text:
    A96A0781.
    WALKER v. SUTTON.
    (476 SE2d 34)
   Judge Harold R. Banke.

Grace T. Walker sued Raymond Sutton, the alleged truck owner and his driver, Bobby Willis, for personal injuries allegedly sustained in a motor vehicle accident occurring on November 16, 1989. On November 26, 1991, Sutton answered that he was the owner of the logging truck involved in the collision and that Willis, the operator of his truck, was acting in the scope of his employment with Sutton. The same facts were admitted by Sutton in response to Walker’s interrogatories. In the pretrial order filed May 20, 1993, the parties stipulated that at the time of the accident, Sutton’s vehicle was being operated by Bobby Willis who was hauling logs as Sutton’s employee. In the defendant’s outline of the case in the pretrial order, Sutton conceded, “Bobby Willis was driving my log truck. [T]he bowed log caught the overpass.”

After a jury had been selected in January 1994, Sutton through counsel, advised the trial court for the first time that a search of his business records revealed that he had sold the truck a few weeks prior to the accident and that according to his payroll records Bobby Willis ceased being his employee a few weeks before the accident. Based on the newly discovered information, the trial court discharged the jury. Sutton filed a motion to withdraw admissions and amend answer and a motion to amend the pretrial order. Walker filed a motion in limine asserting that Sutton should not be permitted to repudiate, change or withdraw his admissions in judicio. The trial court denied Walker’s motion and relying on OCGA § 9-11-15, permitted Sutton to withdraw his admissions, amend his answer and the pretrial order.

Citing his own affidavit, his attorney’s affidavit, and copies of records obtained from the Georgia Department of Revenue, Sutton moved for summary judgment, contending this evidence proved that he had sold the truck and Willis was not his employee. Sutton failed to offer in evidence a copy of the bill of sale, the payroll records or an affidavit from the purported new owner. In opposition to Sutton’s motion, Walker presented evidence that Sutton’s liability insurance carrier negotiated a property settlement with her and she testified that the name “Sutton” appeared on the door of the truck at issue. Determining that Sutton’s evidence conclusively established that Sutton was not the truck owner and Willis was not his employee, the trial court granted summary judgment to Sutton. Held:

1. The trial court erred in denying Walker’s motion in limine and granting Sutton’s motions to amend his answer, admissions and pretrial order. Even assuming arguendo that Sutton sold the truck as he claimed, the trial court erred in denying Walker’s motion in limine. Sutton is estopped from tardily contradicting his responsive pleading, interrogatory responses and pretrial order because of Walker’s detrimental reliance. OCGA § 24-4-24 (b) (8). An estoppel arises where one makes representations to another concerning a matter about which the other acts to his injury. Usry v. Hadden, 87 Ga. App. 710, 711 (3) (75 SE2d 275) (1953). Sutton’s admissions precluded Walker from bringing suit against the alleged proper owner since the two year statute of limitation on Walker’s personal injury claim expired prior to Sutton’s belated disclosure regarding the purported change in ownership. OGGA § 9-3-33. From November 1991 until February 1994, Sutton’s actions effectively misled Walker as to the identity of the owner of the logging truck, well past the expiration of the applicable statute of limitation, thereby prejudicing Walker in maintaining her action on the merits. Compare OCGA § 9-11-36 (b); Hamrick v. Greenway, 257 Ga. 287, 288 (1) (357 SE2d 580) (1987) (a court may permit withdrawal or amendment when the presentation on the merits will be subserved thereby and the party who obtained the admissions fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action).

It is undisputed that Walker relied on Sutton’s representations, acted in good faith, and otherwise used reasonable diligence. See Bachrodt Realty Corp. v. Walker, 237 Ga. 696, 697 (2) (229 SE2d 455) (1976). Further, the record shows that Sutton’s insurance carrier negotiated Walker’s property damage claim, continued to represent Sutton’s interests in defending the personal injury claim, and paid Walker’s property damage claim. The law of estoppel applies between parties and their privies and Sutton would be bound by the actions of his insurer. Howard v. Perkins, 229 Ga. 279, 281 (2) (191 SE2d 46) (1972). For these reasons, the trial court abused its discretion when it denied Walker’s motion in limine. See OCGA § 9-11-15 (a); and Leslie, Inc. v. Solomon, 141 Ga. App. 673, 675 (1) (234 SE2d 104) (1977); compare Rowland v. Tsay, 213 Ga. App. 679, 680 (1) (445 SE2d 822) (1994); Bourquine v. City of Patterson, 151 Ga. App. 232 (259 SE2d 214) (1979).

The trial court also erred in granting Sutton’s motions. “[A]ny attempt to withdraw or amend admissions must be accompanied by a showing that the merits of the case will be subserved.” Yarbrough v. Magbee Bros. Lumber &c. Co., 189 Ga. App. 299, 302 (2) (375 SE2d 471) (1988). As discussed above, rather than the merits of the case being promoted, Walker’s case was obliterated. Moreover, a pretrial order generally cannot be modified after its entry except to prevent manifest injustice. OCGA § 9-11-16 (b). No such showing of manifest injustice was made. “[T]he test of implied amendment of pleadings should always be whether the opposing party had a fair opportunity to defend, offer evidence, or was misled. [Cit.]” Carreras v. Austell Box Board Corp., 154 Ga. App. 135, 138 (2) (267 SE2d 792) (1980). Whether deliberately or inadvertently, the actions of Sutton as discussed above, clearly misled Walker.

Moreover, the evidence Sutton submitted as to the change in ownership is not dispositive of that issue for several reasons. The copies of paperwork Sutton submitted to the Georgia Department of Revenue in an attempt to transfer title to Mid-State Forest Products, Inc. (“Mid-State”) fail to show that Sutton ever properly transferred title to Mid-State or that Mid-State ever became the title owner of the truck involved in the accident. See OCGA § 40-3-35 (b). The certificate of title fails to show a release by the lienholder, Trust Company Bank of Middle Georgia, a condition precedent before Sutton Trucking Company, Inc., the listed title owner, could effectuate a transfer of title to the alleged new owner, Mid-State. OCGA § 40-3-32 (d). Also, if the transfer of ownership occurred on the date which Sutton contends, it is unclear why a title penalty for failing to apply for the transfer of title within 90 days of the date of sale was required. Sutton’s apparently unsuccessful effort to transfer title in March 1990 undermines his contention that he just discovered the change in ownership on the eve of trial. Nor has Sutton offered a reasonable explanation for his sudden discovery of the exculpatory information. See Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (2) (343 SE2d 680) (1986).

Decided August 30, 1996

William R. McCracken, for appellant.

Fulcher, Hagler, Reed, Hanks & Harper, James E. Enoch, Jr., Glover & Blount, Percy J. Blount, Judson L. Green III, for appellee.

2. The trial court erroneously granted summary judgment to Sutton. Even if Sutton had been entitled to withdraw his admissions and amend his answer and the pretrial order, in so doing, jury questions would have been created. Admissions formally withdrawn from the pleadings are no longer solemn admissions in judicio; nevertheless, a jury may accord them credence and effect upon the trial of a case. Stallings v. Britt, 204 Ga. 250, 254 (2) (49 SE2d 517) (1948). See Wood v. Claxton, 199 Ga. 809 (1) (35 SE2d 455) (1945). Having determined in Division 1 that the trial court erred in permitting Sutton to withdraw his admissions and amend his answer and the pretrial order, summary judgment must be reversed.

Judgment reversed.

Andrews and Smith, JJ, concur.

       Although the copies of the title documents are barely legible, it appears that the Department of Revenue rejected Sutton’s application for the change in title using a form titled, “Enclosed Document(s) Submitted for the Issuance of a Title is Being Returned for the Reason(s) Indicated Below.” Sutton attempted to have the title changed in March 1990, several months after the collision with Walker’s vehicle.


source: Caselaw Access Project

author: Pope, Presiding Judge.

license: Public Domain

text:
    A96A1161.
    MILLER v. THE STATE.
    (475 SE2d 690)
   Pope, Presiding Judge.

After defendant was charged with burglary, armed robbery, and kidnapping, he filed an affidavit of indigency and the trial court appointed counsel for him. Before trial, however, defendant retained another attorney and his appointed counsel withdrew. Defendant was convicted by a jury, and filed a notice of appeal in which he requested the inclusion of the trial transcript in the record. But defendant failed to pay for the transcript or to take any steps to have the State pay for the transcript. As a result, the transcript was not filed within 30 days after the filing of the notice of appeal as required by OCGA § 5-6-42. (Nor did defendant request an extension of time for filing the transcript under OCGA § 5-6-39.)

The State moved to dismiss the appeal and a hearing was held. The court reporter testified that she had finished the transcript one day after the notice of appeal was filed, and had called defense counsel to ask him what to do with it. Counsel told her he was not yet sure whether defendant would actually be appealing, said he would let her know, and gave no indication that defendant was claiming indigency despite his retention of paid counsel. The court reporter did not hear back from defense counsel, and did not file the transcript. After the hearing, the trial court dismissed the appeal, finding that the delay in filing the transcript was unreasonable, caused by defendant, and inexcusable. See OCGA § 5-6-48.

Decided August 30, 1996

Michael B. King, for appellant.

Robert E. Keller, District Attorney, Marion T. Woodward, Assistant District Attorney, for appellee.

Here, defendant challenges the dismissal of his appeal, asserting that the State was obligated to supply the transcript because he was indigent. It is true that the State must pay for a trial transcript for an indigent defendant who appeals. See Clay v. State, 122 Ga. App. 677 (4) (178 SE2d 331) (1970). Nonetheless, it is the obligation of a defendant/appellant to at least make it known to the trial court that he is indigent, and to request that a transcript be filed and the State billed. Even though defendant had earlier filed an affidavit of indigency, it was reasonable for the trial court to assume he was no longer indigent when he subsequently retained paid counsel who represented him at trial. Hopkins v. Hopper, 234 Ga. 236, 238 (3) (215 SE2d 241) (1975) (where defendant is represented by retained counsel at trial, trial court has no duty to inquire as to defendant’s indigency and may presume that his retained counsel will protect his appellate rights). In light of defendant’s failure to take any steps to ensure the transcript was filed in a timely manner, regardless of who was going to pay for it, the trial court’s findings were supported and its dismissal of the appeal was not an abuse of discretion.

