author: Sognier, Chief Judge.

text:
    A91A0869.
    LANG v. THE STATE.
    (412 SE2d 866)
   Sognier, Chief Judge.

David Lang was convicted of child molestation, and he appeals.

1. Appellant contends the trial court erred by admitting testimony under the Child Hearsay Statute. OCGA § 24-3-16. In addition to expert testimony by the doctor who examined the victim that he observed a recent irritation of the victim’s vaginal opening, the victim’s mother and two police officers were allowed to testify about out of court statements made to them by the victim describing the molestation and identifying appellant as her molester. Although the six-year-old victim took the stand and was questioned by counsel, the transcript reveals that the trial court struck the victim’s entire testimony and instructed the jury not to credit that testimony.

Appellant argues that because the trial court struck the victim’s testimony, the adult witnesses’ hearsay testimony was inadmissible because the victim was not “available to testify” for purposes of OCGA § 24-3-16. We agree and reverse. OCGA § 24-3-16 provides that “[a] statement made by a child under the age of 14 years describing any act of sexual contact . . . performed with or on the child by another is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.” (Emphasis supplied.)

“OCGA §§ 24-3-16 and 24-9-5 must be construed together. Since the effective date of OCGA § 24-9-5 (b) [April 19, 1989 (Ga. L. 1989, p. 1639)], out-of-court statements of a victim of child molestation are admissible whenever the victim is available to appear at trial, whether or not the child is capable of understanding the nature of an oath and thus regardless of age or degree of comprehension. [Cit.]” Bright v. State, 197 Ga. App. 784, 785 (4) (400 SE2d 18) (1990). The alleged molestation occurred in July 1990, over a year after the effective date of OCGA § 24-9-5 (b). Notwithstanding the amended provision, the trial court on its own motion struck the entire testimony of the victim in this case on the basis that the victim was not competent because she had demonstrated she did not understand the nature of the oath. See In the Interest of K. T. B., 192 Ga. App. 132, 133 (384 SE2d 231) (1989). Although appellant does not challenge the striking of the victim’s testimony, we agree with the State that the ruling was error.

Even though the victim was deemed by statute to be competent to testify, OCGA § 24-9-5 (b), so that legally she was not “unavailable” because incompetent, compare In the Interest of K. T. B., supra (decided prior to the 1989 amendment of OCGA § 24-9-5), the result of the trial court’s incorrect striking of the victim’s entire testimony was that, regardless whether she was competent or otherwise, factually the victim was not available to testify at appellant’s trial. “[T]he concepts of availability and competency do not overlap entirely .... The term ‘available’ denotes a witness who can be confronted and cross-examined.” (Citations and punctuation omitted.) Id. at 133. “[0]ne of the purposes of the right to confrontation is to test the certitude and credibility of the accuser when brought face to face with the accused. [Cit.] ... So long as the witness is made available for confrontation and cross-examination, the defendant’s rights are protected . . . .” Bright, supra at 785 (4). See also McCoy v. State, 194 Ga. App. 244, 245 (3) (390 SE2d 251) (1990). Since the result of the trial court’s ruling was that appellant could not confront and cross-examine the victim, she was not available to testify within the meaning of OCGA § 24-3-16. This consequence of the trial court’s ruling striking her testimony is not obviated by the fact that the ruling resulted from a mistaken application of former OCGA § 24-9-5 to the case sub judice.

It therefore follows that the hearsay testimony by the victim’s mother and the two police officers was not admissible under OCGA § 24-3-16 or under any other applicable exception. See Shaver v. State, 199 Ga. App. 428, 429 (405 SE2d 281) (1991). The admission of this evidence was thus reversible error, even though appellant failed to object to it since “ ‘[h]earsay evidence has no probative value even if it is admitted without objection.’ [Cits.]” Id. at 429-430.

2. Appellant contends the evidence was insufficient to support the verdict. In Glisson v. State, 188 Ga. App. 152 (372 SE2d 462) (1988), we reversed the conviction for cruelty to a child on the basis that the testimony of certain witnesses as to what the victim told them about the incidents in question was inadmissible hearsay. Id. at 154-155. The defendant contended in a subsequent appeal that double jeopardy applied to prevent retrial because without the inadmissible hearsay testimony the trial evidence failed to sustain the verdict. Glisson v. State, 192 Ga. App. 409, 410 (385 SE2d 4) (1989). “In making a determination as to the sufficiency of the evidence the appellate court considers the evidence in its entirety, including, not excluding, that admitted on trial but found inadmissible on appeal. [Cit.] An important consideration is the distinction between a reversal based upon procedural or trial error and one based upon the insufficiency of the evidence. [Cits.] The improper admission of inadmissible evidence is an example of trial error, in which case retrial is not precluded. [Cit.] ... Of course, if the evidence is insufficient even with the erroneously admitted inadmissible evidence, double jeopardy bars retrial under the Fifth Amendment. [Cit.]” Id.

Although we are reversing the judgment in the case sub judice for trial error, “this court [can] not ignore an enumeration of error raising the general grounds when it is contended that the evidence is insufficient to support the verdict even prior to the exclusion of any improperly admitted evidence. [Cits.]” Id. at 411. Even excluding the victim’s testimony, the striking of which is not enumerated as error, we find that the testimony of the victim’s mother and the police officers presented sufficient evidence from which a rational trier of fact could have found appellant guilty of child molestation beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Spivey v. State, 197 Ga. App. 11, 12 (1) (397 SE2d 588) (1990); Hicks v. State, 196 Ga. App. 311 (396 SE2d 60) (1990).

Decided November 18, 1991.

Clyde M. Urquhart, for appellant.

W. Glenn Thomas, Jr., District Attorney, Christopher A. Frazier, Assistant District Attorney, for appellee.

3. As appellant’s remaining enumerations of error assert matters that are unlikely to recur upon retrial, we need not address them.

Judgment reversed.

McMurray, P. J., and Andrews, J., concur.


source: Caselaw Access Project

author: Judge Arnold Shulman. Beasley, Judge,

license: Public Domain

text:
    A91A0935.
    PURSER v. THE STATE.
    (412 SE2d 869)
   Judge Arnold Shulman.

The appellant was charged by accusation with the offense of “driving under the influence,” based on allegations that he did “drive or operate a motor vehicle . . . while under the influence of 0.12 grams or more of alcohol concentration in violation of OCGA § 40-6-391 (a) (4), . . .” He was tried without a jury and found guilty of this alleged offense, based on evidence that he had registered a blood-alcohol concentration of .18 percent on an intoximeter test administered to him some 30 minutes after he was stopped by police for “weaving.” Although the appellant did not demur to the accusation or move to dismiss it, he objected to being sentenced under it on the ground that it failed to allege the commission of any criminal offense. The appellant’s sole enumeration of error on appeal is directed to the overruling of this objection. Held:

The appellant contends that the statute under which he was charged did not prohibit the act alleged in the indictment, i.e., driving or operating a motor vehicle “while under the influence of 0.12 grams or more of alcohol concentration,” but rather made it unlawful to have such a blood-alcohol concentration within three hours after driving or being in physical control of a vehicle, due to alcohol consumed prior to such driving or being in physical control of a vehicle. Relying on Thomason v. State, 196 Ga. App. 447 (2) (396 SE2d 79) (1990), for the proposition that an indictment or accusation will not support the imposition of a criminal sentence if the defendant can admit all of the allegations contained therein yet be innocent of any offense, the appellant contends that his conviction must accordingly be reversed.

The actual language of OCGA § 40-6-391 (a) (4) as it existed on the date of the appellant’s arrest was as follows: “(a) A person shall not drive or be in actual physical control of any moving vehicle while: . . . (4) The person’s alcohol concentration is 0.12 grams or more at any time within three hours after such driving or being in actual physical control from alcohol consumed before such driving or being in actual physical control ended.” (This subsection was subsequently amended by Ga. L. 1991, pp. 1886, 1891, § 6 to substitute “0.10 grams” for “0.12 grams” but was otherwise unchanged.) Since it is obviously not possible to drive or to be in actual physical control of a moving vehicle “within three hours after such driving or being in actual physical control” of the vehicle has ended, this language is meaningless if construed literally. The interpretation which the appellant seeks to place on the statute, i.e., that it made it unlawful to have a blood-alcohol concentration of 0.12 grams or more within three hours after driving or being in physical control of a moving vehicle but did not make it unlawful to have such a blood-alcohol concentration while actually driving or being in physical control of the vehicle, does have the advantage of avoiding this problem. However, it does so only by ignoring the first portion of the statutory provision and thereby giving the provision as a whole a meaning which can only be described as irrational.

“ ‘It is the duty of the court to consider the results and consequences of any proposed construction and not so construe a statute as will result in unreasonable or absurd consequences not contemplated by the legislature.’ [Cit.]” State of Ga. v. Livingston, 222 Ga. 441, 442-443 (150 SE2d 648) (1966). As we read the statutory language at issue, it evinces a clear and obvious legislative intention to prohibit the act of driving or being in actual physical control of a moving vehicle with a blood-alcohol concentration of 0.12 grams or more. In addition, in order to avoid placing on the state the burden of proving that a person registering such a blood-alcohol concentration shortly after driving or being in physical control of a moving vehicle also possessed such a blood-alcohol concentration at the time he was in control of the vehicle, the statute also made it unlawful for a person to drive or to be in physical control of a moving vehicle after having consumed alcohol if at any time within the three-hour period after such driving or being in physical control ended, he or she registered a blood-alcohol concentration of 0.12 grams or more as a result of such prior alcohol consumption. Because the accusation in this case did allege a violation of the statute under this interpretation, and because there is no question that the appellant’s blood-alcohol concentration was 0.18 grams percent some 30 minutes after he was stopped for erratic driving, the judgment of the trial court is affirmed.

Judgment affirmed.

Beasley, J., concurs specially and Carley, P. J., concurs in judgment only.

Beasley, Judge,

concurring specially.

I agree that the evidence showed beyond a reasonable doubt that appellant’s blood-alcohol concentration was 0.18 grams percent about 30 minutes after he was stopped. The question is whether he was properly charged.

Decided November 18, 1991.

James A. Chamberlin, Jr., for appellant.

