text:
    A97A1295.
    OXENDINE v. COMMISSIONER OF INSURANCE OF NORTH CAROLINA. OXENDINE v. FICA MARKETING, INC. OXENDINE v. FICA MARKETING, INC. et al.
    A97A1296.
    A97A1380.
    (494 SE2d 545)
   Birdsong, Presiding Judge.

These appeals have been consolidated for appellate review because they arise from proceedings concerning the insolvency of Coastal States Life Insurance Company. When Coastal States first appeared in financial difficulty, the Georgia Commissioner of Insur-anee, under OCGA § 33-37-10, initiated a court-approved rehabilitation plan to restore the company to financial health. In that process, the Georgia Commissioner agreed to settle the claims which are the subject of this litigation. Unfortunately, the plan apparently was based upon an unrealistic projection of Coastal States’ financial condition. As a result, the Georgia Commissioner of Insurance, under OCGA § 33-37-15, stepped in and forced the liquidation of Coastal States.

In liquidation proceedings of an insurance company, payment of the company’s obligations are made in the following order under a classification of claims based upon statute: administrative expenses of the liquidation, wages, claims of policyholders, and claims of general creditors. OCGA § 33-37-41. These appeals concern whether and in what priority certain claims should be paid.

The Commissioner of Insurance of North Carolina’s claims arose from the liquidation of Twentieth Century Life Insurance Company in North Carolina. The North Carolina Commissioner brought an action in federal court against the owners of Coastal States and Coastal States seeking restitution of over $1,700,000 that the North Carolina Commissioner alleged was taken from Twentieth Century and used as the down payment for the purchase of Coastal States. The original plan for rehabilitation of Coastal States provided for settlement of the federal action in return for. periodic payments by Coastal States. Payments under the settlement were made, but when the liquidation of Coastal States was deemed necessary, the Georgia Commissioner of Insurance decided the payments should cease.

The claims of FICA Marketing, Inc., also arise from agreements reached in the first rehabilitation plan. The owners of FICA Marketing were also the owners of Coastal States. As part of the rehabilitation plan, a marketing agreement between FICA Marketing and Coastal States was canceled, and in return Coastal States was to pay the marketing fees which would otherwise become due under that agreement. When liquidation of Coastal States was deemed necessary, the Georgia Insurance Commissioner also decided to stop payments under this settlement.

FICA Marketing and the North Carolina Commissioner both claim the right of immediate payment under the initial rehabilitation claim without regard to the priorities established in OCGA § 33-37-41. In the alternative, both assert priority Class 1 claims under the statute. Although the Georgia Insurance Commissioner concedes that the North Carolina Insurance Commissioner has a valid claim, he contends that the claim is only a Class 4 general creditor priority claim. In regard to the FICA Marketing claim, the Georgia Insurance Commissioner disputes both the allowance of the claim and its priority above a general creditor priority Class 4 claim.

When these claims were submitted to the superior court supervising the liquidation of Coastal States, that court determined the claims should be paid. The lower court found that the North Carolina claims were actual and necessary costs of preserving the assets of Coastal States and that the Georgia Commissioner had already paid some of the money owed under the agreements. The lower court further determined that the FICA Marketing claims should be paid because the Georgia Commissioner agreed to pay the fees.

The Georgia Commissioner of Insurance contends the trial court erred by awarding FICA Marketing payment of marketing fees; erred by denying a right of set-off for payments made earlier; erred by holding that the claims of FICA Marketing and the North Carolina Commissioner of Insurance were not subject to prioritization under OCGA § 33-37-41; erred by holding that the claims of the North Carolina Commissioner of Insurance and FICA Marketing were entitled to Class 1 administrative priority; erred by refusing to classify the claims of the North Carolina Commissioner of Insurance and FICA Marketing as Class 4 general creditor claims under OCGA § 33-37-41; erred by entering a monetary judgment against Coastal States; erred by awarding 12 percent interest in the FICA Marketing judgment; and erred by holding that the Georgia Commissioner of Insurance had tendered to the North Carolina Commissioner of Insurance payments of $125,000 and $50,000. Held:

1. The trial court’s decisions in these appeals must be reversed. The National Association of Insurance Commissioners created the Life & Health Insurance Guaranty Association Model Act and the Insurers Rehabilitation & Liquidation Model Act to help coordinate the rehabilitation and liquidation of insurance companies in multi-state insolvencies and to ensure uniformity in the handling of insurance insolvencies. Georgia has adopted these model acts with some modifications in OCGA § 33-37-1 et seq. and OCGA § 33-38-1 et seq.

Under these statutes, the Georgia Commissioner of Insurance has primary responsibility for administering an insolvency. See OCGA §§ 33-37-55; 33-37-57. The trial court’s decisions are inconsistent with the comprehensive nature of these model acts’ scheme of distribution of the assets of an insolvent insurance company.

(a) The central issue in these appeals is whether parties who would otherwise be general creditors of an insurance company with Class 4 priority claims can convert their claims to Class 1 priority claims by agreeing with the rehabilitator appointed under OCGA § 33-37-11 to compromise their claims against the insurance company during the rehabilitation process. Appellees argue that by reaching such agreements their claims become costs and expenses of administration during rehabilitation and liquidation because the Georgia Insurance Commissioner, by settling their claims, in effect, preserved the assets of the estate. Such a reading is not authorized by the plain terms of OCGA § 33-37-41 (1). Class 1 claims clearly concern “costs and expenses of administration.” No reasonable definition of “costs” or “expenses” can include the claims which appellees assert. These claims are for money which appellees claim from Coastal States’ estate and not administrative costs or expenses incurred. “In construing a legislative act, a court must first look to the literal meaning of the act. [Cit.] If the language is plain and does not lead to any absurd or impractical consequences, the court simply construes it according to its terms and conducts no further inquiry.” Diefenderfer v. Pierce, 260 Ga. 426 (396 SE2d 227). Construing the statute in that manner leaves no room for the strained construction of “costs and expenses” which appellees would have us adopt. Statutory construction “must square with common sense and sound reasoning.” Tuten v. City of Brunswick, 262 Ga. 399, 404 (7) (a) (i) (418 SE2d 367).

(b) Although the trial court found that these claims could be paid without regard to OCGA § 33-37-41, we find no support for that position. The Code section then in effect provided that the “priority of distribution of claims from the insurer’s estate shall be in accordance with the order as set forth in this Code section.” OCGA § 33-37-41. The General Assembly’s intent in this regard is made more certain in the current version of OCGA § 33-37-41: “For all pending and future claims in insolvencies existing on July 1, 1997, and for all claims in future insolvencies, the priority of distribution of claims from the insurer’s estate shall be in accordance with the order as set forth in this Code section.” (Emphasis supplied.) Therefore, because appel-lees’ claims were against the estate of Coastal States, the trial court was not authorized to create a new class of claims with a greater priority than those stated in OCGA. § 33-37-41. Further, we do not find it significant that the Georgia Commissioner of Insurance was a party to these agreements. Participation by the Commissioner of Insurance is an expected result from the nature of rehabilitation proceedings under OCGA § 33-37-11. If any action by the Commissioner of Insurance on a claim or lawsuit in a rehabilitation proceeding were sufficient to create claims with some special priority, then any claim against the insurer’s estate, which arose from an action taken during a rehabilitation resulting in a settlement approved by the Commissioner of Insurance, would also have this same special classification. The effect of such a system would be to render meaningless the priority of claims established in OCGA § 33-37-41. Statutes are to be construed in accordance with their real intent and meaning and not so strictly as to defeat the legislative purpose. Johnson v. Housing Auth. of Atlanta, 198 Ga. App. 816, 817 (403 SE2d 97). Further, statutes should be read according to their natural and most obvious import of the language without resorting to subtle and forced constructions for the purpose of either limiting or extending its operation. Burbridge v. Hensley, 194 Ga. App. 523, 524 (391 SE2d 5). Reading these Code sections as we must, we are compelled to find that the lower court erred by finding that these claims were entitled to a special priority of payment. We also do not find that the provision in the agreement stating that FICA Marketing “will be paid” the marketing fees or the fact that the agreement was incorporated into the court-approved rehabilitation plan is sufficient to give this debt a special category.

Decided December 2, 1997

Thurbert E. Baker, Attorney. General, Brenda H. Cole, Deputy Attorney General, Morris, Manning & Martin, Lewis E. Hassett, William J. Sheppard, for appellant.

Carr, Tabb & Pope, W. Pitts Carr, Hezekiah Sistrunk, Jr., Edwin J. Schklar, Michael S. Bailey, for appellees.