Judgment affirmed.

Andrews and Smith, JJ, concur.


author: Beasley, Chief Judge.

text:
    A96A1352.
    HOLMES v. THE STATE.
    (476 SE2d 37)
   Beasley, Chief Judge.

Holmes was convicted on one count of possession of cocaine, OCGA § 16-13-30 (a), and found to be a recidivist, OCGA § 17-10-7. In his sole enumeration of error, he contends the court erred in denying his motion to suppress evidence gained through an illegal search.

We review the trial court’s ruling on a motion to suppress by construing the evidence “most favorably to uphold the findings and judgment[;] and the trial court’s findings on disputed facts and credibility must be accepted unless clearly erroneous. [Cit.]” Burse v. State, 209 Ga. App. 276 (433 SE2d 386) (1993). The evidence presented both at trial and at the motion hearing is considered. Beck v. State, 216 Ga. App. 532, 536 (1) (455 SE2d 110) (1995).

At approximately 4:30 in the afternoon, Officer Myrick, in uniform and with two other officers, was on regular patrol in a public housing project that was a high-crime, high-drug area. After dissipating a disturbance, Myrick and the other officers asked those nearby whether they were residents of the housing project and told them that if they were not, they must leave the area. This was standard operating procedure of the police department in this housing project to help suppress drug traffic there. Myrick did not encounter Holmes at that time.

The officers returned to the area around 11:30 p.m. While on foot patrol, Myrick met Holmes walking alone on a cul-de-sac and asked if he lived there. Holmes stated he did not and Myrick told him he had to leave. Holmes stated he would do so and began walking away as though leaving the project. Approximately 15 minutes later Myrick again saw Holmes in the project, about a hundred yards from his previous location, going in the opposite direction than he had done before. Myrick called to him by name, and perhaps said something such as “Hey,” but Holmes went behind a building to hide.

The three officers approached Holmes and one officer told him to put up his hands. They conducted a pat-down search for weapons because of the nature of the area, the time of night, and Holmes’ attempt at evasion. Under Holmes’ coat, in his left front shirt pocket, the officers found a glass and copper pipe of the type used to smoke crack cocaine. The pipe contained what appeared to be (and was) cocaine residue, and they arrested Holmes.

“ ‘Supreme Court holdings sculpt out, at least theoretically, three tiers of police-citizen encounters: (1) communication between police and citizens involving no coercion or detention and therefore without the compass of the Fourth Amendment, (2) brief seizures that must be supported by reasonable suspicion, and (3) full-scale arrests that must be supported by probable cause.’ [Cit.]” In the Interest of S. B., 207 Ga. App. 60, 61 (427 SE2d 52) (1993).

When Myrick called Holmes, he had not been seized. See Ward v. State, 193 Ga. App. 137, 138 (1) (387 SE2d 150) (1989); Vance v. State, 205 Ga. App. 201 (421 SE2d 730) (1992). When he was told to raise his hands and was given the pat-down search, the police possessed information that would support articulable suspicion. Holmes did not live in the housing project but was there alone late at night, near an earlier altercation, in an area known for high crime and drug use. See Jones v. State, 216 Ga. App. 449 (454 SE2d 631) (1995). He had stated he would leave and had walked away as though to do so but quickly returned, showing an intention to deceive the officers. See Clark v. State, 183 Ga. App. 838, 840 (1) (360 SE2d 447) (1987); accord Moon v. State, 194 Ga. App. 777 (392 SE2d 19) (1990) (multiple suspects gave inconsistent, and therefore apparently untrue, answers to minimal questioning). When the police called to him, he attempted evasion. See Copeland v. State, 213 Ga. App. 39, 41 (1) (443 SE2d 869) (1994). Taken together, these facts were sufficient to establish an articulable suspicion that Holmes was involved in criminal activity and the police were justified in conducting a pat-down for weapons. Holmes’ citation to Sams v. State, 265 Ga. 534 (459 SE2d 551) (1995), does not change the analysis; the decision to stop Holmes was based on his behavior, not his race.

Decided August 30, 1996.

James C. Wyatt, for appellant.

Stephen F. Lanier, District Attorney, Leigh E. Patterson, Emory B. Thompson, Assistant District Attorneys, for appellee.

Judgment affirmed.

Birdsong, P. J., and Blackburn, J., concur.


author: Ruffin, Judge. McMurray, Presiding Judge,

text:
    A96A1423.
    HAUGHTON et al. v. NAMANO, INC.
    (476 SE2d 31)
   Ruffin, Judge.

Namano, Inc. (“Namano”) sued James and Donna Haughton for money owed for jewelry they purchased on open account, and the Haughtons counterclaimed alleging usury. The trial court granted summary judgment to Namano on its claim and on the Haughtons’ counterclaim. The Haughtons appeal from that order, and for reasons which follow, we affirm in part and reverse in part.

The standard for a grant of summary judgment is found in Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). The moving party must “demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c).” Id.

1. The trial court did not err in granting summary judgment to Namano on its claim for open account. The record shows that Namano sued the Haughtons for money owed for jewelry sold on open account. The jewelry was itemized on invoice number 145228, and the original purchase price was $8,224.50. Payment was due on or before September 10, 1992. In a series of monthly statements, Namano billed the Haughtons for the amount owed on invoice number 145228, adding a 1.5 percent finance charge which, when unpaid, became part of the following month’s principal. According to the affidavit of Namano’s president and Namano’s account statement, the Haughtons owed Namano $10,680.19 for invoice number 145228 as of March 1, 1995. This was the amount and date used by the trial court in its judgment.

The Haughtons denied owing the debt and filed a counterclaim alleging that the interest was usurious. The Haughtons did not deny purchasing the jewelry, but alleged that they had made payments which were not properly credited to invoice number 145228. According to the Haughtons, they made payments in 1994 totaling $12,000. The record shows the Haughtons made each payment without directing Namano to apply the payment to any specific account. Namano contended these payments were credited to various sub-accounts which had previously been established and presented statements for the sub-accounts which verified its contention.

In an affidavit, Mr. Haughton stated that under his agreement with Namano, the Haughtons received certain Namano goods to be sold on consignment and that the Haughtons were not supposed to be charged for the goods until there was an actual sale. However, Mr. Haughton further asserted that he could not determine from the records submitted by Namano whether the sub-accounts which were credited were consignment accounts or whether the Haughtons should have been charged for those accounts. The Haughtons failed to come forward with any evidence showing that these sub-accounts were, in fact, consignment accounts or that Namano improperly applied credits to these sub-accounts.

Mr. Haughton’s belief that the sub-accounts may have been consignment accounts does not create a material issue of fact. Namano asserted by affidavit that payments made by the Haughtons were properly applied to the oldest sub-account, leaving a balance due on invoice number 145228 of $10,680.19 as of March 1, 1995. According to OCGA § 13-4-42, “[wjhen a payment is made by a debtor to a creditor holding several demands against him, the debtor shall have the right to direct the claim to which it shall be appropriated. If the debtor fails to do so, the creditor shall have the right to appropriate the payment at his election. . . .” The Haughtons have not pointed to any evidence showing that they directed Namano to credit the payments to any specific account or that Namano improperly credited their payments to the consignment accounts.

“In response to [a] motion for summary judgment, it is not enough to dispute a sworn fact by proposing an indistinct conclusion to the contrary, but the respondent must say what he has to say at the right time, by producing evidence that rebuts the prima facie right to judgment.” (Citations and punctuation omitted.) Fresh & Fancy Produce v. Brantley, 190 Ga. App. 128, 129 (2) (378 SE2d 379) (1989). See also Charles S. Martin Distrib. Co. v. Bernhardt Furniture Co., 213 Ga. App. 481 (3) (445 SE2d 297) (1994).

Since there was no evidence “except the shadow of an issue by speculation ... to rebut [Namano’s] affidavit” that it properly applied the payments to debts which the Haughtons owed to Namano, the trial court did not err in granting summary judgment to Namano on its claim for open account. Brantley, supra. Contrary to the dissent’s argument, Namano did not admit the practice of billing all items under a single account maintained under customer number 34535. In fact, the affidavit of Namano’s president specifically states that while all accounts were maintained under customer number 34535, statements were sent on a monthly basis in each account and indicated the sub-account number. Moreover, we cannot agree with the dissent’s belief that the Haughtons’ intent to pay invoice number 145228 is clear and that a trier of fact may infer from the amount of the check that each was in payment of the specific amount sued on in this action. The Haughtons have failed to produce any evidence showing that they intended the payments to be credited to invoice number 145228 or that Namano improperly credited their sub-accounts. In addition, the checks which they wrote to Namano did not in any way correspond with the amount owed on the sub-accounts.

However, for the reasons addressed in Division 2, the amount awarded by the trial court may have been improper.

2. The trial court erred in granting summary judgment to Namano on the Haughtons’ counterclaim for usury. OCGA § 7-4-16 permits a commercial account creditor to “charge interest on that portion of a commercial account which has been due and payable for 30 days or more at a rate not in excess of IV2 percent per month calculated on the amount owed from the date upon which it became due and payable until paid.” See McNair v. Gold Kist, 166 Ga. App. 782 (2) (3) (305 SE2d 478) (1983). The record in the present case shows that finance charges of 1.5 percent per month were charged each month on the previous month’s balance. This balance included the previous months’ interest. While the finance charges for each individual month never exceeded 1.5 percent, there remains a question of fact based on the record as it now stands whether Namano’s practice of calculating interest on interest violated OCGA § 7-4-16.

Namano correctly asserts that Georgia law, at times, permits transactions in which interest on interest is assessed. See, e.g., Walton v. Johnson, 213 Ga. 108 (2) (97 SE2d 310) (1957); and Hardy v. G.A.C. Finance Corp., 131 Ga. App. 282 (2) (205 SE2d 526) (1974). However, these cases dealt with “interest notes” or contractual provisions addressing interest. The record is devoid of any such items in the present case. We note in passing the Attorney General’s unofficial opinion number U83-9, dated February 22, 1983: “[w]here a commercial account provides that unpaid interest becomes a liquidated demand,’ such interest may be treated as part of that portion of the account which has been due and payable, within the meaning of this section; where such interest has been due and payable for 30 days or more, it may itself accrue interest at the contract rate.” (Emphasis supplied.) See OCGA § 7-4-16.

