author: Blackburn, Judge.

text:
    A98A1300.
    HARRIS v. THE STATE.
    (505 SE2d 239)
   Blackburn, Judge.

Following a jury trial, Michael Rodney Harris appeals his convictions for the aggravated assault of Carla Passley and Monica Passley, contending that (1) the evidence was insufficient to support the verdict, (2) a fatal variance exists between the allegations set forth in the indictment and the evidence adduced at trial, and (3) the trial court erred by admitting cumulative evidence. For the reasons discussed below, we affirm.

“On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Harris] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. . . . The standard for reviewing [an appeal based on insufficiency of the evidence] is whether under the rule of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense.” (Punctuation omitted.) Lester v. State, 226 Ga. App. 373, 376 (2) (487 SE2d 25) (1997).

Viewed in the light most favorable to the verdict, the record shows that Harris had been involved in a romantic relationship with Carla Passley. Although the relationship had been terminated by Carla, Harris wished to reconcile with her. On the evening of December 24, 1995, Carla and her niece Monica went to a friend’s home. An hour or so later, as she was departing, Monica saw Harris approaching. Monica re-entered the home, instructing the guests not to open the doors because Harris was behaving strangely and would attempt to gain access to Carla.

After Harris knocked and was not permitted to enter, he forced the door open. Harris entered the home, kicked at Carla, and shattered a glass table. Harris then pulled out a knife and pursued Carla. Carla fled into the bathroom and attempted to close the door to escape from Harris. Harris forced the door open and, finding Carla on the ground with her legs pinioned against the door, stabbed Carla in the leg. While Carla attempted to protect herself, Harris continued stabbing her in the head, ears, back, legs, arms, chest, and buttocks.

Fearing that Harris would kill Carla, Monica followed Harris to the bathroom and began punching, hitting and pulling on Harris to make him stop. She attempted to grab the knife on two occasions, cutting her hand in the process. Harris ordered Monica to stop interfering, saying: “Get back or I’m going to kill you, too.” As Harris continuously stabbed Carla, the blade of the knife broke. Then, with the remainder of the knife, Harris turned and hit Monica, cutting her mouth. At some point, Carla fled from the bathroom to the bedroom and lost consciousness. Harris then left the home.

1. In his first enumeration, Harris contends that the evidence was not sufficient to support his conviction for the aggravated assault of Monica. We disagree.

Harris does not deny that he injured Monica. He argues instead that no assault occurred because Monica did not experience an apprehension or fear of bodily harm and because he did not intentionally harm Monica. These contentions are patently erroneous.

Among other ways, an aggravated assault occurs when a person assaults another with “a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” OCGA § 16-5-21 (a) (2). In turn, “[a] person commits the offense of simple assault when he either . . . [ajttempts to commit a violent injury to the person of another or . . . [c]ommits an act which places another in reasonable apprehension of immediately receiving a violent injury.” (Punctuation omitted and emphasis supplied.) OCGA § 16-5-20 (a). Even if we were to accept Harris’ argument that Monica’s attempt to protect Carla showed that she was not apprehensive about receiving a violent injury, the evidence clearly shows that Harris assaulted Monica by his attempt to commit a violent injury to her. Moreover, we do not accept Harris’ characterization of Monica’s acts as proof that she was not apprehensive of receiving injury. The jury was entitled to believe that such apprehension existed; it was simply overcome by Monica’s greater apprehension that Carla would perish without her assistance.

We also reject Harris’ contention that he accidentally wounded Momea. As an initial matter, there was testimony that Harris explicitly threatened Monica’s life, clearly showing his intention to harm her. However, even without this explicit threat, the evidence would still be sufficient to support Harris’ conviction based on the doctrine of transferred intent. ‘When an unintended victim is struck down as a result of an unlawful act actually directed against someone else, the law prevents the actor from taking advantage of his own wrong and transfers the original intent from the one against whom it was directed to the one who actually suffered from it. In legal contemplation, the intent follows the act through to its legitimate results.” (Punctuation omitted.) Fussell v. State, 187 Ga. App. 134, 136 (369 SE2d 511) (1988). Accordingly, the evidence was sufficient to enable the jury to find Harris guilty beyond a reasonable doubt of the offense of aggravated assault against Monica. See Jackson v. Virginia, supra.

2. In his second enumeration of error, Harris asserts that a fatal variance exists between the allegations set forth in the indictment and the evidence adduced at trial with regard only to the count of aggravated assault against Monica. Again, we disagree.

In this case, Harris was indicted for making “an assault upon the person of Monica Passley, with a knife, a deadly weapon, by stabbing her with said knife.” Harris contends that the evidence at trial showed only that Harris hit Monica in the face with the knife handle, not that he stabbed her. In other words, Harris contends that the indictment’s reference to “stabbing” and the evidence at trial of “hitting” caused a fatal variance.

“The general rule that allegations and proof must correspond is based upon the obvious requirements (1) that the accused shall be definitely informed as to the charges against him, so that he may be enabled to present his defense and not be taken by surprise by the evidence offered at the trial; and (2) that he may be protected against another prosecution for the same offense.” (Citation and punctuation omitted.) Lowery v. State, 209 Ga. App. 5, 8-9 (432 SE2d 576) (1993).

It cannot reasonably be argued that the indictment failed to inform Harris of the charges against him or subjected him to a risk of another prosecution for the same offense. Whether referred to as stabbing or hitting, Harris inflicted cuts and gashes upon Monica with a knife. That is what the indictment alleged. That is what the evidence showed. As such, Harris’ argument in this matter is erroneous.

3. In his third enumeration of error, Harris contends that the trial court erred by admitting a blood-stained shirt which had been used to stop the flow of Carla’s blood immediately following the attack as it was cumulative and unduly prejudicial. We disagree.

At the time it admitted the actual shirt, the trial court also admitted a photograph of this blood-stained shirt which depicted its state at the time of the stabbing. It is clear that admission of a picture of the shirt was proper, even if duplicative or likely to inflame the jury. Burgan v. State, 258 Ga. 512, 514 (3) (371 SE2d 854) (1988). In this case, we find no logical reason to apply a different rule to the actual item which the picture depicted. As such, we also reject Harris’ argument that the admission of the shirt was unduly prejudicial to him.

Decided July 30, 1998.

Rodney L. Mathis, for appellant.

T. Joseph Campbell, District Attorney, Rebecca B. Paris, Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Eldridge, J., concur.

       Harris does not also appeal his conviction for the aggravated assault of Carla based on insufficiency of the evidence.


source: Caselaw Access Project

author: Johnson, Presiding Judge.

license: Public Domain

text:
    A98A1329.
    WARREN v. THE STATE.
    (505 SE2d 777)
   Johnson, Presiding Judge.

Kareem A. Warren appeals his conviction of ten counts of aggravated assault and one count of criminal gang activity. For reasons which follow, we affirm.

Viewed in the light most favorable to support the verdict, the facts show as follows: The aggravated assault counts against Warren arose from drive-by shootings on April 4 and May 6 of 1996. Three victims of the shootings, who all testified that they were gang members, identified Warren as a passenger in the cars during the drive-by shootings. One witness testified that she saw Warren riding in the car and firing a shotgun during the second shooting. A detective from the Macon Police Department gave testimony detailing gang activity in the Macon area. Using photographs admitted into evidence at trial, he interpreted markings on a pair of crutches used by Warren which identified Warren as a member of a gang which has a rivalry with the victims’ gang.

A jury convicted Warren on all 11 counts. Warren’s appeal consists of four enumerations of error. Because we find that none of his enumerations has merit, we affirm.

1. Warren’s first two enumerations challenge the sufficiency of the evidence against him and contend that his conviction was against the weight of the evidence. “ ‘On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Warren] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility.’ [Cits.]” Lester v. State, 226 Ga. App. 373, 376 (2) (487 SE2d 25) (1997).

(a) Witness testimony established Warren’s presence in the cars during the shootings and established that he actually fired a shotgun during the second shooting. This is enough evidence for the jury to convict on the aggravated assault charges. Compare Roiker v. State, 262 Ga. 220, 221 (1) (416 SE2d 281) (1992).

Decided July 30,1998.

William D. Phillips, for appellant.

(b) The gang related activity charge is supported by the detective’s testimony that Warren’s crutches displayed gang markings and that Warren’s gang was a rival of that of the victims.

We hold that sufficient evidence against Warren existed to allow a rational trier of fact to find him guilty of aggravated assault and criminal gang activity beyond a reasonable doubt and that the conviction was not against the weight of the evidence. See Dunlap v. State, 202 Ga. App. 493, 494 (414 SE2d 728) (1992). Regarding Warren’s fourth enumeration, we find that Warren was not entitled to a directed verdict based on the above holding that sufficient evidence against him existed. Manning v. State, 231 Ga. App. 584, 585 (3) (499 SE2d 650) (1998).

2. Warren also enumerates that the trial court erred in denying his motion in limine, which objected to the admission of photographs of Warren’s crutches as prejudicial and irrelevant. This Court has recently held that evidence explaining gang culture was “material to informing the jury of all circumstances surrounding the crime charged, including . . . motiv[e].” Cyrus v. State, 231 Ga. App. 71, 72 (2) (498 SE2d 554) (1998). Testimony from witnesses involved gang names and affiliations. Moreover, one of the charges against Warren was his involvement in gang activities. The photographs and the detective’s testimony explaining them were relevant evidence of Warren’s gang activity.

It is well-settled that “[u]nless the potential for prejudice in the admission of evidence substantially outweighs its probative value, the Georgia rule favors the admission of any relevant evidence, no matter how slight its probative value. Evidence of doubtful relevancy or competency should be admitted and its weight left to the jurors. Where evidence is offered and objected to, if it is competent for any purpose, it is not erroneous to admit it.” (Citation and punctuation omitted.) Norman v. State, 197 Ga. App. 333, 336 (4) (398 SE2d 395) (1990). The trial court did not abuse its discretion in admitting this evidence as the potential for its prejudice did not substantially outweigh the probative value of the gang culture evidence. Neither did the trial court abuse its discretion when it denied Warren’s motion in limine.

Judgment affirmed.

