author: Beasley, Presiding Judge. Smith, Judge,

text:
    A93A1017.
    DANIELS v. THE STATE.
    (438 S.E.2d 99)
   Beasley, Presiding Judge.

At a bench trial, Daniels was found guilty of violating “The Anti-Mask Act,” OCGA § 16-11-38 (a), which makes it a crime to wear a mask in public except in circumstances specified in OCGA § 16-11-38 (b) (1) through (4). He appeals from the judgment of conviction and sentence entered thereon. His motion for new trial was denied.

Two young girls, ages ten and twelve, were walking along a street in their neighborhood when they observed a man wearing a green wrestling mask and a plastic football helmet exit the home of Frank Bradford. The ten-year-old testified that she heard someone call the other child by name, and she turned around to see the masked person several feet behind them. The children began to run because they were “scared.” Later they returned to the vicinity of the Bradford house where they observed police cars on the scene. An officer asked the child what the masked man had been saying to them, and she responded that he had been calling her friend’s name “slow and saying, hey.” The child observed appellant remove the mask and helmet and recognized him as someone she had seen in the neighborhood “every day,” pushing a store buggy and collecting aluminum cans. She knew him as “Rambo” and has seen him since in the area “just pull[ing] his cart and picking up cans.”

The arresting officer testified that he was patrolling the neighborhood when he observed the young girl walking along the street and a man walking about ten or fifteen steps behind her. He observed that the man appeared to be wearing “some type of football helmet on his head” and “also had on a green facial mask.” The officer saw the youngster look back at the man several times and then look toward the police car. She appeared “to be uneasy” so he drove onto the sidewalk, separating the man from the child, whereupon the child began to run from the scene.

The officer questioned appellant about his purpose in wearing the mask and helmet. He replied that he had been at a friend’s house and wore the mask as a prank to scare him. He denied having said anything to the child, stating that he was “just following her . . . hoping to scare her.” His friend Bradford was questioned and confirmed that appellant had been visiting his home. He also told police that as appellant was leaving, he told him “not to wear the mask out on the street or the police might stop him.” The girls then returned to the scene and were questioned by the officer concerning appellant’s conduct. The ten-year-old apparently told the officer that appellant had been calling her friend’s name. Miranda warnings were then administered and appellant was questioned further. According to the officer, he then “changed his story somewhat,” admitting that he had been calling to the girl. After being taken into custody he stated that he had worn a mask on occasion while wrestling and had done so on this occasion to “intrigue” the girls.

Appellant testified that he found the mask and helmet in a trash can earlier that day and decided to wear them because the next day was a holiday (Memorial Day). On his way home, he came across some children playing in the street and he played with them for about ten minutes, while wearing the mask. He proceeded toward home and stopped to visit with his friend Frank Bradford, who had recently been ill. As he was leaving, he put the mask on again despite his friend’s admonition not to wear it because he might “get in trouble with it.” He replied that it was a holiday and “everyone wears a mask on holidays. . . .” He proceeded toward home walking behind a young girl and a police car pulled up separating him from the child. When asked why he wore the mask after leaving the Bradford house, appellant testified: “[I]n case . . M met some more kids ... I’d entertain them some more . . . because it looked like them back there enjoyed it so much . . . and that just made my day just to see them laugh. . . .”

1. Appellant contends that the court improperly heard testimony from the arresting officer concerning statements made in response to police questioning prior to the receipt of Miranda warnings.

After what was essentially a Jackson v. Denno hearing, the court ruled appellant’s pre-Miranda statements admissible. The officer testified that upon stopping appellant, he “began speaking with the individual, asking him . . . [the] purpose in the mask and helmet, what his intentions were, just basically what he was doing in this dress.” He was not handcuffed, arrested, threatened, or coerced into responding.

“It is presumed that in his capacity as trier of fact the trial judge considered only legal evidence,” Simmons v. State, 249 Ga. 860, 861 (2) (295 SE2d 84) (1982), “unless it appears from the judgment that [the court] considered testimony which should have been excluded.” Morris v. State, 160 Ga. App. 50 (1) (285 SE2d 782) (1981).

“[T]he single threshold inquiry of the officer as to what was happening was not an impermissible ‘interrogation’ under Miranda.” Shy v. State, 234 Ga. 816, 822 (I) (218 SE2d 599) (1975). The trial court correctly concluded that the officer was conducting a threshold inquiry to determine the nature of the situation and that appellant’s responses were admissible despite the absence of Miranda warnings. Shy, supra at (I).

2. Appellant contends the court erred in denying his motion for a directed verdict of acquittal and in finding him guilty of the offense charged, in that the evidence was insufficient to support the verdict. “There is no verdict in a bench trial. [Cit.] The issue, then, is simply whether the evidence met the test of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).” Lee v. State, 201 Ga. App. 827, 828 (1) (412 SE2d 563) (1991).

Appellant claims that the State failed to prove criminal intent necessary for conviction of the offense as construed in State v. Miller, 260 Ga. 669 (398 SE2d 547) (1990). In Miller, the constitutionality of OCGA § 16-11-38 (a) was upheld as non-violative of freedom of speech, freedom of association and equal protection of the law. The Court construed the statute so as to “require[ ] the state to prove that the mask is worn with an intent to conceal the identity of the wearer. Further, we construe the statute in conjunction with its policy statement to apply only to mask-wearing conduct when the mask-wearer knows or reasonably should have known that the conduct provokes a reasonable apprehension of intimidation, threats or violence.” Id. at 674.

