text:
    A94A2556.
    LEMIEUX v. BLUE CROSS & BLUE SHIELD OF GEORGIA, INC.
    (453 SE2d 749)
   Birdsong, Presiding Judge.

Kelly Lemieux’s physician sued her for payment for services rendered in delivering Lemieux’s child by cesarean section. Blue Cross & Blue Shield of Georgia, Inc. (“Blue Cross”) was brought in as a third-party defendant. The trial court granted summary judgment to Blue Cross, on a finding that the expenses for her cesarean delivery are not payable under appellant’s single-person plan as “complications of pregnancy.” The policy provides that “benefits for a normal or difficult delivery are not covered,” and allows only benefits for “complications of pregnancy,” which “[result] from conditions requiring hospital confinement when the pregnancy is not terminated and whose diagnoses are distinct from pregnancy but are adversely affected by pregnancy or are caused by pregnancy.” (Emphasis supplied.)

The trial court held it was unnecessary to decide “whether the diagnosis is distinct, but adversely affected by the pregnancy.” Instead, the trial court based its ruling on the provision that benefits were payable only where the pregnancy was “not terminated.” The trial court decided that appellant’s pregnancy was “terminated” because the child was born; that the doctor’s opinion of the meaning of “to terminate a pregnancy” is not controlling; and that “there is nothing to show that this word should be construed as a word of art or as a technical word.” The trial court concluded, rather, that since Webster’s New Universal Unabridged Dictionary defines “terminated” as meaning “to come to an end in space or time; to stop; to end,” this pregnancy “terminated” because it ended in the child’s birth. Held:

The trial court’s reasoning is incorrect, but a judgment right for any reason must be affirmed. Shapiro v. Lipman, 259 Ga. 85, 86 (377 SE2d 673). As to construction of insurance contracts, see Borders v. Global Ins. Co., 208 Ga. App. 480, 481 (430 SE2d 854). The cardinal rule in construction of contracts is to ascertain the intention of the parties. Id. Contracts of insurance are construed according to the sense and meaning of the terms the parties used, and if the terms used are unambiguous, clear, and capable of only one reasonable construction, they must be taken in their plain, ordinary and popular sense as may be supplied by common dictionaries. Horace Mann Ins. Co. v. Drury, 213 Ga. App. 321, 322 (445 SE2d 272). But where the contract is ambiguous or open to interpretation, “all the attendant and surrounding circumstances” must be considered to discover the parties’ intention. Mutual Life Ins. Co. of N. Y. v. Barron, 198 Ga. 1, 7 (30 SE2d 879). The parties’ intention determines the sense in which terms are used, and must be sought according to the meaning and spirit in which the agreement was made; the ordinary and legal meaning of the words used must be taken into consideration, but insurance contracts are contracts of adhesion, and when ambiguity is present, construction of the policy is in favor of the insured insofar as that construction is reasonable and unstrained. James v. Pa. Gen. Ins. Co., 167 Ga. App. 427, 431 (306 SE2d 422). An insurance policy is construed liberally to provide coverage and avoid forfeitures (id.), so when a provision is susceptible to two constructions a court must adopt the one most favorable to the insured. Simmons v. Select Ins. Co., 183 Ga. App. 128, 130 (358 SE2d 288).

The “attendant and surrounding circumstances” (Mutual Life Ins. Co. v. Barron, supra) governing the intention of these parties are, specifically, medical diagnoses and conditions connected with pregnancy. Coverage for complications of pregnancy is allowed under the policy only when the pregnancy is “not terminated.” The plaintiff doctor testified in deposition that in general parlance and in obstetric/gynecologic practice, “termination of pregnancy” is a term of specific meaning which generally refers to the ending of a pregnancy by abortion or miscarriage, whereas the pregnancy is “concluded” if a child is delivered. We take judicial notice that “termination of pregnancy” is commonly understood by laypersons to mean the ending of pregnancy by abortion or miscarriage.

However, the insurer insists, and the trial court found, that “terminate” is not a term of art or technical word and can mean the pregnancy “terminates” if it concludes in birth. In the context of an intended coverage for complications of pregnancy, this contention is unreasonable. All pregnancies “terminate” in some fashion, whether by miscarriage, abortion, birth, death of the mother undelivered or other anomaly. If coverage for complications of pregnancy exists under this policy only where the pregnancy never “terminates” in the common dictionary sense, this would constitute an absurdity in the contract; there would never be coverage of a complication of pregnancy. Such a construction is inconsistent with and would defeat the parties’ intent to provide coverage for “complications of pregnancy,” and it must be rejected. See Etheridge v. Woodmen of the World Life Ins. Society, 114 Ga. App. 807 (152 SE2d 773); see John Hancock Mut. Life Ins. Co. v. Poss, 154 Ga. App. 272, 275 (267 SE2d 877). It may seem unfair to exclude coverage for complications of pregnancy if the pregnancy is terminated by abortion or miscarriage while allowing coverage if the pregnancy “concludes” in a birth or delivery, but the parties intended only limited coverage connected with pregnancy and this construction represents a rational basis for the insurer’s assumption of risk.

Decided December 2, 1994

Reconsideration denied February 6, 1995

B. Dean Grindle, Jr., for appellant.

Heyman & Sizemore, Michael R. Hurst, William H. Major, for appellee.

The fact that appellant’s pregnancy concluded with the birth of her child therefore does not bar her claim. The question next becomes whether the appellant’s cesarean delivery was a condition which was “distinct from pregnancy but [was] adversely affected by pregnancy or [was] caused by pregnancy.” (Emphasis supplied.) By omitting words, the trial court perceived the question as being “whether the diagnosis is distinct.” In fact, the provision says a compensable condition is one which is “distinct from pregnancy.” This means the condition must exist or arise independent of pregnancy. Of course the condition of appellant’s cesarean delivery was distinct, but it was not “distinct from pregnancy.” It was pregnancy. The services rendered for appellant’s cesarean delivery are therefore plainly not covered. It thus becomes unnecessary to flog the provision further.

Judgment affirmed.

Blackburn and Ruffin, JJ., concur.


source: Caselaw Access Project

author: Pope, Presiding Judge.

license: Public Domain

text:
    A94A1994.
    ELLIS v. THE STATE.
    (453 SE2d 810)
   Pope, Presiding Judge.

Defendant was convicted by a jury of possession of cocaine and possession of cocaine with intent to distribute. He appeals following denial of his motion for new trial.

Based on information received from a reliable source, Officer Mark Tison stopped a vehicle in which defendant was a passenger. Tison removed defendant from the vehicle and, after a brief pat-down search for weapons, put defendant in the back seat of the patrol car. Defendant was the only one in the patrol car, and after defendant exited the vehicle, a bag containing 15 pieces of cocaine was found under the rear seat. Officer Tison testified that he knew the bag was not there before defendant was placed in his patrol car, because Tison routinely looks under the seat any time anyone sits back there, and he had done so after the last person sat there four hours earlier.

1. Although defendant entered his not guilty plea October 19, 1993, he did not file a motion to suppress evidence of the seized cocaine until January 25, 1994 — one day after his case appeared on the trial calendar and one day before his trial actually began. As motions to suppress must be filed by the time a defendant enters his plea unless there was no opportunity to do so or a written extension is granted by the court, the trial court did not err in refusing to consider defendant’s motion to suppress. See Waller v. State, 251 Ga. 124 (5) (303 SE2d 437) (1983), rev’d on other grounds, 467 U. S. 39 (104 SC 2210, 81 LE2d 31) (1984); Davis v. State, 203 Ga. App. 315 (4) (416 SE2d 789) (1992).

Defendant concedes the propriety of the trial court’s refusal to consider his motion, but argues that because the trial court never actually decided whether the stop, arrest and seizure were legal, the jury should have had the opportunity to consider the question. Pursuant to OCGA § 17-5-30 (b), however, all questions raised by a motion to suppress are for the judge rather than the jury to decide. See Hamilton v. State, 185 Ga. App. 749 (2) (365 SE2d 542) (1988). And contrary to defendant’s assertion, a defendant’s failure to file a timely motion to suppress does not turn a question for the court into a question for the jury; rather, it “ ‘ “amounts to a waiver of the constitutional guaranty in respect to the search and seizure in question.” (Cits.)’ [Cit.]” Thompson v. State, 195 Ga. App. 18, 21 (2) (392 SE2d 732) (1990). If defendant’s argument were accepted, a defendant could simply choose to have the jury rather than the judge decide the search and seizure issue by failing to raise it in a timely manner — an unacceptable result under OCGA § 17-5-30. For these reasons, defendant’s first enumeration of error is without merit.

2. Defendant next argues that the trial court improperly commented on the evidence by telling the jury that information one police officer receives from another is presumed to be reliable. However, our reading of the trial court’s comment in context shows that the court was not commenting on any evidence, but was instead explaining a correct proposition of law: that Police Officer A may act on information received from a reliable source, even if that reliable source spoke to Police Officer B, who then communicated the information to Police Officer A. See Westfelt v. State, 192 Ga. App. 791 (386 SE2d 542) (1989). The trial court repeatedly instructed the jurors that it was their responsibility to determine the credibility of witnesses, and that any comments the court made during the course of the trial were not to be taken by them as comments on the evidence. See Mullinax v. State, 255 Ga. 442 (4) (339 SE2d 704) (1986) (all of the judge’s instructions may be considered in determining whether the trial court improperly expressed an opinion). Accordingly, the trial court’s comment did not violate OCGA § 17-8-57, and defendant’s second enumeration of error is also without merit.

Decided February 6, 1995.

Jay L. Palmer, for appellant.

Stephen F. Lanier, District Attorney, Lisa W. Pettit, Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Smith, J., concur.


author: Birdsong, Presiding Judge.

text:
    A94A2099.
    BROWN v. SOUTHEASTERN SECURITY INSURANCE COMPANY, INC.
    (454 SE2d 158)
   Birdsong, Presiding Judge.