Smith, J, and Senior Appellate Judge Harold R. Banke concur.

Charles H. Weston, District Attorney, Howard, Z. Simms, Assistant District Attorney, for appellee.


text:
    A98A1524.
    SUNTRUST BANK, SOUTH GEORGIA, N.A. v. PERRY.
    (505 SE2d 230)
   Blackburn, Judge.

Plaintiff SunTrust Bank, South Georgia, N.A. appeals the denial of its motion for default judgment, contending that the trial court erred in allowing defendant Diane Perry to open her default.

On July 21, 1997, SunTrust filed a complaint against Perry and others. The complaint sought to hold Perry liable, under several theories, for damages suffered by SunTrust as a result of a dishonored check that had been endorsed by Perry. Perry was served with the complaint on July 22, 1997, but did not file an answer within the 30-day period required by law. On September 5, 1997, the last day to open default as a matter of right, Perry filed an answer, but did not pay costs as required by OCGA § 9-11-55 (a).

SunTrust filed a motion for default judgment on October 7, 1997, arguing that Perry had not properly opened her default. On December 8, 1997, Perry filed a motion to open default. Following a hearing on January 6, 1998, the trial court entered an order granting Perry’s motion to open default and denying SunTrust’s motion for default judgment.

Upon the payment of costs, a prejudgment default may be opened under OCGA § 9-11-55 (b) on one of three grounds if four conditions are met. “The three grounds are: (1) providential cause, (2) excusable neglect, and (3) proper case; the four conditions are: (1) showing made under oath, (2) offer to plead instanter, (3) announcement of ready to proceed with trial, and (4) setting up a meritorious defense. This court has previously held that the ‘showing’ required by this Code section to be made ‘under oath’ includes the showing of a ‘meritorious defense.’ Generally, the opening of a default rests within the sound discretion of the trial court. However, compliance with the four conditions is a condition precedent; in its absence, the trial judge has no discretion to open the default. . . . C. W. Matthews Contracting Co. v. Walker, 197 Ga. App. 345, 346 (1) (398 SE2d 297) (1990). The sole function of an appellate court reviewing a trial court’s [grant or] denial of a motion to open default is to determine whether all the conditions set forth in OCGA § 9-11-55 have been met and, if so, whether the trial court abused its discretion based on the facts peculiar to each case. Majestic Homes v. Sierra Dev. Corp., 211 Ga. App. 223, 224 (1) (438 SE2d 686) (1993).” (Punctuation omitted.) Stewart v. Turner, 229 Ga. App. 119, 121 (2) (493 SE2d 251) (1997).

SunTrust contends that the trial court lacked discretion to open the default because Perry had not paid costs before the hearing on the motion. It is true that a condition precedent to the opening of a default under OCGA § 9-11-55 (b) is the payment of costs before the trial court rules on the motion. See McCracken v. City of College Park, 259 Ga. 490, 491 (1) (384 SE2d 648) (1989); Copeland v. Carter, 247 Ga. 542 (1) (277 SE2d 500) (1981). In this case, however, the record reflects that Perry’s attorney attempted to pay costs before the hearing, but that the clerk refused to accept the proffered check or cash pursuant to instructions from the trial court. Under these circumstances, we cannot say that the trial court erred in finding that this condition precedent was satisfied.

However, the trial court lacked discretion to open the default because Perry failed to satisfy another condition precedent, the showing under oath of a meritorious defense. See Stewart, supra (meritorious defense is one of the showings that must be made under oath). Perry filed an answer denying liability on September 5, 1997. Although this answer would otherwise constitute a showing of a meritorious defense, the answer was not made under oath. Perry attached to the answer a verification page stating that the allegations in the answer were true to the best of her knowledge. However, this purported verification does not contain the signature of a notary or any other indication that it was made under oath. In the absence of a valid jurat, the purported verification is without effect as an affidavit. See Schmidt v. Feldman, 230 Ga. App. 500, 501 (1) (497 SE2d 23) (1998) (valid affidavit requires presence of notary to administer oath and witness affiant’s signature; a writing in the form of an affidavit has no force or validity in the absence of a valid jurat).

The showing of a meritorious defense is one of the showings which must be made under oath, and is a condition precedent to the opening of a default. In the absence of such a showing under oath, the trial court has no discretion to open the default. Because Perry failed to satisfy this condition precedent, the trial court erred in granting Perry’s motion to open default and in denying SunTrust’s motion for default judgment. As the issue of damages has not been raised by the parties, we do not consider whether any or all of the claims against Perry constitute claims for liquidated damages, but leave that issue for the trial court on remand.

Judgment reversed and remanded.

McMurray, P. J., and Eldridge, J., concur.

Decided July 30, 1998.

Gardner, Willis, Sweat & Goldsmith, Todd S. Handelman, for appellant.

Diane L. Perry, pro se.

David E. Perry, for appellee.


text:
    A98A1624, A98A1625.
    GOLDEN v. THE STATE (two cases).
    (505 SE2d 242)
   Johnson, Presiding Judge.

Mark Anthony Golden and his brother Roderick A. Golden appeal their convictions of one count each of burglary, kidnapping and armed robbery, nine counts of possession of a firearm during the commission of a crime and six counts of aggravated assault.

1. The Goldens contend that the trial court erred in refusing to allow their counsel to cross-examine the witness Davis about previous testimony by the witness Culpepper. We disagree.

The Goldens’ trial counsel posed a cross-examination question to Davis as follows: “If I told you a few minutes ago that. . . Culpepper sat in that very witness chair. . . .” The state interrupted and objected to the question on the grounds that Davis could not comment on evidence presented outside her presence. Pursuant to the trial court’s directive, the Goldens’ trial counsel repeated the question in its entirety. The question, as repeated was if “Culpepper had testified a certain way, would that change [the witness’s] testimony.” The trial court then sustained the objection to that form of the question.

The scope of cross-examination is within the trial court’s discretion. Thomas v. Clark, 188 Ga. App. 606, 608 (4) (373 SE2d 668) (1988). We will not reverse a trial court’s ruling limiting the scope of cross-examination in the absence of an abuse of discretion.

Culpepper testified that the person who was carrying the Uzi-type gun was wearing a solid black shirt and that person was Mark Golden. Subsequently, Davis testified that the man with the Uzi-type gun was wearing a dark striped shirt and the man with the handgun was wearing the solid black shirt. Regardless of counsel’s intent, the effect of the posed question if answered would be to compel the testifying witness to comment on the veracity of the prior witness’s testimony when the testifying witness had not heard the prior testimony and had not been present to observe the prior witness’s courtroom demeanor. “[I]t is not the function of witnesses to determine the veracity of other witnesses.” See Cargill v. State, 255 Ga. 616, 631 (17) (a) (340 SE2d 891) (1986) (trial court did not abuse its discretion in placing limitations on defense counsel’s cross-examination of state witnesses, as it is improper for counsel to ask whether another witness is lying); but compare Tucker v. State, 228 Ga. App. 321, 324 (2) (491 SE2d 420) (1997). In Tucker, this Court reached two holdings: first, the trial court did not err in overruling an objection to a prosecutor’s cross-examination question, as asking defendant whether one of the police officers whose testimony was different from the defendant’s was coming to court and lying merely emphasized a conflict in the testimony and did not bolster the veracity of any particular witness; secondly, presuming the trial court erred in allowing the question, the error was harmless. We find that the facts in Cargill, supra, are closer to the facts of this case and that the holding in Cargill is therefore controlling.

Moreover, the trial court did not issue a ruling totally forbidding the inquiry; rather, the objection was sustained only as to the form of the question. Trial counsel was free to explore this area of inquiry on cross-examination merely by a proper rephrasing of the question. The trial court did not abuse its discretion by sustaining an objection in effect to the form of the question. Compare Mitchell v. State, 228 Ga. App. 74, 75 (2) (491 SE2d 127) (1997) (trial court did not err in preventing appellant from asking: “ Tf [the witness] says he fired the weapon, does that change your opinion?’ ”). Hurston v. State, 206 Ga. App. 570, 573 (3) (426 SE2d 196) (1992) (physical precedent only), where the trial court committed reversible error by refusing to allow defendant to cross-examine a key state witness regarding criminal charges pending against the witness, is factually distinguishable from this case.

2. The Goldens also contend the trial court erred in not granting their motion for directed verdict of acquittal based on lack of evidence and lesser included offenses. The Goldens specifically argued before the trial court that this motion should be granted because certain of the charges were lesser included offenses of other charges of which they had been convicted or otherwise merged with such other offenses. See generally OCGA §§ 16-1-6; 16-1-7.

(a) The burglary averred in Count 1 is not a lesser included offense either as a matter of law or fact of the offenses of kidnapping, armed robbery or aggravated assault. Not only are the elements and culpable mental state required of these crimes different, the facts also must differ to convict under the statute. See OCGA §§ 16-1-6; 16-1-7; Williams v. State, 178 Ga. App. 581, 592 (12) (344 SE2d 247) (1986); Moore v. State, 140 Ga. App. 824, 826-827 (2) (232 SE2d 264) (1976).

(b) None of the offenses of aggravated assault, kidnapping, armed robbery or burglary merge either as a matter of law or fact for the same reasons as stated in Division 2 (a), above. Each count relies upon different facts to sustain a conviction. Compare Howard v. State, 230 Ga. App. 437, 438 (3) (496 SE2d 532) (1998).

(c) The various counts of possession of a firearm during the commission of a crime are not lesser included offenses of, and do not merge with, the offenses of burglary, kidnapping, armed robbery, or aggravated assault. “[T]here is express legislative intent to impose double punishment for conduct which violates both [OCGA § 16-11-106] and other felony statutes.” (Citation and punctuation omitted.) Miller v. State, 250 Ga. 436, 437 (298 SE2d 509) (1983). OCGA § 16-11-106 (e) states that “Any crime committed in violation of subsections (b) and (c) of this Code section shall be considered a separate offense” from the offense of possession of a firearm during the commission of any of said crimes. The crimes encompassed by the broad language of OCGA § 16-11-106 (b) include offenses such as aggravated assault, armed robbery, kidnapping, and burglary. See generally OCGA § 16-11-106 (b) (l)-(3). Therefore the Goldens’ contention that the possession of a firearm during the commission of a crime counts were lesser included offenses of the felony charges to which each relates is without merit. Brown v. State, 191 Ga. App. 875 (1) (383 SE2d 361) (1989); McMachren v. State, 187 Ga. App. 793, 796 (4) (371 SE2d 445) (1988); see Baker v. State, 214 Ga. App. 640, 641 (3) (448 SE2d 745) (1994).

