author: POPE, Presiding Judge. Smith, Judge,

text:
    A99A1146.
    SPARKS v. HOSPITAL AUTHORITY OF THE CITY OF BREMEN & COUNTY OF HARALSON.
    (526 SE2d 593)
   POPE, Presiding Judge.

This appeal presents questions of first impression concerning the construction of the Hospital Acquisition Act, OCGA §§ 31-7-400 through 31-7-412. For the following reasons, we conclude that the superior court erroneously interpreted the Act, and we reverse the court’s dismissal of Sparks’ complaint.

The Hospital Authority of the City of Bremen and County of Haralson, which owned and operated Higgins General Hospital in Bremen, negotiated an agreement with Tanner Medical Center, transferring the control and operation of the hospital from the Authority to Tanner. Under the agreement, Tanner would lease most of the real property of the hospital, purchase most of the personal property, and operate the hospital. This transaction was subject to the Act, under which no purchase or lease of 50 percent or more of the assets of a nonprofit hospital may take place without notifying the Attorney General of Georgia at least 90 days before “consummation” of the transaction. OCGA §§ 31-7-400 (2); 31-7-401.

Amos Sparks, the sole commissioner of Haralson County, objected to the transfer and filed a verified complaint in Haralson County Superior Court seeking a preliminary injunction. He also moved the court for a temporary restraining order to halt the transfer. On May 18,1998, after the court refused to grant the restraining order, the Authority and Tanner signed the agreement. On June 9, 1998, they notified the Attorney General of the transaction. A public hearing, as required under the Act, was scheduled to be held on August 7, 1998.

On June 26, 1998, Sparks amended his complaint to seek a declaration that the lease and transfer agreement was null and void because the Authority had consummated the agreement by executing it before the disclosure and public comment period provided for under the Act. The Authority responded to the amended verified complaint and moved to dismiss it for failure to state a claim. The trial court granted the Authority’s motion to dismiss the complaint, concluding that the agreement was a “proposed transaction” within the meaning of the Act and that Tanner and the Authority had not violated the Act. Sparks appealed.

1. Sparks contends that the court erred in granting the Authority’s motion to dismiss because the complaint states a valid claim that the Authority violated the Act by executing the lease with Tanner before initiating the requisite public disclosure process. Sparks further argues that the purpose of the Act was frustrated because the agreement was executed before obtaining local input. We agree.

The crucial facts relevant to our inquiry are: on May 18, 1998, the Hospital Authority signed the agreement transferring the control and operation of the hospital from the Authority to Tanner. The agreement provided that it was binding on the parties, but that it would not be “consummated” until the fifth day after the issuance of the Attorney General’s finding that the transaction was in the best interest of the public. In other words, the Authority and Tanner agreed to the terms and the conditions of the transaction, but agreed that it would not be effective until the Attorney General approved the agreement.

In dismissing Sparks’ complaint, the superior court stated: “regardless of whether the parties submitted a preliminary agreement or an executed agreement, the transaction is not binding until the Attorney General approves it.” The superior court stated that in order to facilitate the Attorney General’s approval of an agreement under the Act, it was necessary that the parties submit the terms and conditions of the transaction to him. “Otherwise,” the court stated, “the Attorney General would have a difficult time approving the acquisition, as he would have no basis to consider the transaction with.” Accordingly, the court determined that the agreement between the parties was a “proposed transaction,” and that the parties had complied with the Act.

The problem with the superior court’s interpretation of the Act is that it allows the parties to a transaction to circumvent any meaningful public input about the transaction. And the Act clearly contemplates that before any transaction is consummated the Attorney General will hold a public hearing to provide a forum for meaningful public input about the transaction.

The Act first requires that the parties notify the Attorney General about prospective transactions. OCGA § 31-7-401 states: “[n]o acquiring entity shall engage in an acquisition without first notifying the Attorney General pursuant to this article.” The section later provides that: “the parties to the transaction shall provide the Attorney General with at least 90 days’ notice of the proposed transaction prior to its consummation.” The following sections, OCGA §§ 31-7-402 and 31-7-403, lay out the information about the transaction which the negotiating parties must provide to the Attorney General.

With regard to the public input regarding the proposed transaction, OCGA § 31-7-406 provides:

[t]he purpose of the public hearing shall be to ensure that the public’s interest is protected when the assets of a nonprofit hospital are acquired by an acquiring entity by requiring full disclosure of the purpose and terms of the transaction and providing an opportunity for local public input.

(Emphasis supplied.) To that end, OCGA § 31-7-404 requires the Attorney General to publish a notice of the proposed transaction in a general circulation newspaper. The section further requires that this notice state the specifics of the public hearing and “the means by which a person may submit written comments about the proposed transaction to the Attorney General.” OCGA § 31-7-405 then outlines the mechanics of the hearing — subsection (a) states that at the hearing the “Attorney General shall provide an opportunity for those persons in favor of the transaction, those persons opposed to the transaction, and other interested persons to be heard.” This section also provides that “the Attorney General shall also receive written comments regarding the transaction from any interested person.”

In this case, contrary to the superior court’s conclusion, the Authority and Tanner effectively consummated the transaction between themselves before any public hearing was held. Regardless of subsequent input which may have been provided through the public hearing process, the Authority was contractually bound to transfer control of the property to Tanner. The parties’ actions here contravened the Act’s purpose — to provide community involvement in the transaction. Accordingly, the superior court erred in dismissing Sparks’ complaint for failure to state a claim.

2. Sparks also argues that the Act does not vest the Attorney General with the power to approve or reject a transaction. We conclude that although in this case the parties failed to comply with the terms of the Act by failing to allow for meaningful local input, after a meaningful public hearing has been properly held on a proposed agreement, the Attorney General is authorized to determine whether a transaction is in the public interest and, thus, to approve or reject it.

Although the Act does not use the word “approve” or “deny” in describing the Attorney General’s duties, an overview of the provisions shows that his approval that the transaction is in the public interest is the final piece of a properly executed agreement. Under the Act, the Attorney General is involved in the hospital acquisition process from beginning to end. OCGA §§ 31-7-401 through 31-7-404 address the Attorney General’s role in overseeing the notice aspects of the proposed transaction. OCGA § 31-7-405 requires the Attorney General to conduct the public hearing on the proposed transaction and states that certain witnesses shall be subject to questioning by him. OCGA § 31-7-407 provides that the Attorney General shall have the authority to ensure compliance with all notices, may institute proceedings to enforce such compliance, and shall issue a report of findings regarding the public hearing. OCGA § 31-7-407.1 charges the Attorney General with issuing a report of findings addressing the 13 issues outlined in OCGA § 31-7-406 and provides that the time period for issuing the report may be extended “if the Attorney General finds there has been a failure by the entities involved in the transaction” to comply with the requisite disclosures. Under OCGA § 31-7-408, a hospital permit may not be issued or renewed and, in fact, may be revoked if a disposition or acquisition takes place without the required notice being provided to the Attorney General. OCGA § 31-7-410 explicitly states that no provision of the statute “shall derogate from the common law or statutory authority of the Attorney General.” OCGA § 31-7-411 states that the Attorney General shall have the same power to investigate as under OCGA § 45-15-17 (which authorizes the Attorney General to conduct investigations into, among other things, the affairs of the state and any department of the state). The final section, OCGA § 31-7-412, authorizes the Attorney General to instigate proceedings for unlawful dispositions or acquisitions.

Although the legislature has not explicitly stated that under the Act the Attorney General must approve that a proposed transaction is in the public interest, the statutory scheme clearly contemplates this role. The cumulative effect of these provisions is that if the Attorney General finds the disclosures inadequate or finds any of the factors that must be considered unfavorable, the report has the effect of disapproving the transaction. Given the broad powers in the entire process which the Attorney General has, it appears that the legislature simply failed to use the words “approve” or “deny” in defining his duty.

We find no merit in Sparks’ argument that if the General Assembly had intended for the Attorney General to determine whether the transaction was in the public interest or approve or disapprove of transactions, it would have framed the Act in compliance with the Georgia Administrative Procedure Act, OCGA §§ 50-13-1 through 50-13-44, or provided other procedural safeguards for due process.

Judgment reversed.

Eldridge, J., concurs. Smith, J., concurs specially.

Smith, Judge,

concurring specially.

I agree with the majority that the trial court’s ruling must be reversed. I write specially because, in my view, the majority in reaching its conclusion reads much into the Act that is not actually there.

I find it easy to understand why the parties and the trial court reached the conclusion that the agreement had not been “consummated” prior to submitting it to the Attorney General and that the Act had been followed. As the trial court noted, the Act appears to contemplate submitting a completely worked-out agreement. The parties to this transaction signed the agreement with a provision that made it binding upon themselves five days after the Attorney General issued his findings, “if such findings disclose that the transaction contemplated hereby is in the public interest.” It is apparent that they apparently believed, as the trial court did, that the Act gives the Attorney General the power and authority to “disapprove” the transaction based upon comment and input from the affected public.

