author: Beasley, Judge. Birdsong, Presiding Judge,

text:
    A96A1669.
    JACKSON et al. v. NGUYEN.
    (484 SE2d 337)
   Beasley, Judge.

The Jacksons sued Nguyen and a co-defendant. Nguyen counterclaimed and moved to dismiss the claim because of untimely service of process. The trial court granted the motion and, pursuant to OCGA § 9-11-54 (b), directed the entry of final judgment as to the Jacksons’ claims, from which the Jacksons appeal.

Suit, instituted May 24, 1995, arises from an automobile collision between Jackson and Nguyen on May 29, 1993. Although Nguyen’s correct residential address is recited in the complaint, service was not perfected at that address until June 15, seventeen days after expiration of the two-year statute of limitation in OCGA § 9-3-33. At the hearing on Nguyen’s motion, the Jacksons’ attorney explained the delay by stating that he had turned the matter over to the sheriff. The court, noting that counsel had acknowledged awareness of defendant’s address when the complaint was filed, rejected the reason given for the delay and found that plaintiffs failed to exercise reasonable diligence.

“ ‘The statute of limitation is tolled by the commencement of a civil action at law. OCGA § 9-11-4 (c) . . . requires that service of a complaint shall be made within five days of the filing of the complaint. If an action is filed within the period of limitation, but not served upon the defendant within five days or within the limitation period, plaintiff must establish that service was made in a reasonable and diligent manner in an attempt to insure that proper service is made as quickly as possible. . . .’ [Cit.]” Corley v. Gilley, 205 Ga. App. 660, 661 (423 SE2d 55) (1992). “ ‘ “A reasonable rule must be that in such case the trial judge should look at all the facts involved and ascertain whether the plaintiff was in any way guilty of laches. If he were, of course he would be barred, but if he acted in a reasonably diligent manner then he would not be.” [Cits.] The determination of whether the plaintiff was guilty of laches in failing to exercise due diligence in perfecting service after the running of the statute of limitations is a matter within the trial court’s discretion and will not be disturbed on appeal absent abuse. [Cit.]’ [Cit.]” Brown v. Bailey, 180 Ga. App. 555, 557 (1) (349 SE2d 792) (1986).

“ ‘The burden is on the plaintiff, not the sheriff, to show diligence in attempting to insure that proper service has been made as quickly as possible. . . .’ [Cits.]” Corley, supra. But “[t]his is not a case where unsuccessful attempts to serve the defendants put the plaintiff on notice of a problem and required him to go forward with additional efforts.” Deloach v. Hewes, 211 Ga. App. 321 (439 SE2d 94) (1993). Nor is this a case where service was not made until years after the complaint was filed. Compare McNeal v. Able, 135 Ga. App. 702 (218 SE2d 460) (1975); Hilton v. Maddox &c. Contractors, 125 Ga. App. 423 (188 SE2d 167) (1972), cited in Ga. Practice & Procedure (1996 ed.), p. 225, § 8-9, fns. 5 & 6. “ ‘A plaintiff should not be penalized for reasonably relying upon the sheriff to fulfill his duty to serve properly addressed process papers.’ Bennett v. Matt Gay Chevrolet Oldsmobile, 200 Ga. App. 348, 350, n. 2 (408 SE2d 111) (1991).” Deloach, supra. As in Bennett, supra at 350 (1), “plaintiffs provided the sheriff’s office with the proper address of [defendant] for service of process on the date the . . . complaint was timely filed. Thus, the record affirmatively shows the plaintiffs did all that was initially required of them. Every case of which we are aware in which this court has affirmed the dismissal of the complaint for untimely service of process has involved lack of diligence by the plaintiff in determining the location where the defendant could be properly served. [Cits.] Thus, these cases are materially distinguishable from the facts now before us.” (Footnote omitted.)

In this case, unlike Deloach but like Bennett, it does not appear that after the complaint was filed plaintiffs contacted the process server to ensure that he was making timely service. But whether there was inquiry or not, Deloach recognizes that ££[t]he plaintiff has no authority to require the marshal’s office to perform its duties. . . .” Id. at 322. As observed in Bennett, supra at 350, n. 2, ££[o]nly if a properly executed return of service form is not filed within a reasonable time after the expiration of the five days provided for service would the plaintiff be on notice that the sheriff has not fulfilled his duty but by that time the period would have expired, anyway.” The trial court in this case made no finding of laches, lack of diligence, or any other factor other than that the plaintiffs had relied on the sheriff to perfect service in the time expressly directed by statute. As a matter of law, plaintiffs were justified in relying on the sheriff to perform his duty to make service within five days of receiving the summons and complaint, at the address given. OCGA § 9-11-4 (c). In this case, as in Bennett and Deloach, service would have been timely if the sheriff had performed his duty. In Bennett, plaintiffs filed a renewal action two days before the expiration of the statutory renewal period but after expiration of the applicable statute of limitation. Service of process was perfected on defendant 13 days after the complaint was filed. We find no material distinction between this case and Bennett; and, although Deloach is factually distinguishable, its rationale compels the conclusion that the complaint in this case should not have been dismissed. Therefore, as in Bennett and Deloach, the dismissal of the complaint must be reversed.

Judgment reversed.

McMurray, P. J., Pope, P. J., Johnson, Smith, Ruffin, JJ, and Senior Appellate Judge Harold R. Banke concur. Andrews, C. J., and Birdsong, P. J., dissent.

Birdsong, Presiding Judge,

dissenting.

1. Although appellants satisfied one of their obligations by providing the sheriff with Nguyen’s correct address, this one fact, standing alone, is not enough to show due diligence in seeing that service was perfected as quickly as possible. Moreover, whether appellants were guilty of laches is a matter committed to the discretion of the trial court, and I do not believe that this record shows an abuse of that discretion. Therefore, I must respectfully dissent.

2. Giving a proper service address was only one of appellants’ obligations when they filed a complaint with the expiration of the statute of limitation only days away. There remained the very serious obligation of acting in a reasonable and diligent manner in attempting to assure that service was made as quickly as possible. Shears v. Harris, 196 Ga. App. 61 (395 SE2d 300). Admittedly appellants had no actual control over the sheriffs office and could not guarantee that service would be made as quickly as possible, but our law expects more of plaintiffs than merely to wait for the sheriff to serve process in the sheriffs own good time. This record does not even show that appellants pointed out that the statute of limitation was about to run, asked for expedited treatment by the sheriffs office before the statute ran, or ever called the clerk’s office to determine whether service was perfected. They certainly did not call the sheriff when service was not made within five days, ask why service had not been made, or ask for quick service. The only thing that appellants assert that they did to assure that proper service was made as quickly as possible was that they put the correct address on the summons and complaint. That is not enough. “A plaintiff is required to keep himself informed as to the progress of the case, and is under a duty to learn whether the defendants have been served and to take action to insure that they have been served. The plaintiff cannot simply rely on the clerk or sheriff to perfect service.” (Footnote omitted.) Ga. Practice & Procedure (1996 ed.), pp. 223-224, § 8-9. Although not absolutely required, some lawyers in this circumstance would have had a special process server appointed to assure that service was promptly perfected. Here plaintiffs did nothing.

3. As this action was filed within the period of limitation, but not served upon the defendant within five days or within the limitation period, appellants were required to establish that service was made in a reasonable and diligent manner in an attempt to ensure that proper service was made as quickly as possible. As reasonable and diligent efforts were not made to ensure proper service as quickly as possible, appellants were guilty of laches, and service does not relate back to the time of the filing of the complaint so that the statute of limitation was tolled. Bowman v. U. S. Life Ins. Co., 167 Ga. App. 673, 676 (307 SE2d 134); Childs v. Catlin, 134 Ga. App. 778 (216 SE2d 360). Therefore, I believe that the trial court ruled correctly by dismissing the complaint.

4. Although Bennett v. Matt Gay Chevrolet Oldsmobile, 200 Ga. App. 348 (408 SE2d 111), can be read to suggest that a plaintiff is authorized to rely upon the sheriff doing his duty if the plaintiff provides a correct service address, the true import of the holding is in footnote 2: “A plaintiff should not be penalized for reasonably relying upon the sheriff to fulfill his duty to serve properly addressed process papers.” Id. at 350. Thus, the question remains whether the plaintiffs’ actions were reasonable given the fact that the statute of limitation would expire in only a few days. As I cannot agree that appellants’ actions were reasonable, I do not believe that Bennett v. Matt Gay Chevrolet should be read to say that merely providing the sheriff with the defendant’s correct service address and nothing more is sufficient. In Deloach v. Hewes, 211 Ga. App. 321 (439 SE2d 94), also cited by the majority, the plaintiff did not merely rely upon the sheriff but in fact called both the clerk and the marshal. These appellants, however, did nothing.

Decided March 19,1997

Richard W. Ragsdale, for appellants.

Smith, Howard & Ajax, Matthew G. Moffett, for appellee.

5. As the trial court’s order states that “plaintiffs have failed to exercise diligence in perfecting service upon defendant, and thus service was untimely,” I cannot agree that the trial court “made no finding of laches, lack of diligence, or any other factor other than that the plaintiffs had relied on the sheriff to perfect service.” Moreover, as the majority has not demonstrated how the trial court abused its discretion in reaching this conclusion, I would affirm the dismissal. “Ordinarily, the determination of whether the plaintiff was guilty of laches in failing to exercise due diligence in perfecting service after the running of the statute of limitations is a matter within the trial court’s discretion and will not be disturbed on appeal absent abuse.” (Citation and punctuation omitted.) Shears v. Harris, supra at 62.

This record does not show an abuse of discretion. “In this determination the trial court hearing the motion to dismiss is vested with a discretion to determine the cause of the delay; if it is attributable to the plaintiff and the court dismisses the complaint this court will not intervene. The diligence exercised by the plaintiff describes the true test.” (Citations omitted.) Bible v. Hughes, 146 Ga. App. 769, 770 (2) (247 SE2d 584). Even though the majority may not agree with the decision of the trial court, that does not mean the trial court abused its discretion. As no one can deny that these appellants were woefully deficient in attempting to perfect, it cannot be said that the trial court’s conclusion that appellants were guilty of laches is not supported by the evidence. Even though the majority attempts to make something of the fact that the service in this case was not made years after the statute of limitation expired, the burden of showing a lack of fault rests with the plaintiffs (Bible v. Hughes, supra at 771) and I know of no exception to that rule for cases for which a plaintiff was not grossly late in perfecting service.

Although I do not relish the dismissal of a party’s complaint, these plaintiffs failed to exercise any diligence, much less due diligence.