A motion for a directed verdict of acquittal in a criminal case should only be granted where there is no conflict in the evidence and the evidence demands a verdict of acquittal as a matter of law. Taylor v. State, 252 Ga. 125, 127 (1) (312 SE2d 311) (1984). For reasons discussed above, there exists no legal basis for granting a directed verdict based on a claim of failure to merge or that any count here at issue was a lesser included offense of another count in the Goldens’ indictments. The proper test when sufficiency of the evidence is challenged by a motion for directed verdict of acquittal is the “reasonable doubt” test of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Wilburn v. State, 199 Ga. App. 667 (1) (405 SE2d 889) (1991). On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Harris v. State, 222 Ga. App. 56, 57 (2) (473 SE2d 229) (1996); Pardo v. State, 215 Ga. App. 317 (1) (450 SE2d 440) (1994). Review of the transcript in a light most favorable to the jury’s verdict reveals ample evidence from which any rational trier of fact could have found beyond a reasonable doubt that the Goldens were guilty of the offenses of which they were found guilty. Jackson v. Virginia, supra. All of the Goldens’ contentions in support of this enumeration of error are without merit. The trial court did not err in denying the Goldens’ motion for directed verdict of acquittal.

Decided July 30, 1998.

Long & Denton, Allen D. Denton, for appellant (case no. A98A1624).

Edwards & Edwards, H. B. Edwards III, for appellant (case no. A98A1625).

J. David Miller, District Attorney, Bradfield M. Shealy, Assistant District Attorney, for appellee.

Judgments affirmed.

Smith, J., and Senior Appellate Judge Harold R. Banke concur.


author: Eldridge, Judge.

text:
    A98A1759.
    ESTATE OF RODDY LEE PATTERSON et al. v. FULTON-DeKALB HOSPITAL AUTHORITY.
    (505 SE2d 232)
   Eldridge, Judge.

The estate of Roddy Lee Patterson appeals the Fulton County Superior Court’s grant of summary judgment to the defendant-appellee Fulton-DeKalb Hospital Authority (“Hospital Authority”) in this medical malpractice action. We affirm.

The evidence shows that, on June 30, 1994, decedent Patterson presented himself to Grady Memorial Hospital, which is operated by the Hospital Authority. Patterson was 46 years old and complained of weakness on his left side; he reported that he had suffered a blow to his head two weeks earlier. Patterson’s health history indicated that he had been taking aspirin for pain, was a long-term smoker, and had a history of heavy alcohol consumption. The neurology attending physician directed a resident physician to administer Heparin, a blood-thinning agent. Later the same day, Patterson developed an intracerebral hemorrhage and died.

Patterson’s estate and the legal guardian of his two minor children (“the Pattersons”) filed suit against the hospital on June 20, 1996, alleging that the administration of Heparin deviated from a minimal standard of care and caused Patterson’s death. Attached to the complaint was an affidavit from Richard D. Franco, M. D., a neurologist, who stated that he had reviewed Patterson’s medical file; such files were not attached to the affidavit and are not included in the record. However, based solely upon his review of the medical files, Dr. Franco concluded that the use of Heparin “may have contributed” to Patterson’s death.

The Hospital Authority moved for summary judgment on June 10,1997, asserting that the Pattersons had failed to present evidence that any alleged negligence on the part of the Hospital Authority or its agents was the proximate cause of the decedent’s death. The Hospital Authority attached to its motion an affidavit from the attending physician which affirmatively stated that the administration of Heparin was consistent with the standard of care ordinarily exercised by physicians under similar conditions and, farther, that such administration did not proximately cause or contribute to Patterson’s death. Finally, the Hospital Authority also claimed that Dr. Franco’s affidavit was without probative value on a motion for summary judgment, as the medical records upon which his conclusions were based were not attached to the affidavit, as required by OCGA § 9-11-56 (e).

In response, the Pattersons relied upon their pleadings and Dr. Franco’s affidavit and did not submit any additional evidence for consideration. On January 15, 1998, the trial court granted summary judgment to the Hospital Authority, finding that the Pattersons had failed to establish the required element of causation. This appeal followed. Held:

1. In the first enumeration of error, the Pattersons assert that the trial court erred in failing to consider Dr. Franco’s affidavit when ruling upon the summary judgment motion. This enumeration lacks merit. As shown in Division 2, infra, it is clear from the order that the trial court did, in fact, consider the affidavit in reaching its conclusion that the Pattersons had failed to establish causation. Accordingly, there was no error.

However, this Court notes that the medical records upon which Dr. Franco reached his conclusions were not attached to his affidavit or included in the record. Therefore, even though the affidavit may have been sufficient for pleading purposes under OCGA § 9-11-9.1 (a), the affidavit was insufficient under OCGA § 9-11-56 (e) to meet the evidentiary standards on a motion for summary judgment and, as a matter of law, lacked any probative value. See Goring v. Martinez, 224 Ga. App. 137, 139 (2) (b) (ii) (479 SE2d 432) (1996); Vitner v. Miller, 223 Ga. App. 692, 693 (2) (479 SE2d 1) (1996); Williams v. Hajosy, 210 Ga. App. 637, 638 (1), (2) (436 SE2d 716) (1993).

2. In the remaining enumerations of error, the Pattersons assert that the trial court misinterpreted this Court’s holding in Abdul-Majeed v. Emory Univ. Hosp., 225 Ga. App. 608 (484 SE2d 257) (1997) (“Abdul-Majeed”), and, thus, misapplied the standard for demonstrating causation in this case. We disagree with both assertions.

“In order for a plaintiff to recover for malpractice, there must be sufficient evidence that the physician’s alleged failure to use the requisite degree of skill and diligence in treatment either proximately caused or contributed to plaintiff’s injury. [Cit.]” McClure v. Clayton County Hosp. Auth., 176 Ga. App. 414, 417 (3) (336 SE2d 268) (1985); Jobson v. Dooley, 164 Ga. App. 440, 442 (296 SE2d 388) (1982).

The standard of proof in a civil case, even a medical malpractice action, is by a preponderance of the evidence. OCGA §§ 24-1-1; 24-4-3; Life Ins. Co. of Ga. v. Lawler, 211 Ga. 246, 251 (1) (85 SE2d 1) (1954); Supreme Conclave Knights of Damon v. Woods, 120 Ga. 328 (47 SE 940) (1904). Preponderance of evidence means “that superior weight of evidence upon the issues involved, which, while not enough to free the mind wholly from a reasonable doubt, is yet sufficient to incline a reasonable and impartial mind to one side of the issue rather than to the other.” OCGA § 24-1-1 (5); Patillo v. Thompson, 106 Ga. App. 808 (128 SE2d 656) (1962); Masonic Relief Assn. v. Hicks, 47 Ga. App. 499 (171 SE 215) (1933).

Thus, “reasonable medical probability” has no greater meaning than a preponderance of the evidence, and the standard of proof is preponderance of the evidence as to medical causation. “Moreover, we note that although we have frequently used the phrase ‘reasonable medical certainty,’ [cit.], it is neither magic nor particularly helpful. [Cit.] What courts and juries need from medical experts is not a simple recitation of these words, but a realistic assessment of the likelihood that the alleged negligence caused the injury or death.” Abdul-Majeed, supra at 609. See also Ga. Cas. &c. Co. v. Jernigan, 166 Ga. App. 872, 877-878 (5) (305 SE2d 611) (1983).

“The above medical evidence is sufficient to establish the possibility of a causal relation, even if it falls short of showing probability. The cases requiring affirmative medical evidence of probability, [cits.], are distinguishable in that they involved issues of causation which, by the nature of the situation, could be resolved solely by expert medical evidence standing alone, in which cases the evidence must naturally be based at least on reasonable probability. ‘It appears to be well settled that medical testimony as to the possibility of a causal relation between a given accident or injury and the subsequent death or impaired physical or mental condition of the person injured is not sufficient, standing alone, to establish such relation.’ 135 ALR 517. (Emphasis supplied.) The medical testimony in the present case is not standing alone, however, but is supplemented by other, non-expert evidence. ‘There are a number of cases which, while apparently admitting that medical evidence showing only a possibility of causal relation between an accident or injury and subsequent death or physical or mental impairment is not, by itself, sufficient to establish such relation, uphold the view that such evidence, in conjunction with other evidence, non-expert in nature, indicating that such a relation exists, although likewise not sufficient by itself to establish the relation, or in conjunction with admitted or obvious facts and circumstances of the case showing that death or physical disability would naturally and probably result from the injury, is sufficient to establish the causal relation.’ 135 ALR 516, 532. See also 2 ALR3d 384, 387.” Nat. Dairy &c. Corp. v. Durham, 115 Ga. App. 420, 422-423 (154 SE2d 752) (1967). Accord Kent v. Peters, 211 Ga. App. 698, 699 (3) (440 SE2d 87) (1994); Jacobs v. Pilgrim, 186 Ga. App. 260, 262 (1) (367 SE2d 49) (1988); Maurer v. Chyatte, 173 Ga. App. 343, 344-345 (3) (326 SE2d 543) (1985); Ga. Cas. &c. Co. v. Jernigan, supra.