Dorothy Brown appeals the grant of summary judgment to Southeastern Security Insurance Company on her claim on her policy of automobile insurance issued by Southeastern Security, for damages allegedly incurred as a result of the theft of her car. Brown’s complaint asserted that her son was in possession of her car and it was stolen after he was ordered overseas with the military. She also alleged that when it was recovered there was extensive damage to the exterior and interior of the car and to the engine. The car was returned to Georgia for repairs and the charge for the repairs to the engine exceeded $2,000. When these engine repair charges were not promptly paid and a mechanic’s lien was filed, the finance company repossessed the car. Because Southeastern Security denied Brown’s claim for engine repairs, Brown filed this action.

Southeastern Security denied liability, both parties conducted discovery, and Southeastern Security moved for summary judgment asserting that Brown had been paid for all covered losses and the engine repairs were not covered by the policy. The motion for summary judgment was granted, and Brown filed this appeal. She contends Southeastern Security was not entitled to judgment as a matter of law and issues of fact remain for trial. Held:

For Brown to recover for the damage to the engine, the loss must have been covered under the policy. Canal Ins. Co. v. Wilkes Supply Co., 203 Ga. App. 35, 36 (416 SE2d 105). The Southeastern Security policy provided: “Loss[es] caused by . . . theft . . . are comprehensive losses.” Therefore, recovery was dependent upon a showing that the engine damage was caused by the theft. Southeastern Security’s motion for summary judgment and supporting documents contended there was no such showing.

Decided February 6, 1995.

Mullís, Marshall, Lindley & Powell, J. A. Powell, Jr., for appellant.

Miller & Towson, James V. Towson, for appellee.

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiffs case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiffs claim, that claim tumbles like a house of cards. . . . See, e.g., Holiday Inns v. Newton, 157 Ga. App. 436 (278 SE2d 85) (1981). A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474).

Southeastern Security established that there was no evidence that the damage to the car’s engine was caused by the alleged theft of the vehicle. The evidence showed that the damage to the engine was not claimed until months after the car was recovered and that in the interim the car was driven over 10,000 miles. To create a triable issue Brown was then obligated to come forward with specific evidence that the damage to the engine was the result of the theft. OCGA § 9-11-56 (e); Lau’s Corp., supra. As Brown failed to come forward with such evidence, summary judgment was properly granted. Further, as Brown did not establish that her claim was a covered loss under the policy, a penalty under OCGA § 33-4-6 was not authorized. “[S]ummary judgment is appropriate when the court, viewing all the facts and reasonable inferences from those facts in a light most favorable to the non-moving party, concludes that the evidence does not create a triable issue as to each essential element of the case.” Lau’s Corp., supra at 495.

Judgment affirmed.

Blackburn and Ruffin, JJ., concur.


author: McMurray, Presiding Judge.

text:
    A94A2550.
    WALKER v. THE STATE.
    (454 SE2d 156)
   McMurray, Presiding Judge.

Defendant was charged via indictment with armed robbery, aggravated assault, and possession of a firearm during the commission of those two crimes. The jury found him “guilty on all counts.” His motion for new trial was denied and this appeal followed. Held:

1. Defendant first contends the trial court erred in denying his “MOTION TO DISMISS” (in the nature of a demand for discharge and acquittal) predicated upon the failure of the State to try him within the time as allowed by OCGA § 17-7-170 after his written demand for a speedy trial. However, the trial court determined that the “statutory provisions of OCGA § 17-7-171 apply and were not complied with. Specifically, neither the defendant nor his counsel were present in court during the March 1990 or May 1990 term announcing ready for trial and requesting a trial on the indictment.” On appeal, defendant does not dispute that OCGA § 17-7-171 applies but argues that, since he was already incarcerated for an unrelated offense, the “State’s failure to assure his presence when he was involuntarily absent and subject to its legal process precludes the State from arguing the Defendant had not complied with the . . . ‘statutory provisions of OCGA § 17-7-171’ by not being . . . present in court. . . announcing ready for trial. . . .”

“The right to a speedy trial under OCGA § 17-7-171 requires strict compliance with the statutory requirements and may be waived by a defendant’s actions. See Mize v. State, 262 Ga. 489, 490 (422 SE2d 180) (1992). ... A failure to comply with the express language of OCGA § 17-7-171 (b) that the defendant be in court ‘announcing ready for trial’ following the filing of a speedy trial demand operates as a waiver of that demand.” Rice v. State, 264 Ga. 849, 850 (452 SE2d 118) (1995).

Defendant’s argument misplaces the responsibility for assuring his presence in court, which lies with the defense. “Any judge of the superior court may issue his order to any officer having a lawfully imprisoned person in his custody, requiring the production of such person before his court for the purpose of giving evidence in any criminal cause pending therein, without any formal application or writ of habeas corpus for that purpose.” OCGA § 24-10-61. The record contains no indication that defendant exercised due diligence to be “present in court announcing ready for trial and requesting a trial on the indictment,” as required by OCGA § 17-7-171 (b). Moreover, it is undisputed that defendant, although in custody, “was represented by counsel who could have [announced ready] for him. ...” Dennis v. Grimes, 216 Ga. 671, 672 (3), 673 (118 SE2d 923). In the case sub judice, the trial court did not err in denying defendant’s demand for discharge and acquittal.

Decided February 6, 1995.

Peter D. Johnson, for appellant.

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

2. In his second enumeration, defendant contends the trial court erred in “allowing a copy of a custodial statement to be admitted, and considered, as evidence during jury deliberations.” Defendant concedes that no “continuing witness” objection was interposed during trial but urges that this enumeration nevertheless should be considered under the “plain error” doctrine.

The written confession of the defendant should not be allowed to go to the jury room and, over timely objection, it is reversible error to do so. Walker v. State, 215 Ga. 128, 129 (2), 130 (109 SE2d 748); Pope v. State, 197 Ga. App. 832 (2) (399 SE2d 552). However, pursuant to the binding precedent of the Supreme Court of Georgia, we hold that, in the case sub judice, defendant “has waived his right to complain of this on appeal by failing to object at trial.” Stidem v. State, 246 Ga. 637, 639 (3) (272 SE2d 338). See also Kitchens v. State, 198 Ga. App. 284, 286 (5) (401 SE2d 552). Consequently, this enumeration presents nothing for review.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.


author: Blackburn, Judge.

text:
    A94A2152.
    WATSON et al. v. HOWARD JOHNSON FRANCHISE SYSTEMS, INC.
    (453 SE2d 758)
   Blackburn, Judge.

Brian Watson and Pauline Watson appeal the trial court’s order granting defendant Howard Johnson Franchise Systems, Inc.’s (“Howard Johnson”) motion for summary judgment. The Watsons contend that issues of fact preclude the award of summary judgment.

The Watsons filed the underlying action for personal injuries and property damage resulting from an alleged assault and robbery perpetrated on them as they brought their luggage into a room they had leased from HoJo Inn. The HoJo Inn was owned and operated by defendant Williams Investment Company, Inc. (“Williams”) pursuant to a franchise agreement with Howard Johnson. The Watsons contend the evidence demonstrates that Howard Johnson held out the hotel as its own and that they relied on such representations to the extent that Williams was Howard Johnson’s apparent agent.

Decided January 24, 1995

Reconsideration denied February 7, 1995

Bennett, Wisenbaker & Bennett, Michael S. Bennett, for appellants.

Young, Clyatt, Turner, Thagard & Hoffman, James B. Thagard, J. Holder Smith, Jr., for appellee.

“[T]he essence of the doctrine [of apparent or ostensible agency] is that one represents that another is one’s agent so that plaintiff justifiably relies on the care or skill of the apparent agent whose negligence causes the injury. It is not enough that plaintiff simply believe there is an agency relationship. There is an objective standard. The apparent principal must represent or hold out the apparent agent. Then, too, justifiable reliance must lead to the injury.” Richmond County Hosp. Auth. v. Brown, 257 Ga. 507, 508-509 (361 SE2d 164) (1987).

Williams used numerous billboards to advertise its hotel as a “HoJo Inn by Howard Johnson.” The advertisements did not refer to Williams as the owner and operator of the franchise. The sign in the parking lot of the hotel again referred to the hotel as a Ho Jo Inn by Howard Johnson. The franchise agreement provided that no advertising could be used without prior written approval from Howard Johnson. Therefore, Howard Johnson was aware of the contents of Williams’ billboards. The franchise agreement further required that Williams display a permanently fixed plaque at the registration area which contained the following language: “This Lodging Facility is Independently Operated pursuant to a Ho Jo Inn Franchise Agreement by Williams Investment Company, Inc.” However, Williams did not display such a sign. Furthermore, Howard Johnson was aware of Williams’ failure to display the required sign, as its absence had been noted in Howard Johnson’s quality assurance audits and inspections report.

Under the facts of this case we must agree that a jury issue exists as to whether Williams was Howard Johnson’s apparent agent. See Buchanan v. Canada Dry Corp., 138 Ga. App. 588 (226 SE2d 613) (1976).

Judgment reversed.

Birdsong, P. J., and Ruffin, J., concur.

       Williams is not involved in this appeal.


author: Andrews, Judge.

text:
    A94A2048, A94A2049.
    AUTO CASH, INC. v. HUNT; and vice versa.
    (454 SE2d 162)
   Andrews, Judge.

On May 4, 1992, Auto Cash, Inc. (“Auto Cash”) filed a complaint against defendant Michael Hunt d/b/a Auto Cash (“Hunt”) for damages and injunctive relief. On February 12, 1993, Auto Cash moved the court for preliminary injunctive relief and for partial summary judgment. Auto Cash argued that irreparable harm would result from Hunt’s continued use of its trademark and that, as a matter of law, it was entitled to damages. Hunt filed a response to Auto Cash’s motion and also filed a motion for summary judgment.

The superior court denied Auto Cash’s motion for a temporary restraining order, preliminary injunction and partial summary judgment. The court also denied Hunt’s motion for summary judgment. Auto Cash filed a timely notice of appeal to the Supreme Court and Hunt filed a notice of cross-appeal. Subsequently, the Supreme Court transferred the cases to this court.

