text:
    A01A1682.
    MOON v. MERCURY INSURANCE COMPANY OF GEORGIA.
    (559 SE2d 532)
   Barnes, Judge.

Cynthia Ann Moon sued Mercury Insurance Company of Georgia for unpaid medical expenses resulting from an automobile collision in which she was a passenger, seeking special damages, bad faith penalties, attorney fees, and punitive damages. Mercury denied these expenses were covered under the auto insurance policy of Moon’s father, contending that Moon had released her claim, that she was not a resident in her father’s house, that she had no standing because she had assigned these benefits to a chiropractor, and that it was not liable for penalties.

The trial court granted summary judgment to Mercury, holding that Moon’s general release of the tortfeasors and their insurance company also released Mercury from her claim for medical expenses. While we hold that the trial court erred in concluding that Moon’s general release operates also to release Mercury on the special damages claim, we affirm the summary judgment on Moon’s bad faith claim. Further, while Moon had no standing to assert the claim for special damages, having assigned her cause of action to her treating chiropractor, she is entitled under OCGA § 9-11-17 to a reasonable time within which to substitute the real party in interest, or to have the doctor reconvey the cause of action to her.

1. Moon’s general release does not bar her claim against Mercury. “Only those parties named in the release will be discharged by that instrument,” and “named” means “identified either by proper name or such other description as leaves no question of the identity of the party released.” Lackey v. McDowell, 262 Ga. 185, 186, n. 3 (415 SE2d 902) (1992). However, claims against an insurer for uninsured or underinsured motorist coverage may be extinguished by a general release even if the insurer was not specifically identified in it. Rodgers v. St. Paul Fire &c. Ins. Co., 228 Ga. App. 499, 500-501 (1) (492 SE2d 268) (1997). Those claims are derivative in nature, requiring the injured party to establish the legal liability of the uninsured or underinsured motorist, which he cannot do if he has released that motorist from liability. Cook v. State Farm &c. Ins. Co., 237 Ga. App. 400, 402 (514 SE2d 48) (1999).

Moon’s claim against Mercury for medical expenses, however, is not derivative, but arises from the contract of insurance. “The settlement agreement and the release executed pursuant thereto dealt only with tort liability, and does not bar these actions on contract liabilities.” Southern Guaranty Ins. Co. v. Robinson, 132 Ga. App. 121, 124 (207 SE2d 599) (1974). Mercury’s liability does not hinge on whether Moon can establish the legal liability of the tortfeasor with whom she settled her personal injury claim, and therefore the trial court erred in granting summary judgment to Mercury on this ground.

2. Mercury also argued that it was entitled to summary judgment on Moon’s claim for benefits and bad faith failure to pay, because the evidence shows as a matter of law that it did not owe the benefits and had reasonable and probable cause to deny the claim. Moon asserts that a genuine issue exists regarding this issue.

To support a cause of action under OCGA § 33-4-6, the insured bears the burden of proving that the refusal to pay the claim was made in bad faith. A defense going far enough to show reasonable and probable cause for making it[ ] would vindicate the good faith of the company as effectually as would a complete defense to the action. Penalties for bad faith are not authorized where the insurance company has any reasonable ground to contest the claim and where there is a disputed question of fact.

(Citations and punctuation omitted; emphasis supplied.) Southern Fire &c. Ins. Co. v. Northwest Ga. Bank, 209 Ga. App. 867-868 (2) (434 SE2d 729) (1993).

The issue here is not only whether Moon was in fact a member of her father’s household at the time of the automobile collision. The issue with respect to bad faith penalties is, rather, whether Mercury had “a reasonable and probable cause for refusing to pay a claim.” (Punctuation and footnote omitted.) Shaffer v. State Farm &c. Ins. Co., 246 Ga. App. 244, 245 (540 SE2d 227) (2000). If Mercury had a reasonable basis for believing that Moon was not a member of her father’s household at the time of the collision, the fact that she ultimately may be able to prove otherwise “or that the investigation was not flawless is of no consequence.” Southern Fire &c. Ins. Co., supra, 209 Ga. App. at 868 (2).

Here, the policyholder made previous representations to Mercury that Moon did not live with him. When Willie T. Moon originally applied for an insurance policy with Mercury in 1994, he did not indicate that anyone other than himself and his wife resided in his household. When a routine investigation disclosed that his daughter Cynthia was living with him, Mercury added her to the policy as a covered driver. But when a second routine check in July 1996 revealed that Cynthia’s license was suspended, Mercury did not renew Willie Moon’s policy. Shortly thereafter, Moon sent a new application indicating that Cynthia had moved out of his household, and the policy was rewritten to cover Mr. and Mrs. Moon only. Mercury confirmed through a telephone inquiry in August 1996 that Cynthia was not living with the insured. The collision in issue here occurred in April 1997.

Mercury also relied on a statement its adjuster took over the phone from someone identified as Moon’s sister, who said Moon had been living with her at the time of the collision. In her affidavit accompanying a transcript of the phone call, the adjuster detailed the circumstances under which she took the statement. The adjuster called a number given to her as the sister’s home telephone, and a person identifying herself as the sister’s daughter gave the adjuster a number identified as the sister’s work telephone. The adjuster called that number and verified that the sister worked there but was “in a meeting” at that time. The adjuster called back later and took a detailed, recorded statement in which a person identifying herself as Moon’s sister gave extensive personal information, including her correct address, her relationship to Moon, and further details regarding Moon’s living arrangements. This person mentioned that Moon had returned to her parents’ house to help care for her mother, but stated that this was after the collision, information that was consistent with information previously obtained from the policyholder in connection with his application and policy reissue.

Moon’s sister later disavowed the statement, testifying in her deposition that her mother had died two days before the statement date and she knew she had not talked to anyone at that time. Moon, her sister, and her father consistently testified in their depositions that Moon had returned home to care for her ailing mother before she died, before the accident.

A factual dispute certainly exists as to whether Moon resided in her father’s household when she was in this car accident, and thus whether she is entitled to coverage under the medical payment provision of her father’s insurance policy. The existence of this factual dispute constitutes Mercury’s complete defense to Moon’s bad faith claim. “[I]t is the very fact that certain factual issues regarding the merits of a claim are in genuine conflict that causes there to be no conflict, as a matter of law, whether an insurance company had reasonable grounds to contest a particular claim.” Rice v. State Farm Fire &c. Co., 208 Ga. App. 166, 169 (1) (430 SE2d 75) (1993). Therefore, the trial court did not err in granting summary judgment to Mercury on Moon’s bad faith claim.

3. Mercury argued below that Moon lacks standing to bring suit because she assigned the benefits to her treating chiropractor. Moon responded first that nothing in the record validates that she signed the alleged assignment. A review of the record, however, shows that Moon admitted in her response to Mercury’s motion for summary judgment that “[o]n August 27, 1997, Ms. Moon signed a document with Dr. Mark Anthony entitled Assignment, Lien and Authorization, Insurance Benefits and Attorney.’ (Exh. A’).” Exhibit A of Moon’s brief in opposition to Mercury’s motion for summary judgment is the document at issue here, and therefore Moon’s argument — that nothing in the record validates her signature — fails. See Wood v. Brunswick Pulp &c. Co., 119 Ga. App. 880, 881-882 (169 SE2d 403) (1969).

Moon then argues that the document shows she had not assigned her benefits, but merely agreed to do so upon demand by the doctor. “[A]n assignment of health care benefits under an insurance policy to a health care provider divests the assignor/insured of the right to bring an action against the insurer to collect benefits under the insurance policy.” Allianz Life Ins. Co. &c. v. Riedl, 264 Ga. 395 (444 SE2d 736) (1994). The document in this case provides:

In the event my insurance company obligated to make payments to me upon the charges made by this office for their services refuses to make such payments, upon demand by me or this office, I hereby assign and transfer to this office any and all causes of action that I might have or that might exist in my favor against such company. . . .

(Emphasis supplied.) Moon argues that the “me” in the phrase “upon demand by me or this office” refers to the treating chiropractor and that no evidence shows that the doctor demanded that Moon assign her claim to him. A review of the full document, however, shows that “me” in this second paragraph refers to Moon, not to the doctor. The document begins, “I hereby authorize and direct you, my insurance company, and/or my attorney to pay directly to Dr. Anthony such sums as may be due and owing this office for services rendered me.” The third, fourth, and fifth paragraphs all begin with “I,” and the document is signed by Moon, not by the doctor. The phrase “upon demand by me or this office” more logically modifies the phrase “[i]n the event my insurance company . . . refuses to make such payments.” In other words, Moon assigned to the chiropractor any cause of action that arose from the insurance company’s refusal to pay charges following a demand to the company for payment by Moon or the chiropractor.

Decided January 29, 2002.

Scott & Wells, Donald T. Wells, Jr., for appellant.

Manko & Lyle, J. Stephen Manko, for appellee.

Further, the language “I hereby assign and transfer” indicates Moon’s present intent to assign to the chiropractor any cause of action arising from the insurer’s failure to pay on demand. Southern Mut. Life Ins. Assn. v. Durdin, 132 Ga. 495, 498 (64 SE 264) (1909); compare Piedmont Southern Life Ins. Co. v. Gunter, 108 Ga. App. 236, 240 (2) (132 SE2d 527) (1963).

Mercury essentially contends that Moon is not the real party in interest here. “The real party in interest is the person, who, by the substantive governing law, has the right sought to be enforced.” (Citation and punctuation omitted.) Allianz Life Ins. Co., supra, 264 Ga. at 398 (3). If an action is not being prosecuted by the real party in interest, before dismissing the case the trial court should allow a reasonable time after objection to allow the real party in interest to ratify, join, or be substituted in the action. OCGA § 9-11-17 (a); Jones v. State Farm &c. Ins. Co., 228 Ga. App. 347, 349-350 (2) (491 SE2d 830) (1997). In Jones, we held that the doctor to whom the insured had assigned her contractual benefits had reassigned those benefits back to the insured, and therefore the insured was the real party in interest.

Because summary judgment is not the proper vehicle to decide a real party in interest objection, Dept. of Human Resources v. Holland, 263 Ga. 885, 887 (2) (440 SE2d 9) (1994), we reverse the trial court’s grant of summary judgment to Mercury on Moon’s special damages claim.

Judgment affirmed in part and reversed in part.

