text:
    A90A2165.
    BORAL BRICKS, INC. v. OLD SOUTH TRANSPORTATION MANAGEMENT, INC.
    (402 SE2d 777)
   Carley, Judge.

A vehicle belonging to appellant-plaintiff was totally destroyed in a collision with a vehicle belonging to appellee-defendant. Thereafter, a settlement was reached except insofar as appellant’s recovery for the “loss of use” of its vehicle was concerned. As to this claim for “loss of use,” appellant brought the instant tort action against appellee. Appellee moved for summary judgment and appellant appeals from the trial court’s grant of that motion.

1. Under controlling Supreme Court authority, “[i]f personal property were injured but not destroyed, loss of [use] might be recovered as damages; but where the property was lost or destroyed by the negligent act of another, the measure of damages would be the full market value of the property at the time of the injury or loss, with interest thereon.” The Atlanta Cotton-Seed Oil Mills v. Coffey, 80 Ga. 145, 146 (5) (4 SE 759) (1887). This rule is applicable even though the destroyed property is used in business or for commercial gain. See Georgia R. & Elec. Co. v. Wallace & Co., 122 Ga. 547 (50 SE 478) (1905); Webb v. May, 91 Ga. App. 437 (85 SE2d 641) (1955). Since appellant’s truck was destroyed, it follows that the measure of recoverable damages is the full fair market value of the truck and not the “loss of use” thereof.

Moreover, even if appellant’s truck had merely sustained repairable damage and had not been destroyed, it is nevertheless clear that appellant has no viable claim against appellee. “[T]he difference in ascertainment of damages as between a total loss and a repairable vehicle serves to provide fair, reasonable, and adequate compensation for the [damage] inflicted in that the maximum recovery for a repairable automobile including loss of use may not exceed [the fair market] value before the [damage]. [Cits.]” (Emphasis supplied.) Firestone Tire &c. Co. v. Jackson Transp. Co., 126 Ga. App. 471, 478 (2) (191 SE2d 110) (1972). It is undisputed that appellant has already accepted from appellee a sum that was agreed upon as the pre-collision fair market value of the truck. Accordingly, even if this were a proper case for an award of damages for the “loss of use,” any further recovery would be barred as exceeding the maximum that is otherwise allowable.

2. Appellant contends that it is entitled to recover additional damages for the “loss of use” of its vehicle under an equitable estoppel theory. However, as noted above, appellant has no legal right to a recovery of those additional damages. Accordingly, the ultimate effect of the estoppel theory that is advanced by appellant would not be to protect it from an unconscionable loss, but to authorize a windfall of such damages as are otherwise legally non-recoverable. The purpose of equitable estoppel “is to protect a party from loss. It was never intended to work a positive gain.” Berolzheimer v. Taylor, 230 Ga. 595, 599 (198 SE2d 301) (1973). “Estoppel does not create a right ([cit.]). . . . [Cits.]” McCallum v. Almand, 213 Ga. 701, 705 (100 SE2d 924) (1957). It follows that the principle of equitable estoppel would not render the trial court’s grant of summary judgment in favor of appellee erroneous.

Judgment affirmed.

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

Decided February 22, 1991.

Hull, Towill, Norman & Barrett, Neal W. Dickert, for appellant.

Gray, Gilliland & Gold, T. Cullen Gilliland, Nancy K. Condron, for appellee.


source: Caselaw Access Project

author: Sognier, Chief Judge.

license: Public Domain

text:
    A90A2218.
    COMMUNITY NEWSPAPERS, INC. v. BAKER et al.
    (402 SE2d 545)
   Sognier, Chief Judge.

Community Newspapers, Inc., publisher of The White County News, the official organ for White County since 1976, brought this action for mandamus and injunctive relief against The Telegraph, Inc. and the White County Sheriff, Superior Court Clerk, and Probate Court Judge, challenging the decision to designate The Telegraph as the official organ. After reviewing the facts stipulated by the parties, the trial court denied the requested relief. Community Newspapers filed an appeal with the Supreme Court, which transferred the case to this court for disposition.

Appellee The Telegraph, Inc. (hereinafter “appellee newspaper”) began publication in November 1982 and, with the exception of a small number of paid subscriptions mailed outside the county, its 10,000 copies were distributed free of charge by third-class mail to all 5,371 White County postal patrons and to others in nearby areas. There were 117 paid subscribers in 1988 and 141 in 1989, and the parties have stipulated that some of those subscribers owned property in White County and lived within the county part time, although none was a permanent resident of the county. Appellee newspaper converted to paid circulation on March 6, 1990, with 2,215 paid copies comprising 91.6 percent of the total circulation of 2,418. Again, virtually all of the paid subscribers resided outside the county. On March 26, 1990, appellees sheriff, clerk, and probate judge met and decided to change the official organ of the county from appellant to appellee newspaper effective May 1, 1990.

Disposition of this case turns on the interpretation of OCGA § 9-13-142, which sets forth the prerequisites for official organs and establishes the procedure for changing the designation of the official organ. The subsection at issue is OCGA § 9-13-142 (a), which provides that “[n]o journal or newspaper published in this state shall be declared or made the official organ of any county for the publication of . . . ‘official or legal advertising’ . . . unless the newspaper shall have been continuously published and mailed to a list of bona fide subscribers for a period of two years . . . and unless 85 percent of the circulation of the newspaper or journal is paid circulation.” Appellant contends the trial court erred by concluding appellee newspaper met the requirement of being “continuously published and mailed to a list of bona fide subscribers for a period of two years” because its subscribers were not county residents. Appellant contends that the statute should be construed with OCGA § 9-13-140 (a), which provides that notices of judicial sales must be published in newspapers located in or near the county, and that when so construed the “continuously published” requirement of OCGA § 9-13-142 evinces a legislative intent to require that the subscriber list of the official organ be composed of residents of the county.

We do not agree, as the plain language of the statutes does not support appellant’s interpretation, and the Supreme Court has construed these statutory provisions in a manner that precludes the construction urged by appellant. The court has held that the “continuously published” requirement of OCGA § 9-13-142 and its predecessor, Ga. Code Ann. § 39-1103, was intended by the legislature as “ ‘evidence of stability that a newspaper ought to have before it could enjoy the status of a legal gazette which must carry legal advertisements that affect the lives and property of citizens of this State.’ ” Williams v. Athens Newspapers, 241 Ga. 274, 278 (1) (244 SE2d 822) (1978). The Williams court did recognize that the legislature intended to ensure “widespread dissemination” of the newspaper designated as the legal organ, but found that the 85 percent paid circulation requirement was the means by which that goal was to be met, and held that the test was satisfied if the newspaper met the 85 percent requirement at the time it was designated as official legal organ. Id.

The Supreme Court also has agreed with appellant’s theory that OCGA § 9-13-142 and OCGA § 9-13-140 (former Ga. Code Ann. § 39-1101) should be construed together, holding in McGinty v. Chambers, 182 Ga. 341, 342-343 (185 SE 513) (1936), that the notices described in OCGA § 9-13-140 must be published in a newspaper meeting the “continuously published” requirement of OCGA § 9-13-142. However, the court has reached a different conclusion from that urged by appellant, interpreting OCGA § 9-13-140 as requiring that the editing and publishing operations of the newspaper in which official notices are published be located as close to the county as possible. McGinty, supra at 342-344; Carter v. Land, 174 Ga. 811, 814-815 (1, 2) (164 SE 205) (1932) (construing Civil Code § 6062 (1910), predecessor to Ga. Code Ann. § 39-1101 and OCGA § 9-13-140, as evincing legislative intent to encourage local investment). Thus, the court concluded that the legislature’s intention was to ensure that the legal organ is continuously published in or near the community it serves.

Given this interpretation of the legislative purpose and meaning of OCGA § 9-13-140 and OCGA § 9-13-142, we cannot agree with appellant that the statutes, construed together, compel a finding that the legislature intended that the bona fide subscribers be local. Certainly the General Assembly intended that the official organ be a newspaper of widespread dissemination, but the Supreme Court has held that requirement to be satisfied by the 85 percent paid circulation test, Williams, supra at 278, which appellee newspaper clearly met. The statutes have been construed to require local publication, but nothing in the plain language of either statute suggests that local circulation is required for an official organ. The “continuously published” requirement is intended to ensure stability of publication and distribution, and there is no reason to conclude the legislature intended for that goal to be met by requiring local dissemination.

Decided February 22, 1991.

Steward, Melvin & House, Frank Armstrong III, Hull, Towill, Norman & Barrett, David E. Hudson, James B. Elli?igton, for appellant.

Smith, Gilliam & Williams, Kelly Ann Miles, Burroughs, LeFevre & Wynne, J. David Burroughs, for appellees.

We also cannot agree with appellant that “bona fide subscribers” should be interpreted to mean county residents. Considering the ordinary meaning of “bona fide,” see Sabel v. State, 248 Ga. 10, 12 (2) (282 SE2d 61) (1981), we note that it has been defined as “[i]n or with good faith; honestly, openly, and sincerely; without deceit or fraud,” Black’s Law Dictionary, 4th ed., p. 223; and as “[i]n or with good faith; without fraud or deceit; genuine.” Webster’s New Inti. Dictionary, 2d ed., p. 305. Accordingly, we construe the statute as requiring that the subscribers be legitimate subscribers who have paid adequate consideration for their subscriptions and who regularly receive the publication, not persons fraudulently listed by the newspaper who have not actually purchased subscriptions or whose subscriptions were paid for by the newspaper to inflate its subscriber list. While appellant makes a persuasive argument that a local circulation requirement should be imposed, that is a matter for the legislature, not the appellate courts.

The undisputed evidence shows that the trial court correctly concluded as a matter of law that appellee newspaper was continuously published and mailed to a list of bona fide subscribers for two years prior to its designation as official organ. Accordingly, appellant’s petition properly was denied. See New Era Pub. Co. v. Guess, 231 Ga. 250, 255 (201 SE2d 142) (1973).

Judgment affirmed.

McMurray, P. J., and Carley, J., concur.


author: Cooper, Judge.

text:
    A90A2219.
    ALLEN v. THOMPSON et al.
    (402 SE2d 778)
   Cooper, Judge.

Appellant, an inmate at Valdosta Correctional Institute, brings this pro se appeal from the trial court’s order granting appellees’ motion to dismiss and assessing court costs against appellant.

