author: Andrews, Presiding Judge.

text:
    A00A0688.
    GREER et al. v. DAVIS.
    (534 SE2d 853)
   Andrews, Presiding Judge.

Jonathan Greer II and James McWhorter appeal following a bench trial resulting in a judgment for An’cel Davis, the plaintiff below. Greer and McWhorter bring five enumerations of error, contending the trial court did not have subject matter jurisdiction of this claim because it was an ecclesiastical matter, objecting to the award of attorney fees, and claiming that the judgment did not conform to the issues raised in pleadings or at trial. For the following reasons, we affirm in part and reverse in part.

This case arose when Davis, a newly elected trustee of the Cathedral of Faith Church of God in Christ (the Church), requested information and documents on the financial operations of the Church. Greer, the pastor of the Church, and McWhorter, his administrative assistant, refused to provide the information.

Davis sued both Greer and McWhorter, and the case went to a bench trial. The evidence at trial, taken in the light most favorable to support the verdict, was as follows.

Doris Echols, who took over as administrator after McWhorter resigned, testified that she went to the Church to receive the keys, codes, and financial records from McWhorter and the previous financial officer, but McWhorter left without turning over any records to her. She said that when she arrived at the Church, Greer was in the process of moving furniture, computers, printers, and files out of the Church offices and onto a truck. Echols called the police, who removed some things from the truck and escorted Greer off the premises. Echols also testified that she tried to change the signature cards on the Church’s bank accounts, but Greer’s niece and another Church member had already attempted to withdraw the money and had succeeded in closing one bank account containing $5,000. Echols said that the computers with current financial records were removed and recent financial files were also missing. In addition, all of the furniture, books, tapes, and other items from the book store had been removed. Also, there was a balloon note for $400,000 but no record of the money being deposited in any Church bank account. Echols said that when she took over, there was no money in any of the Church accounts, the insurance had lapsed, and they had to wait until they took up the weekly offering to pay the bills.

Davis introduced into evidence the Church bylaws which provided that any member or his attorney may inspect the books and records of the Church for any proper purpose and at any reasonable time upon written demand and under oath stating the purpose. Davis testified that as Church Treasurer, Trustee, and member of the Executive Committee, he was responsible for preparing a budget, monitoring income and expenses, and keeping financial records for the Church. Nevertheless, despite repeated requests, Greer and McWhorter refused to turn over the necessary Church financial records.

McWhorter was the only defense witness at trial. He testified that he had turned over many of the financial records to Davis. But, when cross-examined, he admitted that he did not turn over any tax returns, budgets, audited financial statements, or checking, savings, or investment account records. Also, he did not furnish records of deposits, contributions, or tithes. He said that tithes from the congregation were deposited into the pastor’s executive account and his salary as well as other staff members’ salaries were paid from that account. He said that he did not know the executive account had been closed until Greer told him of it, after they had left the Church.

The assistant to the presiding bishop for the region who was also the pastor at another Church of God in Christ church, testified that he knew of no Church accounts that would not be subject to review by the trustees; he was not familiar with a “pastor’s executive account”; and the finance board or trustee board was in charge of disbursing the income from tithes.

The trial court returned a verdict for Davis, finding that Greer and McWhorter had presented no credible evidence that any religious doctrine prohibited the Church from providing the requested records to Davis. The order also stated that defendants’ refusal to turn over the records was frivolous and vexatious and ordered them to pay attorney fees and costs of $24,657.81. The court found that after Greer had been removed from his position as pastor of the Church and McWhorter had resigned, they took away filing cabinets, computers, computer disks, and furniture from the Church and, as a result, little remained of the Church’s financial records. The court ordered Greer and McWhorter to provide a complete financial accounting for the past three years and required them to return any Church property in their possession.

1. On appeal, Greer and McWhorter argue that the civil court had no jurisdiction because this was an ecclesiastical issue. We disagree.

The Georgia Code requires that nonprofit corporations maintain appropriate accounting records in written form or in some form capable of conversion into written form within a reasonable time. OCGA § 14-3-1601. A member of the nonprofit corporation is entitled to inspect and copy these records if the member’s demand is made in good faith and for a proper purpose. OCGA § 14-3-1602. Further, upon written demand from a member, a corporation “shall furnish that member its latést prepared annual financial statements, ... in reasonable detail as appropriate, that include a balance sheet as of the end of the fiscal year and statement of operations for that year.” OCGA § 14-3-1620.

If religious doctrine governing the affairs of a corporation is inconsistent with the provisions of this chapter on the same subject, the religious doctrine shall control to the extent required by the Constitution of the United States or the Constitution of this state or both.

OCGA § 14-3-180.

As Davis points out, the evidence at trial showed that there was no religious doctrine of the Church that was inconsistent with these statutes. Moreover, the Church bylaws specifically give members the right to review financial documents.

Nevertheless, Greer and McWhorter argue this was solely an ecclesiastical matter because it involved a dispute over the roles of a pastor and trustee in the government of the Church and these issues were being investigated by Church authorities. But, whatever issues may have been before the governing bodies of the Church, the only issue before the court was the pastor’s obligation to allow a member of the board of trustees to inspect the Church’s financial records. The court’s order dealt only with this issue and how to enforce its holding. The court did not decide any matter concerning the relative roles of pastors and trustees in the Church.

Appellants cite to First Born Church &c. v. Hill, 267 Ga. 633 (481 SE2d 221) (1997), in support of their argument that this was an ecclesiastical matter. This case is not on point. In Hill, the Church. constitution conflicted with the Georgia Code provisions on nonprofit corporations. The Code required that meetings be held annually, while the Church constitution provided that the membership would meet only every four years. Id. In that instance, the court held that an order requiring the Church to conform to the Code was an unconstitutional judicial interference in the government of the Church. Id. at 634.

Here, as discussed above, the evidence at trial was that the Church’s bylaws were, if anything, more liberal than the Georgia Code in allowing members’ inspection of financial records. Therefore, the court’s disposition was not inconsistent with the Church’s religious freedom to determine its own governmental rules and regulations. See Hill, supra at 634.

2. Next, Greer and McWhorter argue that the trial court abused its discretion in awarding attorney fees under OCGA § 9-15-14 (b). This Code section provides that the court may assess reasonable and necessary attorney fees if the court finds that a party or an attorney brought or defended an action that lacked substantial justification or was interposed for delay or harassment. An award under OCGA § 9-15-14 (b) is discretionary, and the standard of review on appeal is abuse of discretion. Gibson v. Decatur Fed. Sav. &c. Assn., 235 Ga. App. 160, 163 (508 SE2d 788) (1998).

The trial court correctly found that appellants’ defense of this action was without substantial justification. In light of the evidence showing Davis’s clear right to inspect the Church’s financial records, Greer’s and McWhorter’s defense to Davis’s claims lacked any justiciable issue of law or fact and therefore must have been asserted for the sole purpose of delay or harassment. Accordingly, the trial court did not abuse its discretion in awarding attorney fees under this Code section. See Mitcham v. Blalock, 268 Ga. 644, 648 (491 SE2d 782) (1997); Cagle v. Davis, 236 Ga. App. 657, 660 (513 SE2d 16) (1999); Gibson, supra at 164.

3. Greer and McWhorter next argue that the attorney fees awarded to Davis were excessive, unreasonable, and unnecessary. The transcript shows that Davis’s attorney took the stand at the close of the evidence and described the work that was done in the case and the amount charged. The court asked if defendants’ counsel wanted to cross-examine on the issue of fees, and counsel responded that he did not.

There was no error. The trial court heard testimony from plaintiff’s counsel; defense counsel was given an opportunity to cross-, examine on the amount of the fees; and plaintiff’s counsel submitted an extremely detailed accounting of each charge.

The trial court’s determination as to what fees are reasonable and necessary must be sustained unless the trial court abused its discretion. Gibbs v. Abiose, 235 Ga. App. 214, 219 (508 SE2d 690) (1998). Here, the record supports the trial court’s award, and therefore, we find no abuse of discretion. Haggard v. Bd. of Regents &c. of Ga., 257 Ga. 524, 527 (360 SE2d 566) (1987).

4. Appellants also object to attorney fees that were added by affidavit after trial. The record shows that Davis’s counsel submitted an affidavit for an additional $7,724.50 in fees after the trial. The trial court’s order added this amount to the original amount submitted at trial. The order also provided that defendants could submit any objections to the award in writing to the trial court no later than five days from the date of the order.

This was error. “[A] party opposing a claim for attorney fees has a basic right to confront and challenge testimony as to the value and need for legal services.” (Punctuation omitted.) C. A. Gaslowitz & Assoc. v. ZML Promenade, 230 Ga. App. 405, 406 (496 SE2d 470) (1998). Defense counsel should have been given an opportunity to cross-examine on the amount and reasonableness of the fees and costs requested. Oden v. Legacy Ford-Mercury, 222 Ga. App. 666, 669-670 (476 SE2d 43) (1996). Because no hearing was held and defendants were not given an opportunity to cross-examine witnesses on this issue, we reverse and remand the issue of the amount of additional attorney fees to the trial court for an evidentiary hearing.

5. In their last enumeration of error, appellants claim the trial court’s order did not conform to the issues pleaded or tried. Specifically, appellants argue there was no reason for the trial court to order an accounting, to order return of the Church property, and to provide for an auditor or the right to review all records. Appellants claim that Davis did not proffer evidence that would have put them on notice of these additional claims.

OCGA § 9-11-15 (b) provides that “[w]hen issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” In addition, a superior court is entitled to grant appropriate relief, even if not expressly asked for, provided the propriety of the relief has been litigated and the opposing party had an opportunity to assert defenses relevant to the relief. Wender & Roberts, Inc. v. Wender, 238 Ga. App. 355, 362 (518 SE2d 154) (1999).