Smith, P. J., and Phipps, J., concur.


source: Caselaw Access Project

author: Barnes, Judge.

license: Public Domain

text:
    A01A1708.
    JORDAN v. THE STATE.
    (559 SE2d 528)
   Barnes, Judge.

James Jordan, proceeding pro se, appeals from the trial court’s denial of his motion to correct an illegal sentence based on newly discovered evidence and ineffective assistance of counsel. Finding no error to review within the jurisdiction of this court, we dismiss.

This appeal marks the third time this case has come before this court. The facts are set forth in Jordan’s first appeal in which we upheld his convictions. See Graham v. State, 171 Ga. App. 242 (319 SE2d 484) (1984) (“Jordan F). In his second appeal, Jordan appealed the denial of his motion to correct a void sentence, and we reversed one of his kidnapping convictions because of a lack of venue in the trial court, but affirmed the trial court on the remaining convictions. See Jordan v. State, 242 Ga. App. 408 (530 SE2d 42) (2000) (“Jordan IF). Jordan now appeals the trial court’s denial of a second motion to correct a void sentence (“Jordan IIF).

In Jordan III, he contends his defense counsel was ineffective for failing to challenge the improper venue that caused his kidnapping conviction to be reversed in Jordan II. He also contends that his defense counsel’s deficiency is established by our reversal of that kidnapping conviction. Finally, he maintains that his sentences for the kidnapping, aggravated assault and attempted armed robbery should have been merged.

1. Jordan first enumerates as error ineffective assistance of counsel stemming from counsel’s failure to challenge the venue in his conviction for the kidnapping in Jordan I. As we have reversed this kidnapping conviction (see Jordan II), this claim is moot. Moore v. State, 212 Ga. App. 497 (1) (442 SE2d 311) (1994).

More significantly, however, even if the issue were not moot, Jordan is not authorized to raise this issue in this appeal. Although a trial court has jurisdiction to resentence defendants at any time when their sentences are void (Crumbley v. State, 261 Ga. 611 (409 SE2d 517) (1991); Gonzalez v. State, 201 Ga. App. 437, 438 (411 SE2d 345) (1991)), and a direct appeal lies from the denial of a motion attacking a void sentence (Williams v. State, 271 Ga. 686, 689 (1) (523 SE2d 857) (1999)), a sentence is only void when the trial court imposes a punishment that the law does not allow. Crumbley v. State, supra, 261 Ga. at 611. As this allegation goes only to challenge Jordan’s conviction, however, it cannot be considered in this appeal because he “may not raise in this appeal issues which go to the validity of his conviction rather than the validity of his sentence.” Daniels v. State, 244 Ga. App. 522, 523 (536 SE2d 206) (2000).

2. Jordan also contends that his sentences for the kidnapping, aggravated assault and attempted armed robbery should have been merged. This issue, however, was decided adversely to Jordan in Jordan II. See Jordan II, supra, 242 Ga. App. at 409-410 (3) and n. 2.

It is axiomatic that the same issue cannot be relitigated ad infinitum. The same is true of appeals of the same issue on the same grounds. Our determination in the earlier appeal is res judicata; the instant appeal is therefore barred, and we are without jurisdiction to review this same matter for a second time.

Decided January 29, 2002.

James Jordan, pro se.

Patrick H. Head, District Attorney, Amelia G. Pray, Assistant District Attorney, for appellee.

Echols v. State, 243 Ga. App. 775, 776 (534 SE2d 464) (2000).

Accordingly, as this appeal presents no issue for appellate review, it must be dismissed.

Appeal dismissed.

Smith, P. J., and Phipps, J., concur.


author: Smith, Presiding Judge.

text:
    A01A2071.
    NICHOLS v. THE STATE.
    (559 SE2d 538)
   Smith, Presiding Judge.

Justin Levi Nichols appeals from the denial of his motion to withdraw his guilty plea to the offenses of rape, aggravated assault, and burglary. He contends that he was denied effective assistance of counsel, that his plea was not voluntary, and that withdrawal of the plea is necessary to prevent a manifest injustice. We find no error, and we affirm.

1. We first discuss Nichols’s argument that his plea was not voluntarily given. During the plea hearing, Nichols testified that he “broke in a woman’s house, beat her up and raped her.” And he admitted that he “had sexual intercourse with her forcibly and against her will.” Before giving this testimony, Nichols acknowledged the following: He had talked with his attorney concerning the facts of his case; he did not need more time to discuss the case with counsel before proceeding with the hearing; he could read and write and understood the nature of the charges; he understood the maximum sentence to be life imprisonment and the minimum to be ten years; he was not under the influence of any drug that clouded his mind; he understood the proceedings occurring on that day; he had not been coerced or threatened to enter the plea; he had not been offered more favorable treatment in exchange for the plea; and he had gone over his plea form with counsel, and the answers written on the form were true and correct.

The trial court informed Nichols that he was entitled to a presumption of innocence and that the State was required to prove his guilt beyond a reasonable doubt. He was further advised by the court concerning his rights to have a trial by jury and a speedy trial, to confront witnesses, to have competent representation, to have witnesses subpoenaed, to present evidence, and to testify. Nichols testified that he understood that he would give up these rights by pleading guilty, and his attorney, who had been appointed by the trial court, informed the court that he believed Nichols understood his rights and that he had reviewed the charges with Nichols. In addition, Nichols acknowledged to the court that by pleading guilty, he knew that he gave up all defenses, known and unknown, including any defense of which he or his counsel was not aware, and that he needed no further explanations concerning the proceeding. The State then made its recommendation concerning sentencing, and Nichols stated he understood this recommendation. Following a few other questions by the trial court, Nichols pled guilty to the charges against him, admitting that the plea was freely and voluntarily given. The trial court accepted the plea, finding that a factual basis for it existed and that Nichols had knowingly and intelligently waived his rights. Plea counsel asked that sentence be imposed as recommended by the State, and the trial court did so.

With the assistance of another court-appointed attorney, Nichols filed a motion to withdraw his guilty plea on the grounds that the plea was not knowingly and voluntarily entered and that he received ineffective assistance of counsel. Yet another appointed attorney represented Nichols during the hearing on the motion. During that hearing, Nichols stated that plea counsel “told me if I did not plead out to these charges that I would get the max no matter what, which was I think life and forty.” Nichols agreed on direct examination during the hearing that plea counsel gave him “the words to say to the court,” and he felt he was under “duress or compulsion” to enter the plea. He stated that he' told plea counsel earlier that day that he “did not want to plead out and he brought me up to court anyway.” He testified that plea counsel handed him a form, which he did not review with Nichols, and told Nichols to “sign this you’re pleading out.” Nichols stated that he wanted to go to trial “and try to beat” the charges and that he wanted to fire his attorney but was told he could not do so. He acknowledged on cross-examination, however, that during the plea hearing, he never expressed to the trial court any dissatisfaction with his attorney, nor did he inform the court he wanted to fire him or raise any other concerns or problems he had with his attorney.

After a defendant raises the issue of the validity of his or her guilty plea, the State must show that the plea was made voluntarily and intelligently. King v. State, 270 Ga. 367, 369 (1) (509 SE2d 32) (1998). This may be accomplished by showing on the record of the guilty plea hearing that the defendant was aware of the rights he or she was waiving and the consequences of his or her plea, or the State may fill “a silent record by use of extrinsic evidence that affirmatively shows that the guilty plea was knowing and voluntary.” (Punctuation and footnote omitted.) Id. The record in this cáse reflects “a careful inquiry by the court showing that [Nichols] fully understood the nature of the charges, the consequences of his plea, and the rights he was relinquishing.” Miller v. State, 241 Ga. App. 397, 398 (1) (527 SE2d 571) (1999). In addition, he testified that he acted freely and voluntarily, without having been coerced or threatened, and he admitted to the facts underlying the charges against him. Although he later testified that he felt coerced by plea counsel, this simply presented a matter of witness credibility, which was for the trial court to decide. Id. Because the evidence supported the trial court’s ruling that the plea was given freely and voluntarily, the trial court did not manifestly abuse its discretion in denying his motion for new trial.

2. Nichols also argues he was denied effective assistance of counsel because plea counsel failed to investigate adequately his mental condition at the time of the alleged incident and failed to request an independent psychological evaluation. During the hearing on his motion to withdraw the plea, Nichols testified concerning his “mental situation” and indicated that this situation could have had a part in the fact that he entered the plea. Nichols told the trial court that he had a blood clot and a skull fracture when he was younger and that when he was 13 or 14, he had “seen a shrink” and had “been diagnosed with hyperactive impulse disorder.” He agreed on direct examination that he had told the psychologist who performed a court-ordered psychological evaluation after the crimes in this case were allegedly committed that he was “amnesic for the events that led to the charges” against him. He also agreed that he had instructed plea counsel that he “had some issues” concerning his brain surgery and blood clot and asked him to explore the possibility of a medical defense and his mental capacity at the time of the incident. According to Nichols, plea counsel told him that he could obtain a psychological evaluation only concerning his competency to stand trial and assist in his defense. When asked on cross-examination during the motion to withdraw plea hearing if he believed the State had a “pretty strong” case against him, he answered, “Might have a good one, but it depends if my lawyer fought the way I wanted him to.”

Also, a letter written by Nichols to the trial court three days after the plea hearing was introduced into evidence. In it, he stated that he did not want to enter the plea because “still to the day I do not remember doing none of this. ... I have had a serious brain surgery when I was younger and it is documented that I have been diagnosed with a hyperactive impulse disorder.” He stated that his doctor had told him at the time of the injury “that I could have seizures and all kinds of stuff could happen.” Nichols wrote that he thought he could have had “a focal seizure” and that he “mentioned” to plea counsel that he “wanted to get a CAT scan.” According to Nichols’s letter, however, plea counsel “kept telling me it would not help me none.” Nichols provided the trial court with the names and phone numbers of his mother and grandmother, stating that they could “verify everything” he had advised the court in the letter. Plea counsel did not testify at the hearing on the motion to withdraw the plea.