The accusation was written according to a prior version of OCGA § 40-6-391 (a) (4), which made it a crime to drive under the influence of 0.12 or more of alcohol concentration. Currently, and at the time of defendant’s act, the critical quantitative time is the three-hour period after the driving has ceased. See Ga. L. 1990, pp. 2048, 2312, § 5. This revision was apparently made for evidentiary reasons. There is virtually no way for measuring the suspected alcohol-influenced driver’s blood while he is driving. The legislature changed the critical quantitative time to the period in which the concentration could be measured to give a quantity which would conclusively mean that the level at the time of driving, whatever it was, was too high to drive safely as a matter of public policy. I do not agree with the majority that subsection (4) prohibits both driving with .12 concentration and driving with concentration which measures .12 at any time within three hours of ceasing to drive. When the statute was changed, the former was abandoned, as the latter covered it satisfactorily by moving the quantitative timing. The result is that whether the blood-alcohol level is higher or lower than .12 when driving, if it is .12 within three hours of driving, the person is guilty of driving under the influence as forbidden by OCGA § 40-6-391 (a) (4). If, for example, the alcohol consumption was occurring while the person was driving, the blood alcohol level might not reach .12 until after he or she was stopped and tested.

If appellant had admitted that he “[did] drive or operate a motor vehicle . . . while under the influence of 0.12 grams or more of alcohol concentration . . .” as charged, it could reasonably be inferred that he was driving while the alcohol concentration in his blood was of a level which would measure 0.12 a minute after he stopped, which would be a violation as described by the revised subsection (4), the very section expressly charged. So the rule applied in Thomason v. State, 196 Ga. App. 447, 448 (2) (396 SE2d 79) (1990), as taken from Brooks v. State, 141 Ga. App. 725, 730 (1) (234 SE2d 541) (1977), does not aid appellant.

The evidence in this case, clearly supported a conviction under OCGA § 40-6-391 (a) (4). The discrepancy between the act inartfully described in the accusation as having been committed and the act which the statute prohibited is not material in considering whether an essential element was omitted, which is appellant’s complaint. See Chappell v. State, 164 Ga. App. 77 (1) (296 SE2d 629) (1982).

Richard H. Taylor, Solicitor, for appellee.


author: Pope, Judge.

text:
    A91A0972.
    STONE v. ALLEN et al.
    (412 SE2d 605)
   Pope, Judge.

Plaintiffs Joseph and Aloma Allen brought suit against defendants James L. Stone and Poolco, Inc. d/b/a Pools by Stone alleging, inter alia, that defendants breached the parties’ contract for the construction of a swimming pool. The jury returned a verdict against both defendants jointly and severally, awarding plaintiffs $5,545. on their breach of contract claim and $3,841.50 attorney fees. Defendant James L. Stone appeals, contending the trial court should have granted his motions for directed verdict and judgment notwithstanding the verdict (jnov). We affirm.

1. In his first and third enumerations of error, defendant contends the trial court erred in refusing to grant his motions for directed verdict and jnov because the evidence failed to show he was a party to the contract sued upon by plaintiffs. Rather, defendant argues, the evidence at trial showed plaintiffs had contracted with the corporate entity Poolco, Inc., operating under the trade name Pools by Stone, and thus he could not be individually liable under the facts of this case. We disagree.

The evidence presented at trial showed that defendant began operating a swimming pool installation business under the name Pools by Stone in 1961. At that time the business was operated as a sole proprietorship. Defendant testified that Poolco, Inc., was incorporated in 1984 and since that time the business was no longer operated as a sole proprietorship but as a corporation doing business under the unregistered trade names Pools by Stone and Stone Plumbing Co. The parties executed the contract here in December 1988. The name “Pools by Stone,” followed by an address, appeared across the top of the contract which was signed by defendant’s son as the representative for the “contractor” Pools by Stone. The contract made no reference to Poolco, Inc., or otherwise indicated that “Pools by Stone” was a division or trade name used by Poolco, Inc. Plaintiffs made all payments under the contract to Pools by Stone and were unaware of the corporate entity Poolco, Inc., until they got back their cancelled checks and saw that they had been deposited in an account bearing the name Poolco, Inc. d/b/a Stone Plumbing Co.

“In determining whether the trial court erred by denying [defendant’s] motions for a directed verdict and motion for judgment n.o.v., this court must view and resolve the evidence and any doubt or ambiguity in favor of the verdict and judgment n.o.v. A directed verdiet and judgment n.o.v. is not proper unless there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom demands a certain verdict.” (Citations and punctuation omitted.) Parks v. Howard, 197 Ga. App. 405, 407 (398 SE2d 308) (1990). Although defendant testified that Pools by Stone was simply a trade name used by one “division” of the corporate entity Poolco, Inc., no evidence was presented to show that plaintiffs knew or should have known they were contracting with a corporate entity known as Poolco, Inc. The name “Pools by Stone” was not registered as a trade name of Poolco as required by OCGA § 10-1-490. See Jones v. Burlington Indus., 196 Ga. App. 834 (2) (397 SE2d 174) (1990) (holding that an unregistered corporate trade name is to be regarded as a fictitious or personal business name, resulting in individual liability to the user). The contract did not disclose that plaintiffs were contracting with Poolco or with any other corporate entity, but instead referred only to “Pools by Stone,” a trade name defendant had used in operating his swimming pool business since 1961. Under these circumstances, where the evidence does not demand a verdict for either the plaintiffs or the defendant, we cannot say that the trial court erred in denying defendant’s motion for directed verdict and motion jnov. Cf. Pinson v. Hartsfield Intl. Commerce Center, 191 Ga. App. 459 (382 SE2d 136) (1989) (in which the corporate identity of the contracting party was clear, although a misnomer was used in identifying the corporation) and Hawkins v. Turner, 166 Ga. App. 50, 52 (1) (303 SE2d 164) (1983) (in which the court held the use of the designation “Inc.” raised the inference that the party knew the contract was executed by a corporate entity).

2. Defendant also contends the trial court erred in submitting the issue of “piercing the corporate veil” to the jury, which defendant argues, was the effect of the trial court’s denial of his motions. First we note it was defendant who submitted this issue to the jury by requesting a charge on this issue. Moreover, as noted by the trial court, and as held in Division 1, defendant’s individual liability in this case does not devolve from a piercing of the corporate veil but rather results from a lack of evidence to establish that the corporate entity Poolco, Inc., was a party to the contract here. Consequently, we find no merit to this enumeration.

3. Contrary to defendant’s final argument on appeal, the trial court did not err by refusing to grant his motion for directed verdict or jnov on the issue of attorney fees. See generally Powell v. Watson, 190 Ga. App. 375 (378 SE2d 867) (1989); Thibadeau Co. v. McMillan, 132 Ga. App. 842 (1 & 2) (209 SE2d 236) (1974); Edwards-Warren Tire Co. v. Coble, 102 Ga. App. 106 (2) (115 SE2d 852) (1960). Consequently, this enumeration is without merit.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.

Decided November 18, 1991.

Adams & Hemingway, Ward Stone, Jr., David A. Garland, for appellant.

Mathis, Sands, Jordan & Adams, Charles A. Mathis, Jr., for appellees.


text:
    A91A1095.
    WOODS v. ADVANTA LEASING CORPORATION.
    (412 SE2d 607)
   Pope, Judge.

Plaintiff/appellee Advanta Leasing Corporation brought suit against defendant/appellant Myrtis L. Woods and defendant Inventory Control Unit seeking damages it contended it was owed because of Woods’ breach of the parties’ agreement for the lease of security equipment. Advanta subsequently dismissed its action against Inventory Control, the vendor of the equipment, and filed a motion for summary judgment against Woods. The trial court granted Advanta’s motion and Woods filed a timely appeal to this court.

The record shows the parties entered into the lease agreement on November 11, 1988 and that Woods paid a security deposit on the equipment. All payments under the lease were to be paid to Advanta. Prior to entering into the agreement, however, Woods received written assurances from the vendor of the equipment that the equipment would be removed from the premises and she would be relieved of all responsibility for the equipment if, within the first 90 days of the agreement, she gave notice that she was “not satisfied with the quality and validity of [the vendor’s] service . . . .” Woods made no payments under the lease; however, she did give written notice to both the vendor and Advanta within the first 90 days after signing the lease of her intention to rescind the agreement because of her dissatisfaction with the equipment. She also requested that the equipment be removed from her store and that her security deposit be refunded.

1. Woods first contends that the trial court erred in granting summary judgment to Advanta inasmuch as she was entitled to rescind the agreement because she was fraudulently induced to enter into the lease by the vendor’s assurances giving her a “90 day trial run.” Advanta argues, and the trial court apparently found, that the alleged fraud of the vendor provided no defense to Woods against Advanta’s claims because there is no evidence that the vendor was acting as the agent of Advanta in giving Woods a “90 day trial run.” We agree. Woods does not argue on appeal, and no evidence of record suggests, that the vendor was acting as the agent of Advanta in extending the 90-day trial run. See, e.g., Thompson v. Gen. Motors Ac ceptance Corp., 193 Ga. App. 740 (1) (389 SE2d 20) (1989). To the contrary, the agreement specifically provided that “(1) there is no agency, joint venture or other relationship between L[essor] and the Vendor” and that the vendor was not authorized to act on Advanta’s behalf. Additionally, the disclaimer of warranty provision in the lease provided that “no representation, guarantee or warranty by the vendor is binding on lessor nor shall any breach thereof relieve lessee of its obligations to lessor.” Although Woods states in her affidavit that she acted in reliance on the vendor’s assurances and did not read the lease, there is nothing in the record which would authorize the conclusion that the vendor’s assurances somehow relieved her of her obligation to read the lease prior to its execution.

“The express, clear and unambiguous terms of this lease placed [Woods] on notice at the time [she] signed it that representations by vendors, its salespersons, or agents would not bind the lessor. . . . All complaints and redress for breach of warranty or misrepresentations were to be directed to and against the vendor. Thus, the very complaints made by [Woods] in [her] defenses as to the lessor were expressly covered and excluded in the terms of the lease in clear and unambiguous terms.” Petroziello v. U. S. Leasing Corp., 176 Ga. App. 858, 861 (338 SE2d 63) (1985).

2. Woods also argues that the acceleration clause contained in paragraph 17 of the lease constitutes an unenforceable penalty under Georgia law. The record shows, however, that Woods failed to raise this issue in the trial court. “ [I]t is axiomatic that a ground urged for the first time on appeal will not be considered.” (Citation and punctuation omitted.) Weaver v. ABC Bus, 191 Ga. App. 614, 615 (2) (382 SE2d 380) (1989). Accord Hammond v. Paul, 249 Ga. 241, 242 (1) (290 SE2d 54) (1982).

