text:
    A97A1714.
    MONTICELLO, LTD. v. CITY OF ATLANTA.
    (499 SE2d 157)
   Smith, Judge.

This appeal presents the issue of whether the City of Atlanta has the authority under its charter to impose solid waste disposal fees upon unoccupied and uninhabitable apartment units owned by appellant Monticello, Ltd. On cross-motions for summary judgment, the trial court granted the city’s motion and denied that of the property owner, requiring the owner to pay the fees. The trial court based its grant of summary judgment on the language of the city charter, finding that it authorized the city to assess fees for waste disposal services under these circumstances. The trial court also found that the property owner failed to exhaust its administrative remedies. We disagree and reverse.

Monticello owns an apartment complex located at 3670 Martin Luther King, Jr. Drive (“the property”). The property has 224 units, but 134 of those units are uninhabitable and have not been occupied since 1990. Since 1990, the City of Atlanta has assessed a fee against the property for each of the 224 units for the removal and disposal of solid waste or trash from the units. Because 134 of the 224 units have been unoccupied since 1990, no solid waste or trash was attributable to these units.

Monticello alleges that it was unable to pay these fees and that, in consequence, the city placed fi. fas. or tax liens on the property, making Monticello unable to secure the financing necessary to renovate the unoccupied units and causing Monticello to suffer lost income and profits.

Monticello filed an action in the trial court seeking a declaration that the city was and continues to be without authority to charge waste disposal fees on a per unit basis against the unoccupied units and that the previous assessments were unlawful and void. It sought to have the liens, fi. fas., or tax executions removed from the property’s title and also sought damages, alleging an unconstitutional taking and slander of title.

1. Monticello argues that the city has no authority to assess the fees at issue on a per unit basis against unoccupied and uninhabitable units because no actual service is rendered in exchange for the fees assessed. The city contends that it is authorized to assess the fees against a property owner for unoccupied and uninhabitable apartment units under the applicable city charter provisions, that Monticello is not exempt from paying the fees under these statutes, and that Monticello has received and continues to receive a benefit from the mere availability of these collection services.

The 1996 Atlanta City Charter § 6-101 (f) authorizes the assessment of taxes against all lots and lot owners for sanitary purposes regardless of whether the lots are vacant or in use; the amount of such taxes is determined by the total property frontage abutting the public street. Atlanta City Charter § 6-101 (g) provides for the assessment of fees for the collection, removal, or disposal of solid waste; such fees are to be charged against the owners, or if not owner-occupied, against the occupants of the premises from which the fee is collected and the waste is removed.

The interpretation of statutes, ordinances, and charters presents a question of law for the court. Curlee v. Mock Enterprises, 173 Ga. App. 594, 600 (327 SE2d 736) (1985). In considering the relevant sections of the city’s charter, we must apply the rules of statutory construction. It is axiomatic that in interpreting a plain and unambiguous enactment we must give its words their plain and ordinary meaning, except for words which are terms of art or have a particular meaning in a specific context. OCGA § 1-3-1 (b). We must seek “to give meaning to each part of the statute and to avoid constructions which render a portion of the statute mere surplusage. [Cits.]” Moritz v. Orkin Exterminating Co., 215 Ga. App. 255, 256 (450 SE2d 233) (1994). “ ‘[A] statute must be construed in relation to other statutes of which it is a part, and all statutes relating to the same subject-matter, briefly called statutes “in pari materia,” are construed together, and harmonized wherever possible, so as to ascertain the legislative intendment and give effect thereto.’ [Cit.]” Bennett v. Wood, 188 Ga. App. 630, 632 (1) (373 SE2d 645) (1988). Indeed, “[i]t is a basic rule of construction that a statute or constitutional provision should be construed to make all its parts harmonize and to give a sensible and intelligent effect to each part, as it is not presumed that the legislature intended that any part would be without meaning.” (Citation and punctuation omitted.) Gilbert v. Richardson, 264 Ga. 744, 747-748 (3) (452 SE2d 476) (1994).

Any proposed construction, however, “must not result in unreasonable consequences and must square with common sense and sound reasoning. [Cit.]” Ga. Mental Health Institute v. Brady, 263 Ga. 591, 593 (2) (b) (436 SE2d 219) (1993). Finally, a specific statute prevails over a more general statute when they are in conflict. Id. at 592 (2). See also JCS Enterprises v. Vanliner Ins., 227 Ga. App. 371, 373 (3) (489 SE2d 95) (1997).

Under OCGA § 36-35-3 (a), municipal corporations have the power to adopt only “clearly reasonable ordinances, resolutions, or regulations . . . for which no provision has been made by general law and which are not inconsistent with the Constitution or any charter provision applicable thereto.” Municipal ordinances inconsistent with a city’s charter are invalid. Ga. Branch Assoc. Gen. Contractors &c. v. City of Atlanta, 253 Ga. 397, 398-399 (2) (321 SE2d 325) (1984); City of Buchanan v. Pope, 222 Ga. App. 716, 718-719 (1) (b) (476 SE2d 53) (1996). A grant of power to a municipal corporation must be strictly construed, and any reasonable doubt concerning the existence of a power is resolved by the courts against the municipal corporation. Kirkland v. Johnson, 209 Ga. 824, 825-826 (3) (76 SE2d 396) (1953). “[A]ll municipal charters are strictly construed, and . . . powers which are not expressly, or by necessary implication, conferred upon the corporation can not be exercised by it. [Cits.]” City of Macon v. Walker, 204 Ga. 810, 812 (2) (51 SE2d 633) (1949); Ga. R. &c. Co. v. R. Comm, of Ga., 149 Ga. 1, 12 (98 SE 696) (1919). Moreover, any discretion left to the municipal corporation must be exercised in good faith. Kirkland, supra at 825 (3).

Section 6-101 (f) of the Atlanta City Charter authorizes the city “to assess, levy, and impose taxes on lots and lot owners for sanitary purposes in such amount, rates, or methods of assessment and taxation,” while § 6-101 (g) specifically authorizes the city “to charge fees for the collection, removal or disposal, or both, of all solid waste,” “in addition” to the taxes imposed under § 6-101 (f). Construing these charter provisions together, it is clear that § 6-101 (f) governs the assessment of taxes, while § 6-101 (g) governs the charging of fees. Both sections address sanitation issues, but § 6-101 (g) is directly applicable here because it addresses more specifically the ability of the city to charge fees for the collection, removal, and disposal of solid waste, while § 6-101 (f) addresses the ability of the city to tax for sanitary purposes generally. Brady, supra (specific statute governs over more general statute when in conflict).

Additionally, beyond the plain language of the charter, it is clear that in Georgia an assessment for garbage collection services is a fee and not a tax. Levetan v. Lanier Worldwide, 265 Ga. 323, 324 (2) (454 SE2d 504) (1995) (sanitation assessments for garbage collection and disposal are not taxes but are services for which a fee is charged); Crestlawn Mem. Park v. City of Atlanta, 235 Ga. 194, 195 (2) (219 SE2d 122) (1975) (assessment for removal of trash and refuse from streets abutting cemetery is not a tax); Mayor of Milledgeville v. Green, 221 Ga. 498, 501 (145 SE2d 507) (1965) (charges for removing and disposing of garbage are fee for special services). “A tax is an enforced contribution exacted pursuant to legislative authority for the purpose of raising revenue to be used for public or governmental purposes, and not as payment for a special privilege or a service rendered. [Cits.]” Gunby v. Yates, 214 Ga. 17, 19 (102 SE2d 548) (1958).

A charge for the collection of solid waste cannot be both a tax and a fee, and the plain language of § 6-101 (g) designates this as a fee for a service. The language in § 6-101 (f) allowing the city’s governing body “to prescribe what should constitute a lot for sanitary purposes and assessment” and allowing assessments to be made on vacant lots for tax purposes therefore does not apply to the assessment of fees for the collection of solid waste. The city asserts correctly that § 6-101 (d) gives it unlimited discretion to designate the taxes and fees it may assess. But an assessment of a fee for refuse collection against a vacant and uninhabitable apartment cannot be reconciled with the language of § 6-101 (g),* which states that the fees are “to be charged against the owners or, when not owner-occupied, against the occupants, tenants, or lessees of the premises from which the fee is collected, and from which such waste is removed.” (Emphasis supplied.)

Applying the general principles of statutory construction, we find that § 6-101 (g) contemplates assessment of a fee only against occupied premises for the removal of waste generated by the occupants, whether owners or tenants. The payment of the fee and the removal of waste are expressed in conjunctive rather than disjunctive language, thus requiring that waste be actually removed from the premises in question. See Hill v. Nationwide Mut. Fire Ins. Co., 214 Ga. App. 715, 717 (448 SE2d 747) (1994). The charter states two alternatives for the collection of solid waste generated on premises: when the premises are owner-occupied, or when they are occupied by others. The charter makes no explicit provision for assessment of a fee against unoccupied and uninhabitable premises that do not generate solid waste, and under the “venerable principle of statutory construction . . . expressum facit cessare taciturn,” it is presumed that the enumeration of these conditions excludes others not enumerated. Dept. of Human Resources v. Hutchinson, 217 Ga. App. 70, 72 (456 SE2d 642) (1995).

This result is also consistent with the general rule that a municipality cannot impose a fee for services that have not been provided. An assessment levied in excess of the benefit provided arbitrarily deprives a person of his property. Mayor &c. of Savannah v. Knight, 172 Ga. 371, 374-375 (157 SE 309) (1931); City of Atlanta v. Hamlein, 96 Ga. 381, 383 (1) (23 SE 408) (1895). See also Jekyll Island-State Park Auth. v. Jekyll Island Citizens Assn., 266 Ga. 152, 154 (3) (464 SE2d 808) (1996) (assessment of fire service fees by the State Park Authority cannot “substantially exceed the cost of the services”).

