d 51)
   Birdsong, Chief Judge.

The appellant Sarah Laverne Barr filed a legal malpractice action against attorney Johnson in two counts, tort and breach of contract. He, in answering, filed his own expert affidavit of competence, and also filed a motion to dismiss and motion for summary judgment, which the trial court granted before the plaintiff had been able fully to pursue her discovery rights.

She appeals on several grounds: that the grant of summary judgment wrongly usurped her discovery rights; that the trial court abused its discretion in denying her the right to file a counter motion pursuant to CPA Rule 56 (f); that the trial court erred in ruling the appellee’s affidavit asserting due care supported summary judgment; that the appellee’s negligence was “clear and palpable” so as to relieve the plaintiff Barr of the necessity to file a counter expert affidavit; and in general, that the grant of summary judgment was error. Held:

The plaintiff’s complaint alleges malpractice and lack of due care; and also alleges some specific instances of neglect and failure to exercise the professional standard of care and practice.

The judgment of the court below is correct. Effective July 1, 1987 (this malpractice action was filed in October 1987), the legislature enacted Ga. L. 1987, p. 887, § 3 (OCGA § 9-11-9.1), which provides: “In any action [with an exception inapplicable here] for damages alleging professional malpractice, the plaintiff shall be required to file with the complaint an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.” (Emphasis supplied.) This statute applies to any action for professional malpractice by negligent act or omission, sounding in tort or by breach of contract for failure to perform professional services in accordance with the professional obligation of care.

This statute, enacted as part of the Civil Practice Act, provides the plaintiff “shall be required to file with the complaint” the specific expert affidavit. The plaintiff did not do so in this case. This mandatory direction necessarily preempts and supercedes the judicially-created rule relied upon here by the appellant, that no plaintiff’s expert affidavit might be required in cases of malfeasance so “clear and palpable” as to be reasonably ascertained by the jury without expert evidence, see, e.g., Hughes v. Malone, 146 Ga. App. 341 (247 SE2d 107).

In Acts 1968, pp. 1104, 1109, the legislature provided, as to the Civil Practice Act then put in effect, “[t]his Title . . . shall govern all proceedings in actions brought after [September 1, 1967]. . . .” (Emphasis supplied.) See former Ga. Code § 81A-186 (CPA Rule 86). The Michie Official Code of Georgia, § 9-11-1 states unequivocally: “This chapter [11] governs the procedure in all courts of record of this state in all actions of a civil nature [except special statutory proceedings].”

The CPA sets forth what constitutes the commencement of an action in § 9-11-3; but in cases of professional malpractice, § 9-11-9.1 newly requires that to commence such an action, a certain expert affidavit shall be filed with the complaint. If the legislature sets forth a specific statutory means by which the plaintiff judicially enforces her cause of action, she must follow that law, or her action is subject to dismissal. OCGA § 9-11-41 (b). The former judicial rule, re Hughes v. Malone, supra, which held that an expert’s affidavit was unnecessary in a case of negligence that is clear and palpable, had its faults, as it might take almost any case to a jury. With that problem evidently in mind, the statute requires the plaintiff to file with the complaint an expert affidavit setting forth at least one specific act of negligence or omission which constitutes the claim of alleged negligence or breach of contract amounting to “malpractice,” and the factual basis for each such claim. The legislature in its preamble to the Act (Ga. L. 1987, p. 887) stated the Act was intended to require plaintiffs to “set forth the particulars of the claim.”

Decided September 14, 1988 —

Rehearing denied November 3, 1988

Gary P. Bunch, for appellant.

Freeman & Hawkins, H. Lane Young II, T. Ryan Mock, Jr., for appellee.

We are without authority to say § 9-11-9.1 does not apply, and the plaintiff shall not be required to file such an expert affidavit, if negligence is shown to be clear and palpable. If we were to say so, we would be repealing the act by violating its terms. We see no exception to it in this case, and no way to sustain the plaintiff’s action for professional malpractice without her having complied with the mandatory provisions of § 9-11-9.1.

The trial court was correct in finding, after a hearing and review of the record, that the plaintiff had not complied with the mandatory statutory requirement for the bringing of an action for professional malpractice; and, having not filed with the complaint an expert affidavit setting forth at least one specific incident of alleged negligence her action was subject to dismissal, and it may be said that she raised no issue of fact as to any malfeasance of the defendant, by which to overcome the defendant’s expert affidavit asserting his lack of negligence. Thus the trial court’s grant of summary judgment was not incorrect. We find it unnecessary to examine any other enumerations of error.

Judgment affirmed.

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


author: Benham, Judge.

text:
    76815.
    HOLLAND v. KICKLIGHTER et al.
    (375 SE2d 129)
   Benham, Judge.

Appellant served as attorney in fact for her sister during the last few years before her sister’s death. When appellant’s sister died, appellees, the joint executors of her estate, sued appellant to recover certain funds and property, including a certificate of deposit worth $12,500, based on appellant’s alleged misappropriation of the assets during the time she held the power of attorney. A jury found in favor of the appellees on the issue of the certificate and certain other items of personalty, and decedent’s sister appeals the judgment. We affirm.

1. In her first three enumerations of error, appellant challenges the sufficiency of the evidence, the denial of her motion for directed verdict, and the grant of appellees’ motion for directed verdict on the issue of wrongful withholding of the certificate of deposit. The evidence adduced at trial showed that in July 1982, decedent executed a general power of attorney in favor of appellant, her sister, so that her sister could take care of her affairs for her. She created a joint checking account with appellant on that same day. At that time decedent also owned four certificates of deposit which totaled $32,500 and were registered in her name alone. From July 1982 until decedent’s death on March 23, 1986, appellant acted as her attorney in fact. Between May 1982 and August 1985, decedent renewed the certificates as joint certificates of deposit with right of survivorship in appellant, and deposited some of the funds in the joint checking account. When appellant’s sister died, only one certificate of deposit remained, worth $12,500, the balance of the funds having been spent by appellant. It was also shown that in addition to her other assets, decedent had had a monthly income that was more than sufficient to cover her monthly expenses, and that a number of the expenditures appellant made using the joint account and certificate funds were for appellant’s own expenses. There was also testimony from decedent’s niece that decedent had to live with a caretaker from the fall of 1982 until her death; that her health had continually deteriorated from 1982 until her death, and during that period she had bouts of confusion and disorientation; that she required constant attention because she made attempts to set fires; that she would take wet clothes off the clothesline and pack them away, not realizing that they needed to be dried first; that she held conversations with deceased persons; that she had no concept of time; that she was incontinent; that she was receiving care from a mental health treatment center to help improve her condition; and that for the last two and one half years before her death, she had to be strapped down in her bed at night or she would get up and wander around the house and injure herself.