Woods did argue below, and now urges on appeal, that Advanta should have mitigated its damages by taking the equipment from her store, and then repairing and reselling it when it was notified by Woods of her intention to rescind the contract. However, as noted in Division 1, Woods was not entitled to rescind the contract and thus Advanta was under no obligation to honor her disavowal of the contract and her demands that it repossess the equipment. Moreover, the lease specifically provides that in the event of default it is the duty of the lessee to return the equipment to the lessor upon request. Consequently, under the facts of this case Advanta had no duty to remove the equipment from Woods’s place of business.

3. We have examined Woods’s remaining enumerations of error and find them to be without merit. Consequently, the trial court’s order enforcing the lease and awarding summary judgment to Advanta must be affirmed.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.

Decided November 18, 1991.

Gershon, Olim, Katz & Loeb, Jay E. Loeb, for appellant.

Victoria J. Hoffman, for appellee.


author: Andrews, Judge.

text:
    A91A1118.
    PHEIL et al. v. SOUTHERN BELL TELEPHONE & TELEGRAPH COMPANY et al.
    (412 SE2d 609)
   Andrews, Judge.

The Pheils appeal from a jury verdict in favor of Southern Bell in their lawsuit for damages arising out of an automobile accident. Southern Bell stipulated liability in the accident and the case was tried solely on the issue of damages.

1. In their first enumeration of error, the Pheils claim that the trial court erred in refusing to disqualify a juror for cause, thus requiring the use of a peremptory strike. The juror over whom the dispute arose was the wife of a retired Southern Bell employee who received a pension from the company. The trial judge examined the juror and determined that she could render a fair and impartial verdict.

“Relationship to an employee of a corporation does not in this State render a juror incompetent, as a matter of law, to serve on the trial of a case in which the corporation is a party.” (Citations and quotations omitted.) Wilson v. Atlantic C. L. R. Co., 116 Ga. App. 193, 194 (156 SE2d 463) (1967). Here, the juror’s husband retired from the company in 1971, the trial court found that the juror could render an impartial verdict, and there was no evidence that either she or her husband had any financial interest in the outcome of the litigation. See generally OCGA §§ 15-12-134; 15-12-135 (a). “The trial judge has a discretion in determining whether a juror can decide the case in accordance with the evidence presented during the trial and without bias or partiality or outside influences. Unless there is manifest abuse we cannot require a new trial. We find no such abuse here.” (Citations and punctuation omitted.) Poulnott v. Surgical Assoc. of Warner Robins, 179 Ga. App. 138, 139 (1) (345 SE2d 639) (1986).

2. In their second enumeration of error, the Pheils claim that the trial court erred in allowing testimony from Crisp County Board of Education employees in violation of the Federal Family Educational Rights &• Privacy Act of 1974. Pretermitting the question of whether the information testified to was protected, the enumeration is without merit since the Pheils failed to object to the testimony at trial and the issue cannot be raised for the first time on appeal. Morris v. Southern Bell Tel. &c. Co., 180 Ga. App. 145 (2) (348 SE2d 573) (1986).

3. In their third enumeration of error, the Pheils claim a new trial is required in that the trial court erred by not sustaining their hearsay objection to a question regarding the fact that a previous attorney referred Mrs. Pheil to a doctor. This argument is without merit.

4. In their fourth through tenth, sixteenth, seventeenth and eighteenth enumerations of error, the Pheils claim that the trial court erred in various instructions to the jury.

(a) In their fourth enumeration of error, the Pheils claim that the trial court failed to properly instruct the jury on defense counsel’s statements to the jury in closing argument. The Pheils’ attorney objected to defense counsel’s improper argument, the court sustained the objection and no further action was requested of the court.

Therefore, “[w]e reject this argument because it is well-settled that a sustained objection to improper argument of counsel cannot serve as the basis for reversal unless it is contemporaneous with a denied motion for mistrial, denied request to strike or denied request for curative instructions, none of which were made by defendant’s counsel below.” (Citations and punctuation omitted.) Carver v. State, 185 Ga. App. 436, 438 (2) (364 SE2d 877) (1987); see also Seaboard Coast Line R. Co. v. Wallace, 227 Ga. 363, 365 (180 SE2d 743) (1971).

(b) In enumerations five and six, the Pheils claim that the trial court erred in charging the jury regarding nominal and exaggerated damages in that the charges were misleading and not supported by the evidence. The nominal damage charge was supported by the evidence and was proper. See generally OCGA § 51-12-4; Bond v. Davis, 194 Ga. App. 379 (390 SE2d 627) (1990). Similarly, the instruction regarding whether Mrs. Pheil magnified her damages was justified by the evidence.

(c) The Pheils’ enumerations of error seven, eight, nine, ten, sixteen, seventeen and eighteen raise various claimed errors in the trial court’s instructions. Because no objection was raised to these charges below, we will not consider these enumerations. Wigley v. Hambrick, 193 Ga. App. 903 (5) (389 SE2d 763) (1989).

5. In their twelfth enumeration, the Pheils claim that the trial court erred in allowing the defendant’s driver to testify contrary to the stipulation of liability by the defendants. Again, no objection was made at trial to this testimony and the Pheils may not raise this issue for the first time here. Morris, supra.

6. Despite the fact that they were granted an extension of time within which to submit their brief, the Pheils failed to support enumerations number eleven, thirteen, fourteen and fifteen with arguments or citations of authority in their initial brief. Although they submitted argument supporting these enumerations in subsequently filed briefs, the Pheils’ complete failure to submit any argument or citation of authority in support of these enumerations initially means that such enumerations are deemed abandoned. Rule 15 (c) (2); see Prevost v. Taylor, 196 Ga. App. 368, 370 (396 SE2d 17) (1990).

Decided November 18, 1991.

John N. Crudup, for appellants.

James W. Hurt & Associates, James W. Hurt, for appellees.

Judgment affirmed.

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


text:
    A91A1307.
    SELVEY v. THE STATE.
    (412 SE2d 611)
   Pope, Judge.

“Defendant, as is his right, brings direct appeal from the order of the trial court overruling his plea of double jeopardy. Patterson v. State, 248 Ga. 875 (287 SE2d 7) (1982).” Sanders v. State, 188 Ga. App. 774 (374 SE2d 542) (1988). The record shows defendant was charged with the offenses of DUI, violation of the habitual violator statute and violation of a disorderly conduct ordinance. He was convicted on the disorderly conduct charge by the Gwinnett County Magistrate Court. The Superior Court reduced the habitual violator charge to the misdemeanor violation of defendant’s probationary driver’s license and transferred that charge, along with the DUI charge, to State Court. Defendant filed a plea in bar arguing that the three offenses should have been prosecuted in a single trial, pursuant to OCGA § 16-1-7 (b), and that the prosecution of the two remaining offenses is now barred pursuant to OCGA § 16-1-8 (b).

Crimes must be prosecuted in a single prosecution if they “[arise] from the same conduct[,] are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court . . . .” OCGA § 16-1-7 (b). First, we note that at the time defendant was convicted of the disorderly conduct charge by the Magistrate Court, the habitual violator charge had not yet been reduced to the misdemeanor charge of violating defendant’s probationary license. The Magistrate Court had no jurisdiction to prosecute the felony habitual violator charge. We need not address the thorny issue of whether the police officer who brought the disorderly conduct charge before the Magistrate Court was the “prosecuting officer” for that charge (see Zater v. State, 197 Ga. App. 648 (399 SE2d 222) (1990)) because the record shows the remaining two charges did not arise out of the same conduct as the disorderly conduct charge. The disorderly conduct charge arose out of a disturbance involving the defendant at a restaurant. When the officer arrived, defendant got in his car and drove off. The officer stopped defendant on the road and charged him with DUI. The Uniform Traffic Citation form showed that his earlier disorderly conduct provided the probable cause for the stop. However, disorderly conduct at a restaurant is not the same conduct as driving a car minutes later while under the influence of alcohol. That they “ ‘arose out of the same intoxication’ ” does not establish that the disorderly conduct offense arose out of the same conduct as the offenses of DUI and violation of defendant’s probationary license. See Fuller v. State, 169 Ga. App. 468, 469 (3) (313 SE2d 745) (1984). Thus, the State is not barred from prosecuting defendant for the charges of violation of probationary license and DUI even though he has already been prosecuted for the disorderly conduct charge which arose from different conduct on the same night.

Decided November 18, 1991.

Moore & Davidson, W. Keith Davidson, for appellant.

Gerald N. Blaney, Jr., Solicitor, Allison L. Thatcher, Assistant Solicitor, for appellee.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.


text:
    A91A1334.
    PETERSON v. FIRST FRANKLIN FINANCIAL CORPORATION.
    (412 SE2d 612)
   Pope, Judge.

Appellant/plaintiff Harley J. Peterson, Jr., installed vinyl flooring in the entrance of appellee/defendant First Franklin Financial Corporation’s office. There was a large counter located in the entry area. Plaintiff was instructed to install the flooring beneath the counter area. To accomplish that task, plaintiff and his co-workers drove pieces of wood under the counter to raise it. After the vinyl was installed, at the insistence of defendant’s manager, plaintiff pulled on the counter to settle it flush with the floor. While he was pulling on it, part of the counter overturned on him, injuring his ankle.

Plaintiff brought this personal injury action against defendant. A jury trial was conducted in the case, and the jury returned a verdict in favor of plaintiff but awarded him no damages. Plaintiff moved for a new trial. The trial court denied that motion finding that “[t]here was testimony at trial that the Plaintiff angrily jerked the counter and created the instability in said counter that eventually contributed to the harm that befell him. . . . This Court finds that the jury’s verdiet ... is clear and capable of reasonable construction.” Plaintiff subsequently appealed from the judgment entered on the jury’s verdict and the trial court’s denial of his motion for new trial.

As we recently noted in Bales v. Shelton, 197 Ga. App. 522 (1) (399 SE2d 78) (1990), “ ‘[t]he question of damages is ordinarily one for the jury; and the court should not interfere with the jury’s verdict unless the damages awarded by the jury are clearly so inadequate or so excessive as to be inconsistent with the preponderance of the evidence in the case.’ OCGA § 51-12-12. ‘The general rule on appeal of an award of damages is that a jury’s award cannot be successfully attacked so as to warrant a new trial unless it is so flagrantly excessive or inadequate, in light of the evidence, as to create a clear implication of bias, prejudice, or gross mistake on the part of the jurors. (Cits.) Even though the evidence is such as to authorize a greater or lesser award than that actually made, the appellate court will not disturb it unless it is so flagrant as to “shock the conscience.” (Cits.) . . . Moreover, the trial court’s approval of the verdict creates a presumption of correctness that will not be disturbed absent compelling evidence. (Cits.)’ Cullen v. Timm, 184 Ga. App. 80, 82 (2)-83 (360 SE2d 745) (1987).”