Unlike the majority, I find nothing in the Act giving the Attorney General such broad authority, and I am troubled by this omission. Faced with this omission, the majority chooses to fill in the gaps in the statute. But as written, the Act is a disclosure statute, akin to a “sunshine law.” It actually gives the Attorney General very limited power to nullify a transaction within the purview of the Act. It expressly provides that such a transaction is null and void only if the parties do not comply with “the notice, disclosure, and certification requirements” of the Act. OCGA § 31-7-412 (a).

Under these provisions, the parties must notify the Attorney General of the impending transaction, make numerous disclosures, including the financial interests of the principals, and certify that the transaction is authorized, the terms are reasonable, and the trans-feror has received fair market value in the transfer. The certification must also include a statement that “the transaction will not adversely affect the availability or accessibility of health care services in the county.” OCGA § 31-7-403 (b) (8). Apart from a rather mechanical review, ensuring that all disclosures and certifications are made, the primary responsibility of the Attorney General under the Act appears to be to facilitate public awareness of the proposed transaction.

But elementary principles of statutory construction dictate that we cannot interpret the Act’s provisions regarding the public hearing to be completely meaningless. Given the Attorney General’s limited power, the purpose of the public hearing necessarily must be to indicate to the parties the public’s perception of the transaction and to persuade the parties to bend, in some way, to the public’s will. And in my view, the parties in this case frustrated the purpose of at least a portion of the Act by agreeing, before hearing public comment, that the provisions of the agreement would be binding upon them once the Attorney General issued his report. I therefore must agree with the majority that the trial court erred in finding that Sparks had not stated a claim upon which relief could be granted.

I am more troubled than the majority, however, about the absence of any provision in the Act stating that anyone — including the Attorney General — has the power to disapprove a proposed transaction on its merits. Under the Act as written, I see nothing to prevent the parties from choosing to ignore decisively adverse public opinion, should they choose to do so. Because of this omission, it is clear to me that in this case, for instance, even if the parties had followed the letter of the statute, as construed by the majority, they could have frustrated the Act’s purpose by choosing to ignore adverse public comment and consummating the transaction once the Attorney General issued a report. This is true because the statute in fact provides no mechanism for ensuring that the public interest is protected, other than ensuring that the parties meet minimal notice, disclosure, and certification requirements.

In this case, the Attorney General held the public hearing, as required by the statute, and issued the required report. The Attorney General determined that the parties had met all the notice, disclosure, and certification requirements of the Act. In my view, the statute in its present form does not empower him to do anything more. I believe it would be useful and important to the people of Georgia to have a statute that provides in some way for “approval” or “disapproval” of a public hospital transfer based upon comment and input from the affected public. I do not find such a provision in the Act, however, and any such change is within the province of the General Assembly, not the courts.

Decided December 3, 1999

Reconsiderations denied December 15, 1999

Murphy, Murphy & Garner, Thomas B. Murphy, Parker, Hudson, Rainer & Dobbs, John H. Parker, Jr., Leo E. Reichert, for appellant.

Gambrell & Stolz, Seaton D. Purdom, Bryan M. Cavan, Christopher R. Stovall, for appellee.

       The superior court entered an order denying the motion on May 28, 1998 nunc pro time to May 18,1998.


source: Caselaw Access Project

author: McMurray, Presiding Judge. Andrews, Presiding Judge,

license: Public Domain

text:
    A99A1404, A99A1405.
    MAXWELL v. CRONAN et al. (two cases).
    (527 SE2d 1)
   McMurray, Presiding Judge.

Plaintiff Dennis C. Maxwell brought this tort action against defendants Frances Louise Cronan, the Newton County School District, certain school board members, and the school superintendent, seeking to recover for personal injuries received in a vehicular mishap on February 9, 1994, allegedly caused by the negligence of defendant Cronan for which negligence the other defendants were allegedly vicariously liable. Defendants jointly answered, admitting that plaintiffs vehicle was struck from behind by a Newton County School District bus driven by defendant Cronan but defending on the grounds of sovereign and official immunity. In an order entered June 18, 1997, the trial court granted defendants’ motion for judgment on the pleadings concluding the individual board members, the superintendent, and defendant Cronan were at all times acting in a discrer tionary capacity without actual malice, and that the School District “has not waived the sovereign immunity afforded to it by the purchase of liability insurance,” citing Coffee County School Dist. v. Snipes, 216 Ga. App. 293 (454 SE2d 149). In Case No. A99A1404, plaintiff appeals from this order. In Case No. A99A1405, plaintiff appeals from the order entered October 1, 1998, denying his extraordinary motion for reconsideration or for judgment on the pleadings. Held:

Case No. A99A1404

1. Plaintiff contends the trial court erred in dismissing the complaint on the basis of sovereign and official immunity because the school district waived those defenses by operation of OCGA § 33-24-51, due to the existence of automobile liability insurance covering the school bus at issue. We agree the existence of liability insurance coverage for injuries arising out of the use of the school bus at issue would operate as a waiver of sovereign immunity, to the extent of the insurance, for the defendant school district under the controlling authority of Coffee County School Dist. v. King, 229 Ga. App. 143 (493 SE2d 563). Coffee County School Dist. v. Snipes, 216 Ga. App. 293, supra, does not control, for it involves injuries to a “child who fell while playing at school . . .” and not the negligent operation of a school bus on the public roads. Nevertheless, defendants contend there is no evidence of insurance coverage.

This ground of waiver was urged below in plaintiff’s amended complaint, filed in response to defendants’ initial motion, which did not address any possible waiver of immunity through the existence of liability coverage.

“For purposes of defendant’s motion for judgment on the pleadings, all well-pleaded allegations of plaintiff’s complaint are taken as true and all allegations of defendant’s affirmative defense are taken as false. [Cits.]” Hancock v. Nashville Investment Co., 128 Ga. App. 58, 60 (3) (195 SE2d 674). Immunity is not an affirmative defense within the meaning of OCGA § 9-11-8 (c), in that it is not lost even if not raised in the first responsive pleading, and any waiver must be established by the party benefiting from such waiver. Ga. Dept. of Human Resources v. Poss, 263 Ga. 347, 348 (1) (434 SE2d 488). But that is a matter of fact to be established after discovery. In this case, plaintiff amended his complaint to allege the following:

Though the defendants normally might have immunity under the theory of governmental immunity or sovereign immunity . . . , said immunity is waived in accordance with OCGA § 33-24-51 to the extent of the limits of any existing coverage pertaining to the operation of a motor vehicle by Defendant Cronan or other employees of Defendant Newton County School District.

“All pleadings shall be so construed as to do substantial justice.” OCGA § 9-11-8 (f). Although not a model of clarity, the amended complaint alleges, in substance, the existence of a motor vehicle liability insurance policy, with an indeterminate amount of coverage. The legal consequence of the existence of a motor vehicle liability policy is to waive any immunity to the extent of coverage. This amendment was, in our view, sufficient to put the onus on the defendant school district to submit an affidavit denying the existence of a motor vehicle liahility policy. Plaintiff distinguished the authorities cited by defendants to the trial court, in part, on the ground they did not involve insurance coverage. No transcript of any hearing exists, and no discovery or affidavit evidence, indicating the absence of liability insurance coverage, was filed in support of defendants’ motion for judgment on the pleadings. The grant of a motion for judgment on the pleadings under OCGA § 9-11-12 (c) is proper only where there is a complete failure to state a cause of action or defense. Pressley v. Maxwell, 242 Ga. 360 (249 SE2d 49). Defendants’ motion fails to negate the waiver of immunity arising from the motor vehicle liability insurance policy alleged in the amended complaint. Consequently, we reverse the grant of defendants’ OCGA § 9-11-12 (c) motion for judgment on the pleadings in Case No. A99A1404.

Case No. A99A1405

2. Since remaining contentions are rendered moot by our reversal in Case No. A99A1404, the appeal in Case No. A99A1405 is dismissed as moot. OCGA § 5-6-48 (b) (3).

Judgment reversed in Case No. A99A1404. Appeal dismissed in Case No. A99A1405.

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

Andrews, Presiding Judge,

dissenting.

Because I believe that Maxwell has not properly alleged that the county has waived sovereign immunity by the purchase of insurance, I respectfully dissent.