Appellant took the position that decedent made the certificates of deposit as joint property with right of survivorship as a gift to appellant, and that she was within her right to keep the funds that remained in the account at decedent’s death. Appellees, as executors of the estate, considered any gifts made during the last five years of decedent’s life to be voidable, due to decedent’s incompetency and the exertion of undue influence by appellant over her sister. The jury found that the $12,500 certificate of deposit belonged to the estate, and the trial court entered judgment to that effect. The evidence was sufficient to support the finding and judgment, and the trial court did not err in denying appellant’s motion for directed verdict and motion for new trial on that issue. Appellant’s reliance on Collins v. Collins, 176 Ga. App. 79 (335 SE2d 307) (1985), is misplaced, because in that case the validity of the joint account was not in question.

Decided November 3, 1988.

Gary A. Bacon, for appellant.

Ronald W. Hallman, for appellees.

2. Appellant also argues that several of the jury charges given by the trial court were confusing, contained incorrect statements of law, and were not supported by the evidence. Her basic premise is that the charges ran contrary to her theory of the case, which was that the creation of the joint ownership of the certificate with right of survivorship was valid and constituted a gift to her. The jury charges in question related to appellees’ theory of the case, which was that the joint ownership of the certificate was voidable because of the circumstances surrounding its creation, and that if the jury accepted appellees’ theory, the appellees as executors had the legal right to pursue the funds in question. There being evidence to support appellees’ theory, the trial court was authorized to give the jury charges in question. Duncan v. Deits, 185 Ga. App. 136 (363 SE2d 601) (1987).

3. Appellant’s brief contains a ninth enumeration of error that was not previously listed in the enumerations of error filed with this court. “A brief cannot supply an enumeration of error. ‘Enumerations of error cannot be enlarged by means of statements in brief of counsel to include issues not made in the former.’ [Cits.]” Leniston v. Bonfiglio, 138 Ga. App. 151 (2) (226 SE2d 1) (1976). Therefore, we do not address the issue so raised.

Judgment affirmed.

McMurray, P. J., and Pope, J., concur.


text:
    77150.
    In the Interest of J. M. K. et al.
    (375 SE2d 131)
   McMurray, Presiding Judge.

On February 24, 1988, the Juvenile Court of Henry County entered an order terminating the parental rights of the father of J. M. K., a male child born February 7, 1983, and J. M. K., a male child born March 28, 1985. It is from this order that the father appeals. Held:

In his sole enumeration of error, the father challenges the sufficiency of the evidence. “ ‘ “(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).” In re A. N. Y., 181 Ga. App. 499 (353 SE2d 8).

“OCGA § 15-11-81 (a) provides a two-step procedure to be followed in considering the termination of parental rights. First, the court shall determine whether there is present clear and convincing evidence of parental misconduct or inability as provided by OCGA § 15-11-81 (b). Secondly, ‘(i)f there is clear and convincing evidence of such parental misconduct or inability, the court shall then consider whether termination of parental rights is in the best interest of the child, . . .’ OCGA § 15-11-81 (a).” In the Interest of A. T., 187 Ga. App. 299, 301 (2) (370 SE2d 48).

OCGA § 15-11-81 (b) (4) (A) provides the following standard for determining parental misconduct or inability: “(i) The child is a deprived child, as such term is defined in Code Section 15-11-2; (ii) The lack of proper parental care or control by the parent in question is the cause of the child’s status as deprived; (iii) Such cause of deprivation is likely to continue or will not likely be remedied; and (iv) The continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child.”

There was clear and convincing evidence in the case sub judice that the children were deprived as a result of the father’s inability to provide the children with adequate food, shelter and supervision. In this regard, the evidence revealed that the Georgia Department of Human Resources, acting through the Henry County Department of Family and Children Services, was compelled to take the children from the father on February 11, 1986, after the children were found “outside [a trailer at 5:30 in the morning, in the] pouring down rain. ...” The children “were covered with mud at the time” and it was discovered that the father, who then had sole custody of the children, had left them unattended after he “left the residence around 4:30 or a quarter of 5:00 that morning going to work. . . .” (The oldest child was then less than three years of age and the youngest was less than a year old.) Later that day, the father went to the Department of Family and Children Services’ office and explained to a caseworker “that he had been separated from [the mother] for about 14 months”; that “he had been living in the trailer for approximately a month[; that he] had just recently been released from prison for auto theft [and that] he . . . had been keeping the children for [the mother] since that time.” (The father was living in the trailer with a friend and the friend’s 16-year-old son. The trailer was “sparsely furnished and dark” and it appeared that the children “were sleeping on the sofa. . . .”)

A deprivation hearing was conducted on February 13, 1986, after which the children were placed in the temporary custody of the Georgia Department of Human Resources, acting through the Henry County Department of Family and Children Services, and situated in foster care. On April 2, 1986, a plan specifically designed to enable the father to regain parental control or custody of the children was entered by the juvenile court. The father acknowledged the terms of the plan and stated that he understood its goal. However, since the reunification plan was entered, the father has significantly failed to comply with the terms thereof. More specifically, the father has accomplished only two brief visits with the children since the Department of Human Resources took custody of the children on February 11, 1986. He has not maintained a stable residence; he has not located appropriate day care for the children; he has not attended parenting classes and he has not attended counseling designed to treat his alcoholism. Finally, the father has failed to contribute any financial support for the children, even though he has had the resources to do so. In fact, since the children were placed in the temporary custody of the Department of Human Resources, the father has continued a pattern of criminal activity which has placed him in situations of incarceration and has prevented him from achieving many of the goals for reunification. Further, while the father has been incarcerated he has failed to communicate with the children and he has shown little interest in the children’s well-being. This clear and convincing evidence is more than sufficient to authorize a termination of the father’s parental rights according to the standard provided by OCGA § 15-11-81. See Brown v. Dept. of Human Resources, 157 Ga. App. 106 (276 SE2d 155). Compare In the Interest of H. L. T., 164 Ga. App. 517 (298 SE2d 33). Accordingly, the juvenile court did not err in terminating the father’s parental rights.

Decided November 3, 1988.

Crumbley & Crumbley, R. Nathan Langford, Jr., for appellant.

Eugene W. Dabbs IV, Michael J. Bowers, Attorney General, Carol A. Cosgrove, Senior Assistant Attorney General, for appellee.

Judgment affirmed.

Pope and Benham, JJ., concur.

       The Georgia Department of Human Resources brought a petition to terminate the parental rights of both the mother and father. However, the juvenile court found that the mother had progressed by establishing a suitable home environment for the children and that she had gained stable employment in the months preceding the termination hearing. As a consequence, the juvenile court granted the mother custody of the children subject to compliance with an explicit plan directed toward her continued parental habilitation and designed to assure the children’s physical and emotional well-being.