The city contends that Monticello receives a benefit from the mere availability of solid waste disposal service. The city argues that the continued availability of immediate refuse collection service is an advantage provided to Monticello by the city that warrants a continued assessment of fees against the presently uninhabitable apartments because of the possibility that these apartments might be renovated and occupied at some time in the future. In support of this proposition, it cites OCGA § 36-82-62 (a) (3), a revenue bond enabling statute granting authority to governmental bodies to collect fees, tolls, or charges for services “furnished or made available.” The city argues that the language “or made available” allows them to charge for the “availability” of refuse collection service, even without a tangible benefit to Monticello.

This Code section, however, is a general legislative grant of power allowing the city to prescribe fees; it anticipates the enactment of appropriate city charter provisions, resolutions, and ordinances. “A statute giving authority to a city to enact legislation in certain areas cannot itself supersede inconsistent provisions in the city’s existing charter, nor does it authorize the city to enact legislation that is in conflict with the existing charter. The statute merely grants to cities the authority to enact legislation in certain areas.” City of Buchanan v. Pope, supra at 720-721 (2). This general enabling statute cannot be construed to allow the collection of fees not authorized by the city’s own charter provisions specifically tailored to the collection and disposal of solid waste.

The city also cites City of Atlanta v. Johnson, 191 Ga. 100 (11 SE2d 656) (1940), for the same proposition — that the availability of services alone is sufficient to support the assessment of fees against Monticello’s property. In Johnson, the Supreme Court held valid a sewer construction assessment against a property owner for the cost of lowering a sewer on her street, even though she alleged that the sewer as previously sited was adequate for her property, and the sewer improvements were made solely for the benefit of neighboring property at a lower elevation. The Court held that “the fact that the abutting property may not in its present condition be specially benefited by the construction of the sewer would not render the assessment illegal.” Id. at 102.

Johnson is inapposite here. It involves not the provision of a service but an assessment for construction of a public improvement to realty. Assessments for public improvement purposes are governed by a distinct body of statutory and case law as well as by a separate provision of the city’s charter. See generally West v. Stynchcomhe, 253 Ga. 135 (317 SE2d 541) (1984); compare Atlanta City Charter, Appendix 1, Powers, § 3 (fees, charges, and tolls for sewer, water, and refuse collection services) with § 9 (assessing the cost of public utilities proportionally against abutting properties). Construction of a permanent public improvement benefits abutting properties, and the cost is distributed among them as an assessment, not a fee for services. “[S]ewer connections, underground repairs, sewer pipes brought into a community, storm drains (as are electrical wires and poles) are one-time costs normally borne by assessments and taxes against the adjacent property.” Pease v. City of College Park, 155 Ga. App. 120, 122 (270 SE2d 329) (1980). In contrast, the collection, removal, and disposal of solid waste are services, not permanent improvements, and must provide a recognizable benefit to the payer of the fee for such services. The city cannot impose a fee without a corresponding benefit by asserting that the mere existence of a collection service provides to all its citizens an inchoate opportunity to take advantage of the service at some future date.

In summary, a plain reading of the Atlanta City Charter, in light of general principles of statutory construction and existing case law, leads us to the conclusion that the city is not authorized under § 6-101 (g) of its charter to assess fees for the collection, removal, or disposal of solid wastes against a property owner for individual apartment units which are neither occupied nor habitable.

2. Although the trial court granted the city’s motion for summary judgment on the basis that the fees were properly assessed, it also ruled that Monticello failed to employ an available administrative procedure for abatement or adjustment of the solid waste disposal fees.* It is true that a claim challenging the enforcement or application of a rule to a party’s property generally is appropriate only after available administrative remedies have been exhausted. See generally Village Centers v. DeKalb County, 248 Ga. 177, 178-179 (2) (281 SE2d 522) (1981) (application to local authorities for rezoning prerequisite to declaratory judgment action). But if the interested parties are not afforded an opportunity to protect their rights, the governmental entity cannot claim that they have failed to exhaust administrative remedies. City of Waycross v. Reid Rental Co., 186 Ga. App. 452, 454 (367 SE2d 305) (1988) (failure to give notice of assessment). We find that the trial court erred in its holding because a genuine issue of material fact remains regarding whether an administrative remedy was available to Monticello.

The city states that a remedy for incorrect sanitary service charges has been available through the city’s Department of Housing & Community Development since at least 1990, but that Monticello failed to seek a partial abatement of these fees through the available departmental procedures. According to the affidavit of a city employee, once a party provides proof that a housing inspector has designated certain apartments in a housing complex untenantable or uninhabitable, the Department of Public Works recalculates the sanitation unit cost and credits that amount as an adjustment to the sanitary service charge. The city argues that Monticello chose not to exhaust its administrative remedies before petitioning the trial court for relief because the procedures did not authorize a full abatement of the charges levied against the uninhabitable apartments.

Monticello argues that this alleged procedure is neither codified and published nor set forth in a municipal handbook or regulation. The record contains no publication of such a procedure in any form. Additionally, Monticello states that its personnel had no actual knowledge of such a procedure and contends that the “purported administrative remedy is a sham.” We conclude from the record before us that a disputed issue of fact remains as to the existence of the abatement procedure and Monticello’s knowledge of it.

The city has failed to show that its rule regarding the procedure for obtaining an abatement of the sanitation fee for uninhabitable apartments is either codified or published; the city alleges, however, that an owner or operator of apartment complexes who presents a letter from the Bureau of Housing declaring apartment units unfit for habitation will be given an adjustment. But if it could not discover the availability of such a remedy, Monticello would have been unable to exhaust administrative remedies before resorting to the judicial process. See Hunnicutt v. Ga. Power Co., 168 Ga. App. 525, 526 (1) (309 SE2d 862) (1983) (“The mere existence of an unexhausted administrative remedy does not, standing alone, afford a defendant an absolute defense to the institution of a legal action”); Fulton-DeKalb Hosp. Auth. v. Metzger, 203 Ga. App. 595, 597 (4) (417 SE2d 163) (1992) (since authority’s actions prevented aggrieved person from seeking administrative review, and rules provided no alternative means of review, authority could not assert exhaustion of administrative remedies).

The city argues that Monticello knew of this remedy. A city employee, Christine Williams, initially testified by affidavit that she searched the property file and “did not locate any communication relating to a request for an adjustment.” After Monticello produced an affidavit with attached correspondence that its employee testified was mailed, faxed, and hand-delivered to Williams, the city filed a second affidavit from Williams testifying that she orally informed Monticello’s agent of the appropriate procedure by which it could obtain this abatement. Monticello counters that its requests for relief “were completely ignored” by the city and that it was never informed of this procedure, either orally or in writing. Jed W. Lyles identified himself as the person who hand-delivered Monticello’s letter to Williams; he denied that he received any response. This direct contradiction presents a disputed issue of fact.

To prevail on summary judgment on this ground, the city was required to demonstrate that no genuine issue of material fact existed and that it was entitled to summary judgment as a matter of law. Gentile v. Bower, 222 Ga. App. 736, 737 (477 SE2d 130) (1996); OCGA § 9-11-56 (c). Here, summary judgment was not appropriate because the city has not shown any codification and publication of the proper procedure for seeking an abatement of sanitary service fees, and it has not demonstrated that Monticello knew of an available, applicable remedy. Testimony in an affidavit from the city’s employee that she verbally instructed Monticello’s agent regarding the abatement procedure, without more, cannot sustain a grant of summary judgment when it is directly contradicted by the testimony of Monticello’s agent that no such instruction was given. In the absence of any ordinance, regulation, handbook, or other writing setting forth the policy described by the employee’s affidavit, this conflicting testimony forecloses the grant of summary judgment on this issue as well.

Judgment reversed.

McMurray, P. J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I concur fully in Division 1 and for that reason depart from the majority’s analysis of the issue presented in Division 2. I concur in the judgment, as the trial court erred in denying plaintiff Monticello, Ltd.’s motion for summary judgment and granting that of the City of Atlanta. In accordance with the law as explained in Division 1, Monticello was entitled to summary judgment.

There is no reason to examine whether Monticello knew or should have known of the purported administrative remedy or whether it was properly promulgated. It does not matter because, construing the evidence most favorably to the City, downward adjustment of the solid waste disposal fees could be made only upon presentation of “a letter signed and dated by an Inspector in the Bureau of Housing [stating] that a portion (an apartment unit or units) of said property has been declared unfit for habitation.” According to the City’s evidence, it is only units which are officially declared uninhabitable which can qualify for exemption from the fees.

In its amended complaint Monticello sought judicial relief not only because the units were “not rentable nor habitable” but also because it did not occupy the property. It asserted that the city charter provision which imposed these fees applied only to occupants, tenants or lessees when the property was not owner-occupied. Monticello contended that the fee was for use of the service, and that since it did not occupy the units and thus did not use or benefit from the sanitation service, the law did not apply.

As the majority opinion holds in Division 1, Monticello is correct. Consequently, the administrative remedy which the City offers by way of its proof would be insufficient on its face. It would impose the fee on these units, and all others, even when they were habitable but unoccupied, unrented, or unleased. For this reason, plaintiff Monticello was entitled to summary judgment on this point, i.e., exhaustion of administrative remedies, as well.

Decided March 20, 1998

Brenskelle & Perry, David P. Brenskelle, Brock E. Perry, for appellant.

Clifford E. Hardwick IV, Bernard R. Thomas, Sr., Lemuel H. Ward, for appellee.