Maxwell’s only argument on appeal is that the trial court erred in granting appellees’ motion for judgment on the pleadings because the county waived sovereign immunity under OCGA § 33-24-51 (b) by purchasing insurance for its school buses. The trial court held a hearing on the defendants’ motion for judgment on the pleadings, after which it specifically found that defendants had not waived sovereign immunity by the purchase of liability insurance. But, Maxwell has not submitted a transcript of the hearing, and therefore, we can look only to the pleadings before us to determine whether they allege the county has waived sovereign immunity by purchasing insurance. They do not. The only mention of the waiver of sovereign immunity is in Maxwell’s amended complaint, which states:

Though the Defendants normally might have immunity under the theory of governmental or sovereign immunity as described in the Constitution of the State of Georgia (Article I, Section 2, Paragraph 9), said immunity is waived in accordance with OCGA § 33-24-51 to the extent of the limits of any existing insurance coverage pertaining to the operation of a motor vehicle by Defendant Cronan or other employees of Defendant Newton County School District.

Decided November 23, 1999

Reconsideration denied December 15, 1999.

Hartley & Puls, Carl A. Puls, Jr., Andrew W. Estes, Kathy E. Jarman, for appellant.

Chambers, Mabry, McClelland & Brooks, James T. Budd, William R. Youngblood, E. Wycliffe Orr, William K. Campbell, for appel-lees.

While this is a true statement of the law, this is not an allegation of fact that the county has insurance.

Further, this is not a case in which the school district must plead a lack of insurance as an affirmative defense. That is not the law. Sovereign immunity is not an affirmative defense that must be established by the party seeking its protection. A waiver of sovereign immunity must be established by the party seeking to benefit from the waiver. Ga. Dept. of Human Resources v. Poss, 263 Ga. 347, 348 (434 SE2d 488) (1993); Kordares v. Gwinnett County, 220 Ga. App. 848, 849 (470 SE2d 479) (1996). Therefore, in light of the above, I would affirm the judgment of the trial court.

       Plaintiff Rhonda Maxwell’s claim for loss of consortium was dismissed without prejudice.

       This would convert the motion for judgment on the pleadings into one for summary judgment. OCGA § 9-11-12 (c). Such was the procedural posture of Ga. Dept. of Human Resources v. Poss, 263 Ga. at 347, supra, unlike this case.


author: POPE, Presiding Judge.

text:
    A99A1483.
    HERNDON v. WALLER.
    (525 SE2d 159)
   POPE, Presiding Judge.

Veterinarian Walter P. Waller signed a one-year renewable lease on a building owned by veterinarian Michael Herndon in Canton. The lease between Waller and Herndon contained a “No Compete” clause providing that if Waller should decide “to sever ties with (Herndon), (Waller) agrees not to operate as a Veterinarian for a distance of fifteen (15) miles and a period of two (2) years.”

Waller filed a declaratory judgment action, indicating his intention to terminate the lease and to relocate his clinic within the vicinity of the leased premises. He asserted that the geographical restriction in the covenant was too vague to be enforceable and further that the covenant was unreasonable. Following a hearing, the trial court entered judgment in Waller’s favor, finding that the geographical restriction was vague, and Herndon appeals.

Putting aside the issue of whether the geographical restriction was vague, we affirm the judgment of the trial court because we find that the covenant in the parties’ lease was not reasonable.

Georgia courts have traditionally grouped restrictive covenants into two categories: “covenants ancillary to an employment contract, which receive strict scrutiny and are not blue-penciled, and covenants ancillary to a sale of business, which receive much less scrutiny and may be blue-penciled.” Habif, Arogeti & Wynne v. Baggett, 231 Ga. App. 289 (1) (498 SE2d 346) (1998). The lease containing the covenant not to compete in this case does not fit neatly into either of these categories. We must therefore determine whether it is most analogous to an employment contract or a contract for the sale of business. See Watson v. Waffle House, 253 Ga. 671, 672 (2) (324 SE2d 175) (1985). Courts often look to the relative bargaining power between the parties in determining the level of scrutiny to be applied:

The rationale behind the distinction in analyzing covenants not to compete is that a contract of employment inherently involves parties of unequal bargaining power to the extent that the result is often a contract of adhesion. On the other hand, a contract for the sale of a business interest is far more likely to be one entered into by parties on equal footing. [Cit.]

Id.

While, here, there is no issue of unequal bargaining power, this case is distinguishable from most sale of business cases. In the usual case, it is the seller who covenants not to compete in order to protect the goodwill the purchaser is buying. See, e.g., A & D Asphalt Co. v. Carroll & Carroll of Macon, 238 Ga. App. 829 (520 SE2d 499) (1999); Carroll v. Ralston & Assoc., 224 Ga. App. 862 (481 SE2d 900) (1997); Edwards v. Davis, 160 Ga. App. 122, 123 (3) (286 SE2d 301) (1981). And the seller generally receives a part of the purchase price in compensation for his promise not to compete. Carroll v. Ralston & Assoc., 224 Ga. App. at 864; Roberts v. Tifton Med. Clinic, 206 Ga. App. 612, 614 (426 SE2d 188) (1992).

In this case, however, it is a lessee, who is agreeing not to compete with the owner of a building in which a veterinary practice was most recently operated by a third party. And there is no evidence that the lessee, Waller, received any consideration in exchange for the covenant not to compete. These distinctions justify the application of a higher level of scrutiny:

Since the covenant not to compete was not made by the seller in conjunction with the sale of a business but was made by [a lessee] in conjunction with [the lease of premises and equipment ancillary to the operation of] a business, the covenant receives the severe scrutiny given restrictive covenants ancillary to an employment contract.

(Citations and punctuation omitted.) Johnstone v. Tom’s Amusement Co., 228 Ga. App. 296, 300 (3) (491 SE2d 394) (1997) (physical precedent only).

To be enforceable, covenants not to compete in employment contracts must be “ ‘reasonable in terms of duration, territorial coverage, and the scope of activity precluded, considering the legitimate business interests the employer seeks to protect and the effect on the employee.’ ” (Citation omitted.) Wright v. Power Indus. Consultants, 234 Ga. App. 833, 834 (2) (508 SE2d 191) (1998). “In determining the legality of a restrictive covenant, a court may consider the nature and extent of the business, the situation of the parties, and all other relevant circumstances. [Cit.]” Reardigan v. Shaw Indus., 238 Ga. App. 142, 143 (1) (518 SE2d 144) (1999).

The record below shows that no ongoing veterinary practice existed when Waller leased the premises from Herndon. Herndon had not practiced veterinary medicine at that location for more than six years, but instead had been out of the country pursuing a medical degree. Although a prior tenant had operated a veterinary clinic on the premises in the intervening years, he had defaulted on his lease and allowed the premises to remain vacant for some months and to fall into a state of disrepair. After signing the lease, Waller readied the premises for operation and began building a business. He altered the name of the clinic slightly to satisfy creditors who had supplied the previous defaulting tenant. At the time of the hearing, Waller had 1,104 clients, and of those, only 103 were frorq client files left by previous veterinarians, including the prior tenant.

The customers serviced at the leased premises, therefore, were Waller’s and not Herndon’s. And the covenant, which sought to restrict Waller from operating as a veterinarian within the prescribed limits, was not reasonable in light of the nature of the business and the parties’ situation. See Dothan Aviation Corp. v. Miller, 620 F2d 504, 505-506 (5th Cir. 1980) (applying Georgia law). A decision right for any reason will be affirmed on appeal. Khamis Enterprises v. Boone, 224 Ga. App. 348, 351 (3) (480 SE2d 364) (1997).

Judgment affirmed.

Smith and Eldridge, JJ, concur.

Decided November 12, 1999

Reconsideration denied December 15, 1999.

James S. Altman, for appellant.

Gambrell & Stolz, Irwin W. Stolz, Jr., for appellee.


author: Barnes, Judge.

text:
    A99A2065.
    BAILEY v. THE STATE.
    (526 SE2d 865)
   Barnes, Judge.

A jury convicted Charles Bailey of driving with no proof of insurance and driving with a suspended license, and the trial court sentenced him to fines of $1,203 on each count. Bailey appeals, arguing that the trial court erred in sentencing him to more than a $25 fine on the no proof of insurance conviction and in denying his requests to charge on impeachment. We conclude the trial court erred in sentencing and remand this case for resentencing on the no proof of insurance conviction. We also conclude that Bailey waived his objection to the trial court’s failure to give his impeachment charges.

1. Bailey was charged with having no proof of insurance under OCGA § 40-6-10. That Code section provides:

(a) (1) The owner or operator of a motor vehicle shall keep proof or evidence of required minimum insurance coverage in the vehicle at all times during the operation of the vehicle. . . . Except as otherwise provided in paragraph (4) of this subsection, any person who fails to comply with the requirements of this subsection shall be guilty of a misdemeanor and, upon conviction thereof, shall be subject to a fine of not less than $200.00 nor more than $1,000.00 or imprisonment for not more than 12 months, or both. ... (4) If the person receiving a citation under this subsection shows to the court having jurisdiction of the case that required minimum insurance coverage was in effect at the time the citation was issued, the court shall return the driver’s license upon payment of a fine not to exceed $25.00. The court shall not in this case forward a record of the disposition of the case to the department and the driver’s license of such person shall not be suspended.