On a motion for new trial, to establish a claim that trial counsel was deficient, a defendant must show that counsel’s performance was deficient and that this deficient performance prejudiced his or her defense. Rivers v. State, 271 Ga. 115, 117 (2) (516 SE2d 525) (1999). A strong presumption exists that counsel’s conduct fell within the wide range of reasonable professional assistance. And “[w]here trial counsel does not testify at the motion for new trial hearing, it is extremely difficult to overcome this presumption.” (Citation omitted.) Id. Furthermore, we have held that “[i]n the absence of testimony to the contrary, counsel’s actions are presumed strategic.” Clark v. State, 239 Ga. App. 245, 248 (5) (520 SE2d 245) (1999). See also Baker v. State, 251 Ga. App. 377, 379 (2) (554 SE2d 324) (2001). And more specifically, in the context of determining whether trial counsel rendered ineffective assistance in the context of a guilty plea, a defendant must “establish the reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial. [Cits.]” (Emphasis supplied.) Brantley v. State, 268 Ga. 151, 152 (1) (486 SE2d 169) (1997). We conclude that Nichols has failed to meet his burden.

First, although this case did not involve a hearing on motion for new trial, Nichols nevertheless was required to show during the hearing on the motion to withdraw the plea that counsel’s performance was deficient and that he would have insisted on going to trial but for this deficiency. Brantley, supra. But Nichols failed to present the testimony of trial counsel. And without this testimony, we must presume that any decisions concerning independent testing and pursuit of a medical defense were strategic and therefore did not constitute deficient performance. See Rivers, supra; Baker, supra.

In addition, Nichols has failed to show a reasonable probability that, but for any alleged deficiencies of plea counsel, he would have insisted on going to trial. We first note Nichols’s reliance on his testimony that plea counsel told him that he could be evaluated only for the purpose of determining whether he was competent to stand trial. But the record shows that his attorney did request a more extensive evaluation. It contains an “order for mental evaluation” prepared by plea counsel and consented to by the State requiring the Department of Human Resources or the Forensic Psychiatry Service to “conduct an evaluative examination of the defendant, provide treatment of the defendant, if appropriate, and provide to this Court a report of diagnosis, prognosis and its findings, with respect to” three issues. In addition to providing a report addressing Nichols’s competency to stand trial and recommendations for disposition, the order also required the report to address Nichols’s “degree of criminal responsibility or mental competence at the time of the act.” In particular, the report was to describe “[w]hether or not the accused had the mental capacity to distinguish right from wrong in relation to the alleged act; whether or not the presence of a delusional compulsion overmastered his will to resist committing the alleged act.”

Nichols was examined, the report was prepared as directed by the court, and a copy of the report was provided to the State and to Nichols’s trial attorney. It was unsealed during the hearing on his motion to withdraw the plea and was introduced by Nichols. He stated that he had not seen the report prior to the hearing. The forensic psychologist who evaluated Nichols stated in the report that Nichols, whose intelligence fell within the average range, was “a very alert, 19-year-old male.” Nichols admitted that he had been consuming drugs and alcohol for five or six years and that he had experienced “past visual and auditory hallucinations” after consuming LSD. But the psychologist found no indication that Nichols “was or has ever suffered from any other type of psychotic symptoms.” Nichols was “able to organize his thoughts quite well and his conversation was rational, logical, coherent and goal-directed.” The psychologist noted that Nichols had no “defect in his immediate, short-term memory or long-term memory with the exception of the events that led to his present legal situation.” In addition to concluding that Nichols was competent to stand trial, the psychologist made the following findings:

My evaluation of Mr. Nichols did not reveal any evidence that would suggest that he would meet the criteria to be considered not legally responsible for his actions as they relate to the charges presented against him. That is, there was no indication that he was suffering from a delusional compulsion that would have overmastered his will to have resisted committing the alleged offenses. In addition, he clearly has the mental capacity to distinguish between right and wrong and freely verbalizes the wrongfulness of what he is charged with.

Relying on cases such as Curry v. Zant, 258 Ga. 527 (371 SE2d 647) (1988), and Mullins v. Hopper, 242 Ga. 123 (249 SE2d 606) (1978), Nichols seems to argue that plea counsel should have investigated further his mental condition and that if he had done so, he would have discovered a meritorious defense. But Curry and Mullins are distinguished from this case. In Curry, the defendant pled guilty to murder and was sentenced to death upon the jury’s recommendation, and his trial counsel failed to obtain an independent psychological examination. Expert evidence was presented at the habeas corpus hearing showing, among other things, that defendant was retarded and “seriously mentally ill” and that compelling evidence showed that he “suffered from significant intellectual deficiency, major psychiatric illness and an organic brain syndrome.” Id. at 528-529. In addition, one expert testified by deposition “that an independent evaluation of [the defendant] would have been invaluable to a jury trying his case.” Id. at 528. The Supreme Court concluded that trial counsel's failure to obtain an independent psychiatric evaluation of the defendant constituted ineffective assistance. The Court reached the same conclusion in Mullins, supra, in which both of defendant’s trial attorneys, who advised him to plead guilty to several offenses, were aware of the defendant’s “long history of schizophrenia and his diagnosis as being in psychosis when arrested.” Id. at 123.

We also note Nichols’s reliance on Holloway v. State, 257 Ga. 620 (361 SE2d 794) (1987), a death penalty case which the Supreme Court of Georgia reversed because the trial court erroneously denied defendant funds to hire an independent psychiatrist. In that case, defendant went to trial after attempting to plead guilty. The trial court concluded that it could not accept a plea because defendant did not understand the rights he was waiving by pleading guilty. Id. at 621. Despite this finding, no hearing was held to determine whether defendant was competent to stand trial. Id. During the sentencing phase, a psychologist, whose services were paid for by trial counsel and who evaluated defendant just before trial began, testified concerning defendant’s severe retardation. Id. Based on these facts, the Supreme Court concluded that a hearing should have been held to determine defendant’s competence to stand trial and that he was entitled to independent psychiatric assistance on issues of his competency to stand trial, his criminal responsibility, and mitigation of sentence. Id. at 621-622 (3). See also Collier v. Turpin, 177 F3d 1184, 1196 (II) (B) (11th Cir. 1999) (among other significant deficiencies, trial counsel ineffective for failure “to explore and present readily available expert opinion evidence” concerning defendant’s “diabetes and diffuse organic brain damage”).

Decided January 29, 2002.

McCracken Poston, Jennifer E. Hildebrand, for appellant.

Herbert E. Franklin, Jr., District Attorney, Leonard C. Gregor, Jr., Assistant District Attorney, for appellee.

In contrast, Nichols has made no showing of evidence refuting the findings of the court-ordered report, other than his own self-serving statements during the hearing on his motion to withdraw the plea, and he has failed to demonstrate “how a further investigation would have benefitted his case.” Hammond v. State, 264 Ga. 879, 883 (4) (b) (452 SE2d 745) (1995). At best, those statements show only that his case might have been stronger than that of the State or that his medical condition could have influenced his decision to enter the plea. Nichols’s claim that further investigation would have been helpful is speculative. Under these facts, we conclude that he has failed to show a reasonable probability that but for plea counsel’s failure to request an independent psychological examination or investigate further his mental health at the time of the act, he would have insisted on going to trial.

Judgment affirmed.

Barnes and Phipps, JJ, concur.

       In addition to his guilty plea on these charges, Nichols also admitted to violating first offender probation in two other cases, in which he had entered guilty pleas to the offenses of burglary, financial transaction card theft, and financial transaction card fraud.

       Nichols has new appellate counsel on appeal.

        Hammond, addresses the effectiveness of counsel during a jury trial, rather than at the guilty plea stage. We find the reasoning in that case helpful here, however.


author: MlKELL, Judge.

text:
    A01A2526.
    MATTHEWS v. THE STATE.
    (559 SE2d 545)
   MlKELL, Judge.

Mark Weyman Matthews appeals the trial court’s denial of his motion to set aside a void judgment. He argues that his 1992 charge of theft by receiving stolen property should have been dismissed because he was not tried within the term of court following his demand for speedy trial, as required by OCGA § 17-7-170. We disagree and affirm the ruling of the trial court.

As a preliminary matter, we note that Matthews, who is pursuing this appeal pro se, has failed to provide citations to the record for virtually all of the facts contained in his appellate brief, in violation of Court of Appeals Rule 27 (c) (3). However, we will consider the merits of his appeal.

Decided January 29, 2002.

Mark W. Matthews, pro se.

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

The record shows that Matthews was indicted on May 26, 1992, for the offense of theft by receiving stolen property. He filed an untimely demand for speedy trial almost six months later on November 11, 1992. After Matthews failed to appear for trial, the court issued a bench warrant for his arrest. In 1998, Matthews was arrested and indicted for a separate charge of theft by receiving stolen property. After pleading guilty to the 1992 and 1998 charges, Matthews was sentenced to five years confinement. The court denied his subsequent motion to set aside the judgment.

We conclude that the trial court did not err in denying Matthews’ motion. In Tutt v. State, 267 Ga. 49, 50 (472 SE2d 306) (1996), the Supreme Court expressly held that a defendant cannot raise as a defense the right to a speedy trial after entering a guilty plea. “Once a defendant solemnly admits in open court that he is in fact guilty of the offense charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.” Id. It is clear in the case sub judice that Matthews entered a guilty plea to the 1992 charge of theft by receiving stolen property. Therefore, he cannot subsequently raise his right to a speedy trial as a defense to that charge. Accordingly, the trial court did not err in denying his motion to set aside the judgment.

Judgment affirmed.

Blackburn, C. J., and Pope, P. J., concur.

       OCGA § 17-7-170 (a) provides that a defendant “may enter a demand for trial at the court term at which the indictment or accusation is filed or at the next succeeding regular court term thereafter.” (Emphasis supplied.) Matthews was indicted during the May term of court, but he did not file his demand until November 11 - two terms of court after he was indicted. OCGA § 15-6-3 (5) (C).


author: Blackburn, Chief Judge.

text:
    A02A0169.
    HARTFORD INSURANCE COMPANY v. FEDERAL EXPRESS CORPORATION et al.
    (559 SE2d 530)
   Blackburn, Chief Judge.

Following a bench trial, Hartford Insurance Company appeals the trial court’s ruling that it was not entitled to enforce its subrogation lien against settlement proceeds received by Willie Binyard pursuant to OCGA § 34-9-11.1. For the reasons set forth below, we affirm.

The record shows that, on December 10, 1997, Binyard was employed by Cort Furniture Rental as a delivery person. That day, while riding as a passenger in a Cort truck, Binyard was struck from behind by a Federal Express Corporation truck being driven by Jack Bacon, resulting in a low impact collision. Following this collision, Binyard began to experience pain in his back and legs, and he sought out medical treatment. Binyard subsequently filed suit against Bacon and his employer, Federal Express.