       The 1996 version of § 6-101 (f) provides: “The governing body shall be authorized to assess, levy, and impose taxes on lots and lot owners for sanitary purposes in such amount, rates, or methods of assessment and taxation; provided, further, the governing body shall be authorized and empowered to collect such taxes by execution against the lot so assessed and the owner thereof and provide for the use of such proceeds. The amount so assessed shall be a lien on the lot from the date of the assessment. The governing body shall be authorized to prescribe what should constitute a lot for sanitary purposes and assessment; provided, however, that assessment shall be made on vacant lots as follows: A front footage fee shall be assessed in accordance with the zoned property category, residential, apartment, or commercial, and no unit fee shall be assessed. Resident lots shall not be subdivided or assessed separately except where they have two or more houses used or intended for use as separate tenements built upon them, in which case a sanitary assessment may be levied against the lot for each house situated thereon.” Ga. L. 1996, p. 4531, § 6-101 (f). The previous charter contains in large part the same language. Ga. L. 1973, p. 2232, § 6-101 (f).

       Atlanta City Charter § 6-101 (g) provides: “The governing body of the city, in addition to being authorized to assess, levy, and impose taxes for sanitary purposes, as set forth hereinabove in subsection (f), shall be authorized to charge fees for the collection, removal or disposal, or both, of all solid waste except body wastes, ashes, street cleanings, dead animals, abandoned automobiles, and market and industrial wastes, such fees to be charged against the owners or, when not owner occupied, against the occupants, tenants, or lessees of the premises from which the fee is collected, and from which such waste is removed or disposed of, or both, from which collection and removal services are made available.” Ga. L. 1996, p. 4531, § 6-101 (g). See also Ga. L. 1973, pp. 2232-2233, § 6-101 (g).

       The provisions of the Atlanta City Charter construed by the Supreme Court in Crest-lawn are almost identical to the provisions before us today. In Crestlawn, the ordinances of the city included “ ‘a sanitary service charge for sanitary purposes’ ” that was levied against “all privately owned properties located in the city and the amount of the charges was based upon the total property frontage which abutted the public streets of the city.” Crestlawn, supra at 194 (1). The city was also empowered by its charter “to levy and collect assessments for the collection, removal and disposition of garbage, trash, refuse and rubbish in addition to making assessments for sanitary purposes.” Id. Construing these provisions, the Supreme Court held that sanitary service charges assessed by the city were fees in exchange for which actual services were provided. Id. at 195 (2).

       We note that the record is unclear regarding the allocation of Monticello’s bill between assessments and fees under subsections (f) and (g) of the city’s charter. According to a city official, these charges have three components, two of which are calculated on the basis of frontage and one on the number of units. But the record reveals only an undifferentiated statement to Monticello for “san serv chg.”

       The city’s contention that this issue was not ruled on below is without merit. The trial court clearly held that “plaintiff has had ample opportunity to seek an exemption from the fees assessed since 1990” and relied at least in part on that holding to conclude that the assessments were proper and plaintiff’s failure to pay warranted imposition of liens, fi. fas. or tax executions.

       But note that the city apparently has failed to allocate or differentiate these charges. See n. 4, supra.

       We assume without deciding that actual knowledge of an administrative remedy requires that an aggrieved person exhaust that remedy even in the absence of proper publication. But we find no direct authority for such a rule outside the rulemaking requirement of the Georgia Administrative Procedure Act, OCGA § 50-13-3 (b), which is not applicable here. OCGA § 50-13-2 (1).


source: Caselaw Access Project

author: Blackburn, Judge.

license: Public Domain

text:
    A97A1715.
    In re WOODALL. IN re ROBERSON.
    A97A1716.
    (499 SE2d 150)
   Blackburn, Judge.

In Case Nos. A97A1715 and A97A1716, John Woodall and David Roberson, respectively, appeal the ruling of the Probate Court of Chatham County finding them in wilful contempt for their refusal to comply with its order requiring the return of attorney fees paid to them from settlement sums in the litigation arising from a medical malpractice case involving Julia Mae Shiggs. Because these cases arise from the same set of facts, they are consolidated herein for the purpose of resolving these appeals. For the reasons set.forth below, we are compelled to reverse the probate court’s finding of contempt in both cases based upon a lack of jurisdiction.

On August 12, 1994, Julia Mae Shiggs was admitted as a patient to Memorial Medical Center, Inc., where a caesarean section was performed on her on that day by Dr. Speir N. Ramsey. Following this operation, Shiggs developed internal bleeding which required additional surgery hours later. Shiggs subsequently developed bleeding and respiratory disorders and experienced a cardiac-respiratory arrest, leaving her severely brain damaged and comatose. All of the alleged acts of medical malpractice occurred in August 1994.

On October 15, 1994, while Shiggs remained comatose at Memorial, Michael L. Mydell, her common law husband, was appointed as guardian of the person and property of Shiggs due to her permanent incapacity. Shiggs was subsequently transferred from Memorial to a nursing institution on November 11, 1994. Her condition continued to deteriorate, and she ultimately died on December 30, 1996.

On April 14, 1995, Roberson, acting on behalf of Mydell as an individual and as guardian for Shiggs, filed an action in the State Court of Chatham County against Memorial and Dr. Ramsey alleging an individual claim on behalf of Mydell for loss of consortium and a claim on behalf of Shiggs for medical malpractice. On September 12, 1995, Mydell signed a contingency fee contract with Roberson which provided for attorney fees of 50 percent of the proceeds of any recovery, plus reimbursement for any expenses. Roberson, in turn, retained Woodall to assist him in the trial of the malpractice action, under an agreement between the lawyers, which provided for a division of the attorney fees under Roberson’s contract with Mydell. This agreement was executed by Woodall and Roberson nunc pro tunc to January 1, 1996.

Prior to the beginning of trial on January 16, 1996, Mydell dismissed, with prejudice, his individual claim for loss of consortium against the defendants. The case then proceeded to trial on Shiggs’ claims based on medical malpractice, and on January 22, 1996, the sixth day of trial, the parties orally agreed to settle the case, with the approval of the trial judge, for $3,325,000 in cash plus the continued provision of certain medical services to Shiggs for the remainder of her life, the details of which remained to be worked out between the parties. No reasonable present monetary value of the future medical services was established or approved at that time.

Dr. Ramsey agreed to contribute $600,000 and Memorial agreed to contribute $2,725,000 for a cash settlement of $3,325,000, plus the provision of certain future medical services to Shiggs, for which Memorial would be solely responsible. Certain trusts were to be established for the benefit of Shiggs and her children and the $600,000 payment by Dr. Ramsey was to be used to fund the trusts.

The $3,325,000 cash portion of the settlement was paid as follows: On January 25, 1996, a partial settlement check in the amount of $1,900,000 was delivered by Memorial to Roberson, was endorsed by the appropriate parties and deposited in Roberson’s trust account. An additional sum of $825,000 was wire-transferred by Memorial into Roberson’s trust account on January 26, 1996.

On January 28, 1996, prior to the approval of any written settlement agreement by Mydell or the court, Roberson calculated the attorney fees and issued checks to himself and to Woodall. Roberson issued a check to Woodall for his share of the attorney fees in the amount of $1,100,000, in accordance with the agreement between the lawyers, which Woodall deposited on January 29, 1996. Roberson also distributed $1,300,000 to himself as his own fee. Roberson used a gross settlement amount of $4,800,000 to calculate 50 percent attorney fees of $2,400,000. Roberson also retained $102,295.24 for his expenses. It is unclear how Roberson arrived at the gross figure, as there were only two components that made up that figure, the cash settlement and the present value of the future medical services to be rendered to Shiggs, which figures do not agree with the figure used by Roberson.

Roberson apparently relied on his expert’s evaluation of the present value of the future medical services which were to be provided to Shiggs of $1,425,000, plus the cash settlement of $3,325,000, to arrive at the gross settlement figure of $4,800,000 upon which he calculated the 50 percent attorney fees in the amount of $2,400,000. In its November 1, 1996 order, the state court pointed out, among other things, a discrepancy in the valuation of future services by Mydell. The court noted: “The record reflects that the value of the future services to be provided by Memorial Medical Center, Inc. may have been inaccurately calculated and used in making distribution of the proceeds pursuant to the attorney fee contract. Specifically, the distribution sheet, which was presented to the Court following the first hearing and at the request of the Court, reveals that the future services were valued at $1,425,000. The court noted that the actual documentation of medical expenses for Shiggs was $1,091,909 and may have included expenses other than those for respiratory equipment and the special mattress which were the only future medical expenses for which American was liable. On further inquiry by the Court, the counsel for the Plaintiff explained their methods for calculating the value of the future benefits and appear to have overvalued the services.”

On February 16, 1996, Mydell, as guardian for Shiggs, signed a disbursement statement prepared by Roberson indicating a gross settlement in the amount of $4,800,000. The statement listed attorney fees of $2,400,000, attorney expenses of $102,295.24, a payment to Mydell, as guardian, in the amount of $151,359.33, and other expenses. The amount of the fees taken by Roberson and Woodall equaled one-half of the cash settlement and approximately one-half of the value of future services to be provided to Shiggs, as calculated by an economist hired by Roberson. The only purpose in establishing the present value of the future medical services was to calculate attorney fees. Such value was of no benefit to anyone else, as Memorial was obligated to pay the cost without regard to the amount thereof. Thus, Roberson and Woodall took 72 percent of the cash received in the settlement to pay their fees. This left a $600,000 trust fund and the medical services received by Shiggs prior to her death as the total benefits to the plaintiff and her children. Although the settlement statement listed Mydell as a payee in his capacity as guardian, the check issued to Mydell on February 16, 1996, actually was made out to him in his individual capacity. It is unclear from the record whether this payment was intended to compensate Mydell for statutory guardian fees or was in consideration of his earlier dismissal of his individual claim.