Bailey asked for and received a jury trial on the charges against him. He attempted to present his insurance card to the traffic court judge before trial in order to reduce the fine to $25 under OCGA § 40-6-10 (a) (4). The judge refused to consider the evidence and said, “But this is a jury trial, and all of these matters are subject to proof before a jury. . . . [T]he basis of this issue in dispute is a matter of fact; and it is to be decided by the trier of fact.” The solicitor did not come forward with any specific evidence regarding how the card or testimony was incredible. On appeal, Bailey argues that under the terms of the statute, the trial court and not the jury is obliged to determine whether he actually had insurance coverage so that his fine would be reduced. The city solicitor does not address the terms of the statute, but responds that the jury properly weighed the evidence and determined that Bailey’s proof of insurance was not credible.

Decided December 8, 1999

Reconsideration denied December 15, 1999

We have not directly addressed this issue before, but in dicta we have previously noted that a defendant who produced proof of insurance at trial should have been sentenced to a $25 fine under OCGA § 40-6-10 (a) (4). Morrison v. State, 225 Ga. App. 710, 711 (1) (484 SE2d 762) (1997).

The statute clearly provides that if the defendant shows proof of insurance “to the court having jurisdiction of the case,” the court shall reduce the fine to $25. The fact that a jury determined whether Bailey committed the offense of no proof of insurance has no impact on the sentencing portion of the statute. The statute mandates a lesser sentence for those who fail to have proof of insurance when they are stopped, but can later show the court that they actually were insured. The State cannot simply say it does not believe the insurance card is valid and direct the defendant to prove its validity. Because the trial court imposed a sentence contrary to OCGA § 40-6-10 (a) (4), we vacate Bailey’s sentence on the conviction for no proof of insurance and remand for resentencing. We note that the State concedes that this case should be remanded for resentencing if we find that OCGA § 40-6-10 (a) (4) applies. We do not address in this case the sufficiency of the proof shown to the trial court, but only the validity of the sentence. The trial court must determine whether OCGA § 40-6-10 (a) (4) applies for sentencing purposes.

2. Bailey asserts the trial court erred in failing to give his requests to charge on impeachment. Bailey waived this issue, however, by not excepting or reserving exceptions after the court charged the jury. Johnson v. State, 229 Ga. App. 586, 587 (2) (494 SE2d 382) (1997).

Judgment affirmed in part, reversed in part and remanded.

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

Thomas L. Walker, for appellant.

Joseph J. Drolet, Solicitor, Julie A. Kert, Assistant Solicitor, for appellee.


author: Phipps, Judge.

text:
    A99A2083.
    BENSON v. CARTER et al.
    (526 SE2d 922)
   Phipps, Judge.

In 1996, Deborah Benson, who had been employed as a teacher in the Henry County School System, brought this action for wrongful discharge against the members of the Henry County Board of Education (Carter and others), the Henry County School District, and the superintendent of the Henry County School System. The defendants moved for summary judgment on the ground that the action is barred by an agreement reached in settlement of another threatened suit for wrongful discharge. Benson challenges the validity of the agreement on the ground of fraud. Finding that Benson has failed to present triable issues on this claim, the court granted summary judgment to the defendants on the complaint and on the defendants’ counterclaim for attorney fees and litigation expenses under the settlement agreement.

Benson was originally employed as a teacher in the McDonough Primary School in June 1989, but she was not offered a teaching position for the 1990-1991 school year because none was available. Benson claims, however, that she was assured by then-superintendent Holt that under the circumstances she would be eligible for reemployment as a teacher when a position became available. When Holt refused to recommend Benson for a teaching position offered by the principal of the McDonough Primary School for the 1992-1993 school year, Benson threatened to bring suit for wrongful discharge. In May 1993, she entered into a settlement agreement with the school board, the school district, and past, present, and future superintendents.

The agreement obligated the defendants to employ Benson for the balance of the 1992-1993 school year in a position for which she was certified on the condition that such a position became available. The defendants unconditionally agreed to employ Benson in a position for which she was certified for the 1993-1994 school year, which was referred to in the agreement as her first school year contract. Benson in turn agreed that if she were “nonrenewed” prior to accepting a school year contract with the Henry County School District for the fourth consecutive year, she would not make any claims against the defendants for wrongful termination or institute any litigation. Benson additionally agreed that the defendants would not have to give reason or show cause for such nonrenewal. Finally, Benson agreed that if she should ever challenge or test the validity of the agreement, she would pay the defendants’ attorney fees and litigation expenses.

Benson was employed as a teacher in the county school system for the school years 1993-1994 and 1994-1995. But her position was not renewed for the school year 1995-1996. As a result, she brought this suit claiming that the defendants wrongfully discharged her from employment after fraudulently inducing her to enter into the settlement agreement. It is Benson’s position that she was fraudulently induced to enter into the settlement agreement by false representations that she would be treated fairly and would not be prejudiced by the fact that she had threatened a lawsuit. Benson claims that her position was not renewed for the 1995-1996 school year even though her job performance was satisfactory. Held:

Under OCGA § 20-2-942, a teacher obtains tenured status when he or she accepts a school year contract for the fourth consecutive year from the same local board of education. The board must continue to renew a tenured teacher’s contract unless the teacher is terminated for cause or other reason specified in OCGA § 20-2-940. Benson seeks to prohibit the board from refusing to renew her contract without cause prior to her accepting a school year contract for the fourth consecutive year, thereby granting her the tenured status the settlement agreement expressly withholds.

By its express terms, the settlement agreement permits the defendants to terminate Benson without cause prior to her obtaining tenured status under Georgia law. Benson thus claims that the defendants committed fraud by agreeing to refrain from doing that which the agreement expressly permits. She seeks relief by bringing an action which the agreement expressly prohibits. Under the circumstances, she has no claim against the defendants for fraud. Making and violating a contemporaneous parol agreement inconsistent with a written agreement is not such fraud as would permit a varying of the written instrument, where no sufficient reason appears why the agreement was not incorporated in the writing. Moreover, fraud cannot be based on a promise to perform a future act absent a present intent not to perform. Where, as here, the defendants’ actions do not constitute breach of contract, there is no evidence that the defendants did not intend to honor the agreement at the time it was executed. And in a related vein, it has been recognized that there can be no breach of the implied covenant of good faith where a party to a contract has done what the provisions of the contract expressly give him the right to do. For these reasons, the trial court did not err in finding no triable issue as to Benson’s fraud claim.

Decided December 15, 1999

Theodore G. Frankel, James P. Brown, Jr., for appellant.

Jones, Cork & Miller, W. Warren Plowden, Jr., William T. Prescott, Smith, Welch & Brittain, A. J. Welch, Jr., for appellees.

Because Benson has mounted an unsuccessful challenge to the validity of the parties’ settlement agreement, the defendants were also entitled to summary judgment on their request for attorney fees and litigation expenses under the agreement.

Judgment affirmed.

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

        Reeves Tractor &c. Co. v. Barrow, 30 Ga. App. 420 (1) (b) (118 SE2d 456) (1923).

        Hamilton v. Advance Leasing &c., 208 Ga. App. 848, 850 (2) (432 SE2d 559) (1993).

       See Moran v. NAV Svcs., 189 Ga. App. 825, 827 (3) (377 SE2d 909) (1989).

         Whisenant v. Fulton Fed. Sav. &c., 200 Ga. App. 31, 33 (1) (406 SE2d 793) (1991).


author: Blackburn, Presiding Judge.

text:
    A99A2147.
    SPRAYBERRY v. THE STATE.
    (527 SE2d 224)
   Blackburn, Presiding Judge.

Following a jury trial, Franklin Sprayberry appeals his convictions of armed robbery, kidnapping, sexual battery, and two counts of making terroristic threats. Sprayberry contends that the trial court erred by: (1) allowing testimony of other acts committed by him which were not similar transactions; (2) allowing testimony regarding his post-arrest statements to the police; and (3) denying his motion for directed verdict on the two counts of making terroristic threats. For the reasons set forth below, we affirm Sprayberry’s convictions.