Since we cannot locate any evidence in the record of a provision allowing Namano to collect interest on interest, we find that the trial court erred in granting summary judgment to Namano on the Haughtons’ counterclaim for usury. This issue must be addressed before the trial court can correctly determine the amount owed by the Haughtons on Namano’s open account claim.

Judgment affirmed in part, reversed in part, and remanded with directions.

Beasley, C. J., Birdsong, P. J., Pope, P. J., Andrews, Johnson, Blackburn and Smith, JJ, concur. McMurray, P. J., dissents.

McMurray, Presiding Judge,

dissenting.

I respectfully dissent from the partial affirmance of summary judgment on behalf of plaintiff Namano, Inc., in this action to collect a debt. Defendants James Haughton and Donna Haughton defended, in part, on the basis that certain payments, undeniably made, were unilaterally and improperly attributed to other so-called “sub accounts.” In my view, the majority errs in affirming summary judgment as to liability on the basis of OCGA § 13-4-42, based upon plaintiff’s affidavit that the amounts paid by defendants were unilaterally attributed to such “sub accounts.” Defendants, as debtors, were authorized to believe that these payments were being credited to the account here sued on, reasonably relying upon plaintiff’s admitted practice of billing all items only under the single account, “maintained under customer number 34535.” The trier of fact may infer from the amount of the check that each was in payment of the specific account sued on in this action, since that is what defendants intended. “It is not necessary [under former Code § 20-1006, now OCGA § 13-4-42] that express directions shall be given, [and] if the facts and circumstances indicate the intention of the parties at the time the payment is presented, the law will direct credit of the payment accordingly where the intent is clear.” Roswell Bank v. Bearse, 118 Ga. App. 610 (164 SE2d 886). I would further hold that defendants’ evidence is sufficient to create a genuine issue of material fact as to whether this Code section even applies under the terms of the consignment contracts among plaintiff and defendants. It is not the defendants’ duty, under Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) to explain the plaintiff’s unilateral attribution of pay-merits made. Rather, it is sufficient for the non-movant to establish a genuine issue of material fact, with the onus on the movant to make any further reply. Since, in my view, plaintiff has failed to establish the non-existence of several material fact questions, I respectfully dissent from the affirmance of summary judgment as to defendants’ liability.

Decided August 30, 1996.

Bowles & Bowles, Jesse G. Bowles III, for appellants.

Stokes, Lazarus & Carmichael, Marion B. Stokes, Richard J. Joseph, for appellee.


author: Judge Harold R. Banke.

text:
    A96A1830.
    BROWN v. THE STATE.
    (475 SE2d 688)
   Judge Harold R. Banke.

Thomas J. Brown was convicted of two counts of armed robbery. He enumerates three errors.

The evidence, viewed in the light most favorable to the verdict, shows the following. Jackson v. Virginia, 443 U. S. 307, 319-320 (99 SC 2781, 61 LE2d 560) (1979). The first armed robbery occurred in the parking lot of a bank when the pregnant victim drove up to deposit over $4,000. Brown’s co-defendant knocked on the back of her car and, as she slowed and turned to look, he stuck a gun in her face, told her to open the door, and took the money. The victim worked as a manager for Tires & Terms, Inc. and was required to deliver and deposit cash to the bank at regular intervals during the day. Brown, who had fathered the victim’s child, knew this and, at one point, told her that he thought about having someone rob her.

After the victim learned that she was suspected in the robbery, she agreed to participate in a tape-recorded telephone conversation with Brown. In that conversation, the victim told Brown that the police had questioned her and told her they suspected the robber’s girl friend had been involved in the robbery. She told Brown she had admitted to the police that he fathered her child. During the conversation, Brown nevertheless instructed the victim to deny that she knew him or that he was the father of her child. When Brown visited the victim later that evening, he choked and threatened to kill her for what she had told the police. The victim testified that Brown’s mother sent her money to retain a lawyer to assist her in retracting her statement.

The State also presented testimony from an acquaintance of Brown’s co-defendant, Keith Cokes, who allegedly took the money. She said Brown offered her “something” if she would tell the police that Brown did not know Cokes.

In the second robbery, Cokes and Carren Adams robbed a used car dealer and Brown drove the getaway car. Adams testified that Brown suggested they commit a robbery and drove Cokes and him around town to search for an appropriate victim in a distinctive gold Volvo belonging to one of Brown’s girl friends. After the men settled on Lewis Auto Sales, Adams and Cokes went in and looked around several times. At one point, Cokes mentioned to one of the owners that his Uncle Red had bought a Cadillac there, a statement which later enabled police to apprehend him. When Cokes and Adams returned empty-handed to the car, Brown insisted that they rob the dealer and promised to wait around the corner in the Volvo. Brown supplied a pistol and Adams used it to force the victim to place approximately $1,000 in a sack. At that point, Cokes and Adams left, but Brown was not waiting for them. When the victim pulled up and began to chase them, Adams ran through a yard and spotted Brown heading toward the location where he had promised to wait, but because Adams did not want to be seen getting into the Volvo, he kept on running and found his way home.

A mechanic at a nearby business identified Brown as the driver of the Volvo. He testified he saw a man across the street motioning for Brown to pick him up, but when the victim drove up, the man ran.

Cokes gave a videotaped confession implicating Brown in both robberies. However, at trial Cokes recanted his confession, claiming his selection of the victim in the first robbery was by chance and that Brown’s only involvement in the second robbery was to rent his girl friend’s Volvo to Cokes and Adams. Cokes testified that he gave the confession because he and Brown had gotten into a fight over a woman. After Cokes testified, the State played a redacted version of Cokes’ videotaped confession. Held:

1. The evidence is sufficient as a matter of law if, when viewed in the light most favorable to the state, a rational trier of fact could find all the essential elements of the crime. Jackson v. Virginia, 443 U. S. at 319-320. The relevant elements of armed robbery are: (1) taking the property of another; (2) from the person or immediate presence of another; (3) with intent to commit theft; (4) by use of an offensive weapon. OCGA § 16-8-41 (a).

In the first robbery, Brown was the only connection between the robber and the victim. He knew the victim’s duties and schedule, and he told the victim that he thought about having someone rob her. He also tried to hide his relationship with Cokes and the victim from police. Adams’ testimony and the bystander who identified Brown in the gold Volvo near the scene of the robbery established the requisite elements of the second armed robbery conviction. Because the above-stated evidence supports a finding that Brown intentionally advised, encouraged, counseled, and procured Cokes to commit the first robbery and Cokes and Adams to commit the second, his conviction as a party to the crimes must be affirmed. OCGA § 16-2-20 (b) (4); see Thaxton v. State, 184 Ga. App. 779, 780 (1) (362 SE2d 510) (1987).

Decided August 30, 1996.

Moore & Dodgen, Andrew C. Dodgen, for appellant.

J. Gray Conger, District Attorney, Alonza Whitaker, Assistant District Attorney, for appellee.

2. The trial court did not err in admitting the tape recording of the telephone conversation between Brown and the victim of the first robbery. Notwithstanding Brown’s argument to the contrary, the chain of custody requirement no longer applies to audio and video recordings. Dunn v. State, 218 Ga. App. 329, 330 (461 SE2d 294) (1995). Inasmuch as the tape was identified by the officer who recorded it and the victim testified that the recording was a fair and accurate representation of the conversation, its admission was not error. Harper v. State, 213 Ga. App. 444, 447 (4) (445 SE2d 303) (1994).

3. The trial court did not err by admitting Cokes’ videotaped confession without redacting his statement that Brown had threatened to kill him after they disagreed about the distribution of the money from one of the robberies. Brown contends that this statement improperly placed his character in issue.

“ ‘If evidence is relevant and material to an issue in (a) case, it is not inadmissible because it incidentally puts the defendant’s character in issue. (Cits.)’ [Cit.]” Baxter v. State, 254 Ga. 538, 547 (16) (331 SE2d 561) (1985). Because the statement tended to establish that Brown was a participant in the crime charged, it was admissible. Phillips v. State, 183 Ga. App. 194, 195 (358 SE2d 480) (1987).

Judgment affirmed.

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

       The videotaped confession was not transcribed at trial.


author: Blackbukn, Judge.

text:
    A96A1167.
    ELY v. THE STATE.
    (475 SE2d 647)
   Blackbukn, Judge.

Ely appeals his conviction for carrying a concealed weapon on the ground that OCGA § 16-11-126 permits an owner to carry a concealed weapon on his rental property.

1. Although Ely admits carrying a gun in his pocket, he asserts that the trial court erred in denying his motion for directed verdict on the firearms charge because, according to statute, he was entitled to carry a concealed weapon at the time of the incident.

Pursuant to OCGA § 16-11-126, it is generally illegal to carry a revolver or other concealable firearm outside of one’s home, motor vehicle or place of business. Ely asserts that he did not violate this statute because, at the time of the incident, he was carrying the firearm in his “place of business.” The incident occurred in the parking area next to one of two mobile homes that Ely rented to tenants. The issue of whether rental property may constitute its owner’s “place of business” for purposes of a firearms crime was considered in Reagan v. State, 16 Ga. App. 369 (85 SE 353) (1915).

In Reagan, the defendant carried a pistol onto premises he rented to a tenant and was convicted of a crime which prohibited a person from having a pistol in his possession “ ‘outside of his own home or place of business.’ ” We determined that a landlord’s possessory interest in the rental property — not the fact that he derived income from the property — determined whether the property could be considered his “place of business.” Consequently, in the absence of any evidence that the defendant retained some right to control or oversee the premises, we upheld the conviction, stating that “[i]t has been uniformly held in Georgia that during the continuance of a lease, the sole right to the possession, use, and enjoyment of the leased premises is vested in the tenant. . . . The rented premises described in the present case certainly can not be said to be the defendant’s home or his place of business. He had no possession, nor did he have a right of possession (at that time) of the premises occupied by his tenant; nor had he any right to the use and enjoyment thereof so long as the tenancy existed. The tenant had the right of exclusive use and possession . . . and the defendant had no right to enter to carry a pistol there during the life of the tenancy.”