Hicks, Maloof & Campbell, Henry F. Sewell, Jr., amicus curiae.

2. In view of our disposition of these appeals in Division 1, supra, the Commissioner’s remaining enumerations of error are moot. Accordingly, the trial court’s judgments, insofar as they are affected by these appeals, are reversed and the cases remanded to the trial court for further proceedings as required as part of the liquidation proceeding to determine what amount, if any, is now owed appellees.

Judgment reversed with direction.

Ruffin and Eldridge, JJ, concur.


source: Caselaw Access Project

author: Beasley, Judge. McMurray, Presiding Judge,

license: Public Domain

text:
    A97A1586.
    VANCE et al. v. T. R. C. et al. BABY BOY C. v. VANCE et al.
    A97A1587.
    (494 SE2d 714)
   Beasley, Judge.

T. R. C., a minor, brought an action against Dr. Luther Vance, Jr. and his professional corporation for damages arising from his failure to report T. R. C.’s herpes as sexual abuse under OCGA § 19-7-5. T. R. C. subsequently became pregnant and bore a baby boy, who also filed suit against Vance to recover for his stigma of illegitimacy. The trial court granted Vance summary judgment on the baby’s claims, but denied summary judgment on T. R. C.’s claims. All claims were subject to summary judgment.

Following an accident incapacitating her mother, T. R. C. and her siblings were placed with Mr. and Mrs. Anderson for foster care in 1985. When T. R. C. turned nine, Mr. Anderson began fondling her, and when she turned twelve, he began having sexual intercourse with her. Open lesions appeared in her perineal area, and on September 14, 1993, Mrs. Anderson took T. R. C. (then age 13) to Vance for treatment.

Vance clinically diagnosed her ailment as genital herpes, a sexually-transmitted disease. Although the testimony conflicts as to what conversations occurred during this visit, it is undisputed Vance asked Mrs. Anderson whether T. R. C. was sexually active. Mrs. Anderson claims she responded she knew of no sexual activity. It is undisputed that Dr. Vance informed T. R. C. she had contracted the disease through sexual contact. Despite his insistence that he knew she was having sex, and despite his repeated inquiries as to when she had last had sex, T. R. C. adamantly denied any sexual experiences.

She claims that eventually she told the doctor she had had sex the previous March (just before her thirteenth birthday), but she did not disclose the identity or age of the male. Vance prescribed medication to treat the herpes and had his office schedule a follow-up appointment for the next week. Mrs. Anderson, who does not remember whether the second appointment was ever made, did not bring T. R. C. back for any follow-up care, and Vance did not have his office call Mrs. Anderson to reschedule the missed appointment. The medication cured the lesions within a week.

Vance did not report the herpes to any public agency, nor did he report sexual abuse to any child welfare agencies. According to his testimony, he believed the herpes arose from consensual sexual activity with peers because his experience taught him that a certain percentage of the 13-year-old population engages in consensual sexual activity. Also, he testified that when he asked Mrs. Anderson about T. R. C.’s sexual activity, she responded T. R. C. had been escaping through her bedroom window at night. Mrs. Anderson denies she told this to Vance, but she did suspect T. R. C. of having sex with her peers prior to the visit to Vance. T. R. C. denies any sexual activity outside of Mr. Anderson.

Eight months after the visit to Vance, T. R. C. became pregnant by Mr. Anderson, resulting in the birth of Baby Boy C. He has been adopted by another family.

Case No. A97A1586

T. R. C. alleges three grounds for her claims of negligence against Vance: (1) he breached the statutory duty imposed on him in OCGA § 19-7-5 to report she was being sexually abused; (2) he breached a common law duty to report and prevent the sexual abuse; (3) he breached the duty imposed by OCGA § 31-12-2 to report her herpes to the health department. The injury alleged is that had Vance made the required reports, sexual abuse would have ceased and the pregnancy would have been prevented.

1. OCGA § 19-7-5 requires a physician who has reasonable cause to believe a child has been abused to report the abuse to a child welfare agency. Although abuse includes inducing or coercing a minor to engage in sexual activity, it does not include “consensual sex acts involving persons of the opposite sex when the sex acts are between minors.” OCGA § 19-7-5 (b) (3.1). This exception became effective July 1, 1993. Ga. L. 1993, p. 1695, § 1; OCGA § 1-3-4 (a). A knowing and wilful failure to make a mandated report of abuse is a misdemeanor. OCGA § 19-7-5 (h).

(a) Even if Vance violated this statute, the court in Cechman v. Travis, 202 Ga. App. 255, 256 (1) (414 SE2d 282) (1991), held this statute does not create a civil cause of action in favor of the abused child. Cechman affirmed summary judgment in favor of the physician.

T. R. C. urges us to overrule Cechman, arguing that the rationale for refusing to interpret criminal statutes to create civil causes of action is similar to the waning rationale for the public duty doctrine. Under this doctrine, a municipality cannot be sued for the negligent performance of its duties owed to the public at large, unless there is a special relationship between the individual and the municipality giving rise to a special duty owed to that particular individual. City of Rome v. Jordan, 263 Ga. 26, 27-29 (1) (426 SE2d 861) (1993). Recently, the Supreme Court of Georgia clarified that this immunity applies only to the performance of police protection. See Hamilton v. Cannon, 267 Ga. 655, 656 (1) (482 SE2d 370) (1997); Dept. of Transp. v. Brown, 267 Ga. 6, 8-9 (3) (471 SE2d 849) (1996).

Regardless of whether Brown and Hamilton “undermine” the rationale for the public duty doctrine, Cechman’s holding that OCGA § 19-7-5 does not create a civil cause of action had nothing to do with Jordan’s public duty doctrine or its rationale. The decision in Jordan “was directed squarely and only at the duty owed by a governmental entity to provide police protection to individual citizens.” Brown, supra, 267 Ga. at 8. A private physician’s duty to report child abuse is not analogous.

Cechman paraphrased Cox Broadcasting Corp. v. Cohn, 231 Ga. 60, 61-62 (I) (200 SE2d 127) (1973), rev’d on other grounds, 420 U. S. 469 (95 SC 1029, 43 LE2d 328) (1975), which did not find in the penal statutes there at issue the creation of any civil cause of action for damages. This rationale, which is independent of the public duty doctrine, remains extant, as illustrated by the post-Cox cases cited in Cechman.

It is true that the legislature expressly provided that the reporting statute be liberally construed to effect its humane child protection purposes. OCGA § 19-7-5 (a). It imposes a duty on an extensive list of persons who, in the practice of their professions, are likely to discover evidence of child abuse. Good faith reporting of a belief that a child is abused is declared immune from civil (or criminal) liability, OCGA § 19-7-5 (f), but nothing within the provision of the law purports to create, or indicates an intention to create, a private cause of action in tort in favor of a child whose abuse is not detected or reported. Cf. Rolleston v. Huie, 198 Ga. App. 49, 50 (2) (400 SE2d 349) (1990) (same analysis regarding OCGA § 16-8-16); Doyle Dickerson Co. v. Durden, 218 Ga. App. 426, 428 (461 SE2d 902) (1995) (nothing in criminal statute makes explicit provision for creation of private right; violation of penal statute does not automatically give rise to civil cause of action). The focus is on the positive act of reporting; it is encouraged, nay compelled, on pain of criminal penalty on the one hand and on immunity from civil liability on the other hand. Nothing is said about civil liability for the failure to report, i.e., inaction.

The purpose of the statute is “to prevent further abuses, to protect and enhance the welfare of these children, and to preserve family life wherever possible.” OCGA § 19-7-5 (a). It is not, therefore, to provide monetary damages to the injured child from a care provider who is not even remotely the cause of the abuse. See Shaw v. Cook County Fed. &c. Assn., 139 Ga. App. 419, 421 (228 SE2d 326) (1976) (private right of action not implied in statute because not in furtherance of statute’s purpose). The question of legislative intent must be resolved in this instance, as in Tingle v. Arnold, Cate & Allen, 129 Ga. App. 134, 137 (3) (199 SE2d 260) (1973), by concluding that “the legislature did not intend to create a private cause of action by the statute.”

The ramifications of creating a tort liability must be weighed against the consequences of resultant potential over-reporting. This is a legislative task which either has been fulfilled by the choice for criminal law liability instead, or has yet to be done if and when the legislature determines to undertake it.

(b) Assuming OCGA § 19-7-5 did create a private cause of action in tort, no viable claim would exist in this case. Cechman states that the “statute requires that notice be given only by those physicians ‘having reasonable cause to believe that a child has been abused’ and it penalizes only those physicians ‘who knowingly and willfully’ fail to do so. It does not require that notice be given by those physicians ‘who should have had reasonable cause’ to suspect child abuse and it does not penalize those physicians ‘who fail to discover and report’ suspected instances of child abuse.” (Emphases omitted.) 202 Ga. App. at 256.