Viewing the evidence in the light most favorable to the verdict, it reveals that the victim, a new cab driver, picked up Sprayberry at a convenience store in Douglas County. Sprayberry put a gun to the back of the victim’s neck and told her not to take her hands off the wheel or he would kill her. Sprayberry climbed into the front seat and demanded the victim’s money. Sprayberry fondled the victim’s breasts and vagina while he held a gun to her side. Sprayberry told the victim that he was going to rape and kill her because he did not want to go to jail. The victim intentionally got her car stuck in the mud, and after Sprayberry was unable to free the car, he took the victim’s purse. Once out of the car, the victim ran to a house down the street where Clark Dubard allowed her to use the phone to call the police.

1. At trial, another female cab driver was allowed to testify that, after the victim told her what had happened, she remembered a customer who identified himself as “Frank,” who fit Sprayberry’s description, whom she had picked up on several occasions. She had picked him up and delivered him to the same location where the victim was robbed. Based on this information, the officers focused their investigation in the area where defendant was located. The witness led an investigator to the exact location where the victim was robbed. She also identified Sprayberry in court as a man who introduced himself as Frank when she had previously provided rides to him.

Sprayberry contends that this witness’ testimony was inadmissible because it was evidence of a similar transaction and the State failed to provide notice of intent to introduce such evidence as required by Uniform Superior Court Rule 31.3. At trial, the State argued that the witness’ testimony explained the investigative officer’s conduct in locating Sprayberry because the witness was able to establish where he lived. The State also contended that the evidence was not subject to the similar transaction requirements because it did not put Sprayberry’s character in evidence. We agree.

“Prior act evidence will be inadmissible because evidence of the accused’s character is not admissible unless and until the accused puts his character in evidence.” (Punctuation and emphasis omitted.) Miller v. State, 226 Ga. App. 509, 513 (3) (486 SE2d 911) (1997). In the present case, the testimony simply explained the officer’s conduct and established that Sprayberry had previously hired taxicabs which had picked him up and delivered him to the location where the victim was attacked. Such testimony did not put his character into evidence and was not similar transaction evidence requiring notice pursuant to USCR 31.3.

2. Sprayberry contends that his post-arrest statements to police were improperly admitted.

Two officers arrested Sprayberry around 7:00 a.m. at his house. Sprayberry confessed later that morning in an interview with the police captain. Sprayberry showed the officers where he had thrown the gun into a creek behind his house. He also told the police captain that it was a stupid thing to do but that he had a drug problem.

After a Jackson-Denno hearing to determine the admissibility of Sprayberry’s statements, the trial court determined that such statements were admissible.

In deciding the admissibility of a statement during a Jackson-Denno hearing, the trial court must consider the totality of the circumstances and must determine the admissibility of the statement under the preponderance of the evidence standard. Unless the factual and credibility findings of the trial court are clearly erroneous, the trial court’s decision on admissibility will be upheld on appeal.

(Punctuation omitted.) State v. Walker, 204 Ga. App. 1, 2 (418 SE2d 384) (1992).

(a) Initially, Sprayberry contends that his statements were not voluntary because they were a product of duress after he had been worn down by the police with hours of questioning.

The record does not establish that Sprayberry was under duress during the interrogation. The deputies testified that initially Sprayberry appeared more sleepy than nervous. Additionally, the record establishes that no more than three hours elapsed from the time Sprayberry was arrested to the time he confessed. Furthermore, after being taken to the jail, the officers did not begin questioning Sprayberry for approximately an hour. Under these circumstances, we cannot say that the trial court’s determination as to the admissibility of Sprayberry’s statements was clearly erroneous. See Walker, supra.

(b) Sprayberry contends that his statements were inadmissible because he requested a lawyer and the police continued to question him. The officers denied that Sprayberry requested a lawyer at any time during the interrogation. The trial court determined that Sprayberry’s contention that he had requested an attorney was not credible due to other fabrications proven against him, including his denial of knowledge regarding the victim’s purse which was found in his bedroom. The trial court’s determination was not clearly erroneous. See Walker, supra.

3. Sprayberry contends that the trial court erred when it denied his motion for a directed verdict on the two counts of making terroristic threats.

OCGA § 16-11-37 provides that “[a] person commits the offense of a terroristic threat when he threatens to commit any crime of violence . . . with the purpose of terrorizing another.” Although that Code section further requires that “[n]o person shall be convicted under this subsection on the uncorroborated testimony of the [victim] ,” only slight evidence of corroboration is required.

[T]he quantum of corroboration need not in itself be sufficient to convict, but need only be that amount of independent evidence which tends to prove that the incident occurred as alleged. Slight circumstances may be sufficient for corroboration and the question of corroboration is one solely for the jury. If there is any evidence of corroboration, this court will not go behind the jury’s verdict and pass on its probative value.

Decided December 15, 1999.

Monica T. Myles, Mary Erickson, for appellant.

Franklin Sprayberry, pro se.

David McDade, District Attorney, Stephen L. Corso, Assistant District Attorney, for appellee.

(Citation and punctuation omitted.) Scott v. State, 225 Ga. App. 729, 732 (3) (484 SE2d 780) (1997).

In Scott, we determined that sufficient corroboration was presented by evidence of the victim’s laceration consistent with the victim’s description of events, “as well as the testimony of a witness who observed [the victim] immediately following the incident” and testified that the victim was nearly hysterical. Id. Additionally, in Martin v. State, 219 Ga. App. 277, 283 (10) (464 SE2d 872) (1995), we affirmed a terroristic threats conviction based upon the testimony of the victim which was corroborated by several witnesses only to the extent that after the incident the victim was “frightened,” “nervous and scared,” “literally terrified,” “very afraid,” and “scared to death.”

In the present case, Dubard testified that when the victim “banged” on his door and asked to use his phone, she was “terrified,” “really agitated,” and “nervous almost to the point of shaking.” Based upon our previous decisions in Scott, supra, and Martin, supra, we find that Dubard’s testimony was sufficient evidence of corroboration to withstand Sprayberry’s motion for directed verdict.

Judgment affirmed.

Eldridge and Barnes, JJ., concur.


author: Eldridge, Judge.

text:
    A99A2184.
    NATIONAL COUNCIL ON COMPENSATION INSURANCE, INC. v. STRICKLAND.
    (526 SE2d 924)
   Eldridge, Judge.

The National Council on Compensation Insurance, Inc. (“NCCI”), defendant-appellant, serves as the “Administrator” of the Georgia Workers’ Compensation Assigned Risk Insurance Plan under contract with the Georgia Insurance Commissioner. See OCGA § 34-9-133; Rules & Regs, of the State of Ga., § 120-2-38. As Administrator, NCCI receives and reviews applications for eligibility to the Assigned Risk Pool and for completeness, which is the extent of its duties and powers. Rules & Regs, of the State of Ga., § 120-2-38-.09 (4).

In June 1995, Albert Strickland, plaintiff-appellee, sought workers’ compensation coverage for himself and his company, Allstar Concrete, from defendant Matrix Insurance Agency (“Matrix”), and defendant Otis Jones. Jones was an insurance agent at Matrix. Plaintiff told Jones that he wanted workers’ compensation coverage for himself and his business. Jones told the plaintiff that there would be a higher premium amount for his inclusion in coverage, which plaintiff agreed to pay. Jones took the information orally from the plaintiff and filled out the application for workers’ compensation insurance, which plaintiff signed. The application plainly stated that plaintiff was included within the coverage requested.

However, the policy, when issued, did not cover plaintiff when he was injured on the job, and the assigned insurer denied coverage because the application had been altered by NCCI prior to assignment to exclude the plaintiff from coverage. Plaintiff sued NCCI, Matrix, and Jones over the change in his application which caused him to be excluded from coverage without his consent. NCCI’s motion for summary judgment was denied, and it sought discretionary appeal.

After failing to obtain coverage with several insurers who refused to write coverage, Jones applied to NCCI for coverage through the Assigned Risk Pool. OCGA § 34-9-133. Jones sent the application to NCCI to assign coverage to an insurer.

Bernice Landfair, account analyst for NCCI, processed plaintiff’s application. Plaintiff’s application did not show sufficient payroll for his inclusion within coverage. Had more payroll been shown on the application for the purpose of calculating plaintiff’s premium, then plaintiff could have been included in coverage. Landfair testified that she telephoned Matrix and told an unidentified person about the coverage problem. She testified that she told the unidentified person that the plaintiff must fill out an additional form indicating more payroll on the application and pay an additional premium so that he could also be covered. The check that plaintiff gave for the amount of the premium was enough to provide coverage for only one part-time employee and not enough to cover the plaintiff; the correct amount was three times the amount paid. She also indicated that she was told by the unidentified person at Matrix to resolve the problem by excluding plaintiff from coverage. According to Landfair, with such instruction from Matrix, she physically changed plaintiff’s signed application to indicate that plaintiff wished to be excluded from coverage and bound the coverage, but did not contact the plaintiff to verify such authorization prior to making the change. NCCI assigned the application to Lumbermen’s Mutual Insurance Company, who wrote the coverage. Landfair admitted that she had never spoken to the plaintiff regarding the change that she made to his application which indicated that he wished to be excluded from coverage.