Appellant, pro se, originally filed this complaint against appellees, the warden of the prison and two correctional officers, alleging a violation of his constitutional rights under 42 USC § 1983. Specifically, appellant, a Muslim, alleged that his rights were violated because he was not permitted to wear his religious cap at all times, not permitted to wear religious medallions and was the victim of abusive language from certain of the appellees. Appellees filed an answer to the complaint, a motion to dismiss for failure to state a claim upon which relief may be granted and a statement of undisputed material facts. The record reflects that the trial court then issued a final order in which the court stated that the case had been scheduled for a calendar call and hearings on appellees’ motion to dismiss and a case status report. The order recited that all parties to the action were notified that a calendar call would be held and that pro se litigants were notified that they should report the status of their case in writing. The court stated that appellees were represented at the hearing but that the court had received no response from appellant nor was appellant represented at the hearing. The order further provided that appellees “move to dismiss this case for failure of Plaintiff to prosecute the action.” Without discussing the merits of the case, the court then dismissed the case with prejudice and assessed court costs against appellant. Although appellees’ motion to dismiss was based upon the lack of merit in appellant’s Section 1983 action, apparently a motion to dismiss for failure to prosecute was made at the hearing and the court’s order reflects that this was the motion that the court granted.

1. Appellant contends in two enumerations of error that the trial court erred in granting the motion to dismiss for failure to prosecute. Appellant argues that the parties had communicated with the judge and had agreed that the case could be decided by briefs alone. Appellant states that he did file a statement of his case and a brief in support thereof and he therefore was under the impression that no other response was required. Although appellees’ pleadings do reference a letter from the court, no such letter nor any written communications with the court appear in the record before us. Further, contrary to appellant’s allegations, the record does not contain any response of appellant to appellees’ motion to dismiss nor does it contain the statement of the case and brief in support thereof that appellant contends he filed. “ Tt is still the law of Georgia that the burden is upon the party asserting error on appeal to show such error by the record. [Cits.]’ ” Taylor v. Colwell Mtg. Corp., 187 Ga. App. 397, 398 (370 SE2d 520) (1988). “It should be remembered that an order of dismissal for failure to prosecute is discretionary and is subject to appellate review for abuse of discretion.” Hancock v. Oates, 244 Ga. 175, 176 (259 SE2d 437) (1979). In view of the lack of support in the record for appellant’s argument, we determine that the trial court did not abuse its discretion in dismissing appellant’s case for failure to prosecute. However, the trial court did err in dismissing the case with prejudice. Pursuant to OCGA § 9-11-41 (b), “a dismissal for failure of the plaintiff to prosecute does not operate as an adjudication upon the merits, [therefore] it follows that such a dismissal cannot be with prejudice.” Leach v. Aetna Cas. &c. Co., 172 Ga. App. 785 (324 SE2d 494) (1984). We remand this case to the trial court for entry of an order consistent with this opinion.

Decided February 22, 1991.

Lester Allen, pro se.

Michael J. Bowers, Attorney General, for appellees.

2. Appellant also contends that the court erred in assessing court costs against him since he filed a valid affidavit of indigency. The argument advanced by appellant has been decided adversely to him in Newsome v. Graham, 254 Ga. 711 (334 SE2d 183) (1985), and pursuant to the holding in that case, we uphold the decision of the trial court to assess court costs against appellant.

Judgment affirmed in part and case remanded with direction.

Banke, P. J., and Birdsong, P. J., concur.


author: Andrews, Judge.

text:
    A91A0080.
    SWEETHEART PRODUCTS, INC. v. COHEN et al.
    (402 SE2d 547)
   Andrews, Judge.

After a jury verdict in favor of Cohen on their contractual dispute, Sweetheart Products appeals, claiming that the trial court erroneously excluded certain documentary evidence from the trial.

On the morning the trial was scheduled to begin, Sweetheart’s attorney discovered an invoice relevant to manufacturing costs incurred by Sweetheart in the contract at issue. Cohen had unsuccessfully sought production of any such documents during pre-trial discovery, and the document was not listed as an exhibit on the consolidated pre-trial order entered in the case. Prior to the start of the trial, the trial court granted Cohen’s oral motion in limine to exclude introduction of the invoice into evidence because it had not been produced in response to discovery and was not listed in the pretrial order. However, the court allowed Sweetheart to introduce testimony as to the manufacturing costs it incurred. Sweetheart claims the trial court erred by granting Cohen’s motion in limine and denying its motion to amend the pre-trial order to include the invoice as an admissible exhibit.

Decided February 22, 1991.

Donald L. Mize, for appellant.

Lipshutz, Greenblatt & King, James V. Zito, for appellees.

Though the record does not reflect that Sweetheart ever expressly sought amendment of the pre-trial order to include the invoice as an exhibit, it did respond to Cohen’s oral motion in limine to explain why the invoice had not been previously produced or identified. Even if we consider Sweetheart’s response to the motion in limine to be, in effect, a motion to amend the pre-trial order, we find no error in the trial court’s exclusion of the document.

The pre-trial order “controls the subsequent course of the action unless modified at trial to prevent manifest injustice.” OCGA § 9-11-16 (b). In considering whether to allow an amendment to the pre-trial order, the trial court determines if “permitting such amendment would prevent manifest injustice and in doing so it is clothed with a broad discretion with which the appellate courts are loath to interfere.” Department of Transp. v. Baxley, 194 Ga. App. 29, 30 (389 SE2d 519) (1989). The exclusion of the invoice did not prevent a full consideration of the contested issues, since the court allowed oral testimony respecting Sweetheart’s manufacturing costs. We find no manifest injustice or abuse of discretion in the trial court’s refusal to modify the pre-trial order. Ambler v. Archer, 230 Ga. 281, 287-288 (196 SE2d 858) (1973).

Judgment affirmed.

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


text:
    A91A0122.
    TYLER v. THE STATE.
    (402 SE2d 780)
   Andrews, Judge.

Johnny Tyler appeals his conviction of burglary, contending that a mistrial should have been declared or curative instructions given after the State improperly placed his character into issue, and that his motion for a directed verdict made at the conclusion of the State’s case should have been granted because the circumstantial evidence failed to exclude every reasonable hypothesis save that of guilt. He was acquitted of theft by taking of a rifle.

Fingerprints were collected from the scene of the burglary and stolen property, including the rifle, was catalogued. The rifle’s serial number was entered on the national crime information center computer. About four months after the burglary, the stolen rifle was located at a pawn shop by another police department. It had been sold to the pawn shop by David Garcia, who said he bought the rifle from Tyler about three or four months earlier. Police matched a set of Tyler’s known fingerprints with fingerprints taken from the burglarized house. Held:

1. In his first enumeration of error, Tyler claims the State improperly placed his character into issue. During its case-in-chief, the State presented testimony from the print examiner at the State crime lab, who testified that he matched Tyler’s known fingerprints with fingerprints taken from the burglarized house. The following testimony occurred:

“Prosecutor: Were any other known prints of any other persons submitted to you?

“Print examiner: I received the SID numbers of three other individuals to compare against the latent impressions that I had received.

“Prosecutor: What’s a SID number?

“Print examiner: It’s a State Identification Number, which indicates that the person has a prior arrest record, and we have a fingerprint card in the file at the Crime Information Center.

“Prosecutor: I’ll show you State’s exhibit no. 30 and I’ll ask you if you can identify that for us please, sir.

“Print examiner: Yes sir, I can. This is a machine copy of the master fingerprint card that we have in file on the subject named and identified as Johnny Earl Tyler.”

Defense counsel requested a bench conference, and moved for a mistrial claiming that the State had placed Tyler’s character into issue. Defense counsel further stated, “[A]nd I don’t think it can be cured by any instruction given by the court. If the court rules against my motion, I would ask that no curative instruction be given because I don’t want to draw undue attention to it, but I am making a motion for mistrial.” The motion for mistrial was denied and no curative instructions were given. The court directed that the prior arrest information be deleted before State’s exhibit 30 was given to the jury.

There is no evidence that Tyler placed his own character into issue, therefore character evidence would have been inadmissible unless it was relevant to a material issue in the case and only incidentally placed Tyler’s character into issue. Lancaster v. State, 189 Ga. App. 149 (375 SE2d 281) (1988). Though evidence matching Tyler’s fingerprints to those found at the burglary was relevant to the material issue of his presence at the crime scene, additional testimony elicited by the prosecutor connecting Tyler’s prior arrest record with the State’s fingerprint card on file at the Crime Information Center had no material relevance, and may have directly implied that Tyler had a criminal record. See Stanley v. State, 250 Ga. 3, 4 (295 SE2d 315) (1982) (reference to defendant’s picture in mug books, plus testimony linking it to individuals with prior cases, identified defendant as having a criminal record and placed character into issue). Compare McKenzie v. State, 187 Ga. App. 840, 845-846 (371 SE2d 869) (1988) (mere reference to picture in mug books without additional testimony connecting it with prior criminal record did not place defendant’s character in issue), and Weldon v. State, 175 Ga. App. 172, 173 (333 SE2d 23) (1985) (reference to fingerprint record, without evidence connecting it to criminal record, does not introduce defendant’s character).

We need not decide whether this placed Tyler’s character into issue because, even if it did, the trial court properly denied Tyler’s motion for a mistrial. “When prejudicial matter is placed before the jury in a criminal case, the trial judge must decide whether a mistrial must be granted as the only corrective measure or whether the prejudicial effect can be corrected by withdrawing the testimony from consideration of the jury under proper instructions.” Stanley, supra at 4. Whether a mistrial is necessary to preserve the defendant’s right to a fair trial is a matter within the discretion of the trial judge. Id. Having specifically requested the court not to give any curative instructions if the motion for mistrial was denied, Tyler cannot now complain that none was given. Jones v. State, 250 Ga. 166, 169 (296 SE2d 598) (1982). Under these circumstances the trial court did not abuse its discretion by denying the motion for mistrial. Zackery v. State, 194 Ga. App. 434 (391 SE2d 15) (1990).

2. In his second enumeration of error, Tyler contends the trial court should have granted his motion for a directed verdict made at the conclusion of the State’s case. The State’s burglary case was based entirely on evidence of his fingerprints found at the burglarized house. To sustain a conviction based solely on fingerprint evidence, the State must prove, to the exclusion of every other reasonable hypothesis, that the defendant’s fingerprints found at the crime scene could only have been impressed there when the crime was committed. Barnett v. State, 153 Ga. App. 430 (265 SE2d 348) (1980); Brown v. State, 180 Ga. App. 188 (348 SE2d 575) (1986). The State’s circumstantial evidence is not required to exclude every hypothesis save that of guilt, but only reasonable ones. A directed verdict of acquittal should be granted only where “there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal. . . .” OCGA § 17-9-1. In reviewing the denial of a motion for a directed verdict made at the close of the State’s case, an appellate court considers not only the evidence produced in the State’s case-in-chief, but also any evidence introduced subsequent to the motion by the defense. Bethay v. State, 235 Ga. 371, 374-375 (219 SE2d 743) (1975); Hawkins v. State, 195 Ga. App. 739 (395 SE2d 251) (1990). The evidence in the case was sufficient to support the verdict. Though Tyler denied any involvement in the burglary, there was no evidence presented to explain how his fingerprints could have been left at the house at a time other than when the burglary occurred. In fact, Tyler testified he had never been in the house and did not know where it was located. On these facts, the jury could conclude that the only reasonable explanation is that Tyler’s fingerprints were impressed when the crime occurred. Brown, supra; Barnett, supra; Brown v. State, 175 Ga. App. 778 (334 SE2d 365) (1985). There was no error in the denial of appellant’s motion for a directed verdict.