       “At the time the children were placed in temporary custody of the Department, neither parent was in opposition of that. The mother did not have a place to live. The father did not have a lot of money. He had been using a baby-sitter sometimes for the sole purpose of being able to feed the children, and he did not have the resources to take care of the children, and the mother did not either at that time.”

       The juvenile court found that the father “has had numerous criminal convictions for which he served time in prison including the offense of aggravated assault in 1982 in Cobb County, Georgia for which he served approximately six months in prison, the offense of auto theft in Upson County, Georgia in April 1985 for which he was incarcerated from April 1985 through January 1986 and was thereafter placed on probation, the offense of driving under the influence in Fulton County, Georgia in March 1986 for which ... he served approximately three months in jail and was released on probation in June 1986 together with the multiple offenses of burglary, theft and unlawful use of license in Cobb County, Georgia on November 4, 1986, for which he received a total sentence of twenty years, six years of which were to be served in the state penal system with the remaining sentence on probation.”


text:
    77521, 77522.
    MID-AMERICAN ELEVATOR COMPANY, INC. v. GEMCO ELEVATOR COMPANY, INC. (two cases).
    (375 SE2d 275)
   Birdsong, Chief Judge.

These appeals represent the second appellate appearance of this disagreement between Mid-American Elevator Company and Gemco Elevator Company. Mid-American and Gemco entered into a joint venture for installing and maintaining escalators in certain MARTA stations. A disagreement developed as to the amount of reimbursement. The dispute was submitted to arbitration and Gemco was awarded $216,273.71. The superior court denied Mid-American’s application to vacate or modify the arbitration award, and appeal to this court followed. In Mid-American Elevator Co. v. Gemco Elevator Co., 183 Ga. App. 88 (357 SE2d 838), this court held that “the award must be vacated because the number of countable extra hours was erroneously computed and no basis for determining such a discount appears in the record. In short, there was such an ‘imperfect execution of the [arbitration] that a final and definite award upon the subject matter submitted was not made. . . .’ [Cit.] Both miscalculations may be corrected upon rehearing of the matter. OCGA § 9-9-94 (d).” Id. at 89. Thus, this court vacated the award and returned the matter for rehearing so that “[b]oth miscalculations may be corrected. . . .”

After remand, the trial court submitted the matter to the same arbitrator “for the purpose of correcting or otherwise clarifying the two miscalculations. In the event the arbitrator can correct or clarify the miscalculations based upon the existing record, he shall do so within thirty days from the date of this Order.”

Without notice to the parties, and without an oral hearing, the arbitrator submitted his explanation and clarification of his two earlier “miscalculations” and his decision to the superior court, which affirmed his findings and entered judgment for Gemco in the amount of $197,853.31. Mid-American now brings this appeal. Held:

Case No. 77521

1. Appellant argues that the trial court erred “in ordering a rehearing limited to the existing record . . . [and] in entering a final judgment based on the arbitrator’s ‘rehearing’ limited to the existing record.” To be precise, the trial court did not “order” that the arbitrator’s “rehearing [be] limited to the existing record. ...” It directed “a rehearing ... for the purpose of correcting or otherwise clarifying the two miscalculations. [And] In the event the arbitrator can correct or clarify the miscalculations based upon the existing record, he shall do so. . . . [But] In the event that the arbitrator cannot, based upon the existing record, correct or clarify the two miscalculations, then a rehearing shall be in [sic] held in accordance with OCGA § 9-9-88.”

This court in the first appeal of Mid-American, supra, “vacated” the award on the basis that there was “such an ‘imperfect execution of the [arbitration] that a final and definite award upon the subject matter submitted was not made . . .’” and these “miscalculations may be corrected upon rehearing.” 183 Ga. App. at 89. Four findings of this court are predominant: (1) the entire award was “vacated,” (2) there was “imperfect execution of the [arbitration],” (3) “upon the subject matter submitted . . .” (4) “upon rehearing . . .” the “miscalculations may be corrected.” Secondly, the trial court’s directive to the arbitrator was in the alternative: (1) if you can correct or otherwise clarify these miscalculations on the existing record, you may do so, or (2) if you cannot, based on the existing record, then hold a full rehearing. Joint consideration of these directives reveals a conflict. Whereas this court envisioned a full rehearing because of “imperfect execution of the [arbitration]” procedure “upon the subject matter submitted,” the trial court authorized what it called a rehearing “upon the existing record” if the arbitrator could “correct or otherwise clarify these miscalculations. ...” Such revision, in camera, on the existing record, failed to provide either party the opportunity to submit briefs or evidence, and in effect was not a full “rehearing” envisioned by this court. It amounted to nothing more than a revision of the award and an explanation of how the new decision was reached. Hence, at issue is whether either party to arbitration has a right to submit a brief, and/or evidence, upon a rehearing directed by an appellate court.

We must start our analysis of this problem from the fact that the award has been vacated and a “rehearing” directed by this court. Generally, where the award is set aside or vacated on appeal, the entire matter is reopened and the issues must be redetermined. See 5 AmJur2d 659-660, Arbitration & Award § 189; 6 CJS 443, Arbitration § 169 (c); Anno. 75 ALR3d 132, 144 (3) (a). A “rehearing” before a factfinder (arbitrator) is not the same as a rehearing before a judge or an appellate court, even though in these instances the parties are authorized to submit briefs.

Our Code provides that “[t]he parties are entitled to be heard; to present pleadings, documents, testimony, and other matters; and to cross-examine witnesses.” OCGA § 9-9-8 (b), as amended. Of course, this section applies to the original hearing, but it is indicative of the rights of the parties in resolving issues before the arbitrator, a factfinder. If such right exists as to the original hearing, and this court vacates the award and returns the matter for a “rehearing,” do the parties retain similar rights? We have found no case, domestic or foreign, on this issue. But, our Code does authorize the trial court, “[u]pon vacating an award, the court may order a rehearing and determination of all or any of the issues either before the same arbitrators. . . .” (Emphasis supplied.) OCGA § 9-9-13 (e) as amended. Thus, even though the entire award has been vacated, the Code permits the rehearing to be restricted to “any of the issues. . . .” Hence, we find no error in the trial court restricting the arbitrator to the two issues found fatal to the earlier award by this court, but we find error in the trial court authorizing the arbitrator to issue a new award on the record before him, which denies both parties to the new “hearing” directed by this court, the right to submit evidence relevant to such issues, and briefs in support of their position. Accordingly, we hold it was prejudicial error for the trial court, in response to the judgment of this court vacating the original award for “ ‘imperfect execution of the [arbitration] . . . upon the subject matter submitted” and directing a “rehearing,” to authorize the arbitrator to recompute his former award on the basis of the evidence before him, without permitting either party to submit additional evidence and/or a brief, if desired.