Although Jones was the person, handling plaintiff’s account at Matrix, he testified that neither Landfair nor anyone else at NCCI told him about the problem with plaintiff’s application. Jones testified that neither he nor anyone else at Matrix authorized NCCI to change plaintiff’s application to show that plaintiff wanted to be excluded from coverage.

The insurance binder was prepared and mailed by NCCI to both plaintiff and Jones, after plaintiff had been deleted from coverage. Lumbermen’s office issued the policy and mailed it to the plaintiff and Jones. Plaintiff never read either the policy or the binder. Jones received the policy and the binder, and he did not read either one.

1. NCCI contends that the trial court erred in holding that there was a question of fact as to whether NCCI was acting in a fiduciary capacity. We do not agree.

As Administrator under contract with the Insurance Commissioner, NCCI had specifically defined duties and powers; among them was the power to bind insurance coverage for those insurers within the Assigned Risk Pool and to transmit money to such insurer. Thus, each insurer within the Assigned Risk Pool automatically appointed the Administrator as its limited agent for binding coverage, receiving money, and transmitting money and binders. OCGA § 33-23-1 (a) (3); Rules & Regs, of the State of Ga., § 120-2-38-.09 (4). However, NCCI voluntarily stepped aside from its duties as Administrator and gratuitously undertook duties to the plaintiff.

There exists a factual question for the jury as to the role NCCI occupied when it changed plaintiff’s application. By changing plaintiff’s application without his prior knowledge and consent NCCI acted on plaintiff’s behalf as a voluntary agent for the limited purpose of obtaining workers’ compensation insurance for the plaintiff’s benefit only. See OCGA § 10-6-22; Simmerson v. Blanks, 149 Ga. App. 478, 479-480 (2) (254 SE2d 716) (1979); Bell v. Fitz, 84 Ga. App. 220, 224-225 (1) (66 SE2d 108) (1951); accord Armstrong, Cator & Co. v. Pease, 66 Ga. 70 (1880). “[A] gratuitous agent owes his principal the duty to exercise slight diligence, and a proper appraisal of the agent’s conduct encompasses the knowledge which he professes to possess. [Cits.]” Simmerson v. Blanks, supra at 480. Failure to follow the instructions of the plaintiff in the application for his individual coverage raises an issue of fact as to gross negligence. See id.; Bell v. Fitz, supra at 224-225. There is a question of fact as to whether reliance by Matrix upon NCCI satisfied the element of reliance if the jury believes that someone at Matrix instructed NCCI to change the application on behalf of the plaintiff. If the jury finds that no one at Matrix instructed NCCI to change the application and that NCCI acted on its own, then there was no reliance to create a voluntary agency.

If the jury finds that NCCI acted as agent or subagent in changing plaintiff’s signed application, then NCCI acted in a fiduciary capacity for the plaintiff, as his special agent for such limited purpose, with the assigned insurer, changing the coverage without plaintiff’s knowledge or consent. OCGA § 23-2-58. Thus, NCCI acted with apparent authority in presenting the altered application for assignment with Lumbermen’s Mutual Insurance Company, and it effected the legal relationship of plaintiff by such change in the application with the insurer’s coverage. Brown v. Little, 227 Ga. App. 484, 487 (2) (489 SE2d 596) (1997). Thus, the trial court properly found that there was a question of fact as to whether NCCI was acting in a fiduciary capacity. The trial court properly denied NCCI’s motion for summary judgment.

2. NCCI contends that the trial court erred in denying its motion for summary judgment on the issue of liability. We agree in part.

(a) Fraud is not a viable cause of action against NCCI by the plaintiff, because there is no evidence of any misrepresentations made by NCCI to the plaintiff upon which he relied to his detriment. Brown v. Rowe, 178 Ga. App. 575, 577 (2) (344 SE2d 245) (1986). Absent any communication between NCCI and the plaintiff, there could be no fraud. The trial court erred in failing to grant partial summary judgment on such issue of liability. Lau’s Corp. v. Haskins, 261 Ga. 491, 495 (405 SE2d 474) (1991). Therefore, the trial court must vacate its order and enter partial summary judgment on this theory of liability.

(b) As Administrator, NCCI had the power and duty only to receive, review, and assign applications under the Assigned Risk Pool for workers’ compensation insurance under its contract with the Insurance Commissioner. Rules & Regs, of the State of Ga., § 120-2-38-.09 (4). In changing and altering the application, instead of rejecting it and requiring a written authorization for the declination of individual coverage by the plaintiff or a supplemental application form, NCCI exceeded its authority as Administrator and gratuitously assumed new duties as a volunteer with different non-contractual duties.

One who undertakes!] gratuitously ... to render services to another which he should recognize as necessary for the protection of a third person or his things!] is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases the risk of such harm, or (b) he has undertaken to perform a duty owed by the other to the third person. . . . [Cit.]

(Punctuation omitted.) Huggins v. Aetna Cas. &c. Co., 245 Ga. 248, 249 (264 SE2d 191) (1980); accord Stelts v. Epperson, 201 Ga. App. 405, 407 (411 SE2d 281) (1991); Cunningham v. Nat. Svc. Indus., 174 Ga. App. 832, 837-838 (331 SE2d 899) (1985); Housing Auth. of Atlanta v. Famble, 170 Ga. App. 509, 523-524 (3) (317 SE2d 853) (1984); see also Mull v. Aetna Cas. &c. Co., 226 Ga. 462, 464 (4) (175 SE2d 552) (1970) (Felton, J., dissenting).

NCCI voluntarily undertook to perform Matrix’s duty to plaintiff regarding the change in the plaintiff’s insurance application. Under NCCI’s version, it failed to verify that plaintiff authorized Matrix to delete him from coverage, and thereby, NCCI increased plaintiff’s risk of harm from lack of workers’ compensation coverage. Under Matrix’s version, NCCI acted unilaterally, without authority from either the plaintiff or Matrix, in making the change and deleting plaintiff from coverage. Under either version, NCCI acted as a gratuitous volunteer outside of its authority as Administrator.

Under such facts and circumstances, plaintiff had no reason to foresee NCCI’s voluntary tortious actions, so that the failure to read the binder and policy are jury questions as to the defenses of contributory negligence, comparative negligence, causation, and mitigation of damages. Except in plain and palpable cases, summary judgment on these issues is not appropriate. See Robinson v. Kroger Co., 268 Ga. 735, 739-740 (1) (493 SE2d 403) (1997). This is not such a case; the trial court properly denied summary judgment to NCCI.

(c) If NCCI was either the agent or subagent of the plaintiff so that a fiduciary duty existed, then plaintiff had a duty to read and examine the policy of insurance, contracted for through NCCI, to determine that the coverage from the readily apparent provisions, i.e., plain and unambiguous language of the policy, was correct. See Atlanta Women’s Club v. Washburne, 207 Ga. App. 3, 5 (427 SE2d 18) (1992); Turner, Wood & Smith, Inc. v. Reed, 169 Ga. App. 213, 214 (311 SE2d 859) (1983); Ethridge v. Assoc. Mutuals, 160 Ga. App. 687, 688-689 (288 SE2d 58) (1981). This case involves the act of NCCI deleting coverage, i.e., an active tort, while the cited cases involve omission to act, i.e., failure to obtain the right coverage. In this case, the evidence was in dispute as to whether NCCI acted as an agent or subagent, so that summary judgment should not be granted as to plaintiff’s failure to read the policy or binder or as to whether NCCI acted as a volunteer on its own, without the knowledge of either the plaintiff or Matrix, to change the application. Therefore, the trial court properly denied the motion for summary judgment on the basis of liability.

Judgment affirmed in part and reversed in part with direction.

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

Decided December 15, 1999

Harman, Owen, Saunders & Sweeney, David C. Will, for appellant.

Smith, Wallis & Scott, Kenneth A. Smith, for appellee.


text:
    A99A2211.
    WILLINGHAM v. THE STATE.
    (527 SE2d 232)
   Blackburn, Presiding Judge.

Curtis Willingham appeals his convictions of child molestation and statutory rape of his daughter. This is Willingham’s second appeal of his convictions. Previously, in Willingham v. State, 235 Ga. App. 475 (509 SE2d 744) (1998), we determined that: (1) Willingham waived any error regarding the admission of testimony concerning his sexual dreams and fantasies of his niece; (2) the trial court did not err in failing sua sponte to instruct the jury on the defenses of accident and mistake of fact; and (3) it was necessary to remand the case for a hearing on Willingham’s claims of ineffective assistance of counsel which were raised for the first time on appeal. In the present case, Willingham appeals the trial court’s finding that he received effective assistance of counsel.