Accordingly, I respectfully dissent. I am authorized to state that Chief Judge Andrews joins in this dissent.


source: Caselaw Access Project

author: Birdsong, Presiding Judge.

license: Public Domain

text:
    A97A0578.
    KNOTT v. THE STATE.
    (484 SE2d 342)
   Birdsong, Presiding Judge.

Appellant Shawn Jerome Knott was convicted of theft by taking, burglary, and criminal damage to property in the second degree; he appeals his conviction but contests only his conviction of criminal damage to property and burglary. He enumerates as error that the evidence is insufficient to support the verdict where such verdict relies upon the testimony of a co-conspirator without sufficient corroboration to indicate the guilt of the defendant.

Appellant, Stanley McKinney, and Lester Smith stole a motor vehicle. Subsequently, McKinney was dropped off, and appellant and Smith broke into a pawnshop with intent to commit theft therein. During the course of the burglary, Smith drove the stolen vehicle into the pawnshop.

At trial, McKinney testified pertinently as follows: On the evening of the incident, appellant, Smith and McKinney were talking about stealing a car and going riding. Appellant stated he knew where a car was located with its keys in it. Appellant said he would go with Smith and show him where the car was located. Sometime later Smith picked up McKinney at his house, and the two men walked to a car where appellant was waiting for them. The car was brown or tan, and McKinney knew it was stolen. The three men left for Atlanta and stole gas from a Circle K store. Both appellant and Smith drove the vehicle that evening. On the way home, Smith commenced to talk about “driving through the pawnshop”; appellant said he would do it. “They said they were going to get some jewelry and guns.” McKinney said he did not want to go with them so they dropped him off. The next day appellant and Smith told McKinney they had driven through the pawnshop “but they didn’t get anything because the top of the roof had caved in on the car,” and it was dark and they could not see.

Alex Frayley, Jr. testified that he was driving by the pawnshop on the night of the incident and saw that a car had been driven inside that structure. He observed two unidentified men exit the pawnshop through the hole created by the car and flee the scene.

Deputy David Key testified that, responding to an alarm activated at the pawnshop, he went to the scene and found that a car had been driven through the pawnshop’s front door. The car was a cream-colored Mercury Cougar.

Debra Wynn testified that she owned a 1982 Cougar that had been stolen on the night of the incident; the keys were in the car at the time. She did not get her car back because it had been “totaled.”

The pawnshop owner testified that a car ran into the front of his building and “trashed” the shop. His insurance reimbursed him $6,000, but he suffered an approximate $15,000 out-of-pocket loss.

Lester Smith testified that someone had told them about the location of a car with its keys in it. Appellant showed him where the car was located. The car was a big white Ford; Smith took it. Smith, appellant and McKinney went to Atlanta in the car; Smith and one of the other men drove the car that night. Smith and McKinney had been plotting to break into the pawnshop. On the way home from Atlanta, Smith brought up the subject of breaking into the pawnshop. The three men discussed it. Later, Smith and appellant broke into the pawnshop after leaving McKinney at his home. They gained entry when Smith drove the car into the pawnshop. They did not take anything from the shop because it was too dark. After breaking into the premises with the car, appellant entered the premises and got Smith out of the car; then the men left the scene. They broke into the pawnshop to get guns, jewelry or whatever they could find. They had talked with McKinney about their intent to take these items. They fled the scene when Smith informed appellant a black truck was “slowing down and looking.”

The investigator for the district attorney’s office testified that appellant made a pretrial statement in pertinent part as follows: Appellant stated that Smith had taken the vehicle and that he, Smith and McKinney then went to Atlanta. They stopped at a Circle K and took some gas. On the way home, the conversation came up about breaking into the pawnshop. McKinney backed out and went home. Appellant then went to his apartment and got some socks to put over his hands. They went to the pawnshop, appellant got out of the car, and Smith drove the vehicle into the pawnshop. Appellant ran back to his apartment, and Smith joined him shortly thereafter. Appellant also made a pretrial statement to a police sergeant with the Woodstock police force. In that statement, he said that the person who stole the Cougar automobile picked him up at his house and he went riding in the stolen car. He was present at the pawnshop when the car was driven into it; he did not take the stolen car. Held'.

OCGA § 24-4-8 provides, inter alia, that in felony cases the testimony of an accomplice is insufficient unless corroborated. “Slight evidence of corroboration is all that is required, [cit.], and the testimony of one accomplice may be corroborated by the testimony of another.” Ledbetter v. State, 262 Ga. 370, 372 (5) (418 SE2d 57). Moreover, the necessary corroboration may consist entirely of circumstantial evidence, and evidence of the defendant’s conduct both before and after the criminal act was committed may give rise to an inference that he participated in the crime. Harrison v. State, 259 Ga. 486, 488 (1) (384 SE2d 643). We hold that the evidence reviewed earlier in this opinion was legally sufficient to connect the appellant directly with and to give rise to an inference that he participated in the crimes of which he was convicted. See id. Appellant’s contention of lack of sufficient corroboration of a co-conspirator’s testimony is without merit.

Decided March 19,1997.

Conrad & Abernathy, Eric A. Ballinger, for appellant.

Garry T. Moss, District Attorney, Allen D. Morris, Assistant District Attorney, for appellee.

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. Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737). Review of the transcript reveals ample evidence, including the pretrial statements of appellant, from which any rational trier of fact could have found beyond a reasonable doubt that appellant was guilty of the offenses of which he was found guilty. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560).

Judgment affirmed.

Ruffin and Eldridge, JJ, concur.


text:
    A97A0994.
    LAWRENCE v. STATE OF GEORGIA.
    (484 SE2d 341)
   The Court of Appeals desires instruction from the Supreme Court upon the following questions, a determination of which is necessary for a decision in this case. Ga. Const, of 1983, Art. VI, Sec. V, Par. IV; Art. VI, Sec. VI, Par. Ill (7).

The relevant appellate history and facts of this case are as follows: Rodney Lawrence appeals from a final order of forfeiture, filed on August 19, 1996, directing forfeiture of certain property pursuant to the provisions of OCGA § 16-13-49; appellant filed a motion to amend his notice of appeal “so as not to include a transcript of the evidence in the record on appeal.” No transcript of evidence has been forwarded to this Court for consideration in the disposition of this appeal.

In accordance with the provisions of OCGA § 16-13-49 (o), the State filed a complaint for forfeiture of personal property assets valued in excess of $25,000. The assets are items of jewelry which the State contends constituted proceeds derived from or realized from the sale of marijuana in violation of the Georgia Controlled Substances Act. These assets were seized, pursuant to a search warrant, from three residences and a jewelry store owned and operated by appellant.

Decided March 19,1997.

Appellant’s claim to this property is set out in his “Answer To Complaint For Forfeiture Of Assets Valued At Greater Than $25,000.” Appellant does not assert that he is an interest holder in the property pursuant to OCGA § 11-9-105. Rather, appellant claims that he is an owner of the property within the meaning of OCGA § 16-13-49 (a) (7), because he is a consignee and bailee of the jewelry, that is, a lawful bailee of the jewelry pursuant to a consignment agreement between Jerry Gaskins and himself. In support of his contention, appellant produced a two-page, handwritten agreement with three amendments attached; the agreement is undated. In his answer, appellant identifies Jerry Gaskins as the owner of the jewelry.

His sole enumeration is that “the trial court erred in holding that a bailee of seized property is not an ‘owner’ under OCGA § 16-13-49 and therefore has no standing to challenge forfeiture of the property.” Research reveals that there exists no cases directly in point as to the issues raised in this appeal; because of the significant impact a resolution of this issue could have on future forfeiture cases in Georgia, the following questions are hereby certified to the Supreme Court of this state:

(a) Was appellant a bailee of the property at issue, such as a bailee for mutual benefit? See, e.g., OCGA §§ 44-12-40 et seq.; 11-2-101 et seq.; 11-7-102 et seq.?

(b) If appellant was a bailee, did he meet the statutory criteria of “owner,” pursuant to OCGA § 16-13-49 (a) (7)?

(c) Has appellant demonstrated that he has standing to contest the forfeiture at issue in this case? See generally OCGA §§ 16-13-49 (a) (7) & (e); 16-13-50.

(d) Did the trial court commit reversible error in granting the State’s request for order of forfeiture and ordering that “all of the defendant property listed in paragraph 1 of the complaint . . . with the exception of the first five items specified in paragraph 8 [of the final order of forfeiture], and all right, title, interest, and proceeds thereto is condemned and forfeited to the State of Georgia?” Final Order of Forfeiture is dated August 16, 1996.

The Clerk of this Court is directed to prepare a certified copy of the foregoing questions and transmit the same, together with the record in this case, to the Supreme Court.


author: Pope, Presiding Judge.

text:
    A96A1956.
    ABDUL-MAJEED v. EMORY UNIVERSITY HOSPITAL et al.
    (484 SE2d 257)
   Pope, Presiding Judge.

In this wrongful death action based on medical malpractice, plaintiff Bahiyyah Abdul-Majeed appeals from the trial court’s grant of summary judgment for defendants Emory University Hospital and Dr. Richard Riggins. Concluding that summary judgment was proper because plaintiff failed to come forward with evidence showing that defendants’ alleged negligence proximately caused the death of plaintiff’s decedent, we affirm.

Dr. Riggins operated on the decedent, who had suffered a shattered pelvis in a car accident, and supervised his post-operative care. A high percentage (20 percent) of patients undergoing this type of operation develop blood clots after surgery, and the probability that the decedent would develop blood clots was even higher because of his large size. Dr. Riggins therefore prescribed a medication (a blood thinner) to lessen the risk of clotting. But he did not prescribe elastic stockings, pulsating devices, or physical movement of the decedent’s toes and ankles; and plaintiff’s expert said Dr. Riggins should have used these in addition to the medication he prescribed, in order to further lessen the risk of clotting. The decedent did develop a blood clot, which became a fatal pulmonary thrombosis.

In an affidavit attached to the complaint under OCGA § 9-11-9.1, plaintiff’s expert stated his opinion, “based on reasonable medical certainty,” that defendant’s negligence proximately caused the decedent’s death. When plaintiff’s expert was deposed, however, he was asked whether he could say “with a reasonable degree of medical certainty” that the decedent’s death could have been prevented, and he responded as follows: “No. . . . All I can say is it would be more likely that there was a possibility that this could have been prevented.”