Similar to Reagan, in the present case, no evidence was presented that Ely retained any special right to control or oversee the leased premises. The incident took place in the parking area of the rental home, an area that was clearly subject to the tenant’s control. As his tenant had possession of the rental property, Ely cannot claim that the property was his place of business. Accordingly, the exception found in OCGA § 16-11-126 is inapplicable to Ely’s case, and the trial court did not err in denying Ely’s motion for a directed verdict.

2. Ely asserts that the trial court erred in failing to instruct the jury that one cannot be found guilty of carrying a concealed weapon in “his place of business.” Based on our reasoning in Division 1, above, Ely’s rental property could not be considered his place of business. Therefore, the evidence did not justify this charge, and the trial court did not err in failing to give it.

3. Ely asserts that the trial court erred in the manner in which it responded to questions from the jury. During its deliberations, the jury provided a note to the trial court asking: (1) whether rental property is considered a business, and (2) whether the property on which a home or business is located is considered part of the home or business. On the very same note sent by the jury, the trial court marked the answer to both questions as “no.” Further, the trial court instructed the bailiff returning the note that “[i]f they don’t understand N-O, tell me what part of it they do not understand.” We find no reversible error in the way the trial court handled the jury’s request for clarification.

Decided July 24, 1996

Reconsideration denied September 3, 1996.

Jerome C. Ware, for appellant.

Stephen F. Lanier, District Attorney, Emory B. Thompson, Assis tant District Attorney, for appellee.

As outlined in Division 1, above, the trial court correctly answered the jury’s first question. As to the jury’s second question, on appeal Ely has offered no authority or argument as to why the trial court’s answer was erroneous and has thereby abandoned the alleged error. See Magnan v. Miami Aircraft Support, 217 Ga. App. 855, 856 (1) (459 SE2d 592) (1995); see also Court of Appeals Rule 27 (c) (2).

Ely asserts that the trial court’s comments, made in conjunction with its answers, invaded the province of the jury by impermissibly commenting on the evidence. OCGA § 9-10-7 provides in pertinent part that “[i]t is error for any judge, during the progress of any case, or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved.”

“To obtain a reversal of his conviction, an appellant must show both error and harm.” Gregg v. State, 216 Ga. App. 135, 137 (453 SE2d 499) (1995). Ely has failed to carry this burden with regard to the alleged prejudicial nature of the trial court’s corhments. First, the record reveals that these comments were directed to the bailiff. It does not reveal that they were directed to the jury or even heard by the jury. Even assuming that they were, the trial court’s comments could easily be viewed as welcoming the jury to ask for further clarification if the trial court’s written answers did not resolve their confusion and to be specific as to what portion of their multi-part question remained unclear.

In light of the above, we find this enumeration to be without merit.

4. Ely asserts that the evidence was insufficient to support his conviction. Ely admitted and various witnesses testified that he had a revolver in his pocket. Ely’s wife testified that at the time Ely left to speak to the tenants, the gun was not visible. We find this evidence sufficient to permit a rational trier of fact to find beyond a reasonable doubt that Ely was carrying a concealed weapon. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Beasley, C. J, and Birdsong, P. J, concur.

       Ely was indicted on one count of aggravated assault, one count of possession of a firearm during the commission of a crime and one count of carrying a concealed weapon. He was acquitted of the first two counts and found guilty of carrying a concealed weapon.

       While the jury did not receive a formal charge on the inapplicability of OCGA § 16-11-126 to one who is carrying a concealed weapon in his home or at his place of business, these exceptions to the statute were addressed in the indictment which was sent out with the jury during its deliberation.


author: Blackburn, Judge.

text:
    A96A1354.
    LARRAGA v. AETNA CASUALTY & SURETY COMPANY et al.
    (475 SE2d 649)
   Blackburn, Judge.

Felipe M. Larraga, acting pro se, appeals the trial court’s determination that his complaint for personal injuries is barred by the tort immunity provision of the Workers’ Compensation Act (the Act).

Larraga suffered an on-the-job injury while working for C. E. Clower Construction Company (Clower) and received workers’ compensation benefits for his injury from Clower’s insurance carrier, Aetna Casualty & Surety Company (Aetna) for approximately 12 weeks. Upon suspension of his benefits, Larraga brought the underlying action against Clower and Aetna in Gwinnett Superior Court, asserting that his workers’ compensation benefits were wrongfully suspended. Shortly thereafter, Larraga filed a claim with the State Board of Workers’ Compensation regarding the same injury addressed in this complaint. In the present case, Clower moved for summary judgment on the grounds that they enjoyed tort immunity from Larraga’s claims pursuant to OCGA § 34-9-11. The trial court granted the defendant’s motion for summary judgment 23 days after it had been filed. As a result, Larraga filed a motion asking the court to reconsider its decision as Larraga was not provided 30 days to respond to the defendant’s motion as provided in OCGA § 9-11-56 (c). Larraga also sought leave to amend his complaint to add Gwinnett County as a party based on the fact that Larraga was injured on a pipe-laying job that Clower was performing for the county. The trial court denied these motions, and Larraga filed this appeal.

1. Clower and Aetna assert that, while the trial court may have erred in granting summary judgment prior to the end of the 30-day response period, no harm resulted. In Dixon v. Midland Ins. Co., 168 Ga. App. 319 (309 SE2d 147) (1983), this Court outlined under what circumstances entry of summary judgment prior to expiration of the statutory response period constitutes reversible error. “OCGA § 9-11-56 (c) . . . mandates that any party have thirty days to respond to a motion for summary judgment. We hesitate to emasculate the thirty-day rule by holding, in essence, that a non-movant must demonstrate on appeal that the movant was not entitled to summary judgment on the pre-judgment record or on evidence presented after judgment that he would have presented to the trial court before judgment. Compliance with the rule is a simple and elemental matter that should be insured by reversal and remand unless the evidence shows the non-movant’s defenses to the motion . . . are wholly meritless and frivolous.” Id. at 321. Upon review of this record, we find it to be one of those rare cases where this error does not demand reversal and remand.

Decided August 6, 1996

Reconsideration dismissed September 3, 1996.

Felipe M. Larraga, pro se.

Baker & Shivers, Donald M. Shivers, for appellees.

All parties admit that Larraga suffered a workplace injury that was compensable under the Act and that he received certain benefits from Aetna in relation thereto. As the Act provides Larraga’s exclusive remedy against his employer for an injury suffered in the workplace, his action against Clower is barred. OCGA § 34-9-11. Moreover, a workers’ compensation insurance carrier is considered to be the employer’s alter ego and is, therefore, entitled to the same tort immunity enjoyed by the employer. Fred S. James & Co. of Ga. v. King, 160 Ga. App. 697, 699 (288 SE2d 52) (1981). Consequently, Larraga’s action against Aetna is also barred. On this record, we find that Larraga was not harmed by the trial court’s abrogation of his response period.

2. Larraga enumerates as error the trial court’s failure to hold hearings on his various discovery motions. In light of our determination in Division 1, we find this enumeration to be rendered moot.

3. Larraga enumerates as error the trial court’s failure to grant his motion for leave to amend. As Larraga has failed to offer any argument in support of this alleged error, it is deemed abandoned. Magnan v. Miami Aircraft Support, 217 Ga. App. 855, 856 (1) (459 SE2d 592) (1995); see also Court of Appeals Rule 27 (c) (2).

Judgment affirmed.

Beasley, C. J., and Birdsong, P. J., concur.

       The employer was misnamed in Larraga’s complaint as Jerri Clower Construction.


author: Johnson, Judge.

text:
    A96A1927.
    PRICE v. THE STATE.
    (475 SE2d 692)
   Johnson, Judge.

A jury found Kevin Price guilty of driving under the influence of alcohol. He appeals from the conviction entered on that verdict.

The state has failed to submit a brief in compliance with Court of Appeals Rule 26 (b). As this Court noted in Sieveking v. State, 220 Ga. App. 218 (469 SE2d 235) (1996), this dereliction of duty is a disservice to the community at large, which is left unrepresented.

1. Price contends that the trial court erred in allowing the police officer to testify regarding numerical readings of the alco-sensor test he administered to Price. “Alco-sensor results are not used as evidence of the amount of alcohol or drug in a person’s blood. Instead, the alco-sensor is used as an initial screening device to aid the police officer in determining probable cause to arrest a motorist suspected of driving under the influence of alcohol.” (Citations and punctuation omitted.) Porche v. State, 217 Ga. App. 325 (1) (457 SE2d 578) (1995). It is evident from a review of the transcript of the trial that the police officer, counsel for both parties, and the court were well aware of this rule. When initially testifying about the field sobriety tests he had performed on Price, including the alco-sensor, the officer testified only that the alco-sensor gave a positive reading when Price blew into it. On cross-examination, defense counsel asked the officer whether, in the course of the officer’s training, he had been given any information as to the predictive accuracy of the HGN, walk and turn, and one-leg stand sobriety tests. The officer responded that if a high percentage of “clues” were given during the performance of these tests, a person would likely have an alcohol level of .10 or above. Counsel objected to the testimony, stating the rule that quantitative results of an alco-sensor were inadmissible. The question responded to by the police officer, however, did not even include alco-sensors as one of the field sobriety tests. After an extensive discussion outside the presence of the jury, counsel continued her cross-examination of the officer, asking repeated specific questions regarding the effects of various quantities of alcohol on alco-sensor readings. The trial court noted that defense counsel had “opened the door” to testimony regarding an alco-sensor’s capability for quantitative measurement of blood alcohol levels, generally. On re-direct examination the solicitor asked what the numerical reading of Price’s breath was, to which the officer responded .14. Defense counsel did not object to this question or the response. “A defendant will not be allowed to induce an asserted error, sit silently hoping for a favorable verdict and obtain a new trial when that tactic fails. Induced error is impermissible and furnishes no ground for reversal. Moreover, [Price] waived any error by [his] failure to object, for one must assert his rights properly or face the possibility of their being forever lost.” (Citations and punctuation omitted.) Ingram v. Harper, 194 Ga. App. 209, 212 (3) (390 SE2d 416) (1990).