In Cechman the physician found three red marks on the chest of the child. The parent was vague as to the cause of the injury. Experts testified that the physician should have ordered X-rays, which would have shown evidence of trauma indicating child abuse. “The only contention is that if [the doctor] had conducted the examination of the child differently, she would then have had the requisite reasonable cause to suspect child abuse and would then have been required to report her suspicion in that regard. OCGA § 19-7-5 clearly does not purport to establish the actual discovery of reportable suspected child abuse as a standard of medical conduct.” (Emphases omitted.) Id. at 256-257.

Just as the injury in Cechman could have been caused by trauma not associated with child abuse, T. R. C.’s herpes reasonably could have been caused by consensual sexual contact with peers, which under the statute does not constitute reportable abuse. OCGA § 19-7-5 (b) (3.1). The evidence is uncontroverted that Vance subjectively believed this was the cause of her herpes. Even if her herpes did result from abuse, such is insufficient grounds to hold Vance violated the statute by not discovering it through further investigation. “OCGA § 19-7-5 merely mandates the reporting of suspected child abuse by a physician ‘having reasonable cause to believe that (the) child has been abused. . . .’ ” 202 Ga. App. at 257. The law draws a line between intervention and interference.

T. R. C. argues that based on hér experts’ affidavits the presence of herpes in a child of 13 was in itself reasonable grounds to suspect child abuse. Yet similar testimony submitted in Cechman relative to the three red marks treated by the physician was insufficient to create a duty. It is undisputed that reasonable non-abusive explanations existed for the symptoms in both T. R. C. and the Cechman child, and that Vance’s previous experience in delivering twins to a 13-year-old, as well as other evidence of consensual sex among this age group, gave him substantial reason not to conclude there was abuse indicated here. He could not be expected to speculate that abuse is occurring and to report it at the risk of being accused of not acting in good faith. See OCGA § 19-7-5 (f). We have no basis to impose a higher standard of reporting than established in OCGA § 19-7-5, a violation of which requires a knowing and wilful refusal by the physician to report. The court erred in denying summary judgment on the OCGA § 19-7-5 claim.

2. Summary judgment was also warranted on the claim for common law medical malpractice. To establish liability, T. R. C. must show Vance breached “a legal duty to afford [her] non-negligent medical treatment and an injury to [her] proximately resulting from a breach of that legal duty would be actionable.” Cechman, 202 Ga. App. at 257.

Vance was called upon to exercise his professional skills to treat T. R. C.’s lesions, which he successfully did. There is no contention that her subsequent pregnancy and abuse resulted from Vance’s treatment of that particular condition, and the physician was not responsible to determine why the patient failed to keep the follow-up appointment. See Ward v. Emanuel County Bd. of Health, 218 Ga. App. 382, 384 (461 SE2d 559) (1995). As in Cechman, “[t]he only [other] contention is that [Vance] failed to discover and report that the ultimate non-medical source of the child’s medical condition was suspected child abuse, with the result that the child was not removed from her home and was subsequently [impregnated] by her abusive father. Thus, the immediate instrumentality of the child’s [pregnancy] was her own abusive father, not the particular medical condition which [Vance] had been called upon to treat. The contention is, therefore, that [Vance] owed not only a common law legal duty to afford non-negligent treatment of the child’s immediate medical condition, but also owed a common law legal duty to discover and report the non-medical source of the child’s medical condition so as to prevent her subsequent reinjury by her abusive father.” (Emphases omitted.) Id. at 257-258.

As stated in Cechman, “ ‘[generally, a person does not have a duty to control the conduct of another person, who is a potential tortfeasor, so as to prevent that person from harming a third person, unless “(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or (b) a special relation exists between the actor and the other which gives to the other a right to protection.” ’ ” (Citations and punctuation omitted.) Id. at 258.

There was no “special relation” of control between Vance and Mr. Anderson, whose only connection was a physician-client relationship (and even then Mr. Anderson had not seen Vance for over a year) and an independent contractor relationship whereby Mr. Anderson cleaned Vance’s medical office twice a week after hours. Neither relationship gave Vance any control over Mr. Anderson’s behavior toward T. R. C. See Bradley Center v. Wessner, 250 Ga. 199, 201-202 (296 SE2d 693) (1982); Keppler v. Brunson, 205 Ga. App. 32 (421 SE2d 306) (1992) (“physician must have control over the . . . patient”).

Nor was there a special relation between Vance and T. R. C. by which she acquired a right to be protected by Vance from harm by Mr. Anderson. Cechman held that the physician-client relationship gives one only the right to non-negligent treatment of the medical condition and does not impose “upon the physician, who merely failed to discover and report suspected child abuse, a legal liability to the child for future acts of child abuse.” (Emphases omitted.) 202 Ga. App. at 258. The physician was entitled to summary judgment on this ground as well.

3. The foundation of the third ground, OCGA § 31-12-2, requires diseases designated by the Department of Human Resources to be reported. In 1993, herpes was one of the diseases. Uncontroverted testimony from a representative of the department established that “Public Health Intervention was not carried out for these cases, either for the patient who had or was suspected of having herpes, or said patient’s suspected sex partners.” The department would not have contacted the patient, the police, or the Department of Family & Children Services, which oversees foster care. The reporting was purely for statistical purposes, and as of 1996 herpes was removed from the list. Vance’s failure to report the disease under this statute did not cause any injury to T. R. C. Summary judgment as to all grounds is mandated.

Case No. A97A1587

4. Baby Boy C.’s grandmother, Lucille Harris, brought a claim on his behalf as his grandmother and next friend, for injuries arising from his being born as an illegitimate child, conceived in the rape of a child. As grandmother, she lacks standing because he has been adopted and therefore her legal relationship as grandmother has been terminated. OCGA § 19-8-19 (a) (1). But any person appointed or recognized by the court may serve as next friend. Sanders v. Hilton, 171 Ga. 702, 707 (2) (156 SE 812) (1931).

Standing or no, the claim is not cognizable under Georgia law. There is no cause of action based on parentage or circumstances of conception. Related to this issue is Atlanta Obstetrics &c. Group v. Abelson, 260 Ga. 711, 713 (398 SE2d 557) (1990). It held that an action brought on behalf of an impaired child alleging that, but for negligent treatment, the child would never have been born, is an action for “wrongful life” and does not state a claim. See Gale v. Obstetrics &c. of Atlanta, 213 Ga. App. 614, 615 (1) (445 SE2d 366) (1994). The Supreme Court quoted in Abelson: “Whether it is better never to have been born at all than to have been bom with even gross (impairments) is a mystery more properly left to the philosophers and theologians. Surely the law can assert no competence to resolve the issue, particularly in view of the very nearly uniform high value which the law and mankind has placed on human life, rather than its absence. . . . Simply put, a cause of action brought on behalf of an infant seeking recovery for wrongful life demands a calculation of damages dependent upon a comparison between the Hobson’s choice of life in an impaired state and nonexistence. This comparison the law is not equipped to make. [Cit.]” Abelson, 260 Ga. at 714, fn. 4.

Baby Boy C.’s efforts to distinguish his claim from a “wrongful life” action fail. He claims that he is happy to be alive but simply unhappy with his societally-imposed illegitimate status. The act that gave him life concomitantly made him illegitimate. As conceded in the complaint, had Vance alerted authorities and had T. R. C. been removed from the Anderson home before Baby Boy C.’s conception, he would not have been born, illegitimate or otherwise. The jury would be required to compare his life as an illegitimate child to nonexistence. “An action brought by a child against the . . . physician on the theory that because of his illegitimacy . . . he would have been better not born has found almost no support in the law.” Fulton-DeKalb Hosp. Auth. v. Graves, 252 Ga. 441, 442 (1) (314 SE2d 653) (1984); see Williams v. State, 223 NE2d 343, 344 (N.Y. 1966) (“Being born under one set of circumstance[s] rather than another or to one pair of parents rather than another is not a suable wrong”); Curlender v. Bio-Science Laboratories, 165 Cal. Rptr. 477, 486 (App. 1980) (“a cause of action based upon . . . illegitimacy contrasted with legitimacy[] should not be recognizable at law”). To allow a cause of action to proceed on the grounds presented would belittle his worth as a person.

Mercifully, Baby Boy C. has been adopted into another family and enjoys “every right and privilege of a biological child” of his new parents. OCGA § 19-8-19 (a) (2). He may never know the circumstances of his birth. The trial court properly granted summary judgment on the claims asserted in his behalf.

