text:
    A97A1522.
    CALDWELL v. THE STATE.
    (495 SE2d 308)
   Beasley, Judge.

Anna L. Caldwell was convicted of driving under the influence for having in her blood an alcohol concentration of .10 grams or more within three hours after driving on October 23, 1995. OCGA § 40-6-391 (a) (4), redesignated OCGA § 40-6-391 (a) (5) by Ga. L. 1996, p. 1413. The sole enumeration of error relates to the admission in evidence of the chemical test results. Caldwell maintains the prosecution failed to lay the foundation required under OCGA § 40-6-392 (a) (1) (A) to establish that the Intoxilyzer 5000 used to test her breath was operating properly in that the attempted foundation was based on hearsay which violated her constitutional rights to confront witnesses.

No certificate of compliance in this regard, in the form provided by OCGA § 40-6-392 (f) in accordance with subsection (a) (1), was introduced. “ ‘Certificates’ are not the exclusive means of laying the foundation to admit alcohol test results.” Bazemore v. State, 225 Ga. App. 741, 745 (2) (484 SE2d 673) (1997) (chemist who operated gas chromatograph established integrity of device). Although by law certificates are self-authenticating and satisfy the requirement of proof that the intoximeter operated properly, proof of this fact may thus also be established by other evidence. Id. at 744. Compare Hobbs v. State, 224 Ga. App. 314 (2) (480 SE2d 330) (1997); Cullen v. State, 223 Ga. App. 356, 357 (2) (477 SE2d 620) (1996); State v. Kampplain, 223 Ga. App. 16 (477 SE2d 143) (1996); and State v. Hunter, 221 Ga. App. 837 (1) (473 SE2d 192) (1996). Although Kampplain left this issue open, supra at 18, Bazemore resolved it.

State Trooper Tackett’s job as area supervisor is to conduct periodic inspections of Intoxilyzer 5000s and to issue certificates pursuant to OCGA § 40-6-392 (f). She did not conduct an inspection of or see the particular machine used for Caldwell, but she was permitted to testify based on certain documents printed by the machine during its most recent inspection by State Trooper Webb, who was unavailable to testify.

The recent decision in Brown v. State, 268 Ga. 76 (485 SE2d 486) (1997), held that a certificate issued pursuant to OCGA § 40-6-392 (f) may be admitted upon proper foundation under the business records exception to the hearsay rule without infringing on a defendant’s rights under the confrontation clauses of the Federal and State constitutions. OCGA § 40-6-392 (f) specifies that the statutorily-worded certificate which documents that the breath-testing instrument has passed inspection “shall, notwithstanding any other provision of law, be self-authenticating, shall be admissible in any court of law, and shall satisfy the pertinent requirements of paragraph (1) of subsection (a) of this Code section and subparagraph (g) (2) (F) of Code Section 40-5-67.1.” See Brown, supra; Kampplain, supra, 223 Ga. App. at 18-19. That is the starting point of a fact analysis here, as we consider a substitute.

Based on a number of testing printouts produced by the machine during its most recent quarterly inspection, Trooper Tackett gave her opinion that a certificate had been properly issued by Trooper Webb since the machine had all of its parts connected and was in good working order. The printouts are not hearsay but rather the mechanically-generated reports automatically created by the machine. They do not constitute out-of-court statements by any person or “the conclusion of a third party not before the court,” as was the impediment in Miller v. State, 266 Ga. 850, 854 (3) (472 SE2d 74) (1996). Even if they did constitute hearsay, they fell within the business record exception to the hearsay rule, as does the statutory certificate based on them. Brown, supra. Caldwell was not denied any right to cross-examine the machine about the printouts it produced. She did thoroughly cross-examine Trooper Tackett, who interpreted the printouts and described the tests which they reported.

Trooper Tackett described the certification process and testified that the acetone interference detection test on the machine is conducted in the first and third quarter checks each year. The diagnostic test is done each quarter, with the additional mouth alcohol test the second and fourth quarters, and the radio interference test annually. The frequency of all these tests is in accordance with the rules of the Division of Forensic Sciences and the manufacturer’s suggestion. Records are maintained of the inspections and resulting certificates by both the agencies involved and by the inspectors such as Troopers Tackett and Webb.

The inspection conducted by Trooper Webb had been on October 4, during the fourth quarter of the year, so a separate acetone check was not included in the printouts reviewed by Trooper Tackett. She could not testify expressly that an acetone check had been conducted on the machine on another occasion, although her testimony supports the inference that inspection of the Intoxilyzer is an ongoing and cumulative process.

Paragraph (1) (A) of subsection (a) of OCGA § 40-6-392 states that the machine on which the accused’s bodily substance was tested must be one “which was operated with all its electronic and operating components prescribed by its manufacturer properly attached and in good working order.” It further designates the Division of Forensic Sciences of the Georgia Bureau of Investigation as the agency which “shall approve satisfactory techniques or methods ... to issue permits, along with requirements for properly operating and maintaining any testing instruments, and to issue certificates certifying that instruments have met those requirements. . . .”

Caldwell urges that the intoximeter test results, showing that when tested soon after driving she registered .139 and .121, were inadmissible because the trooper who testified about the testing of the machine did not know whether the acetone check had ever been conducted on the machine. Caldwell would change the statutory law by requiring more evidence than is required by the legislature to ensure intoximeter test results are valid.

Had there been any acetone interference, the filters would detect that and the printout would show that the “internal standards” part of the machine’s diagnostic test “failed.” The printout showed that the machine “passed” the internal standards. The twice yearly separate acetone interference detection test is a check on acetone in addition to the diagnostic test’s detection of acetone or other interfering substances. Consequently, the witness was able to testify, as she did, that the machine was operating with all of its components attached and in good working order, as required by OCGA § 40-6-392 (a) (1) (A). It was not necessary for her to know or to testify that the secondary acetone test had been satisfactorily conducted the previous quarter.

Thus, there was not a missing element in the foundation needed for admission of the results of the test taken by Caldwell. Were it otherwise, then all four quarterly certificates for a year, ending with the certificate showing machine testing close in time to the accused’s test, would be a prerequisite for admission of the accused’s test results. This would be so because only all four sequential certificates would show that not only the diagnostic test but also the acetone test, the mouth alcohol test, and the radio test were conducted in that year.

The law does not require that. It provides that “the certificate . . . shall satisfy the pertinent requirements of paragraph (1) of subsection (a) of this Code section.” OCGA § 40-6-392 (f). It refers expressly to the certificate that is prepared and signed “each time” the instrument is inspected. Id. There is no requirement that, in addition, the State prove that the periodic tests not done in connection with the certification at issue were also done at some time. The law leaves the techniques and methods for machine testing up to the Division of Forensic Sciences. The Division does not require a separate acetone interference test, or for that matter a separate mouth alcohol or radio interference test, to be conducted “[e]ach time an approved breath-testing instrument is inspected.” OCGA § 40-6-392 (f). Yet a single certificate, standing on its own, is sufficient to assure the machine was operating properly. That being the case, the testimony establishing in detail the same thing the certificate would have summarily shown, in shorthand fashion, is not deficient.

The evidence was properly admitted, the State proved that the machine was operating in accordance with OCGA § 40-6-392 (a) (1) (A) when Caldwell was tested, and it further proved that Caldwell “did have an alcohol concentration of 0.10 grams or more at a time within three hours after driving. . . .” The judgment of conviction is affirmed.

Judgment affirmed.

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

McMurray, Presiding Judge,

dissenting.

In my view the prosécution failed to lay the foundation required under OCGA § 40-6-392 (a) (1) (A) to establish that the Intoxilyzer 5000 with which defendant Caldwell’s breath was tested was operated with all its electronic and operating components prescribed by its manufacturer properly attached and in good working order. Therefore, I respectfully dissent.

No certificate of compliance, in the form provided by OCGA § 40-6-392 (f) and as required by OCGA § 40-6-392 (a), was introduced in this case. However, the absence of the statutory certificate is not dis-positive since this Court has held that a failure to provide a statutory certificate for the test machine does not always require exclusion of the test results. Bazemore v. State, 225 Ga. App. 741, 743 (2), 744 (484 SE2d 673).

The State attempted to provide the required foundation for admission of the breath test results via the testimony of State Trooper Tackett, whose job it is to conduct periodic inspections of Intoxilyzer 5000s and issue the certificates provided pursuant to OCGA § 40-6-392 (f). Yet, Trooper Tackett had never conducted an inspection of nor even seen the particular machine upon which defendant was tested. Instead, Trooper Tackett was permitted to testify based on certain documents printed by the machine during its most recent inspection by State Trooper Webb, who was not available to testify.

Trooper Tackett acknowledged that the procedures she had learned from both the machine’s manufacturer and the Georgia Bureau of Investigation required that a test of the machine’s ability to detect the presence of the interfering substance acetone was to be performed periodically, and apparently Trooper Tackett had been taught that this test was to be performed twice a year or during every other quarterly inspection of the machine. Specifically, the acetone test of the interferant detector was to be conducted on the first and third quarter of the year. The fact that the inspection conducted by Trooper Webb had been in October, during the fourth quarter of the year, explains why the results of an acetone check were not included in the printouts reviewed by Trooper Tackett. Thus, Trooper Tackett had no knowledge as to whether an acetone check had ever been conducted on the machine in question.

Even though the evidence elicited from Trooper Tackett concerning the administratively created inspection scheme is somewhat incomplete, it is apparent that the Intoxilyzer 5000 was not to be deemed to be working properly and appropriate for certification in the absence of proof that the machine had passed the acetone check test during one of the two preceding quarters. In the absence of such evidence, no proper foundation was laid for admission of the results of the test of defendant’s breath.

This does not mean that multiple certificates are necessary to create a foundation for the admission of an accused’s test results. However, one must infer from Trooper Tackett’s testimony that inspection of the intoxilyzers is an ongoing and cumulative process of a nature such that each quarterly inspection viewed in isolation does not provide complete assurance that a machine has all of its parts and is working properly. This is the case because under the mandated procedure some tests are performed during each quarterly inspection while others are conducted less frequently. For example, just as the acetone test is only required during the first and third quarter inspections, the mouth alcohol test is only required on the second and fourth quarters. A radio interference check is conducted annually. Thus, in order to convey an assurance that the machine had all of its parts connected and was in good working order, the certification must be based on more information than is provided solely by the tests conducted during each quarterly inspection.