The State’s evidence in the present case was sufficient to establish that appellant wore the mask with the intent to conceal his identity and that he knew or should have known that his conduct would give rise to a reasonable apprehension of intimidation, if not threats or impending violence. There was evidence that defendant’s own statement was that he intended to scare the children and in fact succeeded. Both “intimidate” and “scare” mean “frighten.” Webster’s New Third Inti. Dictionary. His motive may have been to have fun, but that does not remove or exclude the offensive intent or manner of achieving the pleasure. A man following ten and twelve-year-old girls in a mask can reasonably be found to be intending intimidation, if not more.

Appellant’s conviction under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), is affirmed.

Judgment affirmed.

McMurray, P. J., Cooper, Johnson and Blackburn, JJ., concur. Pope, C. J., Birdsong, P. J., Andrews and Smith, JJ., concur in part and dissent in part.

Smith, Judge,

concurring in part and dissenting in part.

I concur as to Division 1 of the majority opinion, but respectfully dissent as to Division 2. I do so because the State failed to prove the elements of intent required by State v. Miller, 260 Ga. 669 (398 SE2d 547) (1990).

The purpose of the Anti-Mask Act, OCGA § 16-11-38, is discussed at length in Miller: “Its passage was preceded by a period of increased harassment, intimidation and violence against racial and religious minorities carried out by mask-wearing Klansmen and other ‘hate’ organizations.” 260 Ga. at 672. The sponsor of the act testified that “prior to the passage of the act, mask-wearing had helped to create a climate of fear that prevented Georgia citizens from exercising their civil rights.” Id. The Supreme Court concluded that “[t]he statute was passed in response to a demonstrated need to safeguard the people of Georgia from terrorization by masked vigilantes. . . . The statute is intended to protect the citizens of Georgia from intimidation, violence, and actual and implied threats; it is also designed to assist law enforcement in apprehending criminals, and to restore confidence in law enforcement by removing any possible illusion of government complicity with masked vigilantes.” Id.

The majority recognizes that the Court in Miller construed the statute narrowly so as to “require [ ] the state to prove that the mask is worn with an intent to conceal the identity of the wearer. Further, we construe the statute in conjunction with its policy statement to apply only to mask-wearing conduct when the mask-wearer knows or reasonably should know that the conduct provokes a reasonable apprehension of intimidation, threats or violence.” (Emphasis supplied.) 260 Ga. at 674. The evidence in this case fails to meet this standard under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

While the evidence is in conflict as to whether the ten-year-old child witness and her companion were “scared” or even startled by appellant’s conduct in wearing the football helmet and mask, there was insufficient evidence that appellant intended to conceal his identity or to engage in “intimidation, threats or violence.” Appellant testified that he found a football helmet and green plastic mask in a trash can while collecting aluminum cans, and that he put them on because it was a holiday weekend. Under the exception created by OCGA § 16-11-38 (b) (1), the statute does not apply to “[a] person wearing a traditional holiday costume on the occasion of the holiday.” That exception obviously does not apply here, since Memorial Day weekend is not a holiday during which masks or costumes are traditionally worn. However, this does not address the limitation created in Miller as to specific intent on the part of the wearer.

On the way home, appellant met some children aged nine or ten years, played with them for about ten minutes, and they appeared to enjoy it. These children followed him down the street calling him by name, so it does not appear that he had reason to believe that the mask concealed his identity. While appellant was cautioned by his shut-in friend that he “might get into trouble” by wearing the mask, he told him “you know, it was — holidays, you know, and everybody wears a mask on holidays, that’s best known.”

Appellant testified that he did not expect that anyone would be frightened or intimidated by his wearing the mask. The arresting officer testified, over objection, that appellant stated his intention to “scare” his shut-in friend “as a prank,” and that “he was just following [the child] hoping to — hoping to scare her.” Nevertheless, it is nowhere shown that such an intent to “scare” or “intrigue” was anything other than a somewhat simple-minded attempt by appellant to amuse himself or others or that it rose to the level of intent required by Miller.

Reconsideration denied November 19, 1993

Rosemary E. Myers, for appellant.

Kenneth W. Mauldin, Solicitor, for appellee.

Miller acknowledges that the intent of the Anti-Mask Act, as expressed by its policy statement, is to thwart “masked vigilantes” who by intimidation, threats, or violence prevent Georgia citizens from exercising their civil rights. While appellant’s conduct was, to say the least, both eccentric and ill-advised, the evidence did not establish beyond a reasonable doubt either that appellant intended to conceal his identity or that he knew or reasonably should have known that his conduct would provoke a reasonable apprehension of intimidation, threats or violence as contemplated in Miller. The statute serves a necessary, but limited, purpose. Its application should be strictly limited in conformity with the holding in Miller. Since there was insufficient evidence to authorize a finding of guilt under the standard of proof prescribed in Jackson v. Virginia, 443 U. S. 307, supra, I would reverse.

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

       That the child recognized defendant after he removed the mask is totally irrelevant to the issue of his intent. Moreover, even if she had recognized him beforehand, her seeing him in a masked condition would not necessarily remove the element of his intent.

       Amanda Cooper, in Response to a leading question from the prosecution, testified that she felt “scared.” However, she later testified that she recognized appellant as a local resident when he took off his mask, that she saw him every day traveling around with a buggy collecting cans, and agreed with the suggestion of defense counsel that she and her friend thought “this was kind of stupid.”

       Prosecution might have been more appropriate here under the provisions of OCGA § 16-11-36 (b) (loitering and prowling), particularly since that statute requires a law enforcement officer, before making an arrest, to afford a suspect an opportunity to “identify himself and explain his presence and conduct.”


source: Caselaw Access Project

author: Smith, Judge.

license: Public Domain

text:
    A93A1201.
    DEAN v. THE STATE.
    (438 SE2d 380)
   Smith, Judge.