These cases were filed in the Supreme Court, presumably because OCGA § 5-6-34 (a) provides that direct appeals may be taken from “(4) [a]ll judgments or orders granting or refusing applications . . . for interlocutory or final injunctions.” The Supreme Court summarily transferred the cases to this court, which does not have jurisdiction of equity cases, thus indicating that the appeals should have been filed in this court in the first place because equitable relief was merely ancillary. See Beauchamp v. Knight, 261 Ga. 608, 609 (2) (409 SE2d 208) (1991). The Georgia Constitution states that, unless otherwise provided by law, the Supreme Court “shall have appellate jurisdiction of . . . [a]ll equity cases.” Ga. Const. 1983, Art. VI, Sec. VI, Par. III. Since this court does not have jurisdiction over the question of whether equitable relief in the form of injunction should have been granted or denied, but only over the efficacy of the summary judgment rulings, the appeals should have been brought in this court pursuant to the interlocutory appeal procedure because the crux of the matter is whether summary judgment was properly denied. OCGA §§ 5-6-34; 9-11-56 (h).

The mere request for interlocutory injunction does not make a ruling thereon subject to direct appeal under OCGA § 5-6-34 (a) (4); if it is ancillary to an underlying legal question which prompts a ruling on summary judgment, the method for appealing such a ruling must be followed. No certificate was obtained from the trial court, and no application was filed in this court, so neither the trial judge nor this court has had the opportunity to exercise our respective discretions in determining whether it is appropriate to delay final resolution of this case on the trial level by allowing an interlocutory appeal. Having not followed the proper procedural course, the appeals are dismissed. See Rogers v. Dept. of Human Resources, 195 Ga. App. 118 (392 SE2d 713) (1990).

Decided February 7, 1995.

Davis, Zipperman, Kirschenbaum & Lotito, Steven A. Suna, for appellant.

Sims, Fleming & Swan, Carlton A. Fleming, Jr., Kunes & Kunes, G. G. Kunes, Jr., for appellee.

Appeals dismissed.

Beasley, C. J., and Johnson, J., concur.

       “Appeals from orders granting or denying temporary restraining orders” are discretionary. OCGA § 5-6-35 (a) (9).


text:
    A94A2147.
    TONEY v. THE STATE.
    (453 SE2d 813)
   McMurray, Presiding Judge.

Defendant was indicted for aggravated assault and kidnapping. The evidence adduced at a jury trial reveals that defendant abducted his estranged wife after a violent domestic dispute and held her captive for several hours while a law enforcement officer negotiated for the victim’s release. The jury found defendant guilty on both counts of the indictment. However, the trial court merged the aggravated assault charge with the kidnapping charge and sentenced defendant to life in prison. This appeal followed denial of defendant’s motion for new trial. Held:

1. In his first and second enumerations, defendant contends the trial court’s jury instruction on “reasonable doubt” and “moral and reasonable certainty” eased the State’s burden and thereby impaired his due process rights. This contention is without merit.

The trial court gave the same pattern jury instruction on presumption of innocence, burden of proof and reasonable doubt that was approved in Brown v. State, 264 Ga. 48, 49 (3a), 50 (441 SE2d 235). Specifically, the Supreme Court held that “[w]here . . . the jury charge properly defined reasonable doubt, a reference to a ‘moral and reasonable certainty’ did not lessen the burden of proof necessary to obtain a conviction, and therefore did not violate the Due Process Clause. Bradford v. State, 261 Ga. 833 (2) (412 SE2d 534) (1992); McDuffie v. State, 210 Ga. App. 112 (2) (435 SE2d 452) (1993); Starr v. State, 201 Ga. App. 73, 74 (410 SE2d 180) (1991). Cf. Vance v. State, 262 Ga. 236 (2) (416 SE2d 516) (1992).” (Footnote omitted.) Id.

2. Next, defendant contends “[t]he court erred by allowing the State to speak for the court and incorrectly define reasonable doubt for the jury [during closing argument].” This enumeration of error presents nothing for review as defendant failed to object to that portion of the State’s closing argument he now finds objectionable. Williams v. State, 251 Ga. 749, 801 (14) (312 SE2d 40).

3. Citing Williams v. State, 261 Ga. 640, 641-643 (409 SE2d 649), defendant contends the trial court erred in allowing evidence of vulgar and life threatening telephone messages he left on the victim’s telephone answering machine less than a week before commission of the crimes charged. Defendant argues that these tape records were “admitted for the improper purpose of showing [his] propensity for violence and improperly placed his character at issue before the jury.” Defendant also argues that “the trial court failed entirely to balance the relevance of the alleged prior difficulties against the prejudicial impact of the evidence.” We find no basis for this enumeration because defendant did not assert the same arguments in the trial court.

At a pretrial hearing to determine the admissibility of the similar transaction evidence, defendant argued that the tape recordings were “irrelevant to the case” because the messages cannot be characterized as “threats.” When the State offered the tape recordings into evidence at trial, defense counsel merely renewed his prior objection. “It follows that defendant waived the evidentiary issue discussed in Williams [v. State, 261 Ga. 640, supra] and Stephens [v. State, 261 Ga. 467, 469 (6) (405 SE2d 483),] and that that issue was not preserved for appellate review. Compare Hunter v. State, 202 Ga. App. 195, 196 (3) (413 SE2d 526) with Riddle v. State, 208 Ga. App. 8 (1) (430 SE2d 153).” Woods v. State, 212 Ga. App. 544 (1), 545 (442 SE2d 22). See Walker v. State, 208 Ga. App. 690, 692 (2) (431 SE2d 459).

4. In his final enumeration, defendant challenges the trial court’s finding that his trial attorney was not ineffective.

Pursuant to the second part of the two-prong test enunciated in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674), for measuring a claim of ineffective assistance of counsel, defendant must show that the alleged deficient performance of his trial attorney actually prejudiced his defense. See Concepcion v. State, 205 Ga. App. 138, 139 (421 SE2d 554). In this regard, defendant argues that his trial counsel’s failure to “preserve objections to the charge prevents [him] from addressing the errors on appeal.” Since we have addressed the only challenge defendant raised in this appeal to the trial court’s jury instructions, this argument provides no basis for overturning the trial court’s denial of defendant’s motion for new trial based on ineffective assistance of counsel.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.

Decided February 7, 1995.

Megan C. De Vorsey, for appellant.

Lewis R. Slaton, District Attorney, Herman L. Sloan, Vivian D. Hoard, Assistant District Attorneys, for appellee.


text:
    A94A2525.
    ACKERMAN & COMPANY v. LOSTOCCO.
    (454 SE2d 792)
   Andrews, Judge.

Ackerman & Company appeals the state court’s grant of summary judgment to Alexander Lostocco as to its complaint and in favor of Lostocco’s counterclaim for attorney fees and expenses of litigation.

The case arose out of the following facts. On May 27, 1988, Ackerman filed suit against Airport Parking Ventures, Allen Aycock, Ron Cates and Alexander Lostocco. Ackerman alleged that the defendants operated under the name of Tripoint Holdings and later under the name Airport Parking. Ackerman alleged that Tripoint Holdings signed an exclusive leasing agreement with it, agreeing that Ackerman had the right to be the exclusive leasing agent to the Atlanta CarPort for defendants. Ackerman alleged that, despite this agreement, defendants had failed to pay for its services in procuring tenants and were indebted to it for those commissions. Ackerman alleged that Lostocco was a general partner of Airport Parking and was a joint obligor to it. Count 1 of the complaint was for breach of the agreement in the amount of $23,297.60 and fees for stubborn litigiousness; Count 2 was for interest on the liquidated damages; and Count 3 sought damages for unjust enrichment.

The defendants filed an answer, stating that neither Cates nor Lostocco had ever been a partner in Airport Parking Venture I (“APVI”), or in Tripoint Holdings, or in any predecessor or successor to either company. Cates and Lostocco filed a counterclaim, in which they stated that neither Cates nor Lostocco had ever contracted with Ackerman for commissions, nor had Cates or Lostocco been unjustly enriched. The counterclaim stated that Ackerman’s suit against Lostocco and Cates was frivolous.

On January 11, 1993, Lostocco filed a motion for summary judgment in which he argued that he was not a real party in interest to the litigation. He stated that he had never been a partner, representative agent, or in any way associated with Tripoint Holdings. Lostocco stated that he was not a general partner of APVI, and that he had never negotiated, contracted or dealt with Ackerman, either individually or in a representative capacity. Contemporaneously with his motion, Lostocco filed his affidavit which set forth the facts argued in his motion.

Attached to Lostocco’s affidavit was the partnership agreement for APVI, in which the general partners were listed. Lostocco was not listed as a general partner. Nonetheless, Jinna Management, Inc. was listed as a general partner, and Lostocco signed the agreement as president of that company. With the motion, Lostocco also filed correspondence which established that he had requested Ackerman to voluntarily dismiss the complaint against him.

Ackerman did not file its response to the motion for summary judgment until July 15, 1993. In its response, Ackerman pointed out that the partnership agreement designated Jinna Management as a managing partner of the partnership. Moreover, the agreement designated Lostocco as Jinna’s representative and provided that Jinna Management was the manager of the parking facility. Ackerman attached to its response the affidavit of McKnight, its attorney, which stated that he received a letter from a Tripoint agent stating that “effective July 24, 1987, Mr. Alexander Lastocco [sic], Managing Partner of the CarPort, will assume all responsibility for accounting, leasing, property management, tenant improvements and marketing for The CarPort. Should you have questions relating to any of these issues, please contact Mr. Lastocco [sic] directly.”

With Ackerman’s response, there was also evidence that on December 30, 1987, a cover letter had been sent to it enclosing a check in the amount of $23,297.60 on Airport Parking’s account. Lostocco was copied on that letter, however, payment on the check was stopped. On January 31, 1988, Lostocco issued a “cash call” to partners to pay for certain outstanding bills. Based on these facts, Ackerman argued that questions of fact remained in the case.

Lostocco filed a reply brief and motion to strike in which he argued that Ackerman’s response to his motion was untimely and should be disregarded. Citing Uniform State Court Rule 6.2, Lostocco claimed that Ackerman waived its right to oppose the motion by failing to timely file its response. Moreover, Lostocco argued that there was no basis for imposing liability against him. Lostocco’s attorney also filed an affidavit in which he recounted his communications with Ackerman.