Judgment affirmed in Case No. A97A1587. Judgment reversed in Case No. A97A1586.

Andrews, C. J., Birdsong, P. J., Smith, Ruffin and Eldridge, JJ, concur. McMurray, P. J., dissents.

McMurray, Presiding Judge,

dissenting.

I respectfully dissent because I cannot go along with the majority’s misplaced confidence on the factually distinguishable panel decision in Cechman v. Travis, 202 Ga. App. 255 (414 SE2d 282). The majority’s holding in the case sub judice legislates more than the Code section defines and undermines the legislature’s stated goal to protect “children whose health and welfare are adversely affected and further threatened by the conduct of those responsible for their care and protection.” OCGA § 19-7-5 (a). Because two expert physicians, Dr. Robert Carlton Cater and Dr. David Krugman, deposed that Dr. Vance’s relationship as T. R. C.’s physician (a doctor charged with the care of a 13-year-old child under foster care) imposed professional responsibility and trust upon Dr. Vance inclusive and apart from those prescribed in OCGA § 19-7-5, and because these physicians opined that Dr. Vance breached his duty by failing to report the sexual activity which resulted in T. R. C.’s pregnancy and Baby Boy C.’s birth, I believe genuine issues of material fact remain, for determination by a jury and not this Court, as to Dr. Vance’s liability for failing to report the sexual contact T. R. C. endured (whether consensual or not) while the child was under State supervised foster care.

Decided December 2, 1997

Jones, Cork & Miller, Thomas C. Alexander, Sharon H. Reeves, for appellants.

Butler & MacDougald, Larry K. Butler, Daniel MacDougald III, for appellees.


author: Birdsong, Presiding Judge. Eldridge, Judge,

text:
    A97A2532.
    TRUCKSTOPS OF AMERICA, INC. et al. v. ENGRAM.
    (494 SE2d 709)
   Birdsong, Presiding Judge.

We granted this discretionary appeal to determine whether the workers’ compensation award in question was void as it resulted from a superior court order entered after the court lost jurisdiction over the matter. This appeal concerns whether an amendment to a statute can affect a workers’ compensation award which was affirmed by operation almost a year before the effective date of the amendment.

Pinkie Engram was employed as a waitress by Truckstops of America, Inc., until she was fired in February 1994 for allegedly stealing money. During her employment, Engram had received workers’ compensation benefits for work-related knee injuries, and after her termination she sought recommencement of total disability benefits based upon a change in condition. The ALJ initially awarded her benefits, but the Appellate Division reversed the award for total disability benefits on the grounds that Engram had not satisfied her burden of proof, and awarded her only temporary partial disability benefits.

The superior court found that the Appellate Division had imper-missibly conducted a de novo review instead of merely determining whether the award was supported by a preponderance of the competent and credible evidence, and reinstated the ALJ’s award. On appeal, this Court agreed that the Appellate Division applied the incorrect standard of review but found that the superior court should have remanded the matter to the Appellate Division with instructions to apply the proper standard. Truckstops of America v. Engram, 220 Ga. App. 289 (469 SE2d 425) (1996).

Pursuant to that remand, on May 14, 1996, the Appellate Division again denied Engram’s claim for additional compensation, on the ground that she had not met her burden of proving a change in condition as set forth in Maloney v. Gordon County Farms, 265 Ga. 825 (462 SE2d 606) (1995). Engram timely filed a notice of appeal from that denial on June 3, 1996, and the superior court, which did not hold a hearing in the matter until August 16,1996, issued a decision on September 5, 1996, again reversing the Appellate Division and reinstating the ALJ’s award. (Truckstops never sought discretionary appeal allegedly because it was not notified of the superior court’s decision until after the time for seeking appeal had expired.)

On January 28, 1997, the Appellate Division entered a decision adopting the ALJ’s award as required by the superior court’s order. Truckstops then appealed that award, but on April 29, 1997, the superior court upheld the determination. The superior court also denied Truckstops’s motion to dismiss the earlier appeal which asserted that the Appellate Division’s decision of May 14, 1996, was affirmed by operation of law because of the superior court’s failure to hear the matter within the prescribed time period. Held:

At the time of the appeal of the Appellate Division’s decision on May 14, 1996, OCGA § 34-9-105 (b) provided that “if the court does not hear the case within 60 days from the date the notice of appeal is filed with the board, the decision of the board shall be considered affirmed by operation of law unless a hearing originally scheduled to be heard within the 60 days has been continued to a date certain by order of the court.” In this case, it is undisputed that the superior court did not hold or set a hearing within 60 days after the notice of appeal was filed from the Appellate Division’s decision of May 14,

1996. Nevertheless, the superior court rejected Truckstops’s contention that the Appellate Division’s decision of May 14, 1996, was affirmed by operation of law, because the failure to hold a hearing within the required time was caused by the court’s busy schedule and not the claimant.

However, “[rjegardless of whose fault it was or what caused the delay, the court lost jurisdiction of the case” 60 days after the notice of appeal was filed from the board’s decision of May 14, 1996. Synthetic Indus. v. Camp, 196 Ga. App. 637 (396 SE2d 518) (1990). “The statutory scheme imposes a burden on the appellant to assure that the time limitations are met. The superior court having lost jurisdiction by operation of law, its [subsequent] order was a nullity. . . .” Id.

Although OCGA § 34-9-105 (b) was amended effective July 1, 1997, to give the superior court 60 days from the date the appeal is docketed in which to schedule a hearing, that amended statute may not be retroactively applied to this case. As noted by the dissent, statutes generally prescribe for the future unless a contrary intention is shown, but statutes that affect only procedures of the court are given retroactive effect absent an express contrary intention. Polito v. Holland, 258 Ga. 54 (365 SE2d 273) (1988). However, even “ £[s]tatutes relating to procedure or legal remedies are undoubtedly within the general rule against retrospective construction where the effect of giving them a retroactive operation will be to . . . disturb vested rights.’ ” Seaboard Air-Line R. Co. v. Benton, 175 Ga. 491, 499 (165 SE 593) (1932). If retroactive application of a procedural statute “ ‘would divest any right of property that had already accrued, it should be construed to operate prospectively only. . . .’” Id.

“To be vested, in its accurate legal sense, a right must be complete and consummated, and one of which the person to whom it belongs cannot be divested without his consent. A divestible right is never, in a strict sense, a vested right. It has also been said that the term vested rights, which cannot be interfered with by retrospective laws, means interests which it is proper for the state to recognize and protect and of which the individual cannot be deprived arbitrarily without justice.” (Citations and punctuation omitted.) Goldrush II v. City of Marietta, 267 Ga. 683, 694 (482 SE2d 347) (1997).

In the instant case, the Appellate Division’s award of May 14, 1996, became affirmed by operation of law on August 2, 1996 (60 days after the notice of appeal was filed), and became unappealable on September 3, 1996, when the time for filing a discretionary application expired. There should be no prohibition to applying the amended OCGA § 34-9-105 (b) to any case that was in the process of being appealed to or was pending before the superior court on the effective date of the amendment, but the amended statute may not be retroactively applied to divest the employer of an award that had become final almost a year before the effective date of the statute.

As the Appellate Division’s award of May 14, 1996, was affirmed by operation of law under OCGA § 34-9-105 (b), and as no timely appeal of the affirmance was sought, that award remains in full force and effect. All subsequent orders of the superior court, and the Appellate Division’s award entered on January 28, 1997, are nullities. Accordingly, the superior court’s judgment of April 29, 1997, is reversed, and this matter is remanded to the superior court with direction to issue an order confirming the Appellate Division’s decision of May 14, 1996.

Judgment reversed and remanded.

Andrews, C. J., Pope, P. J., Johnson, Blackburn and Ruffin, JJ., concur. Eldridge, J., dissents.

Eldridge, Judge,

dissenting.

I must respectfully dissent.

Truckstops of America, Inc., the employer, contends that the Superior Court of Glynn County’s order of September 5, 1996 was void, because the superior court lost subject matter jurisdiction by operation of law 60 days after the Appellate Division’s order became final on May 14, 1996, which date for the automatic affirmance by operation of law would be July 13, 1996. Specifically, the employer attacks the validity of the September 5, 1996 order of the superior court, which remanded the claim back to the Appellate Division; it attacks the superior court’s order of April 29, 1997, which affirmed the new award of the Appellate Division, following the remand order of September 5, 1996, because such subsequent order was the indirect product of the earlier order, which it contends was void ab initio. The employer never appealed the September 5, 1996 order, because it asserted that it did not receive notice of the order within the time to seek a discretionary appeal and waited until it had a final order from which to seek discretionary appeal.