Decided February 22, 1991.

Neil A. Smith, for appellant.

Michael H. Crawford, District Attorney, George N. Guest, Assistant District Attorney, for appellee.

Judgment affirmed.

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


text:
    A90A1931.
    LYNOTT v. THE STATE.
    (402 SE2d 747)
   Sognier, Chief Judge.

Jason Lynott was convicted of violating the Georgia Controlled Substances Act by selling morphine. He was sentenced to 30 years incarceration, and he appeals.

1. Construed to support the verdict, the evidence adduced at trial showed that on May 11, 1987, while working undercover, Officer Kirk Hollan of the Marietta-Cobb-Smyrna narcotics squad purchased 49 morphine pills from appellant during a meeting previously arranged by confidential informant Jimmy Scoggins, who was acting as an intermediary. Hollan testified that the type and amount of the drug and the purchase price were arranged at the prior meeting, and at the appointed time he and Scoggins met with appellant in Scoggins’ car in the parking lot of a Cobb County motel. Appellant was arrested after Hollan laid the price of the morphine — $400 in cash — on his lap and appellant placed the bottle containing the pills on the car’s console. We find this evidence sufficient to authorize the jury to convict appellant of violating the Georgia Controlled Substances Act, under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Wyatt v. State, 194 Ga. App. 159, 160 (3) (390 SE2d 85) (1990).

2. Appellant contends the trial court erred by denying his request to represent himself and failing to hold a hearing on his request. While a criminal defendant has a constitutional right to waive counsel and represent himself, Faretta v. California, 422 U. S. 806, 834-835 (95 SC 2525, 45 LE2d 562) (1975), our careful review of appellant’s requests to the trial court persuades us that although appellant expressed dissatisfaction with his final appointed counsel several times, he never stated unequivocally that he wished to represent himself. Rather, appellant’s statements indicated either that he felt he was being forced to represent himself, which is unsupported by the record, or that he wished to discharge his attorney and select another or act as co-counsel with his present appointed counsel. Regardless which request appellant made, it was not constitutionally protected. See Durham v. State, 185 Ga. App. 163, 164 (1) (363 SE2d 607) (1987); Cargill v. State, 255 Ga. 616, 622-623 (3) (340 SE2d 891) (1986). Because no unequivocal assertion of appellant’s right to represent himself was made, we find no merit in this enumeration.

3. Before trial, appellant had filed a pro se federal habeas corpus petition seeking dismissal of his criminal indictment on the basis that his right to a speedy trial had been violated. Appellant now asserts that it was reversible error for the trial judge in the case at bar to fail to recuse himself sua sponte on the ground he had been named as one of several respondents in the federal action. This enumeration is based on appellant’s belief that comments made by the trial court during a motions hearing prior to trial indicated bias stemming from the federal action. Even assuming, without deciding, that the trial court’s remarks reflected bias, we find no error in the trial court’s failure to recuse. This was not an instance where any violation of the specific standards of Canon 3 (C) of the Georgia Code of Judicial Conduct occurred, which would require sua sponte disqualification. See Pope v. State, 257 Ga. 32, 34-35 (2) (354 SE2d 429) (1987).

Moreover, USCR 25.1 provides that “[a]ll motions to recuse or disqualify a judge presiding in a particular case or proceeding shall be in writing, accompanied by an affidavit asserting the facts upon which the motion is founded, and timely filed.” See Smith v. State, 192 Ga. App. 18, 19 (1) (383 SE2d 600) (1989). Although appellant filed a motion and supporting affidavit some six months after his conviction, appellant argues that the remark was made outside his presence and thus determination of the timeliness of the motion must be based on the time appellant learned of the comments. However, the transcript shows that appellant’s attorney heard the remarks and did not object or move for mistrial, and there is no requirement in these circumstances that the waiver be exercised personally by the accused. Pope, supra at 34 (2) (a). Accordingly, we find no merit in this enumeration. Id. at 34-35 (2).

4. At a preliminary hearing approximately two years before trial, Hollan testified that he had been wearing a body bug when he met with appellant and that their conversation had been recorded, but he had not listened to the tape. At a pretrial hearing immediately before trial, Hollan stated that the tape had been erased because it was unintelligible. Appellant contends that the tape would have been exculpatory, and that the failure to preserve it was in bad faith and thus violated his right to due process under the Fifth and Fourteenth Amendments to the U. S. Constitution pursuant to Arizona v. Young-blood, 488 U. S. 51 (109 SC 333, 102 LE2d 281) (1988) and California v. Trombetta, 467 U. S. 479 (104 SC 2528, 81 LE2d 413) (1984).

At the pretrial hearing, Hollan explained that body bugs generally operate imperfectly, frequently resulting in “dead tape.” Additionally, at the time of the meeting with appellant another undercover drug buy was transpiring nearby, conversation from which was also being transmitted and recorded on the same tape because the transmission was being used for the benefit of backup officers. When he reviewed the tape approximately two months after appellant’s arrest, he concluded that it could not be useful because it included a great deal of competing conversation, and he could not distinguish the conversation with appellant. The officer who monitored the transmission as it was occurring testified that the transmission was garbled. After hearing evidence, the trial court found that there had been “a satisfactory explanation as to the tape, [and] therefore no rights of [appellant] have been violated by the fact that the tape was placed back in the tape pool and reused.” We find no error in this ruling. See generally Spaulding v. State, 195 Ga. App. 420-421 (1) (394 SE2d 111) (1990). Whether bad faith had been demonstrated was a question of fact. “The trial judge [was] the trier of facts in this matter, and resolve [d] all issues of truthfulness placed before him ([cit.]); we do not disturb his finding if there is any evidence for it. [Cit.]” Etterle v. State, 155 Ga. App. 210 (270 SE2d 376) (1980).

5. Citing Owens v. State, 251 Ga. 313, 314-317 (1) (305 SE2d 102) (1983), appellant maintains the trial court erred by failing to order disclosure of the arrangements made between Scoggins and the Cobb County police for Scoggins’ cooperation, in violation of Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963). We note initially that appellant is incorrect in his statement that his pro se motion seeking discovery of the nature of the arrangement was never ruled on by the trial court. Owens, supra, involved using a witness’ cooperation with police for impeachment purposes. Scoggins did not testify at trial, and thus the rationale of Owens is inapplicable. Moreover, Scoggins’ indebtedness to the police was elicited by appellant during Hollan’s cross-examination. “The rule regarding the disclosure of exculpatory material set forth in Brady ... is not violated when the material in question is available to the [appellant] during trial, pre-trial disclosure of materials not being required. [Cit.]” Burgan v. State, 258 Ga. 512, 513 (1) (371 SE2d 854) (1988).

6. Appellant contends his trial counsel rendered ineffective assistance. Because this issue was raised in the motion for new trial brought by appellant’s new counsel, and heard and considered by the trial court, we may properly review it. See Cook v. State, 255 Ga. 565, 578 (17) (340 SE2d 843) (1986). Having carefully considered the record in the light of appellant’s arguments, and based on the standards set forth in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), we affirm the trial court’s ruling that appellant was not denied effective assistance of counsel. Cook, supra at 578-587 (17) (h).

7. Appellant’s contention that the trial court had no jurisdiction over appellant because of the State’s failure to comply with the Interstate Agreement on Detainers Act, OCGA § 42-6-20 et seq., was not raised at trial and thus may not be reviewed here. Rios v. State, 193 Ga. App. 485, 487 (5) (388 SE2d 527) (1989).

8. Appellant asserts that his right to a speedy trial as guaranteed by the United States and Georgia constitutions was violated. As our review of the record reveals that appellant’s demand for trial was not timely filed under OCGA § 17-7-170 (a), we must examine his contention under constitutional standards. See State v. Weeks, 136 Ga. App. 637, 639-640 (2) (222 SE2d 117) (1975).

“In Barker v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101) [(1972)], the Supreme Court of the United States identified four factors which it stated the court should weigh in balancing the conduct of the prosecution and the defendant on the issue of the denial of the constitutional right to a speedy trial. These four factors are: (1) length of delay, (2) the reason for the delay, (3) the defendant’s assertion of his right, and (4) prejudice to the defendant.” Weeks, supra at 639. In the case at bar, although the delay was approximately 22 months, much of that is attributable to appellant’s hiring and discharging four different counsel prior to the final appointment. Appellant did not assert his demand for trial until almost a year after indictment, and trial commenced ten months thereafter.

In considering the possible prejudice to appellant, we must assess the circumstances in light of the interests of the defendant protected by his right to a speedy trial, including the prevention of oppressive pretrial incarceration, minimization of the accused’s anxiety and concern, and limitation of the possibility of impairment of his defense. Weeks, supra at 640 (4). In this case, appellant was released on bond, and his incarceration thereafter was on unrelated federal charges. Although appellant may well have been anxious, there is no evidence that the State intentionally delayed trial. The destruction of the tape discussed in Division 4, supra, was not a result of the passage of time. It occurred prior to appellant’s assertion of his right to a speedy trial, and no evidence exists that it was destroyed in bad faith. Appellant alleges that the loss of his address book resulted in his inability to call a certain witness, but has not shown that the address book actually existed or that he could not have located the witness in other ways. Moreover, we find no relation between the disappearance of the address book and the delay before trial. Balancing these factors, we find that appellant was not unduly prejudiced by the delay, and his constitutional right to a speedy trial was not violated. See generally Layson v. State, 188 Ga. App. 815, 816-817 (3) (374 SE2d 556) (1988).

Decided February 6, 1991

Rehearing denied February 25, 1991

Frank J. Petrella, for appellant.

Thomas J. Charron, District Attorney, Barry E. Morgan, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.

Judgment affirmed.

McMurray, P. J., and Carley, J., concur.


author: Sognier, Chief Judge. Carley, Judge,

text:
    A90A2010.
    STANOIU v. REYES et al.
    (402 SE2d 526)
   Sognier, Chief Judge.