Records are maintained of the inspections and resulting certificates by both the agencies involved and by the inspectors such as Troopers Tackett and Webb. If the certification process does not involve some consideration of these records of past inspections then it would be theoretically possible to continue indefinitely obtaining certification of a defective machine, for example a machine which could not pass the mouth alcohol test could still be certified in alternating quarters, that is for one half of each year.

Therefore, I do not suggest that the State prove something beyond the required certification or conduct any additional tests. Instead, I maintain that reasonable inferences should be drawn from the evidence adduced at trial concerning the inspection procedure mandated by the Division of Forensic Sciences of the Georgia Bureau of Investigation, but unfortunately not published by the Secretary of State in the Registry of the Rules & Regulations of the State of Georgia so that we might take judicial notice of this important information rather than relying on the sometimes fragmentary evidence introduced at trial. In order to give a reasonable meaning to the scheme described by Trooper Tackett, I would infer that before a certificate pursuant to OCGA § 40-6-392 (f) may be properly issued, the tests mandated for the current quarter must be successfully completed and the records relating to a particular machine must show successful completion of all mandated tests within an appropriate interval of time as well as the correction of any discovered defects in the machine.

An equal degree of proof must be required to establish the foundation for admission into evidence of the intoxilyzer results in the absence of the statutory certificate. To insure the accuracy of intoxilyzer results, the legislature has provided the foundation requirement contained in OCGA § 40-6-392 (a) (1) and charged the Division of Forensic Sciences with formulating appropriate procedures. The Division of Forensic Sciences has clearly rejected any notion of exclusive reliance on an intoxilyzer to inspect itself via various diagnostic programs by mandating tests which involve the introduction of various foreign substances to the machine. The mandated procedure requires that the acetone interferant test be performed semiannually. There is no evidence that the acetone test had ever been performed on the Intoxilyzer 5000 used to test defendant’s breath. Under these circumstances, no foundation was laid for admission into evidence of the results of the test of defendant’s breath on the Intoxilyzer 5000.

I am authorized to state that Judge Eldridge joins in this dissent.

Decided December 5, 1997

Reconsideration denied December 19, 1997

Thomas J. Thomas, for appellant.

Keith C. Martin, Solicitor, Evelyn Proctor, Assistant Solicitor, for appellee.


source: Caselaw Access Project

author:
Pope, Presiding Judge.
      Blackburn, Judge,

license: Public Domain

text:
    A97A1543.
    BAHADORI v. SIZZLER #1543 et al.
   Pope, Presiding Judge.

Resa Bahadori appeals from the decision of the State Board of Workers’ Compensation, requiring him to reimburse his former employer, Sizzler #1543 (Sizzler) and Sizzler’s insurer, National Union Fire Insurance Company (National Union), for workers’ compensation benefits paid to him. The basis for the award was that Bahadori improperly received workers’ compensation income benefits from Sizzler and National Union while he was a salaried employee of another company.

On July 22, 1989, while he was employed as a manager at Sizzler, Bahadori was shot in the shoulder area during an armed robbery of the restaurant. Sizzler paid Bahadori’s claim for workers’ compensation benefits. See OCGA § 34-9-221 (a). When Bahadori recovered, he moved to South Carolina and went to work for S & S Cafeterias. Sizzler stopped paying Bahadori benefits after he recovered and went to work for S & S.

Two years later, in 1992, Bahadori filed a claim for benefits against Sizzler, alleging that due to his injury at Sizzler, he was unable to work for S & S from September 8, 1992, through December 12, 1992. Sizzler did not controvert this claim and paid it in early 1993.

Later in 1993, Bahadori filed another claim for benefits based upon a change of condition, seeking temporary total disability benefits for September 1, 1993, through December 12, 1993, and medical expenses. Sizzler investigated this claim and determined that although it had paid Bahadori benefits for his earlier claim covering September through December 1992, Bahadori was actually working for S & S and receiving a salary during that time.

Thereafter, Sizzler requested a hearing to controvert Bahadori’s claim and to seek reimbursement of the income benefits paid from September through December 1992. Prior to the hearing, Bahadori withdrew his 1993 claim for resumption of income benefits, but his claim for medical expenses and Sizzler’s overpayment claim remained pending.

Following a hearing in the matter, the ALJ determined that Bahadori had been working for and receiving a sálary from S & S in 1992 when he made his claim for temporary total disability benefits against Sizzler and therefore had not been entitled to the 1992 benefits Sizzler paid him in early 1993. The appellate division upheld that determination, and on appeal to the superior court the matter was affirmed by operation of law. This discretionary appeal followed.

1. Bahadori contends that the State Board may adjudicate overpayment claims only in change in condition cases, and that the State Board thus lost jurisdiction to consider Sizzler’s overpayment claim after he withdrew his claim for income benefits based on a change in condition. We reject that contention.

The 1978 amendment to the Workers’ Compensation Act, currently codified at OCGA § 34-9-104 (d) (2), first authorized the State Board to adjudicate claims for reimbursement of overpaid benefits. Before that amendment, the State Board had no jurisdiction to consider such claims, and the only recourse an employer/insurer had was to file a civil action for money had and received. See Ga. Cas. &c. Co. v. Randall, 162 Ga. App. 532 (292 SE2d 118) (1982); Seaboard Fire &c. Ins. Co. v. Smith, 146 Ga. App. 893 (247 SE2d 607) (1978). The effect of the 1978 amendment was “to economize on the number of actions necessary to finally resolve all the issues presented in an overpayment situation by eliminating the need for an insurer (or employer) to bring a second action in a different forum in order to recover the amount of the overpayment.” Randall, 162 Ga. App. at 535.

It is undisputed that OCGA § 34-9-104 authorizes the State Board to adjudicate overpayment claims that arise in change in condition cases. As Sizzler’s overpayment claim arose out of Bahadori’s change in condition case, we hold that Bahadori’s withdrawal of his claim for reinstatement of income benefits did not operate to extinguish the State Board’s jurisdiction to consider the overpayment issue.

Further, the State Board’s power to adjudicate overpayment claims is not limited to change in condition cases in any event. As indicated by its heading, OCGA § 34-9-104 generally governs the modification of an award contained in a prior decision in the event of a change in condition. But the descriptive heading of a Code section does not constitute part of the statute and does not control the construction or interpretation of the statute. Legum v. Crouch, 208 Ga. App. 185 (430 SE2d 360) (1993).

In Randall, 162 Ga. App. at 534, we held that the 1978 amendment “extended the Board’s jurisdiction to include the power to adjudicate the rights and liabilities of the parties as to repayment of income benefits where the Board has determined that overpayments have been made.” And in Spiva v. Union County, 172 Ga. App. 151 (322 SE2d 351) (1984), where the employer controverted a claim based on newly discovered evidence after paying benefits for 23 months, the State Board ordered the employee to pay back over $22,000 in benefits, and we affirmed the award.

Neither Randall nor Spiva limited the State Board’s power to adjudicate overpayments under OCGA § 34-9-104 (d) to change in condition cases. Spiva, in particular, emphasized that the employer had not shown a change in condition.

Although an overpayment claim may arise in the context of a change in condition case, the overpayment claim itself is not a change in condition case. OCGA § 34-9-104 (d), which authorizes the State Board’s adjudication of overpayment claims, is not tied to OCGA § 34-9-104 (b), which authorizes modification of a prior decision based on a change in condition.

The placement of the 1978 amendment authorizing adjudication of overpayment claims in a Code section generally concerning modification of awards in the event of a change in condition does not suggest an intent to limit the State Board’s jurisdiction to overpayment claims in change in condition cases. As the undisputed legislative intent of the 1978 amendment was to economize the number of actions necessary to resolve all overpayment issues, it is unlikely the legislature meant to only halfway accomplish its intent.

Limiting the State Board’s power to hear overpayment claims to change in condition cases would frustrate that legislative intent. If such a limitation existed, cases involving overpayments attributable wholly or even partially to reasons other than a change in condition, and cases involving overpayments based on a change in condition that occurred more than two years before the employer asserted the claim, would often require proceedings before both the State Board and the superior court in order to resolve all overpayment issues. Cases involving overpayment of medical benefits would always require civil actions. Such consequences would be inconsistent with the legislative intent behind OCGA § 34-9-104 (d) (2).

In summary, as determinations of overpayment of workers’ compensation benefits involve the application of workers’ compensation law, the State Board is particularly qualified for that function. And we hold that OCGA § 34-9-104 (d) (2) authorizes the State Board to adjudicate all overpayment issues.

2. We also reject Bahadori’s contention that Sizzler’s overpayment claim was barred because it was not asserted within the two-year limitation period set forth in OCGA § 34-9-104 (b).

OCGA § 34-9-104 (b) establishes a two-year limitation period for modification of a prior award based on a change in condition. But as OCGA § 34-9-104 (d) (2), which authorizes the State Board to hear overpayment cases, is not tied to OCGA § 34-9-104 (b), the two-year limitation period is inapplicable. Overpayment claims are in the nature of an action for money had and received. Randall, 162 Ga. App. at 534. The statute of limitation for such a civil action is four years. OCGA § 9-3-25; Macomber v. First Union Nat. Bank of Ga., 212 Ga. App. 57 (441 SE2d 276) (1994). We hold that the four-year limitation period likewise applies to overpayment claims before the State Board.

Although OCGA § 34-9-104 (d) (2) empowers the State Board to decide overpayment cases, and although the State Board may be the preferred forum for these claims in light of its expertise in workers’ compensation law and the interests of judicial economy, there is no general prohibition against pursuing instead a civil action for money had and received.

Because an employer may still pursue a civil action for money had and received, for which a four-year limitation period applies, it would be anomalous to apply a two-year limitation period in an administrative proceeding to recover an overpayment of benefits. In authorizing the State Board to adjudicate overpayment claims, the legislature intended to place the entire range of such cases and issues before the State Board.

Moreover, even if the two-year limitation period set forth in OCGA § 34-9-104 (b) applied to this case, Bahadori’s fraud in requesting benefits during a time period in which he was working tolled the statute of limitation. Spiva, 172 Ga. App. at 152. As pointed out by both the ALJ and the appellate division, because Sizzler did not discover Bahadori’s fraud until 1994, its overpayment claim filed in February 1995 was timely in any event.