While his lawsuit was pending, Binyard filed a workers’ compensation claim against Cort, and this claim was accepted by Hartford, Cort’s workers’ compensation insurance carrier. It is undisputed that Hartford paid Binyard a total of $65,170.86 in workers’ compensation benefits, consisting of $29,133.09 in indemnity benefits, $16,037.77 in medical benefits, and $20,000 in settlement of Binyard’s claim.

In accordance with OCGA § 34-9-11.1 (b), Hartford intervened in Binyard’s case against Bacon and Federal Express. However, before the case reached a trial, Binyard settled his case for $75,000. Following this settlement, Hartford asserted a workers’ compensation subrogation lien against Binyard. Binyard refused to pay this lien, arguing that he had not been fully and adequately compensated for his economic and noneconomic losses as required by OCGA § 34-9-11.1.

A bench trial followed in which Hartford contended that Binyard had greatly exaggerated the extent of his injuries, that he no longer needed medical assistance, and that, as such, he had been fully and adequately compensated for his economic and noneconomic losses. In response, Binyard argued that he had been permanently disabled, that he was in dire need of future medical assistance, and that, although he had chosen to settle his case, he had not been fully and adequately compensated for his economic and noneconomic losses.

After sifting the evidence, the trial court found that,

[w]hile it appears from the evidence presented that [Bin-yard’s] injuries resulted from a relatively minor collision, the medical testimony adduced did not unequivocally refute the seriousness or extent of his injuries. As Hartford has not carried its burden of proving that [Binyard] has been fully compensated as required by OCGA § 34-9-11.1, the Court finds that it is not entitled to recover any amounts on its subrogation lien.

It is this ruling which Hartford now appeals.

OCGA § 34-9-11.1 (b) provides:

In the event an employee has a right of action against such other person as contemplated in subsection (a) of this Code section and the employer’s liability under this chapter has been fully or partially paid, then the employer or such employer’s insurer shall have a subrogation lien, not to exceed the actual amount of compensation paid pursuant to this chapter, against such recovery. The employer or insurer may intervene in any action to protect and enforce such lien. However, the employer’s or insurer’s recovery under this Code section shall be limited to the recovery of the amount of disability benefits, death benefits, and medical expenses paid under this chapter and shall only be recoverable if the injured employee has been fully and completely compensated, taking into consideration both the benefits received under this chapter and the amount of the recovery in the third-party claim, for all economic and noneconomic losses incurred as a result of the injury.

“OCGA § 34-9-11.1 (b) instructs courts, in determining whether an employee has been fully and completely compensated, to consider both the workers’ compensation benefits the employee has received and the amount of the employee’s recovery against the third-party. These are the only instructions provided by the legislature.” Homebuilders Assn. of Ga. v. Morris.

As an initial matter, we note that the bulk of Hartford’s brief is dedicated to rearguing the questions of fact presented to the trial court. Specifically, Hartford argues that Binyard’s injuries, if any, were faked or exaggerated by him in order to collect workers’ compensation benefits without having to work. Hartford contended, therefore, that Binyard’s illusory injuries were finite, that his pain and suffering were chimerical, and that he needed no farther medical attention. In support of these claims, Hartford offered medical records from several doctors who opined that Binyard did, indeed, exaggerate his symptoms.

Binyard, however, offered contradictory evidence, pointing out that even the doctors upon whom Hartford relied determined that he had a five percent permanent disability rating. Furthermore, Bin-yard testified that his pain continued and that he wished to seek further medical treatment for his suffering. In addition, Binyard provided the medical records of his own doctor who determined that Binyard had a destabilized sacroiliac joint as a result of the collision, that he was totally disabled from gainful employment, and that he was badly in need of further treatment.

Although Hartford attempts to vociferously relitigate the facts of this case on appeal, we must defer to the trial court’s factual findings following a bench trial unless they are clearly erroneous. See, e.g., McCollum v. O’Dell. Here, as discussed above, there was adequate evidence supporting the trial court’s determination that “the medical testimony adduced did not unequivocally refute the seriousness or extent of [Binyard’s] injuries.”

This finding of fact, in turn, supports the trial court’s determination that Hartford had not carried its burden of showing that Bin-yard had been fully compensated pursuant to OCGA § 34-9-11.1. The evidence accepted and weighed by the trial court, as finder of fact, included reports which indicated that Binyard’s injuries were severe and that he needed continuing treatment. Clearly, if this evidence were accepted as credible, and apparently it was, Binyard would be subject to future medical expenses, lost wages, and pain and suffering. Accordingly, under the facts of this case, it cannot be said that Binyard was fully compensated.

And, contrary to Hartford’s argument, North Bros. Co. v. Thomas does not require a finding in this case that Binyard had been fully compensated for his medical expenses, even if he had not been fully compensated for pain and suffering. In North Bros., the plaintiff, Thomas, received a special verdict from a jury in which he was awarded a specific amount for medical expenses. In this circumstance we found:

A review of the record in this matter shows that Thomas admits that the medical benefits paid under his workers’ compensation claim are at least $60,030.37. The jury awarded Thomas the sum of $25,000 for medical expenses. There is nothing in the record which indicates that Thomas has any outstanding medical or other claims or obligations which should be considered in determining whether or not he has been fully compensated. We conclude, therefore, that Thomas has been fully compensated for his medical expenses. North Brothers therefore has a right to enforce its subrogation lien, but only as to sums in excess of the amount required to fully and completely compensate Thomas.

Decided January 29, 2002.

Schenck & Associates, Michael H. Friedman, for appellant.

Bovis, Kyle & Burch, John H. Peavy, Jr., for appellees.

id.

Here, there is some evidence, which the trial court found to merit some credibility, that Binyard’s injury and required treatment are ongoing, unlike the plaintiff in North Bros. Moreover, in North Bros., the record included a specific finding by the jury allocating a part of its award for medical expenses. In this case, by contrast, there was no specific payment made for medical expenses, merely a lump sum settlement. Furthermore, there is no copy of the settlement in the record for this Court to review. As such, North Bros, is distinguishable from the case at hand.

Judgment affirmed.

Johnson, P. J, and Miller, J., concur.

        Homebuilders Assn. of Ga. v. Morris, 238 Ga. App. 194, 196 (518 SE2d 194) (1999).

        McCollum, v. O’Dell, 241 Ga. App. 6 (525 SE2d 721) (1999).

        North Bros. Co. v. Thomas, 236 Ga. App. 839, 842 (513 SE2d 251) (1999).


author: Johnson, Presiding Judge.

text:
    A02A0385.
    McMATH v. THE STATE.
    (559 SE2d 544)
   Johnson, Presiding Judge.

A jury found Niger McMath guilty of aggravated assault and simple battery. She appeals, alleging the trial court’s charge on reckless conduct as a lesser included offense of aggravated assault was legally insufficient. We find no error and affirm her convictions.

The record shows that McMath timely requested a jury charge on reckless conduct as a lesser included offense of aggravated assault. The state did not oppose the charge, and the trial court agreed to give the charge. McMath does not argue that the charge given was an incorrect statement of the law. Rather, she argues that the trial court’s charge was legally insufficient because the trial court did not give the reckless conduct charge at the same time as it charged the jury on the two indicted offenses. According to the record, the trial court charged the jury as to the two indicted offenses, aggravated assault and simple battery. The trial court then charged the jury on party to a crime, affirmative defenses, accident, criminal negligence, and included crimes. The trial court then charged the jury on reckless conduct as a lesser included offense of aggravated assault. We find no error.

McMath cites no authority for her contention that the trial court was required to give the reckless conduct charge contemporaneously with its charges on aggravated assault and simple battery. In fact, there is no requirement that the charges be placed in any specific order or that lesser included offense charges be given contemporaneously with the indicted offense charges. The only requirement regarding jury charges is that the charges, as given, were correct statements of the law and, as a whole, would not mislead a jury of ordinary intelligence. The jury charges in the present case met this requirement.

Decided January 29, 2002

Jay L. Palmer, for appellant.

Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Amira S. AbuBakr, Assistant District Attorneys, for appellee.

McMath further attempts to bolster her enumeration of error by arguing that the trial court improperly recharged the jury following a question by the jury. The record shows that during their deliberations, the jury specifically asked for clarification on what constitutes simple battery, giving an example. Because the trial court could not tell from the question whether the jury was asking about aggravated assault or simple battery, the trial court responded to the question by recharging the jury as to both the offenses of aggravated assault and simple battery. The trial court declined McMath’s request to recharge the jury on reckless conduct. We find no error. A trial court does not err by limiting a recharge to the specific points raised by the jury’s inquiry. The jury in the present case did not request a recharge on reckless conduct, and the trial court did not err in responding only to the jury’s specific inquiries.

Judgment affirmed.

Blackburn, C. J., and Miller, J., concur.

       See York v. State, 242 Ga. App. 281, 291 (5) (c) (528 SE2d 823) (2000); Pullins v. State, 232 Ga. App. 267 (1) (a) (501 SE2d 612) (1998).

       See Sinkfield v. State, 266 Ga. 726, 727 (3) (470 SE2d 649) (1996); Carter v. State, 238 Ga. App. 632, 636-637 (3) (519 SE2d 717) (1999).


text:
    A01A2270.
    WOLTER v. WAL-MART STORES, INC.
    (559 SE2d 483)
   Blackburn, Chief Judge.

After a retail store operated by Wal-Mart Stores, Inc. refused to accept his debit card for a sales transaction, Robert J. Wolter sued Wal-Mart and First Union National Bank, the issuer of the card. The trial court granted First Union’s motion to dismiss and awarded summary judgment to Wal-Mart. In this appeal, Wolter challenges the grant of summary judgment in favor of Wal-Mart on his claim for tortious misconduct. Since no evidence showed that Wal-Mart’s conduct constituted the requisite level of abusive, opprobrious, and insulting mistreatment as required by that tort, we affirm.

When viewed in the light most favorable to Wolter as the nonmovant, the evidence showed that Wolter and Robby L. Duty owned and operated a business known as the Jeffobby Company. While vacationing in Florida, Duty lost his wallet at a gas station. This wallet contained various financial transaction cards including Wolter and Duty’s joint business and personal accounts with First Union. Following an unsuccessful search, Duty “started calling credit card companies and canceling cards.” Duty testified that he told a representative of First Union that he needed to cancel his personal card and his business card. Although the business card had been issued to Jeffobby, Wolter and Duty had separate cards in their respective' names with different numbers drawn on the same business account. By Wolter’s recollection, he and not Duty had telephoned First Union to cancel the cards. According to Wolter, he reported the missing wallet to First Union and told the bank’s representative that “we needed to stop two debit card numbers.”