Fermín Reyes, individually and as administrator of the estate of his deceased wife, Barbara Eve Reyes, brought suit against Adrian Stanoiu seeking damages arising from the death of Barbara Reyes at Lake Lanier shortly after a jet ski driven by Stanoiu passed close to the Reyeses, who were swimming in the lake. The jury returned a verdict in favor of Reyes, and Stanoiu appeals.

Construed to support the verdict, the evidence adduced at trial showed that appellee and the decedent were spending the day at Lake Lanier. Appellant, who was riding a jet ski, left the swimming area after he was warned by appellee not to use it around swimmers. A short time later, however, appellee and the decedent were in the swimming area, with two inflatable rafts, when appellant again appeared on the jet ski, traveling at a high rate of speed. Appellee repositioned his raft in front of the decedent’s to place himself between his wife and the skier, but appellant veered sharply and, without touching appellee or his wife, passed directly between the adjacent rafts held by appellee and the decedent and headed for shore. Appellee then jumped off his raft and took off after appellant. When appellee reached the beach, he heard his wife call out that she was dizzy, and observed her struggling. When she finally reached shore, she collapsed in his arms and went limp. Although appellee and a bystander attempted to resuscitate her and an ambulance was called, she was dead upon arrival at Buford General Hospital. Appellee testified that the decedent had been hospitalized several years before for angina, but had recovered fully and had returned to work without restriction over a year before the incident. Appellee was the only witness for the plaintiff, and no medical testimony was presented to show a cause of injury or death.

1. Appellant contends the trial court erred by denying his motions for a directed verdict and for judgment notwithstanding the verdict because appellee failed to carry his burden of proving that the decedent’s death was caused by any act of appellant. We agree and reverse.

It is fundamental that “[t]he burden of proof generally lies upon the party who is asserting or affirming a fact and to the existence of whose case or defense the proof of such fact is essential.” OCGA § 24-4-1. “To recover damages in a tort action, a plaintiff must prove that the defendant’s negligence was both the ‘cause in fact’ and the ‘proximate cause’ of the injury.” Atlanta Obstetrics &c. Group v. Coleman, 260 Ga. 569 (398 SE2d 16) (1990). In the instant case appellee alleged that the decedent died after having been literally “frightened to death” by appellant. Appellee adduced no evidence that appellant acted with deliberate and malicious intention to injure the decedent. Consequently, it was essential for him to prove that the injury was the natural and proximate result of the fright or shock caused by appellant’s act; that such a result was foreseeable; and that appellant’s act “was one of such gross carelessness, coupled with a knowledge of the probable physical results as amount to wilful disregard of the consequences.” Towler v. Jackson, 111 Ga. App. 8, 9 (140 SE2d 295) (1965). However, no evidence of the cause of death was introduced, and thus the jury was left to speculate whether the death was the result of fright and shock, an essential element of the cause of action. “It is a basic and fundamental part of the philosophy of our jurisprudence that no award, verdict, or decree should rest upon ‘speculation, which is no more than imagination.’ [Cit.]” Young Men’s Christian Assn. v. Bailey, 112 Ga. App. 684, 705 (146 SE2d 324) (1965).

Although questions of causation are usually for the jury, they will be determined by the court as a matter of law in plain and undisputed cases. Coleman, supra at 570. We find this to be just such a case because of the failure of appellee to prove an essential element of his claim. Accordingly, we reverse the trial court’s denial of appellant’s motions. See generally Turner Outdoor Advertising, Ltd. v. Werco, Inc., 194 Ga. App. 14, 15 (1) (389 SE2d 778) (1989).

Decided February 5, 1991

Rehearing denied February 25, 1991.

Kessler & Sparks, Michael A. Kessler, for appellant.

Russell, Adamson & Stell, John E. Stell, Jr., for appellees.

2. Our holding in Division 1 renders unnecessary review of appellant’s remaining enumerations.

Judgment reversed.

McMurray, P. J., concurs. Carley, J., concurs specially.

Carley, Judge,

concurring specially.

I am constrained to concur with the judgment reversing the trial court’s denial of appellant’s motions for directed verdict and for judgment notwithstanding the verdict. However, I cannot agree with all that is said in the majority opinion. In my view, the critical evidentiary deficiency in this case is the absence of any evidence as to the immediate cause of death of appellee’s wife. In other words, there was no evidence as to whether the immediate cause of death was a heart attack, stroke or other cause. If there had been any evidence as to the immediate cause of death, I believe we would be faced with a different situation. See Usry v. Small, 103 Ga. App. 144 (118 SE2d 719) (1961).


text:
    A90A2083.
    PARKER et al. v. PEAVEY et al.
    (403 SE2d 213)
   Sognier, Chief Judge.

Sallie M. Parker, individually and as executrix of the estate of her late husband, Bennie Parker, brought suit against the decedent’s adult children, Dianne Parker Peavey and George Walton Parker, to recover sums received by the children from certificates of deposit held by the decedent. A judgment was entered for Peavey and Parker after a bench trial, and Sallie Parker filed this appeal.

Appellant and Bennie Parker were married on October 6, 1986, and he died testate on December 30, 1989. Appellees are the children of the decedent and his first wife, to whom he was married for 49 years. In 1987 and 1988, the decedent established three certificates of deposit totalling $156,466 with the Peoples Bank of Lyons (the “bank”). The largest certificate, $86,887, was set up in the names of the decedent and appellant, while the other two were in the name of the decedent only. Five days after the decedent’s death, appellant and appellees went to the bank, obtained the decedent’s will and the CDs from his safe deposit box, and then proceeded to the probate court and probated the will. The will provided that appellant was to receive a life interest in the decedent’s house and land, that appellees were to receive $30,000 each, and that the balance of the estate was to be divided equally between appellees. Upon appellee Parker’s suggestion that they settle the CDs, the parties then returned to the bank. After Parker discussed the matter with Nancy Strickland, a bank official, appellant and appellee Peavey joined him inside the bank to cash the CDs. At Strickland’s direction, appellant endorsed each CD as “Mrs. Sallie M. Parker, Execut[rix] of [the] Estate of Bennie Parker.” Based on appellees’ instructions, Strickland then deposited $2,000 (the amount appellant had paid for burial expenses) into the checking account appellant had held jointly with the decedent, and issued a cashier’s check for $81,134 to each appellee.

At trial, the parties disagreed concerning appellant’s emotional state and actions at the time of this transaction. Appellant testified that she was nervous and distraught, that she “could . . . hardly sign” the CDs, and that she repeatedly protested to appellees and Strickland that the transaction was “not right.” She stated that appellees forced her to endorse the CDs, telling her that everything other than the house belonged to them. Appellant testified she did not learn until she telephoned the bank the following week that one of the CDs had been issued jointly to her and the decedent, although she did recall that the decedent had told her he had made provisions for her by purchasing a CD.

Conversely, both appellees and Strickland testified that appellant was calm, that she appeared to understand the transaction, and that several times Parker asked whether she understood what was occurring and she responded affirmatively. Appellees testified that because of appellant’s numerous statements over the prior years that she did not marry their father for his money and that she thought his money should go to his children upon his death, they concluded she intended to give the proceeds of the joint CD to them in exchange for their agreement to pay the decedent’s medical bills. The trial court held that appellant had made an inter vivos gift of the joint CD, and that in her capacity as executrix she assented to the bequest of the other CDs to appellees.

1. With regard to the two CDs issued solely in the name of the decedent, we affirm the trial court’s conclusion that appellant, as executrix, assented to their distribution to appellees. Assent may be express or presumed by the executrix’s conduct, OCGA § 53-2-109 (a); McGahee v. McGahee, 204 Ga. 91, 94 (1) (48 SE2d 675) (1948), and assent to transfer of a chose in action or other personalty is evidenced by an assignment or transfer of the chose in action to the legatees. OCGA § 53-2-109 (b). Assent to a legacy places title in the legatee and is generally irrevocable once made. McGahee, supra. Here, there is no dispute that appellant, in her capacity as executrix, transferred the CDs to appellees. Thus, assent was express and irrevocable. Although appellant argues in her brief that the short lapse of time between the probating of the will and the transfer of the CDs suggests the interests of creditors were not protected, see OCGA § 53-2-109 (d), the presence of debts did not prevent appellant from making an irrevocable assent to the legacy. Dunagan v. Elder, 154 Ga. App. 728, 729 (1) (270 SE2d 18) (1980).

2. We next address appellant’s challenge to the trial court’s finding concerning the CD issued jointly to her and the decedent. “To constitute a valid inter vivos gift, . . . (1) [t]he donor must intend to give the gift; (2) [t]he donee must accept the gift; and (3) [t]he gift must be delivered or some act which under law is accepted as a substitute for delivery must be done.” OCGA § 44-5-80. The party seeking to prove title by gift must do so by clear and convincing evidence. McGrew v. Cooper, 110 Ga. App. 347, 350 (3) (138 SE2d 453) (1964). Pretermitting whether the intent and acceptance were established, we find there was no delivery as a matter of law. “Sums remaining on deposit at the death of a party to a joint account belong to the surviving party ... as against the estate of the decedent, unless there is clear and convincing evidence of a different intention at the time the account is created.” OCGA § 7-1-813 (a). This right of survivorship vests at the death of a party to a joint account, and the terms may be changed only by closing the account and reopening it under another name, OCGA § 7-1-814 (1), or by “presentation to the financial institution of a modification agreement in a form satisfactory to the financial institution and signed by all parties with a present right of withdrawal.” OCGA § 7-1-814 (2). Moreover, payment of the funds in a joint account to the heirs or personal representative of a deceased party is not permitted unless proof is presented that the decedent was the last surviving party to the account. OCGA § 7-1-817.

The undisputed facts show that the joint CD constituted a “joint account” within the meaning of these provisions. See OCGA § 7-1-810 (1), (4); see also White v. Royal, 150 Ga. App. 57 (256 SE2d 662) (1979). This CD was not mentioned in the decedent’s will, and there is no other evidence to indicate he intended the funds deposited thereby would not belong to appellant upon his death. See Collins v. Collins, 176 Ga. App. 79 (335 SE2d 307) (1985). There being no clear and convincing evidence to contradict the statutory presumption that the decedent intended for appellant to have the right of survivorship, we find the funds deposited in this joint account belonged to appellant individually as the surviving party and not to the decedent’s estate. Id. at 80-81; see Russell v. Hall, 245 Ga; 677, 679 (2) (266 SE2d 491) (1980). As a result, appellant had no authority in her capacity as executrix to transfer the funds on deposit in the joint account, see OCGA §§ 7-1-814; 7-1-817, and thus her signature as executrix was insufficient as a matter of law to constitute a delivery of the funds to appellees.