Here, the evidence at trial was that many of the Church’s important financial records were either nonexistent or missing and the records that were found or produced had never been validated by an independent auditor. Greer and McWhorter never argued to the trial court that any of the evidence was a surprise to them, nor did they request a continuance to meet the evidence, as provided for in OCGA § 9-11-15 (b).

Decided May 19, 2000

Reconsideration denied June 2, 2000

Goodman, McGuffey, Aust & Lindsey, Edward H. Lindsey, Jr., Ernest R. Bennett, Jr., for appellants.

Sutherland, Asbill & Brennan, Allegra J. Lawrence, Teresa W. Roseborough, for appellee.

Moreover, after refusing Davis’s request to inspect the records, Greer and McWhorter both left the Church, taking many of the records with them. Therefore, the additional relief granted by the court was necessary to protect and effectuate its judgment. Ga. Const. of 1983, Art. VI, Sec. I, Par. II; Wender & Roberts, supra. There was no error.

Judgment affirmed in part, reversed in part and case remanded.

Ruffin and Ellington, JJ, concur.

       At the time of trial, neither Greer nor McWhorter was still with the Church. Greer had been removed from his position, and McWhorter had resigned.


source: Caselaw Access Project

author: Ellington, Judge.

license: Public Domain

text:
    A00A0511.
    A00A0512.
    JACKSON et al. v. CITY OF HAHIRA. BRYANT v. CITY OF HAHIRA.
    (535 SE2d 327)
   Ellington, Judge.

Janice A. Bryant, Ricky and Debbie Jackson, and Amanda Jackson appeal the trial court’s order granting the City of Hahira summary judgment in their personal injury actions arising out of the collision of Bryant’s automobile and a train in Hahira. Ricky Jackson brought suit as the next friend of minor Amanda Jackson, who was a passenger in Bryant’s car at the time of the wreck. Ricky and Debbie Jackson also sued individually for their damages flowing from Amanda Jackson’s injuries. The appellants contend the trial court erred in applying an incorrect standard on summary judgment. Finding no error, we affirm.

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. 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 [genuine] jury issue on at least one essential element of plaintiffs 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.

(Citation and emphasis omitted.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Viewed in the light most favorable to the appellants, the evidence shows the following. On April 20, 1996, Bryant, who lived in Moultrie, visited Hahira for the second time to go to a certain beauty shop. Bryant entered the city on Georgia Highway 122, which is known as Main Street in Hahira. After leaving the beauty shop, Bryant missed the left turn that would have put her back on Main Street (Highway 122). She turned left at the next street, W. Lawson Street, in order to circle around and leave town on Highway 122. Bryant did not stop before the intersection of W. Lawson Street and Webb Street. As Bryant crossed Webb Street, she saw a stop sign located beyond the intersection of W. Lawson Street and Webb Street. She did not see the stop sign until just before she stopped.

Bryant did not understand why traffic on W. Lawson Street, which she considered a through street, would be stopped for Webb Street. She believed the stop sign was intended for the traffic on Webb Street crossing W. Lawson Street but was in the wrong place, possibly turned sideways by pranksters. Although she was not certain the stop sign was intended for her, after she crossed Webb Street, Bryant stopped between one and two car lengths from the stop sign. After she looked right and left, checking for cars, Bryant pulled away from the stop sign. When she looked back to her right, Bryant saw an oncoming train about 12-15 feet from her car and was unable to clear the tracks in time to avoid the collision.

The appellants do not dispute that the railroad crossing on W. Lawson Street was marked by a stop sign and a railroad crossbuck sign. The appellants also do not dispute that a pavement marking (crossed bars flanked by “R”s) was located about halfway between where Bryant turned onto W. Lawson Street and the railroad tracks. The appellants alleged the city was negligent in maintaining the railroad crossing, specifically claiming that the crossbuck facing traffic approaching on W. Lawson Street and the pavement markings on W. Lawson Street were old and faded, that the crossbuck was partially obscured by the stop sign, and that the view from the stop sign was obscured by overgrown trees and bushes. Bryant did not see the pavement marking, the crossbuck, or the railroad tracks across the pavement and did not realize she was driving across railroad tracks until she saw the train bearing down on her.

To explain her failure to see the pavement marking, Bryant stated there was no reason she would not have seen a pavement marking, but “I just don’t go around when I’m driving looking at the pavement.” To explain her failure to see the the crossbuck, railroad tracks, and certain other signs, Bryant testified her Z28 Camaro sits low to the ground. She also testified that she does not go around “trying to see every sign.”

Although the appellants alleged that overgrown plants obscured the view, the undisputed evidence shows that once Bryant was stopped at the stop sign and looked to her right (in the direction from which the train came), the trees and shrubs did not block her view. Bryant’s own testimony that the trees and shrubs did not block her view was consistent with the affidavit testimony of a Georgia Department of Transportation accident investigator who examined the intersection two days after the train wreck took place and found that the sight distance from a stopped position at the stop sign was 750 feet to the north, the direction from which the southbound train came.

In this case, the acts the appellants allege the city had a duty to do — to maintain fresh paint on the pavement marking and the crossbuck and to ensure that the crossbuck was visible to drivers — were all acts aimed at causing drivers to stop and look to determine if it was safe to cross the railroad tracks. See Richardson v. Coker, 78 Ga. App. 209, 213 (1) (50 SE2d 781) (1948). But the evidence is undisputed that Bryant stopped and looked before crossing the tracks and her view from the stop sign was unobstructed; therefore, the city pierced the appellants’ pleadings on the essential element of causation. Black v. Ga. Southern &c. R. Co., 202 Ga. App. 805, 807-808 (1) (415 SE2d 705) (1992); Hollingsworth v. Harris, 112 Ga. App. 290, 293 (145 SE2d 52) (1965). In response, the appellants failed to identify any evidence to create a jury issue as to whether any deficiencies in the city’s marking of the crossing proximately caused the wreck. See Lau’s Corp., 261 Ga. at 495 (4). Accordingly, the trial court did not err in granting the city’s summary judgment motion. Watson v. Marshall, 212 Ga. App. 206, 208 (2) (441 SE2d 427) (1994).

Decided June 2, 2000.

Allen & Forehand, Rodney L. Allen, for appellants.

Young, Thagard, Hoffman, Scott & Smith, James B. Thagard, Susan H. Sumner, for appellee.

Judgment affirmed.

Andrews, P. J., and Ruffin, J., concur.

       We do not reach the issue of whether the city, as a matter of law, had the duty to maintain the crossbuck. See OCGA § 32-6-50 (c) (1) (“each railroad company shall erect and maintain a railroad crossbuck sign on its right of way at all [railroad crossings at grade on municipal street systems]”).


author: Johnson, Chief Judge.

text:
    A00A1161.
    CLARK et al. v. THE STATE.
    (535 SE2d 506)
   Johnson, Chief Judge.

Following a bench trial, Christopher Clark was found guilty of possession with the intent to distribute marijuana. He challenges the denial of his motion to suppress three pounds of marijuana found after the car in which he was a passenger was impounded. Because the officers were justified in stopping the car and arresting Clark and the driver of the car, Clark’s challenge lacks merit.

The evidence shows that an undercover narcotics officer was inside a house purchasing a large quantity of marijuana while several other officers were watching outside of the house. The individual selling the marijuana informed the officer that someone would be arriving soon with the marijuana. Five minutes later, the undercover officer saw car lights through the window, and the seller stated, “here he is” and then went outside.

Surveillance Officers Dong and Cook observed an individual leave the house, approach a gray car that had entered the driveway, talk to the car’s occupants, and then return to the house. Neither officer observed any drug exchange because the individual had his back to them and blocked their view. When the seller returned from outside, he immediately handed the undercover officer a bag of marijuana. He then stated that his supplier had more in the car and asked the undercover officer if he wanted to do another deal. When the undercover officer noticed lights moving out of the driveway, he asked to use the telephone, called Sergeant Minter, and told the sergeant that he believed there was more marijuana in the car that just left and to follow and attempt a traffic stop on the vehicle.

Sergeant Minter radioed Officers Dong and Cook and told them they needed to keep an eye on the gray car because the undercover officer advised him that the deal was a “go,” indicating that the drug transaction had taken place. According to Officer Cook, the officers suspected that the marijuana was brought to the house in the gray car because the car was there only a few minutes, they received word shortly after the car left that it was a “go,” and Sergeant Minter advised the officers to follow the vehicle out of the area prior to making the traffic stop. Officer Cook testified that Sergeant Minter made the decision to stop the gray car but told the officers to follow the vehicle out of the area prior to making the stop. Officer Cook later testified, however, that he could not recall if Sergeant Minter or Officer Dong made the decision to stop the car.

Officer Dong testified that he did not know the car had more marijuana inside; he was concerned with retrieving the money used to buy the drugs. Officer Dong decided to stop the car because the drug deal occurred after the car arrived at the house, someone from the house met with the car’s occupants, and, after the individual returned to the house, the officers were advised that the deal had occurred. His observations, coupled with Sergeant Minter’s radio message to maintain surveillance on the gray car because the deal was a “go,” led Officer Dong to stop the car.

Officers Dong and Cook followed the gray car out of the area and radioed a marked unit to make the traffic stop “based on the information that we had that this was a supplier for the marijuana that [the undercover officer] purchased.” The car did not stop when the officer in the marked police car signaled with his blue lights, so Officer Dong drove in front of the gray car and forced it to stop. Officers Dong and Cook arrested the driver of the car while the officer in the marked unit arrested Clark, who was a passenger in the car. The marijuana which is the subject of the motion to suppress was seized after the car was impounded.

Clark maintains that the marijuana should be suppressed because there was a “break” in probable cause; the officers who stopped the car were not directed to stop the car and were not informed that the car contained contraband. According to Clark, the combined effect of these two omissions is that the two surveillance officers independently decided to make the traffic stop when they did not have the information upon which probable cause to make the stop was based. We find no error.