On the following day, Wolter went to a Wal-Mart store in Newnan, Georgia, to purchase some items for the cleaning business. When Wolter tried to use his Jeffobby business card issued by First Union, he was unable to do so. When Wolter swiped his debit card at the checkout, the cashier said, “we have got a code. I have got to call a supervisor.” After turning on her light, the cashier summoned her supervisor. Apprised of the code problem, the supervisor left to make a telephone call. While she was doing so, Wolter described the events of the preceding day involving the lost wallet to the cashier whom he described as “friendly” and sympathetic to his plight. He admitted that the cashier did not do or say anything to embarrass him. After completing the phone call, as the supervisor walked back toward the register, and, according to Wolter, she said, “your bank has said the card is stolen.” “Pick his card up. He’s using a stolen credit card.” At this point, Wolter informed the supervisor about the lost wallet incident, and she then suggested, “well, let me go get somebody.” Although she asked Wolter “to wait for a few minutes for her to get somebody,” he refused. Instead, he paid cash for his purchases and left the store still in possession of his debit card.

From the parking lot, Wolter contacted First Union on his cell phone and demanded to know “what’s going on, my card has just been declined.” After comparing account numbers, the First Union representative determined that “they had accidentally stopped my card” instead of Duty’s. The representative explained that the first names on the cards were similar, “Robert” and “Robby,” and that the business card in the name of Robert Wolter had been stopped by mistake. She discovered that First Union had stopped Duty’s personal card and Wolter’s business card. The next day, First Union sent a letter to apologize for its error. According to the letter, “[u]nfortunately, your card account was closed instead of your partner’s card account, because a card on this account was reported lost. We have since reissued cards on this account and the account is in good standing.”

After the incident at Wal-Mart, Wolter sued Wal-Mart and First Union. Wolter alleged that he had been unlawfully detained by WalMart’s employees and “detained against his will.” He alleged that ‘Wal-Mart’s employees publicly and loudly announced so others could hear that [I] was attempting to use a stolen check card.” Wolter further claimed that “Defendant First Union and Defendant Wal-Mart’s employees exercised bad faith in falsely and maliciously accusing Plaintiff of using a stolen check card after Plaintiff explained the situation.” Wolter claimed that he suffered embarrassment and ridicule in public view. He alleged that both defendants were liable for false imprisonment and tortious misconduct.

First Union sought to be dismissed from the suit and moved for summary judgment as did Wal-Mart. The trial court dismissed First Union without prejudice and granted summary judgment to WalMart. In finding for Wal-Mart, the trial court noted that Wal-Mart “acted upon information legitimately received indicating the Plaintiff’s credit card was not valid and the Court finds that Wal-Mart, Inc. was not negligent or reckless in this regard.”

In this appeal, Wolter contends that the trial court erred in granting summary judgment to Wal-Mart on his claim for tortious misconduct. He claims that the only evidence presented to the trial court showed that Wal-Mart had absolutely no basis to publicly and falsely accuse him of using a stolen bank card. Wolter alleges that the supervisor’s remarks and the manner in which she uttered them constituted unjustifiable abuse and were insulting and embarrassing to him. Wolter contends that the supervisor created the impression that he was attempting to commit credit card fraud. He also claims that First Union never directed Wal-Mart to confiscate his card.

Tortious misconduct is based upon the principle that one who owns a mercantile establishment and sells goods

owes a duty to a customer [who is] lawfully in his store by his implied invitation for the purpose of transacting business, to protect the customer against the use of any unprovoked and unjustifiable opprobrious and insulting and abusive words by a clerk employed by him to deal with customers, tending to humiliate, mortify, and wound the feelings of the customer.

Davis v. Rich’s Dept. Stores. A claim for tortious misconduct may arise when a customer-invitee who is on the premises to transact business becomes “subjected to abusive, opprobrious, insulting, or slanderous language by an agent of the invitor.” Carter v. Willowrun Condo. Assn. This theory of liability rests not upon slander “but on the theory that a business inviter owes a public duty to protect its invitees from abusive language and conduct.” Swift v. S. S. Kresge Co.

Here, the evidence shows that due to an error, First Union mistakenly cancelled Wolter’s debit card. First Union’s representative, Tina Clark, after reviewing the bank’s transaction logs, testified that when the status on Wolter’s card changed from active to lost, the card would have been universally declined. When First Union placed the “lost” status on the debit card, that meant that this card could no longer be used for any financial transaction. Clark explained that when a “lost/stolen event” is entered into the national clearinghouse system known as the Visa Debit Processing Service (‘VDPS”), merchants subscribing to the service will receive that information. A computer printout indicates that Wolter’s debit card was “swiped” at 5:26 p.m. and 5:29 p.m. and two different codes appeared. One code meant “unauthorized usage” at First Union but equated to the VDPS “restricted card” code. The other code meant “invalid card” at First Union but equated to the VDPS “[d]o not honor!” code. Clark also testified that had First Union wanted anyone “to capture” the card, then a different code would have been assigned.

As a result of First Union’s error, when the supervisor at WalMart attempted to verify the status code for the debit card, the VDPS system indicated “unauthorized usage” and “invalid card” which translated as “do not honor.” And yet, the evidence is undisputed that Wolter made no attempt to explain to the supervisor what he suspected had occurred until after she had left to verify the status code. The record, including Wolter’s testimony, contains no evidence that the Wal-Mart supervisor acted out of a desire to harm him or that she was not motivated by a desire to protect the store’s property. Compare Revco Discount Drug Centers &c. v. Famble (store clerk made loud, angry, and false accusations of shoplifting against plaintiff in front of other customers). In fact, Wolter conceded that he did not think that the supervisor was singling him out for mistreatment or acting maliciously. At no point did she yell or shout. When Wolter was asked, “now, when [the supervisor] made [the] statement to the cashier . . . was she actually addressing the cashier when making that statement, or was she sort of announcing it to the whole store?” he responded, “[i]t looked like she was announcing it to me that she had caught me and at the same time announcing it to the cashier to pick it up.” Although Wolter speculated that the customer behind him at the checkout and her young son might have overheard the supervisor’s remarks, he also testified that this same customer had likely heard his explanation to the cashier. And, despite admitting that he had a pretty good idea as to why the problem arose, Wolter did nothing to alert the supervisor to the possibility of a mistake on the part of the bank.

As he conceded during his deposition, Wolter’s sole complaint against Wal-Mart hinges on the supervisor’s conduct in that he believed that she should have used a quieter tone of voice and should have waited until she was closer to the cashier to report the problem. Wolter felt that “she was looking at me [i]n a questionable manner.” He noted that she “seemed a little confused” and “had an odd look on her face.” But at no point did the supervisor or anyone else accuse Wolter of committing a crime or threaten to arrest him. He conceded that she did not make any disparaging remarks or inappropriate comments to him. Although Wolter assumes that someone other than the customer behind him overheard the supervisor, he has not been able to identify anyone as a possible witness to the event and he admitted that he did not look around to see whether anyone was looking. Compare Simmons v. Kroger Co.

Although Wolter correctly argues that OCGA § 51-7-60 did not apply to the conduct at issue here, summary judgment was nevertheless warranted. Simmons v. Kroger Co., supra at 724 (2). After the warning code appeared on the computer terminal at the checkout, the supervisor attempted to ascertain the validity of the debit card, only to be misinformed as to the card’s proper status. See Taylor v. Super Discount Market (cashier mistakenly believed that a $20 bill dated 1950 and in excellent condition that lacked the words “In God We Trust” was counterfeit). Although the supervisor obtained erroneous information, she, nonetheless, had a legitimate basis to believe that the card might well have been stolen. See id. Although the supervisor could perhaps have been more tactful in handling this situation, the conduct alleged does not rise to the level of “unprovoked and unjustifiable opprobrious and insulting and abusive words by an employee tending to humiliate, mortify, and wound the feelings of the customer.” (Punctuation omitted.) Mitchell v. Lowe’s Home Centers. Since the evidence does not show that Wolter was subjected to abusive, opprobrious, insulting, or slanderous language by an agent of Wal-Mart, summary judgment in favor of defendant Wal-Mart was proper. See Fly v. Kroger Co.

Decided January 14, 2002

Reconsideration denied January 30, 2002

Helms & Helms, Jack J. Helms, Jr., for appellant.

McLain & Merritt, W. Anthony Moss, for appellee.

Judgment affirmed.

Pope, P. J., and Mikell, J, concur.

       First Union is not a party to this appeal.

        Davis v. Rich’s Dept. Stores, 248 Ga. App. 116, 119 (2) (545 SE2d 661) (2001).

        Carter v. Willowrun Condo. Assn., 179 Ga. App. 257, 259 (3) (345 SE2d 924) (1986).

        Swift v. S. S. Kresge Co., 159 Ga. App. 571, 572 (2) (284 SE2d 74) (1981).

        Revco Discount Drug Centers &c. v. Famble, 173 Ga. App. 330, 331-332 (4) (326 SE2d 532) (1985).

        Simmons v. Kroger Co., 218 Ga. App. 721, 724 (2) (463 SE2d 159) (1995).

        Taylor v. Super Discount Market, 212 Ga. App. 155, 157 (441 SE2d 433) (1994).

        Mitchell v. Lowe’s Home Centers, 234 Ga. App. 339, 343 (3) (506 SE2d 381) (1998).

        Fly v. Kroger Co., 209 Ga. App. 75, 78 (3) (432 SE2d 664) (1993).


author: Phipps, Judge.

text:
    A02A0618.
    FEAGIN v. THE STATE.
    (559 SE2d 486)
   Phipps, Judge.

Willie Joe Feagin appeals his convictions of burglary and kidnapping with bodily injury. He enumerates as error the trial court’s jury instruction on the elements of kidnapping and the court’s admission of similar transaction evidence. We find no error and affirm.

The evidence showed that while on the premises of a retail tire store, Feagin entered an office area not open to the general public. When confronted by a female employee who asked what he was doing, Feagin told her to “shut up, don’t worry about it” and forced her from one office into another. A struggle ensued, and the employee was injured.