The verdict rendered in this case is similar to the verdict in Meadows v. Douglas County Fed. &c., 169 Ga. App. 150 (312 SE2d 169) (1983). In that case the jury returned a verdict in favor of the plaintiff against a defendant “in the amount of []none principal, []none interest, $5,000.00 additional damages, $5,968.75 attorney fees.” Id. at 151 (1). The defendant in that case filed a motion to set aside the award of the jury on the ground that punitive damages and attorney fees could not be awarded to the plaintiff absent an award of actual damages. The trial court set aside the additional damages and attorney fees and held that the jury’s verdict of zero principal and zero interest was a judgment for the defendant. We affirmed the trial court’s ruling. Id.

When the evidence is viewed in the manner most favorable to sustain the verdict, as we must do, we cannot say that the jury’s refusal to award any damages to plaintiff, even though they held in his favor, warrants reversal of the trial court. As we recognized in Seaboard Coast Line R. v. Towns, 156 Ga. App. 24, 26 (3) (274 SE2d 74) (1980), “[a]n excessive or inadequate verdict constitutes a mistake of fact rather than of law. It addresses itself to the discretion of the trial judge who saw the witness and heard the testimony. This court is a court for the correction of errors of law only, and this court’s jurisdiction is confined to the question of whether the trial court abused [its] discretion in overruling the motion for a new trial on this ground.” (Punctuation ommitted.) Although the jury should have simply held for the defendant, its intent not to award the plaintiff damages is clear. When as here, the evidence construed favorably to the defendant shows that plaintiff angrily jerked the counter and caused his own injuries, we will not find that the jury’s refusal to award him damages is improper as a matter of law. Id.; cf. Cothern v. Haygood, 147 Ga. App. 200 (248 SE2d 231) (1978).

Decided November 18, 1991.

Maddox, Starnes & Nix, John A. Nix, for appellant.

Chambers, Mabry, McClelland & Brooks, W. C. Brooks, for appellee.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.


author: Judge Arnold Shulman.

text:
    A91A1410.
    KING v. ST. PAUL FIRE & CASUALTY COMPANY.
    (412 SE2d 614)
   Judge Arnold Shulman.

The appellant’s husband was shot and killed by robbers in the parking lot of a laundry and dry cleaning establishment which he operated, as he was attempting to enter his van with a money bag containing the day’s receipts from the business. The appellee insurer had issued a policy of motor vehicle accident insurance to the appellant and her husband which provided $50,000 in no-fault, or personal injury protection, coverage. The appellant filed the present action seeking to recover these benefits, as well as to recover a bad-faith penalty, attorney fees and punitive damages based on the appellee’s refusal to pay the claim. The case is before us on appeal from an order granting summary judgment to the appellee-insurer.

Under OCGA § 33-34-7 (a) (1) as it existed at the time of the accident, personal injury protection benefits were required to be paid to an insured “without regard to fault for economic loss resulting from: (1) Accidental bodily injury sustained ... by the insured . . . while occupying any motor vehicle. . . .” Ga. L. 1974, pp. 113, 120, § 7 (repealed by Ga. L. 1991, pp. 1608, 1621, § 1.12, effective October 1, 1991). The term “occupying” was defined by former OCGA § 33-34-2 (8) as meaning “to be in or upon a motor vehicle or engaged in the immediate act of entering into or alighting from the motor vehicle.” For the purposes of this appeal, there is no question that the decedent was engaged in the immediate act of entering his van at the time he was killed.

The term, “accidental bodily injury,” was defined by former OCGA § 33-34-2 (1) as “bodily injury arising out of the operation, maintenance, or use of a motor vehicle which is accidental as to the person claiming basic no-fault benefits. . . .” This court has held that “almost any causal connection or relationship will do” to establish that an injury arose out of the operation, maintenance or use of a motor vehicle within the contemplation of this statute. Southeastern Fidelity Ins. Co. v. Stevens, 142 Ga. App. 562, 563-564 (236 SE2d 550) (1977). However, we have also held that a no-fault insurer is not required to pay benefits for injuries sustained by an insured in a criminal assault merely because the assault occurred while the insured was occupying a motor vehicle. See First Financial Ins. Co. v. Rainey, 195 Ga. App. 655, 657 (394 SE2d 774) (1990), and cases cited therein. With specific reference to shootings, we have held that “[t]here must be more of a connection between the use of the vehicle and the discharge of the firearm and the resulting injury than mere presence in the vehicle when the injury was sustained.” Bennett v. Nat. Union Fire Ins. Co., 170 Ga. App. 829, 830-831 (318 SE2d 670) (1984).

Decided November 18, 1991.

Dailey & Groover, Lewis M. Groover, Jr., for appellant.

Tittsworth & Grabbe, Michael W. Tittsworth, for appellee.

In Westberry v. State Farm &c. Ins. Co., 179 Ga. App. 700 (347 SE2d 688) (1986), this court held that no-fault benefits were not payable for the death of a taxi driver who was shot and killed by a robber while seated in the front seat of his taxi, even though “in all probability [the driver] was robbed for the purpose of taking the amount of money he had accumulated from the use of his vehicle as a taxi.” Id. at 701. Similarly, in Davis v. Criterion Ins. Co., 179 Ga. App. 235 (345 SE2d 913) (1986), we held that no-fault benefits were not payable for the death of a bus driver who was shot and killed by a disturbed passenger who had commandeered the vehicle. There obviously was more of a connection between the vehicles and the shootings in those two cases than in the present case. Accordingly, the trial court did not err in granting the appellee’s motion for summary judgment.

Judgment affirmed.

Carley, P. J., and Beasley, J., concur.


text:
    A91A1421.
    HYMAN v. JORDAN et al.
    (412 SE2d 615)
   Pope, Judge.

On December 11, 1989, plaintiff filed this action alleging malpractice against attorneys Hill R. Jordan and H. Rhodes Jordan. As pertinent to this appeal, the facts show that in 1982, appellant/plaintiff Steve Hyman retained the services of Hill R. Jordan, Esq., to represent him in a breach of contract action Hyman wished to file against four defendants. Jordan subsequently filed a complaint on behalf of plaintiff against those defendants in the State Court of Gwinnett County styled Hyman v. Jessco Jewelry Mfg. Inc., Civil Action No. 84C-219-2 [hereinafter the “Jessco case”]. On November 22, 1985, Rhodes Jordan, Esq., who practiced with his son, Hill Jordan, executed a dismissal with prejudice of two of the defendants in the Jessco case on behalf of his son. At the time the elder Jordan executed the dismissal with prejudice, Hyman had not authorized their dismissal nor had Hill Jordan, Hyman’s counsel, authorized his father to execute such a dismissal.

Hill Jordan did not become aware of the dismissal of the two defendants in the Jessco case until April 1986. On April 23, 1986, Jordan moved to vacate the dismissal, but the trial court refused to consider the motion because it was not filed during the same term of court as the dismissal of the defendants.

In this case, all parties moved for summary judgment and the trial court granted defendant’s motion for summary judgment finding that the applicable statute of limitation had expired before Hyman filed this legal malpractice case on December 11, 1989. Plaintiff appeals from that order.

1. It is well-settled in this state that “[i]n a malpractice action for damages against an attorney, the statute of [limitation] runs from ‘the date of the breach of the duty and not from the time when the extent of the resulting injury is ascertained nor from the date of the client’s discovery of the error.’ Peppers v. Siefferman, 166 Ga. App. 389 (304 SE2d 511) (1983). See also Jankowski v. Taylor, Bishop & Lee, 154 Ga. App. 752 (269 SE2d 871) affirmed 246 Ga. 804 (273 SE2d 16) (1980).” Consolidated Mgmt. Svcs. v. Halligan, 186 Ga. App. 621, 622 (1) (368 SE2d 148) affirmed 258 Ga. 471 (369 SE2d 745) (1988). The statute of limitation on Hyman’s legal malpractice claim against the Jordans began to run on November 22, 1985, the date of the breach of duty, and the complaint was filed on December 11, 1989, more than four years from the date of the breach of duty. Thus, any claim Hyman might have against the Jordans in contract, subject to a four-year statute of limitation, or in tort, subject to a two-year statute of limitation, is time barred. Ballard v. Frey, 179 Ga. App. 455, 459 (3) (346 SE2d 893) (1986); Hamilton v. Powell, Goldstein, Frazer & Murphy, 167 Ga. App. 411, 412-413 (306 SE2d 340) (1983), aff’d 252 Ga. 149 (311 SE2d 818) (1984); OCGA §§ 9-3-25; 9-3-33.

2. Hyman argues that the statute of limitation should be tolled in this case because he contends the Jordans fraudulently concealed their breach of duty to him. “The statute of limitation [in a legal malpractice action] does not cease to run due to defendants’ alleged fraudulent concealment.” Peppers v. Siefferman, 166 Ga. App. 389 (1) (304 SE2d 511) (1983). “ ‘The fraud which will relieve the bar of the statute of limitation must be of that character which involves moral turpitude, and must have the effect of debarring or deterring the plaintiff from his action.’ Riddle v. Driebe, 153 Ga. App. 276, 280 (265 SE2d 92) [(1980)]; Frates v. Sutherland, Asbill & Brennan, 164 Ga. App. 243 (1), 245 (296 SE2d 788) [(1982)]. Since [Hyman in opposition to the Jordans’ motion for summary judgment] did not show that [he] was prevented or deterred by any act of [defendants] from discovering [their] alleged negligence or from bringing [his] malpractice action, there is nothing upon which [he] can base [his] claim of fraud and the statutes of limitation were not tolled. [Cit.]” Kilby v. Shepherd, 177 Ga. App. 462, 463 (339 SE2d 742) (1986).

Decided November 18, 1991.

Steve Hyman, pro se.

Jordan & Jordan, Hill R. Jordan, H. Rhodes Jordan, pro se.

3. In view of the foregoing holdings, the remaining enumerations of error need not be addressed.

Judgment affirmed.

Birdsong, P. J., and Cooper, J., concur.


text:
    A91A1457.
    TIMES-GEORGIAN et al. v. THOMPSON.
    (412 SE2d 871)
   Pope, Judge.