Edward Dean was convicted of possession of cocaine with intent to distribute, OCGA § 16-13-30 (b). He appeals from the judgment of conviction and sentence entered by the trial court on the jury’s verdict.

1. Dean contends that the trial court erred in failing to direct a verdict of acquittal. “On appeal from a finding of guilt, . . . evidence must be viewed in the light most favorable to the verdict. ...” Gazaway v. State, 207 Ga. App. 641, 642 (1) (428 SE2d 659) (1993). The evidence at trial showed that a confidential police informant agreed to purchase cocaine from Dean. A police officer testified that he monitored a telephone conversation in which the informant and Dean arranged to meet for the purchase in a shopping center parking lot in about half an hour. The officer and his fellow narcotic detectives equipped the informant with a “body bug” and surrounded the parking lot. In approximately 30 minutes a man fitting Dean’s description arrived and approached the informant. After hearing Dean agree to sell cocaine to the informant, the officers arrested Dean. During the arrest four small plastic bags fell out of Dean’s shorts, and the substance in the bags was later identified as cocaine. A rational trier of fact could reasonably find that Dean was guilty of the offense charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Dean enumerates as error the failure of the trial court to allow counsel to ask certain questions on voir dire. One of the questions sought to discover a juror’s religious preference. The relevant statute provides that counsel “shall have the right” to examine individual jurors regarding various matters, that would illustrate an interest of the juror in the case, including their “religious, social, and fraternal connections.” OCGA § 15-12-133. However, we do not reach this issue because Dean failed to preserve it for appellate review.

This question was answered by the juror, and only then did the judge comment, “Counsel, I’m not sure that’s a relevant question, religious preference, one way or the other, Counsel. I’m not sure that has any bearing on their ability to be fair and impartial. . . . I’m not certain how religious preference is relevant to the inquiry. Anyway, she’s already answered the question otherwise. Do you have any other questions?” Counsel moved on to another question, never responded to the trial court’s comments on the relevance of the question, and did not ask that question of any other juror.

Unlike the sua sponte objection in Ford v. State, 200 Ga. App. 376 (408 SE2d 166) (1991), the comments here were in the nature of a question or an invitation to discussion rather than a sua sponte ruling. The trial court expressed doubt with regard to the question’s relevance, but did not strike the answer and did not rule that the question could not be asked. Moreover, as the trial court observed, the question was answered, rendering any further discussion at that time unnecessary. Counsel did not engage in discussion, make any protest, or in any way put the trial court on notice that he disagreed with the comments. More than silent disagreement with a question or comment from the trial court is required to preserve an issue for appeal. See Sanders v. State, 181 Ga. App. 117, 120 (2) (351 SE2d 666) (1986).

Defense counsel then asked the same juror, “What would you say is the biggest problem facing America today?” and “Do you feel like that this country is waging a so-called war on drugs?” Unlike the topic of the first question, inquiries on these matters are not specifically enumerated in the relevant statute, but could only fall within the general language allowing examination to determine a juror’s “inclination, leaning, or bias.” OCGA § 15-12-133. “While the language of the statute is broad, the trial judge retains the discretion to limit the examination to questions dealing directly with the specific case and to prohibit general questions. [Cits.]” Chastain v. State, 255 Ga. 723, 724 (1) (342 SE2d 678) (1986). The trial court may limit questions which are unduly argumentative, or general and hypothetical. Gatlin v. State, 236 Ga. 707, 708 (2) (225 SE2d 224) (1976).

Both questions in issue are general in scope, and the second as phrased is argumentative. Moreover, “[t]he record also shows that the court’s rulings did not prohibit counsel from inquiring into relevant matters by properly phrased inquiries.” Id. Defense counsel was allowed to ask numerous questions regarding drugs and jurors’ knowledge of, involvement in and possible bias concerning drugs, and the record of his detailed and extensive voir dire consists of approximately 130 pages. The trial court did not abuse its discretion in refusing to allow these specific questions to be asked.

3. Dean next objects to the admission of the seized cocaine into evidence, contending that there was evidence of tampering or substitution because of inconsistencies in the prosecution witnesses’ testimony. Two witnesses disagreed regarding the color and weight of the cocaine, and the arresting officer gave varying testimony at the preliminary hearing and the trial as to its monetary value.

However, there is uncontradicted testimony establishing the chain of custody for the four plastic bags taken from Dean. The arresting officer testified that he sealed the evidence in a plastic bag and stored it in a security locker at police headquarters. The property room officer in turn testified that he removed the sealed bag from the security locker, logged it in, and secured it in a separate drug locker. The arresting officer retrieved the sealed bag and delivered it to the state crime lab chemist at a specific time on a stated date. The chemist in turn testified that he received a sealed bag containing four plastic bags from the arresting officer at the stated time on that date. The arresting officer identified the evidence at trial, based upon the identifying marks placed on the evidence bag at his direction.

“The only burden on the state is to show with reasonable certainty that the evidence examined is the same as that seized and that there has been no tampering or substitution. [Cits.] The state met this burden, and it was not error to admit the exhibits. Any confusion about the exhibits goes to its weight, not its admissibility, as the Georgia rule is that if the admissibility of evidence is doubtful, it should be admitted and its weight and effect should be left to the jury. [Cit.]” Phillips v. State, 167 Ga. App. 260, 263 (2) (305 SE2d 918) (1983). The inconsistencies in the testimony, including an alleged typographical error in the crime lab’s report, do not constitute evidence of tampering or substitution, and go to the weight rather than the admissibility of the evidence. See Jackson v. State, 188 Ga. App. 834, 837 (3) (374 SE2d 777) (1988) (discrepancy in number of tablets inventoried and stamped markings on tablets did not constitute evidence of substitution or tampering); Richards v. State, 189 Ga. App. 146, 147 (1) (375 SE2d 278) (1988) (discrepancy in weight of cocaine and “faulty recollection” of police officers did not constitute evidence of tampering); Pinson v. State, 207 Ga. App. 734, 736 (2) (429 SE2d 106) (1993) (discrepancy in number of bags of cocaine did not constitute evidence of tampering or substitution). We find no error in the admission of this evidence.