The Fourth Amendment has been interpreted to allow a warrantless search of an automobile by one officer where the facts which would support probable cause are known by another officer. The searching officer need not personally be aware of all the facts which would support a probable cause determination:

so long as it can be established by evidence that the searching officer’s actions were the end result of a chain of information-sharing, one link of which is an officer in possession of the information requisite to support an independent judicial assessment of probable cause.

Decided June 5, 2000.

Patrick D. Deering, for appellants.

Patrick H. Head, District Attorney, Dana J. Norman, Assistant District Attorney, for appellee.

There is no requirement that the officer making the stop have all the information the original officer had about a suspect. In addition, factual and credibility determinations made by a trial judge after a suppression hearing are accepted by this Court unless clearly erroneous.

In the present case, a review of the complete transcript supports the trial court’s finding that Officers Dong and Cook, based on their personal observations and experience, had probable cause to believe that drugs were in the car and that the car should be stopped. However, even if this finding was erroneous, the trial court properly denied Clark’s motion to suppress because the actions of Officers Dong and Cook were the end result of a chain of information sharing, one link of which is the undercover narcotics officer’s possession of information supporting probable cause.

The evidence shows that the undercover narcotics officer clearly had probable cause to believe that the car contained contraband. He was told that someone would be arriving with the marijuana; he saw a car enter the driveway; the seller stated “here he is” and went outside; the seller immediately handed the undercover officer a bag of marijuana when he returned from outside; and the seller stated his supplier had more in the car. Officers Dong and Cook, as part of a coordinated effort, acted on the information they personally observed and the information gathered by the undercover officer. The trial court properly denied Clark’s motion to suppress the seized marijuana.

Judgment affirmed.

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

        Westfelt v. State, 192 Ga. App. 791, 792 (386 SE2d 542) (1989).

       (Citations and punctuation omitted.) Id.; see also Waldrip v. State, 205 Ga. App. 864, 865 (424 SE2d 31) (1992); Parker v. State, 161 Ga. App. 37, 40 (4) (288 SE2d 852) (1982).

        Beck v. State, 216 Ga. App. 532, 535 (1) (455 SE2d 110) (1995).

        State v. Leviner, 213 Ga. App. 99 (1) (443 SE2d 688) (1994).


author: ELDRIDGE, Judge.

text:
    A00A1438.
    THE STATE v. STERLING.
    (535 SE2d 329)
   ELDRIDGE, Judge.

The State appeals from the State Court of Gwinnett County’s dismissal of an accusation for lack of jurisdiction. See OCGA § 5-7-1 (a) (1). The procedural posture of this case is as follows.

The office of the Solicitor General of Gwinnett County drew an accusation against Kevin Thomas Sterling charging him with two counts of misdemeanor shoplifting. OCGA § 16-8-14 (b) (1). The case went to trial. While the jury was deliberating, the trial judge was informed by the State that Sterling had three prior convictions for shoplifting. The National Crime Information Center (“NCIC”) printout on Sterling was produced by the State. The printout showed that Sterling had two shoplifting convictions in Arizona and one shoplifting conviction in Gwinnett County, Georgia. Thereafter, the jury indicated that they had reached a verdict. The trial court found that the State Court of Gwinnett County did not have jurisdiction over the instant case because, under OCGA § 16-8-14 (b) (1) (C) and this Court’s decision in Lynn v. State, 236 Ga. App. 600, 602-603 (512 SE2d 695) (1999), Sterling’s three prior shoplifting convictions “rendered the instant shoplifting charge a felony.” Id. at 603 (3). Accordingly, the trial court would not permit the jury to return the verdict, and the court dismissed the case for lack of jurisdiction. The State appeals from the trial court’s ruling. Held:

1. Without contesting the fact that Sterling had three prior shoplifting convictions, the State contends that there is no “admissible evidence” in the record of such fact. However, the NCIC printout of Sterling’s criminal record was competent, admissible evidence that Sterling had three prior shoplifting convictions, one in Georgia and two in Arizona. See OCGA § 24-3-17 (b); Thompson v. State, 265 Ga. 677, 678 (2) (461 SE2d 528) (1995); see also Thomas v. State, 196 Ga. App. 88, 91 (4) (395 SE2d 615) (1990). Further, it was not disputed by the State that the NCIC printout showed the three prior shoplifting convictions and that such printout was properly before the trial court for its consideration. Thus, despite the fact that the NCIC printout was not made a part of the record on appeal, we find the undisputed evidence of record regarding the contents of the NCIC printout — offered by the State and considered by the trial court without objection by tbe State — sufficient to support the court’s factual determination based thereon that Sterling had three prior shoplifting convictions.

2. Subsection (b) of our shoplifting statute states in pertinent part that,

[u]pon conviction of a fourth or subsequent offense for shoplifting, where the prior convictions are either felonies or misdemeanors, or any combination of felonies and misdemeanors, as defined by this Code section, the defendant commits a felony and shall be punished by imprisonment for not less than one nor more than ten years.

OCGA § 16-8-14 (b) (1) (C); Lynn v. State, supra at 602.

The State contends that the specific language of the statute, “as defined by this Code section,” means that only shoplifting convictions prosecuted under the Georgia definition of “shoplifting” may be used when determining whether a defendant has committed the requisite number of prior shoplifting offenses to reach felony status. Thus, the State argues, Sterling’s prior Arizona convictions would not be recognized under the statute, since a shoplifting offense in Arizona is not “defined by this [Georgia] Code section.” We disagree.

Under the plain meaning of OCGA § 16-8-14 (b), it is apparent that the specific language “as defined by this Code section” does not go to the definition/elements of the offense of shoplifting, which elements are found under subsection (a) (1) through (5) of the statute. Instead, such language addresses punishment, which is the topic of subsection (b) of the statute. The language “as defined by this Code section” applies to the definition of “misdemeanor” and “felony” as related to the offense. As defined by the Code section, misdemeanor shoplifting is the theft of items with a value of $300 or less; a value more than $300 is felony shoplifting. OCGA § 16-8-14 (b) (1).

Obviously, then, any shoplifting offense — whether committed and prosecuted in Georgia, Arizona, or any foreign jurisdiction — will be either a felony or a misdemeanor as defined by OCGA § 16-8-14 (b) (1) (C), since every item has a value of more or less than $300. And, under the statute, “any combination of [prior] felonies and misdemeanors” may be considered when determining the status of a fourth offense; so it matters not whether a prior foreign shoplifting conviction was a misdemeanor or felony. OCGA § 16-8-14 (b) (1) (C). Thus, the plain language of the statute does not preclude consideration of a foreign shoplifting conviction — whether misdemeanor or felony — when determining whether a current Georgia shoplifting charge is a fourth offense felony. The plain language of the statute is entirely consistent with the express intent of the legislature: “the General Assembly intended that as to convictions of shoplifting . . . any prior shoplifting conviction shall be considered in determining if the defendant has committed felony shoplifting.” (Emphasis in original.) Lynn v. State, supra at 603 (2). Where, as here, the language of the statute is plain and unequivocal, judicial construction is not only unnecessary but is prohibited. City of Jesup v. Bennett, 226 Ga. 606 (176 SE2d 81) (1970). To restate our opinion in Lynn v. State, supra, “if the legislature had intended to limit the consideration of prior felony convictions to those occurring [only in Georgia], it could have done so. [Cit.]” Id. at 603 (2). It did not. Accordingly, the trial court did not err by considering Sterling’s two Arizona shoplifting convictions in finding that it lacked jurisdiction over his fourth shoplifting offense.

Decided June 5, 2000.

Gerald N. Blaney, Jr., Solicitor, Jeffrey P. Kwiatkowski, Staci B. Abrams, Assistant Solicitors, for appellant.

Robert Greenwald, for appellee.

3. “[I]t is always the duty of a court to inquire into its jurisdiction, upon its own motion where there is doubt.” Williams v. State, 217 Ga. 312, 313 (122 SE2d 229) (1961). Since the trial court lacked jurisdiction over Sterling’s case when it was tried, the trial was a nullity, and double jeopardy will not prevent a retrial. OCGA § 16-1-8 (d) (1); Chambers v. State, 262 Ga. 200, 202 (3) (415 SE2d 643) (1992). Upon retrial, jurisdiction over this fourth felony shoplifting charge will be in superior court.

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.

       “The Georgia Constitution establishes exclusive jurisdiction over felony cases in the superior court.” Bishop v. State, 265 Ga. 821, 822 (462 SE2d 716) (1995).

       We recognize that the consequence of this opinion may be the subsequent invalidation of a misdemeanor shoplifting conviction, if — sometime after conviction — it becomes known that a defendant (who has no motive to volunteer the information) actually had three priors and thus the state court lacked jurisdiction to impose a sentence on a fourth conviction. But that is the consequence of the unqualified, mandatory language of the statute that “upon conviction of a fourth ... offense for shoplifting ... the defendant commits a felony and shall be punished [therefor].” OCGA § 16-8-14 (b) (1) (C).


author: Barnes, Judge.

text:
    A00A0663.
    ROBERTS v. THE STATE.
    (534 SE2d 526)
   Barnes, Judge.

Wayne Douglas Roberts was arrested and indicted for armed robbery, three aggravated assault counts, four kidnapping counts, and one weapons charge. He was convicted of armed robbery, one count of aggravated assault, and one count of possessing a weapon while committing a crime. Roberts appeals, alleging his trial counsel was ineffective, the evidence was insufficient, and the trial court erred in admitting into evidence his jail intake medical screening form. For the reasons that follow, we affirm.

We view the evidence on appeal in the light most favorable to the verdict and no longer presume the defendant is innocent. We do not weigh the evidence or decide the witnesses’ credibility, but only determine if the evidence is sufficient to sustain the convictions. Taylor v. State, 226 Ga. App. 254, 255 (485 SE2d 830) (1997).