Workers’ compensation procedures and administration are executive branch functions under the separation of powers doctrine. Ga. Const. 1983, Art. I, Sec. II, Par. III. Whatever subject matter jurisdiction that a superior court or appellate court has must be granted by the General Assembly. Under OCGA § 34-9-105 (b), the superior court has a 60-day window of opportunity to rule on an appeal unless the claim is set for hearing and then continued within the statutory guidelines; the court loses subject matter jurisdiction to rule on the case outside such time period. Synthetic Indus. v. Camp, 196 Ga. App. 637 (396 SE2d 518) (1990); see also Borden, Inc. v. Holland, 212 Ga. App. 820, 822 (1) (442 SE2d 916) (1994).

The purpose of OCGA § 34-9-105 (b) was to remedy a problem in the superior courts where some trial judges had allowed the appeals in workers’ compensation cases to languish for long periods of time; therefore, the General Assembly forced the expedited appellate review by placing a time limit on the previously unlimited period of subject matter jurisdiction in the superior courts. The Supreme Court held that the purpose of the act was “to expedite the disposition of worker’s compensation claims that had been appealed to the courts of this state,” which was a remedial purpose. Felton Pearson Co. v. Nelson, 260 Ga. 513, 514 (397 SE2d 431) (1990).

Georgia Laws 1997, p. 1367, § 4, amended the act as described in the caption as a purpose of this amendment: “to provide for the holding of a hearing by the superior court within 60 days of the date of the docketing in such court.” OCGA § 34-9-105 (b) now reads in pertinent part: “however, if the court does not hear the case within 60 days of the date of docketing in the superior court, the decision of the board shall be considered affirmed by operation of law. . . .” Such amendment had a remedial purpose, which was to avoid the issue presented on appeal and in prior decisions of this Court, which automatically made the judgment final before the superior court had adequate time to rule on the appeal. See Borders, Inc. v. Holland, supra; Travelers Ins. Co. v. McNabb, 201 Ga. App. 297 (410 SE2d 788) (1991); Miller v. Merck & Co., 199 Ga. App. 722 (405 SE2d 761) (1991); Coronet Carpets v. Reynolds, 199 Ga. App. 383 (405 SE2d 103) (1991); Lanier v. Jim Brown Dev. Corp., 199 Ga. App. 255 (404 SE2d 626) (1991); Synthetic Indus. v. Camp, supra.

Decided December 2, 1997.

Drew, Eckl & Farnham, John A. Ferguson, Jr., Nicole D. Tifverman, for appellants.

Edward E. Boshears, for appellee.

Although workers’ compensation law is in derogation of common law, it is to be given a liberal construction, because its purposes are beneficent. Brown v. Lumbermen’s Mut. Cas. Co., 49 Ga. App. 99 (174 SE 359) (1934); see also Schwartz v. Greenbaum, 236 Ga. 476 (224 SE2d 38) (1976); Ins. Co. of N. A. v. Cooley, 118 Ga. App. 46 (162 SE2d 821) (1968); Davis v. Bibb Mfg. Co., 75 Ga. App. 515 (43 SE2d 780) (1947). The act is highly remedial in nature so that it should receive liberal construction. McElreath v. McElreath, 155 Ga. App. 826 (273 SE2d 205) (1980); Travelers Ins. Co. v. Gaither, 148 Ga. App. 251 (251 SE2d 66) (1978); London Guarantee &c. Co. v. Cox, 41 Ga. App. 329 (153 SE 227) (1930). Ordinary rules of law do not apply to claims under this chapter of the code, because this chapter constitutes a complete code of law on the subject. Tillman v. Moody, 181 Ga. 530 (182 SE 906) (1935); see also Fireman’s Fund Ins. Co. v. Crowder, 123 Ga. App. 469 (181 SE2d 530) (1971); St. Paul Fire &c. Ins. Co. v. Miniweather, 119 Ga. App. 617 (168 SE2d 341) (1969). The subject matter jurisdiction and the change in the determination of the time within which it exists are procedural and do not affect any substantive rights of either party; therefore, procedural and remedial changes in the workers’ compensation act should receive retroactive application. Truckstops of America v. Engram, 220 Ga. App. 289, 291 (2) (469 SE2d 425) (1996); Clinical Arts Home Care Svcs. v. Smith, 218 Ga. App. 681, 683 (462 SE2d 757) (1995); Venable v. John P. King Mfg. Co., 174 Ga. App. 800 (331 SE2d 638) (1985); St. Paul Fire &c. Ins. Co. v. Norman, 173 Ga. App. 198 (325 SE2d 810) (1984). “Generally statutes prescribe for the future and that is the construction to be given unless there is a clear contrary intention shown. [Cit.] On the other hand, where a statute governs only procedure of the courts, including the rules of evidence, it is to be given retroactive effect absent an express contrary intention. [Cits.]” Polito v. Holland, 258 Ga. 54, 55 (365 SE2d 273) (1988).

As a retroactive application of an amendment affecting procedure only, the order of September 5,1996 was not void, the trial court should be affirmed.


author: Andrews, Chief Judge.

text:
    A97A1091.
    SHERIN et al. v. DEPARTMENT OF HUMAN RESOURCES et al.
    (494 SE2d 518)
   Andrews, Chief Judge.

This action against the Department of Human Resources (Department) and its employee, Reid, a Division of Family & Children Services (DFACS) caseworker, alleging negligence, a claim under 42 USC § 1983 for violation of federal substantive and procedural due process rights, and breach of contract was initiated by Mr. and Mrs. Sherin, foster parents for Rabun County DFACS, individually and on behalf of their daughter, T. L. S., and by Mr. and Mrs. Hogan, on behalf of their daughter, L. L. H. Mrs. Hogan is the Sher-ins’ daughter and L. L. H. is their granddaughter. Summary judgment was granted to the Department and Reid on all claims and plaintiffs appeal.

1. In reviewing grant or denial of summary judgment, this Court conducts a de novo review of the evidence. Goring v. Martinez, 224 Ga. App. 137, 138 (2) (479 SE2d 432) (1996); Gaskins v. Hand, 219 Ga. App. 823 (466 SE2d 688) (1996). The grant of summary judgment will be affirmed on appeal if it is right for any reason. Deese v. NationsBank ofGa., 222 Ga. App. 275, 277 (1) (474 SE2d 18) (1996).

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiffs case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiffs claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial. [Cit.] A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Viewed under the standard of Lau’s Corp., supra, with all infer-enees in favor of the plaintiffs, opponents of summary judgment, Eiberger v. West, 247 Ga. 767, 769 (281 SE2d 148) (1981), the evidence was that the Sherins had been under contract with DFACS as foster parents since 1979 and, at the time of the incident involved here, were foster parents for T. L. S., who was adopted by them thereafter. B. J. J., a 13-year-old male, was placed in the Sherins’ home as a foster child on July 13,1990, due to his father’s alcoholism and continuing physical abuse of him and his siblings.

The Sherins were not told at the time of the placement that on June 13, 1990, Reid had been asked by a worker at the group home where B. J. J. was then living whether there had been any previously reported incidents of sexual misbehavior by him, because he had been found “masturbating uncovered in his bedroom on several occasions in front of other boys . . . [and] did not stop when caught.” At that time, Reid knew of no such prior incidents, but she did not inform the Sherins of this masturbation.

On April 12, 1991, Mrs. Sherin reported that she had allowed L. L. H., who was visiting her grandparents and was then five years old, B. J. J., T. L. S., and other children to go into a bedroom by themselves and watch a movie. When she went to check on them, she found them all in bed without clothing and B. J. J. had an erection. The children reported to her that B. J. J. had licked L. L. H.’s private parts. B. J. J.’s younger brother, who was also the Sherins’ foster child, then told Mrs. Sherin that B. J. J. had tried to bother him sexually in the past, although there is no indication that any DFACS representative had previously been aware of this.

2. This case was originally filed in the Supreme Court which transferred it to this Court sua sponte, because the trial court’s order “does not show that it ruled upon a constitutional question.” Therefore, we do not consider enumerations 3 and 4, which allege the trial court unconstitutionally construed OCGA § 50-21-24. Atlanta Independent School System v. City of Atlanta, 266 Ga. 657, 658 (1) (469 SE2d 22) (1996); Raskin v. Wallace, 215 Ga. App. 603, 604 (1) (451 SE2d 485) (1994).