1. In his first assertion of error, Willingham again argues that the trial court erred by admitting testimony about his sexual dreams and fantasies regarding his niece. However, this error was decided against Willingham in his initial appeal, wherein we determined that Willingham’s failure to object to such testimony waived any error. See Willingham, supra. It will not be addressed again. See Parker v. State, 229 Ga. App. 217, 218 (2) (493 SE2d 558) (1997) (assertion of same error in previous appeal renders issue res judi-cata).

2. Willingham contends that his trial counsel was ineffective because he failed to object to the testimony regarding Willingham’s sexual dreams and fantasies involving his niece. After a hearing on this issue, the trial court determined that Willingham was afforded effective assistance of counsel. A trial court’s finding that a defendant has received effective assistance of counsel will be upheld on appeal unless clearly erroneous. Smith v. State, 256 Ga. 483 (351 SE2d 641) (1986).

“To establish a claim of ineffective assistance of counsel, [Willingham] must show both that his trial counsel’s performance was deficient and that counsel’s deficiency so prejudiced his defense that a reasonable probability exists that the result of the trial would have been different but for that deficiency. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). [Willingham] must establish both the performance and the prejudice components of the Strickland test.” Johnson v. State, 222 Ga. App. 722, 728 (9) (475 SE2d 918) (1996). To succeed in his claim, [Willingham] “must overcome the strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct.” (Citation and punctuation omitted.) White v. State, 193 Ga. App. 428, 430 (2) (387 SE2d 921) (1989). We will not reverse on the basis of ineffective assistance of counsel unless trial counsel’s conduct so undermined the proper functioning of the adversarial process that the trial could not reliably have produced a just result. Cunningham v. State, 222 Ga. App. 740, 743 (2) (475 SE2d 924) (1996). [Wil-lingham] must show that the trial court clearly erred and that such error was harmful in deciding whether his trial counsel was ineffective. Absent clear error and harm, we will affirm the trial court’s finding that [Willingham] did not receive ineffective assistance of counsel. See id.

Decided December 15, 1999.

Lloyd J. Matthews, for appellant.

Tommy K. Floyd, District Attorney, Blair D. Mahaffey, Assistant District Attorney, for appellee.

Mency v. State, 228 Ga. App. 640, 642 (2) (492 SE2d 692) (1997).

Assuming, but without deciding, that Willingham’s trial counsel was deficient in failing to object to testimony regarding Willingham’s sexual dreams and fantasies, the trial court’s determination that such conduct did not prejudice Willingham’s defense was not clearly erroneous. The record establishes overwhelming evidence upon which Willingham’s conviction was based, including his confession to attempted statutory rape, medical evidence regarding the victim’s condition, and the 11-year-old victim’s testimony of the rape and repeated molestations. Willingham’s defense was not prejudiced to the extent that it is reasonably probable that the trial outcome would have been different but for the alleged deficiency. See Strickland, supra.

Judgment affirmed.

Eldridge and Barnes, JJ., concur.


text:
    A99A2227.
    KIMBALL v. KGB TRANSPORT et al.
    (527 SE2d 233)
   Blackburn, Presiding Judge.

Beverly Kimball, individually and as the executrix of the estate of George Kimball, appeals from the trial court’s determination that the six-month period for renewal of an action had expired before she refiled her complaint. Because we find the six-month period for renewal of the action had run, we affirm.

George Kimball initially filed suit on March 10, Í995, alleging that he was injured on August 27, 1993, as a result of the negligence and professional malpractice of Cedartown Medical & Therapy, Inc. and KGB Transport. When George Kimball died after the suit was filed, Beverly Kimball, as representative of his estate, was substituted as plaintiff. Thereafter, by an order entered on July 23, 1998, the trial court dismissed Kimball’s suit for failure to file a pretrial order. The dismissal order improperly indicated it was signed in 1997, so the trial court then entered an amended order on August 18, 1998, stating that the correct signature date was in 1998, not 1997.

On January 26, 1999, Beverly Kimball filed the present renewal action. Thereafter, Cedartown Medical filed a motion for summary judgment and KGB Transport filed a motion to dismiss, both arguing that this action was filed after the period for renewal of the previous action had expired. The trial court granted the motions.

It is undisputed that, as the statute of limitation applicable to the cause of action had expired, Kimball had six months to refile the action under the renewal provisions of OCGA § 9-2-61.

When any case has been commenced in either a state or federal court within the applicable statute of limitations and the plaintiff discontinues or dismisses the same, it may be recommenced in a court of this state or in a federal court either within the original applicable period of limitations or within six months after the discontinuance or dismissal, whichever is later.

OCGA § 9-2-61. Although the statute states that it applies where a plaintiff has dismissed an action, we have held that it applies to voluntary or involuntary dismissals where the merits were not adjudicated. Swartzel v. Garner, 193 Ga. App. 267 (387 SE2d 359) (1989).

The only issue before this Court is whether the six-month period under OCGA § 9-2-61 was triggered by the dismissal order entered July 23, 1998, or by the amended order of August 18, 1998. If the July order triggered the six-month period, as Cedartown Medical and KGB Transport contend, then the period expired before Kimball’s action was filed. If the amended order triggered the six-month period, Kimball’s action was filed timely.

Decided December 15, 1999

Mundy & Gammage, Miles L. Gammage, John S. Husser, for appellant.

Hall, Booth, Smith & Slover, Rebecca T. Christian, Roger S. Sumrall, Magruder & Sumner, J. Clinton - Sumner, Jr., John A. Owens, for appellees.

The trial court rejected Kimball’s argument that because the signature date on the order — July 23, 1997 — was already more than six months prior, the order on its face precluded Kimball from filing a renewal action. Even assuming some confusion arose from the clerical error on the order, the parties knew when it was filed. The significant date is the date on which the order was entered on the record, not the date it was signed. Ga. Power Co. v. Whitmire, 146 Ga. App. 29 (245 SE2d 324) (1978); Milam v. Mojonnier Bros. Co., 135 Ga. App. 208 (217 SE2d 355) (1975); see OCGA § 9-11-58 (b). The filing date was stamped on the front page of the order. Moreover, Kimball’s reliance on the August amended order is misplaced since that order expressly states that its only purpose was to correct the signature date of the July 23, 1998 order.

When the trial court’s order of dismissal was filed on July 23, 1998, Kimball’s previous action was dismissed. “Orders are not complete until filed or recorded.” Ga. Power Co., supra at 31. Under OCGA § 9-2-61, a plaintiff must refile the claims within six months of the dismissal. See Owens v. Hewell, 222 Ga. App. 563 (474 SE2d 740) (1996). Since Kimball refiled the suit more than six months later, the trial court properly found that Kimball’s action was untimely.

Judgment affirmed.

Eldridge, J., concurs. Barnes, J., concurs in the judgment only.


text:
    A99A2242.
    VASQUEZ v. THE STATE.
    (527 SE2d 235)
   Eldridge, Judge.

Defendant Augustin Herrea Vasquez challenges his September 1998 conviction on one count of child molestation. We affirm.

1. In his first assertion of error, Vasquez contends that the evidence was insufficient to support the conviction. However, on appeal, “the evidence must be viewed in a light most favorable to the verdict, and appellant no longer enjoys a presumption of innocence; moreover, on appeal this court determines evidence sufficiency, and does not weigh the evidence or determine witness credibility.” (Citations omitted.) Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737) (1990). See also Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

In this case, the evidence presented included, inter alia, the testimony of the victim, who testified that Vasquez forced her to have sexual intercourse with him in 1994, when she was younger than 14. The victim testified that Vasquez threatened to harm her if she told anyone about the abuse. A caseworker from the Department of Family & Children Services and a mental health therapist also testified about their interviews with the victim, during which she recounted Vasquez’s molestation. The therapist testified that the victim was very “isolated, unable to communicate, very tearful in talking about any issues relative to molestation or sexual abuse.” In addition to this testimony, the State presented evidence of two similar transactions in which Vasquez had sexual intercourse with children younger than age fourteen. See Division 3, infra. After reviewing the entire record, this Court finds that the evidence was sufficient for a rational factfinder to find Vasquez guilty beyond a reasonable doubt of child molestation. Jackson v. Virginia, supra.

2. In his second assertion of error, Vasquez claims that the trial court erred in allowing the therapist to testify as an expert witness. Vasquez challenged the therapist’s credentials at trial and reiterates the challenge on appeal.