Decided February 5, 1991

Rehearing denied February 25, 1991

M. Francis Stubbs, for appellants.

Wilkes, Johnson & Smith, Ken W. Smith, for appellees.

Judgment affirmed in part and reversed in part.

McMurray, P. J., and Car ley, J., concur.


author: Carley, Judge.

text:
    A90A2088.
    GREGORY v. CARDENAZ et al.
    (402 SE2d 757)
   Carley, Judge.

In their capacities as Richmond County Deputy Sheriffs, appellee-defendants undertook the investigation and report of a vehicular collision wherein a stop sign had been knocked down. Subsequently, appellant-plaintiff was injured in a vehicular collision at the same intersection where the earlier collision had occurred. Appellant brought suit, alleging that appellees had been “concurrently and jointly negligent in failing to secure, monitor, report and replace the . . . downed stop sign.” The trial court granted summary judgment in favor of appellees “on the basis of sovereign and official immunity” and appellant appeals from that order.

“[W]here there is a formal self-insurance plan or a policy covering official acts of a public official, sovereign immunity is waived. However, where there is no self-insurance fund [or a policy], the distinction between ministerial and discretionary acts is still viable in ruling on immunity for public officials for liability for their negligent acts.” Logue v. Wright, 260 Ga. 206 (1) (392 SE2d 235) (1990). There is no contention by appellant that Logue is not otherwise controlling authority with respect to the issue of waiver of sovereign immunity. “Accordingly, the issue presented for our consideration is whether [appellees’] actions were discretionary or ministerial.” Lewis v. McDowell, 194 Ga. App. 429, 431 (3) (390 SE2d 605) (1990).

“ ‘A ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty. A discretionary act, however, calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.’ [Cits.]” Joyce v. Van Arsdale, 196 Ga. App. 95, 96 (395 SE2d 275) (1990). In opposition to certain evidence which would show that appellees were invested with a degree of discretion in determining how to respond to a downed stop sign, appellant provided no evidence showing that appellees had any absolute and definite duty in that regard. Compare Nelson v. Spalding County, 249 Ga. 334, 336 (2a) (290 SE2d 915) (1982); Joyce v. Van Arsdale, supra. Since the evidence of record shows that appellant seeks to recover for the negligent performance of a discretionary act rather than a ministerial function, the trial court correctly granted summary judgment in favor of appellees. “[T]he law does not generally grant discretion to a public employee to act negligently. The discretionary act rule deals not with the act of negligence. The rule grants immunity to public employees who perform discretionary acts in a negligent manner. That [allegedly] happened here. The decision [with regard to how to respond to a downed stop sign] lay within [appellees’] discretion. [They] exercised this discretion. The fact that [they may have done] so negligently does not place [them] outside the rule. To say that it did would render the rule meaningless.” Logue v. Wright, supra at 207-208 (1).

Decided February 11, 1991

Rehearings denied February 25, 1991

William R. McCracken, for appellant.

Lee, Smith, Thompson, Black & Scheer, Larry I. Smith, Burnside, Wall & Daniel, James W. Ellison, for appellees.

Judgment affirmed.

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


author: Banke, Presiding Judge.

text:
    A90A2188.
    CARR v. A. P. & HARRY JONES LOGGING et al.
    (402 SE2d 538)
   Banke, Presiding Judge.

We granted the claimant’s application for discretionary appeal in this workers’ compensation case to consider whether the superior court improperly remanded the case to the board for further findings.

The claimant sustained a compensable injury to his back on February 2, 1988, for which he received temporary total disability benefits for approximately a year. The employer/insurer (hereafter referred to as appellees) then filed a form WC2 and, five days later, suspended payment of such benefits. Following a hearing, the ALJ determined that the appellees had failed to carry their burden of showing that the claimant had undergone a condition for the better and therefore reinstated total disability income benefits retroactive to the date of the suspension. The administrative law judge further ordered the appellees to pay the claimant’s attorney fees, based on a determination that they had violated Workers’ Compensation Board Rule 221 (i) (4) by failing to attach supporting medical documentation to the form WC2 and that they had violated OCGA § 34-9-221 (i) by the manner in which they had discontinued the payment of disability benefits. Upon de novo review, the full board found no violation of Rule 221 (i) (4) but did agree that the appellees had violated OCGA § 34-9-221 (i) by failing, without reasonable grounds, to give the claimant ten days notice of its intention to suspend benefits, with the result that they should be required to pay attorney fees pursuant to Board Rule 221 (i) (1) and OCGA § 34-9-108 (b) (2). On appeal, the superior court remanded the case to the board for further inquiry and findings, both as to the decision to award attorney fees and as to the amount of the award. Held:

1. Board Rule 221 (i) (1) specifies that the “[suspension of benefits at any time on the grounds of change in condition requires advance notice of 10 days unless the employee has actually returned to work.” See also OCGA § 34-9-221 (i); Jackson v. Peachtree Housing Div. &c. Indus., 187 Ga. App. 612 (371 SE2d 112) (1988). Under OCGA § 34-9-108 (b) (2), “[i]f any provision of Code Section 34-9-221, without reasonable grounds, is not complied with and a claimant engages the services of an attorney to enforce his rights under that Code section and the claimant prevails, the reasonable fee of the attorney, as determined by the board, and the costs of the proceedings may be assessed against the employer.” Whether noncompliance with OCGA § 34-9-221 is without reasonable grounds is an issue of fact to be determined by the board, and its decision will be affirmed by this court if there is any evidence to support it. See Southwire Co. v. Crapse, 190 Ga. App. 383 (378 SE2d 742) (1989). In the present case, the board specifically determined that the appellees’ failure to provide the appellant with ten days notice of the suspension of his disability benefits constituted a violation of OCGA § 34-9-221 (i) in that such failure was “without reasonable grounds.” Since there is evidence in the record to support this finding, the superior court was required to affirm it.

2. The appellees concede on appeal that the size of the attorney fee award was supported by the evidence. See generally Copelan v. Burrell, 174 Ga. App. 63 (2) (329 SE2d 174) (1985). We consequently hold that the superior court also erred in remanding for further findings on that issue.

3. The superior court additionally determined that the claimant would not be entitled to a 15 percent penalty with respect to those disability benefits which had been temporarily suspended by the administrative law judge pursuant to an interlocutory order. However, our review of the board’s final award reveals that no such penalty was assessed.

Decided February 13, 1991

Rehearing denied February 25, 1991.

Larry N. Hollington, for appellant.

Hull, Towill, Norman & Barrett, George R. Hall, for appellees.

4. For the foregoing reasons, the judgment of the superior court is reversed with direction that the award entered by the board be affirmed.

Judgment reversed with direction.

Birdsong, P. J., and Cooper, J., concur.


text:
    A90A2232.
    THRASH et al. v. ATLANTA METRO LEASING, INC.
    (402 SE2d 769)
   Banke, Presiding Judge.

The appellants were injured in a collision while riding in a taxicab owned by Checker Taxi Cab Company. Checker was a member company of the appellee, a self-insurance group holding a certificate of self-insurance issued by the Department of Public Safety. The appellee paid the appellants’ claims for basic personal injury protection, or no-fault, benefits arising out of the accident but rejected their demand for optional PIP benefits, prompting them to file the present action to recover such benefits, along with a bad faith penalty, punitive damages, and attorney fees.

In its application to the Department of Public Safety for a certificate of self-insurance, the appellee agreed only to provide the minimum amount of no-fault coverage ($5,000) required by OCGA § 33-34-4 (a) (2). However, the appellants nevertheless contend, in reliance on such cases as GEICO v. Mooney, 250 Ga. 760 (300 SE2d 799) (1983); Flewellen v. Atlanta Cas. Co., 250 Ga. 709 (300 SE2d 673) (1983); and Jones v. State Farm Mut. &c. Ins. Co., 156 Ga. App. 230 (274 SE2d 623) (1980), that the appellee obligated itself to provide $50,000 in PIP coverage by failing to make an explicit rejection of such optional coverage in its application. The case is before us on appeal from an order granting summary judgment to the appellee. Held:

It has been held that “a plan and certificate of self-insurance serve as the substantial equivalent of a no-fault policy for the purposes of the no-fault act.” Twyman v. Robinson, 255 Ga. 711, 712 (342 SE2d 313) (1986). However, it has also been held that “the rationale of Jones, Flewellen and Mooney has efficacy only where there is a dispute between a policyholder and an insurer as to optional coverage,” Bailey v. Ga. Mut. Ins. Co., 168 Ga. App. 706, 708 (309 SE2d 870) (1983), and that “a demand for increased coverage by the policyholder is necessary before those who would be incidental or third party beneficiaries as ‘other insureds’ can seek optional benefits.” Id. Accord Vandergriff v. Travelers Ins. Co., 172 Ga. App. 198 (322 SE2d 522) (1984); Allen v. Industrial Indem. Co., 181 Ga. App. 31 (1) (351 SE2d 251) (1986).

Decided February 14, 1991

Rehearing denied February 25, 1991

Robert Altman, for appellants.

Parkerson & Shelfer, I. J. Parkerson, for appellee.

Clearly, the appellants in this case cannot be considered “holders” of the certificate of self-insurance which was issued to the appellee. Rather, their status with respect to the appellee’s self-insurance certificate is analogous to that of a third-party beneficiary or “other insured” under a motor vehicle insurance policy. It follows that the trial court did not err in granting the appellee’s motion for summary judgment.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.


text:
    A90A1813.
    LEE v. HENSON.
    (402 SE2d 548)
   Banke, Presiding Judge.

On February 13, 1986, the appellant filed suit against the appellee to recover damages for injuries sustained in an automobile accident which had occurred on March 7, 1985. Service was perfected on the appellee five days later; however, he failed to file an answer. On March 13, 1987, after the expiration of the two-year statute of limitation, the appellant caused a copy of the complaint and summons to be served on his own uninsured motorist carrier, Universal Insurance Company, which responded by denying liability based on the running of the statute of limitation.