Viewed in that light, the evidence at trial established that a masked man entered a Taco Bell restaurant on the morning of March 23, 1998. He brandished a gun at three employees and herded them into a cooler in the back of the store and then made a fourth employee unlock the store safe before pushing her back into the cooler with her co-workers. The robber took off his mask, removed $900 to $1,000 from the safe, and left in a blue, four-door Volkswagen driven by another man. A store security camera filmed the incident and the getaway car.

An investigator testified that he had been working on several armed robberies involving Taco Bells, including this one, and that he had received several tips that a man named Jammie Verdree was involved. After Verdree’s mother identified him from video stills of the robbery, the investigator obtained an arrest warrant for Verdree. Another investigator arrested Verdree at his girlfriend’s house; Roberts was present during the arrest. While searching the house, the investigator discovered and took possession of a gun matching the description the robbery victims had given him.

The next day, Roberts called the investigator to explain that he owned the gun and needed to retrieve it for his security job. The investigator invited him to come to the station to talk about it, and Roberts did so. While they were talking, Roberts mentioned that he owned a blue, four-door Volkswagen, and the investigator began questioning him more closely about the robbery. Eventually, after receiving Miranda warnings, Roberts gave a statement in which he admitted that he lent Verdree his gun, drove him to the Taco Bell knowing he was planning to rob it, and then drove him away after-wards.

1. We conclude that the evidence outlined above was sufficient for a rational trier of fact to find Roberts guilty beyond a reasonable doubt of being a party to armed robbery, aggravated assault, and possessing a weapon while committing a crime. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Roberts argues that he was denied effective assistance of counsel because his trial attorney failed to file a motion to suppress his statement, failed to impeach the arresting officer’s testimony, failed to object to the State’s leading questions, failed to read the State’s file, and failed to subpoena a doctor to authenticate Roberts’ medical condition. To establish a claim of ineffective assistance of counsel, Roberts must show both that counsel’s performance was deficient and that, but for the deficient performance, a reasonable probability exists that the results of the proceedings would have been different. Davis v. State, 221 Ga. App. 131, 133 (3) (470 SE2d 520) (1996).

The record shows that the issue of ineffective assistance of trial counsel was raised in a timely fashion in the motion for new trial filed by Roberts’ appellate counsel and that the trial judge denied the motion after a hearing. Generally, if the claim of ineffectiveness relates to matters outside of the record, then trial counsel’s testimony will usually be needed. If the claim involves matters during the course of the trial as shown by the transcript, then trial counsel’s testimony may not be required. Dawson v. State, 258 Ga. 380, 381 (3) (369 SE2d 897) (1988).

(a) As to Roberts’ claim that his trial counsel was ineffective for failing to file a motion to suppress his statement on the ground that it was not voluntary, the trial transcript reveals that the judge held a Jackson-Denno hearing mid-trial, heard testimony from the arresting officer and Roberts, and found that Roberts’ statement was voluntary. Roberts has therefore not shown any prejudice resulting from trial counsel’s failure to file a pretrial motion to suppress his statement.

(b) Roberts contends his trial counsel was ineffective for failing to subpoena his doctor to authenticate that he has insulin-dependent diabetes that had been rendered unstable by bronchitis medication, causing him to be confused during the arresting officer’s questioning. Because the doctor did not testify at trial or apparently at the motion for new trial hearing, no evidence in the record supports Roberts’ claim that the doctor’s testimony would have shown he was suffering from mental confusion when he admitted lending his gun to Verdree and driving him to and from the robbery. See Letson v. State, 236 Ga. App. 340, 341-342 (2) (512 SE2d 55) (1999). As a result, the trial court did not err when it denied this portion of Roberts’ claim that his counsel was ineffective.

(c) As to Roberts’ remaining claims of ineffective assistance, in the absence of a transcript of the new trial hearing, we must assume that he failed to meet his burden of proving these alleged ineffective acts and that the trial court correctly denied the motion for new trial on that ground. Williamson v. State, 234 Ga. App. 658 (1) (507 SE2d 765) (1998).

3. Roberts contends the trial court erred in admitting the intake medical form he filled out before he was admitted to the county jail because the State failed to give him a copy of the form before trial.

OCGA § 17-16-4 (a) (3) directs the State to permit the defendant to inspect and copy papers and documents that are “within the possession, custody, or control of the state or prosecution and are intended for use lay the prosecuting attorney as evidence in the prosecution’s case-in-chief or rebuttal at the trial. . . .” If the State fails to comply with OCGA § 17-16-4 (a) (3), the trial court may grant the defendant a continuance or prohibit the State from introducing the evidence it improperly withheld from the defense, if the defendant shows prejudice to himself and bad faith by the State. OCGA § 17-16-6. Tucker v. State, 222 Ga. App. 517, 518 (3) (474 SE2d 696) (1996).

Decided May 8, 2000

Reconsideration denied June 7, 2000.

Ellis R. Garnett, for appellant.

Wayne D. Roberts, pro se.

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

Roberts did not seek a continuance. The trial court noted that the State had an open file policy, that Roberts could have examined the form any time before trial, and that the State probably did not intend to introduce the form until Roberts testified. Further, Roberts did not show he was prejudiced or the State acted in bad faith. Consequently, the trial court did not err, under OCGA § 17-16-6, in denying Roberts’ motion to exclude the form from evidence at trial. Parrott v. State, 240 Ga. App. 173, 174 (1) (523 SE2d 29) (1999).

Judgment affirmed.

Blackburn, P. J., and Eldridge, J., concur.


author: Smith, Presiding Judge.

text:
    A00A0008.
    YATES et al. v. DEAN et al.
    (535 SE2d 335)
   Smith, Presiding Judge.

Clayton Yates, Jr., his wife Debra Yates, and his children Clayton Yates III, Carmen Yates, and Cecelia Yates appeal from the judgment entered on the jury verdict in their favor in the suit they filed against Robert Lawrence Dean III to recover damages incurred in an automobile collision. The jury returned a verdict in favor of Clayton and Debra Yates for medical bills in the amount of $5,360.90; in favor of Carmen Yates in the amount of $3,000; and in favor of Cecelia Yates and Clayton Yates III, in the amount of $1,000 each. The trial court reduced the jury’s award to Clayton and Debra Yates by $5,138.65, based upon evidence that the Yateses’ uninsured motorist insurance carrier had previously paid medical bills in that amount. The Yateses raise five enumerations of error, all involving the write-off. We conclude that the write-off was proper, and we affirm the judgment.

State Farm Mutual Automobile Insurance Company was served as the Yateses’ uninsured motorist carrier. It answered in the name of Dean and cross-claimed against him. At trial, out of the presence of the jury, State Farm presented its records showing payment of the Yateses’ medical bills. The Yateses’ attorney objected to the introduction of this exhibit on the ground that she had never seen it and it had not been listed in the pretrial order.

1. The Yateses first contend that under OCGA § 33-24-56.1, State Farm may seek reimbursement for its medical bill payments only after the insured has been fully compensated for the loss, OCGA § 33-24-56.1 (c), and in this case they have not been fully compensated. But by its terms, OCGA § 33-24-56.1 (c) clearly applies only “[i]n the settlement of any claim for personal injury.” This claim was not settled; it was litigated and resulted in a jury verdict. Nor did it involve “reimbursement.” State Farm did not seek to recover payments made to the Yateses; it merely sought to set off the amount it had already paid them from the amount of the judgment. The Yateses do not deny they received these payments from State Farm. Disallowing the set-off would result in a double recovery for the Yateses. See Johnson v. State Farm &c. Ins. Co., 216 Ga. App. 541, 544 (455 SE2d 91) (1995).

2. The Yateses maintain that the write-off was improper because State Farm failed to comply with the notice requirements contained in OCGA § 33-24-56.1. The provisions of OCGA § 33-24-56.1 apply when the benefit provider is seeking reimbursement, which is not the case here. As in Johnson, supra, the policy itself provides for nonduplication of payments. As a contractual matter, therefore, this falls outside the purview of OCGA § 33-24-56.1.

Moreover, the scheme of notices in the statute begins with the provision that when a benefit provider has paid medical benefits, the person asserting a claim for recovery against a third party must provide notice to the benefit provider by certified mail of their claim against the third party. OCGA § 33-24-56.1 (g). No evidence in the record indicates that this notice was provided to State Farm by the Yateses.

3. The Yateses assert that the write-off was improper because State Farm did not raise this defense or claim for set-off in their answer and counterclaim, as required by OCGA § 9-11-12 (b), or in the pretrial order. This assertion is also without merit.

Nonduplication of payments is not an affirmative defense listed in OCGA § 9-11-12 (b), nor is it a compulsory counterclaim; it is not an independent claim for recovery against the plaintiffs. State Farm was therefore not required to raise this issue in its answer or counterclaim. Instead, it is simply a reason for reducing the amount of a verdict so that the plaintiff does not recover more than the amount of actual damages.

Decided June 7, 2000.

John H. Armwood, Rita T. Williams, for appellants.

Harper, Waldon & Craig, Russell D. Waldon, James A. Neuberger, Chambers, Mabry, McClelland & Brooks, Wilbur C. Brooks, for appellees.

4. The Yateses next argue that State Farm did not lay a proper foundation for the introduction of evidence that the medical bills had been paid. It is true that “[although OCGA § 24-7-9 streamlines the process for offering medical bills without the necessity of a medical provider appearing personally, the rule does not obviate the need for laying a proper foundation. [Cit.]” Hossain v. Nelson, 234 Ga. App. 792, 794 (4) (507 SE2d 243) (1998). But in addition to arguing that State Farm had given no notice of a set-off, the Yateses objected to the introduction of the evidence of payment only on the ground that they had not seen the records before. It is axiomatic that we cannot consider alleged error not raised at trial. Fisher v. Marvin Reese Cos., 231 Ga. App. 487 (1) (499 SE2d 411) (1998). “This Court reviews enumerations to correct errors committed by trial courts. It lacks jurisdiction to consider arguments presented for the first time on appeal. [Cits.]” Jones v. Dykes, 231 Ga. App. 110, 111 (3) (497 SE2d 828) (1998).