Decided November 3, 1988.

Alston & Bird, Peter M. Degnan, Geoffrey H. Cederholm III, for appellant.

Lokey & Bowden, Daniel McGinnis, Peter K. Kintz, for appellee.

Case Ño. 77522

2. Because we have reversed the judgment of the trial court, the award must be vacated and resubmitted to the same or another arbitrator, and a hearing held on the issues certified to the arbitrator. Thus, the enumerated errors complaining of incorrect calculation by the arbitrator on rehearing can be addressed to the arbitrator in the rehearing.

Judgments reversed.

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


text:
    77627.
    RICHARDS v. THE STATE.
    (375 SE2d 278)
   McMurray, Presiding Judge.

Defendant Richards appeals his conviction of the offense of trafficking in cocaine. Held:

1. Defendant enumerates as error the admission into evidence of four of the State’s exhibits over defendant’s objection as to the chain of custody. Three of the exhibits at issue are quantities of cocaine.

The fourth exhibit is a receipt and return receipt for registered mail. The registered mail receipt and return receipt were distinct and recognizable objects due to their ten digit alpha-numeric identification number. Thus, no chain of custody was required to be proven in regard to this exhibit. Elder v. State, 168 Ga. App. 771, 772 (2) (310 SE2d 254).

The three exhibits consisting of cocaine, which were seized at the Atlanta airport, were placed in a heat-sealed plastic bag which was stamped and signed by one of the officers who had participated in the seizure, with another officer signing as a witness. Thus packaged, the three cocaine exhibits were kept in a safe until taken to the United States Post Office and sent by registered mail to a crime laboratory operated by the Drug Enforcement Administration in Miami, Florida. At the crime laboratory the samples were tested by a chemist who received the sealed plastic bag from an evidence custodian whose signature was found on the registered mail return receipt as agent of the addressee crime laboratory. The chemist testified that the plastic bag did not appear to have been opened and resealed prior to her receiving it and explained such tampering would probably be apparent on visual inspections of the plastic bag due to changes in the size of the bag or appearance of a seam.

Defendant’s chain of custody argument rests upon three issues. First, the failure of the State to show the physical custody of the three cocaine exhibits as they were taken from the United States Post Office in Atlanta to the crime laboratory chemist in Miami. Secondly, a discrepancy in the weight of one of the cocaine exhibits as weighed in Atlanta and in Miami. And, finally, the fact that two law enforcement officers each testified that they had mailed the exhibits.

“The items seized were fungible, and where the State seeks to introduce evidence of a fungible nature, it must show a chain of custody which is adequate to preserve the identity of the evidence. Terry v. State, 130 Ga. App. 655, 656 (204 SE2d 372). Hence, the burden is on the prosecution ‘to show with reasonable certainty that the evidence is the same as that seized and that there has been no tampering or substitution.’ Johnson v. State, 143 Ga. App. 169-170 (237 SE2d 681). However, the State need not negate all possibility of tampering and ‘need only establish reasonable assurance of the identity’ of the confiscated evidence. Patterson v. State, 224 Ga. 197, 199 (160 SE2d 815); accord Anderson v. State, 247 Ga. 397, 399 (276 SE2d 603).” Kelly v. State, 182 Ga. App. 7, 8 (2), 9 (354 SE2d 647).

In view of the evidence as to the tamper-resistant nature of the materials and procedures used to send the cocaine exhibits by registered mail, and the absence of evidence of tampering, it appears to a reasonable certainty that the evidence which reached the crime laboratory chemist is the same as that which was seized. Although there was a discrepancy between the recorded weights of one exhibit sent to and received by the laboratory, the laboratory receiving a weight approximately one ounce greater than was recorded as sent, there is no evidence suggesting that this was caused by tampering or that it was anything other than a weighing or recording error. Similarly, it is obvious that one of the two officers who testified that he mailed the exhibits has faulty recollection on this point. In summation, none of the points argued by defendant amounts to evidence of tampering or cast sufficient doubt on the identity of the exhibits to amount to a broken chain of custody. See generally Boyer v. State, 178 Ga. App. 372, 373 (1) (343 SE2d 146); Hubert v. State, 181 Ga. App. 684 (353 SE2d 612); Cook v. State, 255 Ga. 565, 568 (4) (340 SE2d 843); Williams v. State, 181 Ga. App. 49, 51 (3) (351 SE2d 207); Holmes v. State, 180 Ga. App. 787, 788 (3) (350 SE2d 497); Houston v. State, 180 Ga. App. 267, 268 (3) (349 SE2d 228).

2. Defendant contends the trial court erred in its charge to the jury on circumstantial evidence by failing to charge the jury that circumstantial evidence must exclude every other reasonable hypothesis except the guilt of the accused. Apparently, defendant would have had the trial court charge the exact language of OCGA § 24-4-6. However, the trial court was not required to give the exact language of the statute. Price v. State, 180 Ga. App. 215 (2) (348 SE2d 740). Also, the charge given was substantially similar to that approved in Carpenter v. State, 167 Ga. App. 634, 641 (8), 642 (307 SE2d 19), as being entirely consistent with OCGA § 24-4-6. This enumeration of error is without merit.

Decided November 3, 1988.

Darrel L. Hopson, for appellant.

Robert E. Keller, District Attorney, Daniel J. Cahill, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

Pope and Benham, JJ., concur.


text:
    77645.
    LEDFORD v. THE STATE.
    (375 SE2d 280)
   McMurray, Presiding Judge.

Defendant was convicted of three counts of child molestation and was sentenced to 20 years of supervised probation. This appeal followed. Held:

In his sole enumeration of error, defendant contends the trial court “erred in requiring [him] to serve a period of probation in excess of four (4) years in violation of O.C.G.A. § 42-8-34.1 (e).” This Code subsection provides as follows: “In no event shall an offender be supervised on probation or parole, or both, for more than a total of four years, whether before or after confinement, except upon written order of the court for the purpose of enforcing restitution or fines or for the protection of the victim or class of victims as defined by age or gender or by type of crime committed.” (Emphasis supplied.)

An examination of the record shows that the trial court entered a written order sentencing defendant to 20 years of supervised probation with the condition that he pay restitution to the “victims’ family for counseling that victims may incur,” that he pay a $1,000 fine “plus $50.00 PO&P Training Fund,” that he “attend mental health at own expense,” that he not “reside in residence with child under age 17 while on probation” and that he not “be alone with victims while on probation.” These conditions invoke the exception reflected in the emphasized language of the above Code subsection. Consequently, the trial court did not err in sentencing defendant to 20 years of supervised probation.

Judgment affirmed.

Pope and Benham, JJ., concur.

Decided November 3, 1988.

McCamy, Phillips, Tuggle, Rollins & Fordham, Stephen A. Williams, for appellant.