There is an often cited quotation “ ‘that a physician may have been negligent is not sufficient to render him liable, and the complaining patient must prove that the injury complained of proximately resulted from such want of care or skill. A bare possibility of such result is not sufficient.’ 61 AmJur2d 348, Physicians, Surgeons, and Other Healers, § 210 and cits.” Parrott v. Chatham County Hosp. Auth., 145 Ga. App. 113, 115 (243 SE2d 269) (1978). However, such quote involved cases where there was neither medical expert testimony regarding causation, medical evidence pointing to causation, or other non-medical evidence from which, alone or in combination, causation could be inferred; the only evidence was the occurrence. Id.; accord Maddox v. Houston County Hosp. Auth., 158 Ga. App. 283, 284 (279 SE2d 732) (1981). Such quote, as dicta, was cited as the general law applicable to medical malpractice actions but had no application to the holding of the case where the verdict for the plaintiff was upheld based on the expert testimony of the plaintiff’s expert witness that the fatal result was “most likely” due to a specified drug prescribed by the defendant. Hawkins v. Greenberg, 166 Ga. App. 574, 575 (1) (304 SE2d 922) (1983); accord Lee v. Satilla Health Svcs., 220 Ga. App. 885, 887-888 (2) (470 SE2d 461) (1996) (where the plaintiff also had expert testimony as to causation); Goggin v. Goldman, 209 Ga. App. 251, 252-253 (433 SE2d 85) (1993). Such quotation has also been used when there is an expert witness, but the evidence is “totally devoid of any causal connection between the [alleged negligent act] and the alleged injury suffered by plaintiff. [Cits.]” McClure v. Clayton County Hosp. Auth., supra at 419 (4). When the expert testimony, alone and unsupported by other evidence, indicates that the causal connection is something less than reasonable medical probability, such quotation has also been used. See Grantham v. Amin, 221 Ga. App. 458, 459 (471 SE2d 525) (1996); Dowling v. Lopez, 211 Ga. App. 578, 579-580 (2) (440 SE2d 205) (1993).

Where, as here, the defendant hospital makes a motion for summary judgment and the attending physician gives a medical affidavit that states a medical opinion that the alleged deviation from the standard of care has no causal connection with the injury or aggravated a pre-existing condition, such motion has pierced the plaintiff’s pleadings, refuted causation, and shifted the burden to the plaintiff of coming forward with some evidence to create a material issue of fact, because the defendant hospital has disproved the essential element of causation. OCGA § 9-11-56 (e). When causation is involved, plaintiff has a more complex dilemma where the defendant has given expert testimony that there was no proximate cause, because to merely show a causal link does not refute the defendant’s denial of causation and leaves an examination upon the entire record that the evidence does not create a triable issue as to the essential elements of causation, requiring the grant of summary judgment. See Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991); see also Abdul-Majeed, supra at 608; Grantham v. Amin, supra at 459. Thus, the plaintiff must present medical expert opinion as to causation which may be aided by other medical or non-medical evidence that, in totality, shows causation, even though the medical opinion is weak, i.e., showing a reasonable possibility rather than a probability.

Decided July 30, 1998.

Debra A. Rickies, for appellants.

Alston & Bird, Clifton M. Iler, Bernard Taylor, for appellee.

In this case, the trial court found that Dr. Franco’s assertion that the alleged negligence “may have contributed” to the decedent’s injury and subsequent death was legally insufficient to establish causation that the probability was such that negligence was the proximate cause of injury or death, i.e., by a preponderance of evidence or “a realistic assessment of the likelihood that the alleged negligence caused injury or death” from all the evidence. Abdul-Majeed, supra at 609. There was no error as to this conclusion of law under the facts and circumstances of this case.

Further, the Pattersons failed to present any other evidence of causation to support their medical expert’s opinion as to causation. See Nat. Dairy &c. Corp. v. Durham, supra at 422-423. When presented with the attending physician’s affidavit, the Pattersons could not rest on their pleadings, but had to come forward with competent expert counter-evidence, medical records, or other non-medical evidence that together created a genuine issue of fact as to causation to rebut the Hospital Authority’s affidavit as to the absence of causation. OCGA § 9-11-56 (e); Lau’s Corp. v. Haskins, supra; Williams v. Hajosy, supra at 638 (2); Savannah Valley &c. Assn. v. Cheek, 248 Ga. 745, 746 (285 SE2d 689) (1982). As no such evidence was presented, the Hospital Authority was entitled to summary judgment.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.


author: Pope, Presiding Judge. Beasley, Judge,

text:
    A98A0254, A98A0255.
    MANAGEMENT BY DESIGN, INC. et al. v. LAKEVIEW UTILITIES, INC. et al.; and vice versa.
    (505 SE2d 37)
   Pope, Presiding Judge.

Management by Design, Inc., Charles Sirmans, Ray Stevens, Complete Mobile Homes, Inc. and Phyllis Slaght sued Lakeview Utilities, Inc., Martha Bailey, and Martin McDonald. Plaintiffs and defendant Bailey own rental lots and mobile homes in Lakeview Estates Subdivision. Lakeview Utilities is an unregulated private utility which is the exclusive governmental franchisee for the delivery of water and sewer services to the subdivision. Bailey is the president and sole shareholder of Lakeview Utilities. Defendant McDonald was an officer of Lakeview Utilities and a consultant on environmental matters.

In 1995, plaintiffs filed the instant complaint, alleging that Bailey and the defendants unreasonably raised water and sewer rates in order to make plaintiffs’ lots unrentable and gain control of all property in the subdivision. In their 21-page complaint, plaintiffs alleged that defendants’ actions violated the Sherman Antitrust Act, constituted fraud, and constituted federal and state RICO violations. Plaintiffs sought injunctive relief and sought damages for lost rental income and property and for payment of excessive water rates. Plaintiffs also sought damages for defendants’ violations of the Sherman Antitrust Act and sought treble damages for the violations of the RICO statutes.

The case was tried and the court granted McDonald’s motion for directed verdict. The jury found the water rates unreasonable almost in their entirety and awarded plaintiffs $24,539 in damages against defendants Bailey and Lakeview. In Case No. A98A0254, plaintiffs appeal; Case No. A98A0255 is the cross-appeal. Divisions 1 and 2 review the enumerations of error in the main appeal; Divisions 3 through 8 resolve the cross-appeal enumerations. For the following reasons, we reverse both cases.

Case No. A98A0254

As stated above, in this case plaintiffs appeal from denial of their motions for new trial and for relief from the judgment.

1. First, plaintiffs contend that the trial court improperly deprived them of an opportunity to litigate their claims for damages under RICO and the Sherman Act. Based on the following facts, we agree.

Plaintiffs filed a pretrial motion under OCGA § 9-11-42 (b) to sever the trial of the issues relating to the reasonableness of the rates from the trial of the alleged RICO and antitrust violations and other claims for damages. Plaintiffs’ motion clearly stated that it sought to sever the issue of “the unreasonableness of the charges for water and sewer” from the other claims asserted in the action. In the affidavit supporting the motion, plaintiffs stated: “[a] separate trial of the latter [other] claims should be had for the reason that the moving parties plaintiff will be prejudice[d] by a single trial of all claims because they would have gone out of business or have been ruined financially as they need immediate relief from the exorbitant charges that are imposed by the defendants in order to rent their mobile homes and lots or they will be out of business before the other issues are reached and the other issues can conveniently be tried separately.”

The trial court granted the motion to sever, stating in its order: “[t]he Plaintiffs seek to sever the issue of the reasonableness of the charges for water and sewer utility services and other related charges. While the Defendants argue that this will cause them to try the case twice, the court finds that severance will further the interests of convenience, judicial economy and fairness, as well as reduce any unnecessary prejudice that might otherwise be occasioned by the Plaintiffs. It is clear that OCGA § 9-11-42 (b) was designed for such a purpose.” (Emphasis supplied.)

The case was tried before a jury. At the conclusion of the first phase of the trial, the court charged the jury regarding reasonable rates for water services and the meaning of unconscionability. The court then instructed the jurors that if they found for plaintiffs, they would then need to indicate on the special verdict form whether various charges for water, sewer, hook-ups and other services were reasonable or unreasonable. The jury concluded that most of the various rates were unreasonable and returned a plaintiffs’ verdict.

The court then instructed the jury that the case had been bifurcated and that the jurors would need to determine the appropriate amount of damages, if any, to award. After the evidence was presented, the court explained that the jury was to determine the issue of damages based on the rules regarding compensation. Plaintiffs did not seek RICO or antitrust damages and the court did not give any charges on these claims. The jury returned a plaintiffs’ verdict for $24,539.

After trial, plaintiffs filed a motion for new trial and a motion for relief from judgment, arguing that the court had failed to set a date for the trial of the remaining issues (i.e., the RICO and antitrust) and had failed to extend discovery with respect to those remaining issues. The court denied the motions, in essence ruling that plaintiffs’ case had ended. The court’s order concluded that plaintiffs’ understanding of the order granting their motion to sever was incorrect. The order stated that the grant of the motion to sever did not mean that the case would be recessed or that plaintiffs would be allowed to select a second jury to hear the RICO and antitrust issues. Instead, the court stated plaintiffs had abandoned their additional claims by not raising them during the first phase of the trial.

We agree with plaintiffs that the order granting the motion to sever indicated that their claims for RICO and antitrust would be tried separately. The court’s order granting the motion did not state that the issue of damages and liability would be severed; it simply granted plaintiffs’ motion, as requested. Plaintiffs’ reasonable understanding of the trial — based on the granting of their motion to sever — was that it would involve the issue of reasonableness of the rates only. Their portion of the pretrial order which was submitted to the court, but never entered, also supports this interpretation.

Once the trial began, plaintiffs proceeded on their belief that the other issues had been severed and would be tried separately. Plaintiffs did not, as the trial court concluded, abandon their other claims; rather they thought that they would try their other claims separately. The trial court’s reference to the bifurcation of liability and damages on the issue of the unreasonableness of the fees was not inconsistent with its granting of the motion to sever and would not have altered plaintiffs’ understanding. Furthermore, plaintiffs’ efforts to recover lost rental income and property were not inconsistent with this understanding, because those damages were also part of the claim of unreasonable fees. Accordingly, the court erred in refusing to hear evidence on the remaining issues and should have granted plaintiffs’ post-trial motions.

2. Based on Division 1, we conclude that the trial court erred in dismissing defendant McDonald from the suit because issues remained to be tried.

Case No. A98A0255

Defendants cross-appeal from the judgment and from the denial of their motion for new trial.