2. Sergeant R. P. Miniatis, the sole witness in the case, testified that a roadblock had been set up at the intersection of Piedmont and Lake Shore in the City of Atlanta. Ten patrol cars and a van were present at the roadblock, which was illuminated by red and blue emergency flashing lights. At approximately 3:30 a.m. Price drove up to the roadblock and Miniatis noticed a very strong odor of alcohol coming from the vehicle and from Price, who appeared to be disoriented. Miniatis had to repeat himself several times when he asked Price to produce his drivers’ license and insurance card. After complying with Miniatis’ request to get out of his car, Price failed several field sobriety tests, and was cited for driving under the influence of alcohol. In his brief, Price reiterates the evidence most favorable to his case, including testimony that he was not fighting or defiant and did not use profanity, suggesting the evidence was insufficient to support his conviction. On appeal, however, we do not reweigh the evidence, but view it in a light most favorable to support the verdict. Viewed in this light, the evidence presented in this case was sufficient to enable a reasonable factfinder to find Price guilty beyond a reasonable doubt of driving while under the influence of alcohol to the extent that it was less safe for him to drive. OCGA § 40-6-391 (a) (1). Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Parrish v. State, 216 Ga. App. 832, 833 (2) (456 SE2d 283) (1995).

Decided September 3, 1996.

Yvonne A. Twyman-Williams, for appellant.

Louise T. Hornsby, Solicitor, Marcelle Castillo, Assistant Solicitor, for appellee.

3. Price’s final allegation of error, that the state failed to prove an essential element of the offense, operating a “moving vehicle,” because he was observed only driving up to the roadblock and not committing a traffic violation is without merit. See Anthony v. State, 211 Ga. App. 622, 623 (1) (441 SE2d 70) (1994); Rylee v. State, 210 Ga. App. 314 (436 SE2d 52) (1993).

Judgment affirmed.

McMurray, P. J., and Ruffin, J., concur.


author: Eldridge, Judge.

text:
    A96A1389.
    MIMS et al. v. CLANTON.
    (475 SE2d 662)
   Eldridge, Judge.

This case appeared before the Court in Mims v. Clanton, 215 Ga. App. 665 (452 SE2d 169) (1994) and was reversed and remanded to determine whether or not Gwinnett County was self-insured so as to waive sovereign immunity as to the first $250,000 in liability which was deductible from the insurance policy coverage of $750,000 in force at the time of the personal injury resulting from the collision of a fire engine with the plaintiff.

At the trial court’s direction Gwinnett County amended its response to plaintiff’s interrogatories: “Please describe any self-insurance plan, investment plan, fund, bank or trust account, or other reservoir of resources of any kind or character whatsoever, established or maintained by Gwinnett County or any subdivision or agency thereof, since January 1, 1985, from or to which any funds have been designated, allocated or appropriated for payment of tort claims against the County, any subdivision or agency thereof, of any employee, agent or representative thereof acting within the course and scope of his or her employment.

“Response: Gwinnett County states that it did not maintain a self-insurance plan to cover claims below the $250,000 threshold amount. Moreover, Gwinnett County did not fund a liability trust or other spénding account in lieu of commercial insurance for the payment of claims.

“The Board of Commissioners failed to take any affirmative action to propose, endorse, ratify, or establish a fund to pay claims prior to or on the date of the subject incident. Rather, any money expended to pay a claim was derived from the general budget of Risk Management. Accordingly, the respective sum of money appropriated to Risk Management was purely a budgetary function in which claims and legal expenses consisted of a portion of the total sum. Salaries, supplies, taxes, and other operating expenses comprised the sum total of money allocated to Risk Management. . . .

“On January 2, 1990, the Gwinnett County Board of Commissioners voted to appropriate $3,584,146 to the Risk Management Fund. The vote was not specifically to appropriate money for Risk Management, but was to adopt the 1990 Gwinnett County Budget of which Risk Management Fund was a portion.

“The following items were included in the $3,584,146 amount: permanent salaries, overtime salaries, other wages, salary increases for performance, employee group insurance, FICA, Workers’ Compensation, longevity bonuses, retirement, office supplies, general operating supplies, industrial repair & maintenance, furniture/fixture repair & maintenance, data processing software, printing services, telephone, postage, professional services, insurance, dues and subscriptions, publicity and public relations, training, conference and travel, rent, miscellaneous other services, fleet, contribution to vehicle replacement, contribution to Risk Management, interest expense, office furniture/fixtures and equipment, EDP equipment.

“The vast majority of these accounts had money appropriated to them. On August 21, 1990, the Gwinnett County Board of Commissioners through their annually scheduled mid-year budget revision, revised the County’s overall budget, but no additional monies were appropriated to the Risk Management Fund. . . .

“In response to the above interrogatory and in contrast to the status of risk management set forth above, on April 17, 1990 the Gwinnett County Board of Commissioners adopted the enclosed ordinance entitled ‘Limited Waiver of Governmental Immunity’ which provided, inter alia, a specific waiver of immunity to the extent it was not excluded by law, to an incident or occurrence involving bodily injury and property damage claims up to an amount not exceeding $25,000.

“On April 17, 1990, the Gwinnett County Board of Commissioners also adopted the enclosed ordinance entitled ‘Officer and Employee Defense and Indemnification Plan’ which provided, inter alia, a specific waiver of immunity to the extent it was not excluded by law, to defend and indemnify its public officials and employees.

“On August 7, 1990, the Gwinnett County Board of Commissioners adopted the enclosed ordinance entitled ‘Amendments to Ordinance Entitled Officer and Employee Defense and Indemnification Plan.’ ”

Appellants refiled their partial motion for summary judgment on the issue of sovereign immunity as to the deductible portion of any liability. The trial court denied the motion.

1. Since the action arose on March 20, 1990, when the plaintiff was injured after the fire engine struck her vehicle, then the former constitutional provision, Art. I, Sec. II, Par. IX of the Ga. Const, of 1983, would govern and not Ga. L. 1990, p. 2435, § 1, which was approved by the electorate on November 6, 1990, and has the same designation as Art. I, Sec. II, Par. IX of the Ga. Const, of 1983. See Curtis v. Bd. of Regents &c., 262 Ga. 226 (416 SE2d 510) (1992); Brown v. Hall County, 262 Ga. 172 (416 SE2d 90) (1992); Donaldson v. Dept. of Transp., 262 Ga. 49 (414 SE2d 638) (1992); Dozier v. Clayton County Hosp. Auth., 206 Ga. App. 62 (424 SE2d 632) (1992). The former constitutional provision reads in part: “Sovereign immunity extends to the state and all of its departments and agencies. . . . Also the defense of sovereign immunity is waived as to those actions for the recovery of damages for any claim against the state or any of its departments and agencies for which liability insurance protection for such claims has been provided but only to the extent of any liability insurance provided.”

2. Mims v. Clanton, supra, 215 Ga. App. at 668, held that the defense of sovereign immunity applied to the deductible and remanded the case to determine if there existed any self-insurance and to permit the trial court to reconsider the motion to compel discovery regarding the existence of any such fund.

3. The right to the payment for legal expenses for the defense of any claim or lawsuit is a major portion of the rights of the insured under any liability coverage and may well exceed the liability limits for the payment of any claim or judgment.

Insurers are very careful not to undertake a defense of any insured if there exists a coverage question because once the defense has assumed a case, the insurer cannot abandon the insured if there later turns out to be no coverage, absent a defense under a reservation of rights; as a consequence the insurer is quick to bring a declaratory judgment action to determine the duty to defend when there exists a coverage issue. Argonaut Ins. Co. v. Atlantic Wood &c., 187 Ga. App. 471, 472 (370 SE2d 765) (1988); Strain Poultry Farms v. American Southern Ins. Co., 128 Ga. App. 600, 604 (197 SE2d 498) (1973); Hardeman v. Southern Home Ins. Co., 111 Ga. App. 638, 641 (3) (142 SE2d 452) (1965); United States Cas. Co. v. Ga. Southern &c. R. Co., 95 Ga. App. 100, 103 (97 SE2d 185) (1957); Ga. Cas. &c. Co. v. Turner, 86 Ga. App. 418 (71 SE2d 773) (1952). Thus, liability insurance protection is comprised not only of the duty to indemnify but also to defend against all claims within the coverage.

4. Therefore, the plain and unambiguous meaning of the constitutional provision “extent of any liability insurance provided” is not only indemnification from any claim or judgment but also any and all expenses for investigation and defense of such claim.

5. As of January 2, 1990, Gwinnett County had in existence a Risk Management Fund of $3,584,146 for the investigation and defense of tort claims. While such fund was not used to pay claims, it constituted a self-insurance fund to satisfy part of the function of insurance coverage and was available to satisfy claims from any judgment, although that was not the purpose which the Gwinnett County Board of Commissioners intended. Any funds dedicated in whole or in part for self-insurance purposes, whether for defense or indemnification, constitutes a self-insurance fund.

6. Under the home rule provisions of the constitution, counties have very broad powers. Art. IX, Sec. II, Pars. I and III of the Ga. Const, of 1983. The only limitation on such broad spending power comes from Art. Ill, Sec. VI, Par. VI which prohibits gratuities. Therefore, a county has the power to create a self-insurance plan or fund; however, without action of the General Assembly a county cannot waive sovereign immunity. Art. IX, Sec. II, Par. IX; see also Logue v. Wright, 260 Ga. 206, 208 (2), 209 (3) (392 SE2d 235) (1990); Tillman v. Mastin, 216 Ga. App. 3 (453 SE2d 85) (1994); and Pizza Hut of America v. Hood, 198 Ga. App. 112, 113 (2) (400 SE2d 657) (1990). Under OCGA § 45-9-1 et seq., the General Assembly expressly excluded counties from creating self-insurance plans which waived sovereign immunity. While OCGA § 45-9-20 et seq. authorizes counties to buy liability insurance, it does not authorize the creation of county self-insurance funds that waive sovereign immunity by such creation. Logue v. Wright, supra; Tillman v. Mastin, supra; Pizza Hut of America v. Hood, supra. Nowhere in such cases did the courts hold that the creation of such self-insurance funds were ultra vires but only that the creation did not waive sovereign immunity.