Jack O. Partain III, District Attorney, for appellee.


text:
    77654.
    LANCASTER v. THE STATE.
    (375 SE2d 281)
   McMurray, Presiding Judge.

Defendant appeals his conviction of the offenses of driving under the influence (“DUI”) and driving while license suspended. Held:

1. The prosecution of defendant arose following the discovery of defendant’s pickup truck overturned in a ditch on U. S. 29. The Georgia State Patrol trooper located defendant in an ambulance which had picked him up on a street which intersected with U. S. 29 about 200 feet from the scene of the wreck.

Defendant contends that there was insufficient evidence that he was driving the vehicle on the night in question. However, the trooper testified, without objection, that based on his investigation of the wreck, he was able to determine that defendant was driving the vehicle. Based on this evidence combined with evidence of defendant’s suspended driver’s license and blood alcohol content, we hold that a rational trier of fact could reasonably have found defendant guilty beyond a reasonable doubt of the offenses charged. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Cameron v. State, 187 Ga. App. 562 (3) (370 SE2d 812).

2. During the State’s direct examination of the prosecuting officer, a State trooper, testimony was elicited that at the time of the events at issue defendant’s driver’s license was suspended. The solicitor then asked: “Do you know why the driver’s license was suspended?” The witness answered: “Yes, sir. DUI suspension.” Defense counsel then objected and moved for a mistrial based on the introduction of evidence of a prior conviction. Defendant enumerates as error, the denial of his motion for mistrial.

The testimony identified the defendant as having a prior record of a criminal offense, thereby placing defendant’s character in issue. Stanley v. State, 250 Ga. 3 (1), 4 (295 SE2d 315). Defendant had not placed his general character in issue, therefore, the proof of defendant’s prior offense was not admissible unless offered for some proper purpose. Jones v. State, 257 Ga. 753, 757 (363 SE2d 529). We find no proper purpose for the admission of the evidence at issue. While, at trial, the solicitor argued that the basis for the suspension of defendant’s license was relevant to the issue of whether defendant was guilty of the offense of driving while license suspended, we cannot agree. Once the fact of the suspension and its effective date were proven, evidence as to the reason for the suspension added nothing and served only to prejudice defendant. See OCGA § 40-5-121 (a). This is not a case where it was necessary for the State to introduce evidence of a prior offense in order to prove the elements of the offense charged. Compare Vowell v. State, 174 Ga. App. 426 (330 SE2d 167). Since the testimony improperly placed defendant’s character in issue and no remedial action was taken in response to defendant’s motion for mistrial, we must conclude that the trial court abused its discretion. Jones v. State, 257 Ga. 753, 760 (2), supra. Compare Stanley v. State, 250 Ga. 3, 4 (2), supra.

Decided November 3, 1988.

Kenneth L. Gordon, for appellant.

Daniel W. Lee, Solicitor, for appellee.

Judgment reversed.

Pope and Benham, JJ., concur.


text:
    77000.
    MASON v. GRACEY.
    (375 SE2d 283)
   Pope, Judge.

The personal property of plaintiff Sarah Bowen Gracey was damaged when the apartment building in which she resided caught fire. The fire started when a worker hired by the landlord to repair and replace columns at the front entrance to the building used a blowtorch to remove paint from one of the columns. Plaintiff brought suit against her landlord, defendant Mrs. Robert Mason, and the worker hired by the landlord. Plaintiff obtained a default judgment against the worker. The jury returned a verdict of $2,368.23 actual damages against defendant Mason and, in a bifurcated trial on the issue, of bad faith and stubborn litigiousness, returned a verdict of $7,115.00 for attorney fees. Defendant appeals.

1. Plaintiff asserted three theories of recovery: (1) respondeat superior; (2) liability of the employer for the negligence of an independent contractor; and (3) negligent hiring. Defendant argues the plaintiff failed to present evidence sufficient to sustain á recovery under any theory and contends the trial court erred in denying her motion for directed verdict. We shall address each theory of recovery separately.

(a) Defendant testified that the worker hired to repair the columns was not her regular employee. He had been hired in the past to perform specific jobs such as building a shed for an air conditioning unit and pouring a slab of concrete. On this occasion, the worker called her and asked if she had any work for him. She met him at the work site to show him one entrance way which had already been renovated and told him she wished to have the other five entrance ways renovated to match the first one. She did not place any time requirements on the job, but the worker told her he could complete the work in six weeks. He gave her a bid for the job, the amount of which defendant could not remember, and she accepted. Defendant paid the worker a weekly draw for the work he had completed each week. Defendant assumed the worker would hire others to help him although she did not tell him who or how many workers to hire. Defendant testified she had no control over the hours or the days he worked. She never went to the work site to supervise.

The issue in determining whether one was an employee or an independent contractor is whether the employer retained the right to exercise control over the time, place or manner of the work performed. Swift & Co. v. Alston, 48 Ga. App. 649 (173 SE 741) (1934). “Where one is employed generally to perform services for another, and there is no specific contract to do a certain piece of work according to specifications for a stipulated sum, it is inferable that the employer has retained the right to control the manner, method and means of the performance of the contract, and that the employee is not an independent contractor.” (Citation and punctuation omitted.) Golosh v. Cherokee Cab Co., 226 Ga. 636, 638 (176 SE2d 925) (1970). Accord Harrison & Ellis, Inc. v. Nashville Milling Co., 156 Ga. App. 697 (1) (275 SE2d 374) (1980); Moon v. Georgia Power Co., 127 Ga. App. 524 (1) (194 SE2d 348) (1972). In the present case, defendant’s undisputed testimony established the worker was not employed generally by her but was hired pursuant to an oral contract for a certain piece of work according to specifications for a stipulated sum. The only evidence presented from which plaintiff argues that the worker acted as an employee was that he was paid weekly. However, the mode of payment is not decisive of the issue. Swift & Co. v. Alston, supra. Moreover, defendant testified the worker received a weekly draw in accordance with the amount of work completed for that week. The method of payment does not establish the worker was paid wages but is consistent with periodic payment according to the percentage of completion of a contract.

In response to defendant’s appeal, plaintiff argues that factors other than the extent of the employer’s control over the work may be considered in determining whether the worker was an employee or an independent contractor, as set forth in Moss v. Central of Ga. R. Co., 135 Ga. App. 904 (219 SE2d 593) (1975). This court in Moss expressly decided the issue of respondeat superior on federal law and refrained from comparing the Georgia law on the question. Even if the six factors enumerated in Moss are factors to be considered pursuant to Georgia law, the evidence in this case does not create an issue of fact as to whether the worker was an employee as opposed to an independent contractor.