On April 16, 1994, Ackerman filed an amendment to its complaint. In it, Ackerman alleged that Lostocco was in charge of the Airport Parking finances and that he refused to pay money due Ackerman. Ackerman claimed that Lostocco’s failure to pay was an unlawful conversion, for which Ackerman was entitled to recover. Attached to the amendment was Aycock’s affidavit in which he avowed that Lostocco had used the money intended for CarPort for other purposes.

On April 20, 1994, after a hearing, the state court issued the order granting Lostocco’s motion for summary judgment. The order stated that fees were granted in the amount of $1,597.50, but that this sum “may be increased upon proper showing through affidavit testimony submitted to this court within five days of the date of this judgment.” After the order issued, various evidence regarding attorney fees was submitted.

1. In its first enumeration of error, Ackerman claims the state court erred in granting summary judgment to Lostocco on Counts 1 through 3 of the complaint. Ackerman contends that under the Georgia Uniform Partnership Act (OCGA § 14-8-1 et seq.), Lostocco’s “cash call” was an admission of the debt to it. Furthermore, Ackerman argues that under OCGA § 14-8-6, Lostocco is individually liable to it since he represented himself as a partner of APVI.

We first consider Lostocco’s argument that under Uniform State Court Rule 6.2 the court properly granted his motion since Ackerman’s response was filed five months late. Rule 6.2 provides: “[ujnless otherwise ordered by the judge, each party opposing a motion shall serve and file a response, reply memorandum, affidavits, or other responsive material not later than 30 days after service of the motion, or on the date of the hearing (if one is held) whichever occurs sooner.” Here, Lostocco filed his motion on January 11, 1993 and Ackerman’s response was not filed until July 15, 1993. Nevertheless, “[t]here is no such thing as a default summary judgment. By failing to respond to a motion for summary judgment, a party merely waives his right to present evidence in opposition to the motion. It does not automatically follow that the motion should be granted. A motion for summary judgment should not be granted unless it affirmatively appears from the pleadings and the evidence that the party so moving is entitled to prevail.” (Citations and punctuation omitted.) Wilson v. Valentine, 199 Ga. App. 244 (1) (404 SE2d 600) (1991).

Accordingly, assuming that the state court disregarded materials filed after the 30-day period expired, we must determine whether there was sufficient evidence to defeat Lostocco’s motion prior to the filing of Ackerman’s response. Clearly there was not sufficient evidence to withstand the motion for summary judgment. Although the partnership agreement indicates that Lostocco was the president of Jinna Management, there “was no evidence of fraud or abuse of the corporate form which would authorize piercing the corporate veil in this case.” Caton v. Haynes, 260 Ga. 204 (391 SE2d 107) (1990); Amason v. Whitehead, 186 Ga. App. 320 (367 SE2d 107) (1988). Lostocco was not a partner of Tripoint or of APVI, and there appears to be no basis for imposing liability on him. Accordingly, the grant of summary judgment was proper. We note that the state court’s conclusion would be warranted even in light of the materials Ackerman filed prior to the hearing.

2. In its second enumeration, Ackerman contends that the court erred in granting summary judgment to Lostocco on the conversion count of the complaint, which count was added by amendment on April 18, 1994. Citing DCA Architects v. American Bldg. Consultants, 203 Ga. App. 598 (2) (417 SE2d 386) (1992), Ackerman argues that because the conversion count was added to the complaint two days before the hearing, summary judgment should not have been granted. Moreover, it contends that Lostocco was personally liable for committing this tort. Ackerman bases this argument on the check from Airport Parking for $23,297.60 and the “cash call” letter by Lostocco. Ackerman also points to Aycock’s affidavit in which he states that although the money was paid in, Lostocco did not use it to pay Ackerman.

Again, we find no error in the court’s ruling. “Conversion consists of an unauthorized assumption and exercise of the right of ownership over personal property belonging to another, in hostility to his rights; an act of dominion over the personal property of another inconsistent with his rights; or an unauthorized appropriation.” DCA Architects, supra at 600. Here, we find no evidence that Lostocco was liable for conversion. There is no evidence before us that Lostocco’s dominion over the property was inconsistent with his rights thereto as president of Jinna. Although Ackerman argues that Aycock’s statements regarding Lostocco’s allocation of money for “other purposes” suggest wrongdoing, we find no such evidence in the record. See generally Faircloth v. A. L. Williams & Assoc., 206 Ga. App. 764 (426 SE2d 601) (1992).

We also find meritless Ackerman’s argument that summary judgment on the conversion claim was improper because it was not allowed a 30-day period within which to respond. Here, Lostocco argues that Ackerman consented at the hearing to arguing the merits of Count 4 of its complaint. There is no transcript of the hearing before us. In the absence of a transcript, we must assume that the trial court found Ackerman to have waived the 30-day period, and we must assume that the trial court acted correctly. Rasmussen v. Nodvin, 174 Ga. App. 203, 204 (1) (329 SE2d 541) (1985); compare Howell Mill/Collier Assoc. v. Pennypacker’s, Inc., 194 Ga. App. 169 (1) (390 SE2d 257) (1990).

3. In its third enumeration, Ackerman claims that the state court erred in granting summary judgment on Lostocco’s counterclaim for attorney fees and expenses of litigation. In its final enumeration, Ackerman argues that it was error for the state court to award attorney fees against it in the absence of any evidence regarding such fees.

Ackerman argues that the fact that it suggested a mutual dismissal of claims on March 13, 1989, ten months after filing the lawsuit, indicates that the trial court erred in granting summary judgment to Lostocco on his abusive litigation claim. Although Ackerman appears to concede that OCGA § 51-7-82 is not applicable to this suit, see Woodall v. Hayt, Hayt & Landau, 198 Ga. App. 624 (402 SE2d 359) (1991), citing that statute, it argues that an offer to dismiss ten months after the lawsuit was filed mandated that Lostocco’s counterclaim be dismissed. We disagree.

Decided February 7, 1995.

Robert H. McKnight, Jr., for appellant.

Raiford, Dixon & Thackston, Sheldon K. Fram, for appellee.

“Because there was no basis for the action against [Lostocco], and because the appellant could have made this determination with a minimum amount of diligence, we affirm the award of attorney fees. [Cit.]” Stancil v. Gwinnett County, 259 Ga. 507, 509 (1) (384 SE2d 666) (1989).

Ackerman argues that the evidence regarding the fees was insufficient. It claims that there was no proof that Lostocco incurred fees or paid fees, and that there was no proof of the value of the services rendered. There are several affidavits included in the record which supply the information which Ackerman contends is missing and these arguments are without merit.

Judgment affirmed.

Beasley, C. J., and Johnson, J., concur.


text:
    A94A2542.
    HAIRSTON v. SAVANNAH RIVER PLANT FEDERAL CREDIT UNION.
    (453 SE2d 811)
   Birdsong, Presiding Judge.

Hosea Hairston appeals the grant of summary judgment to the Savannah River Plant Federal Credit Union in his action against the credit union in which he attempts to cancel a note. His claim arose from the attempted purchase of a conversion van. After Hairston selected a van from Van City, a conversion van dealer, he applied for a loan from the credit union to purchase the van. Under his agreement with the credit union, the van was to be the security for the loan. After the loan was approved, Hairston signed an Advance Proceeds Check and Security Agreement and received a check for $23,336 made payable to Hairston and Van City. Hairston took the check to Van City, endorsed it and gave it to Van City. Although Van City negotiated the check, Hairston never received or took title to the van.

Subsequently, Hairston filed suit against Van City, another dealer that Hairston alleged was to supply the van to Van City, and the credit union. The action against the credit union sought discharge from the note and to recover from the credit union the payments he made on the note. Hairston asserted that the credit union was obligated to perfect the security interest in the van and that because it was negligent in failing to do so, he is discharged from his indebtedness to the credit union. Van City is in default in the suit and summary judgment was granted to the other dealer and to the credit union. This appeal concerns only the grant of summary judgment to the credit union. Held:

Decided February 7, 1995.

Allen TV. Johnson, Michael J. Brown, for appellant.

Hairston contends the trial court erred by finding that as a financial institution the credit union had no obligation to perfect a security interest for a secured loan. Hairston, however, has cited no authority in support of this contention. Although Hairston is a resident of South Carolina and apparently would have registered the van and created the security interest in that state, as the South Carolina law has not been established under OCGA § 9-11-43 (c), it is presumed that South Carolina law is the same as the relevant Georgia law. Abruzzino v. Farmers’ &c. Bank, 168 Ga. App. 639 (309 SE2d 911).

Perfection of security interests in motor vehicles is controlled by Article 3 of Title 40 of the Official Code of Georgia Annotated (OCGA § 40-3-50 et seq.), and the only way to create a security interest in a vehicle is under this chapter. Gen. Fin. Corp. v. Hester, 141 Ga. App. 28, 29 (232 SE2d 375). Under OCGA § 40-3-51 (1) the security interest in the vehicle is created by the owner. Thus, there is no legal support for Hairston’s contention that the credit union somehow could independently create a security interest in the van. Although the credit union could perfect the security interest by delivering the title to the State Revenue Commissioner, it could do so only after the security interest was created by submitting a title application. See OCGA § 40-3-51 (1), (2).

Moreover, Hairston’s basic premise is flawed because it rests upon the concept that he would be discharged from his debt to the credit union if the credit union had a perfected security interest in the van. This also is not the law in this state. The credit union was not limited to proceeding only against the property securing the note, but could collect from Hairston on the note. Sadler v. Trust Co. Bank of South Ga., 178 Ga. App. 871, 872 (344 SE2d 694); Homes of Tomorrow v. Fed. Deposit Ins. Corp., 149 Ga. App. 321 (254 SE2d 475).

Judgment affirmed.

Blackburn and Ruffin, JJ., concur.

Fulcher, Hagler, Reed, Hanks & Harper, J. Edward Enoch, Jr., Mark C. Wilby, Hull, Towill, Norman & Barrett, George R. Hall, All-good, Childs, Méhrhof & Millions, Richard R. Mehrhof, Jr., for appellee.


text:
    A95A0073.
    In the Interest of L. T. M., a child.
    (453 SE2d 815)
    Decided February 7, 1995.

      Lynn M. Finney-Haywood, for appellant.