The court admitted evidence of two similar transactions. In one, Feagin was charged with burglary and pled guilty to criminal trespass based on evidence showing that, with the aid of a female accomplice acting as a decoy, he entered a private office in a bookstore where he was found rummaging through desks. In the other, Feagin stole money from a private office in an automobile repair shop. In both independent transactions and in the crime charged, Feagin was identified as a result of eyewitnesses obtaining his car’s tag number as he was fleeing the scene.

Decided January 14, 2002

Reconsideration denied January 30, 2002

Monica T. Myles, Mary Erickson, for appellant.

Willie J. Feagin, pro se.

David McDade, District Attorney, for appellee.

1. Feagin complains that the trial court improperly commented on the evidence by stating, during the course of jury instructions on the abduction element of kidnapping, that there was no evidence of the defendant having had any legal authority to control the body and person of the tire store employee.

Although the court did improperly comment on the evidence, we find no harm as the court correctly charged the jurors that whether an abduction in fact occurred was for them to decide, and indisputably there was no evidence that Feagin was legally authorized to restrain the employee’s movements. “[A]n expression of opinion as to an uncontested and undisputed fact is not cause for reversal. [Cit.]”

2. Feagin contends that the independent crimes did not bear sufficient similarity to the crime charged to warrant their admission in evidence.

We disagree. The independent crimes evidence showed that on two prior occasions, Feagin entered private office areas in businesses selling goods or services to the public with the intent of engaging in unlawful conduct. Because the State charged Feagin with having done the same thing here, the trial court did not abuse its discretion in admitting evidence of the other crimes. The transactions “need not be identical in every respect. [Cit.]”

Judgment affirmed.

Andrews, P. J., and Mikell, J., concur.

        Dixon v. State, 196 Ga. App. 15, 18 (7) (395 SE2d 577) (1990).

       See Lumsden v. State, 222 Ga. App. 635, 636 (1) (475 SE2d 681) (1996).

       Id.


text:
    A00A0417.
    THE STATE v. BOWEN.
    (559 SE2d 758)
   Smith, Presiding Judge.

In State v. Bowen, 245 Ga. App. 159 (537 SE2d 417) (2000), this court affirmed the trial court’s grant of Bowen’s motion to suppress the results of a breath test. The Supreme Court granted certiorari and reversed our decision. State v. Bowen, 274 Ga. 1 (547 SE2d 286) (2001). Accordingly, our judgment in this case is vacated, and the judgment of the Supreme Court is made the judgment of this court. The trial court’s grant of Bowen’s motion to suppress is therefore reversed.

Decided January 31, 2002.

Jerry Rylee, Solicitor-General, Larry A. Baldwin II, Assistant Solicitor-General, for appellant.

Chandler & Britt, Walter M. Britt, Deborah F. Weiss, for appellee.

Judgment reversed.

Blackburn, C. J, Pope, P. J., Andrews, P. J., Johnson, P. J., Ruffin, Eldridge, Barnes, Miller, Ellington, Phipps and Mikell, JJ, concur.


text:
    A01A1702.
    In the Interest of M. E. A., a child.
    (559 SE2d 759)
   Johnson, Presiding Judge.

A petition was filed in the DeKalb County Juvenile Court charging that 16-year-old M. E. A. had committed acts that, if committed by an adult, would constitute armed robbery. An adjudicatory hearing was held before a juvenile court judge on the petition. The judge found that the evidence supported the petition, and he adjudicated M. E. A. delinquent on the charge. M. E. A. appeals from the juvenile court’s delinquency adjudication, arguing that because of conflicts in the evidence there is insufficient evidence to support the adjudication and that the judge erroneously refused to allow him to introduce evidence of his general good character in the community. M. E. A.’s arguments are without merit, and we therefore affirm the juvenile court’s ruling.

1. On appeal, we review the evidence in the light most favorable to the findings and adjudication of the juvenile court to determine if a rational trier of fact could have found, beyond a reasonable doubt, that the juvenile committed the acts charged. Moreover, the credibility of witnesses and conflicts in the evidence are matters to be resolved by the factfinder.

Viewed in favor of the juvenile court’s findings, the evidence in the instant case shows that on June 15, 2000, Phillip Seiders delivered pizzas, bread sticks, and soda to a house in DeKalb County. A young male opened the front door, and Seiders stepped into the house. The young male locked the door behind Seiders, said he had to get the money to pay, and left the entryway. As Seiders waited, three people wearing masks, one of whom was carrying a large knife, appeared. The person with the knife ordered Seiders to give them the food and money. Seiders complied and was allowed to leave the house. He got in his car, drove back to his place of employment, and told his manager what had happened. The manager immediately called the police.

Police investigating the crime discovered that the house was actually abandoned, but that the young man who had opened the door lived across the street from the house. The young man, J. S., implicated M. E. A. and other juveniles in the crime. He identified M. E. A. as having initiated the planning of the crime and as being the masked robber who had wielded the knife. He also said that after the robbery they all went to M. E. A.’s house. Another juvenile, M. T., who was involved in the discussions before the robbery, also said that M. E. A. initiated those discussions.

The police obtained a search warrant for M. E. A.’s house. They executed the warrant and found the clothes worn by J. S. during the robbery in M. E. A.’s room. They also found the knife used during the robbery in a crawl space above M. É. A.’s room.

At the adjudication hearing, M. E. A. denied being involved in the crime. He claimed that he hid the clothes and the knife for J. S. at his house solely to help his friend. M. E. A.’s brother testified that M. E. A. was at home at the time of the robbery.

After adjudicating M. E. A. delinquent, the juvenile judge held a dispositional hearing. At that hearing, M. E. A. admitted to the court that he had participated in the robbery and that he had been the one with the knife.

Although there were conflicts in the evidence, we find sufficient evidence from which a rational trier of fact could have found, beyond a reasonable doubt, that M. E. A. committed acts that, if committed by an adult, would constitute armed robbery.

2. M. E. A.’s claim that the judge refused to allow him to introduce evidence of his good character misconstrues the testimony that the judge disallowed. The judge ruled that M. E. A.’s mother could not answer questions about whether M. E. A. makes quick, irrational decisions and whether he has a learning disability. This testimony that M. E. A. sought to elicit was not good character evidence, but was evidence of his specific traits. Good character may be established only by evidence of the general reputation of the accused in the community, not by evidence of his specific acts or traits. Because M. E. A. did not attempt to introduce evidence of his general reputation in the community, his claim of error is without merit.

Decided January 31, 2002.

Donald E. Smith, for appellant.

Gregory K. Schwarz, Solicitor-General, Lori B. Duff, Assistant Solicitor-General, for appellee.

Furthermore, harm as well as error must be shown in order for us to reverse the juvenile court’s adjudication. Given the overwhelming evidence that M. E. A. committed the armed robbery, we find no harm in the judge’s exclusion of the testimony in question.

Judgment affirmed.

Ruffin and Ellington, JJ, concur.

        In the Interest of M. M., 240 Ga. App. 571 (524 SE2d 274) (1999).

       Id.; In the Interest of B. J. G., 234 Ga. App. 285 (1) (506 SE2d 449) (1998).

       See In the Interest of W. C. J., 218 Ga. App. 452, 454 (1) (462 SE2d 168) (1995).

        Cargill v. State, 255 Ga. 616, 644 (33) (340 SE2d 891) (1986); Brooks v. State, 236 Ga. App. 604, 605 (1) (512 SE2d 693) (1999); Davis v. State, 189 Ga. App. 439, 440 (4) (376 SE2d 230) (1988).

        Shelnutt v. State, 234 Ga. App. 655, 656 (1) (506 SE2d 643) (1998).


author: SMITH, Presiding Judge.

text:
    A01A1865.
    HANSEN v. COOPER et al.
    (559 SE2d 740)
   SMITH, Presiding Judge.

After slipping and falling on some wet grass in her neighbors’ yard, Joan Hansen brought a personal injury lawsuit against her neighbors, Harry A. Cooper, M.D. and Beverly Cooper. The Coopers sought and obtained summary judgment. Although Hansen claims that material issues of disputed fact precluded summary judgment, we find otherwise and affirm.

On appeal from a grant of summary judgment, this court conducts a de novo review of the record while construing the evidence and all reasonable inferences in favor of the nonmoving party. Maddox v. Southern Engineering Co., 231 Ga. App. 802, 803 (500 SE2d 591) (1998). When the evidence is viewed more favorably toward Hansen, the nonmovant, the record shows the following. Before departing on vacation, Dr. Cooper arranged for Hansen to pick up the newspapers and mail at the Coopers’ home. For six days, Hansen did so without incident. But, on the seventh day, after Hansen took three or four steps off the driveway and was bending to retrieve a newspaper, she suddenly slipped and fell, breaking her leg. When Hansen fell, it was about 6:30 a.m., on a summer morning, and she said that “there was probably a light dew” on the lawn. Hansen testified that while sliding on the grass, she saw water come up around her shoe. Hansen alleged that the cause of her fall was the Coopers’ failure to maintain their property, specifically, their underground sprinkler system. Hansen described the grass where she slipped as “water-soaked” and “soggy.” She testified that “the drenched and saturated ground at the accident site was not the result of rain; that the ground at her own home and neighborhood was parched as there had been no rain in two (2) weeks, except for [a] small amount occurring on the evening after the fall.” She deduced that the “water obviously came from the malfunctioning [sprinkler] system.”

In support of summary judgment, the Coopers offered an affidavit from David R. Goodoien, a certified irrigation designer and contractor. Retained by Hansen and at her behest, Goodoien conducted an inspection of the sprinkler system in September 1998. Goodoien testified that he was unable to turn the irrigation system on and that water would not flow through the pipes. Only after excavating into the ground and digging up an area to expose the gate valve and PVC mainline was Goodoien then able to see “a small amount of water leaking through the gate valve, which I would describe as only a small drip.” The leak was not visible from above, and to locate the leak, it was necessary to dig up the ground, cut away a section of pipe, and disassemble part of the valve. Goodoien testified, “I do not believe that the small amount of water that was leaking at the gate valve on the left side of the driveway could have made it over to the right side of the yard since the pipes were not functioning and since it was such a small amount of water leaking.”

The evidence shows that the underground sprinkler system had been turned off approximately a year earlier and had not been in use for five to ten years. After the system stopped working properly, the Coopers decided because of the cost of repair that “we’d just rather do without it.” Beverly Cooper confirmed that the system had not been in use for eight to ten years. Dr. Cooper denied knowing about any leaks in the area where Hansen fell. The Coopers also offered evidence that their yard had been professionally maintained once a week for the six months before the incident. Although Dr. Cooper apparently told Hansen that the leakage of water may earlier have caused the driveway to crack, he testified that he had never been notified about any leaks from the dormant sprinkler system or any other type of hazardous condition on the lawn.