First, absolutely no evidence was presented to establish that, by agreement, the defendant retained the right to control the details of the work. In fact, the only evidence presented on this issue established defendant merely specified that she wanted the remaining columns to be renovated to match the columns already renovated and defendant retained no control over the manner in which the hired worker accomplished that goal. In regard to the worker’s occupation or business, the evidence established that he was not merely a laborer but hired himself out for carpentry and other construction work. Compare Swift & Co. v. Alston, supra (where the worker in question was employed as a menial laborer). It is evident from the description of the work specified by defendant that some skill as a carpenter was required to replace and repair the columns. The defendant, on the other hand, was not a carpenter and was not in a position to direct the work. Defendant purchased the new columns which the worker was to install but no evidence was presented that she provided his tools. The worker was employed only for that period of time required to complete the specific job. The only evidence presented concerning method of payment shows the worker was paid in accordance with his bid for the job. The landlord was in the business of renting apartments. While it is the duty of the landlord to keep the premises in repair, the evidence showed the defendant landlord was not in the business of renovating buildings and did not regularly employ workers for such work. Finally, the landlord testified the worker was not her employee but was merely a contractor.

Plaintiff presented no evidence to support her allegation that the worker was an employee of the defendant and the only evidence presented showed the worker was not an employee, but an independent contractor. Therefore, defendant was entitled to a directed verdict on plaintiff’s allegation of liability pursuant to the doctrine of respondeat superior.

(b) Because the evidence shows the worker hired by defendant was an independent contractor, defendant could be liable for the worker’s negligence only in certain situations as set forth in OCGA § 51-2-5. Plaintiff argues defendant was liable pursuant to subsections (2) and (4) of said statute, according to which an employer is liable for the negligence of an independent contractor: “(2) If, according to the employer’s previous knowledge and experience, the work to be done is in its nature dangerous to others however carefully performed; [or] ... (4) If the wrongful act is the violation of a duty imposed by statute,. . . .”

Liability imposed by subsection (2) applies to work which is inherently dangerous “however carefully performed.” Plaintiff, herself, presented the testimony of a fire inspector employed by the City of Atlanta, who testified that the use of a blowtorch to rembve paint is permitted by the applicable fire code so long as certain safety precautions are taken. Therefore, plaintiff failed to establish that the work was dangerous “however carefully performed.” Where the work is not inherently dangerous except as a result of the negligence of the contractor the employer is not liable. St. Paul Cos. v. Capitol Office Supply Co., 158 Ga. App. 748 (282 SE2d 205) (1981). Moreover, “[p]ast knowledge and experience is the gauge by which to measure the dangerous nature of the work to be done.” Dekle v. Southern Bell Tel. &c. Co., 208 Ga. 254, 258 (66 SE2d 218) (1951). No evidence was presented to show defendant knew the worker would use a blowtorch in the course of his work. The evidence showed one set of columns had been successfully renovated at the time defendant hired the worker to complete the job. Thus, no evidence was presented from which a jury could find the defendant had any knowledge or experience by which defendant should have known the work was dangerous.

According to OCGA § 51-2-5 (4), an employer is liable for the negligence of an independent contractor “[i]f the wrongful act is the violation of a duty imposed by statute,. ...” Plaintiff argues that, pursuant to OCGA §§ 44-7-13 and 14, a landlord is required to make repairs to the premises and, therefore, a landlord cannot escape liability for the negligence of those it hires to make the repairs. We reject the plaintiff’s attempt to bootstrap an employer’s liability for the acts of an independent contractor to a landlord’s liability for the condition of the leased premises.

While a landlord is under a statutory duty to keep the rented premises in good repair, OCGA § 44-7-13 and 14 merely impose liability on the landlord for damages resulting from defects in the premises. A landlord is liable for damages when the repairs he has a duty to make are completed negligently so that a defect in the premises remains despite the attempted repair. Oglesby v. Rutledge, 67 Ga. App. 656 (21 SE2d 497) (1942). For example, if, in this case, after renovation to the columns was complete, one of the columns had fallen causing damage, then the defendant would not have been able to escape liability simply because she hired another to do the work she was required to do. See Southern R. Co. v. Brooks, 112 Ga. App. 324 (2) (145 SE2d 76) (1965). However, when, as here, the worker hired is an independent contractor, the landlord is not liable for the negligent acts of the worker during the course of the repairs.

Decided November 4, 1988.

R. Chris Irwin & Associates, David L. Whitman, for appellant.

Cary S. King, for appellee.

The additional exception to the general rule of nonliability for the torts of an independent contractor, as set forth in Peachtree-Cain Co. v. McBee, 170 Ga. App. 38 (316 SE2d 9) (1984), aff’d, 254 Ga. 91 (2) (327 SE2d 188) (1985), applies only to intentional torts of a security agency hired by the owners to protect the premises. See also United States Shoe Corp. v. Jones, 149 Ga. App. 595 (255 SE2d 73) (1979). Contrary to plaintiff’s argument, the additional exception of Peachtree-Cain does not apply to the case at hand.

(c) Liability for negligent hiring is not one of the exceptions to the general rule of nonliability for the torts of an independent contractor. OCGA § 51-2-5. The statutory duty to exercise ordinary care in the selection of employees applies, by definition, to employees and not to those hired as independent contractors. See OCGA § 34-7-20. Therefore, where, as here, the facts establish that the one hired was an independent contractor, the plaintiff may not recover on a theory of negligent hiring.

For the reasons set forth above, the trial court erred in denying defendant’s motion for directed verdict in regard to liability.

2. Since plaintiff was not entitled to recover damages from defendant, the court also erred in denying defendant’s motion for directed verdict in regard to plaintiff’s claim for attorney fees for bad faith and stubborn litigiousness.

3. We need not address defendant’s remaining enumeration of error concerning instructions to the jury since we have found defendant was entitled to a directed verdict.

Judgment reversed.

McMurray, P. J., and Benham, J., concur.

        Moss v. Central of Ga., supra, applied federal law in a Federal Employee’s Liability Act case. In Moss this Court cited the Restatement (Second), of Agency § 220 (2) for six factors to be considered in determining whether one acting for another is an independent contractor or an employee: “(1) the extent of control which, by agreement, the employer may exercise over the details of the work; (2) whether or not the one employed is engaged in a distinct occupation or business; (3) whether or not the work to be performed is usually done under the direction of the employer or by a specialist who needs no supervision; (4) the skill required in the particular occupation; (5) whether the employer supplies the tools and the place of work for the one employed; (6) the length of time for which the person is employed; (7) the method of payment, whether by the time or by the job; (8) whether or not the work to be performed is a part of the regular business of the employer; (9) whether or not the parties believe they are creating an agency relationship; and (10) whether the employer is or is not in business.” Moss v. Central of Ga. at 906.


author: Beasley, Judge.

text:
    77041, 77042.
    GERALD et al. v. THE STATE (two cases).
    (375 SE2d 134)
   Beasley, Judge.