Also on February 16, 1996, Roberson and Woodall filed petitions with the probate and state courts seeking approval of the settlement. The settlement agreement submitted to the court was not executed. It was returned to Roberson and was ultimately executed on July 1, 1996. Then, on July 29,1996, Roberson filed a second petition to compromise a doubtful claim and for approval of the settlement agreement in the probate court and a second motion for approval of the settlement in the state court. A hearing was held on October 1, 1996, and both the state court judge and probate judge were present. At this hearing, it became apparent that the attorneys for Shiggs and Memorial were in disagreement as to the future services the parties had intended to be provided to Shiggs, and which necessarily raised questions with regard to the value of such services. The written agreement, however, was clear and unambiguous as the court ultimately found. The written settlement agreement provided: “As additional consideration [for the settlement], Memorial Medical Center, Inc. agrees to provide to Julia Mae Shiggs the respiratory care services currently provided and the use of the same or similar Hill-Rom mattress currently provided, for the lifetime of Julia Mae Shiggs.”

On October 14, 1996, the probate court removed Mydell as guardian for Shiggs. After a subsequent hearing on November 1, 1996, the state court issued an order which approved the written agreement, including its provision for future medical services. The court could not reconcile Mydell’s disbursement figures with the settlement agreement between the parties and therefore refused to approve the distributions which had actually been made. Rather, the state court judge requested that the probate court review “the distribution of funds and the conduct of the Guardian, Michael Mydell, in regard to his fiduciary duties and responsibilities to his ward, Julia Mae Shiggs.”

On November 8, 1996, the judge refused to approve Mydell’s petition to compromise claim filed in the probate court, finding that the disbursements of the settlement proceeds which were made were improper. The probate court ordered that “the attorneys who have come into possession of the assets of Julia Mae Shiggs, i.e. David Roberson and John T. Woodall, pay all money received by them on behalf of Julia Mae Shiggs . . . into the registry of the State Court of Chatham County, Georgia.”

After issuing a show cause order requiring Roberson and Woodall to explain why they had not reimbursed Shiggs’ estate, the probate court found Roberson and Woodall in contempt of its November 8, 1996 order and provided that the attorneys could purge themselves of contempt by depositing surety in the amount of $2,400,000, the amount of attorney fees disbursed without approval of the court. The probate court further ordered that if Roberson and Woodall failed to deposit the funds as directed they would be incarcerated. This appeal then ensued.

1. Both Woodall and Roberson contend that the probate court exceeded its jurisdiction by requiring them to pay their attorney fees into the state court’s registry. They further contend that they cannot properly be held in contempt for violating such a void order.

“The [probate court] is a court of general jurisdiction with respect to particular subject-matters; but it is not so in the sense of having jurisdiction generally over every possible subject-matter, question or issue.” Dix v. Dix, 132 Ga. 630, 634 (64 SE 790) (1909). There are a number of instances in which the probate courts lack jurisdiction to deal with claims regarding real and personal property distributed by a fiduciary to third parties.

“In Echols v. Almon, 77 Ga. 330 (1 S.E. 269), the Supreme Court held that the [probate court] was without jurisdiction to issue an execution in favor of an administrator against one of the distributees of the estate for a claimed overpayment, as that was a personal issue between the administrator and the distributee to be adjudicated in a court of law. In Dix v. Dix, [supra], the court held that there was no provision of law for the trial in the [probate court] of a claim to property set apart to a widow as a twelve-month’s support. In Thompson v. Allen, 160 Ga. 535 (128 S.E. 773), the Supreme Court held that the [probate court] was without jurisdiction to award a judgment in favor of an administratrix of the executor of an estate against the children of the testator, who were legatees under his will, for money paid by the executor for the use and maintenance of such children. In Cook v. Weaver, 77 Ga. 9, the Supreme Court held that the power to cite an executor to a settlement in the [probate court] had reference to an executor who was acting, and not to an executor who had been discharged. In Ballard v. Zachry, 54 Ga. App. 101 (187 S.E. 139), this court held that it was only an executor or administrator, standing in the relationship of an officer of court to the [probate court], who could be called to an accounting in that court with respect to his act in the management of the estate. In each of those cases, the proceeding was one dealing with a claim to property, or a personal claim in favor of or against the administrator or executor, or a claim against a person who was not an officer of the court in which he was cited to appear.” Murphy v. Hunt, 73 Ga. App. 707, 713-714 (37 SE2d 823) (1946). Furthermore, “it is well-settled that probate courts do not have jurisdiction to adjudicate conflicting claims of title to real or personal property.” In re Estate of Adamson, 215 Ga. App. 613 (1) (451 SE2d 501) (1994).

As a general rule, guardians of the person of incapacitated adults have “those rights and powers reasonably necessary to provide adequately for the support, care, education, and well-being of the ward.” OCGA § 29-5-3 (a). Included among these is the power to participate in legal proceedings in the name of the ward. OCGA § 29-5-3 (b) (6). However, in any legal proceeding wherein the interest of the ward could be adverse to that of the guardian, the guardian must petition the court for the appointment of a guardian ad litem.

The guardian of the property of an incapacitated adult must generally give a bond and has such powers as set out in other sections of the Georgia Code, including OCGA §§ 29-2-2 through 29-2-24. OCGA § 29-5-4. ÓCGA § 29-2-2 provides: “Every guardian shall be allowed all reasonable disbursements and expenses suitable to the circumstances of the ward committed to his or her care.”

Woodall has also contended that he could not be held in contempt because he was an independent contractor of Roberson and had no direct responsibility to the client in the state court proceedings. Woodall argues, in essence, that he was hired by Roberson to try the case. We point out that any attorney who acts on behalf of a party to a lawsuit has a direct accountability to such party whether he was hired directly by such party or indirectly by the retained attorney. Such attorney cannot avoid legal or ethical considerations by asserting an independent contractor defense.

Certainly, the probate court has the power to hold officers of the court in contempt for failing to comply with its lawful orders and mandates. However, “[a]n order of contempt cannot be based on noncompliance with a void order.” Adamson, supra at 614 (2). Because the order underlying the finding of contempt in this case was void, the probate court’s finding of contempt by Roberson and Woodall cannot stand.

The premise of both of the underlying appeals is a claim for property, specifically attorney fees that have already been paid to Roberson and Woodall and approved by Mydell in his capacity as guardian for Shiggs. In its November 8 order, the probate court required Roberson and Woodall to pay into the state court all of the attorney fees they had received in this matter until such time as the court determined the lawyers’ entitlement to such fees. As no court has determined that Roberson and Woodall are not entitled to their attorney fees, they have a claim of title to such fees. They represented Shiggs and received a favorable result on her behalf, and they now contend that their fees are in accordance with their employment contract and were authorized by the guardian.

The probate court’s finding that the settlement of Shiggs’ estate was not in her best interests and its requirement that the entirety of the fees be paid into the state court’s registry must necessarily rest, at least in part, on the notion that the fees have not been appropriately earned, and that title thereto remains with Shiggs’ estate. Otherwise, the probate court’s direction that the entirety of the fees be returned would be a meaningless exercise. Orders which ultimately turn on the question of title are the province of the state court, not the probate court. Adamson, supra at 613-614. While the probate court’s directive is morally satisfying, it is nonetheless jurisdiction-ally defective. Accordingly, “[w]here the [probate court] is without jurisdiction to deal with a particular subject-matter, or to make a decision in regard to it, an effort to do so is ineffectual; and this is true whether want of jurisdiction of the subject-matter is urged before that court or not.” Dix, supra at 634.

The parties concur that, as a matter of law, Mydell had the right to obtain and remunerate counsel with regard to the representation of Shiggs without approval of the probate court. However, Mydell requested that the probate court approve the payment of attorney fees in the amount of $2,400,000 in his petition to such court. In its order, the probate court noted that “[a]mong other things the instant petition seeks approval, after the fact, of the payment of $2,400,000 in attorneys’ fees.” (Emphasis in original.)

In reaching this conclusion, the probate court cites OCGA § 29-2-22. However, this Court has “construe[d] this section to mean that the guardian ‘is authorized’ to provide for legal counsel, and in the event of a dispute between the guardian and counsel as to fees, either ‘may’ petition the [probate court] for a judgment fixing the amount.” Dowdy v. Jordan, 128 Ga. App. 200, 211 (3) (196 SE2d 160) (1973). There is no evidence of a dispute herein between Mydell, Roberson, and Woodall which would trigger this Code section.

As a general matter, guardians have the power to compromise doubtful and contested claims against their wards, if such compromise is in the ward’s interest. OCGA § 29-2-16. OCGA § 29-2-16 (i), which was enacted in 1995, provides: “If legal action has been instituted and the guardian and the defendant in such action have agreed upon a settlement, the settlement must be approved by the judge of the court before whom the action is pending. The guardian shall not be permitted to dismiss the action and present the settlement to the probate court for approval without the approval of the trial judge before whom the action is pending.”

Decided March 20, 1998

Arnall, Golden & Gregory, Ann S. Infinger, Scott F. Bertschi, John E. Suthers, for appellant (case no. A97A1715).

We note that this Code section refers specifically to the approval of settlements, not disbursements. We further note that although this increased overview of settlements by probate courts was enacted in 1995, the statutory provisions allowing guardians to generally make all reasonable disbursements on behalf of their wards were not equally limited. The guardian is required to make certain returns to the probate court pursuant to OCGA § 29-2-44, and it is through this process that the probate court oversees disbursements which was not amended by the 1995 amendment.