3. In their first enumeration, defendants contend that the court erred in denying Bailey’s motion for directed verdict after the first phase of the trial. We disagree and conclude that factual issues remained in the case because, for the reasons stated above, the grant of the motion to sever necessarily preserved the claims against Bailey, the president and sole shareholder of Lakeview. Moreover, plaintiffs’ claims regarding the unreasonableness of the rates were viable against Bailey as well as against Lakeview. Thus, regardless of the correctness of the trial court’s assessment that factual issues remained as to whether plaintiffs pierced Lakeview’s corporate veil, the motion for directed verdict was properly denied.

4. Defendants contend the trial court erred in denying their motion for directed verdict as to Lakeview. They first argue that plaintiffs did not show that the rates were unreasonable. There was evidence that Lakeview’s minimum rates were significantly higher than those charged by its governmental franchisor; that Lakeview significantly increased the required deposit; and Lakeview imposed a minimum charge of $15 per month even for unoccupied property. Because there was evidence supporting plaintiffs’ claims that the rates were unreasonable, the trial court did not err in denying the motion for directed verdict. See generally Roberts v. Chapman, 228 Ga. App. 365, 366 (1) (492 SE2d 244) (1997).

Secondly, citing several cases including Zepp v. Mayor & Council of Athens, 180 Ga. App. 72 (348 SE2d 673) (1986), defendants argue that the court should have determined the reasonableness of rates, because this was not a jury issue. Defendants fail to cite to any place in the record or transcript where this contention was raised and preserved for appellate review; accordingly, this argument was waived.

5. The enumeration of error concerning the court’s use of a certain form for the jury verdict is deemed abandoned as it is not supported by argument or citation of authority. Court of Appeals Rule 27 (c) (2).

6. Jury instructions are the focus of the next enumeration.

(a) Over defendants’ objection, the court charged the jury at the end of the first phase that the standard by which the company’s action was to be judged was that of reasonableness. As authority for this charge, plaintiffs cited Ga. Power Co. v. Ga. Pub. Svc. Comm., 196 Ga. App. 572, 578 (4) (396 SE2d 562) (1990), which involved the question of how much of a public utility’s investment in an allegedly imprudent investment (a nuclear power plant) could be charged to ratepayers. The prudence standard set forth in Ga. Power is not applicable here. But in the context of the other charges — and particularly since the court also charged the jury, without objection, that the question for its determination was whether Lakeview’s rates were reasonable, the error was not harmful.

(b) After conclusion of the evidentiary portion of the second phase of trial, the court charged the jury that “the measure of damages is your enlightened conscience as an impartial juror.” Defendants objected, but neither they nor plaintiffs requested jury instructions on any other measure.

The charge given is proper when no other measure is prescribed. See OCGA § 51-12-6 (injury to peace, happiness, or feelings of the plaintiff); Stubbs v. Harmon, 226 Ga. App. 631, 632 (1) (487 SE2d 91) (1997) (measure of damages for pain and suffering and for loss of consortium is the enlightened conscience of fair and impartial jurors); see also Roberts v. Chapman, 228 Ga. App. at 367 (3) (same standard for punitive damages). Where the “enlightened conscience” standard applies, damages may be recovered without proof of any amount. In contrast, plaintiffs’ asserted damage claims here did require proof of amounts; the damages claimed were not analogous to a tort claim where general damages can be awarded on this basis. See generally Richards v. Wadsworth, 230 Ga. App. 421, 424 (4) (496 SE2d 535) (1998) . Particularly because this trial involved only the issue of the unreasonableness of rates and related compensatory claims, the charge was improper. The charge authorized the jury to award damages to plaintiffs on different damage elements without any such proof. Such instruction constitutes reversible error, and a new trial is necessary. See generally Ga. Power Co. v. Womble, 150 Ga. App. 28, 31 (2) (256 SE2d 640) (1979).

(c) On the other hand, it was not error to overrule defendants’ objection to the omission of a charge on nominal damages. No such request was made before the charge, and no formulated curative instruction was suggested after the charge.

7. Defendants argue that the court erred in denying their motion for directed verdict for failure of plaintiffs in general, and Management by Design in particular, to prove damages. With respect to Management by Design, we conclude that the motion was properly denied, because there was evidence during the first phase of the trial as to that plaintiff’s damage. Moreover, for the reasons outlined in Division 1, the motion was properly denied because of the claims remaining to be tried.

The motion was properly denied as to the remaining plaintiffs both for the reasons outlined in Division 1 and because they presented evidence at the trial sufficient for the jury to award damages.

8. Because a new trial is required, the court’s grant of plaintiffs’ post-trial motion for attorney fees and litigation expenses must be reversed. See generally United Cos. Lending Corp. v. Peacock, 267 Ga. 145, 147 (2) (475 SE2d 601) (1996).

Judgments reversed.

McMurray, P. J., Blackburn, Ruffin and Eldridge, JJ, concur. Andrews, C. J, and Beasley, J., concur in part and dissent in part.

Beasley, Judge,

concurring in part and dissenting in part.

1. As acknowledged by the majority, plaintiffs in their pretrial motion sought to sever the trial of the issues relating to the reasonableness of the water and sewer rates from the trial of the alleged RICO and antitrust violations “and other claims for damages.” The other damage claims were for payment of excessive water and sewer rates and for lost rental income and property. The court granted the severance motion and then held a bifurcated trial. At the first phase of the trial, issues relating to the reasonableness of the rates were litigated. At the second phase, plaintiffs sought damages for payment of excessive rates and lost rental income and property but not RICO or antitrust damages.

The issue is whether plaintiffs are entitled to a second trial on those damage claims not tried at the latter phase of the first trial. In denying plaintiffs’ post-trial motions, the court stated that such motions were filed by an attorney who had not participated in pretrial proceedings or in the trial itself, and that plaintiffs’ trial attorney agreed to, and in fact recommended, the bifurcated trial as a substitute for separate trials. Nothing shows the court agreed to a three-part proceeding by trying some damage issues in a bifurcated trial and the remaining damage issues in a separate trial. The result was an abandonment of those claims for damages not asserted at the bifurcated trial.

Plaintiffs’ argument, that the understanding at trial was that the second phase would involve the issue of the reasonableness of the rates only, is contradicted by the fact that they asserted their claims for lost rental income and property as well as for payment of excessive water rates at the trial. Moreover, an understanding that either damage claim was part of plaintiffs’ claim of unreasonable water and sewer rates would have been wholly inconsistent with their pretrial motion, which sought separate trials of the issue of unreasonable rates and all claims to recover damages.

The pretrial order proposed by plaintiffs excluded damage issues from consideration at trial. The bifurcated trial procedure agreed to by plaintiffs was obviously inconsistent with the proposed pretrial order.

2. In the main appeal, error is also enumerated in the total grant of McDonald’s motion for directed verdict at the conclusion of the first phase of the trial, in that he was not entitled to such on the RICO and antitrust claims. For the reasons given above, no merit underlies this enumeration.

3. I do find the first enumeration of error in defendants’ cross-appeal to be meritorious.

The denial of Bailey’s motion for directed verdict after the first phase of trial was grounded on there being questions of fact as to whether plaintiffs pierced the corporate veil of Lakeview so that Bailey was liable in her individual capacity for corporate acts.

“[T]he mere operation of corporate business does not render one personally liable for corporate acts. (Cit.) Sole ownership of a corporation by one person or another corporation is not a factor, (cit.), and neither is the fact that the sole owner uses and controls it to promote his ends. (Cit.) There must be evidence of abuse of the corporate form. (Cit.) Plaintiff must show that defendant disregarded the separateness of legal entities by commingling on an interchangeable or joint basis or confusing the otherwise separate properties, records or control. (Cits.)”

Decided July 16, 1998

Reconsideration denied July 31, 1998

Richard Young, David B. Irwin, for appellants.

Hartley & Puls, Carl A. Puls, Jr., Bodker, Ramsey & Andrews, Harry J. Winograd, Thomas Rosseland, for appellees.

The required ingredients were not presented. Plaintiffs do not even argue now that the evidence justifies ignoring the corporate entity but instead assert that Bailey was sued in her individual capacity on the RICO and antitrust counts. These claims were abandoned. Bailey’s motion for directed verdict should have been granted.

I concur with the holdings in the remaining divisions of the majority opinion and therefore agree that the judgment in the cross-appeal (Case No. A98A0255) should be reversed. But I would affirm the judgment in the main appeal (Case No. A98A0254).

I am authorized to state that Chief Judge Andrews joins in this opinion.

       As discussed in Division 6 (b), a part of the court’s charge regarding damages was improper.

       (Punctuation omitted.) Heyde v. Xtraman, Inc., 199 Ga. App. 303, 306 (2) (404 SE2d 607) (1991).


author: Ruffin, Judge. Beasley, Judge,

text:
    A98A0438.
    HARDIN CONSTRUCTION GROUP, INC. v. FULLER ENTERPRISES, INC.
    (505 SE2d 755)
   Ruffin, Judge.

After obtaining an arbitration award in its favor, Fuller Enterprises, Inc. (“Fuller”) initiated arbitration award confirmation proceedings against Hardin Construction Group, Inc. (“Hardin”) pursuant to the Georgia Arbitration Code, OCGA § 9-9-12. Hardin appeals the grant of summary judgment to Fuller and asserts that the trial court erred in failing to dismiss Fuller’s application to confirm the award based upon: (1) the expiration of the statute of limitation; (2) insufficient service of process on Hardin; and (3) Fuller’s noncompliance with the Nonresident Contractors Act, OCGA § 48-13-30 et seq. For reasons which follow, we find that the trial court should have dismissed the application, and we vacate its order granting summary judgment.

The record shows that on August 28, 1990, an arbitration panel awarded Fuller $29,115 pursuant to an arbitration clause in a construction contract between Hardin and Fuller. The parties received this award on August 29, 1990. On October 15, 1990, Fuller petitioned the United States District Court for the Northern District of Georgia to confirm the arbitration award. The Northern District dismissed the petition on January 29,1991 based upon the lack of diversity jurisdiction as the amount in controversy was less than $50,000. The Eleventh Circuit affirmed the dismissal on September 12, 1991.