In opposition to summary judgment, Hansen relied primarily on her own affidavit and that of David M. Rychlik. Hansen believed that the sprinkler system was defective and malfunctioning and that the Coopers “had notice thereof.” She testified that Dr. Cooper admitted knowing that the sprinkler system was broken but had not repaired it because of the expense involved. Hansen also testified that the area where she fell was “at the lowest point of the sprinkler line.” Rychlik recounted Dr. Cooper as having said that he had not repaired the sprinkler system because “he felt it would be too expensive to repair.” Hansen testified that she did not notice the ground was wet before she slipped. Hansen’s expert witness, Robert A. Scott, testified that the gate valve was not manufactured to withstand the back flow of water. Scott testified that the absence of back flow prevention would allow the seepage of water across and underneath the driveway.

After reviewing the evidence and argument, the trial court determined that the Coopers were entitled to judgment as a matter of law and granted their motion for summary judgment. Hansen filed this appeal.

Hansen contends that material issues of disputed fact foreclosed summary judgment. She claims that a jury must resolve 26 separate factual questions. We disagree. To prevail on summary judgment the moving party must demonstrate:

that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff’s claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial. [Cit.]

Hoffman v. Fletcher, 244 Ga. App. 506, 507 (535 SE2d 849) (2000). Here, after the Coopers established that Hansen lacked evidence to support an essential element of her claim, all other factual issues became immaterial. Shepard v. Wal-Mart Stores, 226 Ga. App. 819 (487 SE2d 664) (1997).

Hansen, who entered the Coopers’ property by express invitation to collect their mail and newspapers, was an invitee. See Anderson v. Reynolds, 232 Ga. App. 868, 869 (502 SE2d 782) (1998). “[A]n owner or occupier of land is liable in damages to invitees who come upon the land for injuries occasioned by his failure to exercise ordinary care in keeping the premises safe.” Murphy v. Blue Bird Body Co., 207 Ga. App. 853, 857 (3) (429 SE2d 530) (1993); OCGA § 51-3-1. As a result, the Coopers owed Hansen a duty of reasonable care.

In premises liability cases, proof of falling or slipping, without more, does not give rise to liability on the part of the property owner. Hallberg v. Flat Creek Animal Clinic, 225 Ga. App. 212, 215 (2) (483 SE2d 671) (1997). Instead, a plaintiff may recover only if the property owner had knowledge of the condition and the plaintiff did not know about it. Hannah v. Hampton Auto Parts, 234 Ga. App. 392, 394 (506 SE2d 910) (1998). The true ground of liability is the defendant’s superior knowledge about the existence of a condition that may subject the invitee to an unreasonable risk of injury. Pound v. Augusta Nat., 158 Ga. App. 166, 167-168 (279 SE2d 342) (1981). To fulfill the duty to inspect premises to keep them safe from defects including hidden defects, the law requires only the exercise of ordinary care, not extraordinary care. Armenise v. Adventist Health System/Sunbelt, 219 Ga. App. 591, 593 (466 SE2d 58) (1995).

Decided January 31, 2002.

Sarah M. Way man, for appellant.

Chambers, Aholt & Rickard, Ian R. Rapaport, for appellees.

In this case, it is undisputed that the Coopers were away on vacation at the time of the incident. Dr. Cooper denied having any knowledge about the alleged defective condition on the lawn and could not recall having seen an accumulation of water in the area where Hansen fell. Although the evidence certainly indicates that the Coopers knew that their sprinkler system was broken and nonfunctional, having been turned off after the pipes burst and cracked the driveway, no evidence shows that they knew that the defunct system had created a hazard on their lawn at the time that Hansen fell. Since the record contains no evidence that the Coopers had actual knowledge of the alleged hazardous condition, Hansen had to establish their constructive knowledge of it. Anderson, supra, 232 Ga. App. at 870. This she failed to do. Even assuming arguendo that the alleged soggy condition of the grass was caused by a leak in the Coopers’ defunct lawn sprinkler system, testimony showed that this cut-off valve was buried 18 inches underground and that the small leak was discoverable only upon digging down into the ground adjacent to the driveway. Only after excavating did Goodoien find a “small drip” at the cut-off valve. Since the alleged defect was incapable of discovery by reasonable inspection, the Coopers established their lack of actionable constructive knowledge. See Barksdale v. Nuwar, 203 Ga. App. 184, 185 (416 SE2d 546) (1992). In the absence of evidence that the Coopers failed to discharge the duty of ordinary care owed to Hansen, summary judgment was authorized. See id. at 186.

Judgment affirmed.

Barnes and Phipps, JJ, concur.

       Hansen supplemented her response with the affidavit of Robert A. Scott, an irrigation consultant.


author: Ellington, Judge.

text:
    A01A1877.
    HEATH et al. v. BOSTON CAPITAL CORPORATE TAX CREDIT FUND VIII.
    (559 SE2d 743)
   Ellington, Judge.

The Superior Court of Houston County granted summary judgment to Boston Capital Corporate Tax Credit Fund VIII (“Boston Capital”) on its complaint to collect on a personal guaranty agreement signed by Miller L. Heath, Jr. and Miller L. Heath III. The court entered judgment against the Heaths in the principal amount of $952,395.29, plus interest and attorney fees. Finding no reversible error, we affirm.

Viewed in the light most favorable to the Heaths, the record reveals the following relevant facts. In February 1997, the Heaths, through a limited partnership, began developing a low-income housing project in Warner Robins. The Heaths were members of the general partnership, Ignico Developers, LLC. Boston Capital was the primary limited partner in the limited partnership, Rosewood Partners, L.P. (“Rosewood”). Pursuant to the partnership agreement which created Rosewood, Boston Capital provided 99 percent of the partnership’s funding. To induce Boston Capital’s investment in the project, the Heaths executed a personal guaranty in favor of Boston Capital in which they unconditionally guaranteed repayment of their obligations under the partnership agreement.

Boston Capital was conditionally obligated to invest $1,340,957 in the Rosewood Project. The investment was contingent upon the project qualifying for certain federal tax credits, 99 percent of which would be allocated to Boston Capital. To induce Boston Capital’s participation, the Heaths certified that the project qualified for those tax credits. Upon execution of the partnership agreement, Boston Capital invested $809,536 in the project. Boston Capital reserved the right to characterize $469,531 of that investment as an interim loan for tax purposes and did, in fact, draft loan documents for that amount. A few months after making this initial investment, Boston Capital discovered that the promised tax credits would not be available.

On January 26, 2000, Rosewood filed for Chapter 11 bankruptcy protection. The Heaths admit the project “was a disaster.” Contrary to their assertion, however, there is no evidence that the project’s ineligibility for the tax credits caused its financial problems. The record indicates that competition from other low-income housing developments may have contributed to the project’s inability to meet its obligations. Before Boston Capital would give the requisite consent for Rosewood to file a bankruptcy petition, it required Ignico to execute an amendment to the partnership agreement changing the project’s management. It also revised “Schedule A,” listing the amount of its paid-in capital contribution as $809,536. At the same time the Heaths executed the amendment, they executed a document that reconfirmed and ratified their personal guaranty to include this amendment.

Boston Capital notified Ignico and the Heaths by letters dated March 29, 2000, that Ignico was in default under the partnership agreement and that Boston Capital was exercising its right under the partnership agreement to require Ignico to repurchase its interest and exercising its right under the guaranty agreement to require the Heaths to pay the outstanding amount due. Shortly thereafter, Boston Capital filed this suit against the Heaths on their personal guaranty.

1. In their first four enumerations of error, the Heaths contend the trial court erred in determining the amount owed under the guaranty. The Heaths implicitly concede they were personally liable for the original “paid in cash capital contribution” of $340,005. They argue, however, that the court erroneously considered the $469,531 in loan proceeds as part of Boston Capital’s equity investment. We disagree.

To prevail on summary judgment, Boston Capital was required to demonstrate that no genuine issue of material fact existed and that it was entitled to judgment as a matter of law. Duke v. KHD Deutz of America Corp., 221 Ga. App. 452 (471 SE2d 537) (1996). Once it made a prima facie showing of entitlement to judgment as a matter of law, the burden shifted to the Heaths to come forward with evidence establishing a defense. Id.; Braswell v. Bank of Early, 229 Ga. App. 445, 447 (494 SE2d 277) (1997). In a suit on a note, “when signatures are admitted or established, production of the instrument entitles a holder to recover on it unless the defendant establishes a defense.” (Citation, punctuation and footnote omitted.) Braswell v. Bank of Early, 229 Ga. App. at 447. There is no dispute that the Heaths signed the guaranty. Boston Capital, therefore, established a prima, facie right to a recovery, shifting the burden to the Heaths to establish a valid defense. The Heaths’ defense that the repurchase amount excludes the amounts initially loaned, however, would require the introduction of parol evidence to controvert the fact that the amended partnership agreement plainly lists Boston Capital’s “Paid-In Capital Contribution” as “$809,536.” Such parol evidence would be admissible only to explain an ambiguity in the guaranty that could not be resolved by the applicable rules of contract construction. Sharple v. AirTouch Cellular &c., 250 Ga. App. 216, 218 (551 SE2d 87) (2001); Nobel Lodging v. Holiday Hospitality Franchising, 249 Ga. App. 497, 498-499 (1) (548 SE2d 481) (2001). See also OCGA §§ 13-2-2 (1); 24-6-1; 24-6-3 (b).

The partnership agreement states that upon the occurrence of any “repurchase event,” Ignico shall buy back the interests of Boston Capital by paying the “repurchase amount.” In the contemporaneously executed guaranty agreement, the Heaths “unconditionally and irrevocably” guaranteed to pay when due “each and every obligation” of Ignico including without limitation Ignico’s “obligation to repurchase the interest of [Boston Capital] pursuant to the terms of Section 5.2 of the Partnership Agreement.” The “repurchase amount” is defined in that section as

an amount in cash (the “Repurchase Amount”) equal to each such Partner’s Invested Amount minus the portion, if any, of such Partner’s Capital Contribution which shall not have yet been paid (or deemed to have been paid) to the Partnership plus the amount of any third-party costs, including, without limitation, attorney’s fees incurred by or behalf of such partner. . . .