Even giving plaintiff the benefit of favorable inferences, this testimony cannot reasonably be understood to say that there is anything more than a possibility that use of the suggested additional measures could have prevented (or even delayed) the decedent’s death. And a possibility that the alleged negligence caused the death is not sufficient to establish proximate cause. Goggin v. Goldman, 209 Ga. App. 251, 253 (433 SE2d 85) (1993); see also Grantham v. Amin, 221 Ga. App. 458 (471 SE2d 525) (1996) (expert’s statement that negligence “could have been a significant contributing cause” of death was not sufficient). Certainty is not required, but the plaintiff must show a probability rather than merely a possibility that the alleged negligence caused the injury or death. See Hawkins v. Greenberg, 166 Ga. App. 574, 577 (1) (a) (304 SE2d 922) (1983) (expert’s testimony that injury was “most likely” caused by alleged negligence was sufficient).

Decided March 4,1997

Reconsideration denied March 20,1997

S. Ralph Martin, Jr., Franklin N. Biggins, for appellant.

Jennings & Sparwath, Stephen H. Sparwath, Allen & Peters, Jonathan C. Peters, Bradley C. Reeves, Michael D. Flint, Long, Weinberg, Ansley & Wheeler, Paul L. Weisbecker, for appellees.

Plaintiff contends summary judgment is inappropriate because her expert in his affidavit stated his opinion, “based on reasonable medical certainty,” that defendant’s negligence proximately caused the decedent’s death. This testimony must be disregarded because it was flatly contradicted, without explanation, in the expert’s subsequent deposition. See Ford v. Dove, 218 Ga. App. 828, 829 (1) (463 SE2d 351) (1995). Moreover, we note that although we have frequently used the phrase “reasonable medical certainty,” see Goggin, 209 Ga. App. at 253, it is neither magic nor particularly helpful. Cf. Lee v. Satilla Health Svcs., 220 Ga. App. 885, 887 (2) (470 SE2d 461) (1996) (expert’s testimony that he strongly believed proper treatment would have made a difference was sufficient, even though he was not willing to say it was a “reasonable medical certainty” because it could not be proved by scientific data). 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.

Judgment affirmed.

Andrews, C. J., and Smith, J., concur.

       In a prior appeal, we reversed the trial court’s determination that the hospital could not be liable for the doctor’s negligence. See Abdul-Majeed v. Emory Univ. Hosp., 213 Ga. App. 421 (445 SE2d 270) (1994).


text:
    A96A2213.
    THE STATE v. NICHOLS.
    (484 SE2d 507)
   Pope, Presiding Judge.

Defendant William Keith Nichols was arrested in his father’s home, and was subsequently charged with driving under the influence; driving with a suspended license; driving with an open container; driving without proof of insurance; and improper backing. Defendant moved to suppress all evidence stemming from his arrest, arguing that the arrest, made without either an arrest warrant or a search warrant, was illegal. The trial court agreed and granted the motion to suppress. Because the officer had seen defendant violate the law and was in “hot pursuit” when defendant entered the residence, however, we conclude he was justified in entering the house and arresting defendant there. We therefore reverse the trial court’s suppression of evidence resulting from the arrest.

At about 11:00 p.m., Officer G. L. Bowen was exiting a church parking lot across from a residential street. He saw a van coming toward him on that street, but as the van approached, it abruptly stopped in the middle of the roadway. The van then quickly backed up, with tires screeching. It turned into a driveway and continued backing at a high rate of speed, until it crashed into a parked vehicle. Officer Bowen pulled into the driveway behind the van, activating his blue lights. At that point, the van’s driver was getting out of his vehicle. Officer Bowen ordered the driver to stop, but the driver looked at him and walked off toward the house. And when Officer Bowen ordered him to stop a second time, the driver sped up and ran into the house. The officer followed the driver into the house and arrested defendant there. The officer discovered defendant’s license was suspended, and based on defendant’s appearance and behavior, he suspected defendant was under the influence of alcohol as well. After arresting defendant for DUI (among other charges), Officer Bowen looked in the van, where he discovered one empty beer can, one partially empty beer can, and two full beer cans in a cooler.

1. The State argues that the warrantless arrest of defendant in his father’s home was justified, and we agree.

(a) An officer may arrest a suspect without an arrest warrant if an offense has been committed in his presence. OCGA § 17-4-20. And while an officer must generally have a search warrant or consent to enter a home to make an arrest, an officer can enter a home to arrest a suspect when he or she has followed the suspect there in “hot pursuit.” Brown v. State, 163 Ga. App. 209, 210 (1) (294 SE2d 305) (1982). “[A] suspect may not defeat an arrest which has been set in motion in a public place .• . .by the expedient of escaping to a private place.” United States v. Santana, 427 U. S. 38, 43 (96 SC 2406, 49 LE2d 300) (1976). Accord Duitsman v. State, 212 Ga. App. 348 (1) (441 SE2d 888) (1994); Brock v. State, 196 Ga. App. 605, 606 (2) (396 SE2d 785) (1990).

As the Supreme Court explained in Santana, “hot pursuit” need not involve a high speed chase through public streets. Indeed, in Santana the “pursuit” began with the defendant standing in the doorway of her house; she saw the police and then retreated inside the house. Id. at 40. Rather, the key to “hot pursuit” is that the defendant is aware he is being pursued by the police, and is therefore likely to disappear or destroy evidence of his wrongdoing if the officer takes the time to get a warrant. In other words, the “hot pursuit” provides the exigent circumstances necessary to justify the failure to obtain a warrant. Id. at 42-43.

We applied this doctrine in Brown, an obstruction case. There, the officer saw someone driving without headlights at night and pursued him to a house. The driver emerged from the car, looked at the officer, and ran into the house. Under these circumstances, we held it was lawful for the officer to arrest the driver in the house for driving without headlights and attempting to elude. Brown, 163 Ga. App. at 209-210.

The circumstances in this case are very similar to those in Brown. Although the pursuit in Brown was longer than the pursuit in this case, that distinction is irrelevant; the crucial similarity is that, like the driver in Brown, defendant (while still outside the house) looked right at the uniformed officer in his marked car, ignored his orders to stop, and ran into the house. Thus, the officer was justified in following him into the house to arrest him for improper backing (OCGA § 40-6-240 (a)).

Defendant’s argument that the “hot pursuit” doctrine applies only to felonies is also belied by Brown, in which the driver was driving without headlights, a misdemeanor analogous to improper backing in terms of its seriousness. His reliance on Hamrick v. State, 198 Ga. App. 124 (1) (401 SE2d 25) (1990), in which we rejected the State’s argument based on “hot pursuit,” is misplaced; although we noted that the offenses involved in Hamrick were misdemeanors rather than felonies, the decisive factor in that case was that the defendant, who had entered the house before the officers arrived, was voluntarily coming out to talk to them in response to their knock, so entry into the house to make the arrest was unnecessary. Id. at 126 (1).

(b) On appeal from a trial court’s grant or denial of a motion to suppress, the trial court’s findings of fact are accepted unless they are clearly erroneous, but its interpretation and application of the law is subject to de novo review. Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994). In this case, the trial court’s suppression of evidence stemming from the officer’s entry into the house was based in part on its erroneous conclusion that defendant had not done anything illegal in the officer’s presence, which in turn was based on its misinterpretation of the improper backing statute. “A driver shall not back a vehicle unless such movement can be made with safety and without interfering with other traffic.” OCGA § 40-6-240 (a). Defendant argued, and the trial court apparently agreed, that since there was no other moving traffic to interfere with, defendant could not have committed the offense of improper backing as a matter of law. In order to be proper, however, the backing must be “with safety” as well as without interference with traffic, and when a driver backs into another vehicle, the backing is not done “with safety,” regardless of whether that vehicle is moving or occupied.

Decided March 4,1997

Reconsideration denied March 20,1997

Gerald N. Blaney, Jr., Solicitor, Scott A. Drake, Richard E. Thomas, Assistant Solicitors, for appellant.

The trial court also erred in concluding that its decision was controlled by Hamrick v. State, 198 Ga. App. at 124 (1). As we noted above in Division 1 (a), Hamrick is distinguishable on the grounds that the driver in that case, having already entered the house before the officers arrived, was coming out of the house as requested when the officers went in. Hamrick does not negate the applicability of the “hot pursuit” analysis to cases like this one, where a suspect sees or hears an officer while outside the house and then runs inside. Rather, it holds that even where there is a “hot pursuit,” the officer should not go into the house to make the arrest unless it is necessary to do so. In this case, like Brown but unlike Hamrick, the officer attempted to effectuate the arrest outside the house, but was unable to do so due to the driver’s failure to cooperate.

2. Defendant suggests that even if his arrest was legal, the officer’s search of his van was not. When an officer makes an arrest, however, he may search the immediate presence of the arrested person “for the purpose of: [discovering or seizing any . . . things which . . . may have been used in the commission of the crime for which the person has been arrested.” OCGA § 17-5-1 (a) (4). And more specifically, when an officer arrests a driver for DUI, the officer may conduct a warrantless search of the passenger compartment of the driver’s vehicle for the purpose of obtaining evidence of intoxication. See Knox v. State, 216 Ga. App. 90, 91 (1) (453 SE2d 120) (1995); State v. Holden, 162 Ga. App. 33 (290 SE2d 130) (1982). If defendant had stopped outside his van, as the officer ordered him to do, the officer could have conducted a search of the van incident to defendant’s arrest for DUI; defendant’s attempt to evade arrest, with the result that the van was no longer in his immediate presence when he was arrested, did not deprive the officer of the authority to search the van for “things . . . used in the commission of the crime” (i.e., containers of liquor).

Judgment reversed.

Andrews, C. J., and Smith, J., concur.

Clark & Towne, David E. Clark, for appellee.

       The Supreme Court in Santana held that for Fourth Amendment purposes, private property is a “public place” if — like Santana’s threshold or defendant’s father’s driveway — it is open to public view. 427 U. S. at 42.


author: Ruffin, Judge.

text:
    A96A2367.
    WOODS et al. v. BELVEDERE PARK APARTMENTS.
    (484 SE2d 242)
   Ruffin, Judge.

Frances Woods, Cynthia Quinton, Sterling Queen, Jr., and Louis Stewart appeal from the dismissal of their complaint. Although appellants raise four enumerations of error, each enumeration challenges the trial court’s order dismissing their case. For reasons that follow, we affirm.