4. Dean also enumerates as error the admission of two similar transactions: a Gwinnett County guilty plea to possession of cocaine with intent to distribute and possession of marijuana with intent to distribute; and a DeKalb County guilty plea to possession of cocaine and marijuana. As to the former, where each involves possession of a controlled substance with intent to distribute, there is sufficient similarity between the offense charged and the prior conviction. Willis v. State, 199 Ga. App. 658, 659 (1) (405 SE2d 739) (1991). The Gwinnett County convictions for possession with intent to distribute therefore are sufficiently similar to the offense charged here.

While the DeKalb County guilty plea does not involve the possession of controlled substances with intent to distribute, the underlying circumstances arose directly from the arrest in this case. After his arrest Dean asked the police officer if he could be taken home so that he could obtain his ex-wife’s telephone number in order to make arrangements for his bond. The officer agreed, but he also asked if Dean had any more drugs at his house. Dean stated that he did, gave permission to search his house, signed a consent to search form, and told the officer that the drugs were on his bedroom dresser, where the drugs were found.

The DeKalb County arrest for possession of cocaine and marijuana is part of the res gestae of the offense under consideration here. “Surrounding circumstances constituting part of the res gestae may always be shown to the jury along with the principal fact, and their admissibility is within the discretion of the trial court. [Cit.] Hence, acts and circumstances forming a part or continuation of the main transaction are admissible as res gestae and it does not matter that the act is another criminal offense and does not tend to establish the main offense. [Cit.] In addition, all circumstances surrounding an arrest are admissible for whatever value the jury desires to place on them. [Cits.]” Fuqua v. State, 183 Ga. App. 414, 419-420 (1c) (359 SE2d 165) (1987).

Decided November 3, 1993

Reconsideration denied November 19, 1993

Lenzer & Lenzer, Robert W. Lenzer, Thomas P. Lenzer, for appellant.

Daniel J. Porter, District Attorney, Karen E. Reed, Assistant District Attorney, for appellee.

Accordingly, we find no error in the admission of evidence of Dean’s prior guilty pleas.

5. Dean also challenges the constitutionality of the sentence of life imprisonment imposed under OCGA § 16-13-30 (d). However, the Georgia Supreme Court has determined that the provisions of that Code section do not violate the provisions of the United States Constitution, Grant v. State, 258 Ga. 299, 300 (2) (368 SE2d 737) (1988), or the Georgia Constitution. Stephens v. State, 261 Ga. 467, 468 (5) (405 SE2d 483) (1991). Dean also contends that he did not receive adequate notice that the state would seek a life sentence under OCGA § 16-13-30 (d). This contention has no merit. Before trial, the state filed a “Notice of Intent to Introduce Evidence of Similar Transactions and Evidence in Aggravation of Punishment,” detailing two similar transactions, one of which had already resulted in an indictment, plea and sentence. See generally Hailey v. State, 263 Ga. 210, 212, n. 3 (429 SE2d 917) (1993). This enumeration of error has no merit.

6. Dean’s final enumeration of error goes to the charges given to the jury on the presumption of innocence and reasonable doubt. Essentially identical charges were held to be a complete and accurate statement of the law in Guyton v. State, 206 Ga. App. 145, 147 (5) (424 SE2d 87) (1992). We find no error in these charges as given.

Judgment affirmed.

Beasley, P. J., and Cooper, J., concur.


author: Johnson, Judge.

text:
    A93A1534.
    NU SKIN INTERNATIONAL, INC. et al. v. BAXTER.
    (438 SE2d 130)
   Johnson, Judge.

Nu Skin International and its insurer, Continental Insurance Company, appeal from the superior court’s reversal of an award of the State Board of Workers’ Compensation.

Janet Baxter suffered an on-the-job injury, the compensability of which was not disputed by her employer, Nu Skin International. Indeed, Nu Skin promptly commenced and continued payment of income benefits to Baxter before the hearing on her claim. Before and after filing her workers’ compensation claim, Baxter sought treatment from providers who were not included on Nu Skin’s panel of physicians. When Nu Skin refused to pay these expenses, Baxter requested a hearing. With the exception of emergency room expenses, the administrative law judge found that payment of the bills for unauthorized medical treatment by non-panel physicians was not the employer’s responsibility. Baxter appealed to the Full Board, which affirmed the ALJ’s decision. The superior court reversed on the basis of an error of law, holding that because Nu Skin “controverted” Baxter’s claim, she was free to seek treatment from non-panel physicians pursuant to Rule 201 (b) of the Rules and Regulations of the State Board of Workers’ Compensation. Apparently the trial judge accepted Baxter’s argument, made again in this appeal, that because Nu Skin circled the “Notice to Controvert” section on the WC-1 form, Baxter was free to seek medical care from whomsoever she chose. We reverse.