3, Bahadori next contends that the State Board’s award violates his due process rights. However, his argument addresses itself to a statute of limitation or laches defense. As we have determined that Sizzler’s overpayment claim was asserted timely, Bahadori’s contention is without merit.

4. Bahadori enumerates as error the Board’s action in referring his case to the Workers’ Compensation Fraud Unit for investigation. He claims that because the fraud unit was not established until three years after his alleged fraud occurred, the unit cannot investigate his case. Nothing in OCGA § 34-9-24 supports this contention; Bahadori cites no authority for his position; and we can find nothing that requires such a result. Therefore, the Board did not err in its referral of the matter to the fraud unit.

Judgment affirmed.

Andrews, C. J., Birdsong, P. J., Beasley, Johnson, Smith and Ruffin, JJ, concur. McMurray, P. J., Blackburn and Eldridge, JJ, concur in part and dissent in part.

Blackburn, Judge,

concurring specially in part and dissenting in part.

For the reasons set forth below, I concur in Division 4 of the majority, concur specially as to Division 1, and dissent as to Divisions 2 and 3.

Because this is a change in condition case, I agree with the majority that OCGA § 34-9-104 (d) (2) provides the authority for the Board to review Sizzler’s claim for reimbursement. However, I disagree with the majority’s position that OCGA § 34-9-104 (d) (2) provides any basis for the Board to exercise jurisdiction over an employer’s claim for reimbursement in any case which does not involve a claim for change in condition.

OCGA § 34-9-104 (d) (2) provides the only statutory basis for reimbursement found in the Workers’ Compensation Code. In its entirety OCGA § 34-9-104 provides:

“Modification of award or order contained in prior decision in event of change in condition.
“(a) ‘Change in condition’ defined; benefits.
“(1) As used in this Code section, the term ‘change in condition’ means a change in the wage-earning capacity, physical condition, or status of an employee or other beneficiary covered by this chapter, which change must have occurred after the date on which the wage-earning capacity, physical condition, or status of the employee or other beneficiary was last established by award or otherwise.
“(2) When an injury is not catastrophic, as defined in subsection (g) of Code Section 34-9-200.1, and the employee is not working, the board shall determine that a change in condition for the better has occurred and the employee shall be entitled to the payment of benefits for partial disability in accordance with Code Section 34-9-262 if it is determined that the employee has been capable of performing work with limitations or restrictions for 52 consecutive weeks. Within 60 days of the employee’s release to return to work with restrictions or limitations, the employee shall receive notice from the employer on a form provided by the board that will inform the employee that he or she has been released to work with limitations or restrictions, will include an explanation of the limitations or restrictions, and will inform the employee of the general terms of this Code section. In no event shall an employee be eligible for more than 78 aggregate weeks of benefits for total disability while such employee is capable of performing work with limitations or restrictions. No provision of this paragraph shall be interpreted to prevent a change in condition from occurring pursuant to paragraph (1) of this subsection or to prevent an employee from becoming eligible for benefits for total disability should such employee subsequently become totally disabled after exhausting 52 consecutive weeks or 78 aggregate weeks of such benefits while capable of performing work with limitations or restrictions. Whenever an employer seeks to convert an employee from benefits for total disability to benefits for partial disability as provided in this paragraph, such employer may convert the benefits unilaterally by filing a form indicating the reason for the conversion as prescribed by rule of the board.
“(b) Modification of prior final decision. The board on its own motion may propose or any party may apply under this Code section for another decision because of a change in condition ending, decreasing, increasing, or authorizing the recovery of income benefits awarded or ordered in the prior final decision, provided that the prior decision of the board was not based on a settlement; and provided, further, that at the time of application not more than two years have elapsed since the date the last payment of income benefits pursuant to Code Section 34-9-261 or 34-9-262 was actually made under this chapter; provided, however, any party may file for benefits solely under Code Section 34-9-263 not more than four years from the date the last payment of income benefits pursuant to Code Section 34-9-261 or 34-9-262 was actually made under this chapter. If, at the time of application, the foregoing requirements have been met but the prior decision is then on appeal to the courts, the entering of a decision on the application shall be deferred pending final ruling of the courts.
“(c) Interlocutory orders. On application of either party, for good cause shown, at any time while a claim is pending, the administrative law judge or the board may enter an interlocutory order suspending the payment of all or part of or increasing or decreasing the income benefits due under the decision sought to be modified. Good cause, as shown by preliminary evidence in the form of affidavits, sworn documents, depositions, interrogatories, or medical reports, may include, but not be limited to, an unjustified refusal to accept suitable and available employment, an increase or decrease in the physical impairment or wage-earning capacity of the employee, or the granting of continuance.
“(d) Retroactive effect of decision.
“(1) Subject to the limitation in subsection (a) of this Code section that a change of condition was a change which occurred after the date on which the wage-earning capacity, physical condition, or status of the employee was last established by award or otherwise, the award or order contained in the final decision entered by the administrative law judge or the board shall be effective as of the time of change in condition as found by the administrative law judge or board, notwithstanding the retroactive effect of the award or order, provided that no execution following a judgment entered under Code Section 34-9-106 shall be affected.
“(2) If the decision determines that an overpayment of income benefits has been made and no future income benefits are due, the administrative law judge or the board, in its discretion, may order the employee or beneficiary to repay to the employer or the insurer the sum of the overpayments. Where there has been determined an overpayment of income benefits and future income benefits were due, the decision shall order the overpayment to be recovered by shortening the period of future weekly income benefits or by reducing the weekly benefits, or both.
“(e) Credits to employer for lump sum or advance payments. Where a lump sum payment or an advance payment has been made to an employee under Code Section 34-9-222 and a subsequent change in condition is found to have occurred, the employer shall be entitled to credit against future income benefits equal to the amount of the lump sum or advance payment. This shall be accomplished by reducing the period of future weekly income benefits or by reducing the weekly benefit, or both.” (Emphasis supplied and in original.)

Prior to 1978, there was no authority for an employer to recoup overpayment from an employee under the Workers’ Compensation Act. Any employer who had overpaid an employee was limited to bringing an action in civil court. This was awkward where a change in condition case was pending before the Board when the overpayment came to light. In response to this problem, the legislature amended the Act to provide that where a change in condition action was before the Board, it could also address any prior overpayment. See OCGA § 34-9-104 (d) (2). The employer retained its traditional remedy through the civil courts in other circumstances involving an overpayment. Inasmuch as the Board is not a court of general jurisdiction and is limited strictly to the authority granted it by the Act, it cannot assume jurisdiction over those fraud or money-had-and-received claims which do not involve a change in condition.

The clear language of OCGA § 34-9-104 (d) (2) provides for the modification of an award or previous payment in the event of a change in condition. The entire Code section deals with and refers to claims based upon a change in condition. It defies logic to determine that the legislature would place an amendment affecting the entire Workers’ Compensation Code in a subsection of a subsection of a Code section referring exclusively to change in condition claims. However, as there is no question that the present case arose as a change in condition case due to Bahadori’s change in condition claim filed in 1993, such Code section applies to the present circumstances. I agree with the majority that Bahadori’s dismissal of his change in condition claim cannot affect Sizzler’s claim for reimbursement which was filed in response to Bahadori’s 1993 change in condition claim.

Although prior to 1978, the Code provided for the modification of a prior award based on a change in condition, it did not provide for reimbursement to the employer for any overpayment. The employer was authorized to recover overpaid benefits by reducing the amount paid on future benefits due. See OCGA § 34-9-243 (a). In 1978, OCGA § 34-9-104 was amended to add subsection (d) which allowed for reimbursement “[i]f the [Board’s] decision determines that an overpayment of income benefits ha[d] been made and no future benefits [were] due.” The reference to “the decision” necessarily refers to the Board’s decision in the change in condition matter. Prior to this amendment any claims for reimbursement were brought in civil courts. See Ga. Cas. &c. Co. v. Randall, 162 Ga. App. 532 (292 SE2d 118) (1982). However, in Randall, which was in fact a change in condition case, we interpreted OCGA § 34-9-104 (d) (2) more broadly than was proper and held that it applies in all instances where reimbursement for overpayment was sought. While the result in Randall was correct because it was a change in condition case, either analysis brings about the same result. I would limit Randall to change in condition cases.

In Spiva v. Union County, 172 Ga. App. 151 (322 SE2d 351) (1984), the Court relied upon OCGA § 34-9-104 (d) (2) to authorize the reimbursement of previously paid benefits. Id. at 154. OCGA § 34-9-221 (j) allows for the modification of previous amounts paid; however, it does not provide any basis for reimbursement of amounts overpaid. Spiva dealt with newly discovered evidence and the controversion of a claim pursuant to OCGA § 34-9-221 (d), as the Court recognized therein. It did not involve a change in condition or involve the application of OCGA § 34-9-104 (d) (2) as contended therein. I would, therefore, overrule the decision in Spiva to the extent that it holds that'OCGA § 34-9-104 (d) (2) provides authority for the Board to order reimbursement of overpayment where no change in condition claim is involved. While the legislature is free to so provide, to date, it has not done so.

This interpretation is consistent with the limited authority conferred on the Workers’ Compensation Board, see Randall, supra at 533 (the Board “is an administrative body possessing only the power conferred upon it by statute to administer the workers’ compensation act”), and with the spirit of the Workers’ Compensation Act. See Southeastern Aluminum Recycling v. Rayburn, 172 Ga. App. 648, 649 (324 SE2d 194) (1984) (the Act “was designed to provide immediate financial assistance to injured employees and to furnish a speedy, inexpensive and final settlement of their claims”). Furthermore, this interpretation is consistent with our previous determinations that “[t]he Workers’ Compensation Act is to be liberally construed to carry out its purpose of providing relief to injured employees while protecting employers from excessive damage awards " Mountainside Med. Center &c. v. Tanner, 225 Ga. App. 722 (484 SE2d 706) (1997).

Employers retain their traditional remedies for claims not involving a change in condition. For cases in which OCGA § 34-9-104 (d) (2) is inapplicable, employers must seek redress in civil courts for money had and received or fraud. See Randall, supra. It is not inconsistent to allow some claims to go before the Board and some claims to continue to be filed in civil courts. Where there is no claim pending before the Board, a claim for recoupment of sums paid but not due is not different from any other claim seeking monetary recovery and should be handled by the civil courts of general jurisdiction until the legislature determines otherwise. Such cases are more suited to civil courts because they have nothing to do with the purpose and intent of the Workers’ Compensation Act.