Appellants filed their complaint in DeKalb County against “Belvedere Park Apartments et al.” On their summons, appellants designated the party to be served as “Belvedere Park Apartment[,] 1601 Line St[,] Apt. 1[,] Decaturt,] Ga. 30032.” After attempting service, the Sheriff’s Office returned the summons and complaint to appellants with the following notation: “This address is an individual condominium not an apartment. We need the name of person you wish served. The owner here only owns this condo, no others[,] nor is he a manager.” Appellants prepared a new summons for service and listed the name and address of the party to be served as follows: “1610 Line St. Belvedere Park Apts.[,] Mgr. Valerie Neal[,] Decatur, Ga. 30032.” The sheriff left a copy of the complaint with Valerie Neal. Neal is an employee of In Pen Corporation (“In Pen”), which manages 13 of the 25 quadraplexes at Belvedere Park Apartments but holds no ownership interest in the property.

In Pen answered appellants’ complaint, raising as a defense that “Belvedere Park Apartments,” the only named defendant, is not a legal entity and has no capacity to be a party to any action. Over seven months later, In Pen moved to dismiss appellants’ complaint on the ground that appellants had not sued a party with the legal capacity to defend the action. Following a hearing, the trial court granted In Pen’s motion and dismissed appellants’ complaint without prejudice. In its written order, the court determined that “Belvedere Park Apartments” is not a legal entity and found that “[appellants] have had a reasonable time, approximately nine (9) months, to designate the real party in interest by amendment, joinder, or substitution and have not made any effort to do so.”

Appellants do not challenge the trial court’s conclusion that, as a matter of law, “Belvedere Park Apartments” is not a legal entity. Instead, they argue generally in their brief that their rights were violated by certain individuals at the Belvedere Park Apartments and that they should be afforded a trial.

Decided January 28,1997

Reconsideration denied March 20,1997.

Frances Woods, pro se.

Louis Stewart, pro se.

Sterling Queen, Jr., pro se.

Cynthia Quinton, pro se.

Germano, Kimmey & Cheatwood, J. Steven Cheatwood, for appellee.

“[I]n every suit there must be a legal entity as the real plaintiff and the real defendant.” (Citation and punctuation omitted.) Ga. Insurers Insolvency Pool v. Elbert County, 258 Ga. 317, 318 (1) (368 SE2d 500) (1988). Failure to name a legal entity as a party defendant, however, does not automatically result in dismissal. See Harper v. Savannah Police Dept., 179 Ga. App. 449, 450 (3) (346 SE2d 891) (1986). “A plaintiff who has sued the wrong defendant may move to amend her pleading after the statute of limitation has run and that amendment will relate back to the time of the original pleading if the proper defendant has received actual notice and knew or should have known that, but for plaintiff’s mistake, it would have been the party sued. [Cit.] Moreover, where the real defendant has been served but the papers refer to that defendant by an incorrect name, the plaintiff has the right to amend to correct the misnomer. [Cit.]” Ciprotti v. United Inns, 209 Ga. App. 457, 458-459 (4) (433 SE2d 585) (1993).

In this case we need not address whether appellants could have corrected their mistake through amendment because they made no effort to amend. Although they claim that individuals at the apartment complex violated their rights, they have never moved to add these individuals or any other entities as defendants. In Pen’s answer informed appellants that “Belvedere Park Apartments” might not be a proper legal entity. Appellants received further notice of this problem through In Pen’s motion to dismiss, which remained pending in the trial court for over one month before it was granted. Nevertheless, they did not move to amend their complaint.

Throughout this litigation, appellants were on notice that they had not named a proper legal entity as a defendant. Although their error may have been amendable, they made no effort to remedy their mistake. The trial court properly dismissed this action.

Judgment affirmed.

McMurray, P. J., and Johnson, J., concur.


text:
    A96A2522.
    REEVES et al. v. EDGE et al.
    (484 SE2d 498)
   Pope, Presiding Judge.

On September 15, 1989, Ruth R. Baxley, on behalf of Frank Reeves, Claude Reeves, Jerry Reeves and herself (hereinafter “plaintiffs”), entered into a contract with Parkhill Cemetery, Inc. (the “cemetery”) for the purchase of the right of interment as to two burial lots in the perpetual care cemetery. The contract expressly provided that the right of interment was subject to the rules and regulations of the cemetery “which are now in force or which may hereafter be adopted by said cemetery.” The contract also contained a merger clause stating that the “contract contains the complete agreement between the parties hereto and no agent or representative of the cemetery has any authority to make any statements, representations or agreements adding to or changing the terms and conditions herein set forth.”

Later that month, plaintiffs received a deed dated September 28, 1989, conveying the right of burial in the two lots to plaintiffs’ parents, Kline and Ruth E. Reeves. The deed expressly provided that the right of interment and any possession or use of the lots was “subject to all the rules and regulations of [Parkhill Cemetery, Inc.] now or hereafter adopted and placed on file in its office by said cemetery for benefit of said cemetery and the owners of the right of interment therein.”

On August 5, 1991, plaintiffs’ mother was buried in one of the lots, and the cemetery placed a temporary name marker at the site. Shortly thereafter, plaintiffs received a letter and brochure from the cemetery informing them about the cost of permanent markers for the grave site and installation fees. Because plaintiffs thought the cemetery’s prices were too high, they decided to purchase a marker elsewhere and install it themselves. Thereafter, without first seeking approval from the cemetery, plaintiffs went to the cemetery in the early morning hours of Sunday, February 21, 1993, and installed the marker on their mother’s grave. This was done in direct contravention of cemetery rules and regulations providing that all markers had to be installed by cemetery personnel, that all markers first had to be approved by the cemetery, that markers could not be installed on a Sunday without the cemetery’s prior approval, and that an installation fee had to be paid to the cemetery for all markers installed at the cemetery.

When they were finished installing the marker, plaintiffs were approached by a cemetery employee who informed them that only cemetery personnel were allowed to install markers. Plaintiffs went to the cemetery office where they were told that the cemetery charged an installation fee on all markers placed in the cemetery, and that the fee was then paid into the memorial maintenance fund established by the cemetery to ensure the perpetual care of the memorials and markers on the property. Plaintiffs were also told that if they did not pay the installation fee of $285.12, cemetery rules and regulations authorized the removal of the marker.

On February 25, 1993, the cemetery sent plaintiffs a letter once again explaining cemetery policy and the reasoning behind it and demanding payment of the $285.12 installation fee. Plaintiffs were notified that if they did not pay the fee, cemetery rules and regulations authorized the removal of the marker until payment. A second letter was sent on March 22, 1993, warning that if the fee was not paid within ten days, the marker would be removed. Plaintiffs did not pay, and the marker was removed on April 19, 1993.

Plaintiffs filed criminal charges (theft by taking) against Julian D. Edge, the president of Parkhill Cemetery, which were dismissed by the court. They then filed this civil action against Julian D. Edge and Parkhill Cemetery, Inc. (“defendants”), on December 9, 1993, seeking damages for conversion and emotional distress. Defendants filed their motion for summary judgment on June 29, 1995 and, thereafter, on August 1, 1995, plaintiffs amended their complaint to add additional counts for fraud and violation of the Georgia Cemetery Act. Defendants filed a second motion for summary judgment on December 21, 1995, addressing the additional counts raised in plaintiffs’ amended complaints, and a hearing was held before the court on February 6, 1996. Additional briefs were submitted following the hearing, and plaintiffs again amended their complaint on February 28, 1996, for the stated purpose of “affirming] the contract” between the parties. The trial court granted defendants’ motion for summary judgment on all counts of plaintiffs’ amended complaint, and plaintiffs now appeal.

1. We find the trial court correctly granted summary judgment on plaintiffs’ count alleging violations of the Georgia Cemetery Act (OCGA § 44-3-130 et seq.). Pretermitting the issue of whether either defendant had, in fact, violated provisions of OCGA § 44-3-141 or § 44-3-142 as alleged by plaintiffs, we note that no person may bring an action for a violation of OCGA § 44-3-142 “more than two years from the date of the scheduled completion of the contract for sale or from the date of the sale if there is no contract for sale.” OCGA § 44-3-145 (c). Furthermore, any claims brought for violations of other provisions of the Georgia Cemetery Act are also subject to the two-year statute of limitation provided for in OCGA § 44-3-145 (c) by virtue of the “catch-all” provision of OCGA § 44-3-142 (a) (3) which states: “(a) It shall be unlawful for any person: (3) To sell or offer to sell any cemetery property, burial rights, burial services, or burial merchandise in violation of any provision of this article or rule, regulation, or order promulgated or issued by the Secretary of State under any provision of this article.” Thus, the violations of OCGA § 44-3-141 alleged by plaintiffs in their amended complaint are considered as if they were violations of OCGA § 44-3-142 and are therefore subject to the two-year statute of limitation.

A review of the record indicates plaintiffs contracted to buy the right of interment in the two lots on September 15, 1989, and the deed, dated September 28, 1989, was delivered to them approximately two weeks later. Plaintiffs filed this complaint on December 9, 1993, over four years after receiving the deed. Accordingly, the trial court correctly determined that plaintiffs’ claims for violations of the Georgia Cemetery Act were time barred.

We reject plaintiffs’ argument that the statute of limitation did not begin to run until either February 21, 1993, the date when plaintiffs placed the marker on the grave or April 19, 1993, when defendants removed the marker. A deed becomes an executed contract when it is signed and delivered. It is not essential that possession should be obtained under it. Watkins v. Nugen, 118 Ga. 372, 373 (45 SE 262) (1903). See also OCGA § 13-1-2 (a). The contract for sale in this instance was completed in September 1989 upon delivery of the deed, and plaintiffs’ complaint with respect to this claim filed in December 1993 was untimely.

We also reject plaintiffs’ argument that defendants waived their statute of limitation defense because they did not raise it until the hearing on the motion for summary judgment. See Hansford v. Robinson, 255 Ga. 530 (340 SE2d 614) (1986). The record clearly indicates that defendants raised this affirmative defense in their amended motion for summary judgment filed on December 21, 1995, more than 30 days prior to the February 6, 1996, hearing on the motion. “ ‘The purpose of the requirement that affirmative defenses be pleaded is to prevent surprise and to give the opposing party fair notice of what he must meet as a defense. If it is not pleaded it is generally held that the defense is waived, but if it is raised by motion, or by special plea in connection with the answer or by motion for summary judgment there is no waiver. [Cits.]’ ” (Punctuation omitted.) McFadden Business Publications v. Guidry, 177 Ga. App. 885, 887 (1) (a) (341 SE2d 294) (1986). In this case, plaintiffs had notice of defendants’ statute of limitation defense more than 30 days prior to the hearing on the motion for summary judgment. Thus, there was no waiver. Albany Oil Mill v. Sumter EMC, 212 Ga. App. 242 (1) (441 SE2d 524) (1994).