On September 26, 1991, Fuller applied for entry of judgment on the arbitration award in Fulton Superior Court. The trial court dismissed this application on March 11, 1992 because Fuller failed to substantially comply with the requirements of the Nonresident Contractors Act. Fuller appealed and this Court affirmed the trial court’s order dismissing the application on October 26, 1992. Fuller Enterprises v. Hardin Constr. Group, 206 Ga. App. 8, 10 (1) (424 SE2d 311) (1992). However, we also found that “assuming compliance with any applicable statutes of limitation and any other procedural and substantive hurdles, the dismissal of the case sub judice in the trial-court does not preclude plaintiff from refiling its petition against defendant after ‘substantial compliance’ with the Nonresident Contractors Act.” Id. at 10.

On April 9, 1993, Fuller again applied for confirmation of its arbitration award against Hardin in Fulton Superior Court. Hardin responded to the application on May 5, 1993, and asserted defenses based upon insufficient service of process, expiration of the statute of limitation and Fuller’s failure to comply with the Nonresident Contractors Act.

On May 13, 1993, Fuller moved the trial court to enter summary judgment on the arbitration award. On June 2, 1993, the trial court entered an order extending Hardin’s time to respond to the summary judgment motion until after the trial court ruled on a motion for protective order filed by Fuller. This order required Hardin to file its response to the summary judgment motion 15 days after receiving Fuller’s discovery responses in the event the trial court subsequently denied the motion for protective order. The trial court denied Fuller’s motion for protective order on July 14, 1993 and certified its ruling for immediate appellate review.

This Court granted Fuller’s application for interlocutory review and reversed the trial court’s ruling based on our holding that discovery is not permitted in actions to confirm arbitration awards. Fuller Enterprises v. Hardin Constr. Group, 215 Ga. App. 549, 551 (1) (451 SE2d 483) (1994). The Supreme Court of Georgia reversed, however, based upon it's conclusion that limited discovery relating to affirmative defenses is permitted. Hardin Constr. Group v. Fuller Enterprises, 265 Ga. 770, 772 (462 SE2d 130) (1995).

Hardin filed its response to Fuller’s motion for summary judgment after we remanded this case to the trial court. In its response, Hardin asserted that the trial court should not only deny Fuller’s motion, but also dismiss the entire action against Hardin based upon insufficient service of process, expiration of the statute of limitation and Fuller’s failure to comply with the Nonresident Contractors Act.

In support of its contention that it was improperly served, the company filed two affidavits of Angelia Olvey, the Hardin employee who accepted the summons and application from the sheriff. In her first affidavit, Olvey explained that she was employed by Hardin as an “administrative assistant” and that her duties “consisted of serving as secretary and assistant” to a Hardin vice president. Olvey stated that she “had no managerial or supervisory responsibility within the Hardin organization,” was not an officer of the company, and had never been authorized or designated by the company to receive service of process. According to Olvey, when she greeted the deputy sheriff serving the application and summons he asked, “Who are you?,” and she told him her name and advised him that she was an administrative assistant.

In a subsequent affidavit, Olvey acknowledged that she no longer recalled the exact words between herself and the deputy sheriff who served the application and summons. However, she stated “positively and unequivocally” that she never said she was authorized to accept service on behalf of Hardin.

Fuller filed a reply brief which responded to Hardin’s claim that the application should be dismissed. In support of its reply brief, Fuller presented two affidavits from Lieutenant Steve Sussia, the sheriff who purportedly served Hardin through Olvey. In these affidavits, Sussia explained that it was his standard operating procedure to ask the person to whom he handed a summons and complaint whether such person is authorized to accept service. To the best of Sussia’s knowledge, he followed this procedure when he met Olvey and provided her with the application and summons. However, he had no specific recollection of following this procedure with Olvey.

In its order granting Fuller’s summary judgment motion, the trial court construed Hardin’s response to Fuller’s summary judgment motion to include a motion to dismiss and denied this motion. The trial court specifically ruled on each of the grounds asserted in support of Hardin’s claim that Fuller’s application for entry of judgment on the arbitration award should be dismissed. The trial court issued this order approximately seven months after Hardin requested that the appeal be dismissed.

In its notice of appeal, Hardin designated the order granting summary judgment to Fuller. However, its enumerations of error go solely to the trial court’s failure to dismiss Fuller’s application on the three grounds asserted by Hardin below.

1. Hardin contends that the trial court should have dismissed Fuller’s application based upon the expiration of the statute of limitation. OCGA § 9-9-12 provides: “The court shall confirm an award upon application of a party made within one year after its delivery to him. . . .” Hardin contends that Fuller’s current application is time-barred because it was filed two years and seven months after the arbitration award was received.

Fuller correctly argues that “[t]he running of any statute of limitation is suspended during the pendency of an appeal. [Cits.]” Yield, Inc. v. City of Atlanta, 152 Ga. App. 171, 173 (1) (262 SE2d 481) (1979). However, the limitation period is not tolled merely because a lawsuit is filed and pending in the trial court. Rakestraw v. Berenson, 153 Ga. App. 513, 514-515 (266 SE2d 249) (1980); Stevens v. FAA's Florist, 169 Ga. App. 189, 190 (311 SE2d 856) (1983). Applying these principles, we find that Fuller filed its first application in Fulton Superior Court before the expiration of the limitation period due to its suspension during Fuller’s appeal to the Eleventh Circuit. Fuller did not, however, file the instant application before the expiration of the limitation period.

Fuller asserts, nonetheless, that its second application is not time-barred because it is entitled to the benefit of the renewal statute, OCGA § 9-2-61, and we agree.

Although the applicability of the renewal statute to arbitration award confirmation proceedings is an issue of first impression, the Supreme Court of Georgia’s analysis in Hardin, supra, is instructive. In Hardin, the Supreme Court of Georgia examined the language of OCGA § 9-11-81, and determined that limited discovery is permitted in special statutory proceedings, such as those to confirm arbitration awards. Hardin, supra, 265 Ga. at 771.

The renewal statute at issue here applies to “any case.” OCGA § 9-2-61 (a). See also Cox v. Berry, 13 Ga. 306 (1) (1853); Ludi v. Van Metre, 221 Ga. App. 479, 481 (2) (471 SE2d 913) (1996), limited on other grounds, Allen v. Kahn, 231 Ga. App. 438, 441-442 (499 SE2d 164) (1998). This is “a remedial statute and is to be liberally construed. [Cits.]” Ludi, supra at 481. “[F]or purposes of the renewal statute, a ‘case’ may be interpreted as other than a ‘suit or action,’ and . . . ‘[w]e are not held to a narrow and technical construction of this Act, but are bound to give effect to the manifest intention of the Legislature. It gives relief in any case which may be brought in any of the Courts of [this] State. That is, in all instances where the plaintiff is, in the exercise of a proper diligence, attempting by a judicial proceeding, to assert his right and enforce his remedy.’ [Cit.]” (Emphasis supplied.) Id.

We find that an arbitration award confirmation proceeding is a “case” to which the renewal statute applies. See Cox, supra; Fowler v. Aetna Cas. &c. Co., 159 Ga. App. 190, 191-192 (1) (283 SE2d 69) (1981) (holding appeal to superior court from award of State Board of Workers’ Compensation is a “case” for purposes of predecessor to OCGA § 9-2-61). Consequently, the trial court did not err when it denied Hardin’s motion to dismiss on this ground.

2. Hardin contends that the trial court should have dismissed Fuller’s application because service upon Olvey should not be construed as valid service upon Hardin. We agree.

OCGA § 9-11-4 (d) (1) provides that corporations can be served through “the president or other officer of the corporation, secretary, cashier, managing agent, or other agent thereof, provided that when for any reason service cannot be had in such manner, the Secretary of State shall be an agent. . . [who] may be served.” “In order for an employee to be authorized to accept service on behalf of a corporation, it is necessary that the employee’s position be ‘such as to afford reasonable assurance that he will inform his corporate principal that such process has been served upon him.’ [Cit.] ‘It is not necessary that the employee in question be an officer or that he be authorized to enter into contracts on behalf of the corporation.’ [Cits.] However, if the employee is not an officer or has not been expressly designated by the corporation to receive service, it is necessary that he or she occupy some position of managerial or supervisory responsibility within the organization. [Cits.]” Whatley’s Interiors v. Anderson, 176 Ga. App. 406, 407 (2) (336 SE2d 326) (1985).

“When a defendant in a lawsuit challenges the sufficiency of service, he bears the burden of showing improper service.” Patterson v. Coleman, 252 Ga. 152 (311 SE2d 838) (1984). “Where the evidence is conflicting with respect to the authority of an employee to receive service, the issue becomes one of fact to be resolved by the trial judge. [Cit.]” Whatley’s Interiors, supra at 407. On appeal, we will not disturb the trial court’s factual findings if there is evidence to support them. Terrell v. Porter, 189 Ga. App. 778, 779 (1) (377 SE2d 540) (1989); Wahnschaff v. Erdman, 216 Ga. App. 355, 356 (454 SE2d 213) (1995).

Hardin asserts that the sheriff’s affidavit showing he habitually-requested whether the person accepting service was authorized to do so is circumstantial evidence which cannot outweigh Olvey’s unequivocal testimony that she never told the sheriff that she was authorized to accept service on behalf of Hardin. In support of this contention, Hardin relies upon the well-established principle that “ ‘(c)ircumstantial evidence from which the existence of a fact might be inferred, but which did not demand a finding ... to that effect, will not support a verdict (judgment or ruling of the court), when by positive and uncontradicted testimony of unimpeached witnesses, which was perfectly consistent with the circumstantial evidence relied on by the (party), it was affirmatively shown that no such fact existed.’ [Cits.]” Newell v. Brown, 187 Ga. App. 9, 13 (369 SE2d 499) (1988).

Under this authority, we find that evidence of the sheriff’s habit to inquire about authority to accept service, combined with the sheriff’s testimony that he had no specific recollection of doing so when he served Olvey, is consistent with Olvey’s unequivocal testimony that she never told him that she was authorized to accept service on behalf of Hardin and that she was not, in fact, authorized to do so. As a result, this evidence cannot support the trial court’s ruling that Hardin was properly served.