      Charles H. Weston, District Attorney, Laura D. Hogue, Assistant District Attorney, for appellee.
   Blackburn, Judge.

Following a bench trial, the appellant, L. T. M., was adjudicated delinquent on the offense of aggravated assault and sentenced to serve no less than 18 months in restrictive custody. On appeal, L. T. M. asserts that the evidence was insufficient to support the verdict.

Several teenagers were gathered at L. T. M.’s home on the evening of May 1, 1994, when the victim, Willie Smith, told another teenager to search L. T. M., purportedly to locate a missing beeper. Appellant’s mother overheard this conversation and told Smith to leave the premises, contemporaneously attempting to push Smith out of the yard. Smith told her not to touch him, whereupon L. T. M.’s cousin intervened and a fight ensued. Observing this, L. T. M. ran at Smith with a knife in her hand saying, “Ain’t nobody going to be messing with my damn cousin.” At trial, Smith testified that L. T. M. had stabbed him and later apologized for doing so as he came home from the hospital. Another witness observed L. T. M. run up on the fight and swing at Smith, causing him to fall to the ground.

In light of the foregoing and all other evidence of record, we conclude that the judge was authorized under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), to find the appellant guilty beyond a reasonable doubt of the offense charged.

Judgment affirmed.

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


text:
    A95A0262.
    RIMES TRACTOR & EQUIPMENT, INC. v. AGRICREDIT ACCEPTANCE CORPORATION.
    (454 SE2d 564)
   Blackburn, Judge.

This is an appeal from the trial court’s grant of partial summary judgment in favor of appellee/plaintiff Agricredit Acceptance Corporation (AAC) in this breach of contract action.

Appellant/defendant Rimes Tractor & Equipment, Inc. (Rimes) is a retailer of construction and forest equipment. AAC is in the business of financing the purchase of agriculture and forestry equipment through the use of contract assignments. On April 16, 1990, Altamaha Timber, Inc. (Altamaha) entered into a retail installment contract and security agreement with Rimes for the purchase of a Barko-160 loader, and conveyed a security interest in the loader to Rimes as collateral. Altamaha made a cash down payment of $5,000 on the $35,000 purchase price of the loader and financed the remaining balance. On the same day, for good and valuable consideration, Rimes assigned its interest in the contract to AAC.

The assignment agreement executed by Rimes’ president, Joseph Edward Rimes, specifically provided that “[i]n the event [Altamaha] defaults in the performance of any obligation under the Contract, AAC may reassign to [Rimes] and [Rimes] shall accept the Contract and possession of any equipment secured thereby which AAC may have repossessed and pay AAC a sum equal to the then due indebtedness. . . . The inability or election of AAC not to repossess equipment secured by the Contract shall not relieve [Rimes] from liability hereunder. Such indebtedness shall be immediately payable by [Rimes] to AAC in cash or by a note containing terms acceptable to AAC payable to AAC or its nominee.” The assignment agreement did not indicate that the reassignment had to be in writing and did not place any time limits on reassignment. In his affidavit and in his deposition testimony, Joseph Rimes admitted that he executed the assignment agreement in issue to facilitate the sale of Altamaha’s retail installment contract.

In June 1991, Altamaha defaulted under the terms of the retail installment contract and voluntarily returned the equipment to Rimes. In his affidavit, AAC’s regional finance manager averred that on July 1, 1991, he contacted Joseph Rimes by telephone, and attempted to reassign the retail installment contract to Rimes by requesting that Rimes repurchase the contract by paying the outstanding indebtedness. Joseph Rimes refused to do so and repudiated the terms of the assignment agreement. Richard Garman, area finance manager for AAC, deposed that he also contacted Joseph Rimes concerning the reassignment agreement and requested that Rimes repurchase the contract. In a letter of July 31, 1991, Rimes’ counsel further disputed the terms of the assignment agreement. Consequently, this action ensued.

Rimes responded to the complaint and admitted that the retail contract was assigned to AAC, but denied that the assignment agreement provided for the reassignment of the contract. Rimes also asserted a counterclaim for repairs made upon the loader since it had been in its possession, and for reasonable fees for storage of the loader. Pursuant to the trial court’s order, Rimes sold the equipment for $23,000, and paid the proceeds of the sale into the court’s registry. The funds were later paid to AAC. After AAC moved the court for summary judgment in its favor, Rimes filed a cross-motion for summary judgment, asserting that AAC never attempted to reassign the contract.

In granting the motion for partial summary judgment in favor of AAC, the trial court concluded that under the assignment agreement, AAC could orally exercise its right to reassign the contract since the assignment agreement did not require that reassignment be made in writing or that reassignment occur within a certain time period. The court further concluded that counsel’s July 31, 1991 letter repudiating the terms of the assignment agreement made a formal written reassignment futile.

“The construction of a contract is a question of law for the trial court. The cardinal rule of construction is to ascertain the intention of the parties. If that intention [is] clear, and it contravenes no rule of law, and sufficient words [are] used to arrive at the intention, it shall be enforced, irrespective of all technical or arbitrary rules of construction.” (Citations and punctuation omitted.) Peterson v. First Clayton Bank &c. Co., 214 Ga. App. 94, 97 (447 SE2d 63) (1994). In the case at bar, the language in the assignment agreement clearly provides that AAC had an option to reassign the contract to Rimes in the event of the buyer’s default, that Rimes had to accept said reassignment, and that Rimes had to pay to AAC a sum equal to the outstanding indebtedness due at that time. The evidence of record indisputably shows that AAC made such a reassignment, albeit orally, and Rimes, contrary to the agreement, refused to accept the reassignment. As the trial court correctly concluded, the assignment agreement does not provide that reassignment had to be in writing or that reassignment had to be effectuated within a certain period of time.

Rimes argues that AAC is estopped from exercising its rights under the contract because of its failure to do so when the contract initially went into default. However, Rimes did not raise this estoppel argument in its answer or in its motion for summary judgment, but raised it for the first time in its supplemental brief in support of its motion for summary judgment, over three months after the filing of the summary judgment motion. Estoppel is an affirmative defense and must be set forth affirmatively in a responsive pleading or in a motion for summary judgment. See OCGA § 9-11-8; Albany Oil Mill v. Sumter EMC, 212 Ga. App. 242 (1) (441 SE2d 524) (1994). Accordingly, Rimes waived this defense by untimely asserting it in its supplemental brief. See Sawyer v. C & S Nat. Bank, 164 Ga. App. 177, 183 (296 SE2d 134) (1982). Moreover, the evidence of record does not support Rimes’ assertions. Albany Oil Mill, supra; Sawyer, supra. In addition, Rimes’ argument that AAC waived its right to reassign the contract by claiming an ownership interest in the loader after it was returned by the buyer is equally unsupported by the evidence of record. On the contrary, AAC had a valid security interest in the loader as assignee of the retail installment contract prior to its attempt to reassign the contract to Rimes.

Decided February 7, 1995.

Kris Knox, for appellant.

Thompson, OBrien, Kemp & Nasuti, R. Michael Thompson, Joseph T. Brasher, for appellee.

Consequently, Rimes is liable to AAC under the clear and unambiguous terms of the assignment agreement, and the trial court did not err in granting partial summary judgment to AAC.

Judgment affirmed.

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


text:
    A95A0711.
    CASTRO v. HIDDEN VILLAGE APARTMENTS.
    (453 SE2d 815)
   McMurray, Presiding Judge.

Plaintiff Hidden Village Apartments initiated this action for a dispossessory warrant, alleging that defendant Juli Ann Castro “fails to pay rent now due . . .” and seeking a judgment for “past due rent in the amount of $435.00 for October [1994].” Defendant answered in writing and claimed that the landlord’s failure to make repairs has lowered the value of her lease. After a bench trial, the State Court of DeKalb County issued a writ of possession and entered judgment on behalf of the plaintiff in the amount of $230. From this judgment defendant brings this direct appeal. Held:

OCGA § 5-6-35 (a) (3) requires an application for discretionary appeal “from cases involving distress or dispossessory warrants in which the only issue to be resolved is the amount of rent due and such amount is $2,500.00 or less[.]” In the case sub judice, “the appropriate appellate procedure was not followed and the [direct] appeal must be dismissed. Walker v. City of Macon, 166 Ga. App. 228 (303 SE2d 776) (1983).” Nixon v. A. F. M., Inc., 176 Ga. App. 546, 547 (336 SE2d 382).

Decided February 7, 1995.

Juli A. Castro, pro se.

Hidden Village Apartments, pro se.

Appeal dismissed.

Andrews and Blackburn, JJ., concur.


text:
    A95A0097.
    MEINKEN v. PIEDMONT HOSPITAL, INC.
    (454 SE2d 147)
   Blackburn, Judge.

This is an appeal from the trial court’s grant of a motion for summary judgment filed by appellee Piedmont Hospital, Inc. in this negligence action.

On January 30, 1991, at approximately 2:00 a.m., the appellant, Gary S. Meinken, drove his wife to Piedmont Hospital, Inc. in anticipation of the arrival of their baby. After Meinken parked in the parking area adjacent to the hospital’s emergency room, he entered the emergency facility and informed hospital personnel that his wife was in labor in the backseat of the family’s vehicle which was parked outside. A hospital attendant whose exact identity is unknown provided Meinken with a wheelchair and instructed him to bring his wife into the hospital in the wheelchair because the hospital did not have any attendants available at the time. As Meinken lifted his wife from the automobile into the wheelchair, he injured his back.

Meinken commenced the instant action asserting that his back injury was proximately caused by the hospital’s negligence. Specifically, he alleged that the hospital owed a duty to ordinary members of the public to provide emergency services in a proper and reasonable manner in and around the designated emergency area, and breached this duty by failing to provide trained personnel to remove his wife from the vehicle and transport her to the hospital. In granting the motion for summary judgment, the trial court held that summary judgment was warranted because Meinken had not shown that the hospital owed any duty of care to him.