2. We also find the trial court correctly granted summary judgment on plaintiffs’ fraud count. “The tort of fraud has five elements. These are: (1) false representation by a defendant; (2) scienter; (3) intention to induce the plaintiff to act or refrain from acting; (4) justifiable reliance by the plaintiff; and (5) damage to the plaintiff. [Cit.]” Hanlon v. Thornton, 218 Ga. App. 500, 501 (1) (462 SE2d 154) (1995). “For an action for fraud to survive a motion for summary judgment, there must be some evidence from which a jury could find each element of the tort. [Cit.]” Cobh County School Dist. v. MAT Factory, 215 Ga. App. 697, 700-701 (2) (a) (452 SE2d 140) (1994).

Pretermitting the issue of whether plaintiffs can establish the first three elements of fraud in this case, we find that plaintiffs cannot establish, as a matter of law, the fourth element of justifiable reliance. “In order to prove the element of justifiable reliance, the plaintiff[s] must show that [they] exercised [their] duty of due diligence. [Cit.]” Hanlon v. Thornton, 218 Ga. App. at 501. “Fraud cannot be the basis of an action if it appears that the party alleging the fraud had equal and ample opportunity to prevent it and yet made it possible through the failure to exercise due diligence. [Cits.] When the means of knowledge are at hand and equally available to both parties to a contract of sale, if the purchaser does not avail himself of these means, he will not be heard to say, in impeachment of the contract, that he was deceived by the representations of the seller.’ [Cit.]” Hartsfield v. Union City Chrysler-Plymouth, 218 Ga. App. 873, 876 (2) (463 SE2d 713) (1995). See also Williams v. Fallaize Ins. Agency, 220 Ga. App. 411 (1) (469 SE2d 752) (1996).

In the case sub judice, the sole basis of plaintiffs’ fraud claim is their allegation that cemetery personnel gave to plaintiffs, either at the time of sale or at some time thereafter, a condensed version of the rules and regulations of the cemetery rather than the complete set. This representation, plaintiffs argue, whether intentional or grossly negligent, constituted a suppression of a material fact and actionable fraud.

Plaintiffs’ claim of fraud, however, must fail because the contract contained a clause that expressly notified plaintiffs that the right of interment in the lots was subject to the rules and regulations of the cemetery “now in force or which may hereafter be adopted.” (Emphasis supplied.) This provision put plaintiffs on notice that the rules and regulations originally furnished to them in 1989, or sometime thereafter, whether in condensed or complete form, were subject to modification at any time with or without notice to plaintiffs. Plaintiffs, therefore, were obligated to exercise their duty of due diligence by attempting to ascertain the cemetery’s current rules and regulations prior to their installing a marker at their mother’s grave in February 1993, more than three years after being furnished with the original copy. They failed to do this. Instead, the record indicates plaintiffs failed to read or notice the provisions in both the contract and deed referring to the rules and regulations and the cemetery’s right to modify them; plaintiffs failed to ask the cemetery to provide them with a complete and current copy of the rules and regulations prior to installing the marker; and plaintiffs failed to check with cemetery personnel to find out whether their contemplated actions were permitted under current cemetery rules. We find that plaintiffs’ “ ‘blind reliance’ on [defendants’] representation regarding a matter which could have been easily verified demonstrates a lack of due diligence fatal to the fraud claim. [Cit.]” Simmons v. Fanello, 223 Ga. App. 213, 215 (2) (477 SE2d 330) (1996).

We also note that the trial court’s grant of summary judgment on plaintiffs’ fraud claim was correct for two other reasons. “Georgia law traditionally provides two avenues of relief for claimants alleging fraud under these circumstances. [Plaintiffs] may affirm the contract and sue for breach of contract or rescind the contract and sue in tort for fraud. [Cit.] Accepting and retaining the benefits under the contract alleged to be fraudulent after discovering the alleged fraud constitutes an affirmance. [Cit.]” Garcia v. Charles Evans BMW, 222 Ga. App. 121, 122 (473 SE2d 588) (1996). Here, not only did plaintiffs elect to retain the two lots, but they intentionally amended their complaint for the sole purpose of affirming the contract. Under these circumstances, plaintiffs’ failure to rescind the contract is fatal to their complaint for fraud. Hall v. World Omni Leasing, 209 Ga. App. 115, 118 (3) (433 SE2d 297) (1993).

Furthermore, the contract in this case contains a merger clause providing that the contract was the sole agreement between the parties. “In the absence of any evidence that [plaintiffs were] prevented from reading the contract, the presence of this clause defeats [plaintiffs’] claim of justifiable reliance on any representations by [defendants]. [Cit.]” Garcia v. Charles Evans BMW, 222 Ga. App. at 122.

Similarly, we reject plaintiffs’ arguments regarding the statute of frauds, mistake and equity. See Charles S. Martin Distrib. Co. v. Bernhardt Furniture Co., 213 Ga. App. 481 (1) (445 SE2d 297) (1994).

3. We also find the trial court correctly granted summary judgment on plaintiffs’ conversion claim. “ ‘Conversion is the unauthorized assumption and exercise of the right of ownership over personal property belonging to another which is contrary to the owner’s rights. (Cit.)’ [Cit.]” Rush v. Farmers &c. Bank, 162 Ga. App. 65 (290 SE2d 164) (1982). Inasmuch as the cemetery’s rules and regulations provided that “[i]f any monument, effigy or any structure whatever or any inscription be placed on or upon any lot which shall be determined by the management to be offensive or improper or injurious to the appearance of surrounding lots or grounds or not according to the Cemetery rules, they may enter upon such lot and remove the same,” we find the cemetery was expressly authorized to remove and retain the marker until plaintiffs paid the installation fee in compliance with cemetery rules and regulations. Therefore, an essential element of plaintiffs’ conversion claim is missing. King v. Crain-Daly Volkswagen, 207 Ga. App. 583 (428 SE2d 586) (1993). •

Decided February 17,1997

Reconsideration denied March 20,1997

Thomas M. Strickland, for appellants.

Hatcher, Stubbs, Land, Hollis & Rothschild, Teri Y. Callahan, for appellees.

4. The trial court correctly granted summary judgment on plaintiffs’ remaining claims against defendants for emotional distress under OCGA § 51-12-6 and punitive damages.

“ ‘OCGA § 51-12-6 ‘does not create a cause of action for injury to peace, feelings or happiness, but prescribes the measure of recovery where such a cause of action exists. (Cit.)’ Westview Cemetery v. Blanchard, 234 Ga. 540, 544 (216 SE2d 776) (1975). Thus, unless [defendants] committed a tortious act, with the result that [plaintiffs] suffered emotional distress, there can be no recovery. That [plaintiffs] suffered emotional distress does not, without more, demonstrate that [defendants] committed a tort.” Sanders v. Brown, 178 Ga. App. 447, 448 (1) (343 SE2d 722) (1986).

As discussed in Divisions 1, 2, and 3, plaintiffs have not established a viable tort claim against defendants.-Accordingly, the trial court correctly granted summary judgment on plaintiffs’ claim for emotional distress. Johannes v. Mitchell, 220 Ga. App. 102 (4) (469 SE2d 255) (1996). See also Families First v. Gooden, 211 Ga. App. 272 (7) (439 SE2d 34) (1993) regarding the trial court’s correct grant of summary judgment on plaintiffs’ claim for punitive damages.

Judgment affirmed.

Andrews, C. J., and Smith, J., concur.


text:
    A96A2523.
    LEDEE v. DEVOE.
    (484 SE2d 344)
   Birdsong, Presiding Judge.

Pursuant to the grant of an interlocutory appeal, William A. Ledee appeals the trial court’s denial of his motion for a protective order which he sought to prevent production of his income tax returns and other financial records. Bertha Devoe maintains that she is entitled to this information about Ledee’s worldly circumstances because Ledee is potentially liable for punitive damages.

Ledee contends the trial court erred by ordering discovery of his income and financial circumstances without Devoe first showing a causal connection between Devoe’s injury and Ledee’s intentional, wilful or wanton act or omission; he also contends the trial court erred by ordering prejudgment and pretrial discovery of his income and financial circumstances that is manifestly burdensome and oppressive.

This appeal arises from a complaint Devoe brought against Ledee and two attorneys alleging conspiracy, negligence, fraud, and breach of fiduciary duty in the handling of a slip and fall case which was dismissed for want of prosecution and not renewed under OCGA § 9-2-61. Devoe claims that, although not an attorney, Ledee held himself out to be an attorney, and that he worked in the office of two attorneys who shared an office. One of these attorneys has been since disbarred. Ledee, however, asserts that he is not an attorney and that he merely managed a risk management/insurance agency that was located in the same office building as the two attorneys and was associated with these attorneys in that way.

According to the contract Devoe signed, she retained one of the attorneys to represent her in a case concerning her slip and fall. This attorney has since denied that he signed the document and has also denied any involvement in the matter. Devoe contends Ledee was introduced to her as an attorney and as the attorney who would be representing her in the matter. Subsequently, a complaint in the slip and fall case was filed ostensibly by the disbarred attorney, but service of process was not made on the defendant and the case was dismissed for want of prosecution. Devoe holds Ledee responsible for this result.

Ledee moved for summary judgment on the claims against him asserting that' even if he earlier held out to Devoe that he would be her attorney as she contends, he cannot be held liable for her damages because his actions were not the proximate cause of her damages. In conjunction with this motion, Ledee also moved for a protective order staying further discovery pending a decision on his summary judgment motion, and in particular sought protection from having to produce copies of his tax returns. The trial court, however, denied Ledee’s motion, ordered that he sit for deposition, and that he answer Devoe’s discovery.

Thereafter, Devoe served a notice to take deposition on Ledee with an attached subpoena duces tecum. This subpoena sought the following:

“1. The last five financial statements prepared by you, for you, or for any company in which you have a financial interest, for any purpose, whether for submission to a prospective creditor, or existing creditor, for submission to any governmental authority or for submission to any shareholders or other persons or entities;

“2. The last five annual financial statements prepared by you, for you, or for any entity in which you have a financial interest for any purpose or, in the alternative, please provide financial statements for five separate years, prior to and including the current year;

“3. All federal and state income tax returns submitted by you to governmental authorities in the United States or in any other country for each of the last five years;

“4. Each and every bank statement (including all checking, savings and other such accounts) in which [you] maintain[ed] an account on May 13, 1996. Please provide statements for a period [of] six months leading up to and including May 13, 1996;

“5. Bank statements (including all checking, savings, and other such accounts) of every savings and loan association in which you have an account as of May 13, 1996. Please provide statements for a period [of] six months leading up to and including May 13, 1996.”