This case involves an appeal from a judgment of the Superior Court affirming the award of the Board of Workers’ Compensation. An Administrative Law Judge (ALJ) originally denied the claim filed by Shirley A. Thompson against her employer Times-Georgian. The claimant appealed and the board awarded temporary total disability benefits for that period of time the claimant was unable to work, temporary partial disability benefits for that period of time when she obtained other employment and payment of medical expenses.

The claimant did not file a brief within the time allowed by Rule 103 (b) (1) of the Rules and Regulations of the Board of Workers’ Compensation. Instead, she filed her brief on the day of the hearing. The employer objected to the untimely filing. Although claimant’s brief was stamped filed on the date of the hearing, the board indicated it would not be considered and the words “Filed late not considered” were handwritten on the face of the brief. Nevertheless, that paragraph of the award finding the claimant is entitled to temporary partial disability benefits contains the statement: “In lieu of temporary partial disability, the parties are authorized to reach an agreement as proposed in employee’s brief to the Board.” The employer filed a motion for rehearing, arguing that acceptance of claimant’s untimely brief deprived the employer of its right to file a response brief because Rule 103 (b) (1) provides that the opposing party may file briefs only within 20 days from the date of the certificate of service of the appellant’s brief. In denying the motion for reconsideration, the Chairman of the Board noted the comments written on the face of the brief and concluded: “Accordingly, the brief was not considered by the Board in reaching its decision in the award . . . .” On appeal, the Superior Court found the record contained sufficient evidence to sustain the award and concluded it must accept the statement that the board had not considered claimant’s brief because the statement was not shown conclusively to be false. The Superior Court affirmed the award because the board “could have decided that the employee was entitled to benefits without considering the brief, and only used the brief to determine the award.”

The employer argues the award shows on its face that the brief was considered and that consideration of claimant’s untimely brief without allowing it the opportunity to file a response brief was a denial of its right to due process. We agree with the employer that the reference in the award to claimant’s brief overcomes both the presumption that the board properly disregarded the untimely brief and the conclusory statement of the board that it was not considered. This issue is analogous to appeals in which it is argued that the unbroken seal on a deposition transcript shows the trial court did not properly consider all evidence of record in ruling on a motion for summary judgment. “Sealed depositions in the record, in and of themselves, do not ordinarily overcome the presumption that the trial court has considered the entire record, as stated in its order.” Eunice v. Citicorp Homeowners, 167 Ga. App. 335 (2) (306 SE2d 395) (1983). In this case, the fact that the brief was stamped filed would not be sufficient to overcome the presumption that it was not improperly considered, as stated in the board’s denial of the motion for reconsideration. Reference to the brief in the award, however, is conclusive evidence that it was considered. Of course, an untimely brief may be accepted with the board’s permission. Rule 103 (b) (1). However, permitting the claimant’s untimely brief to be accepted without also permitting the employer to respond to that brief denies the employer its rights, under the rules and thus is in excess of the board’s power. An act in excess of the board’s power may be set aside on appeal. OCGA § 34-9-105 (c) (1).

The issue remains whether the improper consideration of the brief, even though in error, was harmful to the employer. Though the trial court was not convinced that the board “considered” the brief, and it concluded that the evidence supported the finding that the claimant was entitled to benefits, even the trial court concluded the reference to the claimant’s brief showed the board “used the brief to determine the award.” An award consists not only of a determination that the claimant is entitled to benefits because she sustained a compensable injury, but also the terms of the benefits which must be paid. The board concluded the claimant was entitled to temporary partial disability benefits, but declared that in lieu of such benefits, the parties could reach a compromise agreement as proposed in claimant’s brief. In essence, the board approved as an alternative award the measure of benefits argued in claimant’s brief. While the “any evidence rule” constrains us to rule that an award of benefits is sustainable in this case, we cannot say that the employer was not denied its due process right to argue its defense as to the particular terms of the benefits awarded. The fact that the evidence presented supports the award does not require the affirmance of the award if one party’s due process rights have been abridged. See Hart v. Owens-Illinois, 165 Ga. App. 681 (302 SE2d 701) (1983). In Hart the award was reversed and the case remanded for rehearing because the employer was denied the right to present evidence and cross-examine the claimant’s witnesses. Here, the employer was permitted to submit evidence in defense of the claimant’s claim. However, Rule 103 also grants the employer the right to submit a written brief in response to the arguments contained in claimant’s brief. Under the circumstances of this case, we cannot say the denial of this right was harmless. See Miller v. Brunswick Pulp & Paper Co., 184 Ga. App. 172 (360 SE2d 754) (1987).

Decided November 18, 1991.

We reject, however, the employer’s argument that the award must be reversed. As noted above, even an untimely brief may be accepted with the board’s permission. Since it appears the board in this case accepted the untimely brief, the proper remedy to protect the employer’s right to due process is to permit the employer to file a response brief. When it is uncertain from the face of the award whether the board has considered certain evidence, the proper remedy is to remand to the board for further consideration. West Point Pepperell v. Payne, 151 Ga. App. 541 (260 SE2d 412) (1979). Likewise, this case is reversed with direction that it be remanded to the board for further consideration after permitting the employer the opportunity to submit its reply brief.

Judgment reversed with direction.

Birdsong, P. J., and Cooper, J., concur.

Swift, Currie, McGhee & Hiers, George L. Pope, Jr., Michael J. Hofrichter, for appellants.

Murphy, Murphy & Garner, Stephen E. Garner, for appellee.


author: Beasley, Judge.

text:
    A91A0861.
    YOW v. HUSSEY, GAY, BELL & DEYOUNG INTERNATIONAL, INC. et al.
    (412 SE2d 565)
   Beasley, Judge.

Yow sued for personal injuries sustained at a construction site when he stepped into an uncovered storm drain while running television cable for an employer uninvolved in the construction. He appeals the grant of summary judgment to defendant, consulting engineers (Hussey).

The parties stipulated below that Yow abandoned any claim of professional negligence against Hussey and that the only claim advanced is for common law or ordinary negligence. The issue is the liability, if any, of the architect/engineer for construction site safety. Resolution depends on the existence or lack thereof of a common law or statutory duty.

The evidence on summary judgment is construed most favorably for plaintiff/respondent Yow. In January 1985, Southern Motors of Savannah, Inc. (Southern Motors) entered into a written contract with Hussey for the firm to provide architectural and engineering services for construction of a new car dealership in Savannah consisting of two showrooms, administration offices, parts department, service department, and body shop. Hussey was also to provide design of paving for on-site parking, fencing requirements for storage vehicles and for zoning buffers, engineering services for utilities to the site and buildings, and storm drainage and sanitation/sewer as required. The contract was executed under the American Institute of Architects’ “Abbreviated Form of Agreement Between Owner and Architect, For Construction Projects of Limited Scope, 1978 Edition.”

Carson was engaged by Southern Motors as the general contractor. The agreement was executed on AIA’s “Standard Form of Agreement Between Owner and Contractor, where the basis of payment is a Stipulated Sum, 1977 Edition.” Carson subcontracted with Clay-Ric to oversee the construction of a storm drain system. Clay-Ric subcontracted with Dyches to render certain site preparation services.

In June 1987 representatives from Hussey, Carson, Clay-Ric, Dyches and the City of Savannah met at the construction site at an existing uncovered drainage inlet box, the one into which Yow later stepped, to investigate either placement of a new cover or replacement of a former grate on the box. The grate that had previously covered the inlet box was removed by Dyches incident to construction activities. Hussey and a City of Savannah compliance officer instructed Clay-Ric and Dyches to replace the grate or cover. The storm drain inlet was uncovered a month later when Yow stepped into it.

Yow filed the present amended recast action against Hussey, Clay-Ric and Dyches alleging that after the storm drain system was completed by Clay-Ric, the defendants were aware that the storm drain cover that had been removed would have to be replaced with a new cover that would meet city code requirements; that despite the fact defendants were aware in June that the storm sewer inlet lacked a cover, they failed and refused to replace one because of their inability to determine who would actually pay its cost; that at least 30 days prior to plaintiff’s injury, defendants knew the cover needed replacing; and that because of defendants’ negligence and/or wilful and wanton misconduct, they failed to replace the cover or warn plaintiff of the existence of a dangerous condition prior to his injury. Plaintiff’s stated theory of recovery against Hussey was that it “owed a common law duty not to permit the continuation of the existence of an inherently dangerous condition which constituted a nuisance.”

The question of an architect/engineer’s negligence liability, other than professional negligence, for injuries and/or death at the construction site appears to be undecided by Georgia appellate courts. Other jurisdictions have concluded that such negligence liability is dependent upon the architect/engineer’s contractual rights and responsibilities in regard to supervision of the construction site. See generally 59 ALR3d 869, 25 AmJur2d 688. Liability for the negligent performance of supervisory duties is separate and distinct from any liability for negligently performing the actual building or design. In the absence of the contractual right or responsibility to supervise and control the construction work including site safety, the architect/engineer should incur no liability for injuries to workmen proximately caused by ordinary negligence at the site. See, e.g., Young v. Eastern Engineering & Elevator Co., 554 A2d 77 (Pa. 1989); Swartz v. Ford, Bacon & Davis Constr. Corp., 469 S2d 232 (Fla. 1985); Welch v. Grant Dev. Co., 466 NYS2d 112, 115 (1983); Waggoner v. W & W Steel Co., 657 P2d 147 (Okla. 1982); Vorndran v. Wright, 367 S2d 1070 (Fla. 1979); Kelly v. Northwest Community Hosp., 384 NE2d 102 (Ill. 1978); Wheeler & Lewis v. Slifer, 577 P2d 1092 (Colo. 1978). The logic behind such a rule is that one should not be held responsible for that over which one does not exercise any control. Such reasoning has been applied by the Georgia Supreme Court in regard to architects and builders in an earlier assessment of the state and federal constitutionality of former Code Ann. § 3-1006, now OCGA § 9-3-51, in Mullis v. Southern Co. Svcs., 250 Ga. 90, 91 (3) (296 SE2d 579) (1982).

If there is contractual responsibility for supervision of the construction site, jurisdictions are divided on the imposition of architect/ engineer liability for injuries sustained by workmen because of unsafe site conditions. One view imposes liability when the architect/engineer has extensive supervisory duties including the right to stop work. The other view requires a clear assumption of duty by the architect/ engineer in order to impose liability. See Welch, supra at 113.

Hussey’s situation is more remote than that contemplated in much of the examined foreign case authority, as it does not involve a construction worker injured on the job but injury to a workman unrelated to the construction project. Nevertheless, the relevant inquiry as to liability in this context is the allocation of responsibility for construction site safety. The threshold determination is the scope of Hussey’s contractual obligations on the project.