5. The same is true of the Yateses’ final enumeration of error, in which they contend that State Farm’s attorney had no personal knowledge of the validity of the contents of the documents presented to the court to show that State Farm had paid the Yateses’ medical bills. This argument was not made to the trial court, and this court cannot consider it. Jones, supra.

Judgment affirmed.

Pope, P. J., and Miller, J., concur.


author: Smith, Judge.

text:
    A00A0049.
    SHUMAN v. THE STATE.
    (535 SE2d 526)
   Smith, Judge.

Leavon Shuman, Jr. appeals his convictions for armed robbery, aggravated assault, and possession of a knife during commission of a felony. He enumerates as error the trial court’s denial of his motion to strike OCGA § 17-10-7 (b) as unconstitutional, the trial court’s charge to the jury that the testimony of a single witness is sufficient to establish a fact, and the trial court’s decision to allow similar transaction evidence. For the reasons that follow, we affirm.

On July 4, 1997, a man robbed the front desk clerk at Villager Lodge in Savannah. He jumped over the counter, held a knife to the clerk’s side, and vaulted back over the counter after grabbing bills from the cash register. The robber entered the hotel lobby about ten minutes before the attack and engaged in casual conversation with the clerk.

About 30 minutes after the robbery, a police officer responded to a call that a suspect had been seen in a supermarket near the hotel. The officer found that Shuman fit the description of the clerk’s assailant, and the clerk identified Shuman as her attacker when the officer escorted him back to the hotel.

The State produced evidence that Shuman had robbed the desk clerks at Hampton Inn, Fairfield Inn, Econo Lodge, Imperial Suites, Villager Lodge, and Budget Inn, all in Savannah or Chatham County. In five of these incidents, Shuman either jumped over or went around the counter to take cash from the hotel register. In four of the incidents, he threatened the clerk with a weapon. The State produced certified copies of Shuman’s convictions in connection with all six incidents.

1. Pursuant to OCGA § 17-10-7 (b), Shuman was sentenced to life imprisonment without the possibility of parole for this armed robbery conviction. Shuman contends that under both the United States and Georgia Constitutions, OCGA § 17-10-7 (b) violates his right to due process and his right to be free from cruel and unusual punishment. Shuman’s argument is foreclosed by the Supreme Court of Georgia’s decision in Ortiz v. State, 266 Ga. 752, 754 (2) (a) (470 SE2d 874) (1996).

2. Shuman assigns error to the following jury charge: “The testimony of a single witness, if believed by you, is generally sufficient to establish a fact.” Shuman acknowledges that this is a correct statement of the law. See OCGA § 24-4-8. He contends, however, that the charge is error because it is incomplete. While it is true that there are exceptions to the rule expressed in the charge, such as accomplice testimony or prosecutions for treason and perjury, none of the exceptions apply here. A jury charge can be adjusted to the facts. See Ceasar v. State, 239 Ga. App. 752, 753 (2) (521 SE2d 866) (1999); Howard v. State, 192 Ga. App. 813, 814 (3) (386 SE2d 667) (1989). The charge given was good law and appropriate to this case. The trial court did not err in giving it.

3. In his final enumeration of error, Shuman complains that the trial court erred by allowing evidence of the six previous hotel robberies. At the pretrial hearing, the trial court ruled that the similar transaction evidence was not offered solely to impugn Shuman’s character, but for the appropriate purposes of showing identity, bent of mind, and course of conduct. The trial court also found that the State could sufficiently prove the prior offenses and that there was a striking similarity between the former offenses and the one on trial. See Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991). Shuman argues that while similar transaction evidence may be allowed to show identity, the trial court was required to weigh the probative value of the evidence against the danger of substantial prejudice. See Brockman v. State, 263 Ga. 637, 640 (3) (436 SE2d 316) (1993). Shuman further contends that the trial court must consider whether similar transaction evidence is needed to prove an issue or whether the issue can be proved in another manner. See Smith v. State, 232 Ga. App. 290, 293 (1) (501 SE2d 523) (1998). Given that eyewitness testimony provided the State with the evidence of identity, Shuman argues that the prejudice to him of the similar transaction evidence outweighed its probative value because evidence of the six prior crimes and the certified copies of the convictions were duplicative and excessive.

We find Shuman’s arguments unpersuasive. We have upheld the introduction into evidence of multiple similar transactions. See, e.g., Simmons v. State, 266 Ga. 223, 224 (2) (a) (466 SE2d 205) (1996) (eight instances). And certified copies of convictions are admissible when they are helpful in proving the identity of the defendant as the perpetrator of a similar transaction offense and are not the sole evidence of a previous crime. See Allison v. State, 213 Ga. App. 195, 196 (1) (b) (444 SE2d 347) (1994). See also Culver v. State, 230 Ga. App. 224, 229 (3) (496 SE2d 292) (1998); Posey v. State, 222 Ga. App. 405, 406 (1) (474 SE2d 206) (1996) (physical precedent only).

The similar transaction evidence presented by the State was highly probative. Shuman’s defense was identity, and the eyewitness testimony of the clerk provided the only direct evidence of Shuman’s identity as the perpetrator. The elements of this crime do not seem unusual at first: a robbery of a hotel clerk in Savannah in which the perpetrator leaps over the counter, uses a knife to threaten the victim, and engages in small talk before the crime. But when this hotel robbery is compared to the six previous hotel robberies committed by Shuman, the similarities in the offenses become so striking as to constitute evidence of a “signature crime.” See Smith v. State, 235 Ga. App. 134, 139 (4) (508 SE2d 490) (1998); Shaw v. State, 211 Ga. App. 647, 648-649 (1) (440 SE2d 245) (1994). The probative value of the similar transaction evidence to show Shuman’s identity as the perpetrator of this robbery was increased with evidence of each additional offense; it was not merely cumulative. Therefore, the similar transaction evidence was more probative than prejudicial, and the trial court did not err in allowing it.

Decided June 7, 2000

Jackson & Schiavone, Michael G. Schiavone, for appellant.

Spencer Lawton, Jr., District Attorney, Ann M. Elmore, Assistant District Attorney, for appellee.

Judgment affirmed.

Pope, P. J., and Miller, J., concur.


author: Miller, Judge.

text:
    A00A0101.
    LIBERTY MUTUAL INSURANCE COMPANY et al. v. JOHNSON et al.
    (535 SE2d 511)
   Miller, Judge.

The questions on appeal are threefold. First, on a motion to recuse, is the accompanying affidavit legally sufficient where it alleges that the bias of the judge arises from having previously ruled on an issue that is now before the judge again? Second, when pursuing its subrogation rights, is a workers’ compensation insurer entitled to a jury trial on the question of whether the injured employee has been fully and completely compensated under OCGA § 34-9-11.1 (b)? And third, did the insurer’s evidence here mandate as a matter of law that a settlement of $3.2 million (plus approximately $500,000 in workers’ compensation benefits) fully and completely compensated the estate of the quadriplegic employee (now deceased) and his family? Because we answer each of these questions in the negative, we affirm the trial court’s judgment against the insurer.

As the result of an auto collision, Herbert Earl Johnson experienced severe and disabling injuries, including quadriplegia, loss of control of his bladder and bowels, and multiple fractures and dental injuries. Because the collision occurred while he was working for Mitchell Construction Company, he received nearly $500,000 in workers’ compensation benefits from Liberty Mutual Insurance Company. Within 16 months of the collision, he died. His estate and family sued the parties responsible for the collision for $7.5 million, asserting claims of negligence, wrongful death, and loss of consortium.

Following extensive settlement negotiations, plaintiffs settled the case for $3.2 million, apportioned equally between the claims of the estate and the wrongful death claims. Although the settlement documents did not specify what portion of the amount applied to economic losses as opposed to noneconomic losses, plaintiffs’ initial settlement demand of $8 million did include special damages of approximately $1.9 million ($700,000 in medical expenses and $1.2 million — present value — in lost wages). After an evidentiary hearing, the court approved the settlement and made the finding that the $3.2 million amount plus the workers’ compensation benefits did not fully and completely compensate plaintiffs for the losses resulting from Johnson’s injuries and death.

Liberty Mutual and Mitchell Construction, which were not parties to nor present at the settlement approval hearing, asserted a subrogation lien on the settlement proceeds under OCGA § 34-9-11.1 (b) and moved to intervene, which motion the court granted. They immediately moved to recuse the judge on the ground that in their absence he had already made a finding contrary to their interests, and they also requested a jury trial. Overruling both the recusal motion and the jury request, the judge held an evidentiary hearing on the question of subrogation rights and ruled that Liberty Mutual and Mitchell Construction failed to prove that the $3.2 million settlement amount plus the approximate $500,000 in workers’ compensation benefits fully and completely compensated plaintiffs for all the economic and noneconomic losses resulting from the injuries to Johnson. Because Liberty Mutual and Mitchell Construction recovered nothing from the settlement proceeds, they have appealed.

1. Appellants first complain that the court erred in denying their recusal motion. Uniform Superior Court Rule 25.3 provides that when presented with a motion to recuse, the judge shall immediately determine the legal sufficiency of the accompanying affidavit which asserts the factual basis for the motion. If the facts asserted in the affidavit, even if taken as true, do not support a charge of bias sufficient to warrant recusal, the affidavit is legally insufficient, and the judge should deny the motion.