I dissent from the majority’s position that the two-year limitation period set forth in OCGA § 34-9-104 (b) does not apply to claims for reimbursement. The majority simply ignores the language of OCGA § 34-9-104 and judicially legislates its own statute of limitation to obtain the result it desires. While the result may be desirable, it is for the legislature, not this Court, to so determine.

OCGA § 34-9-104 (b) requires that at the time of application for a modification of a prior decision “not more than two years have elapsed since the date [of] the last payment of income benefits.” Bahadori was paid benefits pursuant to his 1992 claim for change in condition by check dated February 16, 1993. Sizzler’s request for a hearing and reimbursement of this previous payment was signed on February 13, 1995; however, it was not filed until February 22, 1995. Therefore, more than two years had elapsed between the date of the last payment and the date of the request for reimbursement. Accordingly, Sizzler’s request for reimbursement was beyond the two-year statute of limitation provided in OCGA § 34-9-104 (b), and the award of reimbursement should be reversed.

There is no authority for the majority’s infusion of a general four-year statute of limitation governing causes of action in civil courts of general jurisdiction for money had and received or fraud into an administrative action which is strictly controlled by the Workers’ Compensation Act. The Board, as an administrative body, has no authority except that granted to it by the Act and is bound by the limitations to actions contained therein. By what authority does this Court adopt a four-year statute of limitation in a workers’ compensation case? The legislature has not so provided. The majority’s holding violates the constitutionally provided separation of powers.

I am authorized to state that Presiding Judge McMurray and Judge Eldridge join in this opinion.

Decided December 5, 1997

Reconsideration granted December 19, 1997

Clements, Clark & Sweet, John F. Sweet, for appellant.

Hamilton, Westby, Marshall & Antonowich, Steven A. Westby, Joseph T. Brasher, for appellees.


author: Judge Harold R. Banke.

text:
    A97A1838.
    HEARD v. WHITEHALL FOREST EAST HOMEOWNERS ASSOCIATION, INC.
    (495 SE2d 318)
   Judge Harold R. Banke.

Whitehall Forest East Homeowners Association, Inc. (‘Whitehall”) sued property owner, Gladys A. Heard, for past due condominium assessments. Heard moved for partial summary judgment asserting that a portion of Whitehall’s claim was untimely. The trial court denied her motion and granted summary judgment to Whitehall. Heard appeals.

Whitehall’s action “for money owed and foreclosure of lien” was based on a Declaration of Record created in accordance with the Apartment Ownership Act of 1963, Ga. Code Ann. Ch. 85-16b et seq., which the developer recorded in April 1972. Whitehall claimed that Heard breached an obligation to pay certain assessments imposed upon her through restrictive covenants in that Declaration and its by-laws. Whitehall sought the amount of unpaid condominium fees from May 1990, interest, attorney fees, and costs.

Heard admitted thát as the owner of two properties, she was subject to the terms of that Declaration and that she had failed to pay the assessments. However, Heard asserted a statute of limitation defense as to part of Whitehall’s action. She claimed that the two-year statute of limitation for a breach of restrictive covenants as provided by OCGA § 9-3-29 barred Whitehall’s recovery of assessments which accrued before July 1, 1993.

Whitehall maintained that because its proceeding was an action on a written contract, the applicable statute of limitation was six years as provided by OCGA § 9-3-24. The trial court concluded that the appropriate statute of limitation was six years because “the law presumes a contract.” The court denied Heard’s partial motion for summary judgment and granted Whitehall’s motion for summary judgment awarding Whitehall $16,445.04 plus interest from May 16, 1990. Held:

A restrictive covenant obligating a property owner to pay assessments to maintain common property is an enforceable covenant against a purchaser, like Heard, with notice. Timberstone Homeowner’s Assn. v. Summerlin, 266 Ga. 322, 323-324 (467 SE2d 330) (1996). See Rosen v. Wolff, 152 Ga. 578, 585-586 (110 SE 877) (1922). Accord Guerin v. Webster, 233 Ga. 521, 523 (1) (212 SE2d 352) (1975). The sole issue on appeal is whether the trial court erred in applying the statute of limitation for written contracts under OCGA § 9-3-24, instead of the statute of limitation for covenants running with the land under OCGA § 9-3-29.

Notwithstanding Whitehall’s contention to the contrary, the obligation to be enforced here although contractual in nature is not a “simple contract in writing” within the meaning of OCGA § 9-3-24. It is not an undertaking signed by Heard. See Plumlee v. Davis, 221 Ga. App. 848, 852 (3) (473 SE2d 510) (1996) (statute of limitation for simple contracts in writing inapplicable to cause of action against party not a signatory to that contract). Nor is Heard named in the instrument which Whitehall claims is a “contract.” Whitehall has cited no cases applying the six-year statute of limitation to a restrictive covenant, and we have found none.

Whitehall filed suit May 16, 1996, and asserted its entitlement to past due assessments and interest from May 16, 1990 forward. However, until July 1, 1995, the former version of OCGA § 9-3-29 required that “[a]ll actions for breach of any covenant restricting lands to certain uses shall be brought within two years after the right of action accrues.” OCGA § 9-3-29. See Martin’s Landing Foundation v. Landing Lake Assoc., 707 F2d 1329, 1331 (11th Cir. 1983). Effective July 1, 1995, the legislature extended the two-year statute of limitation to four years for “actions for breach of covenant which accrue as a result of the failure to pay assessments or fees.” OCGA § 9-3-29 (b).

In order to avoid the two-year time limit, Whitehall contends that its action is not based on the breach of any covenant restricting the use of land. Whitehall claims that because the former statute (OCGA § 9-3-29) made no reference to a breach of a covenant to pay assessments or fees, that two-year limitation applied only to covenants “restricting land to certain uses.” Whitehall argues that an obligation to pay assessments is not a covenant “restricting land to certain uses.” However, by its express terms, the Declaration at issue contains covenants “restricting lands to certain uses,” as well as covenants that “run with the land.” Whitehall failed to offer any authority for its proposition that the covenant to pay monthly assessments which appears in this Declaration is not subject to the former OCGA § 9-3-29. See Summerlin, 266 Ga. at 323-324.

Further, Whitehall’s proffered authority for its statutory interpretation of OCGA § 9-3-29 is readily distinguishable. In Duffett v. E & W Properties, 208 Ga. App. 484, 486 (2) (430 SE2d 858) (1993), we applied the rules of contract construction to certain covenants in a subdivision declaration. But nowhere in that opinion was the statute of limitation issue addressed. Similarly, Whitehall’s reliance on Chattahoochee Chase Condo. Assn. v. Ruben, 221 Ga. App. 724 (472 SE2d 520) (1996) is misplaced. In Ruben, we construed the declaration and by-laws at issue there in conjunction with the Georgia Condominium Act, OCGA § 44-3-70 et seq., which has no application to this case.

Decided December 19, 1997.

Benjamin P. Erlitz, for appellant.

Weinstock & Scavo, Anthony T. Polvino, for appellee.

Inasmuch as the legislature provided for a specified effective date of July 1, 1995, for OCGA § 9-3-29, and provided no authorization for retroactive application, the legislature evinced an intent for the new limitation period to apply prospectively. See Canton Textile Mills v. Lathem, 253 Ga. 102, 103 (1) (317 SE2d 189) (1984). Part of Whitehall’s claim, therefore, is time-barred by OCGA § 9-3-29. We hold that the two-year statute of limitation of OCGA § 9-3-29 applies to all assessments against Heard which accrued before July 1, 1995, and the four-year statute of limitation applies to all assessments accruing after that date. We, therefore, reverse summary judgment and remand for a determination of the amount of assessments and interest due from July 1, 1993.

Judgment reversed and case remanded with direction.

Pope, P. J., and Blackburn, J., concur.

       Whitehall does not contend that the provisions of the Georgia Condominium Act (OCGA § 44-3-70 et seq.) apply to this case or that the requirements of OCGA § 44-3-113 were satisfied.


text:
    A97A1960.
    FULLER v. GREENVILLE BANKING COMPANY.
    (495 SE2d 320)
   Judge Harold R. Banke.

Walter Travis Fuller appeals from the trial court’s order awarding partial summary judgment to Greenville Banking Company (“Bank”) on its action to collect on a promissory note.

The evidence, when viewed in a light most favorable to Fuller, the non-movant, showed that this note was the successor renewal note to a series of single pay promissory notes which Fuller had executed in favor of the Bank. The five previous notes had been single pay notes with specific maturity dates. The promissory note at issue here was set up on an installment basis and called for 60 monthly payments. After Fuller failed to make the first two required payments, the Bank filed the underlying action. Fuller defended on the grounds of improper notice to accelerate, adhesion, fraud in the inducement and misrepresentation.

It is undisputed that Fuller signed the promissory note at issue and that the subject note is in default. Initially, the trial court denied summary judgment to the Bank because the record lacked a legible copy of the note at issue. When the Bank moved for reconsideration, it supplemented the record with a legible copy which enabled the trial court to determine that the promissory note contained an acceleration clause that could be exercised upon default at the option of the holder and without demand or notice. In so finding, the court granted summary judgment as to the amount of principal and interest but decided that unresolved questions of fact precluded summary judgment on attorney fees. Held:

1. Fuller contends that having initially denied the Bank’s motion for summary judgment, the trial court erred in granting the motion without any new evidence. Fuller’s argument is flawed because it overlooks the obvious — that the Bank offered into evidence a legible copy of the promissory note at issue. According to the terms and conditions of the loan, in the event of default, the Bank was authorized with or without notice to accelerate the unpaid balance plus finance charges.

Fuller’s admission of indebtedness under the note established the Bank’s prima facie right of recovery. Pollard v. First Nat. Bank &c., 169 Ga. App. 598 (1) (313 SE2d 785) (1984). With regard to his defenses, Fuller failed to offer any evidence to show the existence of a genuine triable issue as to his allegations of fraud or misrepresentation. Nowhere in his deposition did he unequivocally point to any fraudulent action on the part of the Bank. See Conerly v. First Nat. Bank of Baldwin County, 209 Ga. App. 601, 603 (2) (434 SE2d 143) (1993). In fact, Fuller, a college graduate, testified that he “did not realize that the note required monthly payments” and that he thought it “was like the original one where I could pay the interest at the end of the year or if I sold the lots.” However, the contractual terms plainly require monthly payments and specify the Bank’s options in the event of default.