The AIA contracts “General Conditions of the Contract for Construction,” which were a part of the agreement between Hussey and Southern, included the following provisions:

ARCHITECT

* * *

“§ 2.2.2 The Architect will visit the site at intervals appropriate to the stage of construction to familiarize himself generally with the progress and quality of the Work and to determine in general if the Work is proceeding in accordance with the Contract Documents. However, the Architect will not be required to make exhaustive or continuous on-site inspections to check the quality or quantity of the Work. On the basis of his on-site observations as an architect, he will keep the owner informed of the progress of the Work, and will endeavor to guard the owner against defects and deficiencies in the Work of the Contractor.

* * *

“§ 2.2.4 The Architect will not be responsible for and will not have control or charge of construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work, and he will not be responsible for the Contractor’s failure to carry out the Work in accordance with the Contract Documents. The Architect will not be responsible for or have control or charge over the acts or omissions of the Contractor, Subcontractors, or any of their agents or employees, or any other persons performing any of the Work.

CONTRACTOR

* * *

Supervision and Construction Procedures

“§ 4.3.1 The contractor shall supervise and direct the Work, using his best skill and attention. He shall be solely responsible for all construction means, methods, techniques, sequences and procedure and for coordinating all portions of the Work under the Contract.

“§ 4.3.2 The Contractor shall be responsible to the owner for the acts and omissions of his employees, Subcontractors and their agents and employees, and other persons performing any of the Work under a contract with the Contractor.

* * *

PROTECTION OF PERSONS AND PROPERTY

“10.1 Safety Precautions and Programs

“§ 10.1.1 The Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the Work.

“10.2 Safety of Persons and Property

“§ 10.2.1 The Contractor shall take all reasonable precautions for the safety of, and shall provide all reasonable protection to prevent damage, injury or loss to:

“.1 all employees on the Work and all other persons who may be affected thereby; . . .
“.3 other property at the site or adjacent thereto, including trees, shrubs, lawns, walks, pavements, roadways, structures and utilities not designated for removal, relocation or replacement in the course of construction.

“§ 10.2.3 The Contractor shall erect and maintain, as required by existing conditions and progress of the Work, all reasonable safeguards for safety and protection, including posting danger signs and other warnings against hazards, promulgating safety regulations and notifying owners and users of adjacent utilities.”

Decided November 1, 1991

Reconsideration denied November 19, 1991

Karsman, Brooks & Callaway, Stanley Karsman, Stanley E. Harris, Jr., for appellant.

Painter, Ratterree, Connolly & Bart, R. Clay Ratterree, Catherine N. Clutter, Kent, Rackett & Nelson, A. Martin Kent, R. Nathaniel Rackett III, Cail & Cail, Kenneth H. Cail, Bouhan, Williams & Levy, Frank W. Seiler, Peter D. Muller, Wiseman, Blackburn & Futrell, Miriam D. Lancaster, for appellees.

The “Agreement Between Owner and Architect” (abbreviated form) provided that “the Architect shall provide administration of the” construction contract. It also contained a provision (§ 1.4.4) which was substantially the same as § 2.2.2 of the General Conditions as quoted above.

The contract provisions, viewed in the context of the agreement as a whole, show that Hussey as architect/engineer did not expressly or impliedly have control over or assume any responsibility for construction site supervision or safety, including alerting construction workers and others affected by the construction of potential hazards at the site. Under this circumstance of a total absence of contractual responsibility for site supervision and safety, Hussey could not be held liable in tort for claims of common law simple negligence regarding site safety. Nor did knowledge raise a duty to assure that a cover was promptly placed on the box. Hussey did not occupy any position giving rise to the duty which Yow claims was unfulfilled. Summary judgment in favor of Hussey was demanded as a matter of law.

Judgment affirmed.

Carley, P. J., and Judge Arnold Shulman concur.


text:
    A91A1200.
    FISHER et al. v. MUZIK et al.
    (412 SE2d 548)
   Beasley, Judge.

After Robert Fisher was injured in a fall which occurred at a work site in Bibb County, he and his wife brought an action in that county for damages against James Muzik, project manager for the construction project. The complaint alleged that Muzik failed to provide safe working conditions which resulted in the injuries to Fisher. Muzik was alleged to be a non-resident of Georgia and was served pursuant to the Georgia Long Arm Statute, OCGA § 9-10-91 et seq., by a Florida deputy sheriff.

Muzik answered and moved to dismiss the complaint on the ground that he was not a nonresident but actually resided in Pike County and that venue was properly in that county and not in Bibb; that service under OCGA § 9-10-91 was improper; and, because Muzik was not.served under OCGA § 9-11-4 (e) (2), service was insufficient. Several months later, after discovery, Muzik moved to transfer the proceedings to Pike County because he was a resident of that county and venue was properly there. The issue of residency is generally for a jury. See, e.g., Sorrells v. Sorrells, 247 Ga. 9, 11 (3) (274 SE2d 314) (1981). The same is true of domicile. Worrell v. Worrell, 242 Ga. 44 (247 SE2d 847) (1978). In this case the question was submitted to the court, which found that Muzik was a resident of Pike County and granted the motion to transfer. The statute of limitation expired on May 31, 1990, just before the order was entered on June 5.

Six months after the transfer, during which time Muzik was not served as a resident, he moved to dismiss the complaint on the ground that there was no valid service because, as he was a resident, jurisdiction could not be obtained against him by service under the Long Arm Statute. The trial court agreed and dismissed the complaint. The Fishers appealed, assigning error in the transfer of the case to Pike County and also to the order dismissing their complaint.

The evidence considered by the Bibb County trial court was sufficient to sustain the finding that Muzik was a Pike County resident. See Sorrells, supra; Pugh v. Jones, 131 Ga. App. 600 (206 SE2d 650) (1974); Davis v. Holt, 105 Ga. App. 125, 129 (1) (123 SE2d 686) (1961) (comparing the legal terms “domicile,” “residence,” and “sojourn”) OCGA § 19-2-1 (a). Thereafter, there was no valid service on resident Muzik, so the Pike County court did not have to determine whether service beyond the statute of limitation was diligent under the circumstances. OCGA § 9-11-4 (c); Watters v. Classon, 193 Ga. App. 493 (1) (388 SE2d 397) (1989). The initial service under the Long Arm Statute was invalid because defendant was not a “nonresident” as defined in OCGA § 9-10-90. On the other hand, the Florida deputy sheriff could not serve a Georgia resident with a Georgia suit. OCGA § 9-11-4 (e) (2); Shahan v. Scott, 259 Ga. 172 (377 SE2d 859) (1989). So the provision in Rule T-13 of the Uniform Transfer Rules, that service need not be perfected a second time, is not applicable. See 251 Ga. 893, 895.

The Pike County court thereafter correctly dealt with the case from the perspective that Muzik was a Pike County resident. The rules of service must be strictly observed. See Bible v. Bible, 259 Ga. 418 (383 SE2d 108) (1989); Hudgins v. Bawtinhimer, 196 Ga. App. 386, 389 (3) (395 SE2d 909) (1990). The fact that defendant may otherwise obtain knowledge of the filing of the action against him does not obviate the necessity for meeting the statutory requirements. Bible, supra at 419; Acord v. Maynard, 198 Ga. App. 296, 297 (401 SE2d 315) (1991).

Decided October 23, 1991

Reconsideration denied November 19, 1991

Westmoreland, Patterson & Moseley, Daryl J. Morton, Thomas H. Hinson II, for appellants.

Varner, Stephens, Wingfield & Humphries, J. D. Humphries III, T. Matthew Mashburn, Webb, Carlock, Copeland, Semler & Stair, Kent T. Stair, R. Michael Ethridge, Jones, Cork & Miller, Thomas W. Joyce, Thomas C. Alexander, for appellees.

The Pike County court did not have jurisdiction over Muzik, and dismissal of the suit was required by law.

Judgment affirmed.

Carley, P. J., and Judge Arnold Shulman concur.


text:
    A91A1326.
    JACKSON v. DEPARTMENT OF TRANSPORTATION et al.
    (412 SE2d 847)
   Beasley, Judge.

Plaintiff Jackson appeals the grant of summary judgment in favor of defendants Department of Transportation and its employee Jones, a maintenance engineer. In Jackson’s action against DOT and its employees, he alleged that DOT was responsible for maintaining the state highway system; that Georgia Highway 144 in Camden County was a public road designated by DOT as part of the state highway system; that he was injured while driving on State Route 1850 (same road); and his permanent injuries were caused by defendants’ negligent repair and maintenance of the road and the defective design and condition of the road. DOT and Jones filed answers in which they denied that the road in question was part of the state highway system and further asserted that Jackson had failed to attach an affidavit to the complaint as required by OCGA § 9-11-9.1, relating to actions for malpractice.

The Supreme Court has recently pronounced as to summary judgment: “A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). The court held: “[S]ummary judgment is appropriate when the court, viewing all the facts and reasonable inferences from those facts in a light most favorable to the nonmoving party, concludes that the evidence does not create a triable issue as to each essential element of the case.” Id. at 495.

Jackson sought recovery based upon OCGA § 32-2-6 which provides that DOT is responsible for damages awarded against any county where the cause of action accrues on a public road designated by DOT as part of the state highway system. See DOT v. Land, 181 Ga. App. 94 (351 SE2d 470) (1986), affirmed in part and reversed in part, 257 Ga. 657 (362 SE2d 372) (1987).

Other Code sections also bear on the issues. OCGA § 32-4-1 (1) defines “state highway system.” OCGA § 32-2-2 requires DOT to “plan, designate, improve, manage, control, construct, and maintain a state highway system” and to “have control of and responsibility for all construction, maintenance, or any other work upon the state highway system.” DOT is forbidden by law from maintaining any public road not on the state highway system. Any DOT contract with a political subdivision for construction of a public road, not then, nor to become, part of the state highway system shall not relieve the political subdivision of the responsibility for maintaining the road. OCGA § 32-2-61 (e). The county, and not DOT, has the same responsibilities as does DOT for a state road regarding the construction, maintenance and all other work related to a county road. OCGA § 32-4-41 (1). DOT is liable only if the instant road is part of the state highway system.