To justify recusal, “the alleged bias must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case.” Thus, “[s]imply because the judge had approved the [disputed previous] order in this case would not show bias or prejudice so as to prevent his reviewing his action fairly and impartially.” Otherwise, no judge could ever rule on a motion to reconsider a previous order. Here the only bias alleged in the affidavit was that the judge, based on what he learned in the first evidentiary hearing, had previously ruled adversely to appellants’ interests. As this was legally insufficient, the judge correctly denied the motion to recuse.

Appellants cite Houston v. Cavanagh for the proposition that an earlier ruling based on participation in the case may constitute bias. But Houston, which concerned a hearing on an OCGA § 9-15-14 claim against an attorney whom the judge had earlier found in contempt, expressly restricted its holding to its rare facts, a restriction we have assiduously enforced.

2. OCGA § 34-9-11.1 (b) grants a subrogation lien to the employer and the workers’ compensation insurer on any monies received by the injured employee from the responsible third parties but allows recovery on the lien only if the employee has been fully and completely compensated. Appellants contend that they had a right to a jury trial on the question of whether the settlement amount and the workers’ compensation benefits fully and completely compensated Johnson’s estate and family.

The Georgia constitutional right to a jury trial merely guarantees the continuance of the right as it existed at common law or by statute at the time the constitution was originally adopted. Just as the right did not apply to cases arising under the later-adopted workers’ compensation statutory scheme, it does not apply to the 1992 act amending that statutory scheme to create a subrogation lien recoverable only if an employee was fully and completely compensated, yet prescribing no method for making that determination. Thus, in the absence of a right to a jury trial on this issue, the question is one of fact for the trial court.

The court did not err in denying appellants’ request for a jury trial on this issue.

3. Finally, appellants argue that the evidence demanded a finding that Johnson’s estate and family were fully and completely compensated for the economic and noneconomic losses resulting from Johnson’s injuries. Appellants claim that because they did not concede that Johnson’s death resulted from the injuries, the court could not consider the future lost wages as part of the economic damages.

Decided June 7, 2000.

Barrow, Sims, Morrow, Lee & Gardner, Charles W. Barrow, Christine J. Bedingfield, for appellants.

Ashman, Lasky & Cooper, Charles R. Ashman, Jeffrey W. Lasky, for appellees.

Appellants misapprehend the burden of proof. As lien claimants, they bore the burden of establishing that the plaintiffs had been fully and completely compensated. Thus, appellants bore the burden of showing that the death within 16 months of the collision, for which death the family had been compensated by the third parties responsible for the accident, was not a part of the losses resulting from the collision. Moreover, plaintiffs adduced opinion evidence that even the entire settlement amount of $3.2 million would not have fully compensated for the losses associated with the physical injuries alone, before accounting for the death. Because there was some testimony that the settlement amount plus the workers’ compensation benefits did not fully and completely compensate plaintiffs, we will not disturb the court’s factual determination to that effect.

Judgment affirmed.

Pope, P. J., and Smith, P. J., concur.

        Berry v. State, 267 Ga. 605, 607-608 (3) (481 SE2d 203) (1997); Gibson v. Decatur Fed. Sav. &c. Assn., 235 Ga. App. 160, 166 (3) (508 SE2d 788) (1998).

       (Citations and punctuation omitted.) Id.; see Berry, supra, 267 Ga. at 607 (3).

        Daniel v. Yow, 226 Ga. 544, 546 (2) (176 SE2d 67) (1970).

       199 Ga. App. 387 (405 SE2d 105) (1991).

       Id. at 389.

       See Stephens v. Ivey, 212 Ga. App. 407, 408 (2) (442 SE2d 248) (1994); In re Jones, 205 Ga. App. 166, 167 (2) (421 SE2d 538) (1992).

       Ga. Const. of 1983, Art. I, Sec. I, Par. XI (a) (“[t]he right to trial by jury shall remain inviolate. . . .”).

        Metro. Cas. Ins. Co. &c. v. Huhn, 165 Ga. 667, 672 (2) (142 SE 121) (1928); see Smith v. Milliken & Co., 189 Ga. App. 897, 898 (2) (377 SE2d 916) (1989).

        Huhn, supra, 165 Ga. at 673 (3).

       OCGA § 34-9-11.1 (b) (Ga. L. 1992, p. 1942, § 2); see Bartow County Bd. of Ed. v. Ray, 229 Ga. App. 333, 334 (494 SE2d 29) (1997) (“[t]he statute prescribes no method by which an employer can establish that a workers’ compensation recipient has been fully and completely compensated. .. .”).

       See, e.g., Sommers v. State Compensation Ins. Fund, 229 Ga. App. 352, 355 (4) (b) (494 SE2d 82) (1997); Bartow County, supra, 229 Ga. App. at 333-334 (approving use of a special verdict form).

       See id. at 335.

       Appellants’ hearsay objections to plaintiffs’ introduction of a video at the bench trial are of little import, as it is presumed that the judge as the trier of fact distinguished between competent and incompetent evidence. See Corsini v. State, 238 Ga. App. 383, 385 (2) (519 SE2d 39) (1999).

       See Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994) (when the judge sits as the trier of fact, his factual findings should not be disturbed if there is any evidence to support them); In re Estate of Wilson, 236 Ga. App. 496, 498-499 (1) (512 SE2d 383) (1999).


text:
    A00A0221.
    HOLT v. THE STATE.
    (535 SE2d 514)
   Barnes, Judge.

James Edward Holt appeals his convictions of one count of rape and two counts of aggravated assault with a deadly weapon. He was sentenced to 20 years on each count with all sentences to run concurrently. He contends the trial court erred by (1) permitting him to represent himself because he did not knowingly and intelligently waive his right to counsel, (2) allowing the prosecutor to impeach him improperly, (3) failing to give a charge on impeachment, and (4) refusing to read testimony to the jury during their deliberations. We affirm.

The charges against Holt arose from a complaint made by one of Holt’s female friends. According to her version of the events, the two of them spent an evening on the town to celebrate her impending move. When they returned to her apartment, Holt assaulted her with a pistol and ultimately forced her to have sexual relations with him. Holt, however, denied that he assaulted her with a pistol and maintained that the alleged victim consented to sexual relations. Although initially Holt claimed that he was incompetent to stand trial, a jury found otherwise, and Holt proceeded to trial.

Before his trial began, Holt fired the public defender assigned to represent him. At that time, the trial court advised Holt that trial proceedings are technical proceedings with technical rules, and “sincerely, earnestly” urged Holt not to proceed without defense counsel because it was not likely to work to Holt’s benefit. Holt responded, however, that he did not want his appointed defense counsel to represent him. When Holt explained that he was just saying that he would prefer someone else, the trial court responded that the trial would begin that day. Thereafter, the trial court urged Holt to reconsider and allow the public defender to represent him, but Holt refused.

Following jury selection during which Holt was assisted by the public defender, the trial court again reminded Holt that a trial was a technical proceeding and he needed the assistance of someone trained to help him if he wanted to represent himself. Holt responded that he realized he did not have the experience of the public defender, but was concerned that the public defender would not bring out the things Holt wanted. The trial court explained, however, that the public defender had worked on the case for some time, knew what was to be expected, had access to the prosecutor’s entire file, and had training. After the public defender submitted charges on Holt’s behalf, the trial court explained to Holt his need to make decisions about trial strategy and his need to know about the law. The trial court again reminded Holt that self-representation was “pretty risky,” and allowed him to consider overnight whether to continue representing himself.

The next morning, Holt again chose to represent himself. The public defender remained available to assist Holt, and the trial court reminded Holt that the rules of evidence would apply and suggested that he confer with the public defender about questioning witnesses. In addition to conferring with Holt, the public defender also subpoenaed witnesses for him.

Later, the trial court again asked Holt to consider allowing the public defender to question a witness, but Holt declined. In addition to the trial court’s repeated efforts to persuade Holt to allow the public defender to try the case, Holt received the court’s assistance during the'trial, e.g., in prompting Holt to qualify a witness as an expert and later explaining the scope of closing argument. Further, the public defender conferred with Holt throughout the trial, and on occasion argued on Holt’s behalf.

Ultimately, however, the jury found Holt guilty on all counts and affirmed the verdict when Holt caused the jury to be polled.

After the verdict was returned, Holt said, “Even though it might not have been a wise decision for me to represent myself, but that was my choice and I will live with that, and I can’t do nothing but live with that.” Holt explained that he chose to represent himself because he felt it would be more convincing for him to tell his story.

1. Any person:

charged with a felony has an unconditional and absolute constitutional right to representation by a lawyer that attaches at the pleading stage of the. criminal process. This right may be waived only by voluntary and knowing action by the accused. Further, waiver will not be lightly presumed, and a trial court must employ every reasonable presumption against waiver. Should a defendant wish to represent himself, however, he must be given an opportunity to voluntarily, knowingly, and intelligently waive his right to counsel. Such a waiver requires an intentional surrendering or abandonment of the right to counsel, and the constitutional right of the accused to be represented by counsel invokes the protection of the trial court. [Cit.]

Brown v. State, 244 Ga. App. 206, 207 (1) (535 SE2d 281) (2000). Although we have held that no magic language must be used when the trial court determines that a defendant has validly waived his right to counsel (Reviere v. State, 231 Ga. App. 329, 330 (1) (498 SE2d 332) (1998)), in Clarke v. Zant, 247 Ga. 194, 197 (275 SE2d 49) (1981), our Supreme Court held that:

the record should reflect a finding on the part of the trial court that the defendant has validly chosen to proceed pro se. The record should also show that this choice was made after the defendant was made aware of his right to counsel and the dangers of proceeding without counsel.

The trial court’s finding on the record that the defendant has chosen validly to proceed pro se, together with advice the defendant received about the right to counsel and warnings given on the dangers of proceeding without counsel, would be helpful in the appellate process. Further, absent some special circumstance arising after the initial decision to proceed without counsel, once a defendant validly has elected self-representation, the trial can proceed without additional warnings or advice on this subject.