Decided August 15, 1996

Reconsideration denied September 4, 1996

Chandler & Britt, Walter M. Britt, Gregory D. Jay, for appellants.

. Harris, Morgan & Parson, Frank P. Harris, Sullivan, Hall, Booth & Smith, John E. Hall, Jr., for appellee.

7. Sovereign immunity can be waived in several ways. Under Art. I, Sec. II, Par. IX, prior to November 6, 1990, it was waived by the purchase of any insurance, but after that date, it was waived only by the purchase of motor vehicle liability insurance under OCGA § 33-24-51 (b). Sovereign immunity can be waived by any statutory provision of the General Assembly under Art. IX, Sec. II, Par. IX as to counties.

8. In the case sub judice sovereign immunity has been waived by the purchase of liability insurance within the ambit of OCGA § 33-24-51 (b) as well as the former provisions of Art. I, Sec. II, Par. IX of the Ga. Const, of 1983. Clearly Gwinnett County created a self-insurance plan which came within the constitutional provision. Logue v. Wright, supra, is distinguished upon the facts in that there had been no waiver of sovereign immunity by statute or the constitution, while in the case sub judice sovereign immunity has been waived by the purchase of insurance. Here, the act of creating a self-insurance fund comes within the provision that “sovereign immunity is waived ... for which liability insurance protection for such claims has been provided” (former Art'. I, Sec. II, Par. IX); certainly, $3,584,146 is providing insurance. See Litterilla v. Hosp. Auth. of Fulton County, 262 Ga. 34 (413 SE2d 718) (1992); Mims v. Clanton, supra.

Judgment affirmed.

Birdsong, P. J, and Blackburn, J., concur.


author: Smith, Judge.

text:
    A96A1213.
    BUTKUS et al. v. PUTTING GREENS INTERNATIONAL CORPORATION.
    (475 SE2d 693)
   Smith, Judge.

Michael and Barbara Butkus brought suit against Putting Greens International Corporation (PGI) and Michael Stone to recover for damage caused to their property during Stone’s attempt to install a putting green in their back yard. The trial court granted PGI’s motion for summary judgment, from which the Butkuses appeal.

Michael Butkus (hereinafter referred to as “Butkus”) testified on his deposition that he read in the Atlanta newspaper about a home putting green with an artificial surface. The newspaper stated that the surface material was manufactured by PGI, and it referred to Stone and printed his telephone number. Butkus called Stone and requested that Stone send him more information regarding such a putting green. Stone did so, and Butkus and Stone eventually contracted for the installation of a putting green at the Butkuses’ home.

Stone was primarily a landscaper. Under the contract, in addition to installing the putting green, he was to grade and landscape the area and install a dog run, all pursuant to a design furnished to him by the Butkuses’ landscape architect. The property sloped toward the street, and the back yard already held a pool surrounded by a decorative wall.

Stone began the work by bringing in several truckloads of dirt, which he dumped behind the existing wall, thereby raising the level of the terrain behind the wall. Stone then installed the putting green and completed the contract items with the exception of certain shrubs that were not available and minor cleanup. At Stone’s request, Butkus paid him in full, and Stone promised to return to complete the remaining few items. Shortly after Stone left, the brick and cinder block wall collapsed into the pool, sending water from the pool against the house and into the basement, flooding it and causing extensive damage, in addition to damaging the pool and ruining the back yard, including the putting green. Extensive cleanup and rebuilding were necessary.

The Butkuses’ homeowners’ insurance carrier refused to pay for most of the damage, and Butkus looked to Stone for compensation. Although Stone represented to Butkus that he had insurance coverage, he refused to disclose the carrier’s identity. The Butkuses eventually initiated this action against Stone and PGI, alleging that Stone was negligent and that PGI was vicariously liable for Stone’s negligence because Stone was PGI’s agent.

It is clear that Stone was neither an employee nor an actual agent of PGI. Stone owned and operated his own business, primarily operating as a landscaper; he purchased materials for the putting green from PGI. The Butkuses maintain, however, that PGI should be held liable for the alleged negligence of Stone under a theory of apparent agency. They contend that on the issue of apparent agency material questions of fact remain for jury determination, and therefore the trial court erred in granting PGI’s motion for summary judgment. We do not agree.

In order to recover under a theory of apparent or ostensible agency, a plaintiff must establish three elements: (1) that the alleged principal held out another as its agent; (2) that the plaintiff justifiably relied on the care or skill of the alleged agent based upon the alleged principal’s representation; and (3) that this justifiable reliance led to the injury. Richmond County Hosp. Auth. v. Brown, 257 Ga. 507, 508 (361 SE2d 164) (1987). Even if we assume that the damage to Butkus’s property was caused by Stone’s negligence, Butkus has not established, and cannot establish, either of the first two required elements.

The Butkuses admit that although Stone told them he was PGI’s exclusive dealer in the Atlanta area, PGI made no actual representations to them. They argue, however, that PGI may be deemed to have held out Stone as its agent, relying principally on the brochure sent by Stone and the information in the newspaper, and that they justifiably relied on this in contracting with Stone. As to both the brochure and the newspaper article, a question of fact exists as to whether reference to Stone as a local dealer for PGI was authorized by PGI. We find, however, that these questions of fact are not material.

We have no doubt that Butkus believed that Stone was PGI’s agent. To establish the required elements, however, it is not enough that the plaintiff believe that an agency relationship exists. Watson v. Howard Johnson Franchise Systems, 216 Ga. App. 237, 238 (453 SE2d 758) (1995). Neither is it sufficient that the agent represent his status as agent. It must be established that the principal held out the agent as its agent. Fortune v. Principal Fin. Group, 219 Ga. App. 367, 370 (465 SE2d 698) (1995).

The glossy brochure was printed by PGI for the purpose of marketing the putting green materials it manufactured. As printed by PGI, the brochure contained a blank space under the words: “Your local PGI dealer is.” It is undisputed that Stone, and not PGI, inserted the name of his local business in that space by stamping it on the brochure before sending it to Butkus. But even assuming not only that Stone was authorized to stamp the brochure but that he actually was a “local dealer” or even the “exclusive” dealer of PGI products, that did not make Stone PGI’s apparent agent or make PGI liable for Stone’s torts.

Vicarious liability is premised upon a principal’s right to control the time and manner of executing the work performed by the agent. McGuire v. Radisson Hotels Intl., 209 Ga. App. 740, 742 (435 SE2d 51) (1993). Absent strict liability or other special circumstances, manufacturers are not liable for the torts of those who deal in their products. Texaco v. Youngbey, 211 Ga. App. 789 (440 SE2d 533) (1994) (Texaco not liable for gas station employee’s firing shots at plaintiff despite dealership relationship). Under Georgia law, even franchisors are not liable for the torts of franchisees. See, e.g., McGuire, supra (hotel chain not liable for local hotel bouncers injuring plaintiff despite franchise relationship). Even if the Butkuses relied upon a belief that Stone was a local or even an exclusive dealer of PGI products, if Stone was negligent in landscaping the Butkuses’ yard and installing the putting green, the Butkuses would not be justified in attributing liability for any such negligence to PGI merely because it manufactured some of the materials used by Stone in performing his work.

Decided September 4, 1996.

Michael T. Thornton, for appellants.

Swift, Currie, McGhee & Hiers, James B. Hiers, Jr., Julia M. B. Haffke, Barnes, Browning, Tanksley & Casurella, Jeffrey G. Casurella, for appellee.

That Butkus’s reliance was not justified is further supported by his testimony at deposition that he knew that Stone had never before installed a putting green. Because he was concerned about Stone’s lack of experience, he requested references and received only landscaping references. Despite his concern, however, he never contacted PGI.

Jester v. Hill, 161 Ga. App. 778 (288 SE2d 870) (1982), relied upon by the Butkuses, is distinguished on its facts. There, Hill, an insurance agent, represented to Jester that he was authorized by an insurance carrier to issue a policy that covered Jester immediately. In fact, he was' not so authorized, but nothing in the brochure or application provided by the carrier contradicted this statement and this Court held that Jester justifiably relied on it. In this case, the materials and information furnished by PGI, even if authorized, described Stone only as a dealer of its products. The trial court did not err in granting summary judgment to PGI.

Judgment affirmed.

Pope, P. J., and Andrews, J., concur.

       At PGI’s request, the trial court entered an order granting final judgment to PGI, after which the Butkuses dismissed with prejudice their action against Stone.


text:
    A96A1531.
    DEPARTMENT OF HUMAN RESOURCES v. BAKER.
    (476 SE2d 41)
   Smith, Judge.

The Georgia Department of Human Resources filed a petition against Danny Baker seeking recovery of child support paid for two children born to him and his former wife. The trial court ruled that Baker was not obligated to reimburse the Department for public assistance paid for the children during the period of time following Baker’s execution of a “Surrender of Parental Rights/Final Release For Adoption” on April 4, 1988, when he was unaware that no adoption had taken place. We granted the Department’s application for discretionary review of the trial court’s order. Baker has filed no brief in this Court.

Baker and his wife were divorced in 1986. The decree provided that Baker was to provide support for two children born of the marriage. His former wife married Charles McCannon in 1987. In 1988, Baker signed the surrender of parental rights to facilitate the children’s adoption by his former wife’s new husband. He testified that he did not know that the children had not been adopted until after this action was filed. He did, however, testify that he received notification from the Department; he simply believed it was in error. In fact, however, the adoption was never filed, and no order of adoption was ever entered. The former wife is now separated from her new husband. The evidence is in conflict as to whether she told Baker in 1989 that the adoption never took place.

The trial court found that Baker “lawfully and factually operated under the assumption that his children had been adopted. He had no relationship with them and was under no notice that persons or an agency were reasonably seeking child support.” As a result, the trial court ordered that Baker immediately resume paying current child support but that he reimburse the Department only for the arrearage accrued after the date on which he was formally notified by the Department that he was responsible, September 3, 1992.