The case appeared on a trial calendar on March 30, 1987. The appellant made no appearance at that time; and the trial court, having evidently been misinformed that the case had settled, entered a “final settlement order” reciting that the complaint would be dismissed after 30 days if neither party moved to prevent it. An order of dismissal was entered on May 28, 1987, following which the appellant’s counsel advised the trial court, by letter dated June 2, 1987, that the case had not in fact been settled. However, he did nothing further until approximately 27 months later, when he filed a motion to set aside the dismissal pursuant to OCGA § 9-11-60 (d) (2) on the ground that it had been entered “as a result of fraud, accident, or mistake or acts of the adverse party unmixed with negligence or fault of the movant. . . .” In an affidavit submitted in support of this motion, the appellant’s counsel explained that the reason he had not appeared at this calendar call on March 30, 1987, was because he had been “advised by [the judge’s] staff” that his presence was not required. He further averred that he had not received a copy of the order which the trial court had entered at that time specifying that the case would be dismissed after 30 days if neither party moved to prevent it. The trial court denied the motion to set aside on the ground that the appellant had waited over two years to seek such relief from the dismissal order and had failed to offer any explanation for the delay. The case is before us pursuant to our grant of the appellant’s application for a discretionary appeal from that ruling. Held:

The appellant contends that the motion to set aside was timely filed pursuant to OCGA § 9-11-60 (f), which provides that such a motion may be brought within three years from the entry of the judgment complained of. However, the grounds upon which he sought to set aside the motion, i.e., “fraud, accident, or mistake or the acts of the adverse party unmixed with the negligence or fault of the movant,” are equitable in nature, being identical to those which previously constituted the basis for a complaint in equity to set aside a judgment. In 1986, OCGA § 9-11-60 (d) was amended so as to authorize the bringing of a motion to set aside on these grounds, and § 9-11-60 (e) was amended to read that “[t]he use of a complaint in equity to set aside a judgment is prohibited.” Ga. L. 1986, p. 294, § 1. See Bagwell v. Parker, 182 Ga. App. 313, 314 (355 SE2d 463) (1987). “ ‘(A) petition in equity would have been to no avail if [the appellant] knew or should have in the exercise of reasonable diligence discovered th[e] ground [asserted]. [Cit.] This same diligence rule applies where appellant uses a motion to set aside the judgment and he is precluded from using the ground which he had known or could have discovered through reasonable diligence.’ [Cits.]” Marshall v. Marshall, 257 Ga. 494, 495 (360 SE2d 572) (1987).

In the present case, the appellant’s counsel was obviously aware of the existence of the dismissal order within a few days after it was entered, since he wrote to the trial court to advise that the order was in error in that the case had not actually been settled, yet he waited more than two years to move to set it aside on that ground and offered no explanation for the delay. The trial court was authorized under these circumstances to conclude that the appellant was es-topped by laches from seeking to set aside the dismissal on the equitable grounds set forth in OCGA § 9-11-60 (d) (2).

Decided February 25, 1991.

Guy G. Michaud, Christopher J. McFadden, for appellant.

Lane, OBrien & Coburn, Richard T. Taylor, Webb, Carlock, Copeland, Semler & Stair, Dennis J. Webb, Marvin D. Dikeman, for appellee.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.


text:
    A90A1862.
    SHEPPARD v. REID.
    (402 SE2d 793)
    Decided February 25, 1991.
   Banke, Presiding Judge.

The appellant instituted a paternity action against the appellee, seeking to have him declared the father of her two children. The case was tried before a jury, which returned a verdict in favor of the appellee. The case is before us pursuant to our grant of the appellant’s application for a discretionary appeal from the denial of her motion for new trial. The sole issue on appeal is whether the trial court erred in prohibiting the appellant from using a tape recording of a conversation between herself and the appellee, made while the two of them were alone in a car, to impeach the latter’s testimony that he was not the father of the children. Held:

In concluding that the recording could not be used for impeachment purposes, the trial court relied on Division 3 of Ransom v. Ransom, 253 Ga. 656 (324 SE2d 437) (1985), wherein the Georgia Supreme Court held that a wife’s private telephone conversations with a third person, recorded by her husband without her knowledge or consent in violation of OCGA § 16-11-62 (1), could not be used against her in a divorce trial for the purpose of impeachment. See OCGA § 16-11-67. However, that case has no applicability to the present situation, since OCGA § 16-11-62 does not prohibit the recording of a conversation by one of the actual parties thereto. See Mitchell v. State, 239 Ga. 3 (1) (235 SE2d 509) (1977); Evans v. State, 252 Ga. 312, 318 (314 SE2d 421) (1984). Accordingly, we hold that the trial court erred in excluding the tape recording.

Judgment reversed.

Birdsong, P. J., and Cooper, J., concur.

Charles R. Sheppard, for appellant.

0. L. Collins, for appellee.


text:
    A90A2014.
    ENGLAND et al. v. GEORGIA-FLORIDA COMPANY.
    (402 SE2d 783)
   Carley, Judge.

The relevant facts in this appeal are as follows: Upon being informed that its insurance policy would not be renewed upon expiration, appellee-plaintiff engaged appellant-defendants to secure a replacement policy which provided the “same coverage.” After a replacement policy had been obtained, appellee suffered two losses which apparently would have been covered under the expired policy, but which were not covered under the replacement policy. Appellee brought suit, seeking to recover in contract and in tort for appellants’ failure to have secured a replacement policy which provided the “same coverage.” After a mistrial was declared in the original trial of the case, it was retried before a jury and a verdict was returned in favor of appellee. Appellants appeal from the judgment that was entered by the trial court on the jury’s verdict.

1. Appellants moved for a directed verdict as to appellee’s recovery under a negligence theory. The trial court’s denial of that motion is enumerated as error.

Under the evidence, appellants had no discretion as to the types or amounts of coverage that they were to attempt to secure for appellee. Appellants were obligated only to attempt to secure a replacement policy which provided the “same coverage” as that which had been provided under the expired policy. Therefore, any reliance upon Wright Body Works v. Columbus Interstate Ins. Agency, 233 Ga. 268 (210 SE2d 801) (1974) as a basis for appellee’s recovery under a negligence theory is misplaced. The alleged negligence is not based upon an exercise of expert discretion, but upon a failure to obtain specified coverage. Therefore, the instant case is not otherwise within the Wright Body Works exception to the general rule that one who had sought, but did not receive, specified coverage has no viable negligence claim if, prior to suffering the uninsured loss, he had the alleged non-conforming policy in his possession. See generally Greene v. Lilburn Ins. Agency, 191 Ga. App. 829 (383 SE2d 194) (1989). A plaintiff who has “the policy in [his] possession prior to the [uninsured loss is] charged with the knowledge of the terms and conditions of the policy, namely and in particular that the policy coverage was . . . not ... as contracted for between the parties. [Cit.] Consequently the plaintiff being, under the law, charged with knowing the terms and conditions of the policy, any negligence, if any, on the part of the defendant in failing to procure the amount [or type] of insurance coverage contracted for could have been avoided by the plaintiff and therefore a finding for the defendant is demanded.” S & A Corp. v. Berger & Co., 111 Ga. App. 39, 40-41 (1) (140 SE2d 509) (1965).

Since the instant case is not within the exception to the general rule, it follows that the correctness of the trial court’s ruling on appellants’ motion for a directed verdict is ultimately dependent upon whether appellee had the replacement policy in its possession prior to suffering the uninsured loss. If appellee did have the replacement policy in its possession, then its own negligence in failing to have read it so as to discover that it did not provide the “same coverage” as the expired policy is a bar to a recovery in negligence against appellants. If appellee did not have the replacement policy in its possession, then the failure to have read it and discovered the lack of the “same coverage” would not preclude a recovery in negligence against appellants.

The record demonstrates that appellee did not have the replacement policy in its possession prior to the occurrence of one of the uninsured losses. Accordingly, the trial court did not err in denying appellants’ motion for a directed verdict as to appellee’s recovery in negligence for that loss. However, the record also demonstrates that appellee did have the policy in its possession prior to the occurrence of the other uninsured loss. Accordingly, the trial court did err in denying appellants’ motion for a directed verdict as to appellee’s recovery in negligence for that loss.

We cannot say that this error was harmless. Although appellee had a viable contract claim as to both uninsured losses, it had a viable tort claim as to only one of those uninsured losses. The general verdict that was returned may well have been based upon the erroneous legal theory that appellant was liable in tort for both losses. Accordingly, the judgment must be reversed and a new trial held wherein the issue of appellants’ tort liability is properly limited. OCGA § 9-11-50 (e).

2. Appellants moved for a directed verdict based upon appellee’s failure to prove compensatory damages. The denial of that motion is also enumerated as error.

Because the judgment must be reversed for the reasons discussed in Division 1, we need not determine whether this enumeration of error is also viable. However, we would point out that, in a case such as this, appellants could be found liable “for any resulting loss. [Cit.] ” Wright Body Works v. Columbus Interstate Ins. Agency, supra at 270. This means that appellee could recover for the resulting uninsured “loss or damage to the limit of the agreed policy. [Cits.]” Beiter v. Decatur Fed. S&L Assn., 222 Ga. 516, 518 (2) (150 SE2d 687) (1966). Thus, appellee’s recovery of compensatory damages for their uninsured losses is necessarily dependent upon proof of the amount and type of insurance coverage that would otherwise have been provided for those losses under the “same coverage” as the expired policy. To the extent that appellee may have incurred expenses or losses which would not be covered under the “same coverage” as that provided by the expired policy, those expenses or losses are in no way traceable or attributable to appellants’ alleged negligence or breach of contract in having failed to secure that “same coverage.” “Whether such damages as are here sued for arise by reason of a tort or the breach of a contract, they are given to the injured party as compensation for the injury sustained. [Cits.] An injured party can not be placed in a better position than he would have been in if the contract had not been breached. [Cits.]” Lastinger v. City of Adel, 69 Ga. App. 535, 536 (26 SE2d 158) (1943).

3. Appellants enumerate as error the denial of their motion for a directed verdict as to appellee’s recovery of punitive damages and attorney’s fees. Notwithstanding the allegations of appellee’s complaint, our review of the record demonstrates no evidence which would have authorized a submission to the jury of the issue of appellants’ liability for punitive damages and attorney’s fees. The evidence of record shows only the breach of a duty which would authorize a recovery of compensatory damage in tort or contract, and does not show the existence of such circumstances as would authorize a recovery of additional elements of damage. Accordingly, the denial of the motions for directed verdict as to appellants’ liability for punitive damages and attorney’s fees was erroneous.

4. Over objection, appellee was allowed to introduce evidence as to the prior bankruptcy of a corporation which had been owned by appellant England. This evidentiary ruling is enumerated as error.

Assuming that the prior existence of another corporation may have been relevant to any issue in the instant case, the prior bankruptcy of that other corporation appears to have no relevancy whatsoever. In any event, the record before us does not authorize the conclusion that the purported relevancy of this evidence outweighed its potentially prejudicial effect. Unless the contrary is clearly demonstrated at retrial, an objection to the admission of this evidence should be sustained.