Although Fuller asserted that the written terms of the note deviated from what he understood the terms would be, one cannot claim to be defrauded about a matter equally open to the observation of all parties, absent the existence of a special relationship or trust or confidence. Conerly, 209 Ga. App. at 603 (2). See Campbell v. C & S Nat. Bank, 202 Ga. App. 639, 640 (1) (415 SE2d 193) (1992) (express written terms in note will defeat defense of fraud in the procurement of a note based on purported oral misrepresentations by bank officer). It was incumbent upon Fuller to exercise ordinary diligence to make his own independent verification of the contractual terms and his failure to do so bars an action based on fraud. Life Ins. Co. of Va. v. Conley, 181 Ga. App. 152, 153 (351 SE2d 498) (1986). Nor did Fuller offer any evidence that the contract was one of adhesion. He admitted that he obtained the subject note to further his own interest of avoiding potential litigation involving another bank.

Decided December 19, 1997.

Thomas R. Morgan, Jr., for appellant.

Daniel W. Lee, for appellee.

2. The trial court did not abuse its discretion in granting summary judgment to the Bank in response to the Bank’s motion for reconsideration. The prior denial of a motion for summary judgment does not preclude a subsequent granting thereof on the basis of an expanded record. T. L. Rogers Oil Co. v. South Carolina Nat. Bank, 203 Ga. App. 605, 606 (2) (417 SE2d 336) (1992).

Judgment affirmed.

Johnson and Blackburn, JJ, concur.


author: Blackburn, Judge.

text:
    A97A1950.
    JONES v. THE STATE.
    (495 SE2d 327)
   Blackburn, Judge.

In this second appearance of his case, Danny Jones appeals his conviction for the sale of cocaine, contending that he was denied effective assistance of counsel at trial. For the reasons discussed below, we affirm.

In a prior unpublished opinion, we affirmed Jones’ sentence and conviction for sale of cocaine, but remanded the case for a hearing on the issue of ineffective assistance of counsel. Jones v. State, Case No. A95A0071, July 5, 1995. On remand, the court held a hearing at which Jones testified in support of his claim of ineffective assistance; however, he did not call his attorney as a witness. Jones contends his trial attorney was ineffective because the attorney (1) “claimed to be ineligible” to practice law; (2) failed to call a witness helpful to the defense; (3) disclosed confidential information to the prosecution; (4) failed to preserve exceptions to the jury charge; and (5) failed to raise a chain of custody objection to the admission of cocaine evidence.

Generally, a defendant claiming ineffectiveness of counsel bears the burden of proving that (1) his attorney’s representation in specified instances fell below an objective standard of reasonableness and (2) that a reasonable probability exists that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). Absent evidence to the contrary, an attorney in good standing is presumed effective. Bradford v. State, 221 Ga. App. 232 (471 SE2d 248) (1996). A trial court’s determination that a defendant was not denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous. Bevil v. State, 220 Ga. App. 1 (467 SE2d 586) (1996).

1. Jones testified that his trial counsel told him he was “not eligible to practice law” on his own at the time of trial. What this testimony means is unclear. “Ineligible” is not synonymous with “unlicensed.” Nor is Jones’ testimony the best evidence of his attorney’s standing with the State Bar. Therefore, we cannot address whether Jones was per se deprived of “counsel” within the meaning of the Sixth Amendment. See Solina v. United States, 709 F2d 160 (2nd Cir. 1983); see also Garland v. State, 235 Ga. 522 (221 SE2d 198) (1975). Moreover, because there is no evidence that counsel’s “ineligibility” rendered his performance deficient or resulted in prejudice to Jones’ defense, the trial court did not err in declining to find counsel ineffective for this reason. See United States v. Hoffman, 733 F2d 596 (9th Cir. 1984).

2. Regarding the remaining allegations of ineffective assistance, Jones has not carried his burden of proving either a defect in his counsel’s performance or resulting prejudice to his case.

(a) Jones claims a “helpful” witness was available but that counsel failed to call him. However, because Jones does not explain what that witness’ testimony would have been or what purpose the witness would have served, we can conclude only that counsel’s decision not to call the witness was sound trial strategy. Robinson v. State, 210 Ga. App. 278, 279 (3) (435 SE2d 718) (1993).

(b) Jones also speculates that his attorney must have divulged to the prosecution that a gin bottle from which he was drinking on the night of his arrest was half full. Assuming the attorney disclosed a confidence, the “breach of an ethical standard does not necessarily make out a denial of the Sixth Amendment guarantee of assistance of counsel.” (Punctuation omitted.) Id. at 281 (4). Because Jones fails to explain why the alleged disclosure of this information was harmful or even remotely relevant to his defense, he has not carried his burden of showing prejudice. Id.

(c) Jones also claims his attorney failed to properly reserve exceptions to the jury charge. However, Jones does not demonstrate nor does he contend that any of the charges were erroneous. Consequently, no prejudicial error has been urged or proven. Lloyd v. State, 214 Ga. App. 564, 569 (2) (448 SE2d 729) (1994).

Decided December 22, 1997.

Billy M. Grantham, for appellant.

J. Brown Moseley, District Attorney, Robert R. Auman, John A. Warr, Assistant District Attorneys, for appellee.

(d) Finally, Jones argues that his attorney was deficient in failing to object to the admission of cocaine evidence because there was a potential chain of custody problem which was not adequately explored. We have reviewed the trial transcript and are unable to identify this “potential” problem. Moreover, Jones has provided no reference to the record, no substantive argument, and no citation of authority in support of this claim. Therefore, it is deemed abandoned. Court of Appeals Rule 27 (c).

The trial court’s determination that Jones received effective assistance of counsel was not clearly erroneous. Accordingly, we affirm the order of the trial court denying Jones’ motion for new trial.

Judgment affirmed.

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


text:
    A97A1970.
    HANRAHAN v. CITY OF ATLANTA.
    (495 SE2d 324)
   Blackburn, Judge.

William Hanrahan was terminated from his employment with the City of Atlanta Police Department for violating three departmental work rules. He appealed his dismissal to the Civil Service Board of the City of Atlanta which affirmed the decision to terminate, although it found that Hanrahan had not violated one of the three rules. On writ of certiorari, the Superior Court of Fulton County affirmed the decision of the Civil Service Board. Hanrahan appeals this ruling, contending that the City of Atlanta failed to follow certain regulations applicable to dismissal of officers and that there was not substantial evidence supporting his dismissal. We affirm Hanrahan’s dismissal for the reasons discussed below.

“The appropriate standard of review to be applied to issues of fact on writ of certiorari to the superior court is whether the decision below was supported by any evidence. On appeal to this Court, our duty is not to review whether the record supports the superior court’s decision but whether the record supports the initial decision of the local governing body or administrative agency.” (Punctuation omitted.) City of Atlanta Govt. v. Smith, 228 Ga. App. 864, 865 (1) (493 SE2d 51) (1997).

In 1991, while employed as an Atlanta police officer, Hanrahan responded to a newspaper advertisement placed by a business known as The Training Center (the Center) located in Washington, Missouri. At the time that he accepted an offer to work at the Center, Hanrahan believed that his duties would be to coordinate training activities, assist with the production of videos for law enforcement training, and perform other miscellaneous tasks for the Center’s benefit. According to the owner of the Center, Chip Weichelt, it was a place where individuals could pay a price to be trained to deal with stressful scenarios such as being kidnapped, held hostage, imprisoned, and interrogated. These sessions took place in Weichelt’s Missouri home where he had constructed simulated jail cells, and Weichelt videotaped the sessions in order to protect himself, the instructors, and the Center from liability claims. These surveillance tapes were not intended to be released to the general public.

During these “training” sessions, which were neither scripted nor rehearsed, clients of the Center would be placed under various amounts of mental and physical stress. In some of the videotapes, the existence of which was unknown to the police department until late 1994, Hanrahan, who was not wearing his Atlanta uniform, could be seen holding a client upside down with his head in a urinal, shocking a client with a stun gun, and physically and verbally abusing clients. In one scenario, Hanrahan stated, “It’s been a while since I whipped two boys’ ass. Usually, a boy is black, though. I ain’t whipped two white boys, maybe a couple of niggers out there now and then.” The clients undergoing this “physical stress” could be heard moaning and groaning with pain.

According to Hanrahan, he became concerned after the second time he participated in such sessions that the clients were not legitimately there to learn survival skills, but instead were there for “personal gratification.” On the third time that Hanrahan went to the Center, he encountered another client whom he considered to have questionable motives and terminated his employment.

1. In his first enumeration of error, Hanrahan contends that his dismissal should be reversed because the chief of police failed to follow the rules and regulations contained within the Labor Management Relations Ordinance (the Ordinance) and the Atlanta Police Department’s Disciplinary Manual. As a result, Hanrahan argues that he was deprived of due process and a right to a hearing.

Specifically, Hanrahan argues that the chief of police failed to apply the city’s progressive discipline policy. Section 114-526 of the Ordinance states, “It is the policy of the city to impose, where reasonable, progressive discipline according to procedures that are fair, prompt and appropriate to the situation. However, when an infraction is such as to impair or destroy the future effective performance of the employee or when the employee’s presence impairs the effectiveness of others or presents danger to the employee, others or city property, action shall be taken to immediately remove the employee from the work environment.” On its face, this policy statement allows for the immediate dismissal of an employee when his presence impairs the effectiveness of others. As the chief of police testified that part of her reasoning behind the dismissal was the effect of Hanrahan’s actions on the public standing of the Atlanta Police Department, Hanrahan’s immediate “removal from the work environment” did not violate the Ordinance.

Hanrahan further contends that his immediate dismissal was in contravention of the department’s disciplinary manual because the chief of police failed to consider certain mitigating factors prior to his dismissal, including Hanrahan’s intent or his past job performance. Hanrahan also claims that the chief of police violated the provisions of the disciplinary manual because she dismissed him before his file was reviewed by his direct line supervisor, his unit commander, and his section commander.

The disciplinary manual is merely a managerial guide used internally by the Atlanta Police Department, and it is not binding on the city. Moreover, § 2.1 of the disciplinary manual states, “The Chief of Police is responsible for the effective and professional administration of the disciplinary process. Therefore, the Chief retains the authority to review, revoke, or modify any disciplinary actions taken by any supervisor in the Department.” Thus, regardless of what discipline Hanrahan’s other superiors may have recommended, the final decision belonged to the chief of police. Furthermore, the chief of police testified that she reviewed Hanrahan’s disciplinary history prior to the completion of his investigation.