“A cause of action for negligence requires (1) a legal duty to conform to a standard of conduct raised by the law for the protection of others against unreasonable risks of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and, (4) some loss or damage flowing to the plaintiffs legally protected interest as a result of the alleged breach of the legal duty. . . . One of the problems arising out of the question of duty is the parties’ status and their relation to each other. Does the defendant owe the duty to this plaintiff? If a defendant owes no legal duty to the plaintiff, there is no cause of action in negligence. What duty a defendant owed a plaintiff is a policy problem — a matter of law.” (Citations and punctuation omitted.) Dupree v. Keller Indus., 199 Ga. App. 138, 141 (404 SE2d 291) (1991).

Decided January 27, 1995

Reconsideration denied February 8, 1995

Saia, Richardson & Meinken, Joseph J. Saia, for appellant.

Long, Weinberg, Ansley & Wheeler, J. Calhoun Harris, Jr., for appellee.

Generally, a hospital owes a duty of reasonable care to its patients and is liable for those injuries negligently inflicted upon its patients by its employees. Parker v. Hosp. Auth. of the City of Bainbridge & Decatur County, 214 Ga. App. 113 (2) (446 SE2d 766) (1994). In the present action, Meinken was not a patient of the hospital at the time that he sustained his back injury but merely a visitor assisting his wife. Assuming arguendo that Meinken was an invitee, a hospital’s liability to an invitee only arises when the hospital, as premise owner, has superior knowledge of a perilous instrumentality or condition which proximately causes injuries to the invitee. See Hosp. Auth. of Ben Hill County v. Bostic, 198 Ga. App. 500 (402 SE2d 103) (1991). Such is not the case based upon the facts presented. Meinken has cited no authority for the proposition that a hospital is liable for injuries received by a patient’s relative while assisting the patient and our research has revealed none. Under these circumstances, we cannot say the hospital owed any duty of care to Meinken at the time that he sustained his injuries under general common-law principles of negligence. Consequently, the trial court did not err in granting summary judgment in favor of Piedmont Hospital, Inc. in this action.

Judgment affirmed.

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


text:
    A95A0444.
    PUGH v. THE STATE.
    (454 SE2d 538)
   Blackburn, Judge.

The appellant, Reginald Regal Pugh, appeals his conviction of trafficking more than 400 grams of cocaine in violation of the Georgia Controlled Substances Act.

1. Initially, Pugh maintains that the trial court erred in denying his motion for directed verdict because the state did not prove beyond a reasonable doubt that the eighteen bags of cocaine contained a purity of more than ten percent. Specifically, he challenges the method used by the state’s expert in testing the purity of the cocaine. The state’s expert witness, a forensic chemist trained in drug analysis, testified that she took a sample from each bag, combined them, and used the gas chromatograph to determine the purity of the sample. Based upon this test, she found the sample was 59 percent pure.

As this court recognized in Williams v. State, 199 Ga. App. 566, 569 (2) (405 SE2d 716) (1991), “failure to conduct an ‘exact test’ to determine the purity of the mixture down to a specific percentage of cocaine would affect only the weight and not the admissibility of the expert’s opinion regarding the purity thereof. ‘The weight to be given the expert’s opinion is, in all cases, a question for the jury.’ We will not invade the province of the jury merely because it must have determined the expert’s testimony was credible in order to arrive at its verdict of guilty of ‘the offense of trafficking cocaine,’ as averred.” (Citation omitted.) Accordingly, since there was evidence on the purity of the mixture of cocaine seized, the trial court did not err in denying the directed verdict on this basis.

2. Next, Pugh maintains that the trial court erred by failing to grant his extraordinary motion for new trial. In the motion, Bennett maintains that an investigator from the district attorney’s office aided the bailiffs in taking a piece of evidence in the jury room. However, at the hearing on the motion, the investigator testified that he assisted the bailiff with a floor jack because the bailiff had a bad back, and placed the jack at the entrance to the jury room and kicked it with his left foot. He did not walk into the jury room, did not speak to or communicate with any of the jurors. The jurors were questioned at the hearing and they all testified that the manner in which the evidence was brought into the room did not affect their deliberations.

“It has long been recognized by the courts of this state that the guarantee of a fair and impartial jury is a central safeguard to a fair trial in our system of criminal justice. There is a presumption of prejudice to the defendant when an irregularity in the conduct of [state personnel] is shown and the burden is on the prosecution to prove beyond a reasonable doubt that no harm has occurred.” (Citations omitted.) Lamons v. State, 255 Ga. 511, 512 (340 SE2d 183) (1986). We agree with the trial court that the state has met its burden in showing that Pugh was not harmed by the investigator’s conduct. Many of the members of the jury could not remember who placed the evidence in the room.

3. Lastly, Pugh asserts that the trial court erred in denying his extraordinary motion for new trial based upon communication that a bailiff had with jurors. The bailiff provided the jurors with general information such as informing them to select a foreman, and that if they had any questions for the judge that they needed to write them down on a piece of paper. He also informed them where the foreman sits. He did not suggest to them which way they should vote or whether Pugh was innocent or guilty. There is no evidence that any information was provided other than general information on court procedure. “These circumstances warrant the conclusion that appellant suffered no harm by virtue of the alleged out-of-court contact, beyond a reasonable doubt.” Anderson v. State, 203 Ga. App. 118, 122-123 (416 SE2d 309) (1992). See also Lamons, supra.

Decided January 26, 1995

Reconsideration denied February 8, 1995

W. Donald Patten, Jr., for appellant.

Robert E. Keller, District Attorney, Mary D. Hanks, Assistant District Attorney, for appellee.

Judgment affirmed.

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


author: Ruffin, Judge.

text:
    A94A2113.
    LORIO v. THE STATE.
    (454 SE2d 164)
   Ruffin, Judge.

Appellant, John Lorio, was convicted of driving under the influence of alcohol, failure to maintain lane and driving without a license.

Lorio’s sole enumeration of error is that the trial court erred in allowing the police officer to testify about Lorio’s numerical score on the Horizontal Gaze and Nystagmus Test (“HGN”). Lorio contends the HGN test is merely a field sobriety test with results that are either positive or negative and that the admission of the numerical score was highly prejudicial. We disagree.

This court has previously ruled that the HGN has reached a state of verifiable certainty in the scientific community and is admissible “to show a symptom indicative of, though not determinative of, the presence of alcohol.” Manley v. State, 206 Ga. App. 281, 282 (424 SE2d 818) (1992). Accord Hassell v. State, 212 Ga. App. 432, 435 (3) (d) (442 SE2d 261) (1994). At trial, the arresting officer testified that while administering the HGN, three “clues” or signs are looked for in each eye which might indicate the presence of alcohol, resulting in a total of six possible points against the driver. The officer testified that he observed all six signs in Lorio, thus resulting in a failing score. The officer did no more than explain the results of an admissible test, and we see no difference between this situation and an officer testifying to the numerical “score” from the driver’s intoximeter test, rather than being constrained to testify simply that the intoximeter result was positive.

Decided February 8, 1995.

Moore & Davidson, W. Keith Davidson, for appellant.

Gerald N. Blaney, Jr., Solicitor, Richard E. Thomas, Assistant Solicitor, for appellee.

Further, any potential prejudice from the admission of the score was minimal in light of the other evidence against Lorio. See Manley, supra. The officer testified that prior to stopping Lorio’s car, it crossed the centerline at least five times. While the officer was talking to Lorio, he noticed that Lorio’s speech was slow and slurred, that his eyes were bloodshot and glazed and that he had a strong odor of alcohol about him. In addition, Lorio was swaying and having trouble maintaining his balance. When asked to recite the alphabet, he transposed two letters and stopped without finishing at the letter “T.” He also had difficulty with the “one leg stand” test, another field sobriety test which tests motor skills. Finally, the results of Lorio’s intoximeter test were .08 at 2:41 in the morning. Based on the foregoing, the trial court did not err in allowing the numerical score from the HGN.

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.


text:
    A94A2711.
    WELCH v. THE STATE.
    (454 SE2d 566)
   Ruffin, Judge.

Marvin Welch was convicted of two counts of aggravated assault and two counts of possession of a firearm during the commission of a crime. He appeals from the judgment of conviction and sentence, enumerating as error the sufficiency of the evidence.

Although the testimony varied widely, the material facts, viewed in a light to support the verdict, reveal that Welch and Bennie Lee King were co-workers and neighbors. One evening, while they were arguing in front of King’s house, the victim came from his aunt’s house across the street and began arguing with Welch. Welch testified that during their exchange, the victim threatened him and made gestures toward the trunk and driver’s seat of his car as if he were looking for a weapon. The victim then drove away but returned an hour later and parked in front of King’s house. As King and the victim stood on King’s front porch, Welch appeared from his home with a rifle, screaming that he was going to kill King, the victim or both. He shot at both men and wounded the victim in the shoulder. King and the victim retreated to King’s house, and the gunfire ceased. After several minutes, when it appeared Welch had left the scene, the victim attempted to leave King’s house to get medical attention. As the victim came from the house, Welch reappeared from behind a truck or a chicken coop and resumed shooting. Under fire, the victim managed to get to his car and drive away.

Decided February 8, 1995.

Sam J. Gardner, Jr., for appellant.

H. Lamar Cole, District Attorney, A. Scott Gunn, Assistant District Attorney, for appellee.

Welch contends there was one continuous assault on the victim and the evidence does not support two aggravated assault convictions and two weapon possession convictions. We disagree. Applying the “actual evidence” test, the second assault and weapon possession charges did not merge into the former charges because the State did not use all of the evidence in proving Welch committed the first assault. See Montes v. State, 262 Ga. 473 (1) (421 SE2d 710) (1992); Grace v. State, 262 Ga. 746 (2) (425 SE2d 865) (1993). Furthermore, it was not alleged that each of a series of shots fired in quick succession constituted a “renewed assault.” See Montes, supra at 474-475. Rather, two separate assaults were punctuated by several minutes in which Welch fired no shots; thus, the jury was authorized to find that the first assault was “completed” before Welch resumed shooting. Compare Davis v. State, 186 Ga. App. 491 (2) (367 SE2d 884) (1988).

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.


text:
    A95A0575.
    In the Interest of K. S. K., a child.
    (454 SE2d 165)
   Blackburn, Judge.

The appellant, K. S. K., a juvenile, appeals the order of the Cobb County Juvenile Court transferring the case to superior court for prosecution pursuant to OCGA § 15-11-39.