DOT produced the affidavit of its Chief of Cartography that Route S 1850 (also known as county road 144) has been designated as part of the County Road System since the State Highway Department (now DOT) began keeping records in 1938. See OCGA § 32-4-2 (a). This shifted the burden to Jackson who attempted to refute this proof with the accident report which tended to show that the road was a state route. However, the state patrolman who prepared the report by affidavit declared that he had made a mistake and the road indeed was a county one. This would not fulfill Jackson’s burden as the nonmoving party to show a genuine issue of material fact. Neither would a 1961 resolution by Camden County that it would “at its own cost and expense, maintain the project in a manner satisfactory to the Authority and State Highway Department, and will make ample provision each year for its maintenance.” None of this overcomes the statutory directives and could not impose liability upon DOT for maintenance or repair. Liability is fixed by the statute.

Jackson has referred to testimony from depositions to sustain his contention that there is a factual issue with respect to the road’s status. Jackson as appellant has the burden of showing error by record. However, these depositions were not included in the original record and cannot be used to substantiate Jackson’s arguments. See Brown v. Frachiseur, 247 Ga. 463, 464 (277 SE2d 16) (1981). As in Brown, in order for this court to ascertain whether the grant of summary judgment was erroneous, appellant must include in the record those items which will enable us to determine whether a genuine issue of material fact remains. In the absence of this information there is no basis for reversal.

Since there is no negligence attributed to the individual defendant Jones other than would be attributable to DOT, summary judgment in favor of DOT and Jones appears authorized. Nevertheless, Jackson contends that even if there is no liability for maintenance and repair an issue as to defective design remains. Defendants counter with Jackson’s failure to file an affidavit contemporaneously with the complaint and their raising such issue in their initial responsive pleadings. OCGA § 9-11-9.1 (e). Jackson replies that his complaint was not for “professional malpractice” and thus the Code section is not applicable.

Designing roads requires “engineering services” which have been described as the performance of professional services within the purview of OCGA § 9-11-9.1 by the Supreme Court. Kneip v. Southern Engineering Co., 260 Ga. 409, 410 (395 SE2d 809) (1990). Although Jackson argues that his complaint is not based upon professional malpractice, despite attempting to amend that complaint by adding an affidavit, the decision does not rest upon mere nomenclature used in the pleadings. Chan v. W-East Trading Corp., 199 Ga. App. 76, 77 (4) (403 SE2d 840) (1991); Cotton v. Federal Land Bank of Columbia, 246 Ga. 188, 191 (269 SE2d 422) (1980). “[T]he statute is not restricted to malpractice actions brought by plaintiffs who were clients of the professional, but extends to any litigant who alleges harm as a result of the defendant professional’s negligent performance of professional services.” McLendon & Cox v. Roberts, 197 Ga. App. 478 (398 SE2d 579) (1990). Jordan, Jones & Goulding v. Wilson, 197 Ga. App. 354 (398 SE2d 385) (1990).

“[E]ven in cases of f clear and palpable’ professional negligence it is still necessary that the plaintiff file an expert affidavit contemporaneously with the filing of the complaint.” Housing Auth. of Savannah v. Greene, 259 Ga. 435, 436 (383 SE2d 867) (1989). If the highway were defectively designed it was the result of professional negligence. In such instance, the failure to contemporaneously file an expert affidavit with the complaint was fatal. McLendon & Cox, supra at 479.

Decided October 28, 1991

Reconsideration denied November 19, 1991

Sutton & Slocomb, Berrien L. Sutton, Hallman & Associates, Ronald W. Hallman, for appellant.

Michael J. Bowers, Attorney General, Beverly B. Martin, George P. Shingler, Senior Assistant Attorneys General, Susan J. Levy, Staff Attorney, Dickey, Whelchel, Brown & Readdick, Terry L. Readdick, for appellees.

Summary judgment for the defendants was authorized.

Judgment affirmed.

Carley, P. J., and Judge Arnold Shulman concur.

       This is not to say that the entry by a highway patrolman on an accident report as to the road in question being part of the state system would not have evidentiary value vis-a-vis the testimony by the state official in charge of cartography that the road was not under state control.


author: Carley, Presiding Judge.

text:
    A91A1373.
    WILLIAMS v. THE STATE.
    (412 SE2d 586)
   Carley, Presiding Judge.

Appellant was tried before a jury and found guilty of aggravated assault. He appeals from the judgment of conviction and sentence entered by the trial court on the jury’s guilty verdict.

1. The trial court’s failure to grant a mistrial on the ground that the State had impermissibly placed appellant’s character into evidence is enumerated as error.

That appellant had previously killed a man was first introduced into the trial by appellant’s own testimony on direct examination. This direct testimony by appellant certainly cannot be characterized as “inadvertent statements regarding his own good conduct.” (Emphasis supplied.) Jones v. State, 257 Ga. 753, 758 (1) (363 SE2d 529) (1988). To the contrary, it was an opening of the door for the State to pursue that topic. “Where the defendant testifies and admits prior criminal conduct, he has not placed his character ‘in issue’ within the meaning of OCGA § 24-9-20 (b). Rather, he has raised an issue which may be fully explored by the State on cross-examination. [Cit.]” Jones v. State, supra at 759 (1b).

Moreover, the record shows that, although the State did attempt to pursue this topic, it was never successful in its efforts to do so. During appellant’s cross-examination, the trial court denied a motion for mistrial, but sustained a relevancy objection when the State attempted to question him about the incident. When, in rebuttal, the State attempted to tender a document identified only as an “indictment,” the trial court denied a motion for mistrial, but sustained an objection to its admissibility as impeaching evidence. Accordingly, the only evidence that appellant had previously killed a man was appellant’s own testimony. Clearly, appellant cannot complain that the State was never successful in its efforts to cross the threshold of the door that he himself opened.

Decided November 5, 1991

Reconsideration denied November 19, 1991.

Robert E. Surrency, for appellant.

Joseph H. Briley, District Attorney, James L. Cline, Jr., Assistant District Attorney, for appellee.

2. The fact that the victim may have threatened a witness for the State should he not testify truthfully obviously is not detrimental to appellant’s defense. Compare Simmons v. State, 155 Ga. App. 716 (1) (272 SE2d 506) (1980) (discussing intimidation of a defense witness). If anything, this reflects adversely upon the credibility of the victim and the State’s witness and the trial court correctly denied appellant’s motion for a mistrial and allowed appellant to cross-examine the State’s witness about any threat that may have been made by the victim.

3. A review of the record shows that sufficient evidence was adduced to authorize a rational trior of fact to find proof of appellant’s guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Accordingly, there is no merit in appellant’s enumeration of the general grounds.

Judgment affirmed.

Beasley, J., and Judge Arnold Shulman concur.


author: Carley, Presiding Judge. Beasley, Judge,

text:
    A91A1102.
    FUGATE v. GAYFERS MERCANTILE DEPARTMENT STORES, INC.
    (412 SE2d 617)
   Carley, Presiding Judge.

Appellant-plaintiff brought suit for the injuries that she sustained when she fell in appellee-defendant’s store. Appellee answered and, after discovery, moved for summary judgment. The trial court granted this motion and appellant appeals.

In her complaint, appellant had alleged “that her fall was occasioned by the highly waxed condition of [appellee’s] floor.” Compare Alterman Foods v. Ligon, 246 Ga. 620, 624 (272 SE2d 327) (1980) (wherein the plaintiff did not allege the existence of a specific condition, but “averred only that the ‘slippery and dangerous floor maintained by defendant’ was the proximate cause of her fall”). In an effort to pierce this allegation, appellee produced the affidavit of an employee who witnessed the fall. This employee stated in her affidavit “[tjhat immediately before the fall, she had just walked across the area [in which appellant fell, . . . and that the floor was free of any defect, abnormal or hazardous condition at that time.” (Emphasis supplied.) If unrefuted, this affidavit would demonstrate that, contrary to the allegations of appellant’s complaint, there was no highly waxed condition at the location where appellant fell. However, in opposition to appellee’s motion, appellant herself testified that the floor was in fact not only “very shiny,” but was also “very slippery.” Construing this most favorably for appellant, it constitutes a refutation of the testimony of appellee’s employee and an assertion by appellant that the highly waxed floor alleged in her complaint was evidenced by the “very slippery” and “very shiny” floor upon which she actually fell. Accordingly, a genuine issue of material fact remains as to the highly waxed condition of appellee’s floor.

Appellee urges that, even if there is evidence that its floor was highly waxed, there is no evidence that its floor was over waxed or had otherwise been negligently waxed. It is clear that, at trial, appellant “must, at a minimum, show, that [appellee] was negligent either in the materials [it] used in treating the floor or in the application of them.” Alterman Foods, v. Ligon, supra at 624. On summary judgment, however, the evidentiary burden was on appellee and not upon appellant. Appellee attempted to meet that burden by demonstrating that its floor was not highly waxed, rather than by demonstrating that its floor, even if highly waxed, had not been negligently over waxed or otherwise negligently waxed. Compare Alterman Foods v. Ligon, supra at 625 (wherein the defendant-movant had “introduced evidence that the floor had been waxed [with a non-slip wax] two and one-half days prior to plaintiff’s fall and had been trafficked during that time by other customers”). If appellee’s floor had never even been highly waxed, the question of whether the floor had been negligently over waxed or otherwise negligently waxed would be obviated. However, appellant met her burden of countering appellee’s evidence by her showing that a genuine issue of material fact remained as to the highly waxed and slippery condition of the floor. Appellant had no further obligation to demonstrate that a genuine issue of material fact remained as to whether the highly waxed floor was negligently over waxed or otherwise negligently waxed unless and until appellee had met its initial burden as to that issue of its negligence.

Appellee, “unlike the defendant in Alterman, made no showing that the wax applied to the floor was of a non-slip variety [or any other showing regarding the waxing of its floor]. While the evidence of record in favor of [appellant] would undoubtedly be insufficient to survive a motion for directed verdict at trial, in a motion for summary judgment the burden is always on the movant, even as to matters on which the respondent would have the burden of proof at trial. [Cits.]” S. S. Kresge Co. v. Blount, 162 Ga. App. 404, 405 (291 SE2d 728) (1982). “In the case sub judice, [appellee] has failed to make any showing that it was not negligent in the materials used in treating the floor or in the application thereof. . . . Compare the . .'. cases in which the respective defendants presented evidence they were not negligent in the choice of materials used in treating the floors or the application of them, and the respective plaintiffs did not produce any evidence as to the quality of the material or methods used by the respective defendants in maintaining the floor. [Cits.]” Perkins v. Peachtree Doors, 196 Ga. App. 878, 879 (397 SE2d 54) (1990). “As [appellee] has not negated [appellant’s] allegations of negligence, the trial court [erred] in [granting] its motion for summary judgment.” S. S. Kresge Co. v. Blount, supra at 405.