In addition, prior to his dismissal, Hanrahan was given a hearing before the chief of police in which he had the opportunity to . respond to the charges against him and provide any evidence which he wished the chief of police to consider. Hanrahan also raised the evidence which he complains the chief of police should have considered before the Civil Service Board. In light of these facts, Hanrahan’s termination was not in violation of his due process rights.

2. In his second enumeration of error, Hanrahan argues that the decision of the Civil Service Board to affirm his dismissal was not supported by substantial evidence. To the contrary, the Civil Service Board’s decision that Hanrahan’s behavior comprised unsuitable conduct for a police officer is well supported and clearly satisfied the any evidence test which is applicable here. Smith, supra. In addition to reviewing videotapes of the training sessions, the Civil Service Board heard testimony from the chief of police that Hanrahan’s conduct was inappropriate for a police officer. There is no dispute that Hanrahan shocked others with a stun gun, hit their feet with a slap-jack, flushed their heads in urinals, and used racial slurs. The Civil Service Board reviewed the videotapes and concluded, “[Hanrahan] was a sworn Atlanta Police Officer. The Rules and Procedures of the department, as well as the expectations of the Police Chief, leave no room for conduct (improper) or activities (inappropriate) as evidenced in this case and as vividly portrayed in the videotapes.” This conclusion is neither arbitrary nor capricious, and it is amply supported by the evidence. Accordingly, we affirm the decision of the Civil Service Board.

Decided December 22, 1997.

McKenney & Froelich, William J. McKenney, for appellant.

Clifford E. Hardwick TV, Rosalind A. Rubens, Rolesia B. Dancy, for appellee.

Judgment affirmed.

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

       The surveillance tapes were originally discovered by the Fulton County District Attorneys Office in an investigation of a robbery ring involving several Atlanta police officers. One of these officers had worked at the Center and had retained some of the surveillance tapes.


text:
    A97A2321.
    HUDSPETH v. A & H CONSTRUCTION, INC.
    (495 SE2d 322)
   Blackburn, Judge.

After a bench trial on A & H Construction’s underlying complaint against Ron Hudspeth and Hudspeth’s counterclaim against A & H Construction, the trial court ruled from the bench denying relief to both parties. Thereafter, both parties filed motions for reconsideration with regard to the denial of their respective claims. On January 28, 1997, the trial court entered an order denying Hudspeth’s motion for reconsideration and granting A & H Construction’s motion for reconsideration. Therein, the trial court awarded judgment to A & H Construction in the principal amount of $13,000 plus cost, interest, and attorney fees. Hudspeth appeals the trial court’s rulings on his counterclaim and on A & H Construction’s motion for reconsideration.

1. We must first address our jurisdiction to review Hudspeth’s appeal. “It is well established that a motion for reconsideration does not extend the time for filing a notice of appeal. Blackwell v. Sutton, 261 Ga. 284 (404 SE2d 114) (1991).” In the Interest of A. C. J., 211 Ga. App. 865, 866 (440 SE2d 751) (1994). In the present case, the bench trial was held on May 21, 1996, and the trial court’s judgment was rendered the same day. No appeal was taken from this judgment within 30 days. Although the trial court later issued a new judgment on A & H Construction’s complaint, it did not change, in any way, its judgment on Hudspeth’s counterclaim. Therefore, Hudspeth’s motion for reconsideration did not extend the time in which he was required to file a notice of appeal of the trial court’s judgment on his counterclaim. However, Hudspeth timely appealed the trial court’s new judgment on A & H Construction’s complaint. See Dougherty County v. Burt, 168 Ga. App. 166, 167 (1) (308 SE2d 395) (1983) (the grant of a motion for reconsideration may extend the time for filing an appeal only where the original judgment is stayed, vacated, or set aside). Accordingly, Hudspeth’s appeal with respect to the trial court’s judgment on his counterclaim is hereby dismissed.

2. Hudspeth contends that the trial court erred in awarding conversion damages to A & H Construction. A & H Construction’s complaint sounded in conversion, breach of contract, and unjust enrichment. The facts supporting its complaint are essentially undisputed. A & H Construction gave Hudspeth $13,000 toward the purchase of certain real property in Costa Rica in which A & H Construction would receive a one-third interest. Hudspeth admitted taking A & H Construction’s money and using it to purchase the property. He further admitted that A & H Construction was not granted any type of ownership interest in the property and that he had refused to return the money to A & H Construction.

Although Hudspeth contends that money cannot be the subject of a conversion claim, we have previously held otherwise. In Unified Svcs. v. Home Ins. Co., 218 Ga. App. 85, 89 (4) (c) (460 SE2d 545) (1995), we held that “money can be the subject of a conversion claim as long as the allegedly converted money is specific and identifiable.” Therein, we determined that money paid to the broker was specifically earmarked for remittance to the insurance company and, therefore, it was sufficiently specific and identifiable to support a conversion action. Id. In the present case, the money paid by A & H Construction was specifically earmarked to purchase a one-third interest in certain real property on behalf of A & H Construction, but Hudspeth converted the money to his own use by purchasing the property for himself. Therefore, the money was sufficiently identifiable to support a claim in conversion. Id. See also Adler v. Hertling, 215 Ga. App. 769, 773 (2) (451 SE2d 91) (1994); Grant v. Newsome, 201 Ga. App. 710 (1) (411 SE2d 796) (1991).

3. Hudspeth contends that the trial court erred in awarding attorney fees.

(a) Initially, Hudspeth asserts that attorney fees are not normally allowed in breach of contract cases. However, as we have previously determined that A & H Construction also maintained a viable tort claim, we need not address this issue. “It is well established as the law of this state that every intentional tort invokes a species of bad faith and entitles a person so wronged to recover the expenses of litigation including attorney fees. Carroll v. Johnson, 144 Ga. App. 750, 752 (242 SE2d 296) (1978). Moreover, bad faith is a question for the [trier of fact] to be determined from consideration of the facts and circumstances in the case. See Hodges v. Youmans, 129 Ga. App. 481, 483 (3) (200 SE2d 157) (1973).” (Punctuation omitted.) Hayden v. Sigari, 220 Ga. App. 6, 12 (10) (467 SE2d 590) (1996).

(b) Hudspeth also contends that the trial court’s award of attorney fees was erroneous due to insufficient evidence of reasonable attorney fees. “An award of attorney fees is unauthorized if [A & H Construction] failed to prove the actual costs of [its] attorneys and the reasonableness of those costs.” (Punctuation omitted.) Citadel Corp. v. All-South Subcontractors, 217 Ga. App. 736, 737 (1) (458 SE2d 711) (1995).

To support its award of attorney fees, A & H Construction relied solely on the testimony of Geary Holland, A & H Construction’s president. Holland testified that A & H Construction had hired an attorney to represent it in the present action, that A & H Construction was seeking attorney fees, and that A & H Construction had incurred $5,171.78 in attorney fees. No other evidence with regard to the reasonableness of attorney fees was presented. Although A & H Construction’s attorney intended to testify regarding attorney fees, upon his own suggestion he reserved the issue until later. However, he failed to reassert it.

“Proof of what was paid for professional services is not, without more, sufficient proof of their value. Eberhart v. Morris Brown College, 181 Ga. App. 516, 519 (3) (352 SE2d 832) (1987).” (Citation and punctuation omitted.) Hornsby v. Phillips, 190 Ga. App. 335, 342 (8) (378 SE2d 870) (1989). Accordingly, because the award of attorney fees was not supported by sufficient evidence of reasonableness, we reverse the award of attorney fees and remand this case to the trial court with direction that the attorney fee portion of the judgment be stricken.

4. Due to our preceding conclusions, we need not address Hudspeth’s remaining enumerations of error.

Judgment affirmed in part, reversed in part, case remanded with direction, and appeal dismissed in part.

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

Decided December 22, 1997.

William E. Duncan, Jr., for appellant.

Moore, Ingram, Johnson & Steele, David G. Matthews, for appellee.


text:
    A97A1808.
    MILLER v. THE STATE.
    (495 SE2d 329)
   Judge Harold R. Banke.

In a bench trial, Wesley Miller was convicted of simple battery. He challenges only the sufficiency of the evidence.

On appeal, the evidence must be viewed in the light most favorable to the verdict and Miller no longer enjoys the presumption of innocence. Anderson v. State, 224 Ga. App. 608, 609 (481 SE2d 595) (1997); The evidence, when viewed in that light, shows that one evening while the 15-year-old victim’s mother had gone shopping, Miller, then 48, had been drinking. He entered the bedroom where the victim was lying on a bed using the telephone. According to the victim, Miller came in, climbed on top of her, and kissed her on the mouth. The victim’s mother testified that during the next day her daughter was emotionally distraught, upset and crying, and refused to speak to anyone for two weeks. Miller admitted going into the bedroom and touching the victim but denied doing anything improper. Held:

The pertinent essential elements of simple battery are: (1) intentionally making physical contact with the person of another; (2) of an insulting or provoking nature. OCGA § 16-5-23 (a) (1). Miller’s admission that he intentionally touched the victim, notwithstanding his claim that he just put his hand around her, satisfies the first element. The victim’s testimony that the contact was nonconsensual and unwelcome corroborated by the mother’s testimony that her daughter suffered a traumatic reaction satisfied the requirement that the contact be of an insulting nature. Wells v. State, 204 Ga. App. 90, 91 (418 SE2d 450) (1992). This evidence was sufficient for a rational trier of fact to find all the essential elements of simple battery within the meaning of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.

Decided December 30, 1997.

John E. Pirkle, for appellant.

Edward L. Colby, Jr., Solicitor, for appellee.


author: Smith, Judge.

text:
    A97A2105.
    WILSON v. THE STATE.
    (495 SE2d 330)
   Smith, Judge.

Donald Paul Wilson was indicted, tried, and convicted on one count of theft by taking. Judgment was entered on the verdict, and Wilson appeals, raising as one of his two enumerations of error the trial court’s “not allowing [him] to have an attorney.” Because the record is silent as to whether Wilson knowingly and voluntarily waived his right to counsel, we must reverse.