3. The first two enumerations deal with the summary judgment granted to Reid on the § 1983 claims and are considered together. They are that the trial court erred in “failing to find that the Sherins had clearly established rights” which were implicated by Reid’s actions and in determining the “factual question of whether BJJ’s history provided Defendant Reid with notice of the danger he presented to other children in the Sherins’ home.”

The court’s order regarding summary judgment to Reid states that “the plaintiffs have not met their burden of proof in establishing that defendant Reid possessed any information prior to the date of the incident indicating that B. J. J. posed a threat to the plaintiffs based on a history of sexual abuse of or by B. J. J. . . . Whatever the legal validity of the plaintiffs’ constitutional claims, they all require that defendant Reid have knowledge that B. J. J. posed a threat to the foster family or other foster children which the worker did not convey to the family.”

(a) “Government officials performing discretionary functions are granted a qualified immunity shielding them from imposition of personal liability pursuant to 42 USC § 1983 ‘insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’ Harlow v. Fitzgerald, 457 U. S. 800 (102 SC 2727, 73 LE2d 396) (1982); Forney v. Pur-vis, 190 Ga. App. 192, 195-196 (378 SE2d 470) (1989). Thus, the test is applied by considering the objective reasonableness of the official’s actions (irrespective of his subjective beliefs) in light of legal rules which were clearly established at the time the action was taken. Harlow, supra, 457 U. S. at 818-819. ‘The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right. That is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful. . . but it is to say that in the light of pre-existing law the unlawfulness must be apparent.’ (Citations and punctuation omitted.) Anderson v. Creighton, 483 U. S. 635, 640 (107 SC 3034, 97 LE2d 523) (1987).” Bell v. City of Albany, 210 Ga. App. 371, 374 (436 SE2d 87) (1993).

Therefore, in the context of Reid’s action or inaction, the issue becomes, even if the Sherins’ constitutional rights in this situation are recognized, if a reasonable DFACS worker under the same circumstances would have acted similarly, i.e., in placing B. J. J. with the Sherins without necessarily telling them all of his history, including the masturbation, Reid is entitled to qualified immunity. Id. This question is a matter of law for the court. Id. at 376, n. 4.

“Under a two-part analysis applied by the Eleventh Circuit, a defendant public official asserting immunity must show that ‘ “ ‘he was acting within the scope of his discretionary authority when the allegedly wrongful acts occurred.’. . . Once the defendant public official satisfies [her] burden[,] . . . the burden shifts to the plaintiff to show lack of good faith on the defendant’s part. The burden is met by proof demonstrating that the defendant public official’s actions “violated clearly established constitutional laws.” [Cit.]’ Stough v. Gallagher, 967 F2d 1523, 1526 (11th Cir. 1992).” Maxwell v. Mayor &c. of the City of Savannah, 226 Ga. App. 705, 707-708 (1) (487 SE2d 478) (1997). This burden requires that the plaintiff demonstrate that the official’s actions are so obviously wrong in light of pre-existing law that “only a plainly incompetent officer or one who was knowingly violating the law would have done such a thing. . . .” Id. at 707. Thomas v. Holt, 221 Ga. App. 345, 348 (1) (471 SE2d 300) (1996). Maxwell, supra.

(b) Reid and the Department presented the affidavits of Reid; Gragg, the caseworker supervisor for Rabun County DFACS; Manus, the Director of Rabun County DFACS; and Day, the foster care specialist in the Department’s Division of Family & Children Services in support of the motion for summary judgment. All of these affidavits stated that the decision to place a child in any given foster home and the amount and type of information to give the foster parents is a matter of professional discretion, left to each caseworker and her supervisor. Although the Foster Care Manual relied upon by plaintiffs states that the foster family will be given “pertinent information,” what is pertinent information appropriate to share with the foster parent is also left to the caseworker’s discretion. Day, who was responsible for program and policy development and writing for the Department, stated that the Foster Care Manual did not require the caseworker to tell the foster parent about any particular problems the child might have had, that this also was left to the caseworker’s discretion.

In response, the plaintiffs presented Mr. Sherin’s affidavit stating that he asked Reid if B. J. J. had been on drugs, had a criminal record, or had ever been sexually abused. No evidence has been presented by plaintiffs to indicate that any of these inquiries were not truthfully answered, since the only known sexual incident contained in the file is the masturbation.

Plaintiffs also submitted the affidavit of Dr. Unger, a psychologist and independent child welfare specialist. Unger’s affidavit states his educational and professional experience, including working for the Michigan Department of Social Service; his familiarity with “generally accepted practice standards governing the appropriate placement and supervision of children in out-of-home care . . . ;” and his opinion that there had been inadequate identification and assessment of B. J. J.’s family and behavioral history and that the social workers should have known that masturbation in public indicates a very real “possibility the child had been a victim or perpetrator of physical, sexual, or emotional abuse” and that inappropriate sexual behavior “indicates a very real possibility that the child exhibiting such behavior has been molested and, as a direct result, is a danger to molest other children in the future.”

These opinions, according to the affidavit, were given based on Unger’s review of “all relevant materials provided to [him].” These materials, however, are neither attached to the affidavit nor otherwise identified in the record before us, as required. Lance v. Elliott, 202 Ga. App. 164, 167 (413 SE2d 486) (1991); Val Preda Motors v. Nat. Uniform Svc., 195 Ga. App. 443, 444 (2) (393 SE2d 728) (1990). Additionally, his opinions regarding the significance of the masturbation incident merely raise a “possibility” and are not sufficient alone to defeat summary judgment. See Niles v. Bd. of Regents &c. of Ga., 222 Ga. App. 59, 61 (2) (473 SE2d 173) (1996). Absent these con-clusory statements, there is nothing in the record to support the plaintiffs’ contention that information concerning B. J. J.’s past was improperly withheld from them. Brown v. Apollo Indus., 199 Ga. App. 260, 262 (2) (404 SE2d 447) (1991).

In this factual setting, it cannot be said that Reid’s failure to tell the Sherins about the masturbation was objectively unreasonable so as to deprive her of qualified immunity.

DFACS was not aware of any prior sexual molestation of or by B. J. J. and there has been no showing of the “deliberate indifference” by DFACS of such a possibility that is required to sustain a § 1983 claim. Taylor v. Ledbetter, 818 F2d 791, 794 (2) (11th Cir. 1987) (en banc), cert. denied, 489 U. S. 1065. Summary judgment to Reid was appropriate.

4. Enumerations 5, 6 and 7 deal with the court’s determinations concerning exclusions under the Georgia Tort Claims Act and are considered together.

Despite plaintiffs’ contention to the contrary, sovereign immunity is not an affirmative defense and the party seeking to benefit from the waiver of sovereign immunity bears the burden of proof. See, e.g., Bd. of Regents &c. of Ga. v. Daniels, 264 Ga. 328 (446 SE2d 735) (1994); Dept. of Human Resources v. Poss, 263 Ga. 347, 348 (1) (434 SE2d 488) (1993); Koehler v. City of Atlanta, 221 Ga. App. 534, 535 (472 SE2d 91) (1996).

We conclude, as did the trial court, that plaintiffs’ claims are precluded by Dept. of Human Resources v. Hutchinson, 217 Ga. App. 70 (1) (456 SE2d 642) (1995), because they arise from an assault and battery by B. J. J. against L. L. H. and immunity for this act has not been waived. OCGA § 50-21-24 (7); see also Miller v. Dept. of Public Safety, 221 Ga. App. 280, 281 (470 SE2d 773) (1996); Mattox v. Bailey, 221 Ga. App. 546 (1) (472 SE2d 130) (1996); Christensen v. State, 219 Ga. App. 10, 12 (6) (464 SE2d 14) (1995).

This conclusion makes it unnecessary for us to consider the issue of immunity for discretionary functions under OCGA § 50-21-24 (2). Hutchinson, supra at 73 (2).

5. Enumerations 8 and 9 are that the court erred in sua sponte granting judgment on the Sherins’ claim of breach of contract and in finding no issue of fact on that claim.

(a) Here, the complaint was amended to add the breach of contract claim after the court’s grant of the motion for summary judgment on the other claims. The court advised both parties it would consider the breach of contract claim and allowed both sides to fully brief that issue.

A trial court may grant, sua sponte, summary judgment under these circumstances. McClendon v. 1152 Spring Street Assoc. &c., 225 Ga. App. 333, 334 (484 SE2d 40) (1997); Hodge v. SADA Enterprises, 217 Ga. App. 688, 690 (1) (458 SE2d 876) (1995).

(b) The written contract was entered into between the Sherins and Rabun County DFACS on November 1, 1979. The Sherins contend that DFACS failed to provide adequate information on B. J. J. pursuant to the contract. The contract, however, provides in pertinent part that DFACS agreed “[t]o place said children only with mutual agreement of Foster Parents and County Department.”