Judgment reversed.

McMuhay, P. J., Pope and Cooper, JJ. and Judge Arnold Shulman concur. Sognier, C. J., Birdsong, P. J., Beasley and Andrews, JJ., dissent.

Beasley, Judge,

dissenting.

I cannot materially distinguish Alterman Foods v. Ligon, 246 Ga. 620 (272 SE2d 327) (1980). Plaintiff’s allegation in this case is not much more than a rearrangement of the operative words, conveying the same idea. The fact that a floor is “highly waxed” does not incorporate the notion that it is negligently maintained. Plaintiff’s testimony that the floor was “very shiny” and “very slippery” does not import a charge of negligence either. It does not pierce the defendant’s evidence that “the floor was free of any defect, abnormal or hazardous condition.”

In Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991), the Supreme Court pointed out that “[a] defendant who will not bear the burden of proof at trial need not affirmatively disprove the non-moving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the [evidence] that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).” Id. at 491. Reiterating this, the Court stated that “at summary judgment a party who will not bear the burden of proof at trial need not conclusively prove the opposite of each element of the non-moving party’s case.” Id. at 495.

Decided November 19, 1991.

Patrick J. Araguel, Jr. & Associates, Patrick J. Araguel, Jr., Deborah B. DePalo, for appellant.

Self, Mullins & Robinson, Ronald W. Self, for appellee.

To prove her case, plaintiff must prove among other things that defendant owed a duty to her and that it failed to conform to the standard of care required. Sutter v. Hutchings, 254 Ga. 194, 196 (327 SE2d 716) (1985). Defendant proprietor’s duty to invitee plaintiff was to “exercise ordinary care in keeping the premises . . . safe.” OCGA § 51-3-1. Plaintiff has produced no evidence which counters defendant’s evidence that “the floor was free of any defect, abnormal or hazardous condition.”

The trial court, viewing all the facts and reasonable inferences in a light most favorable to the non-moving party, correctly concluded that the evidence did not create a triable issue as to one of the elements of tort, for there was no issue as to a breach of defendant’s duty.

I am authorized to state that Chief Judge Sognier, Presiding Judge Birdsong, and Judge Andrews join in this dissent.


text:
    A91A1310.
    HILL v. ALL SEASONS FLORIST, INC.
    (412 SE2d 619)
   Carley, Presiding Judge.

Appellant-plaintiff brought suit against appellee-defendant, seeking to recover for personal injuries allegedly sustained in a vehicular collision. After appellant had filed and then dismissed a motion for a default judgment as to appellee’s liability, appellee moved for summary judgment in its favor. The trial court not only granted summary judgment in favor of appellee, it also awarded appellee OCGA § 9-15-14 attorney’s fees based upon its finding that the motion for default judgment that appellant had filed and dismissed was frivolous. Appellant appeals from this order of the trial court.

1. Urging that genuine issues of material fact remain as to the viability of his tort claim, appellant enumerates as error the grant of summary judgment in favor of appellee.

“Under the [former, but herein applicable,] provisions of the Georgia Motor Vehicle Accident Reparations Act ([former] OCGA Ch. 33-34 ([cit.])) one[, such as appellee, who was] insured in conformity with its requirements [was] ‘exempt from liability to pay damages for noneconomic loss unless the injury [was] a serious injury, as defined in paragraph (13) of [former] Code Section 33-34-2 ([cit.]).’ [Former] OCGA § 33-34-9 (a) ([cit.]). Therefore, a ‘serious injury’ as defined in [former] OCGA § 33-34-2 (13) ([cit.]) constitute^] the so-called ‘threshold’ requirement which must [have been] met in order [for appellant] to recover for pain and suffering, i.e., non-economic loss. [Cit.] The sole issue addressed on the motion for summary judgment was whether [appellant] met this prerequisite.” Sealy v. Western Broadcasting of Columbus, 168 Ga. App. 493 (309 SE2d 633) (1983). “ ‘Serious injury’ mean[t] an accidental bodily injury which resulted in death, a fractured bone, permanent disfigurement, dismemberment, permanent loss of a bodily function, permanent partial or total loss of sight or hearing, injury resulting in reasonably incurred medical expenses exceeding $500.00, or injury resulting in disability for not less than ten consecutive days.” (Emphasis supplied.) Former OCGA § 33-34-2 (13).

Several hours after the collision, appellant had been diagnosed as having a fractured ankle. However, the treating physician had noted that it was an “old fracture,” and testified by way of deposition that “he could not tell how far in the past it had occurred but . . . [he] didn’t feel it occurred within that twenty-four hour period at least.” Based upon this evidence, appellee moved for summary judgment on the ground that there was no causal relationship between the vehicular collision and appellant’s fractured ankle. In opposition, appellant produced no expert testimony. In his affidavit, however, appellant stated the following: “My left ankle was injured in [the] collision. Prior to [the] collision there was no soreness or swelling in [the] ankle. I had full use of [the] ankle with no limitations on my physical activities; walking, running, etc. Within minutes of said collision, I noticed pain and swelling in [the] ankle and later that day a doctor . . . diagnosed a fracture of my ankle and a cast was applied. ... As a direct result of injuries received in the collision . . . , I was totally disabled [for] 51 days.” Appellant also testified that he had been unable to work during this 51-day period.

Since it was undisputed that appellant had suffered a fracture, there was no “medical question” as to diagnosis or prognosis and the only issue was whether that fracture had occurred as the result of the collision. Compare Eberhart v. Morris Brown College, 181 Ga. App. 516, 517 (1) (352 SE2d 832) (1987) (prognosis of an injury is a medical question). As the movant for summary judgment, “the burden was on [appellee] to establish as a matter of law that the fracture resulted [not] from the injury sustained on [the date of the collision, but rather] on [a prior date].” Sealy v. Western Broadcasting of Columbus, supra at 495. Since the issue of when the fracture had occurred was not a medical question, appellee could not meet its burden as the movant for summary judgment by introducing medical opinion testimony. “That portion of the medical testimony which served to establish [the absence of] a causal link between the automobile collision and the [fracture] was expert opinion testimony as opposed to testimony as to a fact. [A] jury is always free to reject expert opinion testimony and substitute their own knowledge and experience. [Cit.]” Hughes v. Newell, 152 Ga. App. 618, 621 (2) (263 SE2d 505) (1979). “Even if [the treating physician] had testified unequivocally that [the fracture was neither] the result of [the] collision—[noi was there even a] collision-caused aggravation of a prior [fracture]—[a] jury would not be bound by that testimony. [Cit.]” Pinkston v. Hagin, 157 Ga. App. 2, 3-4 (2) (276 SE2d 67) (1981).

Moreover, even if appellee had met its initial burden, appellant’s affidavit would be sufficient to demonstrate that a genuine issue of material fact remained as to whether his fracture was the result of the collision. Appellant “was certainly in a position to have personal knowledge [whether he had injured his ankle in the collision].” Cherokee County Hosp. Auth. v. Beaver, 179 Ga. App. 200, 204 (2) (345 SE2d 904) (1986). “A lay plaintiff is ‘ “competent to testify to his feelings, pains and symptoms, as well as to all of the characteristics of the injury, external and internal. . . .” ’ (Cit.)” Eberhart v. Morris Brown College, supra at 518-519 (1). “Inasmuch as the factual contention is not one capable of proof only by expert testimony, it [would] not [be] necessary for [appellant] to produce expert testimony at trial. [Cits.]” (Emphasis in original.) BSF, Inc. v. Cason, 175 Ga. App. 271, 273 (2) (333 SE2d 154) (1985). It follows that appellant was not required to produce expert testimony regarding the date of his fracture in this summary judgment proceeding. Savannah Valley Prod. Credit Assn. v. Cheek, 248 Ga. 745 (285 SE2d 689) (1982). “Although the physician tended to attribute the fracture] to [an occurrence preceding] the collision, [a] jury [would be] free to reject this testimony and find from [appellant’s] recital of [the] medical history [of his ankle] that [his injury was not] pre-existing. [Cits.]” Loyd v. Henry, 174 Ga. App. 49-50 (2) (329 SE2d 195) (1985). Moreover, even if appellant’s testimony were insufficient to show that he had suffered a fracture in the collision, it was certainly sufficient to create a genuine issue of material fact as to whether he had sustained an “injury” in the collision “resulting in disability for not less than ten consecutive days.” Former OCGA § 33-34-2 (13).

“On the record before us, it is for the jury to determine whether more credit is to be given to the [treating physician] than to [appellant]. ‘ “Where a question of credibility arises as to a material issue, summary judgment should not be granted. (Cits.)” (Cits.)’ [Cit.]” Cherokee County Hosp. Auth. v. Beaver, supra at 205 (2). It follows that the trial court erred in granting summary judgment in favor of appellee.

Decided November 19, 1991.

James W. Lewis, for appellant.

Mozley, Finlayson & Loggins, R. Ann Grier, Hirsch Friedman & Associates, Hirsch Friedman, for appellee.

2. The trial court’s grant of appellee’s motion for OCGA § 9-15-14 attorney’s fees is enumerated as error.

As noted, the trial court awarded OCGA § 9-15-14 attorney’s fees to appellee based upon a motion for default judgment as to liability which appellant had filed in the action and then dismissed. Appellant’s motion for default judgment had been based upon an admitted mistake made by appellee’s counsel in connection with the filing of appellee’s answer. Although appellant cited no controlling authority showing that the mistake made by appellee’s counsel authorized the grant of default judgment, appellee likewise cited no controlling authority showing that the mistake of its counsel would not authorize the grant of default judgment. Both appellant and appellee were relying upon general authority in support and defense of the motion and, even assuming that the authority upon which appellee relied was the more persuasive, it cannot be said that the authority upon which appellant relied was entirely unpersuasive.

Under these circumstances, there would be no evidentiary basis for a finding that the motion for default judgment was “substantially frivolous” so as to authorize an award of attorney’s fees under OCGA § 9-15-14 (b). To hold otherwise would violate the spirit, if not the letter, of OCGA § 9-15-14 (c): “No attorney or party shall be assessed attorney’s fees as to any claim or defense which the court determines was asserted by said attorney or party in a good faith attempt to establish a new theory of law in Georgia if such new theory of law is based on some recognized precedential or persuasive authority.” Accordingly, the award of attorney’s fees must be reversed.

Judgments reversed.

Beasley, J., and Judge Arnold Shulman concur.