While we must reverse the contempt order of the probate court, we note that this procedurally complex and morally troubling case is not brought to its final close here. It is clear that serious issues are implicated by the facts of this case with regard to the management of Shiggs’ estate, the representation of Mydell individually and as guardian of Shiggs by Roberson and Woodall, the disbursements of the settlement funds, and the calculation of the value of future medical services and the amount of attorney fees paid to the lawyers. These issues are not presently before this Court.

Nothing herein precludes the probate court from dealing with Mydell, as guardian, for any mismanagement of Shiggs’ estate, including improper disbursements of his ward’s property. OCGA § 29-2-79. Shiggs’ current personal representative is not precluded from bringing appropriate actions against Roberson and Woodall in a court of competent jurisdiction if their fees were unreasonable, their representation was deficient in some way, if their fiduciary duties to Mydell and Shiggs were violated, if there was a fraudulent conspiracy between the guardian and the attorneys to defeat the rights of Shiggs or her heirs, or if there is any other proper claim of misfeasance or malfeasance by Mydell or the lawyers, which is not addressed in this opinion.

However, once a guardian transfers property to third parties who have a claim of right to that property and ownership issues have ripened, the power and jurisdiction of the probate court, as discussed above, has historically been circumscribed. This Court has no authority to broaden the jurisdiction of the probate court.

2. Based on the above, we need not consider the remaining enumerations of error raised by Roberson and Woodall.

Judgments reversed.

Pope, P. J., and Johnson, J., concur.

Betty Walker-Lanier, for appellant (case no. A97A1716).

Karsman, Brooks & Callaway, Dana F. Braun, Gannam & Gnann, J. Hamrick Gnann, Jr., Bordeaux & Abbot, Louisa Abbot, Frederick S. Bergen, for appellee.

       In addition, Roberson and Woodall took $102,295.24 to pay for their expenses.

       The record shows, however, that Mydell’s loss of consortium claim was dismissed by him with prejudice prior to trial because he was cohabitating with another woman whom he had impregnated.

       Two previous hearings were held; however, Roberson sent an associate unfamiliar with the case in his stead. Because this associate was unable to address the court’s concerns, the hearing on October 1 became necessary.

       This disagreement led to the filing of a separate lawsuit with regard to this issue in superior court notwithstanding the clear language of the written settlement agreement.

       The probate judge stated, “Whether he was in good faith or not, it’s clear to this Court that this man is totally unable to manage any of the funds of this ward. He is totally unable to make the timely reports to this court. He is unable to read, and I doubt that he could even read the Citation to Show Cause that we issued. He could not read the settlement statement that he signed.” J. Hamrick Gnann, Jr. replaced Mydell as guardian of Shiggs’ estate.


author: Ruffin, Judge. Beasley, Judge,

text:
    A97A1774, A97A1775.
    JOSEPH v. THE STATE (two cases).
    (498 SE2d 808)
   Ruffin, Judge.

John and Bonita Joseph were jointly tried for conspiracy to defraud the State (OCGA § 16-10-21) and Medicaid fraud (OCGA § 49-4-146.1 (b) (1)). A jury found them guilty of both offenses, and in these companion appeals the Josephs assert (1) that the trial court erred in overruling their peremptory strike against a prospective juror, and (2) that the trial court erred in denying their motion for mistrial following a purportedly improper comment by the prosecutor during closing argument. For reasons which follow, we affirm.

1. We find no merit in the Josephs’ assertions that the trial court erred in finding that their peremptory strike of a prospective juror was racially motivated.

The transcript shows that the Josephs, who are African-Americans, exercised their peremptory strikes jointly. At the end of jury selection, the State challenged the racial composition of the jury on grounds that 11 of the Josephs’ 13 strikes (85 percent) had been used to remove white members of a jury panel composed of 19 white persons (63 percent) and 11 African-Americans (37 percent). The trial court found that there was a prima facie case of racial discrimination.

During voir dire, it was shown that prospective juror no. 18, a white male, was a certified public accountant and partner in an accounting firm. He had a negative response to the word Medicaid, specific concerns about government waste and Medicare fraud, and numerous family members in law enforcement. It was also established that he had previously served as an alternate juror in a criminal case presided over by the same judge and had found the overall experience to be “[pjrobably favorable.”

Attorneys for both defendants gave as their reason for removing this juror that they did not want any accountants on the jury. Bonita Joseph’s attorney explained that based on what the State indicated it intended to prove, there would be inferences of tax fraud. John Joseph’s attorney added that the Josephs used three different accountants and part of his client’s defense would involve placing blame on the accountants, so “[t]o have an accountant on the jury, to me, would just be devastating.”

The State responded, arguing that similarly situated African-American jurors had been allowed to remain on the jury, pointing to one who was a purchasing agent for Emory University and another who was a building supervisor for the City of Atlanta. John Joseph’s attorney contested the comparison, responding that his concern related to prospective jurors who were CPAs or had an accounting background, and that the jurors referred to by the prosecution did not fit into this category. Bonita Joseph’s attorney stated that they struck all three accountants.

Counsel for both defendants also argued that they struck juror no. 18 because he might have developed a bias in favor of the judge as a result of his prior service as an alternate juror. John Joseph’s attorney explained: “[WJhile I think the Court does its very best to be fair and impartial, I don’t think you and I see eye to eye on many things. . . . I do not want someone that’s formed any type of potential allegiance or bias for Your Honor. . . . [I]f we wind up in controversy, I don’t want him to come against my client because the juror has already been before Your Honor on another case.”

The State characterized this reason as “[transparent” and strongly pretextual. The prosecutor pointed out that there was no evidence supporting defense counsel’s supposition that the venireman’s prior jury service would result in bias. Following these arguments, the trial court found that the reasons advanced by the Josephs’ attorneys were pretexts for striking the venireman on racial grounds and accordingly reseated juror no. 18 on the jury. The Josephs argue that this decision was clearly erroneous.

Because this Court has presented varying views concerning proper trial court procedure for addressing this issue, as well as the applicable procedures for appellate review of such decisions (see, e.g., Wilburn v. State, 230 Ga. App. 619, 624 (497 SE2d 380) (1998) (Eldridge, J., concurring specially)), we take this opportunity to review the pertinent authority.

In Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986), the United States Supreme Court continued its “unceasing efforts to eradicate racial discrimination in the procedures used to select [juries].” Id. at 85. The Court’s decision in Batson was focused on establishing a process by which a trial court could decide if a criminal defendant carried his burden of proving that the prosecution engaged purposeful discrimination during the exercise of its peremptory strikes. In this regard, the Court held generally that a trial court “must undertake ‘a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.’ [Cit.]” Id. at 93. Because no procedure previously existed, the Court announced a three-part burden-shifting inquiry that the trial court must employ in addressing a criminal defendant’s assertion of discrimination. See id. at 96-98. Summarily stated, that inquiry required the trial court to determine (1) whether the defendant could establish a prima facie case of discrimination, (2) whether the prosecution articulated “a neutral explanation related to the particular case to be tried[,]” and (3) whether in light of the circumstances, the defendant established purposeful discrimination. Id. at 97-98. It is clear from the Court’s opinion in Batson that this three-part test was to be applied by the trial court and was not a standard of appellate review. This is evidenced not only by the clear language in the opinion, but also by the fact that appellate review of the newly established procedure was not at issue.

“In [Georgia v. McCollum, 505 U. S. 42 (112 SC 2348, 120 LE2d 33) (1992)], the United States Supreme Court extended its decision in [Batson] and held that the equal protection clause prohibits a criminal defendant from engaging in purposeful discrimination on the basis of race in the exercise of peremptory challenges.” Chandler v. State, 266 Ga. 509 (2) (467 SE2d 562) (1996). In Burkett v. Elem, 514 U. S. 765 (115 SC 1769, 131 LE2d 834) (1995), the Court revisited the three-part inquiry it established in Batson and extended in McCollum.

At issue in Burkett was a decision in which the Eighth Circuit Court of Appeals observed that in step two of the Batson inquiry “ ‘the prosecution must at least articulate some plausible race-neutral reason for believing that [the factors relied on for striking a juror] will somehow affect the person’s ability to perform his or her duties as a juror.’ ” Burkett, supra, 131 LE2d at 838. Granting certiorari, the United States Supreme Court found the Eighth Circuit’s characterization of the second step flawed: “The Court of Appeals erred by combining Batson’s second and third steps into one, requiring that the justification tendered at the second step be not just neutral but also at least minimally persuasive, i.e., a ‘plausible’ basis for believing that ‘the person’s ability to perform his or her duties as a juror’ will be affected. [Cit.]” Id. at 839.

Importantly, for the purpose of resolving the issue raised by Judge Eldridge’s concurring opinion in Wilburn, supra, there is nothing in the Burkett opinion indicating that the Court was attempting to establish a three-part test for appellate courts to employ in reviewing a Batson/McCollum issue. Rather, the appellate court’s role is simply to determine (1) whether the trial court properly implemented the three-part inquiry established under Batson and Burkett, and if so (2) whether the trial court’s conclusion was clearly erroneous. See Jackson v. State, 265 Ga. 897 (463 SE2d 699) (1995). In Burkett, the Court merely found that the Eighth Circuit mischaracterized the trial judge’s role in step two of the inquiry. See Purkett, supra, 131 LE2d at 839 (“to say that a trial judge may choose to disbelieve a silly or superstitious reason at step 3 is quite different from saying that a trial judge must terminate the inquiry at step 2 when the race-neutral reason is silly or superstitious” (emphasis omitted)).