The only portion of the trial transcript before us on appeal is the transcript of the Uniform Superior Court Rule 31.3 similar transactions hearing. Wilson appeared pro se in that proceeding. Although it is not clear that Wilson was unrepresented for the remainder of the trial, we find no dispute by the State of Wilson’s assertion that he continued to act pro se. The only pre-trial motion was a motion to dismiss. Both that motion and his notice of appeal were filed pro se.

The record is silent on several issues, especially whether Wilson requested counsel, whether the trial court advised him of his right to counsel, and whether his decision to proceed pro se was made knowingly and voluntarily. We therefore must reverse.

Here, as in Kirkland v. State, 202 Ga. App. 356, 357 (1) (414 SE2d 502) (1991), the record does not “show a knowing and voluntary waiver of the right to counsel. The State has not shown that investigation was made to determine whether appellant was aware of the possible defenses to the charges against him or any other fact essential to his understanding of the situation. [Cit.] Nor is there any evidence that he was warned of the dangers of proceeding pro se or that the trial court made a finding on the record that appellant validly chose to proceed pro se after receiving this admonition. [Cits.]” Id. at 358. Because Wilson raised the issue of his right to counsel, it became the State’s burden to show the accused made an intelligent, consensual waiver. See Keith v. State, 218 Ga. App. 729, 730 (1) (463 SE2d 51) (1995). The State failed in this regard, and we are constrained to reverse and remand this case to the trial court for further proceedings consistent with this opinion, including but not limited to whether Wilson knowingly and voluntarily waived his right to counsel. See Kirkland-, Keith, supra. See also Clarke v. Zant, 247 Ga. 194 (275 SE2d 49) (1981); Jones v. Wharton, 253 Ga. 82 (316 SE2d 749) (1984). For purposes of this appeal, Wilson’s remaining enumeration of error is rendered moot.

Decided December 31, 1997.

Donald Paul Wilson, pro se.

Paul L. Howard, Jr., District Attorney, Gwendolyn R. Keyes, Bettieanne C. Hart, Assistant District Attorneys, for appellee.

Judgment reversed and remanded with direction.

McMurray, P. J., and Beasley, J., concur.


text:
    A97A1951.
    TANNER v. THE STATE.
    (495 SE2d 315)
   Judge Harold R. Banke.

Robert Lewis Tanner was convicted of felony theft by shoplifting and sentenced as a recidivist. On appeal, he enumerates four errors.

This case arose while Tanner and his common law wife (and codefendant) were shopping at a Kroger store. Price v. State, 222 Ga. App. 655, 657 (2) (475 SE2d 692) (1996) (evidence on appeal must be viewed in a light most favorable to the verdict). A store security guard spotted Tanner in the cosmetics aisle placing containers of Oil of Olay into a grocery cart. His wife, standing at the other end of the cart, then placed the containers into her purse which was sitting in the cart. The couple separated, and apparently noticed the guard. The wife then returned to the cosmetics section and began placing the Oil of Olay boxes back on the shelves. After apprehending the wife and searching the purse, the guard discovered 16 boxes of various Oil of Olay products of a total value of $111.92 and $11 in cash. Neither Tanner nor his wife had credit cards, identification, a checkbook or money on their persons. The guard summoned authorities and the couple was arrested. Held:

1. The evidence, viewed in the light most favorable to the verdict, was sufficient to support the conviction, notwithstanding Tanner’s contention that the State’s case was purely circumstantial and rested entirely on a parties to a crime theory. The guard testified that he saw Tanner acting as a lookout, handing boxes of Oil of Olay to his wife, and watching as she concealed them in her purse. OCGA § 16-8-14 (a) (1). This was sufficient to constitute aiding and abetting within the meaning of OCGA § 16-2-20 (b) (3). Gaskin v. State, 221 Ga. App. 142, 143 (1) (470 SE2d 531) (1996). Thus, holding him criminally responsible for the theft by shoplifting as a party to the crime was appropriate. Thaxton v. State, 184 Ga. App. 779, 780 (1) (362 SE2d 510) (1987).

2. We reject Tanner’s contention that a mistrial was required after a law enforcement officer testified that he arrested Tanner for public drunkenness as well as shoplifting. The record shows that the trial court issued a curative instruction cautioning the jury to disregard that testimony. Where, as here, it is not apparent that a mistrial was essential to the preservation of Tanner’s right to a fair trial, we cannot say the trial court abused its discretion in opting for the instruction over a mistrial. Young v. State, 221 Ga. App. 462, 463 (1) (471 SE2d 523) (1996); see Mitchell v. State, 222 Ga. App. 866, 868 (2) (476 SE2d 639) (1996).

3. Nor do we find error in the trial court’s rejection of the motion for mistrial Tanner asserted during closing when the State sarcastically argued that if the jury members found Tanner’s actions reasonable, they should acquit and let him shop in their stores. The State is permitted considerable latitude in impressing upon the jury its responsibility to enforce the law and may entreat it to consider the community’s safety. Berry v. State, 267 Ga. 476, 482 (4) (j) (480 SE2d 32) (1997); Bowen v. State, 203 Ga. App. 371, 374-375 (5) (417 SE2d 18) (1992). Here, its argument did not exceed the bounds of propriety.

4. The evidence was inadequate to establish Tanner’s status as a recidivist for sentencing purposes. Gadson v. State, 197 Ga. App. 315, 318 (4) (398 SE2d 409) (1990). The record shows that when the State noticed its intent to introduce evidence in aggravation of punishment it listed three South Carolina convictions: an April 1977 conviction for possession of MDA, a November 1978 conviction for obtaining controlled substances by forged prescription, and a September 1990 conviction for shoplifting. At sentencing, the State presented copies of the indictment and sentence on the latter charge only. It offered printouts from the Georgia Crime Information Center (“GCIC”) describing Tanner’s criminal history to establish the remaining offenses, successfully arguing over objection that the admission of non-certified GCIC records was permitted. See OCGA § 24-3-17 (b); see Thompson v. State, 196 Ga. App. 88, 91 (4) (395 SE2d 615) (1990). Tanner then argued that the printouts provided no evidence of representation of counsel or waiver of counsel.

Decided December 15, 1997

Reconsideration denied January 5, 1998.

Sam B. Sibley, Jr., for appellant.

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

Once Tanner asserted his objection, the State bore the burden of establishing the validity of the convictions it relied upon in arguing for recidivist treatment, an issue separate from the State’s reasonable reliance on OCGA § 24-3-17 (b) for authentication purposes. Dowdy v. State, 209 Ga. App. 95, 96 (3) (432 SE2d 827) (1993); see Gadson, 197 Ga. App. at 318 (4). Waiver of counsel cannot be presumed from a silent record. Warner v. Jones, 241 Ga. 467, 468 (246 SE2d 320) (1978). Nor can an uncounseled conviction be used for the purpose of imposing a recidivist sentence. Blaylock v. Hopper, 233 Ga. 504, 505 (1) (212 SE2d 339) (1975).

With the exception of the September 1990 shoplifting charge which shows that Tanner was represented, none of the State’s evidence shows whether Tanner’s convictions were counseled or even the result of a guilty plea. In the face of Tanner’s objection, the State failed to meet its burden of proof. Compare Jones v. State, 161 Ga. App. 620, 623 (4) (288 SE2d 795) (1982). Accordingly, the sentence must be vacated and the case remanded for inquiry into the validity of the convictions on which Tanner’s recidivist status is premised.

Judgment of conviction affirmed; sentence vacated and case remanded with direction.

Johnson and Blackburn, JJ, concur.

       The prosecutor stated: “[I]f you go back in your jury room and you can find it reasonable for a person to take a bag that was described to you adequately as about two feet long and about — you’ll remember the number of inches wide, and to go into a store with $11 in your possession and put $111.92 worth of merchandise in that bag concealing it, if you can attach reason to that, then you acquit him and you put him back on your streets and you let him shop — shop, I use that term loosely. Let him shop in your stores —”

       Tanner’s failure to argue to the trial court that the shoplifting charge would not be a felony in Georgia waives the issue.

       The State’s failure to address this issue in its appellate brief is disappointing.


text:
    A97A2143.
    WATSON v. THE STATE.
    (495 SE2d 305)
   Judge Harold R. Banke.

Alvin Richard Watson’s first trial culminated in a mistrial. At his second trial, the jury convicted Watson of child molestation and aggravated child molestation. He enumerates six errors.

This case arose after Watson’s divorce from the victim’s mother. Price v. State, 222 Ga. App. 655, 657 (2) (475 SE2d 692) (1996) (evidence on appeal must be viewed in a light most favorable to the verdict). In the divorce decree, Watson received visitation rights with his daughter, the product of his failed marriage.

At trial, Watson’s eleven-year-old daughter testified that beginning approximately four years before, Watson began molesting her by placing his hand in her vagina and orally stimulating her sex organs. She stated that this abuse occurred every weekend she visited him for several years. Held:

1. The evidence, viewed in the light most favorable to the verdict, is sufficient as a matter of law to permit the jury to find all the essential elements of the crimes. Jackson v. Virginia, 443 U. S. 307, 319-320 (99 SC 2781, 61 LE2d 560) (1979). The 11-year-old victim’s testimony that Watson orally sodomized her established the elements of aggravated child molestation. OCGA § 16-6-4 (c). Her testimony that Watson “put his hand up inside” her established the essential elements of child molestation. OCGA § 16-6-4 (a).

2. We reject Watson’s contention that double jeopardy barred this prosecution. Watson’s mistrial occurred after the State played a tape of the victim which included statements about Watson’s alleged molestation of his stepdaughter. Just prior to the first trial, the State agreed to proceed without admitting similar transaction evidence because it failed to timely file and serve notice of its intention to use similar transaction evidence as required under Uniform Superior Court Rule 31.1. Watson maintains that his retrial was improper because prosecutorial misconduct caused the mistrial.

A premise basic to double jeopardy analysis is that retrial is not barred where reversal of the conviction results from trial error rather than evidentiary insufficiency. State v. D’Auria, 222 Ga. App. 615, 616 (475 SE2d 678) (1996). Prosecutorial misconduct does not trigger the double jeopardy bar absent a finding that the State’s actions were intended to subvert the protections afforded by the Double Jeopardy Clause. Id. This is a question of fact for the trial court’s resolution. Reed v. State, 222 Ga. App. 376, 378 (1) (474 SE2d 264) (1996).