5. In the original trial, one of appellee’s witnesses made an irrelevant and prejudicial reference to the existence of appellant England’s professional liability insurance and it was that very reference which resulted in the grant of a motion for mistrial. During his direct examination in the instant retrial, this witness did not repeat the irrelevant and prejudicial reference. However, on cross-examination, appellants nevertheless had the witness acknowledge that his current testimony differed in some otherwise unspecified manner from his prior testimony in the original trial. At the conclusion of cross-examination, appellee sought to have the entirety of its witness’ prior testimony, including the irrelevant and prejudicial reference to the existence of liability insurance, introduced as rebuttal evidence. Over appellants’ objection, the trial court admitted the rebuttal evidence and this evidentiary ruling is enumerated as error.

Decided February 25, 1991.

Dennis, Carry, Porter & Thornton, Michael T. Thornton, Andrew H. Schultz, for appellants.

Thomas J. Ousley, for appellee.

“In rebuttal of testimony offered to impeach a witness by proof of previous contradictory statements [made] . . . under oath, all [of] the testimony given by [that witness] at the former hearing was admissible to show that on the whole it was consistent with [his] testimony at the present trial.” (Emphasis supplied.) Wynes v. State, 182 Ga. 434 (3) (185 SE 711) (1936). Moreover, the door for the admission of the rebuttal evidence was opened by appellants’ own erroneous attempt to impeach the witness by eliciting his acknowledgment that his current trial testimony differed from that given by him in the original trial. The witness’ current trial testimony was inconsistent only insofar as it omitted the prior irrelevant and prejudicial reference to the existence of liability insurance, and the omission of that prior irrelevant and prejudicial reference from the witness’ current trial testimony was certainly not a ground for his impeachment. “[A] witness may not be impeached by contradictory statements previously made by him as to immaterial matters not relevant to his testimony and to the case. [Cits.]” (Emphasis supplied.) Green v. State, 138 Ga. App. 48 (1) (225 SE2d 495) (1976). Accordingly, the trial court did not err in admitting the rebuttal evidence.

6. Remaining enumerations of error, not otherwise addressed, have either become moot by virtue of our previous holdings or are not likely to recur at trial.

Judgment reversed.

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


author: McMurray, Presiding Judge.

text:
    A90A2025.
    SAULSBERRY v. THE STATE.
    (402 SE2d 550)
   McMurray, Presiding Judge.

Defendant Saulsberry appeals his convictions of the offenses of trafficking in cocaine, possession of a firearm during the commission of a felony, and carrying a concealed weapon. No appeal is taken from a fourth conviction arising from the same incident for improper lane usage. The sole enumeration of error raises issues as to the sufficiency of the evidence to authorize the convictions appealed. Held:

The evidence construed most strongly in favor of the verdict shows that: Davis was visiting his sister in Miami, Florida. When Davis went to visit a friend in the Overtown section, he happened to run into defendant whom he knew from high school in Waynesboro, Georgia, but had not seen in the past five years. Davis agreed to give defendant a ride home to Waynesboro and the two began the journey on the evening of June 21, 1988. During the trip Davis and defendant took turns driving. Defendant was driving at approximately 2:54 a.m. the following morning when a Liberty County deputy sheriff running radar on Interstate 95 observed the travelers’ vehicle weave across the centerline and pulled them over. Defendant presented his driver’s license upon request and referred the deputy to Davis when asked about the ownership of the automobile. Davis responded to the deputy’s questions indicating he owned and controlled the car. When asked to consent to a search of the car for weapons or contraband, Davis first indicated that he did not have anything and then surrendered to the deputy a .25 caliber pistol which had been concealed in a black bag near his person. Davis was placed under arrest and during the subsequent search of the car a brown paper bag was found under the driver’s seat. In the paper bag were eight plastic bags containing a total of 213 grams of crack cocaine with a purity of about 90 percent. Additionally, a state trooper, who provided back-up to the deputy, assisted in the search and found a loaded .38 caliber pistol underneath the driver’s side floor mat underneath the steering wheel. The trooper testified that the driver of the vehicle would have at least known that there was something underneath the floor mat since the mat would not lay down flat and it was obvious something was underneath it. Davis testified that the car was registered in his wife’s name and that he owned the .25 caliber pistol, but that he had no knowledge of the .38 caliber pistol or the cocaine prior to their being stopped and arrested.

Defendant testified that he had no knowledge of a gun underneath the floor mat, was sure that he would have noticed the gun if it had been there, and had not seen either of the guns until after they were stopped. Defendant also stated that he had not seen any cocaine on the trip back, that the cocaine was not his, and that he did not know whose cocaine it was.

While there was some evidence concerning a hitchhiker that Davis and defendant had given a ride for some distance, there was no evidence that the hitchhiker had left anything in the car. The hitchhiker had not been seated in the driver’s seat and in view of the value of the cocaine of at least $8,000, the jury was authorized to reject any supposition that the contraband had been abandoned.

The resolution of the conflicts in the testimony of Davis and defendant was for the jury. The jury in the case sub judice obviously chose to believe Davis and to reject defendant’s testimony, and from this beginning point infer that defendant had possession of the cocaine and the .38 caliber pistol. Christian v. State, 195 Ga. App. 703 (394 SE2d 627). The evidence, construed in the light most favorable to the verdict, was sufficient to enable a rational trier of fact to find the defendant guilty beyond a reasonable doubt of trafficking in cocaine, possession of a firearm during the commission of a felony, and carrying a concealed weapon. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Pye v. State, 196 Ga. App. 531 (1) (396 SE2d 250).

Decided February 25, 1991.

Robert F. Pirkle, for appellant.

Dupont K. Cheney, District Attorney, J. Stephen Archer, Assistant District Attorney, for appellee.

Judgment affirmed.

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


text:
    A90A2305.
    CITY GROUP, INC. et al. v. EHLERS.
    (402 SE2d 787)
   Banke, Presiding Judge.

The appellee, Ehlers, brought this action to collect the balance allegedly due on a promissory note executed by one of the appellants, City Group, Inc., and guaranteed by the other appellant, Gresham. Both appellants denied liability, and, in addition, City Group filed a counterclaim seeking damages for the appellee’s alleged breach of a severance agreement executed contemporaneously with the promissory note. The case is before us on appeal from the grant of Ehlers’ motion for summary judgment.

The note and severance agreement were executed in connection with Ehlers’ resignation as president of City Group. The agreement obligated City Group to pay him $20,000 immediately and to give him a promissory note for an additional $80,000, payable in eight monthly installments of $10,000. The agreement further provided that the parties would “refrain from any disparagement of the character, personal, professional or business conduct, and personal, professional or business activities of each other. . . .”

City Group made the first three monthly payments called for by the note but failed to make the fourth payment. City Group and Gresham contend that they are not obligated for the balance because Ehlers violated the “no disparagement” clause in the agreement by making certain “false and disparaging” comments concerning them which were reported in an article appearing in the Atlanta Business Chronicle. In this article, the appellee was quoted as saying that he had resigned from City Group due to “philosophical differences.” He continued: “I didn’t agree with the partners. It was hard to define the direction of the company. (Gresham) had other outside interests, and it was politics. Legislators don’t have the luxury of going to the legislature for a few months and that’s it. It’s a demanding job.” City Group seeks in its counterclaim to recover for loss of business it allegedly suffered as a result of these comments. The trial court granted summary judgment to the appellee based on a determination that the comments could not be considered disparaging. Held:

Decided February 25, 1991.

Cofer & Beauchamp, Charles V. Choyce, Jr., Bryant K. Smith, for appellants.

Harman, Owen, Saunders & Sweeney, Timothy J. Sweeney, David C. Will, for appellee.

1. The term, “disparagement,” is defined in Webster’s Third New Inti. Dictionary (1961) as “diminution of esteem or standing and dignity; disgrace . . . , the expression of a low opinion of something; detraction. . . .” We must agree with the trial court that there is no reasonable interpretation of the comments attributed to Ehlers which could be considered disparaging. He had quite evidently been asked by the reporter to explain his reasons for leaving the company, and the reasons he gave neither demeaned the company nor suggested a low opinion of any of its remaining personnel. Indeed, the effect would undoubtedly have been more disparaging had he answered the reporter’s questions with a simple, “no comment,” rather than responding to it as he did. Accordingly, we hold that the trial court did not err in granting summary judgment to the appellee.

2. The appellee has moved for imposition of damages against the appellants pursuant to OCGA § 5-6-6 for filing a frivolous appeal. Although we find no merit in the appeal, we do not find it so devoid of arguable merit as to warrant the conclusion that it was filed for delay only. Accordingly, the motion is denied.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.


author: Birdsong, Presiding Judge.

text:
    A91A0005.
    BROWNLOW v. CITY OF CALHOUN.
    (402 SE2d 788)
   Birdsong, Presiding Judge.

Appellant, E. R. Brownlow, appeals the order of the superior court granting appellee/defendant’s motion to dismiss.

Appellant who apparently operated some type of trucking business purchased certain land and applied to appellee City of Calhoun twice to change applicable zoning classifications, and to re-issue appellant’s business license. Appellee denied appellant’s requests. The application for a business license was denied on the grounds that “to grant a business license would be in violation of the zoning ordinance of the City of Calhoun,” and the application “is a non-conforming use in regard to the zoning of the property and is also a change in type and intensity of use.” Appellant asserts in his brief the “property [previously] had been used for trucking purposes for more than twenty years. . . .”

Appellant initiated suit in superior court. Review of the complaint on its four corners, coupled with admissions in judicio regarding the style of the case contained in appellant’s brief, reflect that the nature of appellant’s cause of action is primarily grounded upon a theory of inverse condemnation. In addition to reasonable attorney fees and such other relief as just and proper, appellant’s prayer for relief seeks a money judgment, in an amount shown at trial, for consequential damage to plaintiff’s remaining property, and a money judgment equal to the fair market value of the property rights taken by the City. Held:

1. Appellee’s motion to dismiss is denied.

Before this court appellee poses the following: “Is the issue of whether or not a constitutional question [sic] been properly raised and, if so, whether it is required to be raised in a zoning hearing an actual question of constitutionality or procedural. If this is a question of constitutionality, then it is clear that the Supreme Court . . . would have jurisdiction. See Trend Development Corp. v. Douglas Co., 259 Ga. 425 (383 SE2d 123).” We find that the question is a question of appellate procedure. Trend is not controlling. Regarding the requirement for timely raising constitutional attacks on a zoning ordinance before the local governing body or a board of zoning appeals, see generally Shockley v. Fayette County, 260 Ga. 489 (396 SE2d 883).