Devoe also submitted second interrogatories to Ledee that sought the following information:

“1. Give the name and address of each and every bank in which you presently maintain an account of any type and the current balance of said account.

“2. Give the name and address of each and every [bank] in which you maintained an account on or about May 13, 1996 and the balance of said account on May 13, 1996.

"3. Give the name and address of each and every savings and loan association in which you have an account of any type and the present balance of that account.

“4. Give the name and address of each and every savings and loan association in which you had an account on May 13, 1996 and the balance of that account on May 13, 1996.

“5. Give the name, address, and legal description of each and every piece of real estate, including your home, in which you have any interest, and state the value of such interest.

“6. Give the complete name and address of any person, firm, or corporation who has any interest in any real estate named in the previous interrogatory by way of mortgage, security deed, or other security instruments and the amounts of the outstanding indebtedness on each piece of real estate, if any.

“7. List all corporations or other stock companies in which you own any stock. Provide the numbers of the stock certificates, the number of shares in which you own, the specific location of these shares and the present market value of the shares.

“8. List each and every item of personal property having a value of 1,000 or more in which you have any interest other [than] what you have listed above, including but not limited to, jewelry, clothing, furniture, automobiles, and boats.

“9. If there is any outstanding indebtedness on any of the items stated in your response to the previous interrogatory, please state the amount, of the indebtedness on each article and to whom the indebtedness is owed to.

“10. List all office furniture and equipment in which you own any interest, and the value of each piece. If any of said equipment is mortgaged or otherwise unpaid, list the amount of indebtedness owed and to [whom] it is owed.

“11. List every person, firm, or corporation who owes you any amount of money whatsoever, give the exact amounts owed at the present time and the complete names and [addresses] of the persons, firms, or corporation owing you.

“12. List all insurance companies in which you have an insurance policy of any kind. Also give the face amount of the policies, when they were taken out, and the amount of the cash value in. said policies, if any.

“13. Give the model, make, year and license tag number of any automobile and truck owned by [you] at the time these interrogatories were served on you.

“14. State where you are presently employed, the amount of compensation you receive for said employment and whether you are paid a salary or on a commission basis.

“15. State whether you have a safe deposit box(es) in your name, if so, state the name of the institution and the address where said box(es) is located.

“16. State whether you have filed any petition for bankruptcy in the last 10 years, if so, state the date said petition(s) [was] filed and where said petition(s) was filed.

“17. Please identify by name, address, business affiliate, corporate name or other such description all business interests in which you derived any income during the last three years.”

Upon receipt of this additional discovery, Ledee again moved for a protective order, moved to reconsider the ruling on the earlier protective order, and moved to quash the subpoena. After oral argument the trial court denied the motions and issued an order substantially as follows “the court hereby finds that all discovery propounded by the plaintiff is to be responded to in full, that a prima facie showing of entitlement to punitive damages has been made by the plaintiff and that further discovery as to all issues, including the worldly circumstances of defendant William Ledee, are appropriately discoverable by the plaintiff.

“The court further orders that all information acquired through discovery concerning defendant’s worldly circumstances is to be kept under seal until such time as this court rules otherwise. Further, the plaintiff, her attorneys, and all of their agents and employees are to make no disclosures of same, except as a part of trial of the above-styled matter.” Held:

1. Devoe’s motions to supplement the record and to dismiss the appeal are denied. Her motion to withdraw the discovery at issue in this appeal does not render the issues moot as she has reserved the right to refile the discovery at any future time after the trial court’s ruling on Ledee’s motion for summary judgment. Although propounding this discovery at that time would eliminate some of the issues presented in this appeal, it would not resolve all of them. Moreover, withdrawal of Devoe’s discovery would not vacate the ruling of the trial court which Ledee has appealed.

2. Ledee contends that the trial court erred by ordering this broad discovery without first requiring a showing of a causal connection between Devoe’s injury and Ledee’s actions. Notwithstanding the admissibility of evidence of the defendant’s worldly circumstances in punitive damage cases, a mere demand for punitive damages does not authorize the type of discovery sought in this case. Though mindful that the trial court has determined that Devoe has made a prima facie showing that Ledee is liable for punitive damages, the trial court has not ruled on Ledee’s motion for summary judgment which claims that, as a matter of law, he did not cause Devoe’s damages. Further, the record does not indicate that Devoe made an “evidentiary showing (by affidavit, discovery responses, or otherwise) that a factual basis existed for her punitive damage claim.” Holman v. Burgess, 199 Ga. App. 61, 64 (404 SE2d 144). Mere allegations in the complaint or otherwise and representations by counsel do not suffice; there must be an evidentiary showing. Id. Although the trial court relied upon certain documents in the record that tended to show that Ledee held himself out as Devoe’s attorney, these documents, i.e., an affidavit from an adjuster, Devoe’s deposition, an affidavit from the attorney with whom Devoe purportedly signed a contract of representation, do not necessarily show that Ledee’s actions were the proximate cause of Devoe’s damages. Because liability also depends upon showing causation and damages, a sufficient evidentiary showing has not been made at this point. These comments, however, are not an expression of our opinion on the merits of Ledee’s motion for summary judgment as we recognize that Devoe has yet to file her response.

A ruling on Ledee’s liability, as a matter of law, would be determinative of Devoe’s right to this discovery. If Devoe cannot show a causal connection between Ledee’s actions and her injury, summary judgment would be warranted, and .this dispute would be avoided. We do not mean to say, however, that a ruling on a motion for summary judgment is always required in these disputes. It is enough if a plaintiff supports her claim to this kind of discovery with affidavits, discovery responses, or other evidence sufficient to show that “an evidentiary basis exists for the punitive damage claim.” Id. at 63. Even though we recognize that the trial court has ordered that the discovery responses be kept under seal and has restricted disclosure of that information, until the required evidentiary basis is shown, even those measures are not sufficient. Who would want any strangers to have access to the type of financial information requested in this case from Ledee regardless of the safeguards imposed to restrict access only to those strangers?

Further, although not specifically addressed below, Devoe is entitled to conduct discovery of information relating to the connections or arrangements among Ledee and the two attorneys in this case, and particularly their financial and business relationships. Thus, some discovery of Ledee’s financial records would appear to be warranted even on liability, notwithstanding Devoe’s claim for punitive damages. Nevertheless, not all of the information sought in this dispute necessarily falls within that category, and although Devoe may be entitled to discovery on these matters, it does not follow that she is entitled to the far-reaching, burdensome discovery she is seeking.

Further, even if discovery of a defendant’s worldly circumstances and business relationships is authorized, discovery of the defendant’s financial affairs is not unlimited. Assuming that a showing has been made that Ledee would be liable for punitive damages in this case, we reiterate, it is the trial court’s obligation to assure that the scope of the discovery is restricted to the extent necessary to prevent an unreasonable intrusion into the defendant’s privacy. Holman v. Burgess, supra at 64. Such a determination requires the careful balancing of the requesting party’s interest in obtaining the information sought by each request for production or interrogatory with the privacy rights of the other party. As this record does not demonstrate that the trial court has exercised its discretion by undertaking that balancing of interests, we must return this matter for the trial court to do so. In particular, we are concerned that the requirement to produce Ledee’s tax returns is unduly burdensome. See A Southern Outdoor Promotions v. Nat. Banner Co., 215 Ga. App. 133, 134-135 (449 SE2d 684); Borenstein v. Blumenfeld, 151 Ga. App. 420, 422 (260 SE2d 377) (Birdsong, J., concurring specially). We also note that some of the requests can be construed reasonably to require the production of information concerning bank accounts, property, joint tax returns, etc. that involve the privacy interests of other parties. Consequently, we hold that, based upon the record before us, the requests for production and second interrogatories in this case were so manifestly burdensome and oppressive that even though the trial court was authorized to compel some discovery, it was not authorized to compel Ledee’s unlimited response to each request. Holman v. Burgess, supra at 64. We also reject Devoe’s assertion that because Ledee was convicted of a felony 20 years ago that he has somehow lost his right to privacy.

Decided March 20,1997

Cauthorn & Phillips, Thomas E. Cauthorn III, Melissa J. McMath, Awtrey & Parker, Harvey D. Harkness, for appellant.

Slappey & Sadd, James N. Sadd, Glass, McCullough, Sherrill & Harrold, Robert T. Quackenboss, Jr., William A. DuPre TV, Charles A. Evans, for appellee.

Accordingly, the order of the trial court is reversed and the case remanded to the trial court for additional consideration and balancing of Devoe’s right of reasonable discovery with Ledee’s rights of privacy.

Judgment reversed with direction.

Blackburn, J., concurs. Beasley, J., concurs in judgment only.


author: Blackburn, Judge.

text:
    A97A0788.
    CAMP v. WINN DIXIE STORES, INC.
    (484 SE2d 349)
   Blackburn, Judge.

Joseph M. Camp appeals the trial court’s grant of Winn Dixie Stores, Inc.’s motion for summary judgment in the underlying rainy-day slip and fall case.

Camp testified in his deposition that it was raining as he entered the Winn Dixie. After he walked across the carpeted entry area, he slipped and fell on the wet floor. A Winn Dixie employee deposed that she had checked the floor two to three minutes prior to Camp’s fall, and that she saw no water on the floor.

“[I]t is common knowledge that during rainy weather some water will normally be present where shoppers enter a building.” Winn-Dixie Atlanta v. Bianco, 204 Ga. App. 292, 293 (418 SE2d 819) (1992). “On these facts, there is no evidence showing Winn-Dixie had or should have had superior knowledge of a condition or hazard posing an unreasonable risk of harm that was the proximate cause of [Camp’s] injury.” Id. See also Roby v. Kroger Co., 219 Ga. App. 459, 460 (465 SE2d 496) (1995) (“when it rains, the ordinary person is aware that water is apt to be found in any area frequented by people coming in from the rain outside”). Accordingly, the trial court correctly granted Winn Dixie’s motion for summary judgment.

Judgment affirmed.

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

Decided March 20,1997.

Robert H. Baer, for appellant.

Lee, Black, Scheer & Hart, Steven E. Scheer, Christopher L. Rouse, for appellee.


text:
    A96A1838.
    DAVIS v. THE STATE.
    (484 SE2d 655)
   Ruffin, Judge.