During a hearing on Watson’s double jeopardy plea in bar, the trial court determined that the State had not intentionally subverted the Double Jeopardy Clause. It based this decision in part on the fact that the State declined the court’s offer for a continuance to satisfy USCR 31.1 and asked to commence the second trial immediately after the mistrial was declared. The prosecutor also indicated that Watson’s case was her first trial as an assistant district attorney and she was overly aggressive. Under these circumstances, we cannot say the trial court’s conclusion was error. Id.

3. We reject Watson’s contention that results from a polygraph examination he failed were improperly admitted. The record shows that Watson stipulated to the admission of the results of a polygraph test “to assist in determining whether . . . [he] committed the crime(s) of aggravated child molestation.” This stipulation was “not only binding on . . . [the parties] individually but upon all further parties and their successors in interest, i.e., such other counsel as the State or the Defendant may retain or employ for any trial or hearing involving this indictment.” Although the offenses remained the same, Watson was reindicted to correct the wording of the indictment and he maintains that the change in indictment numbers invalidates the stipulation. Watson maintains that because he was reindicted on these charges, the stipulation is no longer binding. We disagree.

The results of polygraph tests are admissible only by express stipulation. State v. Chambers, 240 Ga. 76, 77 (239 SE2d 324) (1977). But where, as here, the defendant was reindicted on the same offenses to correct a phrasing omission and the substance of the charges remained unchanged, we decline to find that the stipulation was invalidated. Notwithstanding Watson’s assertions to the contrary, the fact that the indictment number changed or that Watson may have entered into the stipulation after he took the polygraph test is not determinative. Neither the letter nor the spirit of the stipulation demands a different result. Compare Chambers v. State, 146 Ga. App. 126, 129 (245 SE2d 467) (1978). Nor has Watson presented authority requiring reversal.

4. The trial court’s exclusion of a redacted copy of Sheila Chesser’s indictment on unrelated cocaine possession charges does not require reversal. On cross-examination, Watson sought to impeach Chesser, his ex-wife, with the record of her prior conviction for possession of cocaine. However, to conceal the fact that he was also charged in that indictment and avoid injecting his character into the trial, he redacted his name from it. The State successfully objected to the indictment’s admission, arguing the indictment was not a true and correct copy. Watson declined the trial court’s offer to allow him to impeach Chesser with certified copies of the plea, the conviction, and the unredacted indictment.

We cannot say the trial court abused its discretion in sustaining the State’s objection where the document at issue was altered without the opposing party’s consent or the court’s permission after it was certified as authentic. See OCGA § 24-7-20; see Rice v. State, 178 Ga. App. 748 (1), 749 (344 SE2d 720) (1986); Daniel v. State, 196 Ga. App. 160, 161 (1) (395 SE2d 638) (1990). Nor did the court abuse its discretion in requiring the inclusion of the indictment as part of the record of conviction. See Doggett v. Simms, 79 Ga. 253, 256-257 (1) (4 SE 909) (1888); Daniel, Ga. Handbook on Criminal Evidence, § 10-6 (1997). In any event, these decisions, if error, were harmless in light of the evidence against Watson, particularly the victim’s testimony. See Smith v. State, 222 Ga. App. 366, 369-370 (4) (474 SE2d 272) (1996); Letlow v. State, 222 Ga. App. 339, 342-343 (2) (474 SE2d 211) (1996) (error is harmless if it is highly probable that it did not contribute to the judgment). Watson raises his claim that the ruling precluded a thorough and sifting cross-examination, thereby abridging his right to confrontation, for the first time on appeal. See Buckner v. State, 219 Ga. App. 71, 73 (2) (464 SE2d 11) (1995). Assuming that the issue was properly preserved, it too fails under harmless error analysis. Letlow, 222 Ga. App. at 342-343.

5. Watson challenges the admission of similar transaction evidence that he molested his stepdaughter on several grounds. Having reviewed the record, we find the State satisfied the requisites of Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991). Notwithstanding Watson’s contention to the contrary, the trial court was not required to conduct an on the record balancing test. Fetterolf v. State, 223 Ga. App. 744, 746 (3) (478 SE2d 889) (1996). Nor is reversal required by the trial court’s failure, at the time the similar transaction evidence was admitted, to instruct the jury of the limited purpose for which it was admitted. Watson’s failure to request such an instruction undermines this argument. Bell v. State, 219 Ga. App. 553, 554 (2) (466 SE2d 68) (1995); see Evans v. State, 201 Ga. App. 20, 28 (8) (410 SE2d 146) (1991).

Watson also contends that the trial court admitted the similar transaction evidence for an unspecified improper purpose. The trial court gave the standard charge on similar transactions without tailoring it specifically to the instant case. While the inclusion of a comprehensive list of possible purposes in a charge is not appropriate, in this case, the court concluded its instruction by specifying that the evidence could be considered to show knowledge or intent. Compare Stephan v. State, 205 Ga. App. 241, 243-244 (2) (422 SE2d 25) (1992). The error, if any, was waived by Watson’s failure to preserve the issue by objecting when the evidence was introduced. Buckner, 219 Ga. App. at 73 (2).

6. In his final enumeration of error, Watson contends for the first time that he was denied effective assistance of counsel. The record shows that trial counsel no longer represents him. We therefore remand this case to the trial court for a hearing on the ineffectiveness claim. Saldona v. State, 219 Ga. App. 762, 763 (3) (466 SE2d 655) (1996).

Judgment affirmed and case remanded with direction.

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

Decided December 3, 1997

Reconsideration denied January 5, 1998

Berry & Shelnutt, John M. Shelnutt, for appellant.

eI Gray Conger, District Attorney, Frances D. Hakes, Assistant District Attorney, for appellee.


text:
    A97A2226.
    MARTINEZ et al. v. GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY.
    (495 SE2d 331)
   Blackburn, Judge.

Fernando T. Martinez and Elaine Mealor, as the administratrix of the estate of Aureliano Labra Herreguin, appeal the trial court’s order granting summary judgment to Georgia Farm Bureau Mutual Insurance Company (GFB). GFB filed the underlying declaratory judgment action for a determination of the applicability of certain exclusions contained in the insurance contract it issued to Herreguin. In granting GFB’s motion for summary judgment, the trial court determined that the exclusions applied to the instant case.

“Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. Rice v. Huff, 221 Ga. App. 592, 593 (472 SE2d 140) (1996).” Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

Herreguin died as a result of an automobile accident in which he was driving Curtis Peters’ truck. Martinez was a passenger in Peters’ truck and was injured in the accident. Both Herreguin and Martinez worked for Peters’ Mobile Home Service. On the day of the accident, Peters gave Herreguin permission to drive the truck to take Martinez home from the job site. However, the accident occurred near the location of another job site on Lake Sinclair Road that Herreguin was attempting to locate because he was scheduled to work there the next day. The Lake Sinclair Road job was for another employer unrelated to Curtis Peters. Herreguin intended to find the Lake Sinclair Road job site and then take Martinez home. Martinez did not live in the direction of the Lake Sinclair Road job site.

The insurance policy at issue provided liability coverage to Herreguin while driving his own car or any other covered vehicle. GFB contends that two exclusions to coverage are applicable in the present case. Such policy exclusions provide: “A. We do not provide liability coverage for any person: . . . Maintaining or using any vehicle while that person is employed or otherwise engaged in any ‘business’ ... [or while] [u]sing a vehicle without a reasonable belief that the person is entitled to do so.”

1. Our Supreme Court has recently interpreted the “reasonable belief” provision which excludes insurance coverage when the person using the vehicle was without a “reasonable belief” that they were entitled to do so. See Hurst v. Grange Mut. Cas. Co., 266 Ga. 712 (470 SE2d 659) (1996). In Hurst, the Supreme Court determined that “[t]he exclusion clause at issue differs from the traditional ‘omnibus’ clause which authorizes coverage for a non-owner’s permissive use of a vehicle. The new clause is couched in terms of entitlement rather than permission, causing a shift in the inquiry from an objective determination — whether the owner or one in legal possession of the car gave the user permission — to a mixed objective/subjective determination of the user’s state of mind — the reasonableness of the user’s subjective belief of entitlement.” Id. at 713 (1).

In the present case, Martinez averred that because Peters allowed Herreguin to use the truck for his personal errands on several prior occasions, Herreguin had a “reasonable belief” that he was entitled to use the truck to check out the Lake Sinclair Road job site. In the past, Herreguin had used Peters’ truck to get groceries and to visit friends. GFB contends that such past use cannot be used to enlarge the limited permission to use the truck that Peters averred he gave Herreguin on the date of the accident. We cannot agree. Construing the evidence in the light most favorable to Martinez, the nonmovant, we find that Martinez’ affidavit raises a genuine issue of material fact as to whether Herreguin had a reasonable subjective belief that he was entitled to use the truck to find the Lake Sinclair Road job site. Therefore, the trial court erred in granting GFB’s motion for summary judgment based on the “reasonable belief” exclusion.

2. The trial court also determined that the business use exclusion precluded liability in the present case. Pursuant to that provision, coverage is not available for any vehicle while the insured is engaged in any business. The issue before the Court is whether driving to a job site to determine its location in order to return the next day for work is engaging in business within the meaning of the policy exclusion.

The policy defined business to “include trade, profession or occupation.” It is undisputed that at the time of the accident, Herreguin was using Peters’ truck for the purpose of locating the place where he was to work the next day. This was not for Peters’ business, and presumably it was also not within the scope of business of Herreguin’s employer for the next day. There has been no evidence presented that Herreguin was being paid to locate the job site the day before he was to work. Therefore, we can only determine that Herreguin was engaged in a personal errand to assure himself that he would know the location of his employment for the next day. Such a personal errand does not constitute engaging in any business. Furthermore, this interpretation is consistent with the general rules of interpretation of insurance contracts.

Decided January 5, 1998.

Pizza Law Office, Bhrett J. Pizza, Thomas T. Monk, for appellants.

Blasingame, Burch, Garrard, Bryant & Ashley, E. Davison Burch, Russell, Stell, Smith & McLocklin, John E. Stell, Jr., Lambert & Roffman, Mark W. Dauenhauer, William S. Cowsert, for appellee.

Therefore, the trial court erred in determining that the business use exclusion in the insurance policy precluded coverage and in granting GFB’s motion for summary judgment.

3. Due to our holding in Division 2, we need not address Martinez’ remaining enumeration of error.

Judgment reversed.

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