Nevertheless, whether a defendant has validly waived his or her right to counsel depends upon the particular facts and circumstances of each case, including the defendant’s background, experience, and conduct. Clarke, 247 Ga. at 196. In this case, the trial court repeatedly urged Holt to take advantage of the services of the public defender and repeatedly advised him of the dangers of proceeding pro se. Thus, considering the full record on appeal, we are satisfied that Holt validly elected to proceed without counsel.

2. Holt also alleges that the prosecutor improperly impeached a defense witness by referring to Holt’s arrest record. Review of the transcript shows, however, that Holt declined to object to this questioning during a bench conference with the public defender, Holt, the prosecutor, and the judge. Given this circumstance, the issue was waived because it was not raised in the trial court, and we cannot consider an issue raised for the first time on appeal. Scott v. State, 243 Ga. 233, 234-235 (2) (253 SE2d 698) (1979); Cooper v. State, 173 Ga. App. 254, 256 (1) (325 SE2d 877) (1985).

3. Holt’s contention that the trial court erred by not giving a charge on impeachment of witnesses is without merit. It is not reversible error for the trial court to fail to give a request to charge that is not submitted in writing by the complaining party. Bullock v. State, 202 Ga. App. 65, 66 (1) (413 SE2d 219) (1991). Further, although Holt reserved his objections when the trial court asked if he had any objections to the charge, that reservation is not enough in this instance.

While present law exempts the defendant in a criminal case from the strict requirements imposed on litigants in civil cases to preserve an issue on the failure to give instructions to the jury this does not relieve him from the necessity of requesting instructions, except in those circumstances where the omission is clearly harmful and erroneous as a matter of law in that it fails to provide the jury with the proper guidelines for determining guilt or innocence.

(Citation and punctuation omitted.) Kitchen v. State, 263 Ga. 629, 630 (1) (436 SE2d 645) (1993). Reviewing the jury charge as a whole, we conclude that the lack of a charge on impeachment did not deprive the jury of proper guidelines for determining whether Holt was, guilty or not guilty.

4. Holt’s allegation that the trial court erred by refusing to read testimony to the jury is also without merit, because the jury made no such request. Instead, the jury asked for a copy of the transcript, which, of course, was not available. When the trial court explained this to the jury, it made no further requests for testimony.

Decided June 7, 2000.

Peters, Roberts, Borsuk & Guest, R. Stephen Roberts, J. M. Raffauf, for appellant.

J. Tom Morgan, 'District Attorney, Jennifer M. Daniels, Maria Murder-Ashley, Assistant District Attorneys, for appellee.

Judgment affirmed.

Blackburn, P. J., and Eldridge, J., concur.


text:
    A00A0239.
    DAVIS v. THE STATE.
    (535 SE2d 528)
   Miller, Judge.

Jermaine Edward Davis, along with co-defendants Moody and Anderson, was tried before a jury and found guilty of two counts of armed robbery and one count of possession of a firearm during the commission of a felony. In seven enumerations of error, he (1) challenges the sufficiency of the evidence and complains of (2) the joint trial with his co-defendants, (3) the denial of his motion in limine, (4) an instruction on a prior inconsistent statement as substantive evidence, (5) the denial of a continuance to evaluate exculpatory evidence revealed only in mid-trial, and (6) the refusal to grant funds to hire an expert witness. Davis further excepts to the failure to give his requested instruction on “knowledge.” We affirm.

Viewed in the light most favorable to the jury’s verdicts, the evidence revealed that Lawrence Price operated a mobile catering business, selling sandwiches and refreshments to workers at construction sites. Around 4:00 p.m. on December 22, 1995, Price and his granddaughter, Sherry Chaffin, arrived at the parking lot of a construction business to cash payroll checks and collect from people to whom Price had extended credit. In bank money bags, Price had more than $17,000 in cash. Before any employees came out to the parking lot, three men approached, and one spoke to Price. As Price turned around, he saw that one of the three carried a sawed-off shotgun. The gunman said, “just give me the money.” Price was struck on the right ear from behind and fell back. Chaffin screamed as the gunman took $50 from her hand. As the gunman ran toward a yellow car with a black top, Price drew his nine millimeter automatic weapon and fired, hitting the vehicle several times. Price identified the getaway car as that depicted in State’s Exhibits 1, 2, and 3.

Temarco Hawk also identified the car in State’s Exhibits 1, 2, and 3 as his 1976 Regal. Hawk knew defendant Davis from sixth and seventh grade. On December 22, 1995, Hawk drove Davis, Moody, and Anderson to a fenced-in parking lot, where he was told to just “wait.” Moody exited first. Then Davis got out of the car and started talking to Moody, as in a huddle. Anderson exited the car and joined Davis and Moody. The three men walked away from Hawk’s car, where he lost sight of them. But 30 seconds to a minute later, Davis came running back to the car with bulges in his coat. Anderson followed two seconds later with two green money bags. Davis jumped in the car as if panicked and scared. They said “go, go, go,” and Hawk heard gunshots. Moody ran back to the car with something resembling a sawed-off shotgun in his hand. Hawk drove out of the parking lot to a subdivision, where the three jumped out of the car and ran for some bushes. The following day, Hawk’s car was impounded by the Covington police. Davis telephoned Hawk and told him, “ ‘Don’t plead guilty because they don’t have no evidence or nothing on us. Don’t plead guilty.’ That’s all [Davis] kept saying.” Hawk did plead guilty to robbery versus armed robbery and was sentenced as a juvenile to 36 months probation, in exchange for his testimony.

Tabitha Height dated Davis for three or four years. At trial she denied ever telling the police that Davis, Moody, and Anderson had bragged about the armed robbery. Sergeant John Seabolt of the Covington Police Department was permitted to relate Height’s December 28, 1995 statement that Davis, Moody, Anderson, and a fourth male Height knew only as Marco were at her house the previous Friday; that the four subjects were showing off a large amount of money and were dividing it; and that they said they obtained the money by robbing someone. Height knew the getaway car had already been impounded by the police. She informed Sergeant Seabolt that Davis gave his aunt some of the money to rent a van and that other proceeds of the robbery were used to rent a motel room where the thieves reveled.

1. The evidence of accomplice Hawk that Davis was a knowing participant, as corroborated by Height’s statement to police, is sufficient under the standard of Jackson v. Virginia to authorize the jury’s verdicts that Davis is guilty, beyond a reasonable doubt, as a party to the armed robbery and as a party to the possession of a firearm during the commission of a felony alleged in the indictments.

2. Since Height denied making any statement to the police after being called as a witness for the State, the trial court correctly instructed the jury they could consider proof of her prior inconsistent statement incriminating Davis, Moody, and Anderson as substantive evidence.

3. The trial court did not err in denying Davis’s motion in limine to exclude any reference to his arrest being effectuated by a SWAT team.

In McClung v. State, 206 Ga. 421, 423 [(57 SE2d 559) (1950)], it was said: “‘The flight of the accused, the time when and the place where arrested, the manner of the arrest, how he was armed, and whether he resisted, and all the circumstances connected with the arrest, we consider proper evidence to be submitted to the jury to be weighed by them for what they are worth.’ Wayne v. State, 56 Ga. 113 (5), 119 [(1876)] ,”

Here, the trial court’s determination that the circumstances of defendant’s arrest were more probative than prejudicial does not constitute an abuse of discretion and is affirmed. Under Court of Appeals Rule 33 (a), DeCastro v. State, relied upon by Davis, is not binding precedent but is physical precedent only since one judge concurred in the judgment only. Moreover, DeCastro acknowledges that all the circumstances of the arrest may be admitted.

4. Davis next contends the grant of the State’s motion to join the parties for trial was error, arguing that, because the evidence against him was weaker than the evidence against Moody, he was impermissibly found guilty by association.

The mere fact that testimony against one of two co-defendants is stronger than that linking the other to the crime does not demand a finding that the denial of a motion to sever (or the grant of a motion for joinder) is an abuse of the discretion committed to the presiding judge by OCGA § 17-8-4. Nor is any abuse of discretion shown by joinder of these co-defendants, where a conspiracy or joint enterprise is established, the State’s case is straightforward, Davis’s alibi defense was not compromised by his co-defendants, and the jury was instructed to consider the State’s case against each defendant individually.

5. The fifth enumeration complains of the purported denial of a request for a continuance. The record does not support this contention.

In mid-trial, Lieutenant Craig Treadwell of the Covington Police Department revealed that certain fingerprint evidence was arguably exculpatory, in that no usable prints were discovered inside Hawk’s car, and that of the eight legible prints taken from the outside of the vehicle, none matched any of these three co-defendants. These are the results contained in a report from the State Crime Lab, which the State’s attorney did not realize was in the file until the morning of trial. Davis disavowed seeking to strike the testimony relating the substance of the report, but did ask for a copy before cross-examination of the witness. The trial court ordered the State to immediately give each defendant a copy of that report and then recessed.

After the noon recess, the court ruled that the tardily produced written fingerprint report would not be admitted into evidence. When the court invited comment on this ruling, Davis expressed concern whether it was necessary to do additional research into the relevance of this exculpatory material and was further concerned whether the defense “at the very minimum need[s] time to be able to speak with someone regarding fingerprint evidence. . . .” But Davis never pursued this “concern” to obtain a ruling on this ambiguous request for a continuance. And in response to Davis’s inquiry, the court confirmed that Lt. Treadwell was subject to cross-examination about anything in the report, whereupon direct examination of Lt. Treadwell resumed. Since Davis failed to elicit a final ruling on his so-called oral request for a continuance, we conclude this enumeration presents nothing for review.

6. A related enumeration urges the trial court abused its discretion in refusing to authorize post-conviction funds to retain a fingerprint expert on behalf of an indigent. Davis argues that “only an expert could enlighten the appellant or the court as to the extent that he may have been able to exploit the exculpatory fingerprint evidence.” We disagree.