Appellee, citing Cobb County Bd. of Commrs. v. Poss, 257 Ga. 393 (359 SE2d 900) and Trend, supra, also asserts that if the case sub judice arose and is to be characterized as a de novo appeal to the superior court then under the interpretation of the Trend, decision, de novo decisions are to be appealed by application for discretionary appeal and not by direct appeal. But compare Shockley, supra at 492, n. 2 (concurring opinion). Pleadings are to be construed to serve the best interest of the pleader, judging the pleadings by their function and substance. Gully v. Glover, 190 Ga. App. 238, 239 (1) (378 SE2d 411). Not only do appellant’s pleadings not bear the nomenclature of a de novo appeal, but the substance and function thereof clearly establish suit was commenced as an original suit■ in superior court on the principal theory of inverse condemnation. Reviewing the record in its entirety, including the pleadings and the pretrial orders of the parties, we conclude that the action initiated was not filed as an appeal de novo of the zoning decisions of the City of Calhoun.

Moreover, construing Chapter 6 of Title 5 of OCGA, including OCGA § 5-6-35 (a) (1) thereof, liberally as we are required to do so as to strive to bring about a decision on the merits of every case appealed and to avoid dismissal whenever possible (OCGA § 5-6-30), we are satisfied that the word “condemnation” as it appears in the exceptions to the rule of OCGA § 5-6-35 (a) (1) was intended by the legislature to except “inverse” as well as classic condemnation cases therefrom.

2. Appellant asserts that the “ante litem” notice provision of OCGA § 36-33-5 is not applicable to the case at bar. We disagree.

Appellant has primarily grounded this suit on inverse condemnation and has continuously sought the recovery of money damages as unequivocally evidenced by the contents of his complaint and pretrial order. OCGA § 36-33-5 (a) pertinently provides that “[n]o person . . . having a claim for money damages against any municipal corporation on account of injuries to person or property shall bring any action against the municipal corporation for such injuries, without first giving notice as provided in subsection (b) of this Code section.” (Emphasis supplied.) It is apparent from the plain, unequivocal, and practical language of this statute that the notice requirements applied to this suit, as it was a suit for money damages against a municipal corporation on account of asserted injuries to appellant’s property rights. Compare Stambaugh v. City of Demorest, 221 Ga. 527 (2) (145 SE2d 539), citing Thompson v. City of Atlanta, 219 Ga. 190 (1) (132 SE2d 188). Even when strictly construed as required by City of Atlanta v. J. J. Black & Co., 110 Ga. App. 667 (1) (139 SE2d 515), the literal meaning and plain language of OCGA § 36-33-5 (a) remain clear and do not lead to any absurd or impractical consequences; accordingly, the court simply construes this statue according to its terms and conducts no further inquiry. Diefenderfer v. Pierce, 260 Ga. 426, 427 (396 SE2d 227).

Harrell v. Monroe County, 147 Ga. App. 685 (250 SE2d 20) and City of Atlanta, supra, are factually distinguishable from this case.

Appellant’s belated attempt to comply with the notice requirements of OCGA § 36-33-5 by amending his complaint and attempting to serve notice in February of 1990, approximately one-and-one-half years after his complaint was filed is not in compliance with the provisions of OCGA § 36-33-5 (b), as such notice was not given until after suit was initiated and additionally was not within six months of the happening of the event or events upon which appellant’s claim against the municipality was predicated. Compare Stambaugh, supra at 528 (2). As further evidence of this fact, the record reflects that appellant made no attempt to amend his original complaint to assert any new or different cause of action; accordingly, the claim upon which appellant relies perforce was in existence more than six months before his belated notice was tendered. As appellant’s conduct also fails to constitute substantial compliance with the statute, we need not determine if substantial compliance with the notice requirements thereof would suffice (see generally OCGA § 1-3-1 (c)), or whether the notice requirement provisions of this particular statute mandate a particular form of notice in such clear terms as to render substantial compliance ineffective. See, e.g., Bible v. Bible, 259 Ga. 418, 419 (383 SE2d 108).

Decided February 25, 1991.

J. C. Maddox, for appellant.

T. Joseph Campbell, for appellee.

As appellant has failed to comply with the required ante litem notice requirement of OCGA § 36-33-5, the trial court did not err in granting the City’s motion to dismiss. Compare Acker v. City of Elberton, 176 Ga. App. 580, 581 (2) (336 SE2d 842). In view of this holding and in the interests of judicial economy, we decline to address appellant’s remaining enumerations of error.

Judgment affirmed.

Pope and Cooper, JJ., concur.


text:
    A91A0234.
    In the Interest of B. A. H., a child.
    (402 SE2d 791)
   Andrews, Judge.

A delinquency petition was filed in the Juvenile Court of Gwinnett County charging 16-year-old B. A. H. with five counts of burglary and five counts of theft by taking. The State sought to transfer the matter from juvenile court to superior court pursuant to OCGA § 15-11-39.

Six days before the April 18, 1990, transfer hearing, the juvenile court clerk sent notices that set forth the time and place of the hearing to B. A. H. and his mother. The notices did not state the purpose of the hearing.

Despite the omission in the notices, B. A. H. and his mother were aware of the possibility of the transfer and both had been present at a March 13, 1990, detention hearing at which the State announced its intention to transfer the matter. Additionally, the juvenile’s attorney had received proper written notice and the juvenile court judge had issued an order on April 9, 1990, which referred to the transfer hearing.

At the transfer hearing on April 18,1990, for which both B. A. H. and his mother were present, the juvenile court judge heard evidence regarding the “reasonable cause” portion of the transfer. B. A. H. objected to the lack of proper notice and the juvenile court judge postponed hearing evidence regarding whether to process B. A. H. as an adult until April 23, 1990, at which time the judge determined that the offenses would be transferred to the superior court. B. A. H. appeals from this transferral order.

1. The sole procedure by which a juvenile court may relinquish jurisdiction and transfer a matter for prosecution is outlined in OCGA § 15-11-39. See In the Interest of T. J. M., 142 Ga. App. 415 (236 SE2d 152) (1977); J. W. A. v. State, 233 Ga. 683, 684 (212 SE2d 849) (1975). The statute requires that three days before the hearing, written notice of its time, place and purpose be given to the child and his parents, guardian, or other custodian. OCGA § 15-11-39 (a) (2).

Here, B. A. H. contends that the notice of the transfer hearing was inadequate and that the subsequent transfer was improper. The State argues that despite the failure to send written notice of the hearing’s purpose, it complied with the statute.

At the outset, we acknowledge that “ ‘there must be scrupulous adherence to due process requirements in juvenile court proceedings.’ ” In re B. A. P., 180 Ga. App. 433, 434 (349 SE2d 218) (1986); C. L. T. v. State, 157 Ga. App. 180 (276 SE2d 862) (1981); Sanchez v. Walker County Dept, of Family &c. Svcs., 237 Ga. 406, 410 (229 SE2d 66) (1976). A transfer must be “ ‘done strictly in accordance with (OCGA § 15-11-39), the only means by which the juvenile court can divest itself of jurisdiction under the Juvenile Code.’ ” (Emphasis omitted.) In the Interest of D. B., 187 Ga. App. 3, 4 (369 SE2d 498) (1988); D. L. M. v. State, 160 Ga. App. 424 (287 SE2d 355) (1981); J. W. A., supra.

Here, even if the mother, child and attorney’s initial knowledge of the purpose of the hearing was insufficient to establish proper notice, the five-day postponement of the portion of the hearing dealing with whether to process B. A. H. as an adult provided adequate notice. The instant procedure measures up to “the essentials of due process and fair treatment.” See Kent v. United States, 383 U. S. 541 (86 SC 1045, 16 LE2d 84) (1966); R. S. v. State, 156 Ga. App. 460 (274 SE2d 810) (1980). Our decision is also consistent with Reed v. State, 125 Ga. App. 568 (188 SE2d 392) (1972) because of the factual disparities between the cases. See also United States v. Doe, 701 F2d 819 (1983).

Accordingly, we hold there was no harmful error in the failure of the notice to state the purpose of the hearing. See In the Interest of R. J., 191 Ga. App. 712, 714 (382 SE2d 671) (1989).

2. In his second and third enumerations of error, the juvenile contends that the trial court’s finding that the state did not rely upon the amenability factor in urging transfer was in error. These contentions are without merit. See State v. M. M., 259 Ga. 637 (386 SE2d 35) (1989); In the Interest of J. D., 195 Ga. App. 801 (395 SE2d 280) (1990).

The juvenile court order stated that the State relied upon the community interest in seeking the transfer and the record before us supports this conclusion. “The Supreme Court has held that OCGA § 15-11-39 ‘subsumes the juvenile’s amenability to treatment within the concept, “the interest of the child,” and authorizes a juvenile court to transfer to the superior court a juvenile who is amenable to treatment if the juvenile court finds that the amenability factor is outweighed by the interests of the community in processing the child as an adult.’ ” In the Interest of R. J., supra at 714; Nobles v. State, 191 Ga. App. 594, (382 SE2d 637) (1989); In the Interest of J. J. S., 246 Ga. 617, 618 (272 SE2d 294) (1980). The function of this court is limited to ascertaining whether some evidence exists to support the juvenile court determination. R. J., supra at 715. Here, there is ample evidence to sustain the juvenile court’s determination that the State relied upon the community interest as its basis for transfer.

3. Appellant’s remaining enumerations of error will not be addressed, since they were not raised in the court below. Chambers u. Dept, of Transp., 172 Ga. App. 197 (322 SE2d 366) (1984); Management Compensation Group &c. v. United Security Employee &c., 194 Ga. App. 99 (389 SE2d 525) (1989).

Judgment affirmed.

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

Decided February 25, 1991.

Michael Greene, for appellant.

Phyllis Miller, Solicitor, for appellee.

       The juvenile does not argue that there was any defect in the petition against him.

       In the context of a petition, one of the major reasons for requiring accuracy in the allegations is to assure that the juvenile has sufficient time to prepare a defense. See In the Interest of A. W. G., 184 Ga. App. 343 (361 SE2d 510) (1987). The five-day delay prior to the court considering evidence regarding amenability served this purpose.

       In Reed, the factors which make the error harmless in this case were not present. Here, B. A. H. and his mother were present for a detention hearing at which the State announced its intention to transfer the matter, the juvenile’s attorney had received written notice, and a written order regarding the transfer hearing had been issued. Most importantly, the juvenile court judge here postponed hearing evidence regarding whether to process B. A. H. as an adult for five days after B. A. H. and his mother first appeared at court for the hearing. In Reed, there was no indication that the juvenile and his parents had received any notification of the purpose of the hearing.