We reverse. The trial court’s ruling is in conflict with the well-established principle that a parent may not contract away the statutory obligation imposed by OCGA § 19-7-2 to support his or her children. Dept. of Human Resources v. Prince, 198 Ga. App. 329, 331 (2) (401 SE2d 342) (1991). It is also in conflict with the recent holding of this Court in Dept. of Human Resources v. Cowan, 220 Ga. App. 230 (469 SE2d 384) (1996). We held in Cowan that the execution of a document voluntarily surrendering parental rights is insufficient to alter the statutory obligation of a parent to support his or her child. A court order is necessary to alter a parental support obligation to children. Id. at 231. This may be accomplished, for instance, by an order terminating parental rights, see Dept. of Human Resources v. Ammons, 206 Ga. App. 805, 806 (1) (426 SE2d 901) (1992), or by a final order of adoption. Johnson v. Parrish, 159 Ga. App. 613, 614 (1) (284 SE2d 111) (1981).

Decided September 4, 1996.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Kevin O’Connor, Assistant Attorney General, for appellant.

John T. Brown, for appellee.

Although in some circumstances this may appear unfair, such a rule is necessary to ensure that support obligations for children are conclusively established and clear at all times. Cowan, supra at 231. In this case, no order was entered altering Baker’s obligation to support his children. He was obligated by law to support them until and unless a court order altered that obligation, his belief regarding their adoption notwithstanding. The trial court erred in ruling otherwise.

Judgment reversed.

Pope, P. J., and Andrews, J., concur.

         The trial court determined that the total amount of child support owed by Baker was $8,850, with the Department receiving $8,570. Because this amount is under $10,000, discretionary review was proper. OCGA § 5-6-35 (a) (6). Judgments awarding amounts over this threshold are subject to direct appeal. Dept. of Human Resources v. Johnson, 175 Ga. App. 610 (333 SE2d 845) (1985).


text:
    A96A2097.
    ODEN v. LEGACY FORD-MERCURY, INC.
    (476 SE2d 43)
   Eldridge, Judge.

Appellant Oden owns and operates a company, Trucks, that allegedly contracted to purchase used automobiles from appellee, Legacy Ford-Mercury, Inc. (“Legacy”), an automobile dealership. Appellee asserts that appellant failed to pay for several automobiles it received from appellee during the period of January through March 1994.

Appellee filed suit on November 7, 1995, seeking compensation for automobiles delivered to appellant, interest, incidental damages, and attorney fees. On December 11, 1995, the sheriff’s deputy filed an entry of service with the court showing that service had been effectuated on November 10, 1995 at 556 Milam Avenue, Atlanta, Georgia, the address of Trucks. In the meantime, a different deputy filed a separate entry of service on November 27, 1995, showing service had been effected on November 23, 1995 by delivery to Ben Callaway, manager of Trucks.

Appellant subsequently filed an answer with the court on December 22, 1995, but failed to pay court costs at this time. Appellee filed a motion for default judgment on March 1, 1996. Appellant responded to the motion by submitting to the court a one-page affidavit that stated that the appellant did not receive service on November 10, 1995. Further, the affidavit stated that appellant, after receiving service on November 23, 1995, immediately notified his attorney, who filed responsive pleadings within the statutory period of 30 days. The appellant did not request a hearing on the motion for default judgment.

The trial court determined that the appellant was personally served on November 10, 1995, as well as having been served on November 23, 1995 through his employee, and granted the motion for default judgment. The trial court also directed the appellee to provide evidence to establish his claim for attorney fees and costs of litigation.

The appellee submitted as evidence of attorney fees an affidavit of Frank O. Brown, Jr., counsel for appellee. The affidavit asserted that 41 hours of attorney time were expended on the case and various, unspecified costs were incurred. The appellant presented no evidence and did not request a hearing on the issue of the amount of attorney fees and litigation costs. The trial court granted the appellee $5,764 in attorney fees and $90 for litigation costs.

1. Appellant claims that the trial court erred in granting the appellee’s motion for default judgment because appellant had submitted an affidavit to the trial court stating “unequivocally” that he had not received service on November 10, 1995. Appellant asserts that this evidence should have impeached the deputy sheriff’s entry of service that was filed with the court. Appellant does not deny that he subsequently received service on November 23, 1995, filed an answer on December 22, 1995, but never paid court costs.

OCGA § 9-11-12 (a) provides that a defendant shall file an answer within 30 days after the date of service of the summons and complaint. A case shall automatically go into default if an answer has not been filed within 30 days, unless the time for filing has been extended as provided by law. OCGA § 9-11-55 (a). However, a defendant is entitled to open a default as a matter of right if an answer is filed within 45 days of service and the defendant pays court costs. Id.

In the case sub judice, the appellant filed an answer within 45 days of the November 10, 1995 service of process, but failed to pay court costs. Therefore, the appellant is not entitled to open the default. Instead, the appellant claims that he never received the original service on November 10, 1995, even though the deputy sheriff filed an entry of service with the court documenting such service.

Where a defendant claims there was a failure of service, the trial court has the authority to decide as a factual matter whether service has occurred. OCGA § 9-11-12 (d). This finding will not be disturbed as long as there is “some evidence to support” it. Sorrow v. Seloff, 177 Ga. App. 87 (338 SE2d 482) (1985). Further, “ Tw]hen a defendant in a lawsuit challenges the sufficiency of service, he bears the burden of showing improper service. The [process server’s return of service] can only be set aside upon evidence which is not only clear and convincing, but the strongest of which the nature of the case will admit.’ [Cits.]” Nucor Corp. v. Meyers, 211 Ga. App. 787, 788 (440 SE2d 531) (1994).

A signed entry of service was filed with the court on December 11, 1995. In an effort to prove failure of service, the only evidence the appellant submitted on his behalf was a one-page affidavit that stated that appellant did not receive service on November 10, 1995. No corroborating evidence, such as affidavits from employees at Trucks, was offered to support appellant’s claim of failure of service.

Although “a return of service may be impeached by sworn statements made on personal knowledge,” Hudson v. Williams, 188 Ga. App. 726, 727 (374 SE2d 220) (1988), this Court has also held that in “ ‘a case of the defendant’s word against the deputy sheriff’s . . . the presumption favors the sheriff’s return of service.’ ” Moore v. Sanford, Adams, McCullough & Beard, 175 Ga. App. 552 (333 SE2d 681) (1985). Based on the evidence presented in the case sub judice, the trial court determined as a factual issue that service was effected on November 10, 1995, and this Court will not disturb this finding.

2. The second enumeration of error is that the trial court erred in granting appellee attorney fees based on the counsel for appellee’s affidavit. The appellant claims that appellee’s counsel lacked the personal knowledge necessary to submit an affidavit enumerating fees generated by an associate under his supervision, and that therefore, the information is hearsay. Appellant also claims that the affidavit is based on “guesswork,” because the tasks, and the attorneys performing such tasks, were not identified specifically in the affidavit.

In Mitcham v. Blalock, 214 Ga. App. 29, 32 (447 SE2d 83) (1994), this Court held that “statements regarding the billings of the associate attorney . . . were not based upon [the attorney’s] personal knowledge, but were based upon information given to him by others. Such evidence is hearsay, and hearsay, even admitted into evidence without objection, lacks probative value to establish any fact.” See OCGA § 24-3-1.

In the case sub judice, appellee’s counsel lacked the personal knowledge required to testify to the actual hours and functions performed by another attorney under his supervision, and the relevant portions of his affidavit are, therefore, inadmissible as hearsay.

Further, recognizing that broad statements regarding tasks performed may lack sufficient particularity to justify an award of attorney fees, the Court in Southern Cellular Telecom v. Banks, 209 Ga. App. 401, 402 (433 SE2d 606) (1993) vacated an award of attorney fees and remanded the issue for an evidentiary hearing. The Court noted that a “determination of the amount of an award of attorney fees cannot be based on guesswork.” Id. While a factfinder may find the counsel for appellee’s affidavit sufficiently detailed to justify an award, the court recommends that, upon remand, counsel append billing and other business records to support the claims for services rendered.

The Court reverses and remands the issue of the amount of attorney fees and court costs to the trial court, to be determined after an evidentiary hearing.

3. The third enumeration of error is that the trial court erred in granting appellee attorney fees and costs without affording appellant the right to contest the reasonableness and necessity of said fees and costs.

This Court has held that “[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.” Mitcham v. Blalock, supra at 32-33; see also Southern Cellular Telecom v. Banks, supra.

In response, the appellee cites Uniform Superior Court Rule 6.3, which authorizes the trial court to decide motions (except motions for a new trial or for judgment notwithstanding the verdict) without oral hearing, as authority for the court’s award of attorney fees without providing the appellant an opportunity to challenge the reasonableness or necessity of the fees. Further, the appellee asserts that the appellant waived his right to a hearing by not making a request for a hearing until after the court had ruled on the motion.

However, Rule 6.3 does not apply here, as it is silent regarding motions that require an evidentiary hearing. In a default situation, a request for unliquidated damages, such as attorney fees, requires an evidentiary hearing under OCGA § 9-11-55 (a), unless the parties stipulate otherwise. During this hearing, the “plaintiff shall be required to introduce evidence and establish the amount of damages before the court without a jury, with the right of the defendant to introduce evidence as to damages.” OCGA § 9-11-55 (a). At such hearing, each attorney for whose service compensation is sought must provide admissible evidence of fees in the form of personal testimony, or through the testimony of the custodian of the applicable billing records, as an exception to the hearsay exclusion. See OCGA § 24-3-1. The defendant has the right to cross-examine each witness on the amount and reasonableness of the fees and costs requested.

Decided September 4, 1996

The Roberts Law Firm, John A. Roberts, James A. Dooley, for appellant.

Holland & Knight, Frank O. Brown, Jr., for appellee.

Appellee asserts that appellant waived his right to a hearing on the issue of the amount of attorney fees by not requesting it at the time of the trial court’s order. However, failure to object to the order does not waive the objection if the defendant has no opportunity to object at the time the order is made. OCGA § 9-11-46 (a). Since no hearing was held on the amount of attorney fees to be awarded, the appellant had no opportunity to object to the award, and therefore, his objection to the order was not waived.