James Edward Gerald and Barry Franklin Gerald were indicted for murder, OCGA § 16-5-1. The jury convicted them of voluntary manslaughter, OCGA § 16-5-2. Following the denial of their motion for new trial, they appeal their convictions and sentences, arguing a dozen enumerations of error, including seven challenges to the trial court’s instructions to the jury. We address the charge first because it is dispositive.

1. Appellants contend that the trial court erred in the charge on justification in mutual combat when it stated that in order for the killing as a result of mutual combat to be justifiable, it had to be absolutely necessary. They maintain that there is no requirement that the necessity be absolute, that it was an incorrect statement of the law, a stricter standard than was required, and contributed to the charge being unclear and confusing.

The court charged: “The killing as a result of mutual combat may be justifiable, if you find it to be so, and if it appears that the defendant reasonably believed at the time of the killing that the danger to the defendant was so urgent and pressing, that in order to save his own life, or to prevent great bodily harm to himself, or to prevent the commission of a forcible felony, the killing of the deceased was absolutely necessary, and if it further appears that the deceased was the assailant.” (Emphasis supplied.)

The court later charged substantially the provisions of OCGA § 16-3-21 (a) and (b) (1) and (3), the use of force in defense of self or others: “A person is justified in threatening or using force against another when and to the extent that he reasonably believes that such threat or force is necessary to defend himself or a third person against such other’s imminent use of unlawful force. However, a person is justified in using force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent death or great bodily injury to himself or a third person or prevent the commission of a forcible felony.

“The State has the burden of proving beyond a reasonable doubt that the defendants did not act in self-defense.

“However, a person is not justified in using force as I have just described if that person intentionally [sic] provokes the use of force against himself with the intent to use such force as an excuse to inflict bodily harm upon the assailant or was the aggressor or was engaged in a combat by agreement, unless he withdraws from the encounter and effectively communicates his intent to withdraw to the other person, and the other person nevertheless continues or threatens to continue unlawful force.”

Where the court charges both the statutory defense of justification, including justification in mutual combat, and a pattern instruction based upon the statute, as was done here, the pattern instruction should reflect the correct statutory language. Otherwise, the court’s overall charge in that regard may confuse the jury. See McCord v. State, 176 Ga. App. 505 (1) (336 SE2d 371) (1985).

The objected-to charge, which was the suggested pattern jury charge, in vogue at the time of McCord, was inadvertently read to the jury in place of the pattern charge as revised in December 1985, following McCord. It among other changes deletes the word “absolutely,” which in 1968 had been omitted by the Code. Even if the inclusion by the judge was inadvertent, this does not alter the fact that the charge was not a totally correct statement of the law regarding the justification of self-defense in mutual combat. See dicta in Murray v. State, 254 Ga. 351, 352 (2) (329 SE2d 485) (1985), which points out that the 1968 revision of the criminal Code omitted the earlier requirement of “absolute necessity.” As appellants assert, it imposed a higher threshold for justification of the killing, i.e., that the necessity for it be absolute.

Clarity in this portion of the charge was critical to an issue of defense, and since the discrepancy between the incorrect charge and the statutory provision more likely than not confused the jury, it prejudiced defendants. Accordingly, defendants must be given a new trial. McCord, supra at 507 (1).

2. It is unnecessary to address appellants’ remaining six enumerations of error challenging other aspects of the court’s charge, including its preliminary instructions to the jury, as any alleged errors in this regard are unlikely to recur upon retrial.

3. Appellants contend that the trial court erred in refusing to direct verdicts of not guilty as to the offense of murder, OCGA § 16-5-1, because there was no evidence of malice aforethought in that the gun which killed the victim was not intentionally fired but produced as a last resort in self-defense. Appellants cannot be retried for murder. OCGA § 16-1-8 (a) (1) and (d) (2); see McCrary v. State, 252 Ga. 521, 525 (314 SE2d 662) (1984), 254 Ga. 382 (1) (329 SE2d 473) (1985). Since defendants can be retried for voluntary manslaughter, we address the sufficiency of the evidence in regard to the latter.

Construing the evidence so as to uphold the verdict, Thomas v. State, 175 Ga. App. 873, 874 (1) (334 SE2d 903) (1985), we find it was sufficient to enable any rational trier of fact to find defendants guilty of voluntary manslaughter beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided November 4, 1988.

Manchel, Johnson & Wiggins, J. Dunham McAllister, Howard J. Manchel, for appellants.

4. Appellants contend that the trial court erred in granting the State two additional jury strikes after it gave them four additional strikes, two for each, in that OCGA § 17-8-4 does not provide that additional strikes are to be granted to the State.

While it is true that OCGA § 17-8-4 is silent on the question of additional strikes for the State, the statute is to be construed in pari materia with OCGA § 15-12-165, see Taylor v. State, 140 Ga. App. 447 (2) (231 SE2d 364) (1976), which provides that the State “shall be allowed one-half the number of peremptory challenges allowed to the accused.”

5. Appellants contend that the trial court erred in requiring a list of defense witnesses to be given to the State. They argue that there is no basis in law for it, that the practice was customary in the court ostensibly for the enforcement of sequestration but that the true purpose was to obtain the criminal history of defense witnesses through the National Crime Information Center computer, and that inasmuch as the defense was unable to do the same for the State’s witnesses it was a fundamentally unfair practice and violative of their due process rights under both the federal and state constitutions. Inasmuch as this may be a practice, we will address it even though it may not affect the new trial.

Apparently, the witness list was ordered after both sides invoked the rule of sequestration. We cannot tell with certainty because this portion of the trial has not been included in the provided transcript excerpts. Thus, contrary to appellants’ contentions, there was a legal basis for the court’s order for “[i]t was within the court’s discretion to order production of a list of defense witnesses in order to enforce the rule of sequestration.” Fugitt v. State, 254 Ga. 521, 522 (4) (330 SE2d 714) (1985).

Appellants’ speculation about the motive behind the practice is not supported by the record. Furthermore, appellants do not claim and have not shown that the State was in possession of any criminal records of its witnesses. See Keller v. State, 253 Ga. 512, 513 (2) (322 SE2d 243) (1984).

6. We do not address the two remaining enumerations of error involving alleged violation of the trial court’s order granting defendants’ motion in limine and alleged error by the court in excluding a juror during deliberations because of our decision in Division 1.

Judgment reversed in Case No. 77041.

Judgment reversed in Case No. 77042. Birdsong, C. J., and Banke, P. J., concur.

Robert E. Keller, District Attorney, Todd E. Naugle, Assistant District Attorney, for appellee.

       The statutory word is “initially.”


author: Banke, Presiding Judge.

text:
    77073, 77074.
    CONNELL v. HOUSER; and vice versa.
    (375 SE2d 136)
   Banke, Presiding Judge.