.We are not alone in our interpretation of Purkett. In his special concurrence in Wilburn, supra, Judge Eldridge cites numerous cases in which this Court has adopted interpretations similar to the one discussed here. And, in Jackson, supra, the Supreme Court of Georgia unanimously concurred that the Purkett analysis applies to trial courts. Accordingly, “as we are bound to follow Jackson, we cannot adopt Judge Eldridge’s views on this issue even though they are helpful in analyzing the appellate considerations applicable in a Batson! McCollum challenge.” Wilburn, supra at 624 (Birdsong, P. J., concurring specially).

Returning to the merits of this case, the transcript establishes that the trial court correctly employed the three-part Purkett analysis and concluded under step three that the strike was racially motivated. Because the trial court correctly utilized the three-part test, our only duty at this juncture is to determine whether the court’s conclusion is clearly erroneous.

In this regard, the transcript shows that despite the compelling nature of the Josephs’ first explanation that they struck the juror because he was an accountant, the trial court concluded for another reason that the strike was racially motivated. Specifically, the trial judge, who had the opportunity to view the demeanor of the attorneys and judge their credibility, found that defense counsel’s reason relating to prior jury experience was “the most ridiculous reason [he] ever heard in [his] life.” After further argument by defense counsel, the trial judge concluded: “I’m putting [the juror] back on. I think it’s pretextual, I’m putting him back on.”

The trial judge’s conclusion was not clearly erroneous. Though defense counsel stated that they were concerned with the juror’s prior jury experience, there was no evidence before the trial court that the prior experience would have affected the juror’s participation in this case. The record is clear that defense counsel’s explanations concerning the prior experience were totally speculative. Counsel merely hypothesized circumstances that might arise at trial. In fact, the only evidence concerning the juror’s prior jury experience was the juror’s statement that he found the overall experience to be “[p]robably favorable.” Under these circumstances, the trial judge could have totally discredited defense counsel’s explanations for striking the juror and found that their peremptory strike was racially motivated. See Jackson, supra.

Finally, the dissent finds that “[r]egardless of [the] legitimacy vel non of defendants’ additional reason [concerning prior jury experience] for removing [the] juror, it did not dilute the force of their primary reason [that the juror was an accountant] or tend to show that the strike was racially motivated.” Because the trial court’s finding is entitled to great deference, we do not believe it is for us to weigh the proffered explanations or judge whether the second explanation diluted the force of the first explanation. The point is that the second reason given by defense counsel provided the trial court with at least some evidence that the strike was racially motivated. Under these circumstances, the trial court’s decision was not clearly erroneous. See id.

2. The Josephs also assert that the trial court erred in failing to grant their motion for mistrial after the prosecutor stated during closing argument: “This case is not about race. The question of race was interjected by defense counsel during voir dire.” The Josephs argued that the comment was improper because what occurred during voir dire does not constitute evidence, and there was otherwise no evidence concerning race presented at trial. Citing numerous questions concerning race posed by defense counsel during voir dire, the State argued that the Josephs raised the issue concerning race. After further argument by counsel, the trial judge instructed the jury, without objection, that the case had nothing to do about race. We find no error in the denial of the Josephs’ motion for mistrial.

“In passing on a motion for mistrial because of an improper statement of a prosecutor, the trial judge may take such action as in his judgment will prevent harm to the defendant, and a new trial will not be granted unless it is clear that such action failed to eliminate the statement from consideration by the jury. The refusal to grant a mistrial because of the improper remarks of the prosecutor is within the discretion of the trial court pursuant to OCGA § 17-8-75, and the decision will not be disturbed on appeal absent manifest abuse.” (Citations and punctuation omitted.) Bleckley v. State, 214 Ga. App. 860 (2) (449 SE2d 351) (1994).

The trial court did not manifestly abuse its discretion here. We note, initially, the Josephs correctly assert that what occurred during voir dire is not evidence and therefore should not be raised in closing argument. See Sterling v. State, 267 Ga. 209, 212 (8) (477 SE2d 807) (1996). However, the Josephs raised no additional objection and invoked no additional ruling following the trial court’s curative instruction to the jury. “Acquiescence completely deprives [them] of the right to complain further.” (Citations and punctuation omitted.) McKibbons v. State, 216 Ga. App. 389, 392 (4) (455 SE2d 293) (1995). Furthermore, in Stewart v. State, 262 Ga. 894, 895 (3) (426 SE2d 367) (1993), where a prosecutor made a similar comment that the jury should not allow race to be a factor in their decision, our Supreme Court held: “That remark concerns race and is, perhaps, irrelevant. However, to argue that such a statement is so inflammatory and prejudicial as to deny the defendant due process of law is to go against logic and common sense. If the jury heeds the words of the prosecuting attorney, it does that which is proper and consistent with due process of law.” Id. at 895-896 (3).

Judgments affirmed.

Andrews, C. J., Birdsong, P. J., and Smith, J., concur. McMurray, P. J., and Eldridge, J., concur in the judgment only. Beasley, J., dissents.

Beasley, Judge,

dissenting.

Although I generally agree with the majority’s analysis of Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986), and Purkett v. Elem, 514 U. S. 765 (115 SC 1769, 131 LE2d 834) (1995), I cannot agree with its application of the “clearly erroneous” standard of review.

The majority affirms the trial court’s ruling that the defendants’ exercise of their peremptory strike against prospective juror no. 18 was racially motivated, because the secondary reason given by defense counsel in support of that strike “provided the trial court with at least some evidence that the strike was racially motivated.” Even if this were so, “[a] finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. U. S. Gypsum Co., 333 U. S. 364, 395 (68 SC 525, 92 LE 746) (1948).

Here, the attorneys for both defendants gave as their reason for removing juror no. 18 that they did not want any accountants on the jury. They explained why. Facts stated in the majority opinion show that this was a compelling race-neutral justification for the strike and that the State’s attempt at rebuttal failed.

As a secondary reason, Bonita Joseph’s counsel offered that this juror might have developed a bias in favor of the judge as a result of his prior service as an alternate juror. The record reflects some animosity between this attorney and the trial judge, and counsel stated that “if we wind up in controversy, I don’t want him to come against my client because the juror has already been before Your Honor on another case.” After this ancillary basis was described by the court as “ridiculous” and by the prosecution as “strong[ly] pretextual,” John Joseph’s attorney stated that he too did not “like any juror that’s already been in the same courtroom.”

The prosecuting attorney later argued that Bonita Joseph’s attorney’s second reason for this peremptory strike (the venireman’s prior jury service) was pretextual. When counsel again attempted to justify his fear as a basis for the strike, the court found that reason pretextual and ordered the juror reseated even though counsel reminded the court of the primary reason: that this juror was a CPA. John Joseph’s attorney elaborated that the CPA was a “[p]artner in a firm that represents small clients in closely held corporations” in dealings with the IRS and with the medical agency in supplying information. Counsel’s opinion was that the juror would favor the State, considering the particular issues and the nature of the case, to be tried. Counsel observed, “The anger sparked between [the court] and [Bonita Joseph’s attorney] . . . has caused this juror to be on there. . . . [I]t’s going to hurt us tremendously.” Bonita Joseph’s attorney reiterated, “It would appear that my co-counsel, co-defendant, is going to be blaming an accountant or accountants for some of the problems that have arisen. . . . We are flying in the face of an accountant that will be on the jury. That accountant’s reaction will be, ‘Yeah, see, they blamed somebody else, they blamed us.’ That’s the reasons why [co-counsel] and I discussed this, wrote it down as being a strike. Also, the record will reflect, if this particular individual indicated that there was a Medicaid waste and abuse and that was a particular problem that he had — was aware of and bothered him. Your Honor, when you strike every single person that is involved in the accounting field, across the board, black and white, I suggest it is not pretextual. . . .”

Decided March 20, 1998

Steven H. Sadow, for appellant (case no. A97A1774).

W. Michael Maloof, for appellant (case no. A97A1775).

Thurbert E. Baker, Attorney General, Charles M. Richards, Senior Assistant Attorney General, Nancy B. Allstrom, Assistant Attorney General, J. Tom Morgan, District Attorney, for appellee.

In this case, unlike Purkett, supra, the proponent of the peremptory strike articulated a justification that was not only race-neutral but also unquestionably affected the venireman’s ability to discharge his duties as a juror. There exists no basis for finding this explanation pretextual. The record shows that the trial court nonetheless found the strike to have been exercised in a racially discriminatory manner solely because the secondary reason propounded by counsel, though not racially suspect, was implausible. Regardless of legitimacy vel non of defendants’ additional reason for removing this juror, it did not dilute the force of their primary reason or tend to show that the strike was racially motivated. The trial court’s finding that the prosecution carried its burden of proving that the strike in question was racially motivated is clearly erroneous.


author:
McMurray, Presiding Judge.
      Smith, Judge,

text:
    A97A1800.
    JACKSON NATIONAL LIFE INSURANCE COMPANY v. SNEAD.
    (499 SE2d 173)
   McMurray, Presiding Judge.

William E. Snead, Jr. filed suit against Jackson National Life Insurance Company seeking to recover benefits under a $250,000 life insurance policy issued on the life of his wife, Janice Snead, who died in a drowning accident within the two-year contestable period of the policy. The complaint also sought damages and attorney fees for the insurance company’s bad faith refusal to pay. Jackson National answered, admitting that it had issued a policy on Janice Snead’s life but denying liability based upon the affirmative defense of material misrepresentation, OCGA § 33-24-7 (b). Specifically, Jackson National alleged that Janice Snead’s failure to disclose on her application for the life insurance policy that she smoked cigarettes within the 12-month period preceding the application constituted a material misrepresentation sufficient to void the life insurance policy.