As concluded by the trial court in his well-reasoned order, there is no ambiguity in the contract language and there is no question that there was mutual agreement to place B. J. J. in the Sherins’ home. OCGA § 13-2-1. The Sherins contend that the Foster Care Manual also created a contractual duty to reveal information. It, however, was not incorporated into the agreement signed and is not a factor in interpreting the unambiguous language of the written contract. OCGA § 13-2-2 (1); Garcia v. Unique Realty &c. Co., 205 Ga. App. 876, 878 (3) (424 SE2d 14) (1992).

6. Finally, plaintiffs contend that the trial court erred in not ordering production of B. J. J.’s complete DFACS record to them.

The Department objected to producing this file on the grounds of privilege, citing a number of Georgia and federal statutes dealing with confidentiality of psychologist/social worker and patient privilege records, alcoholism treatment records, and similar privileges. For the majority of the records, the Department relied on OCGA § 49-5-40 (b), which states that “each and every record concerning reports of child abuse . . . which is in the custody of the department ... is declared to be confidential, and access thereto is prohibited except as provided in Code Section 49-5-41. . . .”

Pursuant to OCGA § 49-5-41, the court twice conducted in camera reviews of the file and produced, in addition to the portions previously produced by the Department, two letters dealing with alleged sexual misconduct and abuse dated after the events at issue here and previously unknown to Reid and Reid’s note regarding the masturbation incident.

Decided November 4, 1997

Reconsideration denied December 3, 1997

Cathey & Strain, Dennis T. Cathey, James E. Staples, Jr., John M. Brown, for appellants.

Thurbert E. Baker, Attorney General, George P. Shingler, Deputy Attorney General, Carol A. Cosgrove, Senior Assistant Attorney General, for appellees.

The voluminous file reviewed by the trial court is not contained in the record here, nor was it required to be. Plante v. State, 203 Ga. App. 33, 35 (2) (416 SE2d 316) (1992).

There has been no showing of abuse of discretion by the trial court and we find no error. Pope v. State, 197 Ga. App. 832, 833 (3) (399 SE2d 552) (1990); Horne v. State, 192 Ga. App. 528, 531 (4) (385 SE2d 704) (1989); Davidson v. State, 183 Ga. App. 557, 559 (4) (b) (359 SE2d 372) (1987).

Judgment affirmed.

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

       Although Reid has married and changed her name to Glover, we will refer to her as Reid for purposes of this opinion.

       We note that the Tort Claims Act has previously withstood several constitutional challenges. Campbell v. Dept. of Corrections, 268 Ga. 408 (490 SE2d 99) (1997); Donaldson v. Dept. ofTransp., 262 Ga. 49, 52 (1), (2) (414 SE2d 638) (1992); Burton v. Georgia, 953 F2d 1266 (11th Cir. 1992).

       A portion of the argument made here was not made below and we decline to consider it here for the first time. Cornelius v. Wood, 223 Ga. App. 339, 340 (1) (477 SE2d 595) (1996).

       Approximately 400 additional pages of the file were produced after the initial production.


author: Blackburn, Judge.

text:
    A97A2059.
    GUEST v. THE STATE.
    (494 SE2d 523)
   Blackburn, Judge.

James David Guest appeals his convictions of one count of driving under the influence pursuant to OCGA § 40-6-391 (a) (1) and two counts of endangering a child pursuant to OCGA § 40-6-391 (1).

1. In his first enumeration of error, Guest contends that the trial court erred in denying his motion for a continuance to obtain a new attorney after he terminated his previous attorney.

Guest was represented by a retained attorney during the first trial of his case, which resulted in a mistrial due to a deadlocked jury. The first trial concluded on November 21, 1996, and a retrial was scheduled for the next week. On November 25, 1996, the first morning of the second trial, Guest informed the court that he had fired his attorney and moved for a ten-day continuance to seek new counsel and prepare for trial. After a hearing, the trial court denied Guest’s motion and indicated in its order that Guest would represent himself with the assistance of his former attorney. The trial court also found that Guest did not qualify for a public defender.

“A motion for continuance predicated upon a claim of insufficient time to prepare for trial is addressed to the sound discretion of the trial court, and will not be interfered with unless it is clearly shown that the court abused its discretion. The conduct of the party is a relevant and proper consideration of the [trial court] in the exercise of its discretion in order to prevent a party [from] using the discharge and employment of counsel as a dilatory tactic.” (Citation and punctuation omitted.) Massalene v. State, 224 Ga. App. 321, 322 (1) (480 SE2d 616) (1997).

Guest’s attorney obtained a mistrial due to a hung jury , in the first trial and was present to start the second trial. There is no transcript of the hearing of Guest’s motion in the record on appeal. At the motion for new trial, the court described its recollection of the motion stating, “I think that you stated that you wanted to represent yourself, and you no longer desired Mr. Minter to represent you. And the Court had him sit with you, not as your lead counsel, but, I guess, as your co-counsel or someone that you could confer with if you needed some legal advice.” Although Guest now argues the trial court failed to make any inquiry into his diligence in obtaining another attorney, we are unable to address such argument without a transcript.

The trial court conducted a hearing on Guest’s motion; however, we have not been provided with a transcript of the hearing. “Appellant has the burden of showing error affirmatively by the record, and this burden cannot be discharged by recitations of error in the brief. Arnold v. State, 198 Ga. App. 514, 516 (3) (402 SE2d 312) (1991).” Robbins v. State, 207 Ga. App. 556 (1) (428 SE2d 450) (1993). Under the facts of this case shown by the record on appeal, an abuse of discretion has not been clearly shown.

In his brief, Guest attempts to enlarge this enumeration of error to contend that he did not knowingly and voluntarily waive his right to counsel. However, this issue was not properly raised in his enumerations of error and will not be addressed. See Brown v. State, 191 Ga. App. 76, 79 (4) (381 SE2d 101) (1989) (“[a]n appellant cannot expand his enumerations of error by brief to include issues not raised in the enumerations of error”); see also White v. State, 221 Ga. App. 860, 861 (1) (473 SE2d 539) (1996) (“ £[w]hen an appellant argues more than one error within a single enumeration, this court in its discretion may elect to review none of the errors so enumerated in violation of OCGA § 5-6-40 (cit.) or elect to review any one or more of the several assertions of error contained within the single enumeration and treat the remaining assertions of error therein as abandoned’ ”).

2. In his second enumeration of error, Guest contends that the trial court erred in requiring his discharged attorney to remain in the courtroom in an advisory capacity. In particular, Guest complains that the trial court told the jury, “[t]he defendant is representing himself in this case. And he is being assisted by his attorney, Mr. Fred Minter.” (Emphasis supplied.) Guest argues that because Minter was identified as his attorney but did not visibly assist him, the jury might have been left with the impression that his case was so bad that his own attorney would not assist him. However, because Guest failed to object, any error resulting from the trial court’s comment was not preserved for review. See Turner v. State, 199 Ga. App. 836, 838 (4) (406 SE2d 512) (1991) (pro se defendant waived right to assert prosecutor’s statements as error by failing to object at trial).

3. Guest contends he was denied effective assistance of counsel by the actions of the attorney required to assist him. However, at the motion for new trial, Guest admitted that he represented himself at trial. “ “When a criminal defendant elects to represent himself, either solely or in conjunction with representation or assistance by an attorney, he will not thereafter be heard to assert a claim of ineffective assistance of counsel with respect to any stage of the proceedings wherein he was counsel.’ ” Williams v. State, 192 Ga. App. 317, 319 (3) (384 SE2d 877) (1989).

4. Guest contends that the trial court erred in failing to give the jury charge he requested on implied consent law, after the court agreed to give such charge during the charge conference. However, Guest failed to object or reserve objections to the trial court’s charge to the jury. Therefore, this enumeration of error is waived. See Kegler v. State, 267 Ga. 147, 149 (5) (475 SE2d 593) (1996) (pro se defendant’s failure to object or to reserve right to raise objections later to the trial court’s charge precludes appellate review of such charge). Furthermore, considering that the trial court read the implied consent law at the end of Guest’s case, the trial court’s failure to do so during the jury charge was not substantial error.

5. Guest contends that the trial court erred in denying his motion for new trial. As this enumeration fails to raise any issue not previously considered, it is without merit.

6. Guest asserts that the trial court erred in its sentence on the two counts of endangering a child. On the first count of endangering a child, the trial court sentenced Guest to serve 12 months consecutive to his 12-month sentence on the DUI. On the second count of endangering a child, the trial court sentenced Guest to 12 months probation consecutive to his 12-month sentence on the first endangering a child count.