In reversing the award by the Full Board, the superior court judge has erroneously equated an employer’s refusal to pay an unauthorized medical expense with “controverting” the claim. The two are not the same. When an employer controverts a claim, it informs the employee that in its view the injury is not compensable. ITT-Continental Baking Co. v. Powell, 182 Ga. App. 533, 535 (2) (356 SE2d 267) (1987). When an employer refuses to pay for treatment by a physician not on the approved panel, it does not controvert the compensability of the claim as contemplated by Rule 201 (b); it simply asserts its rights under OCGA § 34-9-201 (c). On the Notice to Controvert section of the WC-1 form, there is a space provided for the employer to explain why the benefits it contests will not be paid. In this space Nu Skin clearly asserted its right to refuse to pay for medical care provided by persons not on the panel list when it expressly wrote “[e]mployee did not seek authorized medical treatment as provided by the employer.” Because Nu Skin did not otherwise “controvert” the claim, Rule 201 (b) does not apply. Therefore, pursuant to OCGA § 34-9-201 (c), Nu Skin is not responsible for the unauthorized charges. The ALJ and the Full Board were correct and should have been affirmed. We find no error of fact or law in the Full Board’s decision.

Decided November 8, 1993

Reconsideration denied November 19, 1993.

Joe O’Connor, for appellants.

Fink & Travis, David H. Fink, for appellee.

Judgment reversed.

McMurray, P. J., and Blackburn, J., concur.

       The cases upon which Baxter relies regarding this rule are inapposite. Unlike the instant case, Boaz v. K-Mart Corp., 254 Ga. 707 (334 SE2d 167) (1985) and Ga. Power Co. v. Brasill, 171 Ga. App. 569 (320 SE2d 573) (1984), involve payment of medical expenses when entitlement to income benefits was controverted. For a discussion of the distinction between income benefits and medical expenses, see ITT-Continental Baking Co. v. Powell, supra at 535 (2).


author: Beasley, Presiding Judge.

text:
    A93A0988.
    TIME INSURANCE COMPANY v. FULTON-DEKALB HOSPITAL AUTHORITY.
    (438 SE2d 149)
   Beasley, Presiding Judge.

Time Insurance Company appeals from the dismissal of its suit against Fulton-DeKalb Hospital Authority, d/b/a Grady Hospital (“Grady”), to recover $184,198.94 in insurance benefits allegedly disbursed to Grady in error.

The complaint alleged that co-defendant Taylor applied for health insurance benefits under a group policy issued by Time to Taylor’s employer. Coverage was provided by Time based on Taylor’s representation that he was employed full-time by the policyholder. Taylor submitted claims to Time under the group policy for medical treatment necessitated by injuries sustained in a fire, and he assigned certain benefits under the group policy to Grady for treatment rendered. The complaint acknowledges that Time paid Grady $184,198.94 “for medical expenses incurred by Taylor at Grady.” Time later determined that Taylor was convicted of arson for deliberately setting the fire in which he was injured. The group policy excluded coverage for charges resulting from an intentionally self-inflicted injury and those resulting from the commission of a felony. Time claims to have paid Grady based on a mistake of fact. It seeks a refund based on the theory of money had and received resulting in unjust enrichment.

Grady moved to dismiss the complaint for failure to state a claim or alternatively for judgment on the pleadings, on the ground that as a third-party creditor of Taylor’s it was not unjustly enriched and cannot be required to reimburse Time for monies mistakenly paid. The motion was granted and certified as final under OCGA § 9-11-54.

1. Time asserts that its right to reimbursement under the theory of money had and received should be determined by the trier of fact.

“ ‘ “When the sufficiency of the complaint is questioned by a motion to dismiss for failure to state a claim for which relief may be granted, ‘the . . . rules require that it be construed in the light most favorable to the plaintiff with all doubts resolved in his favor even though unfavorable constructions are possible. Not unless the allegations of the complaint disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts should the complaint be dismissed.’ (Cits.)” (Cit.)’ [Cit.]” Morgan v. Ga. Vitrified Brick &c. Co., 196 Ga. App. 779, 780 (1) (397 SE2d 49) (1990). See OCGA § 9-11-12 (b) (6).

“An action for money had and received . . . although legal in form, ... is founded on the equitable principle that no one ought to unjustly enrich himself at the expense of another, and is a substitute for a suit in equity. [Cits.]” Gulf Life Ins. Co. v. Folsom, 256 Ga. 400, 402 (349 SE2d 368) (1986). “ ‘Thus, recovery is authorized against one who holds the money of another which he ought in equity and good conscience to refund. (Cits.)’ [Cits.]” Piedmont Engineering &c. Corp. v. Balcor Partners-84 II, 196 Ga. App. 486, 489 (1) (396 SE2d 279) (1990). “Under this cause of action, the fact that the money was received from a third person will not affect the liability of the defendant, ‘ “if, in equity and good conscience, he is not entitled to hold it against the true owner.” ’ (Emphasis supplied.) [Cit.]” Dept. of Med. Assistance v. Hallman, 203 Ga. App. 615, 616 (1) (417 SE2d 218) (1992). The same rule applies when money is paid under a mistake of fact; “it can not be recovered unless the circumstances are such that the person to whom it was paid can not in good conscience retain it.” Dunlap, supra at 248 (2).

The issue is whether Time is entitled to relief under any state of provable facts under the theory advanced.

Time relies on Folsom, supra, to establish that a jury question remains as to its right to reimbursement. Folsom received an overpayment of the cash surrender value of his life insurance policy due to the insurer’s mistake of fact. The insurer sued in federal court for money had and received, and summary judgment was granted to Folsom on the basis that the overpayment was voluntary and not recoverable under OCGA § 13-1-13. In response to a question certified by the federal court of appeals concerning an apparent conflict between OCGA § 13-1-13 and OCGA § 23-2-32 (b), the latter of which authorizes recovery of payments attributable to negligence in the absence of prejudice to the other party, the Georgia Supreme Court answered: “In an action for money had and received, the plaintiff generally can recover a payment mistakenly made when that mistake was caused by his lack of diligence or his negligence in ascertaining the true facts and the other party would not be prejudiced by refunding the payment — subject to a weighing of the equities between the parties by the trier of fact.” Folsom, supra at 406. In the evidentiary posture of summary judgment, issues of fact remained for jury resolution.