This Court has repeatedly held that it is a matter within the sound discretion of the trial judge as to whether a witness has such learning and experience in a particular profession as to entitle him to be deemed prima facie an expert. To qualify as an expert, generally all that is required is that a person be knowledgeable in a particular matter; his special knowledge may be derived from experience as well as study, and formal education in the subject is not a requisite for expert status.

(Citations and punctuation omitted.) Wingfield v. State, 229 Ga. App. 75, 84 (6) (493 SE2d 235) (1997).

In this case, the therapist testified about his education and experience, his current employment as clinical director of a facility for abused children, and his six interview sessions with the victim. He was subject to cross-examination by defense counsel. The trial court made specific findings of fact as to the therapist’s qualifications. Such findings were supported by the evidence presented. There was no abuse of discretion.

3. Vasquez’s challenge to the introduction of evidence of two similar transactions is without merit. The State gave proper notice of its intention to present such evidence, and a hearing was conducted. See Uniform Superior Court Rule 31.3; see also Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991). The trial court ruled that both of the proffered similar transactions were admissible.

At trial, the trial court instructed the jury to consider such evidence only to the extent that it demonstrates specific, permissible purposes, i.e., state of mind and identity. See Williams, supra at 642, n. 2. Both victims testified and specifically identified Vasquez as the perpetrator of the crimes against them. The victim of the first similar transaction, S. L., testified that she was eight or nine years old in 1989, when Vasquez forced her to have sexual intercourse with him and to perform oral sex on him. The second similar transaction victim to testify, T. F., is the sister of the victim in this case. T. F. testified that Vasquez forced her to have sexual intercourse with him when she was between ten and thirteen years old. According to T. F., Vasquez threatened to kill her and her mother if she did not have sex with him. The State introduced into evidence that Vasquez entered a 1993 Alford, plea to this child molestation charge and was sentenced to a period of probation. See Division 4, infra.

As such, both transactions met the Williams criteria for admissibility. There was no error.

4. In his final assertion of error, Vasquez contends that the trial court erred in refusing to allow a local criminal defense attorney to testify regarding the process a defense attorney goes through in entering an Alford plea. The trial court refused to allow the witness to testify regarding the law as it relates to such plea. Instead, the trial court agreed to give a jury instruction explaining an Alford plea. The trial court suggested that defense counsel submit a proposed jury instruction on an Alford plea. When defense counsel did not propose such instruction, the trial court suggested one. At that time, defense counsel suggested the insertion of a single phrase, and the trial court agreed to amend the instruction. During closing arguments, defense counsel explained to the jury the alleged reasons why Vasquez entered his Alford plea to the 1993 child molestation charge. The trial court then thoroughly instructed the jury on the legal significance of an Alford plea. Defense counsel did not object to the instruction as given.

Decided December 15, 1999.

Kathy S. Palmer, for appellant.

Richard A. Malone, District Attorney, Samuel H. Altman, Assistant District Attorney, for appellee.

Under the circumstances, as defense counsel failed to propose an instruction, then failed to object to the jury charge, he cannot complain on appeal that the jury should have been better informed regarding the significance of such plea. As the trial court noted in its denial of Vasquez’s motion for new trial, “[cjounsel cannot sit by and permit some matter they could correct by timely action and later claim error.” (Citation and punctuation omitted.) Kitchen v. State, 263 Ga. 629, 630 (1) (436 SE2d 645) (1993).

Judgment affirmed.

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

       Under OCGA § 16-6-4 (a), a “person commits the offense of child molestation when he or she does any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.”

       Prior to 1995, OCGA § 16-6-4 (a) prohibited immoral or indecent acts to or in the presence of children under 14 years of age. Ga. L. 1995, p. 957, § 4.

        North Carolina v. Alford, 400 U. S. 25 (91 SC 160, 27 LE2d 162) (1970).

       In relevant part, the instruction read as follows:
      Insofar as a case where a person enters a plea of guilty in his best interest a Court may accept a guilty plea even if the defendant insists that he or she is innocent.

        However, in doing so a Court receiving a guilty plea in all cases must protect the innocent. The Court must insure that a guilty plea is a product of a full, free, and intelligent choice. A plea of guilty with a claim of innocence known as a plea of guilty in one’s best interest should not be accepted unless there is a factual basis for the plea. A judge taking a plea of guilty in one’s best interest must inquire into and resolve the conflict between the waiver of trial on the charges and the claim of innocence. Upon the Court’s acceptance of the plea of guilty in one’s best interest, the judgment of the court finding the defendant guilty is an adjudication of guilt of the crime charged.
      See also Brower v. State, 230 Ga. App. 125 (495 SE2d 600) (1998).


text:
    A99A2304.
    JONES v. THE STATE.
    (527 SE2d 223)
   Eldridge, Judge.

Following a bench trial in Fulton County Traffic Court, Bruce F. Jones was found guilty of driving under the influence of alcohol (“DUI”) — less safe driver. He appeals, raising one alleged error of law. Finding Jones’ enumerated error to be without merit, we affirm.

During the State’s case-in-chief, the arresting officer testified in detail regarding: the stop of Jones’ car for unsafe lane change at approximately 12:58 a.m.; Jones’ boisterous and loud demeanor; the presence of a strong smell of alcohol on and about Jones’ person; his watery and bloodshot eyes; his unsteady walk; and Jones’ failure of several field sobriety tests, including a field aleo-sensor test. The officer also testified regarding Jones’ breath test on the Intoxilyzer 5000, which test was taken at approximately 2:24 a.m. However, because of an issue regarding Jones’ request for an independent chemical test, the State and defense entered into a stipulation that the otherwise valid results of Jones’ Intoxilyzer 5000 breath test were procedurally barred and would not be admitted into evidence.

Thereafter, during his direct examination, Jones testified that he had “had a couple of beers” on the night in question. He testified on cross-examination that he had consumed one beer at 8:30 p.m. and two beers between 10:00 p.m. and 12:00 a.m. and “that’s all [Jones] had to drink the whole night.” Jones also testified on cross-examination that he weighed 200 pounds.

In rebuttal to Jones’ testimony that he consumed only three beers over a five-hour period and the subsequent inference raised thereby that Jones was not intoxicated due to such limited consumption, the State sought to introduce the result of Jones’ Intoxilyzer 5000 breath test, which showed Jones’ blood alcohol content (“BAG”) to be 0.09 two hours after his arrest. The defense objected. The trial court permitted the State to introduce the breath test result to impeach Jones’ testimony that he consumed only three beers. Held:

In his sole enumeration of error, Jones contends that the trial court improperly admitted the result of his breath test because such evidence did not impeach his testimony. We do not agree.

“Evidence should be admitted if it is admissible for any legitimate purpose.” Goodwin v. State, 222 Ga. App. 285, 287 (3) (474 SE2d 84) (1996); Smith v. State, 260 Ga. 746, 748 (1) (399 SE2d 66) (1991). Valid results of a breath, blood, or urine test, which are otherwise determined to be inadmissible on procedural grounds, may be properly admitted for impeachment purposes. Charlton v. State, 217 Ga. App. 842 (459 SE2d 455) (1995); Goodwin v. State, supra.

In this case, Jones’ 0.09 BAC shows that Jones had consumed alcohol in excess of 0.08, thereby raising the presumption “that the person was under the influence of alcohol.” OCGA § 40-6-392 (b) (3). Such evidence was admissible to rebut Jones’ testimony that he consumed only three beers over a five-hour period and the subsequent inference raised thereby that he was not intoxicated. “Impeachment and rebuttal of a defendant’s testimony [are] legitimate purpose [s, and] [t]he right to impeach a defendant/witness, as set forth in OCGA § 24-9-82, is one of the cornerstones of the adversarial process. [Cit.]” Goodwin v. State, supra. This is because “[t]he right to testify on one’s own behalf does not include the right to lie. [Cit.]” Stephenson v. State, 206 Ga. App. 273 (424 SE2d 816) (1992). See also Nix v. Whiteside, 475 U. S. 157 (106 SC 988, 89 LE2d 123) (1986). As the breath test result was admissible to rebut Jones’ testimony that he consumed only three beers over a five-hour period and the inferences raised thereby, the trial court did not err in the admission of such evidence.

Decided December 15, 1999.

Clark & Towne, David E. Clark, Jessica R. Towne, for appellant.

Joseph J. Drolet, Solicitor, Julie A. Kert, Assistant Solicitor, for appellee.

Judgment affirmed.

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

       Neither at trial nor on appeal does Jones challenge the admissibility of the breath test result based on the prior stipulation. Instead, his contention at trial and on appeal has remained that the result of the breath test does not serve to impeach his testimony that he consumed only three beers over five hours.

       A blood, breath, or urine test which is held inadmissible on substantive grounds, i.e., because the result of the test is defective, would not be admissible for impeachment purposes, since a defective test result could not serve to prove a defendant’s BAC.