Decided November 12, 1997

Reconsideration denied December 3, 1997

M. P. Schildmeyer, for appellant.

Cheryl F. Custer, District Attorney, Mirza A. Baig, Assistant District Attorney, for appellee.

The sentence for a violation of OCGA § 40-6-391 (1) is prescribed by OCGA § 16-12-1 (d). See OCGA § 40-6-391 (1). OCGA § 16-12-1 (d) (1) provides that “[u]pon conviction of the first offense, the defendant shall be guilty of a misdemeanor and shall be fined not less than $200.00 nor more than $500.00 or shall be imprisoned for not less than one month nor more than five months, or both fined and imprisoned.” Subsection (d) (2) of that Code section provides that upon a second conviction the sentence shall be “not less than three months nor more than one year.”

The trial court erred in imposing Guest’s sentence with regard to the two counts of endangering a child. The case is therefore remanded with direction that Guest be resentenced consistent with the law on these counts.

Judgment affirmed and case remanded with direction.

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


text:
    A97A2090.
    BIRD et al. v. KMART CORPORATION.
    (494 SE2d 541)
   Blackburn, Judge.

Thomas Byron Bird and Marsha Bird, husband and wife (the Birds), sued Kmart Corporation for injuries sustained by Mr. Bird from an alleged fall in a Kmart department store. The trial court granted summary judgment in favor of Kmart, and the Birds appeal.

“Summary judgment is appropriate when the court, viewing all the evidence and drawing all reasonable inferences in a light most favorable to the nonmovant, concludes that the evidence does not create a triable issue as to each essential element of the case. A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.” (Punctuation omitted.) Arwood v. Tzen, 224 Ga. App. 722 (481 SE2d 874) (1997), citing Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

The facts, viewed in a light most favorable to plaintiffs, show that Mr. Bird, a partially paralyzed man who walks with a cane, slipped and fell in the men’s bathroom at Kmart on September 4, 1994. There were no witnesses to Mr. Bird’s fall, and the only evidence that it occurred is contained in the Birds’ depositions and affidavits.

Bird testified that, due to his disability, he is very cautious and observant when he walks and that when he enters a room his main concern is the condition of the floor. He further testified that he entered the bathroom at approximately 4:55 p.m., walked just inside the door, and slipped on a thin layer of pink soap on the floor. The floor was light in color, and Bird estimated that approximately eight ounces of pink soap had been spilled. Bird also deposed that soap was generally all over the floor, that the bathroom was a “wreck,” that the soap dispenser had been knocked off the wall, that the soap had been tracked in every direction as if someone had “partied” in it, that the sink was covered with soap, and that there were used paper towels and other debris littering the floor near a garbage can “on the left hand wall away from the sink area.”

Bird indicated that he did not notice the soap or other debris littering the bathroom floor until after his fall and that he could not have seen the soapy tracks on which he slipped because they were so faint. Bird deposed that he remained in the bathroom for 15 to 20 minutes after his fall, struggling to get back on his feet.

Upon leaving the bathroom, Mr. Bird rejoined his wife and other members of his family who had been shopping in the store. He told them about the fall, that he was embarrassed about it and that he wanted to leave the store immediately. The group then left without reporting the incident to any Kmart employee.

Two days later, Mrs. Bird reported her husband’s alleged fall to Robert Benjamin, loss prevention manager for Kmart. Robert Benjamin stated in his affidavit that Mrs. Bird reported that the fall had occurred at 3:30 p.m. on September 4, 1994. Mrs. Bird, however, contends that she told Benjamin that they arrived at Kmart at 3:30 p.m. and that Benjamin did not ask her when the fall occurred. For summary judgment purposes, we accept plaintiffs’ version of this exchange.

The standard of proof necessary to establish liability on the part of a proprietor under these facts is set forth in Alterman Foods v. Ligon, 246 Ga. 620 (272 SE2d 327) (1980). “[T]o state a cause of action in a case where the plaintiff alleges that due to an act of negligence by the defendant he slipped and fell on a foreign substance on the defendant’s floor, the plaintiff must show (1) that the defendant had actual or constructive knowledge of the foreign substance and (2) that the plaintiff was without knowledge of the substance or for some reason attributable to the defendant was prevented from discovering the foreign substance.” Id. at 623.

Decided November 19, 1997

Reconsideration denied December 3, 1997.

Barr, Warner, Lloyd & Henifin, John V. Lloyd, for appellants.

Brannen, Searcy & Smith, Daniel C. Cohen, for appellee.

Bird has produced no evidence that Kmart had any knowledge, either actual or constructive, of the defective condition to which he attributes his injuries. Neither is there any evidence of record from which such knowledge could be inferred. Therefore, Bird has failed to meet his burden as to one of the essential elements of his claim, which must therefore fail. Lau’s Corp. v. Haskins, supra. The trial court did not err in granting summary judgment to Kmart.

Judgment affirmed.

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

         Contrary to the trial court’s ruling, the inconsistent testimony rule of Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986) does not apply to the apparent contradiction between Mrs. Bird’s sworn statement that her husband fell around 5:00 p.m. and Benjamin’s sworn statement that she said the fall occurred at 3:30 p.m.


text:
    A97A2427.
    GEORGE v. THE STATE.
    (494 SE2d 526)
   Blackburn, Judge.

Christofer Andrew George appeals the trial court’s denial of his motion for discharge and acquittal. George contends that before his case was tried two terms of court expired and that he was, therefore, denied his right to a speedy trial pursuant to OCGA § 17-7-170.

The facts are not in dispute. On August 16, 1996, George was arrested and charged with driving under the influence and following too closely. On August 29,1996, during the May term of court, George filed his demand for speedy trial pursuant to OCGA § 17-7-170 in the State Court of Cherokee County. In relevant part, OCGA § 17-7-170 (b) provides that “[i]f the [defendant] is not tried when the demand is made or at the next succeeding regular court term thereafter, provided at both court terms there were juries impaneled and qualified to try him, he shall be absolutely discharged and acquitted of the offense charged in the indictment or accusation.”

The terms of Cherokee County State Court begin in January, May and September. The evidence at the hearing on George’s motion indicates that there were no state court juries impaneled and quali-fled to try George in the May term, after George’s demand for speedy trial was filed. There were juries impaneled during the September term, but George’s case was not reached. George’s case was called to trial on February 3, 1997, during the January term of court.

As we have previously determined that “a term or remainder of a term in which no juries are impaneled and qualified to try the case is not counted for purposes of OCGA § 17-7-170,” Fletcher v. State, 213 Ga. App. 401, 404 (445 SE2d 279) (1994), the trial court was correct in determining that the May term did not count and that George could be properly tried in the January term. However, relying upon OCGA § 15-12-130 (a) and Scott v. State, 206 Ga. App. 17 (424 SE2d 325) (1992), George contends that because superior court juries were impaneled during the end of the May term after he filed his speedy trial motion, the May term should be counted.

OCGA § 15-12-130 (a) provides: “In any county of this state where there is located any court or courts having county-wide jurisdiction concurrent with the superior courts of this state to try any, all, or any type of case not within the exclusive jurisdiction of the superior courts of this state, any trial juror drawn, selected, and summoned for service in the trial of civil and criminal cases in the superior court of such county shall be legally competent and qualified to serve as a juror in any such other court or courts located in the county for the same period of time as he is competent and qualified to serve as a trial juror in the superior court of the county.” In Scott, supra, we applied OCGA § 15-12-130 (a) to find that because “jurors were impaneled and qualified to try appellant during the term in which his demand for trial was made and the next succeeding term, and appellant was not tried during either of those terms, it was error to deny his motion for discharge and acquittal of the charge against him.” (Punctuation omitted.) Id. at 18.

The instant case is distinguishable from Scott, supra, because, in the present case, OCGA § 15-12-130 (a) does not apply. Subsection (b) of OCGA § 15-12-130 provides that “[sjubsection (a) of this Code section shall be applicable only if” three criteria are met. One such criterion requires that “[t]he summons served upon or sent to each of the jurors pursuant to Code Section 15-12-65 affirmatively shows the name of all the courts wherein the juror is eligible to serve.” OCGA § 15-12-130 (b) (3). In the present case, the summons referred only to the superior court. Therefore, superior court jurors were not qualified to serve as state court jurors, and the trial court did not err in denying George’s motion for discharge and acquittal.

Judgment affirmed.

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

Decided November 17, 1997

Reconsideration denied December 3, 1997

Law Office of George A. Stein, Monte K. Davis, for appellant.

G. Channing Ruskell, Solicitor, for appellee.