Fuller nevertheless contends that our decision in Murray v. Sloan Paper Co., 212 Ga. App. 648 (442 SE2d 795) (1994) supports its contention that the trial court properly found effective service. In Murray, we found that evidence of an administrative assistant’s conduct in leading the officer serving the complaint to believe she was in charge of the office and authorized to accept service for the corporation supported the conclusion that she was actually authorized to do so. Id. at 650.

Our decision in Murray is not controlling because it is factually distinguishable. In Murray, the marshal serving the complaint provided an affidavit in which he averred that the administrative assistant told him that she could take the suit papers. The administrative assistant also signed the return of service in a section of the preprinted form designated as one “ ‘in charge of the office.’ ” Murray, supra at 648. Finally, the record contained no evidence, unlike the present case, that her actual duties did not entail managerial or supervisory responsibilities.

We also reject Fuller’s contention that Hardin waived any defect in service of process by participating in discovery and failing to immediately file a motion to dismiss. “Participation in discovery after the defense of insufficiency of service has been properly raised in an answer to a complaint does not constitute a waiver of the defective service. [Cit.]” Garrett v. Godby, 189 Ga. App. 183, 185 (2) (375 SE2d 103) (1988).

3. Hardin’s remaining enumeration of error regarding compliance with the Nonresident Contractors Act is rendered moot by our holding in Division 2.

The trial court’s order granting summary judgment to Fuller is vacated and this case is remanded to the trial court with direction to enter an order dismissing the application without prejudice due to insufficient service. See Kirkpatrick v. Mackey, 162 Ga. App. 876, 877-878 (293 SE2d 461) (1982).

Judgment vacated and case remanded with direction.

Pope, P. J., concurs as to Divisions 2 and 3 and concurs specially as to Division 1. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

On reconsideration I find it necessary to write a separate opinion because, although I agree with the judgment that the trial court order granting summary judgment must he vacated, I do so for a different reason than has been expressed by the majority.

1. The trial court rejected Hardin’s defense that the action to confirm the arbitration award was too late. Hardin contended that the one-year period of limitation provided by OCGA § 9-9-12 had expired. The trial court disagreed and concluded that Fuller’s expeditious pursuit of confirmation, albeit in the wrong court, was sufficient to meet the intention of the legislature that only one year be allowed to seek confirmation. Without saying so expressly, the trial court implied that the statutory period was tolled by court activity. The majority here agreed that there was some tolling but concluded it was not enough to make the second attempt in superior court timely. Instead, the court holds that the action was saved by the renewal statute, OCGA § 9-2-61. True, it is “a remedial statute and [is] to be liberally construed.” Chance v. Planters &c. Coop., 219 Ga. 1, 3 (131 SE2d 541) (1963). But “OCGA § 9-2-61 applies only if the original suit is a valid suit, but will not apply if the original suit is void.” (Citations omitted.) Hornsby v. Hancock, 165 Ga. App. 543, 544 (301 SE2d 900) (1983).

The original suit, filed in federal court, was void because the federal court lacked subject matter jurisdiction. So ruled the district court and so held the appellate court. For that reason it was involuntarily dismissed. The action in federal court counted and cannot be ignored so as to consider the first superior court action as the one which is being renewed, for the first superior court action was filed after the one-year statute had run. OCGA § 9-2-61 (a) provides that “[w]hen any case has been commenced in either a state or federal court within the applicable statute of limitations ... , it may be recommenced in a court of this state or in a federal court either within the original applicable period of limitations or within six months after the discontinuance or dismissal, whichever is later. . . .” So the federal court action is recognized as the first one, but the one-year period of OCGA § 9-9-12 was not tolled because the federal suit was void.

Decided July 15, 1998

Reconsideration denied July 31, 1998

Smith & Fleming, Robert O. Fleming, Jr., for appellant.

McKinney & Salo, Sonja L. Salo, for appellee.

The time period in which Fuller could apply to the superior court for confirmation of the arbitration award of $29,115 plus $1,050.32 for administrative fees and expenses regarding the six-day arbitration expired about August 28, 1991, as the award had been made and entered in writing on August 28, 1990. The first suit in the proper court was not filed until September 26, 1991, too late.

2. This being the case, the issue of whether there was valid service on Hardin is moot and consequently I do not join in Division 2 of the majority opinion. I do concur in Division 3 insofar as it holds that the remaining enumeration is moot.

I am authorized to state that Presiding Judge Pope joins in Division 1 of this special concurrence.

       Although Hardin requested that the trial court dismiss Fuller’s petition in response to Fuller’s motion for summary judgment, the parties and the court treated it as a motion to dismiss. Fuller provided the court with affidavits in opposition to the motion to dismiss which were considered by the trial court. The trial court ruled on the motion to dismiss well beyond the 30 day period for Fuller to respond to the motion. As a result, we can consider Hardin’s enumerations of error with regard to the trial court’s ruling on its motion to dismiss.

       In Hardin, supra, 265 Ga. at 772, the Supreme Court of Georgia held that “a party seeking confirmation of an arbitration award must comply with the one year time requirement.”


text:
    A98A0492.
    HOWARD v. THE STATE.
    (505 SE2d 768)
   Blackburn, Judge.

Spratt Howard was convicted of armed robbery and sentenced to life without parole pursuant to the mandatory sentencing provisions for recidivist offenders under OCGA § 17-10-7 (c). Howard appeals, contending that the trial court committed numerous errors. For the reasons discussed below, we affirm Howard’s conviction and sentence.

1. In his first six enumerations of error, Howard contends that, in sentencing him to life without parole, the trial court improperly followed the procedural guidelines of OCGA § 17-10-7. We disagree.

OCGA § 17-10-7 (c) provides: “[A]ny person who, after having been convicted under the laws of this state for three felonies or having been convicted under the laws of any other state or of the United States of three crimes which if committed within this state would be felonies, commits a felony within this state other than a capital felony must, upon conviction for such fourth offense or for subsequent offenses, serve the maximum time provided in the sentence of the judge based upon such conviction and shall not be eligible for parole until the maximum sentence has been served.” OCGA § 16-8-41 (b) states that “[a] person convicted of the offense of armed robbery shall be punished by death or imprisonment for life or by imprisonment for not less than ten nor more than 20 years.” OCGA § 16-8-41 (d) provides that “[a]ny person convicted under this Code section shall, in addition, be subject to the sentencing and punishment provisions of Code Sections 17-10-6.1 and 17-10-7.” Therefore, the sentence mandated in this case is life imprisonment without parole.

OCGA § 17-10-2 sets out certain standards regarding presentencing hearings. OCGA § 17-10-2 (c) provides: “In all cases tried by a jury in which the death penalty or life without parole may be imposed, upon a return of a verdict of ‘guilty’ by the jury, the court shall resume the trial and conduct a presentence hearing before the jury. The hearing shall be conducted in the same manner as presentence hearings conducted before the judge as provided for in subsection (a) of this Code section. Upon the conclusion of the evidence and arguments, the judge shall give the jury appropriate instructions, and the jury shall retire to determine whether any mitigating or aggravating circumstances, as defined in Code Section 17-10-30, exist and whether to recommend mercy for the defendant. Upon the findings of the jury, the judge shall fix a sentence within the limits prescribed by law.”

At such a hearing, “the judge shall hear additional evidence in extenuation, mitigation, and aggravation of punishment, including the record of any prior criminal convictions and pleas of guilty or nolo contendere of the defendant, or the absence of any prior conviction and pleas, provided that only such evidence in aggravation as the state has made known to the defendant prior to the defendant’s trial shall be admissible.” OCGA § 17-10-2 (a).

The record in this case reflects that the trial judge held a presentence hearing; however, he dismissed the jury before it began. During the course of the hearing, Howard’s counsel did not object to the admission of evidence of Howard’s prior felonies and affirmatively stated that he had been given notice of the intended use of Howard’s prior convictions. Nevertheless, Howard now contends that he did not receive proper notice that the State was going to use his prior convictions, that the State failed to prove the voluntariness of certain guilty pleas regarding his prior felonies, that the jury should have been allowed to participate in the presentencing hearing, and that the sentence imposed was unconstitutionally disproportionate to the crime. Each of these contentions will be considered in turn.

(a) “If the State intends to introduce evidence that defendant is a recidivist for sentencing purposes, it must notify defendant of any conviction it intends to use in aggravation of punishment pursuant to OCGA § 17-10-2 (a).” (Punctuation omitted.) Hatcher v. State, 224 Ga. App. 747, 750 (2) (a) (482 SE2d 443) (1997). Although Howard complains that he did not receive appropriate notice, “[Howard’s] counsel did not object to the admission of [Howard’s prior] convictions and affirmatively stated he did not contest their admission, thereby waiving error.” Id. For the same reason, we need not consider Howard’s contention that his prior guilty pleas were involuntary.

(b) “The purpose of § 17-10-2 is to give defendant a chance to examine his record to determine if the convictions are in fact his, if he was represented by counsel, and any other defect which would render such documents inadmissible during the pre-sentencing phase of the trial.” (Punctuation omitted.) Hatcher, supra at 750 (2) (a). “In State v. Baldwin, 167 Ga. App. 737, 740 (4) (307 SE2d 679) (1983), this court determined that a trial court has no discretion to probate or suspend a portion of a mandatory life sentence imposed pursuant to OCGA § 17-10-7 (a). In Baldwin, as in this case, the imposition of a life sentence was mandatory pursuant to OCGA § 17-10-7 (a), and the court held that OCGA § 17-10-1 (a), which expressly abrogates the trial court’s discretionary power to grant probation in cases in which life imprisonment or capital punishment is imposed, applied. See Mosely v. State, 203 Ga. App. 275, 276-277 (4) (416 SE2d 736) (1992).” Stone v. State, 218 Ga. App. 350, 351 (1) (461 SE2d 548) (1995).