Unlike Folsom, who received a gratuitous overpayment and “would not be prejudiced by refunding [it],” id. at 406, Time acknowledges that the mistaken payment to Grady was in compensation for services valued at $184,198.94. It is clear that Grady would be prejudiced by refunding the payment and that it in good conscience may retain payment for medical services rendered. Jury issues remained in Folsom concerning plaintiff’s negligence, whether defendant in good conscience ought to be able to retain the funds and whether there was an accord and satisfaction between the parties. Folsom does not mandate that every claim for money had and received must be presented to a jury, and this is not one of them.

2. Time also asserts that dismissal of the complaint cannot be grounded on the mere fact that Grady provided medical services to Taylor. It cites authority that a claim for money had and received lies even where the recipient of funds paid in error provided services in return for payment.

The cases cited by Time are distinguishable. In Dept. of Public Health v. Perry, 123 Ga. App. 816 (182 SE2d 493) (1971), the Department of Public Health was entitled to judgment as a matter of law in an action for money had and received for reimbursement for Medicaid payments made in error to a nursing home which had received prior notice that its eligibility to participate in the plan had been terminated. “[0]ne may not retain money or goods which have come into his hands through mistake and which he is not, in good conscience, entitled to retain.” Id. at 819. In Dept. of Med. Assistance v. Presbyterian Home, 200 Ga. App. 885 (409 SE2d 881) (1991), the Department of Medical Assistance was estopped from recovering an overpayment of Medicaid funds to a nursing home where it was shown that the recipient had no advance notice that its classification and rate of payment had been changed and where it had materially changed its position in reliance on the funds such that restitution would be inequitable.

Certain foreign authority cited by Grady is instructive. In City of Hope Nat. Med. Center v. Superior Court, 10 Cal.2d 465 (2d Dist. 1992), the court reversed the denial of summary judgment, holding that in the absence of fraud, an insurer may not recover payments from a health care provider made under a mistaken belief that the services rendered the patient were covered by insurance. Likewise, in Nat. Benefit Administrators v. Miss. Methodist Hosp. &c. Center, 748 FSupp. 459 (S.D. Miss. 1990), summary judgment was granted to a health care provider in an action for money had and received by an insurer to recover payments mistakenly made on the basis that restitution may not be had when the mistaken payment is made to an innocent third-party creditor. “This exception derives from the fact that the element of unjust enrichment, typically considered a prerequisite for restitution, is absent in such cases.” Id. at 465.

Decided November 19, 1993.

Fortson & White, Harvey S. Gray, Michael D. St. Amand, for appellant.

Pursley, Howell, Lowery & Meeks, Bryan A. Vroon, Jane F. Thorpe, for appellee.

In Lincoln Nat. Life Ins. Co. v. Brown Schools, 757 SW2d 411 (Tex. App. 1988) summary judgment was granted in favor of a health care provider in an action by an insurer for reimbursement of payments mistakenly made after the expiration of coverage. As between two innocent parties, the loss was placed on the one who created the situation as he was in the best situation to have avoided it.

Federated Mut. Ins. Co. v. Good Samaritan Hosp., 214 NW2d 493 (Neb. 1974), held that a hospital was entitled to retain payments made in error by an insurer for services performed where the hospital had a valid assignment, made no misrepresentations, and had no notice of the mistake.

Having received only those funds to which it was entitled, Grady was not unjustly enriched. See Eastside Carpet Mills v. Dodd, 144 Ga. App. 580 (241 SE2d 466) (1978). The pleadings disclose with certainty that Time would not be entitled to recover its payment to Grady under any state of provable facts pursuant to the theory of money had and received. Compare Dunlap, supra at (2). Dismissal of the suit as to Grady was correct.

Judgment affirmed.

Cooper and Smith, JJ., concur.

       Time’s claim against Taylor is that he misrepresented his status as an employee of the group policyholder on his application for coverage. It seeks recovery from him of over $450,000 in benefits resulting from Taylor’s injuries. The sole issue herein is the claim against Grady.

       Such an action is not, however, an equity case within the meaning of the 1983 Ga. Const., Art. VI, Sec. II, Par. III, relating to the jurisdiction of the Supreme Court. Folsom, supra at 403; Orient Ins. Co. v. Dunlap, 193 Ga. 241, 246 (17 SE2d 703) (1941).


author: Smith, Judge. Beasley, Presiding Judge,

text:
    A93A1081.
    KRULL v. THE STATE.
    (438 SE2d 152)
   Smith, Judge.

Daniel Stephan Krull was convicted of driving under the influence, no proof of insurance, driving with a suspended license, and failure to maintain lane.

1. Krull contends that the trial court erred in denying his motions for directed verdict and for new trial. We agree and reverse.

The uncontradicted evidence at trial showed that Krull, who did not own a car, became intoxicated at a bar in Sandy Springs. When he realized it was so late that the buses were no longer running, he called his father to pick him up. His father, concerned because Krull sounded as if he were intoxicated, took his older car because he was afraid Krull might become ill in the car. However, while Krull’s father was driving home the brakes in the older car failed and the car struck a concrete island. At trial a mechanic confirmed that the brakes had failed due to a faulty master cylinder. Because Krull was so intoxicated that he was a hindrance and his father “didn’t want to carry him around” he told Krull to wait in the car while he went for help. However, when he returned the car and his son were gone, because in the meantime, his son had been arrested and the car had been towed away.