On February 13, 1994, K. S. K. was involved in a multiple vehicle collision which resulted in three deaths and serious injuries to other individuals while traveling as a group on Mableton Parkway with two other cars. K. S. K. had consumed alcohol and marijuana prior to the collision. K. S. K. lost control of the vehicle as he attempted to pass a vehicle within the group at the speed of 90 mph. At the time of the incident, K. S. K. was 16 years old. The instant petition was subsequently filed charging him alternatively with six counts of homicide by vehicle in the first degree, and one count each of speeding, reckless driving, driving on roadways laned for traffic, operating a motor vehicle without a valid license plate, and driving under the influence of drugs.

1. Initially, K. S. K. maintains that the trial court erred in overruling his objections to the State’s use of prior incidents as similar transactions because the transactions were not substantially similar to the subject occurrence. The trial court limited the admission of evidence on K. S. K.’s prior offenses of underage possession of alcohol, possession of marijuana, and unauthorized use of his parent’s vehicle, solely to the issue of his amenability to treatment in the juvenile system and they were properly admitted for that limited purpose. The record does not show that K. S. K. objected to the trial court’s use of the prior offenses on any other ground. Hence, this enumeration presents nothing for appellate review. “An objection on a specific ground at trial waives any objection to that evidence on other grounds on appeal.” (Citations and punctuation omitted.) Elrod v. State, 208 Ga. App. 787 (1) (432 SE2d 808) (1993).

2. K. S. K. further asserts that the trial court abused its discretion in transferring the case to the superior court.

OCGA § 15-11-39 (a) provides that a trial court may transfer an offense committed by a juvenile to the appropriate court having jurisdiction of the offense if the court in its discretion determines that there are reasonable grounds to believe that the child committed the delinquent act alleged, the child is not committable to an institution for the mentally retarded or mentally ill, the interest of the child and the community require that the child be placed under legal restraint and the transfer be made, and the child is at least 15 years of age at the time of the delinquent conduct. “Under OCGA § 15-11-39 it is the duty of the juvenile court to determine whether there are reasonable grounds to believe that the criteria enumerated and subsumed by Subsection (a), Par. (3), have been established. The function of the appellate court is limited to ascertaining whether there was some evidence to support the juvenile court’s determination. Determinations of a juvenile court made on an exercise of discretion, if based upon evidence, will not be controlled by this court.” (Citation and punctuation omitted.) In re E. W., 256 Ga. 681, 683 (353 SE2d 175) (1987).

It is undisputed that K. S. K. was 16 years old at the time of the collision and K. S. K.’s counsel and the prosecutor stipulated that the minor was not committable to an institution for the mentally retarded or mentally ill. It is also undisputed that substantial evidence was presented that K. S. K. committed the delinquent acts alleged. The only requirement at issue was whether the interest of the child and the community required legal restraint and that the transfer be made. See OCGA § 15-11-39 (a) (3) (C).

In this case, the trial court’s order contains specific findings of fact as to why K. S. K. is not amenable to prosecution in the juvenile system and these findings are supported by the evidence produced at the hearing. Particularly, the evidence shows that K. S. K. has previously taken his parents’ automobile without their permission and was involved in a collision while speeding with another vehicle, in 1992, took a soccer ball from two youths using a toy gun, he frequently consumes alcohol, and admittedly smokes marijuana on a regular basis. Because of K. S. K.’s habitual acts of delinquency and the gravity of the offenses involved in the present petition, the community’s interest in treating him as an adult outweighed his interest in remaining in the juvenile system sufficient to warrant the transfer. See State v. M. M., 259 Ga. 637 (3) (386 SE2d 35) (1989).

Decided February 8, 1995.

Charles W. Lane, for appellant.

Thomas J. Charron, District Attorney, Richard Edwards, Assistant District Attorney, for appellee.

Judgment affirmed.

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


text:
    A94A2094.
    DAVENPORT v. THE STATE.
    (454 SE2d 536)
   Blackburn, Judge.

Following a jury trial, the appellant, David L. Davenport, pro se, was found guilty of the offense of taking lost or mislaid property, and appeals such conviction.

1. Davenport first enumerates as error, the trial court’s failure to establish that he knowingly, voluntarily, and intelligently waived his right to counsel in electing to proceed pro se.

“A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused. The trial judge has the responsibility of determining whether the accused has intelligently waived his right to counsel. A strict standard must be applied to waiver of counsel and that constitutional waiver requires more than a comprehension of rights. There must also be a relinquishment of rights.” (Citations and punctuation omitted.) Williams v. State, 192 Ga. App. 317, 318 (385 SE2d 877) (1989).

The record shows that Davenport expressed the desire to represent himself twice. On the first occasion, February 16,1993, the trial court warned Davenport of the complexities of the criminal process and offered to appoint counsel for him in the event he lacked the resources to hire counsel individually. Likewise, the district attorney urged the benefits of experienced counsel on him, pointing out that representation by counsel would not foreclose his ability to testify on his own behalf. Notwithstanding the foregoing, Davenport told the trial court that he was an educated person and wished to represent himself. A second judge asked Davenport whether he wished to proceed pro se before jury selection began on September 20, 1993. Davenport again affirmed the desire to proceed alone. Nothing in the record suggests that Davenport lacked the capacity to decide to proceed pro se and no such claim has been made on appeal. Accordingly, we find this assignment of error to be without merit.

2. Davenport next enumerates that the trial court erred by adjudging him in contempt of court while in the presence of the jury. We agree, but we find it harmless in the circumstances of this case. Appellant, who has served the sentence imposed for the contempt finding, does not appeal same and it will not be addressed herein.

While the imposition of summary contempt and punishment therefore is not regarded with favor, whether exercised immediately or after trial, Sacher v. United States, 343 U. S. 1, 8-11 (72 SC 451, 96 LE 717) (1952), it is particularly tenuous in the presence of a jury since “[t]o summon a [party] before the bench and pronounce him guilty of contempt is not unlikely to prejudice [said party].” Id. at 10. In the instant circumstances, the trial court adjudged Davenport to be in contempt of court on four occasions for “testifying” in lieu of asking questions. The third and fourth of these holdings occurred in the presence of the jury during Davenport’s cross-examination of the bank vice-president.

The jury should have been excused during the exchange between the judge and the pro se defendant. Under the facts of this case, however, the error was harmless, as the evidence strongly supported the verdict and it is unlikely that the contempt finding affected the result.

3. Davenport last enumerates as error the insufficiency of the evidence to support the verdict.

On December 12, 1991, Davenport deposited $95 in his checking account at the Wayne National Bank located in Jesup, Georgia. The bank, however, erroneously credited his account with a deposit in the amount of $9,500. After confirming the $9,500 amount in his account, Davenport promptly withdrew the money and closed his account. He told the bank that he had made the $9,500 deposit with a check from his grandmother. In discussing the matter with the bank after it discovered its error, Davenport admitted that the deposit had not been a check from his grandmother and that the money was not his. Davenport offered to repay the money, and the bank closed the account with a negative balance of $1,751.70. Charges against Davenport were then brought when he failed to repay the bank.

Decided January 24, 1995

Reconsideration denied February 9, 1995.

Gordon & Hires, Ray S. Gordon, Jr., for appellant.

David L. Davenport, pro se.

Glenn Thomas, Jr., District Attorney, James L. Corbett, Assistant District Attorney, for appellee.

We have reviewed all evidence of record and conclude that the jury was authorized under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), to find the appellant guilty beyond a reasonable doubt.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.


text:
    A93A1571.
    BUNDRAGE v. STANDARD GUARANTY INSURANCE COMPANY.
    (453 SE2d 511)
    Decided February 9, 1995.

      Chambers, Mabry, McClelland & Brooks, Robert M. Darroch, Daniel N. Meyer, for appellant.

      Eason, Kennedy & Associates, Richard B. Eason, Jr., McReyn

      olds & Welch, Aubrey T. Villines, Jr., for appellee.
   Birdsong, Presiding Judge.

In Standard Guaranty Ins. Co. v. Bundrage, 264 Ga. 632 (452 SE2d 474), the Supreme Court reversed the judgment of this court in Bundrage v. Standard Guaranty Ins. Co., 211 Ga. App. 288 (439 SE2d 92). Therefore, our judgment in this appeal is vacated and the judgment of the Supreme Court is made the judgment of this court. Accordingly, the judgment of the trial court in granting summary judgment to Standard Guaranty Insurance Company is reversed and the case remanded to the trial court for further proceedings in accordance with Standard Guaranty Ins. Co. v. Bundrage, supra, and Allianz Life Ins. Co. v. Riedl, 264 Ga. 395 (444 SE2d 736).

Judgment reversed and case remanded.

Pope, P. J., and Andrews, J., concur.


author: Smith, Judge.

text:
    A94A2474.
    DEPARTMENT OF TRANSPORTATION v. HARDAWAY COMPANY.
    (454 SE2d 167)
   Smith, Judge.

The Hardaway Company, the general contractor on a highway construction project for the Georgia Department of Transportation (“DOT”), brought this action seeking damages arising out of its work on the project. A discovery dispute arose concerning the production of documents in the personal possession of a DOT employee. After the employee damaged and discarded the documents, he reconsidered his actions, retrieved the documents, and provided them to DOT’s counsel for production to Hardaway. Two disputes then arose concerning, first, the cost of reconstruction of the damaged documents, and, second, the inadvertent production of several pages of a “discrepancy log” prepared by DOT in response to a co-defendant’s claim. The trial court ordered DOT to pay a total of $24,000 for reconstruction of the documents, and ordered the production of the remainder of the “discrepancy log.” DOT appeals from this order.