OCGA § 17-10-2 (c) generally requires the presence of the jury during presentencing hearings where their input regarding mitigating and aggravating circumstances under OCGA § 17-10-30 along with the need for mercy would prove useful to the trial judge in determining the appropriate sentence. Here, however, the application of OCGA § 17-10-2 (c) would be both unnecessary and illogical as the trial judge had no discretion in determining the length of Howard’s sentence, the possibility of parole, or the possibility of probation. Therefore, in this case, it would serve no purpose to retain the jury for the presentencing hearing. Whether the jury had been present during the presentencing hearing or not, Howard could have received no other sentence than the one which he was given. “The law will not require [an] unnecessary procedure of the trial court. There is no necessity to conduct a pre-sentence hearing on the issue of punishment as the trial court possesses no discretion in such an instance.” (Punctuation omitted.) Hasty v. State, 210 Ga. App. 722, 725 (2) (437 SE2d 638) (1993).

(c) Howard’s contention that the imposition of the sentence mandated by OCGA § 17-10-7 (c) is unconstitutionally disproportionate to bis crime is meritless. “This Court has followed Harmelin v. Michigan, 501 U. S. 957 (111 SC 2680, 115 LE2d 836) (1991), holding that the choice of sentence by the legislature ‘is insulated from judicial review unless it is wholly irrational or so grossly disproportionate to the severity of the crime that it constitutes cruel and unusual punishment. (Cits.)’ [Cit.] ‘(T)he point at which a recidivist will be deemed to have demonstrated the necessary propensities and the amount of time that the recidivist will be isolated from society are matters largely within the discretion of the punishing jurisdiction.’ Rummel v. Estelle, 445 U. S. 263, 285 (III) (100 SC 1133, 63 LE2d 382) (1980); Grant v. State, 258 Ga. 299, 300 (2) (368 SE2d 737) (1988). In Rummel, the Supreme Court of the United States held that a recidivist statute providing a life sentence for a third felony conviction did not violate the Eighth Amendment proscription against cruel and unusual punishment. Furthermore, a sentence which is not otherwise cruel and unusual does not become so simply because it is ‘mandatory.’ Harmelin v. Michigan, supra at 995 (IV). Unlike the decision to impose the death penalty, a determination that a defendant should be sentenced to life imprisonment without possibility of parole does not require a consideration of mitigating factors. Harmelin, supra at 995-996 (IV). See also Knight v. State, 243 Ga. 770, 772 (1) (257 SE2d 182) (1979).” Ortiz v. State, 266 Ga. 752, 753-754 (2) (470 SE2d 874) (1996). Accordingly, the mandatory punishment of OCGA § 17-10-7 (c) cannot be considered unconstitutional under either the federal or state constitution. Id.

(d) Howard further contends that, because his conviction for armed robbery was his first serious violent felony, OCGA § 17-10-6.1 (c) (1) requires that he be eligible for parole after 14 years. Howard, however, has misread the law. OCGA § 17-10-6.1 (c) (1) states, “for a first conviction of a serious violent felony in which the defendant has been sentenced to life imprisonment, that person shall not be eligible for any form of parole or early release administered by the State Board of Pardons and Paroles until that person has served a minimum of 14 years in prison.” Contrary to Howard’s contention, this statute gives a defendant no affirmative right to parole, and, as such, it is not in conflict with recidivist sentencing under OCGA § 17-10-7.

2. In his seventh enumeration of error, Howard contends that the evidence was insufficient to support his conviction. We disagree.

“On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Howard] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The standard for reviewing a denial of a motion for a directed verdict of acquittal is whether under the rule of Jack son v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense. Moreover, the test established in Jackson is the proper test for us to use when the sufficiency of the evidence is challenged, whether the challenge arises from the overruling of a motion for directed verdict or the overruling of a motion for new trial based upon alleged insufficiency of the evidence.” (Citations and punctuation omitted.) Lester v. State, 226 Ga. App. 373, 376 (2) (487 SE2d 25) (1997).

The evidence, in the light most favorable to the verdict, shows that Howard, with the help of an accomplice, robbed Baron Reed at gunpoint in a hotel parking lot. Based on a photo lineup, Reed identified Howard as the man who robbed him. Reed also identified Howard at trial. In addition, Tamatha Brown, who had known Howard for approximately 20 years, testified that she witnessed the robbery taking place, and she also identified Howard as the robber. As a result, the jury in this case had sufficient evidence before it to determine that Howard was guilty of armed robbery beyond a reasonable doubt.

3. In his eighth enumeration of error, Howard contends that the court erred in denying his motion for new trial because the trial court’s reading of the names of the grand jurors listed on the indictment to the jury unduly prejudiced his case. This contention is without merit.

Prior to reading the indictment, the trial judge warned, “I caution you that the indictment itself is not evidence in the case and should not be considered as evidence. It is merely the formal means by which an accused is brought forward and charged with a commission of a criminal offense.” At the time the indictment was read, Howard failed to object to the reading of the grand jurors’ names. As such, this issue must be considered waived for purposes of appellate review. Even if Howard had preserved his argument, however, it would fail. As the trial judge instructed the jurors that the indictment was merely the manner by which charges were made and was not evidence, no harmful error occurred. Strong v. State, 232 Ga. 294, 302 (206 SE2d 461) (1974).

4. In his ninth enumeration of error, Howard contends that the trial court erred in denying his motion for new trial because testimony that the police “had his photograph on file” unduly prejudiced his case. Again, we disagree.

Howard argues that the testimony regarding the photo lineup shown to Reed for purposes of identifying him supported the inference that Howard was one of the “usual suspects” being sought by the police department. We have reviewed the transcript, and we find no merit in Howard’s interpretation of the testimony. While Investigator Monty Mohr testified that the photographs used for the lineup were “photographs that [he had] available through his means at the police department,” Mohr did not testify either that Howard was a “usual suspect” or that his photograph was kept “on file” at the police department.

5. In his tenth enumeration of error, Howard contends that the trial court erred in denying his motion for new trial because testimony that he had paid his cousin to perform oral sex on him was unduly prejudicial as it made the jury “dislike” him. Again, we disagree.

As an initial matter, Howard failed to object to this evidence both during a Jackson-Denno hearing and during testimony before the jury. “Because [Howard] failed to specifically object to the evidence on the ground that it impermissibly placed his character in issue, he may not raise that objection for the first time on appeal.” Allison v. State, 217 Ga. App. 580, 582 (2) (459 SE2d 557) (1995). Furthermore, even if there were any merit to Howard’s contention, the error would be harmless in light of the overwhelming evidence of his guilt. Thomas v. State, 226 Ga. App. 441, 444 (5) (487 SE2d 75) (1997).

6. In his eleventh enumeration of error, Howard contends that the trial court erred in not charging the jury on robbery by intimidation and theft by taking as lesser included offenses of armed robbery. This contention is also without merit.

OCGA § 5-5-24 generally requires that requests to charge be made in writing. Furthermore, “ ‘failure to charge on a lesser included offense is never error absent a written request to do so.’ ” Dukes v. State, 224 Ga. App. 305, 310 (6) (480 SE2d 340) (1997). As Howard made no such written request in this case, his claim must fail.

7. Finally, Howard, by and through his present attorney, filed a motion to stay this appeal and requested that his case be remanded to the trial court in order that he may amend his motion for new trial to include a claim of ineffective assistance of counsel. There is no such procedure available to appellant as a stay of his appeal, notwithstanding the language contained in Herndon v. State, 229 Ga. App. 457 (494 SE2d 262) (1997). If an appellant raises on appeal the issue of ineffectiveness of his original trial counsel, and appellant did not have the opportunity to raise such issue in the trial court, we will ordinarily remand the case to the lower court for resolution of such issue, with the right in the appellant to appeal the ruling. To the extent that Division 12 of Herndon, supra at 461, purports to establish a procedure whereby the appellant should have filed a motion for stay of direct appeal, it is hereby overruled.

Decided July 16, 1998

Reconsideration denied July 31, 1998

James W. Smith, for appellant.

Our Supreme Court has clearly stated that “the rule that an ineffectiveness claim must be raised at the earliest practicable moment requires that that claim be raised before appeal if the opportunity to do so is available; that the ability to raise the issue on motion for new trial represents such an opportunity; and that the failure to seize that opportunity is a procedural bar to raising [that] issue at a later time.” (Punctuation omitted; emphasis in original.) Glover v. State, 266 Ga. 183, 184 (2) (465 SE2d 659) (1996). Accordingly, if an appellant obtains new counsel prior to appeal, and counsel has the opportunity to raise the issue of ineffectiveness through a motion for new trial but fails to do so, we will not remand the case but will find that appellant has waived his right to raise the issue. Furthermore, in such an instance, even if counsel uses his opportunity to raise the issue of ineffectiveness through a motion for new trial but fails to request an evidentiary hearing, the issue has been waived for purposes of appeal. Dawson v. State, 258 Ga. 380 (369 SE2d 897) (1988). However, “the requirement of Dawson v. State . . . does not apply to a case where the appellate counsel did not participate in the motion for new trial, and the issue of ineffectiveness of counsel is [properly] raised for the first time on appeal.” Johnson v. State, 259 Ga. 428, 430 (3) (383 SE2d 115) (1989). Nevertheless, the better practice would be for appellant to immediately request that this Court remand such a case for an evidentiary hearing when a claim of ineffective assistance is properly raised for the first time on appeal.

This case falls into the first category of cases discussed in the preceding paragraph. After Howard’s retention of new counsel, the trial court vacated its earlier denial of Howard’s motion for new trial and gave Howard 30 days in which to amend such motion to include allegations of ineffective assistance of counsel. No amendment was timely made, and the trial court once again denied Howard’s motion for new trial. Because Howard, through his new appellate counsel, had the opportunity to assert ineffective assistance of counsel below and failed to do so, such assertions cannot be raised for the first time on appeal. White v. Kelso, 261 Ga. 32 (401 SE2d 733) (1991).

Judgment affirmed.

Andrews, C. J., McMurray, P. J., Pope, P. J., Johnson, P. J., Smith, Ruffin, JJ, and Senior Appellate Judge Harold R. Banke concur. Beasley and Eldridge, JJ., concur in the judgment only as to Division 7.

Harry N. Gordon, District Attorney, John A. Pursley, Assistant District Attorney, for appellee.