The arresting officer testified that he came upon the wrecked car at the corner of Copeland and Roswell Roads. He saw from a distance that the car was wrecked, and walked up on the driver’s side to see if anyone was in it. He found Krull sitting “in the driver’s portion of vehicle.” On redirect he added that Krull was “behind the wheel.” Krull was so intoxicated that he was unable to recite the alphabet.

The officer initially testified that Krull stated “I just want to move my car or something like that; or I’m just trying to get my car off the roadway.” On cross-examination, he admitted that he did not remember and did not write down Krull’s exact words, and particularly did not remember if Krull referred to the car as “my car.” He agreed that the substance of Krull’s statement was that he wanted to move the vehicle. However the officer conceded that the car was inoperable.

The officer testified that no wallet or keys were found in his search of the car, and he did not recall if there were keys in the ignition. He never actually saw anyone driving the car. The officer did not recall whether or not Krull said someone else was driving, but testified that he would have recorded such a statement by Krull in his report “only if there were some way to really substantiate that, yeah, there had been.” However, even though the officer testified that he would have checked the car’s registration as a matter of routine, he did not use that information to locate or contact the registered owner of the car.

OCGA § 24-4-6 provides: “To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” The burden is on the State to present evidence excluding every other reasonable hypothesis save that of guilt. Cornish v. State, 187 Ga. App. 140, 142 (369 SE2d 515) (1988).

“While the determination of whether the circumstances are sufficient to exclude every reasonable hypothesis except that of defendant’s guilt is usually made by the jury and while we must review the evidence in the light most favorable to the jury verdict, we must not be blinded by that verdict when a reasonable hypothesis of innocence appears from the evidence or lack thereof, and may declare such as a matter of law. [Cits.]” Brooks v. State, 206 Ga. App. 485, 486-487 (1) (425 SE2d 911) (1992).

In this case, the officer testified that he observed Krull “in the driver’s portion of the vehicle,” or “behind the wheel.” He further stated, though uncertain of the exact words used, that Krull said in so many words that he wanted to move the vehicle. This is the sum total of the circumstantial evidence identifying Krull as the driver.

There are a number of decisions in which DUI convictions have been upheld on circumstantial evidence, against the defendant’s assertion that the evidence failed to prove that he was the driver of the car. However, in all those cases, the evidence revealed specific facts supporting the State’s contention that the defendant was indeed the driver. Such facts are absent here.

In State v. Hill, 178 Ga. App. 669 (344 SE2d 491) (1986), when the investigating officer asked how the accident occurred, the defendant stated, “I swerved to miss a dog.” The defendant in Melendy v. State, 202 Ga. App. 638 (1) (415 SE2d 62) (1992), admitted that he had driven to his location from a football game. The general substance of Krull’s statement as recounted by the officer does not establish that Krull ever identified the vehicle as his own, nor that he admitted to driving the vehicle to the place where it was found.

In other cases affirming convictions on circumstantial evidence, there were other indicia of recent operation of the car. See, e.g., Phillips v. State, 185 Ga. App. 54 (1) (363 SE2d 283) (1987) (officer found defendant behind the wheel, with the engine running and the lights on); Jones v. State, 187 Ga. App. 132 (1) (369 SE2d 509) (1988) (car was not on scene 20 to 30 minutes previously; officer found defendant slumped over the wheel at a railroad crossing, with the engine running and transmission in “drive”); Melendy v. State, supra (officer observed defendant putting gas in car and attempting to start the engine). In still other cases, there were indicia of ownership such as registration of the car in the defendant’s name, Frye v. State, 189 Ga. App. 181 (375 SE2d 101) (1988); possession of car keys after fleeing the scene of the accident, Henson v. State, 205 Ga. App. 419 (422 SE2d 265) (1992); or a statement by the accused that no one else could move the car, hence asserting ownership and control over it, Melendy v. State, supra.

Here, in contrast, there was no testimony that the keys were in Krull’s possession and no previous observation of the car in motion or of an attempt by Krull to start it. The car was inoperable, the engine was not running, and there was no testimony indicating that it had been driven recently, such as a warm engine or hood. Unlike the Frye case, there was no evidence that the car was registered in Krull’s name, and there was uncontradicted evidence that it was not his car and that he was not permitted to drive it.

Finally, the evidence in this case fails to exclude the hypothesis that Krull’s father was driving the car and went to seek help after the accident. In contrast to Frye or Phillips, supra, where the missing or “unidentified” person suggested by defendant as the driver never appeared at trial, Krull’s father appeared and testified that he was in fact the driver of the car. He offered an uncontradicted and unimpeached explanation for his absence from the scene and for the accident, which was corroborated by the testimony of the mechanic who repaired the car. The evidence in this case is equally consistent with the hypothesis that Krull’s father, not Krull, was the driver of the car. It follows that the jury was not authorized by the evidence presented to find Krull guilty of the offense charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

A directed verdict of acquittal should be granted where “there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal. . . .” OCGA § 17-9-1. The circumstantial evidence presented here is insufficient to meet the State’s burden of proof, and the trial court should have granted Krull’s motion for directed verdict.

2. Our holding in Division 1 makes it unnecessary to consider Krull’s remaining enumerations of error.

Judgment reversed.

Pope, C. J., Birdsong, P. J., Cooper and Blackburn, JJ., concur. McMurray, P. J., Beasley, P. J., Andrews and Johnson, JJ., dissent.