1. Hardaway contends this appeal should be dismissed for failure to follow the interlocutory application procedures of OCGA § 5-6-34 (b). However, the trial court’s order falls within the “collateral order” exception to the final judgment rule established in Scroggins v. Edmondson, 250 Ga. 430, 431-432 (1) (c) (297 SE2d 469) (1982). Under this three-part test, a collateral order is directly appealable if it (1) completely and conclusively resolves the issue appealed; (2) concerns an issue which is “substantially separate” from the basic issues presented in the complaint; and (3) would result in the loss of an important right and is “effectively unreviewable on appeal.” Id. The trial court’s order compelling production of material alleged to be protected work product meets these requirements. It completely resolves the discovery issues, which are substantially separate from the main claim. Moreover, once produced, the material cannot be returned to its previous confidential state, and an order compelling its production would be effectively unreviewable after the litigation has concluded. In contrast, the assessment of costs, expenses, or attorney fees does not meet these requirements, because an erroneous or excessive payment may be refunded at a later time. However, this portion of the trial court’s order is appealable pursuant to OCGA § 5-6-34 (d). See Costanzo v. Jones, 200 Ga. App. 806, 811 (3) (409 SE2d 686) (1991).

2. DOT contends the “discrepancy log” prepared by one of its employees as an analysis of a co-defendant’s claim is protected work product because it was produced in anticipation of litigation.

OCGA § 9-11-26 (b) (3) provides that “a party may obtain discovery of documents and tangible things otherwise discoverable . . . and prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative (including his attorney, consultant, surety, indemnitor, insurer, or agent) only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means.” A trio of recent decisions has established a definition of material “prepared in anticipation of litigation.” In essence, material obtained or collected by a party is protected from discovery as work product even “before claim is instituted” if “reasonable grounds exist to believe that litigation is probable. ...” Lowe’s of Ga. v. Webb, 180 Ga. App. 755, 757 (350 SE2d 292) (1986). The material need not contain the mental impressions, conclusions, opinions, or legal theories of the preparer, but need only have been prepared in anticipation of litigation. Tobacco Road v. Callaghan, 174 Ga. App. 539 (330 SE2d 768) (1985).

In determining the existence of reasonable grounds to anticipate probable litigation, the decisions have focused on the conduct of the potential claimant and steps taken to respond to that conduct. In Warmack v. Mini-Skools, Ltd., 164 Ga. App. 737 (297 SE2d 365) (1982), an inquiry by a potential claimant regarding the existence of accidental insurance coverage was a sufficient ground for belief that litigation was probable. The witness statements and notes taken by a claims adjuster after the inquiry were held to be material prepared in anticipation of litigation. Warmack, 164 Ga. App. at 739. Where a potential claimant verbally indicated that a party “had not heard the last of the matter” and “would pay,” and the party as a result took the written and oral statements of witnesses, the statements were protected. Webb, 180 Ga. App. at 757.

Hardaway contends these decisions are inapplicable because they involve personal injury claims, while this case arose in contract or quantum meruit. While Warmack and Webb involve tort claims for personal injury, the nature of the claim in Tobacco Road is not stated, and we see no basis for a distinction on this ground. Whether a claim sounds in tort or contract is irrelevant to the issue of whether a party has reasonable grounds to believe that litigation is probable.

For example, the defendant store in Webb routinely investigated every incident involving injury to a customer. “In most cases, the store owner knows only an injury has occurred and whether any ‘claim’ or ‘litigation’ will result surely could be nothing more than speculation until the demands of the injured visitor are made known.” Webb, 180 Ga. App. at 757. However, the incident at issue was taken out of the category of a mere routine investigation by the customer’s statement that the store “would hear more” and “would pay.” Id. Similarly, the routine administration of a contract would give no reason to anticipate litigation, but notice of a contract dispute or claim outside the terms of the contract could provide reasonable grounds to believe that litigation is probable. We must determine whether DOT has met its burden of showing such reasonable grounds as a matter of law.

The “discrepancy log” was prepared in response to a claim for extra work submitted by Parsons, Brinckerhoff, Quade & Douglas, Inc., a consultant and co-defendant in this action. Employees of DOT testified at length regarding the unusual nature of this claim. The claim was for $834,798, an unusually large amount, and the type of claim was also unusual. One employee of DOT testified he had seen fewer than ten such claims since 1964. The amount was disputed, as was authorization for some of the extra work claimed. A DOT official not ordinarily involved in handling such claims was put in charge of investigating the claim. He had never seen a consultant claim of this size or type in his 30 years with DOT. He ordered the preparation of the “discrepancy log” to assist him in evaluating and responding to the claim. A DOT employee reviewed the project plans for revision dates and identified work based upon authorized revisions and that which appeared unauthorized. The material was not handled in the usual channels, but by direct communication between the supervisor and his assistant, bypassing the secretarial staff. This procedure was unusual in the supervisor’s experience, and according to his assistant was a “unique situation” and not part of his regular duties. Asked if he anticipated litigation, the supervisor testified: “by the nature of the claim and magnitude of the monies involved, I was certainly thinking that they might.” Although he did not “know that Parsons has ever threatened litigation as such ... it was certainly in my mind that they might and probably would.”

Employing the analysis established in Warmack and Webb, there is uncontradicted evidence of a claim presented for extra work outside the scope of the written contract. The claim itself was unusually large, in an amount unheard of by one witness in thirty years of employment with DOT. At least part of the claim appeared unauthorized. In response, a person not ordinarily involved in such matters investigated and negotiated the claim. In preparing for his task, he ordered the making of a report or log from contract documents. In short, a written claim and demand for payment outside the terms of the contract was presented, and in response to that claim DOT employees created the materials at issue. This showing is sufficient as a matter of law to meet DOT’s burden under OCGA § 9-11-26 (b) (3).

However, this does not end the inquiry. The trial court did not apply the second step of the prescribed procedure for determining the discoverability of protected materials under OCGA § 9-11-26 (b) (3) and did not determine whether Hardaway can show a substantial need and undue hardship in the development by other means of the information sought. Webb, 180 Ga. App. at 758. We therefore vacate the trial court’s order compelling production of the discrepancy log and remand to the trial court for further proceedings.

3. DOT also enumerates as error the trial court’s award of reimbursement for the cost of reconstructing 502 pages of documents in the amount of $12,000, in addition to $12,000 already paid by DOT, for a total cost of $24,000.

After the employee retrieved the torn documents, he delivered them to DOT’s attorney and spent “a couple of hours” reassembling them before they were produced to Hardaway. Hardaway retained Action Testing to reconstruct the documents. Action Testing proposed the expenditure of 1,300 man-hours within a ten-day period, with forensic chemists, forensic technicians, and a scanning electron microscope. Ultimately Action Testing submitted a bill for the work of sixteen technicians and two engineers working in twelve-hour shifts over the course of six days, for a total of $58,080 but applying a “cap” of $24,000.

The trial court found no misconduct on the part of DOT or its employees, and DOT did not refuse to comply with an order compelling production. The award of expenses therefore must have been made pursuant to OCGA § 9-11-37 (a) (4), as “the reasonable expenses incurred in obtaining the order.” See Orkin Exterm. Co. v. McIntosh, 215 Ga. App. 587 (452 SE2d 159) (1994).

This Code section requires reimbursement only of “reasonable” expenses. Decisions interpreting similar statutes likewise require a showing of reasonableness. See, e.g., Southern Cellular Telecom v. Banks, 209 Ga. App. 401, 402 (433 SE2d 606) (1993) (award of attorney fees must be supported by showing of reasonableness); American Reliable Ins. Co. v. Woodward, 143 Ga. App. 652, 654 (3) (239 SE2d 543) (1977) (award of “reasonable attorney’s fees” under OCGA § 33-4-6 must be “within the range of evidence as to the reasonable value thereof’). This determination is a matter for the discretion of the trial court. See, e.g., Contract Harvesters v. Clark, 211 Ga. App. 297, 299 (2) (439 SE2d 30) (1993) (“reasonable and necessary attorney’s fees and expenses” under OCGA § 9-15-14 (f)). Here, the trial court expressed some doubt regarding the expenses, stating it was “inclined to agree that the cost appears large.” However, the trial court made no determination of reasonableness, concluding that DOT should pay the entire charge because “the fact remains that an employee of GDOT necessitated the reconstruction.” While the trial court’s decision to require DOT to pay a reasonable cost of reconstruction is certainly justified on this basis, the trial court did not address the Code requirement that the expenses be “reasonable,” an issue which was in substantial dispute. The DOT retained a document reconstruction expert who testified the work should have taken approximately 70 hours, or $3,360 at Action Testing’s hourly rate. Even the factual extent of the work performed was hotly disputed by the parties.

In the assessment of discovery costs, a standard of reasonableness, enforced by the trial court, is a practical necessity. Particularly where, as here, the expenses at issue apparently have not yet been paid by the party incurring them, the absence of such a standard eliminates any incentive to be frugal or even reasonable in charges that will be paid by the opposing party. The trial court must hold the parties before it to the statutory requirements and make a determination of reasonableness.

Accordingly, the judgment will be reversed and the record remanded to the trial court for its findings on the second phase of the discovery of protected trial preparation materials and on a reasonable cost for document restoration.

Judgment reversed and case remanded with direction.

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

Decided February 9, 1995.

Michael J. Bowers, Attorney General, George P. Shingler, Senior Assistant Attorney General, Shapiro, Fussell, Wedge & Smother-man, Ira J. Smotherman, Jr., David L. Tank, for appellant.

King & Spalding, Joseph B. Haynes, Charles K. McKnight, Jr., Katharine F. Darnell, Webb, Carlock, Copeland, Semler & Stair, Kent T. Stair, for appellee.

       As noted below, the parties strongly disagree on the extent to which the documents were damaged.

       Hardaway suggests that such a representative should ordinarily be limited to legal counsel. The statute explicitly provides to the contrary.

       This amounts to a cost of $47.81 per page.

         For example, an employee of Action Testing apparently stated that the large bill, the use of an electron microscope, and the services of an expert engineer reconstructionist were necessary because “the documents were torn into very small pieces.” DOT’S counsel, by affidavit, denied this, stating that his personal inspection showed the documents were at most torn into three or four pieces, and had already been reassembled in large part. The original documents are available, though not part of the record before this court, so that their true condition should be readily ascertainable.

       In Hardaway’s motion, it acknowledged that only the $12,000 previously paid by DOT had been remitted to Action Testing, and sought payment “if the matter cannot be resolved without further payment to Action Testing.”

       Action Testing’s bill originally included $700 for copier repairs. The trial court disallowed this expense.