The case went to trial on June 5, 1995, and the jury returned a verdict in favor of Jackson National. On November 29,1995, the trial court granted Snead’s motion for a new trial on the general grounds, and a second trial commenced in June 1996. On retrial, the jury returned a verdict in favor of Snead for the face amount of the policy and found for Jackson National on the bad faith claim. The trial court denied Jackson National’s motion for j.n.o.v., and this appeal followed.

Very few facts are not in dispute in this action, although both parties do agree to the following: On September 11, 1991, Janice Snead filled out an application for a $250,000 life insurance policy with Jackson National. She replied in the negative to two questions on the application, the first asking whether she “smoked cigarettes within the last 12 months,” and the second asking whether she “smoked cigarettes in past twelve months.” Jackson National issued a preferred non-smoker policy to Janice Snead on October 17, 1991. Janice Snead died on April 24,1992. Because her death occurred during the two-year contestable period of the policy, Jackson National hired an investigator to question co-workers and friends to determine whether Janice Snead made any misrepresentations on the policy application. Following the investigation, Jackson National denied Snead’s claim for the policy proceeds on the ground that the policy was void under OCGA § 33-24-7 (b) because Janice Snead smoked cigarettes during the year preceding her insurance application.

At both trials, the evidence was hotly disputed as to whether Janice Snead had, in fact, smoked cigarettes during the 12-month period preceding her application, September 11, 1990 through September 10, 1991. On the one hand, Jackson National presented testimony from several of Janice Snead’s co-workers that they saw Janice Snead smoke during a New Year’s Eve party on December 31, 1990. They also testified that they observed Janice Snead smoke at work on a regular basis at least through January or February 1991. Snead’s counsel vigorously attacked this testimony on cross-examination, questioning the witnesses’ memory for dates, showing a prior inconsistent statement of one witness, exploring possible grounds of bias against Janice Snead and her husband, and suggesting that Jackson National’s investigator supplied one witness with certain dates she otherwise would not have remembered.

Snead also called witnesses to testify that Janice Snead did not smoke within the 12-month period at issue. Snead, Janice Snead’s daughter, and several family friends all testified that Janice Snead quit smoking some time in March 1990, and since that time they had not seen her smoke cigarettes or smelled cigarettes on her person. Several former co-workers testified on Snead’s behalf, stating that although they no longer worked with Janice Snead during the critical time period, they had not observed her smoke at work or during social occasions since January or February 1991. A dental hygienist also testified that Janice Snead’s teeth did not reveal any stains, gum disease, or other sign of smoking in October 1989 or March 1992, although she acknowledged that intervening dental records from the same office indicated she had stained teeth and irritated gums in September and December 1991 when she was seen by another hygienist. Finally, Snead introduced testimony that Janice Snead had been administered a nicotine screen test at the time she applied for the insurance that tested negative.

Jackson National also introduced evidence contradicting Snead’s claim that Janice Snead stopped smoking in March 1990. For example, a photograph of Janice Snead taken in June 1990 was produced that showed her holding a cigarette in her hand at an office party. Janice Snead’s physician was called to testify, and medical records were introduced that showed Janice Snead visited her physician in March 1991 for a respiratory infection and asked for Nicorette samples to help her stop her “one-half pack a day” smoking habit.*

Both parties also disputed the materiality of Janice Snead’s alleged misrepresentation. Jackson National’s underwriters testified that the insurance company had a firm, bright-line policy that would have not allowed them to issue the preferred non-smoker policy to Janice Snead even if she had smoked only one cigarette in the year period preceding the application. Instead, they would have offered her a smoker policy with a 42 percent higher premium because cigarette smoking of any kind changed the nature of the risk the company was willing to assume. In Jackson National’s opinion, the representations made by Janice Snead on her insurance application about her smoking habits were material to the company’s decision to issue her a preferred non-smoker policy.

Snead called an expert witness to contradict this testimony. In his opinion, most insurance companies, using a prudent insurer standard, would have issued Janice Snead a non-smoker policy even if she had smoked one or more cigarettes in the 12 months preceding her application because the questions on the insurance application were for the purpose of screening for regular and habitual smokers, not occasional smokers; in his opinion, if the facts revealed that Janice Snead had continued to smoke cigarettes on an occasional basis through January 1991, a prudent insurer would still have issued her a non-smoker policy because her smoking habits did not increase the risk assumed by an insurance company.

At the first trial of this case, the jury found for Jackson National, and at the second trial, where substantially the same evidence was presented, the jury found for Snead.

1. Jackson National first argues that the trial court’s grant of Snead’s motion for a new trial following the first trial was error because the evidence in favor of the verdict was overwhelming and demanded a verdict in favor of Jackson National. It is well established that the first grant of a new trial on the general grounds will not be disturbed by an appellate court unless the trial court abused its discretion in granting it and the law and facts require the verdict. OCGA § 5-5-50. See Lister v. Scriver, 216 Ga. App. 741, 747 (2) (456 SE2d 83).

In the present case, in order to void Janice Snead’s policy of insurance for misrepresentation, Jackson National had the burden of proving that Janice Snead’s representations in her insurance application concerning her smoking habits were false and that these misrepresentations were material in that they changed the nature, extent, or character of Jackson National’s risk or in that Jackson National would not have in good faith issued the same policy to Janice Snead as applied for if the true facts had been known to them. See OCGA § 33-24-7; Taylor v. Ga. Intl. Life Ins. Co., 207 Ga. App. 341, 342 (427 SE2d 833). Because the evidence in this case was so clearly in conflict as to whether Janice Snead had materially misrepresented her smoking habits, we do not find that a verdict for Jackson National was demanded by the evidence. Accordingly, the trial court did not abuse its discretion in its first grant of a new trial to Snead.

2. Jackson National next argues the trial court’s order granting a new trial was a nullity because it failed to state the court’s reasons for exercising its discretion as required by OCGA § 5-5-51.

Snead’s motion for a new trial was made on the general grounds, OCGA §§ 5-5-20 and 5-5-21, and the trial court’s written order expressly applies the principle that a new trial may be granted on the general grounds “to correct what it considers to be an unfair and unjust verdict” and “to accomplish justice.” The trial court’s order was therefore in compliance with the requirements of OCGA § 5-5-51. See Central of Ga. R. Co. v. Hearn, 188 Ga. App. 277, 280 (4) (372 SE2d 834) (same language sufficient to identify two bases for ruling). There was no error.

3. In its third and fourth enumerations, Jackson National argues that at both the first and second trial, the trial court erred in failing to direct a verdict at the close of the evidence, because the evidence was overwhelming that Janice Snead had misrepresented her smoking habits on the insurance application and that such misrepresentation was material under OCGA § 33-24-7 (b) (2) and (3).

A directed verdict may be granted only when there is no conflict as to any material issue and the evidence introduced, with all reasonable deductions therefrom, demands a particular verdict. On appeal, we must decide whether all the evidence -demanded the grant of a directed verdict, or whether there was some evidence supporting the verdict of the jury. OCGA § 9-11-50 (a).

(a) Jackson National first argues the trial court erred in failing to direct a verdict on the issue of the falsity of Janice Snead’s representation that she had not smoked in the last 12 months. We disagree. As discussed in Division 1, above, the evidence on this issue was conflicting and disputed, and a directed verdict in favor of Jackson National was not demanded by the evidence. See generally Nationwide Mut. Fire Ins. Co. v. Wiley, 220 Ga. App. 442, 443 (2) (469 SE2d 302). Compare Celtic Life Ins. Co. v. Monroe, 220 Ga. App. 38, 39-40 (2) (467 SE2d 360), and Jennings v. Life Ins. Co. of Ga., 212 Ga. App. 140 (441 SE2d 479) (evidence undisputed that insureds misrepresented medical conditions on insurance applications).

(b) Jackson National also argues that a directed verdict on the issue of materiality under OCGA § 33-24-7 (b) (2) and (3) was demanded by the evidence at trial. Again, we disagree.

“In order to void a policy of insurance for a misrepresentation in the application, the insurer must show that the representation was false and that it was material in that it changed the nature, extent, or character of the risk. A material misrepresentation is one that would influence a prudent insurer in determining whether or not to accept the risk, or in fixing a different amount of premium in the event of such acceptance.” (Citations and punctuation omitted.) Sentry Indem. Co. v. Brady, 153 Ga. App. 168,170 (264 SE2d 702). “Ordinarily it is a jury question as to whether a misrepresentation is material, but where the evidence excludes every reasonable inference except that it was material, it is a question of law for the court.” (Punctuation omitted.) Miller v. Nationwide Ins. Co., 202 Ga. App. 737 (415 SE2d 700).

As discussed previously, the evidence on these issues was conflicting and disputed. Snead’s expert witness contradicted the testimony of Jackson National’s witnesses on the issue of materiality and Jackson National’s good faith under OCGA § 33-24-7 (b) and created issues of fact that were properly submitted to the jury. See United &c. Ins. Co. v. Shirley, 242 Ga. 235, 236-237 (248 SE2d 635) (whether child received “non-routine” medical care disputed). Compare Davis v. John Hancock &c. Ins. Co., 202 Ga. App. 3, 5-6 (413 SE2d 224) (where insurance company’s evidence was uncontradicted as to materiality of risk).