The Court reverses and remands the issue of the amount of attorney fees and court costs to the trial court, to be determined after an evidentiary hearing.

Judgment affirmed in part and reversed in part.

Birdsong, P. J, and Blackburn, J, concur.

       The defendant admitted in his subsequent answer that he could be served at this address.

       Either party shall be entitled to a jury trial, upon request, on the issue of damages if the defendant raises the issue in the pleadings, even if the defendant was in default. OCGA § 9-11-55 (a).


author: Birdsong, Presiding Judge. Beasley, Chief Judge,

text:
    A96A1156.
    BROWN v. JMIC LIFE INSURANCE COMPANY.
    (474 SE2d 645)
   Birdsong, Presiding Judge.

Jean J. Brown appeals the trial court’s grant of JMIC Life Insurance Company’s (JMIC) motion for summary judgment. She enumerates two errors. Held:

1. In her first enumeration of error, Brown contends the trial court erred in granting summary judgment to JMIC. We disagree.

In connection with her purchase of an automobile, Brown applied to JMIC for credit disability insurance. The application provided in pertinent part: “To the best of my knowledge and belief, during the past one (1) year, I have not been treated for . . . any disease of the . . . circulatory system” and “I understand that to be eligible for the insurance applied for, the foregoing representations must be true and correct. If the foregoing representations are not true, I am not eligible for the insurance for which application is made.”

JMIC issued a policy certificate to Brown, naming Toyota Motor Credit Corporation (Toyota) the first beneficiary. World Omni Financial Corporation (World Omni), the servicing agent for Toyota, then purchased the retail installment contract bought by Brown. Part of the amount financed in the contract and paid by World Omni was a premium totaling $1,799.12 for a credit life and disability insurance policy issued to appellant Jean Jones Brown.

Part III of the retail installment contract signed by Brown provided in pertinent part: “To secure such payment, you grant us a purchase money security interest under the Uniform Commercial Code in the collateral, in all proceeds of the collateral, and in all accessories, equipment, and replacement parts installed in the collateral. Insurance policies or service contracts in which we (including an assignee) are named as beneficiary or loss payee, including any proceeds of such insurance or service contracts and/or refunds of unearned premiums or charges, are assigned as additional security for the obligation.” The retail installment contract further provided: “Insurance or Service Contract Charges Returned. . . . Any refund of optional insurance or service contracts obtained by us will be credited to your account. Credits to your account will include both the amounts received by us and the unearned finance charges on those amounts. These credits will be applied to as many of your installments as they will cover, beginning with the final installment.”

Brown later submitted a total disability claim for a complication of severe vascular disease (a disease of the circulatory system). JMIC denied benefits to Brown because during the one-year period prior to the purchase of the disability policy, Brown was taking prescription medicine for the treatment of vascular disease. In Brown’s suit against JMIC, JMIC was granted summary judgment by the trial court, as OCGA § 33-24-7 (b) (2) provides that misrepresentation, omissions, concealment of facts, and incorrect statements are grounds for voiding a policy if such are material either to the acceptance of the risk or to the hazard assumed by the insurer.

The standard of review of the trial court’s grant of JMIC’s motion for summary judgment is a de novo review of the evidence to determine whether there is any genuine issue of material fact as to the elements required to establish the causes of action stated by Brown in her complaint. Artlip v. Queler, 220 Ga. App. 775 (470 SE2d 260). To obtain summary judgment, JMIC as the moving party must demonstrate that there is no genuine issue of material fact and that the material evidence, viewed in the light most favorable to the non-moving party, warrant judgment as a matter of law. OCGA § 9-11-56. See generally Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474).

Misrepresentations, omissions, concealment of facts, and incorrect statements do not prevent a recovery under an insurance policy unless they are material either to the acceptance of the risk or to the hazard assumed by the insurer. OCGA § 33-24-7 (b) (2). A material misrepresentation is one which would influence a prudent insurer in determining whether to accept the risk or in fixing the amount of the premium in the event of such acceptance. Haugseth v. Cotton States Mut. Ins. Co., 192 Ga. App. 853 (386 SE2d 725). Whether Brown was treated during the one-year period preceding her application for insurance was material either to the acceptance of the risk or to the hazard assumed by the insurer, as the undisputed evidence shows Brown’s application would not have been approved and a policy would not have been issued had JMIC known that Brown had been taking prescription drugs for a disease of the circulatory system. Thus, the issue presented on appeal is whether Brown was “treated” for a disease of the circulatory system during the one year preceding her application for insurance; i.e., whether Brown’s taking of medicine prescribed for a circulatory system disease over one year before she signed the insurance application constitutes treatment of a circulatory disease.

In determining this issue, we must define the term “treated.” When construing contracts, if the terms used are clear and unambiguous, they are to be taken and understood in their plain, ordinary, and popular sense. Bergan v. Time Ins. Co., 196 Ga. App. 78, 80 (395 SE2d 361), citing Henderson v. Henderson, 152 Ga. App. 846 (1), 847 (264 SE2d 299). Dictionaries supply the plain, ordinary, and popular sense. Bergan, supra at 80. “Treat” is defined as “to care for (as a patient or part of the body) medically or surgically; deal with by medical or surgical means; give a medical treatment to.” Webster’s Third New International Dictionary. “Treatment” is defined as “the action or manner of treating a patient medically or surgically” (Webster’s, supra); and is a broad term covering all the steps taken to effect a cure of an injury or disease; the word includes examination and diagnosis as well as application of remedies. Beggs v. Pacific Mut. Life Ins. Co., 171 Ga. App. 204, 205-206 (318 SE2d 836), citing Black’s Law Dictionary (4th ed.), p. 1673.

Here, it is undisputed that Brown was taking prescription medication specifically for a disease of the circulatory system. Certainly taking prescription medicine directed toward the relief of a circulatory disease qualifies as being “treated” for such disease utilizing the word’s ordinary and popular sense. Thus, as Brown was treated for a disease of the circulatory system during the year preceding her application for insurance and as JMIC would not have issued a policy to Brown had they known about this treatment, Brown made a material misstatement on her insurance application. Accordingly, JMIC has demonstrated that there is no genuine issue of material fact and that the undisputed material facts, viewed in the light most favorable to Brown, warrant judgment for JMIC as a matter of law under OCGA § 33-24-7 (b) (2).

2. As we affirm the trial court’s grant of summary judgment to JMIC, Brown’s second enumeration of error stating that the trial court erred in not ruling on Brown’s motion for partial summary judgment is without merit.

Judgment affirmed.

Blackburn, J., concurs. Beasley, C. J., concurs specially.

Beasley, Chief Judge,

concurring specially.

I agree that because the insurance applicant was taking physician-prescribed medication for her disease of the circulatory system, she was being treated for it and was required to answer affirmatively on the application.

The majority opinion relies on two dictionary definitions for the meaning of the verb in the insurance application. One is from Black’s Law Dictionary (4th ed.) as quoted in Beggs v. Pacific Mut. Life Ins. Co., 171 Ga. App. 204, 205-206 (318 SE2d 836) (1984). But in Beggs the Court rejected that definition as being broader than accepted under Georgia law. The Court applied instead, as governing, the narrower definition from the whole court case of Mut. Life Ins. Co. &c. v. Bishop, 132 Ga. App. 816, 818 (2) (209 SE2d 223) (1974).

Bishop involved a group hospitalization insurance policy which excluded coverage for certain “medical care or treatment.” The Court ruled: “These words generally refer to something done in the application of the curative arts, whether by drugs or other therapy, with the end in view of alleviating a pathological condition. Thus, surgery, in its extended sense, may constitute ‘care and treatment’ when a mere examination or evaluation does not.” Id. The Court held, by a bare majority, that two preoperative visits to the doctor for diagnostic and evaluation purposes only did not constitute “medical care or treatment” so as to exclude coverage. Four judges dissented, and although they agreed that the word “treatment” as used in the policy was not a technical word and was to be given its ordinary meaning in its common, plain, ordinary and usual sense, and a reasonable scope, it included the preliminary examination, diagnosis and preparation for cure.

Despite the rejection of the Black’s Law Dictionary definition by the majority in Bishop, a division of the Court applied that definition the following year in Young v. Yarn, 136 Ga. App. 737, 738 (1) (222 SE2d 113) (1975). It construed the Georgia informed consent statute’s requirement of disclosure of “treatment or course of treatment” not to include risks of treatment.

As was done in Beggs, we must follow Bishop and not repeat the error in Young. In this particular case, the result is the same, because Brown was being treated for a vascular disease, a disease of the circulatory system, by way of medication prescribed by her physicians Dr. Kirschbaum and Dr. Lamis. This constituted “something done in the application of the curative arts, whether by drugs or other therapy, with the end in view of alleviating a pathological condition.” Bishop, supra at 818. The fact that she had not visited the doctors in the year preceding her submission of the application for insurance, or that they had not made the prescription during that period, did not mean that she had not “been treated” during that period. It is undisputed that she had been, and she still was, taking the medication they prescribed.

Decided August 5, 1996

Reconsideration denied September 5, 1996

Glenville Haldi, for appellant.

Levine & Block, Stephen H. Block, for appellee.


text:
    A95A0495.
    HENDERSON et al. v. HSI FINANCIAL SERVICES, INC.
    (475 SE2d 721)
    Decided September 5, 1996.

      Smith, Gambrell & Russell, David A. Handley, Margaret M. Leveille, for appellants.

      Cauthorn & Phillips, Thomas E. Cauthorn III, Bruce W. Phillips, for appellee.
   Beasley, Chief Judge.

Division 8 of the decision of the Court of Appeals in Page v. HSI Financial Svcs., 218 Ga. App. 283 (461 SE2d 239) (1995), having been reversed by the Supreme Court in Henderson v. HSI Financial Svcs., 266 Ga. 844 (471 SE2d 885) (1996), the Court of Appeals judgment in Case No. A95A0495 is hereby vacated and reentered except as to Division 8, and the Supreme Court judgment in Henderson, supra, is made the judgment of this Court. Divisions 1 through 7 and Division 9 of our earlier opinion are unaffected by the Supreme Court’s decision and remain extant.

Judgment affirmed in part and reversed in part.

Pope, P. J., and Ruffin, J., concur.