A jury found Jerome Davis guilty of two counts of aggravated assault and not guilty of “entering an automobile.” The court sentenced Davis to nine years on each count of aggravated assault, to be served concurrently. Davis appeals, challenging the sufficiency of the evidence, the denial of his motion to suppress, the jury charge, and his sentence. We affirm.

1. Davis asserts that the evidence was insufficient to support his convictions on two counts of aggravated assault. We disagree.

“ ‘On appeal the evidence must be viewed in the light most favorable to the verdict, and [Davis] no longer enjoys the presumption of innocence; moreover, on appeal this court determines evidence sufficiency, and does not weigh the evidence or determine witness credibility. [Cit.]’ [Cit.]” King v. State, 213 Ga. App. 268, 269 (444 SE2d 381) (1994).

Viewed in this light, the evidence shows the following. On the evening the offenses were committed, Douglas Paxton, an employee of the Center Stage Theater, observed two men in the theater’s parking deck whom he suspected were breaking into a car. Paxton returned to the theater and informed Bill McCook, a security guard, of his observations. When Paxton and McCook returned to the parking deck, they noticed that the two suspects had left the area and were standing across the street. Paxton and McCook ran toward the two suspects, who then fled on foot. As Paxton and McCook chased the suspects, both suspects turned around and fired gunshots at them.

Paxton testified that after the shooting, he ran back to the theater and informed Atlanta Police Officer John Drummond of what occurred. As Officer Drummond and Paxton were driving around the area searching for the two suspects, Paxton thought he recognized one of them walking down the sidewalk. When Paxton and Officer Drummond approached the individual in their car, he looked at them, then turned away and put his hands in his pockets. Officer Drummond testified that due to concerns for his safety, which were based on the reported shooting, he exited the car with his gun drawn and told the individual, who was later identified as Davis, to remove his hands from his pockets and turn around. When Davis turned around Officer Drummond “observed a small caliber weapon sticking out of his right coat pocket.” A subsequent search revealed another handgun stuck in Davis’ belt. Both Paxton and McCook positively identified Davis as the person who shot at them.

The foregoing evidence was sufficient for a rational trier of fact to find Davis guilty beyond a reasonable doubt of two counts of aggravated assault. See id.; Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Davis asserts that the trial court erred in denying his motion to suppress evidence of the guns he possessed at the time of his stop. Davis argues that the evidence should have been suppressed because Officer Drummond’s stop was “overly intrusive under the circumstances, and lacking in reasonable articulable suspicion.” We disagree.

“ £[A] police officer may make a brief, investigatory stop, provided the officer has a reasonable, articulable suspicion that the person stopped has been, is, or is about to be engaged in criminal activity, and the nature and extent of the detention is minimally intrusive. (Cit.)’ ” Chaney v. State, 207 Ga. App. 72 (427 SE2d 63) (1993). In this case, Officer Drummond was suspicious that Davis committed the shooting and possible car break-in because he matched the general description of the perpetrator and because Paxton had informed him that, although he was not sure, Davis looked like the person who shot at him. “The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow ... a criminal to escape.” (Citation and punctuation omitted.) State v. Grimes, 195 Ga. App. 773, 774 (1) (395 SE2d 42) (1990). Accordingly, despite Paxton’s somewhat tentative identification, Officer Drummond was permitted to stop Davis to determine whether he committed the witnessed offenses.

We also find that Officer Drummond’s conduct during the stop was not overly intrusive simply because he had his weapon drawn when he exited the car. “ £An investigatory stop is not automatically an arrest simply because an officer is armed. . . . (Cits.) It is often necessary for the police to approach a person with a drawn weapon in a suspiciously dangerous situation in order to protect the physical well-being of both police officers and the public.’ [Cit.]” Id. at 775.

As stated above, in this case Officer Drummond testified that he exited the car with his gun drawn due to concerns for his safety, which were based on the reported shooting. Under such circumstances, Officer Drummond was permitted to take appropriate action to protect himself and the public. Id. And, although ££[t]he usual police response will be to conduct a frisk, . . . [w]here an immediate frisk is not feasible, . . . the officer [is] justified in approaching the suspect with weapon drawn or at the ready. The key question in all cases remains whether the protective measures taken by the officer were reasonable under the circumstances.” (Citations and punctuation omitted.) Id. Because of the prior shooting, Officer Drummond was justified in believing that Davis was possibly armed and dangerous. Officer Drummond was subsequently authorized to arrest Davis upon observing the gun protruding from his pocket. See id.

Accordingly, we find no error in the denial of Davis’ motion to suppress.

3. Davis asserts that the jury instructions “taken as a whole denied due process, shifted the burden to appellant and negated any charge on reasonable doubt.” In support of his assertion, Davis cites two examples of purportedly erroneous charges.

During the charge on circumstantial evidence, the trial court gave the jury an example of what constitutes such evidence. Davis contends that the illustration was prejudicial because it was “practically identical to the facts of the current case. . . .” We disagree. Although the illustration involved a shooting, as in the present case, it was not “practically identical.” Furthermore, the use of such “illustrations to explain to the jury the difficult concept of the differences between direct and circumstantial evidence, was not improper, especially since the jury was charged as to the law of direct and circumstantial evidence, the jury was not advised as to which facts occurred here, and the [judge] instructed them that nothing he had said during the trial was intended to intimate, hint, or suggest which side should prevail.” Mayne v. State, 258 Ga. 36, 38 (5) (365 SE2d 270) (1988).

Davis also contends the jury charge was erroneous because the court instructed the jury that “[y]our verdict must be unanimous. It’s no such thing as a majority verdict. Each of you must agree to the verdict, any verdict that you return.” Davis contends that such language required each juror to “concede to the majority opinion.” However, as Davis acknowledges, the jury charges must be read as a whole. Hambrick v. State, 256 Ga. 688 (3) (353 SE2d 177) (1987). The transcript' shows that following the quoted language, the court instructed the jurors “that if you find that you differ about what your verdict should be on a certain point that it’s important for you to discuss it, to deliberate with one another. . . . [B]e willing to listen [to your fellow jurors] in their argument all with an effort to reach a unanimous verdict, if possible.” We find that, read as a whole, the court’s charge was not coercive “in that it caused any juror to abandon an honest conviction for reasons other than those based upon the trial or the arguments of other jurors. . . .” (Citation and punctuation omitted.) Harris v. State, 263 Ga. 526, 528 (6) (435 SE2d 669) (1993).

4. Finally, Davis contends that the trial court improperly sentenced him. Specifically, Davis contends that the record shows he was found guilty only of two counts of simple assault, but that he was sentenced for two counts of aggravated assault. In support of his argument, Davis cites to a copy of the jury’s verdict, which was handwritten on the indictment and provides: “[w]e the jury find Mr. Davis guilty of 2 counts of Assault and not guilty of entering an auto.” Although Davis is correct that the verdict does not specifically state that he was found guilty of aggravated assault, we conclude that such was the intent of the jury’s verdict.

OCGA § 17-9-2 provides in part that “[vjerdicts are to have a reasonable intendment, are to receive a reasonable construction, and are not to be avoided unless from necessity.” We must construe verdicts “in the light of the pleadings, the issues made by the evidence, and the charge of the court.” (Citation and punctuation omitted.) Reed v. State, 87 Ga. App. 154 (1) (73 SE2d 223) (1952).

The indictment here shows that Davis was charged with only aggravated assault and not also with the lesser included offense of simple assault. Similarly, we find, and Davis acknowledges in his appellate brief, that “[u]nder the facts presented in the current case, the jury could only have found that [he] was either guilty of [aggravated assault] or no offense.” Finally, the court charged the jurors that they could only find Davis guilty of aggravated assault as it was charged in the indictment. Specifically, the court instructed the jury that the State charged Davis with the “particular offenses named in the indictment, and he denies it. That sets the issue that is to be decided between the state and the defendant in this case.” The court further charged the jury that “any verdict you may render in this case should be arrived at from the facts as you find them to be, applying thereto the law as given you in this charge.” The court then charged the jury on the laws concerning aggravated assault and again stated that the State charged Davis with assaulting the victims “by the use of a deadly weapon, a pistol.” Finally, the court instructed the jury that as to each count of the indictment, they could find him either guilty or not guilty and that “it’s up to you if you just want to write your verdict in one sentence or two sentences or three sentences. However you want to do it, it’s up to you as long as it indicates that each particular count has been dealt with.”

As to the aggravated assault charge, the only alternatives given to the jury in this case were to find Davis guilty of aggravated assault or no offense at all. In writing its verdict, the jury simply followed the court’s instructions by indicating which particular counts it was dealing with. Although using the term “assault” left some ambiguity, it was sufficient to indicate that the jury found Davis guilty of the two counts charging aggravated assault. Under the above-stated circumstances, this is the only reasonable construction of the jury’s verdict.

Decided February 10,1997

Reconsideration denied March 21,1997.

Marshall W. Taylor, for appellant.

Lewis R. Slaton, District Attorney, Leonora Grant, Kirby Clements, Jr., Juliette O. W. Scales, Assistant District Attorneys, for appellee.

Finally, we note that the following colloquy between Davis’ counsel, the court, and a juror, which occurred after Davis polled the jury, also indicates that the jury intended to convict Davis of aggravated assault: “[Davis’ counsel]: Yes, your honor, I notice the writing on the verdict form said find the defendant guilty of assault. The charge was aggravated assault. The Court: Yes, I assume that’s what they meant. The Juror: Yes, your honor.”

Accordingly we find that the jury found Davis guilty of two counts of aggravated assault and that the trial court did not err in sentencing him for these offenses.

Judgment affirmed.

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


text:
    A96A2219.
    ATLAS AUTOMOTIVE, INC. et al. v. WILSON.
    (484 SE2d 669)
   Ruffin, Judge.

Willie Wilson brought this workers’ compensation claim against his former employer, Atlas Automotive, Inc. (“Atlas”), and Atlas’ servicing agent after Atlas suspended his workers’ compensation benefits and terminated his employment. Following a hearing, the administrative law judge (“ALJ”) found in Wilson’s favor. The ALJ’s findings of fact and conclusions of law were adopted by the appellate division of the State Board of Workers’ Compensation and affirmed by operation of law by the Superior Court of Dougherty County. We granted the Application for Discretionary Appeal filed by Atlas and its servicing agent, and for reasons which follow, we affirm.

The record reveals that in July 1994, Wilson injured his lower back while working as a brakeshoe assembler for Atlas. Following his injury, Wilson received weekly workers’ compensation benefits for total disability.