Boston Capital’s “Invested Amount” is defined as “an amount equal to the Capital Contribution . . . divided by 0.85.” “Capital Contribution” means the “total of cash or property contributed and agreed to be contributed to the Partnership by each Partner, as set forth in Schedule A.” Amended Schedule A states that Boston Capital invested “$809,536” in the project as a “Paid-In Capital Contribution.” This language is unambiguous. The Heaths, experienced businessmen who were represented by counsel when they signed these documents, cannot now attempt to modify the plain meaning of their contracts with parol evidence. See Nobel Lodging v. Holiday Hospitality Franchising, 249 Ga. App. at 498-499. Because the evidence does not raise a material issue of fact with respect to the amount due, the trial court did not err in finding for Boston Capital as a matter of law. See id.

2. In their final enumeration of error, the Heaths argue that the trial court erred in granting Boston Capital’s motion for summary judgment because the “underlying transaction giving rise” to the guaranty agreement was void “due to mutual mistake of the parties concerning the availability of certain tax credits.” The Heaths, however, expressly waived in their guaranty agreement any defense of Ignico’s that they may have shared and raised with respect to the validity or enforceability of the underlying partnership agreement or any of the ancillary project documents. Consequently, Boston Capital was entitled to summary judgment on this defense. Baby Days v. Bank of Adairsville, 218 Ga. App. 752, 755-756 (3) (463 SE2d 171) (1995).

Judgment affirmed.

Johnson, P. J., and Ruffin, J., concur.

Decided January 31, 2002.

Clarke & Moore, H. David Moore, Lisa R. Coody, James C. Marshall, for appellants.

Powell, Goldstein, Frazer & Murphy, Jeffrey W. Kelley, Shannon L. Nagle, Christopher E. Reeves, for appellee.


text:
    A01A2028.
    GEORGIA BAPTIST HEALTH CARE SYSTEM, INC. et al. v. HANAFI.
    (559 SE2d 746)
   Ellington, Judge.

Appellants Georgia Baptist Health Care System, Inc. (“Georgia Baptist”) and Arnall, Golden & Gregory, LLP (“AGG”) challenge the trial court’s order disqualifying AGG as Georgia Baptist’s defense counsel in this suit brought by Dr. Magdi Hanafi to reinstate his medical privileges. We granted an interlocutory appeal to consider whether the trial court properly determined that AGG should be disqualified based upon a conflict in representation. Because the evidence adduced reveals that Hanafi waived the conflict, the trial court should have denied the motion. For this reason, we reverse.

The record reveals these pertinent facts. Since 1991, Hanafi and Georgia Baptist have been involved in a dispute concerning Hanafi’s reapplication for certain restricted or previously denied hospital privileges. In 1994, Hanafi retained Jim Kelly & Associates (“the Kelly firm”) to represent him through a peer review hearing process at which a panel of physicians reconsidered Hanafi’s reapplication for the reinstatement of those privileges. Georgia Baptist’s hospital board affirmed the hearing panel’s decision to deny Hanafi’s reapplication for privileges. The Kelly firm’s representation ended in April 1996. Shortly thereafter, Chilivis, Cochran, Larkins & Bever (“Chilivis Cochran”) represented Hanafi in a Fulton County suit to enjoin any final action by Georgia Baptist. The trial court denied Hanafi’s motion for an interlocutory injunction, and the order, was affirmed on appeal. Hanafi v. Ga. Baptist Med. Center, 226 Ga. App. XXVII (1997).

Since the beginning of this dispute, Georgia Baptist was represented by Duvall, McCumber & Doverspike, P.C. (“DMD”). On June 17, 1996, attorney William Pike moved from the Kelly firm to DMD. Pike was an associate at the Kelly firm and worked on Hanafi’s case during the hospital’s administrative hearing process. The evidence shows that when DMD hired Pike, it erected a “Chinese wall” to screen Pike from the Hanafi case. Further, DMD contacted Chilivis Cochran and notified the firm and Hanafi of Pike’s employment and of the steps taken to prevent any improper communication. In a July 3, 1996 letter to Hanafi’s counsel, DMD expressed its understanding that Hanafi and his counsel “waived any objection or challenge to and expressly agreed to [DMD’s] continued representation of [Georgia Baptist].” Hanafi admits he was aware of the conflict in July 1996. While Chilivis Cochran represented Hanafi, Hanafi did not object or file a motion to disqualify. However, 17 months later and after retaining new counsel, Hanafi moved to disqualify DMD. In the interim between the motion’s filing and the trial court’s ruling on it, DMD merged with AGG. On January 26, 1998, the trial court denied Hanafi’s motion to disqualify, finding it both moot and untimely. There is no record evidence that Hanafi appealed this order. A year later, Pike left AGG and began working in-house with Georgia Baptist. In June 1999, Hanafi dismissed the suit without prejudice.

On December 14, 1999, Hanafi filed the underlying renewal action. AGG answered the complaint on behalf of Georgia Baptist. The parties conducted discovery. On March 29, 2000, Hanafi filed an amended complaint, which AGG again answered. After the trial court entered a consent order extending discovery, and more than eight months after AGG’s entry of appearance on behalf of Georgia Baptist, Hanafi moved to disqualify the firm. The trial court granted Hanafi’s motion and disqualified AGG based upon the imputed conflict, but failed to consider whether the conflict had been waived.

“[T]he right to counsel is an important interest which requires that any curtailment of the client’s right to counsel of choice be approached with great caution.” Blumenfeld v. Borenstein, 247 Ga. 406, 408 (276 SE2d 607) (1981). Disqualification not only curtails a client’s right to counsel of choice, but results in expense and delay that are costly both to the client and to the administration of justice. See Reese v. Ga. Power Co., 191 Ga. App. 125, 127 (2) (381 SE2d 110) (1989). Consequently, “[a] motion to disqualify should be made with reasonable promptness after a party discovers the facts which lead to the motion.” (Citations omitted.) Jackson v. J. C. Penney Co., 521 FSupp. 1032, 1034 (N.D. Ga. 1981). A failure to make a reasonably prompt motion to disqualify may result in the conflict being waived. Id.; see also Conley v. Arnold, 93 Ga. 823, 824 (20 SE 762) (1894); cf. Summerlin v. Johnson, 176 Ga. App. 336, 341 (335 SE2d 879) (1985).

“Although the length of the delay in bringing a motion to disqualify is obviously important, it is not dispositive.” (Citation omitted.) Chem. Waste Mgmt. v. Sims, 875 FSupp. 501, 505 (B) (N.D. Ill. 1995). The court must consider the length of the delay in light of the circumstances of the particular case, which include “when the movant learned of the conflict; whether the movant was represented by counsel during the delay; why the delay occurred; and whether disqualification would result in prejudice to the nonmoving party.” (Citations omitted.) Id. The court must then weigh these factors against the seriousness of the conflict alleged and the extent to which the public’s confidence in the administration of justice would be eroded if the motion was denied. See In re Corrugated Container Antitrust Litigation v. Alton Box Bd. Co., 659 F2d 1341, 1348-1349 (5th Cir. 1981). The court should also be sensitive to the possibility that there may be situations where “[the] disqualification would raise more public suspicion than it would quell.” Id. at 1349.

In this case, the evidence adduced demands a finding of waiver. The record reveals that Hanafi, when represented by counsel, learned of the conflict in July 1996 during the suit which preceded the instant renewal action. There is some evidence that he consented to the conflict. Moreover, there is no evidence that Hanafi withdrew that consent based upon some reasonable ground, like a breach of DMD’s screening procedures. Hanafi also waited 17 months after learning of the conflict before he filed his first motion to disqualify. A delay of this length is inconsistent with a legitimate concern over the misuse of client confidences and is some evidence that the matters litigated are either unrelated to the prior representation or that the client does not suspect unethical conduct by former counsel. Further, the motion to disqualify was not filed until after an adverse ruling of the trial court. This is some evidence that the disqualification motion may have been interposed for harassment or delay. Similarly, in the renewal action, even though Hanafi was well aware of the conflict when AGG filed its first answer, Hanafi waited over eight months to file its motion to disqualify. At this point, discovery was almost complete.

Decided January 31, 2002

Arnall, Golden & Gregory, Timothy A. Baxter, Andrew B. Flake, Kevin B. Getzendanner, for appellants.

Weinstock & Scavo, Michael Weinstock, Louis R. Cohan, Jami M. Kohn, Jones, Day, Reavis & Pogue, Ruth H. Gershon, for appellee.

AGG and its predecessor firm, DMD, have defended Georgia Baptist against Hanafi’s claims for over ten years. We may infer that Georgia Baptist is heavily invested in its counsel of choice. Disqualifying AGG at this juncture would deprive Georgia Baptist of counsel who, by virtue of the time spent on this matter, is uniquely experienced. It would be costly and it would further delay the resolution of this matter. Finally, although the nature of the conflict alleged is serious, it is the type of conflict which may be managed and ameliorated through screening and other prophylactic measures to protect client confidences. The evidence shows that DMD promptly screened attorney Pike from all matters relating to Hanafi. Further, we see no evidence that those procedures were ineffective or were breached. Under these circumstances, AGG’s continued representation of Georgia Baptist would not undermine public trust in the legal profession or in the administration of justice. Weighing these factors, we conclude that Hanafi’s motion to disqualify was untimely and the conflict waived. Because the trial court erred in disqualifying AGG, we must reverse that order.

Judgment reversed.

Johnson, P. J, and Ruffin, J., concur.

       Hanafi contends AGG lacks standing to appeal the disqualification order. We do not reach the issue of AGG’s standing, however, because Georgia Baptist is clearly aggrieved by the order and has standing to appeal. See OCGA § 5-6-33.

       “Chinese wall” is a term used to describe a variety of screening measures that may be employed to prevent an attorney who is tainted by an ethical conflict from “infecting” the entire firm. See Cromley v. Bd. of Ed. of &c. School Dist. No. 205, 17 F3d 1059, 1065 (7th Cir. 1994).

       The conflict at issue - successive adverse representation in a substantially related matter - is one to which Hanafi could have consented. Rule 1.9 (a) of the Code of Professional Responsibility provides that “[a] lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client consents after consultation.” The trial court, however, erroneously determined that Hanafi could not consent to the conflict. It misapplied Rule 1.7 (c) (2), which pertains to situations involving multiple contemporaneous representation, not successive adverse representation. See Humphrey v. State, 244 Ga. App. 808, 810 (2) (537 SE2d 95) (2000).