Connell and Houser contracted as co-purchasers to acquire certain property owned by Tri-South Investments, Inc., (TSI), which is not a party to this litigation. A dispute thereafter arose between the two, as a result of which Connell attempted to secure other investors to take Houser’s place. When TSI refused to close the transaction without Houser, Connell brought the present action against him seeking damages for tortious interference with business or contractual relationships, defamation, and breach of contract. Following extensive discovery, the trial court granted summary judgment to Houser with respect to all of Connell’s substantive claims but ruled that a jury issue remained with respect to whether Connell was entitled to attorney fees as expenses of litigation. These appeals followed. Held:

1. Connell contends that the trial court erred in striking as untimely an affidavit which he filed one day before the hearing on Houser’s motion for summary judgment. However, there is nothing in the record to indicate that the court in fact struck this affidavit or otherwise refused to consider it. In its order, the court indicated that its ruling was based on consideration of the “entire record.” Absent any indication to the contrary, we must presume that the court considered all the evidence before it. Cf. Pruitt v. Tyler, 181 Ga. App. 174, 175 (351 SE2d 539) (1986); Wimberly v. Karp, 185 Ga. App. 571 (365 SE2d 131) (1988). Accordingly, this enumeration of error establishes no ground for reversal.

2. Connell contends that certain deposition testimony submitted by Houser in support of his motion for summary judgment should not have been considered because it was filed less than 30 days prior to the hearing on the motion. See generally OCGA § 9-11-56 (c). However, it is well settled that consideration of untimely filed material will not warrant reversal of the court’s ruling on motion for summary judgment if the record demonstrates either that the material was harmless or that the respondent acquiesced in the court’s consideration of it. See Porter Coatings v. Stein Steel &c. Co., 247 Ga. 631, 632 (278 SE2d 377) (1981). Moreover, the trial court has the discretion to allow the untimely filing of discovery material upon a showing “that sufficient reasons exist to justify that late filing and use and that the late filing and use will not constitute surprise or manifest injustice to any other party in the proceedings.” OCGA § 9-11-29.1 (a) (5) (Ga. L. 1982, p. 2374, § 1). (Emphasis supplied.)

In his motion for summary judgment, Houser expressly indicated that he was relying on the deposition testimony in question; and in his response, Connell himself made extensive reference to two of the depositions. Under such circumstances, we conclude that the trial court’s decision to consider this material did not constitute a manifest abuse of discretion. Accord Porter Coatings v. Stein Steel &c. Co., supra.

3. Connell further complains that certain affidavits submitted by Houser contained conclusory statements and inadmissible hearsay. However, the affidavits in question also contained statements which were not conclusory and were not based on hearsay, and no motion was made to strike the portions which were deemed to be objectionable. Even where a motion to strike is made, “ ‘ “(t)he trial judge may consider such affidavits, and he is bound by the uncontradicted evidentiary matter in such affidavits, irrespective of the opinions, ultimate facts, and conclusion of law stated therein.” [Cit.]’ [Cit.] Thus, the mere fact that the affidavits in question might contain certain averments which could be characterized as conclusions and hearsay, [would] not prohibit the trial judge from considering the admissible parts thereof and from granting summary judgment if appropriate.” Vickers v. Chrysler Credit Corp., 158 Ga. App. 434, 440 (280 SE2d 842) (1981). Consequently, this enumeration of error establishes no ground for reversal.

4. Connell contends that the court erred in concluding that the evidence of record negated his substantive claims for relief.

(a) Counts 1 and 2 of the complaint alleged malicious interference with business and/or contractual relationships. See generally McDaniel v. Green, 156 Ga. App. 549 (275 SE2d 124) (1980). Connell asserts that Houser interfered with his rights under the contract by repudiating his (Houser’s) own rights and obligations thereunder and then influencing TSI to refuse to go through with the closing without him. As support for the allegation that Houser repudiated the contract, Connell relies upon certain correspondence between Houser and TSI. Having reviewed this correspondence, we agree with the trial court that it reflects no expression of intention by Houser to terminate his interest in the contract. Moreover, it is apparent without dispute from the record that in reaching its decision not to go through with the closing without Houser’s participation, TSI was acting upon the advice of its own legal counsel. We accordingly conclude that the trial court did not err in granting summary judgment to Houser on the malicious interference claims.

(b) In Count 3 of the complaint, Connell alleged that Houser defamed him in statements made to several of his (Connell’s) business associates and to his (Connell’s) attorney. However, the only alleged defamation which is substantiated by the record and asserted on appeal concerns an incident in which Houser allegedly called Connell a “son-of-bitch” in the presence of TSI’s vice-president. Pursuant to OCGA § 51-5-4 (b), special damages must be shown to establish a cause of action based on mere derogatory remarks. Since TSI’s vice-president testified in his affidavit that the company’s decision not to go through with the closing without Houser’s participation was not based on anything Houser had said, it is evident that no special damages resulted from the alleged remark. It follows that the trial court did not err in granting summary judgment to Houser on the defamation claim.

Decided November 4, 1988.

Beltran & Buckley, Frank J. Beltran, William H. Buckley, for appellant.

Nall, Miller, Owens, Hocutt & Howard, Robert N. Dokson, for appellee.

(c) The trial court granted summary judgment to Houser on the breach of contract claim asserted in Count 4 of the complaint based on undisputed evidence that it was Connell rather than Houser who had initially refused to close the contract in accordance with its terms. “ ‘[W]hen one party to a bilateral contract of mutual dependent promises absolutely refuses to perform and repudiates the contract prior to the time of his performance, the innocent party is at liberty to consider himself absolved of any future performance of his part. . . .’ [Cit.]” Coffee Butler Suc. v. Sacha, 258 Ga. 192, 193 (366 SE2d 292) (1988). It follows that the trial court did not err in granting summary judgment to Houser on the breach of contract claim.

5. In a cross-appeal, Houser contends that the trial court erred in denying his motion for summary judgment with respect to Connell’s prayer for expenses of litigation, including attorney fees. Expenses of litigation are not recoverable pursuant to OCGA § 13-6-11 unless other elements of damages are recoverable. See Basic Four Corp. v. Parker, 158 Ga. App. 117, 121 (279 SE2d 241) (1981); Bayliner Marine Corp. v. Prance, 159 Ga. App. 456 (283 SE2d 676) (1981). Since Houser has prevailed on each of the four substantive counts of Connell’s complaint, it necessarily follows that he is also entitled to summary judgment on the claim for attorney fees. Accordingly, the denial of Houser’s motion for summary judgment with respect to this count of the complaint is reversed.

Judgment affirmed in part and reversed in part.

Birdsong, C. J., and Beasley, J., concur.