The grant or denial of a motion for appointment of an expert witness lies within the sound discretion of the trial court, and where the defendant’s conviction does not rest entirely on the State’s expert evidence, and the State’s expert is not shown to be incompetent or biased, the trial court does not abuse its discretion in denying such motion.

Here, defendant’s conviction is not based upon expert opinion testimony or fingerprint evidence. To the extent that the complete absence of any defendant’s fingerprints is exculpatory, that is obvious to the juror of ordinary intelligence and does not need the explication of an expert witness. Consequently, the trial court did not abuse its discretion in refusing to continue the case or in refusing to appoint an expert witness in this instance.

7. Davis next contends the trial court erred in refusing to give his written request to charge on the definition of knowledge, taken from the pattern charge, Council of Superior Court Judges, Suggested Pattern Jury Instructions (2nd ed.), Vol. II: Crim. Cases, Part 3 (H). But the only support Davis gives in his brief for this contention consists of four sentences which recite that a written request was submitted; the court declined to give this instruction; Davis reserved his exceptions to the charge; and the court erred by not giving the requested instruction. There are no citations of authority.

The mere repetition or rephrasing of an enumeration of error without more is not the argument anticipated in Court of Appeals Rule 27 (a) (3).

Argument is defined as a reason given in proof or rebuttal, or a coherent series of reasons offered. Webster’s New Collegiate Dictionary (1976). The central element is reason. The function of argument in a brief is to supply the reason why the court should support the contentions of that party.

Since Davis’s claim of error with respect to the charge is unsupported by citations of authority or argument, that enumeration is deemed abandoned, pursuant to Court of Appeals Rule 27 (c) (2).

Judgment affirmed.

Pope, P. J., and Smith, P. J., concur.

Decided June 7, 2000.

Westmoreland, Patterson & Moseley, John L. Strauss, for appellant.

Alan A. Cook, District Attorney, for appellee.

       See OCGA § 24-4-8.

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        Collins v. State, 229 Ga. App. 210, 211 (1) (a) (493 SE2d 592) (1997).

       Id. at 211-212 (1) (b).

        Winn v. State, 269 Ga. 145, 146 (2) (498 SE2d 56) (1998).

        State v. Luke, 232 Ga. 815, 816 (209 SE2d 165) (1974).

        Conyers v. State, 234 Ga. App. 830, 833 (1) (507 SE2d 842) (1998).

       221 Ga. App. 83 (470 SE2d 748) (1996).

       Id. at 85 (1). Accord Ivester v. State, 252 Ga. 333, 335 (2) (313 SE2d 674) (1984).

        Martin v. State, 162 Ga. App. 703, 704 (2) (292 SE2d 864) (1982). Accord Kelley v. State, 248 Ga. 133, 136 (3) (281 SE2d 589) (1981).

        Kesler v. State, 249 Ga. 462, 469 (4) (291 SE2d 497) (1982). Accord Story v. State, 194 Ga. App. 187 (1) (390 SE2d 96) (1990).

        Green v. State, 194 Ga. App. 343, 345 (4) (390 SE2d 285) (1990), aff’d, 260 Ga. 625 (398 SE2d 360) (1990). Accord Medlock v. State, 264 Ga. 697, 698 (449 SE2d 596) (1994); Dover v. State, 250 Ga. 209, 212 (4) (296 SE2d 710) (1982).

       (Citations and punctuation omitted.) Carter v. State, 237 Ga. App. 703, 704 (1) (b) (516 SE2d 556) (1999).

       This absence of forensic confirmation authorizes inculpatory inferences, since Hawk could have wiped the car when he repaired the bullet holes, which is consistent with the complete absence of usable prints on the inside. Also, the car was exposed to the elements for several days before police attempted to lift fingerprints.

       See Carter v. State, supra, 237 Ga. App. at 706 (1) (b).

        Green v. State, 208 Ga. App. 1, 2-3 (2) (429 SE2d 694) (1993).

       (Citation and punctuation omitted.) Joint Venture v. McDaniel, 224 Ga. App. 716 (1) (481 SE2d 836) (1997).

        Pickens v. State, 225 Ga. App. 792, 800 (7) (484 SE2d 731) (1997).


text:
    A00A0296.
    PARKER v. SHREVE.
    (535 SE2d 332)
   Barnes, Judge.

Eileen Parker appeals the trial court’s determination that her personal injury action was barred by the statute of limitation due to her lack of diligence in serving the complaint. For the reasons that follow, we reverse.

Parker filed a complaint against Helena Shreve on September 22, 1998, alleging she sustained personal injuries in an automobile collision between the parties on November 7, 1996. The address Parker provided for service on Shreve was listed in the accident report and in the local telephone directory for that year, but on October 6, 1998, the marshal called Parker’s counsel to say that Shreve was not at the address listed. The return of service indicated that, in July 1998, a new tenant had moved into the address listed for Shreve.

Using in-house sources, Parker sought a better address for Shreve to no avail and then hired a private investigator on November 5, 1998. On November 6, the investigator called with Shreve’s new address on Ivy Court in Fulton County, and Parker filed a revised summons with the new address the same day. On Friday, November 13, 1998, a Fulton County marshal called Parker to say that Ivy Court was in DeKalb County.

Parker called the private investigator on Monday, November 16. The investigator was convinced the address was in Fulton, but agreed to check it again. The investigator called back the next day to explain that the street address was Ivy Chase, not Ivy Court, and that Ivy Chase was in Fulton County. Parker immediately called the Fulton County marshal’s office with the correct street name, and Shreve was served on November 19,1998,12 days after the statute of limitation expired.

Shreve moved to dismiss the action on the ground that no valid complaint existed because she was not served within the two-year statute of limitation. The trial court granted the motion and dismissed the complaint, finding that Parker:

failed to exercise due diligence in getting the Defendant served as soon as reasonable. As a result, the plaintiff is guilty of laches, and the service will not relate back to the time of the filing of the Complaint for the purpose of tolling the statute of limitation.

We review for abuse of discretion the trial court’s decision regarding whether or not the plaintiff was diligent in attempting service. Brown v. Bailey, 180 Ga. App. 555, 557 (1) (349 SE2d 792) (1986). If the trial court abuses that discretion, we must reverse its action. Jackson v. Nguyen, 225 Ga. App. 599, 601 (484 SE2d 337) (1997); Scoggins v. State Farm &c. Ins. Co., 156 Ga. App. 408, 410-411 (274 SE2d 775) (1980).

When a complaint is filed within the applicable statute of limitation but service is perfected more than five days after the statute expires, the service relates back to the original filing only if the plaintiff shows “that he acted in a reasonable and diligent manner in attempting to insure that a proper service was made as quickly as possible.” Childs v. Catlin, 134 Ga. App. 778, 781 (216 SE2d 360) (1975).

Many cases cite the proposition that a finding of laches on plaintiff’s part justifies dismissal when service is made after the statute of limitation expires, beginning with Hilton v. Maddox, Bishop &c. Contractors, 125 Ga. App. 423 (188 SE2d 167) (1972), In considering whether service related back to the filing of the complaint when it was perfected more than two years and eight months after the complaint was filed, and more than eight months after the statute of limitation ran, the court in Hilton asked: “Then what effect does a belated service have, particularly where the delay is great, as here? It is laches, authorizing the court to dismiss the action where the statute of limitation had run before the service was so belatedly perfected.” Id. at 426-427.

Three years later, in further explication, we held that:

There, of course, will be situations where despite all the diligence of the plaintiff, service cannot be obtained within 5 days and before the expiration of the statute of limitation. 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.

Childs v. Catlin, supra, 134 Ga. App. at 781. The Georgia Code section titled “Laches” provides: “Equity gives no relief to one whose long delay renders the ascertainment of the truth difficult, even when no legal limitation bars the right.” OCGA § 23-1-25.

In this case, we must conclude that the trial court abused its discretion by finding that service upon Shreve 12 days after the statute of limitation expired was a long delay that rendered difficult the ascertainment of the truth or “constituted such an unjust delay as to impute dilatoriness to appellant.” Scoggins v. State Farm, supra, 156 Ga. App. at 410.

It would seem to require no argument that the purpose of this and the other process statutes is to provide service and notice fairly without imposing undue penalties for technical or formal infractions. Thus, where it is shown that the plaintiff has acted in a reasonable and diligent manner in attempting to insure that a proper service was made as quickly as possible, no dilatoriness or unjust delay can be attributed to the plaintiff.

(Citations and punctuation omitted.) Id. at 411.

Shreve argues that, when the marshal returned Shreve’s summons on October 6, 1998, with the notation that Shreve had moved, Parker became “ ‘obligated to exercise, not due diligence, but the greatest possible diligence to ensure proper and timely service.’ ” (Citation omitted.) Mitchell v. Hamilton, 228 Ga. App. 850, 851 (1) (493 SE2d 41) (1997). However, in Wade v. Whalen, 232 Ga. App. 765, 770-773 (504 SE2d 456) (1998) (physical precedent only), Presiding Judge Pope, in a special concurrence, discussed the origin and inconsistent use of the “greatest possible diligence” standard regarding service attempts. We agree with Judge Pope that the standard of “greatest possible diligence” in the context of assessing a plaintiff’s attempts at service should apply only in cases in which the statute of limitation has expired and the defendant has made an appearance in court raising a service defense. See id. at 772. We need not reach this issue, however, because the trial court here used the appropriate standard of due diligence in ruling on Shreve’s motion to dismiss.

We conclude that the trial court abused its discretion in granting Shreve’s motion to dismiss for failure to serve Shreve before the statute of limitation expired.

Judgment reversed.

Eldridge, J., concurs. Blackburn, P. J., concurs in the judgment only.

Decided June 7, 2000.

Donald P. Edwards, for appellant.

Shivers & Associates, Paige F. Laine, for appellee.