From August 1994 through January 1995, Wilson was treated for back pain by Dr. Thomas Darden, an orthopedist who was “one of the main company doctors” and Wilson’s authorized treating physician. Dr. Darden kept Wilson out of work, performed a series of diagnostic tests, prescribed physical therapy and medication, and referred Wilson to Dr. Robert Hanchey, a neurosurgeon. After tests and examinations, Dr. Darden concluded that Wilson had suffered “a muscular strain of his back muscles.” Neither Dr. Darden nor Dr. Hanchey, however, could find an organic cause for Wilson’s continued lower back problems. In December 1994, Dr. Darden noted that Wilson’s test results were “normal” and indicated that he should undergo a psychiatric evaluation to help determine why his symptoms persisted.

On January 3, 1995, Wilson again saw Dr. Darden, who reported that Wilson’s pain and symptoms were out of proportion with the physical findings and that a request to refer Wilson for psychiatric counseling had been denied by his insurer. Finally, Dr. Darden noted that “[a]t this point, I would release [Wilson] from [our] care and would feel that he should [try] to get back into some type of employment, as we can find nothing wrong and would concur with Dr. Hanchey’s assessment, as [he] has had normal serologic work-up, normal MRI scan, and do not appear to find anything that would correlate with his pain symptoms.”

Despite the insurer’s refusal to pay for psychiatric counseling, Dr. Darden subsequently referred Wilson to a psychiatrist, Dr. Vernon Dixon, who saw Wilson on January 16, 1995. In a letter to Dr. Darden, Dr. Dixon stated that Wilson appeared to be “very depressed” and noted that no objective physical cause could be documented for Wilson’s complaints of severe pain and disability in his lower back. In his separate written evaluation, Dr. Dixon diagnosed Wilson as having a “[m]ajor depressive disorder” and stated that “[t]he patient was injured on the date of 7-14-94 and has gotten progressively depressed since then.” Dr. Dixon described the date Wilson would be able to return to work as “[indefinitely, 6 months” and similarly calculated the date of maximum recovery as “[indefinite, perhaps 6 months longer.” Dr. Dixon further recommended “regular intensive counseling and medication management for [Wilson’s] psychiatric condition.”

On January 18, 1995, Atlas filed a notice of suspension of benefits indicating that Wilson’s benefits would be suspended on January 26, 1995, because “[Wilson] was able to return to work on [January 5, 1995] without restrictions from the authorized treating physician. . . .” By letter dated February 2, 1995, Atlas informed Wilson that if he failed to contact the company by February 6, 1995 about returning to work, he would be considered “terminated — as a voluntary quit.” On February 7, 1995, Atlas prepared and released to Wilson a separation notice stating that he had voluntarily quit.

Wilson subsequently brought this claim challenging the suspension of benefits. The ALJ concluded that “[Wilson’s] psychological condition was caused as a result of his July 14, 1994 injury at work for [Atlas]. I find as a result of the symptoms of his injury caused psychological disorder [Wilson] has been disabled to return to work through the date of the hearing.” Accordingly, the ALJ recommenced Wilson’s temporary total disability income benefits and ordered Atlas to pay for Wilson’s treatment by Dr. Dixon and other authorized physicians. The ALJ further ordered Atlas to pay attorney fees to Wilson’s counsel in the amount of 25 percent of income benefits paid or payable to Wilson. Finally, the ALJ assessed a $500 civil penalty against Atlas for violating Board Rule 200 (b) by refusing to pay for Wilson’s initial evaluation with Dr. Dixon.

1. In their first enumeration of error, appellants argue that “[b]ecause Wilson’s psychological condition was caused by psychic factors and did not arise naturally and unavoidably from his work-related injury, the superior court erred in holding that Wilson’s psychological condition was compensable.” We disagree.

“ Tn reviewing a workers’ compensation award, both this court and the superior court must construe the evidence in the light most favorable to the party prevailing before the appellate division. It is axiomatic that the findings of the State Board of Workers’ Compensation, when supported by any evidence, are conclusive and binding, and that neither the superior court nor this court has any authority to substitute itself as a fact finding body in lieu of the Board.’ . . . [Cits.]” Southwire Co. v. Molden, 223 Ga. App. 389, 390 (477 SE2d 646) (1996). Claiming that the award for psychological injury was based on an “erroneous legal theory,” appellants assert that we should review this case de novo. In their brief, however, appellants do not argue merely that the lower courts applied an incorrect legal standard. Rather, they ultimately contend that Wilson has not suffered a compensable psychological injury, rendering the award of temporary total disability benefits improper. We must review the question of whether Wilson suffered a compensable psychological injury under the “any evidence” standard. Molden, supra.

“[A] claimant is entitled to benefits under the Workers’ Compensation Act for mental disability and psychic treatment which, while not necessarily precipitated by a physical injury, arose out of an accident in which a compensable physical injury was sustained, and that injury contributes to the continuation of the psychic trauma. The physical injury need not be the precipitating cause of the psychic trauma; it is compensable if the physical injury contributes to the continuation of the psychic trauma.” (Emphasis supplied.) Southwire Co. v. George, 266 Ga. 739, 742 (470 SE2d 865) (1996).

Applying this rule and viewing the evidence in Wilson’s favor, we find that the ALJ, the appellate division, and the superior court did not err in awarding Wilson compensation for his mental condition. The ALJ concluded, and appellants agree in their brief, that “the source of [Wilson’s] major depressive disorder [is] his injury caused inability to return to work and provide for his family, and the idea that he has been afflicted by his on the job injury with a back disorder which is similar to a back disorder which he believes caused his father’s death.” As found by the ALJ, this mental condition “manifests itself as continued complaints of severe back, leg, and arm pain.” The evaluation from Dr. Dixon further indicates that Wilson’s psychiatric disability began when he was injured in July 1994 and “[he] has gotten progressively depressed since then.”

We find sufficient evidence in the record that Wilson’s physical back injury brought on and contributed to the continuation of his psychological disorder. The cases cited by appellants are distinguishable and do not require a different decision. In W. W. Fowler Oil Co. v. Hamby, 192 Ga. App. 422 (385 SE2d 106) (1989); Williams v. ARA Environmental Svcs., 175 Ga. App. 661 (334 SE2d 192) (1985); Hanson Buick v. Chatham, 163 Ga. App. 127 (292 SE2d 428) (1982); and Brady v. Royal Mfg. Co., 117 Ga. App. 312 (160 SE2d 424) (1968), the claimants’ psychological disorders were not connected to a prior physical injury. In contrast, evidence in the record indicates that Wilson initially suffered “a muscular strain of his back muscles,” at which point his psychological disorder began and continued to worsen. Appellants’ citation to ITT Continental Baking Co. v. Comes, 165 Ga. App. 598 (302 SE2d 137) (1983) (physical precedent only), is similarly unhelpful. In Comes, the Court stated that mild depression and anxiety “[cannot] reasonably be characterized as a mental or nervous disorder.” 165 Ga. App. at 599. Wilson, however, was diagnosed as having a “[m]ajor depressive disorder,” not mild depression or anxiety.

Based on the any evidence standard, the superior court did not err in affirming the award of workers’ compensation benefits in this case. See George, supra. Accordingly, appellants’ first enumeration of error has no merit.

2. In their second enumeration of error, appellants argue that because Atlas legitimately refused to authorize treatment by Dr. Dixon, the superior court erred in affirming the assessment of a $500 civil penalty against Atlas. More specifically, appellants claim that because Wilson’s psychological problems were not compensable, Atlas acted appropriately in denying the referral. As we found in Division 1, however, the superior court properly affirmed the award of workers’ compensation benefits for Wilson’s psychological condition. Accordingly, appellants’ argument has no merit.

3. Finally, appellants argue that the superior court erred in affirming the award of attorney fees to Wilson. Appellants do not challenge the ALJ’s conclusion that Atlas violated OCGA § 34-9-221 (i) by failing to provide Wilson with ten days notice of suspension of benefits, thus authorizing an award of attorney fees. See OCGA § 34-9-108 (b) (2). Instead, they claim that the amount of the award, 25 percent of benefits paid or payable to Wilson, is improper because it permits continuing add-on attorney fees relating to future benefit payments.

Under OCGA § 34-9-108 (b) (2), “[i]f any provision of Code Section 34-9-221, without reasonable grounds, is not complied with and a claimant engages the services of an attorney to enforce his or her rights under that Code section and the claimant prevails, the reasonable quantum meruit fee of the attorney, as determined by the board, and the costs of the proceedings may be assessed against the employer” (Emphasis supplied.) At the hearing before the ALJ, Wilson tendered into evidence the fee contract with his attorney, which required him to pay his attorney ££[t]wenty-five percent (25%) of the gross amount of weekly benefits recovered for me.” Pursuant to Rule 108 (b) (6) of the State Board of Workers’ Compensation, Wilson’s attorney further stated in his place that “I have been practicing before the Board for approximately twenty years and I’m familiar with the facts of this case, the amount of work and hours that have been involved, and I think the fee contract that I have on file with the Board which reflects a contingency fee of twenty-five per cent is a reasonable fee in this instance. . . .” Appellants did not raise any question about, object to, or cross-examine Wilson’s attorney about the reasonableness of the fee or the fee contract.

As we have previously found, ££[p]roof of the express contract between the parties ‘affords prima facie proof of the value of the services rendered, and as such is properly received in evidence even when recovery is sought upon quantum meruit and not upon the contract.’ [Cits.]” G. Carbonara & Co. v. Helms, 205 Ga. App. 547, 548 (423 SE2d 36) (1992). Furthermore, “ ‘(attorneys are officers of the court and their statements in their place, if not objected to, serve the same function as evidence. (Cits.)’ ” Ga. Bldg. Svcs. v. Perry, 193 Ga. App. 288, 300 (6) (387 SE2d 898) (1989); see also Hardee’s v. Bailey, 180 Ga. App. 332, 333 (2) (349 SE2d 211) (1986). The undisputed evidence in the record establishes the 25 percent contingency fee as a reasonable fee based upon the time involved and services performed. Appellants did not question or object to the reasonableness of this fee below. Thus, we conclude that the superior court properly upheld this award as a reasonable quantum meruit fee recoverable under OCGA § 34-9-108 (b) (2). See Bennett-Murray, Inc. v. Barnes, 222 Ga. App. 137, 139 (2) (473 SE2d 166) (1996). Accordingly, this enumeration of error has no merit.

Decided February 28,1997

Reconsideration denied March 21,1997

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

Vansant, Corriere & McClure, Alfred N. Corriere, for appellee.

Judgment affirmed.

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