4. At the second trial, the trial court gave a lengthy charge to the jury on the construction of ambiguous terms in insurance contracts. A portion of that charge stated, “If an insurance policy is ambiguous or uncertain, the ambiguity or uncertainty is to be resolved against the insurer. In this regard, words used in an insurance contract must be given their usual and ordinary meaning and must be considered in light of surrounding circumstances. Stipulations and conditions of an insurance policy are to have a reasonable meaning and are to be construed, if possible, to avoid forfeitures and provide coverage and to advance the beneficial purposes intended to be accomplished.”

Jackson National contends that this instruction should not have been given because there is no ambiguity in the insurance application’s language seeking information regarding Janice Snead’s status as a “smoker.” To this issue, Jackson National’s insurance application provides, “Have you smoked cigarettes in the past 12 months?” and “HAS THE PERSON PROPOSED FOR INSURANCE: Smoked cigarettes within the last 12 months?”

The trial court found these questions ambiguous and submitted the issue of the insurance application’s alleged ambiguity to the jury in accordance with Travelers Ins. Co. v. Blakey, 255 Ga. 699 (342 SE2d 308). We agree with this determination because Jackson National’s use of “yes” or “no” options in its application, combined with its use of the word “cigarettes,” without emphasizing specifically or delving further into the insurance applicant’s status as a smoker, may have prompted Janice Snead’s negative responses based on her subjective belief that, while she possibly knew that she had slipped a cigarette or two during the year preceding her insurance policy application, Jackson National’s two “yes” or “no” questions were directed to her status as a regular user of “cigarettes.” This conclusion is supported by evidence from Snead’s expert insurance underwriter who testified that such questions on insurance applications are for the purpose of screening for regular or habitual smokers, not occasional smokers. This view is consistent with the general rule that answers to questions in an insurance application that are ambiguous and call for “yes” or “no” answers cannot be false as a matter of law. See Cockerham v. Pilot Life Ins. Co., 374 SE2d 174, 176 (1988).

“The same rule of construing an insurance policy or bond strongly against the insurer and favorably to the insured applies to an application, or matters contained therein, as to the policy itself, the instrument having been prepared by the insurer. The insurance company is also under a duty to frame questions in the application so that they will be free from misleading interpretations. When it has failed to do so, an ambiguity or doubt arises, questions and answers thereto will be construed most favorably to the insured.” 13A Appleman, Ins. Law & Practice, § 7585, pp. 254-256.

5. Jackson National contends the trial court erred in allowing into evidence Snead’s testimony describing how Janice Snead died because such evidence was immaterial to the issues presented under OCGA § 33-24-7 (b) and patently prejudicial to Jackson National. Although we agree that the cause of death was irrelevant, we do not believe it constitutes reversible error considering the small amount of detail related by the testimony concerning the cause of death, its place in the context of all the evidence and the issues of the case, and the trial court’s charge on the subject of cause of death. In such cases, the jury could be instructed by the trial court or by stipulation that the cause of death was not related to smoking tobacco. This would eliminate any prejudicial speculation.

Judgment affirmed.

Beasley, Ruffin and Eldridge, JJ, concur. Andrews, C. J., Birdsong, P. J., and Smith, J., dissent.

Smith, Judge,

dissenting.

I agree that the trial court’s order granting a new trial was valid. I also agree that the trial court did not abuse its discretion in granting Snead a new trial after a defendant’s verdict in the first trial of this case or in denying Jackson National a new trial after the verdict for Snead in the second trial. The evidence on the central issues of misrepresentation and materiality was conflicting and disputed, and a directed verdict in favor of Jackson National was not demanded by the evidence. The trial court therefore did not err in denying Jackson National’s motion for a directed verdict on either ground. But I cannot agree that the trial court correctly charged the jury; the instruction on the legal principles' of ambiguity in the second trial was harmful error.

At the second trial, the trial court gave a lengthy charge to the jury on the construction of ambiguous terms in insurance contracts. The trial court charged the jury in the language of plaintiff’s Request to Charge No. 14, that “contracts of insurance, like other contracts, are to be construed according to the sense and meaning of the terms which the parties have used, and if they are clear and unambiguous, their terms are to be taken and understood in their plain, ordinary and popular sense. If an insurance policy is ambiguous or uncertain, the ambiguity or uncertainty is to be resolved against the insurer.” Jackson National argues that this charge was inapplicable in a misrepresentation case and therefore was irrelevant and confusing. In my opinion, this conclusion is correct.

“When an error in the charge of the court is shown to exist, it is presumed to be prejudicial and harmful, and this court will so hold unless it appears from the entire record that the error is harmless. . . . Harmful error results when an inapplicable instruction might reasonably draw the jury away from the true issues in dispute or if the erroneous instruction is inapplicable to a vital issue in the case.” (Citations and punctuation omitted.) Hopkins v. First Union Bank &c., 193 Ga. App. 109, 112 (387 SE2d 144) (1989).

I would find that the trial court’s charge constituted reversible error because the two virtually identical questions in the insurance application seeking information about Janice Snead’s smoking habits were unambiguous, the first asking whether she “smoked cigarettes within the last 12 months,” and the second asking whether she “smoked cigarettes in past twelve months.” Janice Snead was asked whether she had smoked cigarettes within the last 12 months, and that was the central issue before the jury for determination. The application terms themselves were not at issue, only whether the facts showed that Janice Snead was smoking cigarettes in the year preceding her application. Because no genuine issue existed as to the meaning of the word “cigarettes” in this case, this word being neither obscurely written nor ambiguous, the court’s charge to construe the contract in favor of the insured was clearly erroneous. This is particularly so since it appears the trial court believed that Janice Snead’s subjective understanding of the meaning of terms in the insurance application was relevant.

Under the facts of this case, this error cannot be deemed harmless. “A charge which injects into the case and submits for the jury’s consideration issues not made by the pleadings or the evidence tends to confuse the jury as to the true issue in the case, is probably harmful to appellant, and is error requiring the grant of a new trial.” (Citation and punctuation omitted.) McCoy v. Alvista Care Home, 194 Ga. App. 599, 601 (391 SE2d 419) (1990). It is noteworthy that, on essentially the same evidence, the jury in the second trial was given this charge and reached the opposite verdict from the first jury, which did not receive an instruction on ambiguity. It is also noteworthy that the jurors in the second trial asked to hear this new portion of the charge a second time, indicating possible confusion on their part as well as emphasizing the importance of this language in their deliberations.

The trial court also erred in allowing into evidence Snead’s testimony describing how Janice Snead died because such evidence was immaterial to the issues presented under OCGA § 33-24-7 (b) and patently prejudicial to Jackson National. “ Any evidence is relevant which logically tends to prove or disprove any material fact which is at issue in the case, and every act or circumstance serving to elucidate or throw light upon a material issue or issues is relevant. (Cit.) Moreover, where the relevancy or competency of evidence is doubtful, it should be admitted and its weight left to the determination of the jury. (Cits.)’ [Cits.]” Ford Motor Co. v. Stubblefield, 171 Ga. App. 331, 338 (3) (c) (319 SE2d 470) (1984). But it is also true that “ ‘[a]dmission of evidence which is both irrelevant and prejudicial is harmful error. (Cits.)’. . . [Cit.]” (Emphasis omitted.) Thomason v. Harper, 162 Ga. App. 441, 442 (289 SE2d 773) (1982).

In order to recover against Jackson National, Snead had the burden of showing: (1) a life insurance policy was issued by Jackson National on the life of Janice Snead; (2) a premium was paid; (3) Janice Snead died; (4) a claim was made for the policy proceeds; and (5) Jackson National refused to pay. The parties stipulated that Janice Snead died on April 24, 1992. It is immaterial that an insured “died from an unrelated cause concerning which there was no misrepresentation.” Hopkins v. Life Ins. Co. of Ga., 218 Ga. App. 591, 593 (462 SE2d 467) (1995). The trial court charged the jury that the cause of the insured’s death was not relevant to the issue of materiality under OCGA § 33-24-7 (b). Under these circumstances, the manner of Janice Snead’s death was irrelevant to show any disputed issue at trial.

Decided March 20, 1998

Nations, Yates & Toman, J. Comer Yates, Gary J. Toman, for appellant.

Barnes, Browning, Tanksley & Casurella, Roy E. Barnes, John R. Bevis, for appellee.

The trial court was aware of the potential for prejudice and took some action to limit testimony regarding the manner of Janice Snead’s accidental death. Snead nevertheless testified in considerable detail to the circumstances of the accident, his discovery of Janice Snead in an injured state and his attempts to free her from her trapped position.

This testimony was wholly irrelevant to any disputed issue in the case, and its potential for prejudice or sympathy is suggested by the notation in the transcript that a recess was taken because a juror began to cry during this testimony. Snead’s expressed concern that the jury would otherwise have speculated regarding the cause of Janice Snead’s death could have been addressed by an instruction or stipulation that her death was an accidental drowning and unrelated to any issue on trial, or by testimony to that effect.

For these reasons, I respectfully dissent.

I am authorized to state that Chief Judge Andrews and Presiding Judge Birdsong join in this dissent.

       The action originally named as defendants two other life insurance companies who are no longer parties to the litigation.

       But Jackson National offered as a basis for two witnesses’ animosity towards Snead their testimony that Snead had asked one to change her story and was perceived by another as “trying to intimidate” or “threatening” her.

       Snead responded to this testimony by emphasizing that the photograph taken in June 1990 was not within the 12-month period preceding the insurance application.

       Snead explained this testimony by stating that he asked Janice Snead to tell her doctor she was smoking in order to obtain Nicorette samples for himself, because he had been refused any more Nicorette. The doctor denied refusing Snead Nicorette.

       The charge on ambiguity was not given at the first trial. This charge also was given to the jury a second time during deliberations at the request of the jury.