Beasley, Presiding Judge,

dissenting.

“ ‘The jury is the sole and exclusive judge of the credibility of witnesses, and after verdict, a reviewing court must construe the evidence in favor of the judgment rendered. . . .’ [Cit.]” Harris v. State, 155 Ga. App. 530 (1) (271 SE2d 668) (1980); OCGA § 24-9-80. It may accept or reject all or any part of the testimony of any witness. Burke v. State, 196 Ga. 702, 707 (27 SE2d 313) (1943); Davis v. State, 205 Ga. 248, 254 (5) (53 SE2d 545) (1949). The jury is the arbiter of all conflicts in the evidence. Storey v. State, 205 Ga. App. 610, 611 (1) (422 SE2d 879) (1992). A conflict may arise not only when there is conflicting evidence but also when the facts testified to by a witness are at variance with the common knowledge and experience of mankind. See Watson v. State, 13 Ga. App. 181, 182 (2) (78 SE 1014) (1913). That is, the testimony may lack inherent credibility when measured against surrounding facts, either undisputed or as found by the jury.

In this case, the jury was authorized to reject the testimony of appellant’s father, that he had been driving the vehicle when it became disabled. It was authorized to reject as implausible his version of the event, that he left his son in the disabled auto at 4:00 a.m. in the middle of the highway (we do not have the benefit of the diagram the officer used to describe the location and the car’s position) and did not return until after the police and a wrecker came and left with his son and the car. The jury was also authorized to reject the defendant’s testimony that this is what occurred and his testimony that he was outside of the car when the officer arrived, not in the driver’s seat as the officer testified. It was authorized to reject his testimony that he had been out and had called an unnamed friend to come and help, a friend who did not testify. See Vaughn v. State, 126 Ga. App. 252, 263 (11) (190 SE2d 609) (1972).

Circumstantial evidence need only exclude reasonable hypotheses. Lowe v. State, 208 Ga. App. 49, 52 (1) (430 SE2d 169) (1993). The jury is the judge of what is reasonable. Burns v. State, 166 Ga. App. 766, 768 (3) (305 SE2d 398) (1983). In addition to it being undisputed that defendant was found drunk in the middle of a main road at 4:00 a.m. behind the wheel of a family vehicle, there is evidence that he refused to submit to the statutory breath test, never told the arresting officer that someone else was driving the vehicle, and approximately nine months earlier had driven on another main roadway while intoxicated, refused the implied consent test, and pleaded guilty. As to car keys, the officer was asked in connection with the inventory search of the vehicle prior to impound, “Did you see anybody else’s wallet or keys or anything like that in the car?” He answered that he did not. When asked where the car keys were for the subject vehicle, he replied, “I would have left the ignition key in the ignition for the wrecker driver.” He simply did not specifically “recall” that the key was in the ignition.

In addition to the jury’s verdict, the trial court denied the motion for new trial on the general grounds. Its role as the “thirteenth juror” further confirms the validity of the jury’s verdict. Ricketts v. Williams, 242 Ga. 303, 304 (248 SE2d 673) (1978); Pittman v. State, 44 Ga. App. 204, 205 (161 SE 155) (1931).

Viewed in a light most favorable to the verdict, the evidence was sufficient to authorize any rational trier of fact to find appellant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided November 19, 1993.

Bray & Johnson, H. Michael Bray, Christopher J. McFadden, for appellant.

Paul L. Howard, Jr., Solicitor, Denise A. Hinds, Deborah W. Espy, Assistant Solicitors, for appellee.

I am authorized to state that Judge Andrews and Judge Johnson join in this dissent.


text:
    A93A1108.
    In the Interest of C. D. P., a child.
    (438 SE2d 155)
   Smith, Judge.

A petition for termination of the parental rights of the father of C. D. P. was filed in the Juvenile Court of Whitfield County. The mother had voluntarily surrendered her parental rights. The father appeals from the court’s order terminating his parental rights.

1. Appellant enumerates as error the court’s denial of his motion in limine. He seeks to exclude evidence that he had failed to comply with a court-ordered reunification plan under OCGA § 15-11-81 (b) (4) (C) (iii). He contends that the evidence was inadmissible because a court order adopting the plan was entered less than one year before the filing of the petition to terminate parental rights.

The relevant portions of OCGA § 15-11-81 (b) (4) (C) provide: “In addition to the considerations in subparagraph (B) of this paragraph, where the child is not in the custody of the parent who is the subject of the proceedings, in determining whether the child is without proper parental care and control, the court shall consider, without being limited to, whether the parent without justifiable cause has failed significantly for a period of one year or longer prior to the filing of the petition for termination of parental rights: . . . (iii) To comply with a court ordered plan designed to reunite the child with the parent or parents.”

This issue was addressed recently by In the Interest of B. L., 196 Ga. App. 807 (1) (397 SE2d 156) (1990). The parent in that case contended that the juvenile court erred in considering evidence of her failure to comply with such a court-ordered plan, because the petition to terminate was filed less that one year after the plan was instituted. However, because of difficulties with service of process, the hearing on the petition to terminate was not held until approximately 15 months after entry of the plan.

This court held in B. L. that the additional time between the filing of the petition and the date of the hearing satisfied the purpose and intent of the statute. “The time limitation in OCGA § 15-11-81 (b) (4) (C) clearly is designed to give the parent whose rights are subject to termination sufficient time and opportunity to demonstrate his or her ability to comply with the terms of the court’s order. That intent was clearly served in this case.” 196 Ga. App. at 808.

In this case, the reunification plan was in force by agreement when this proceeding began in the juvenile court, over one year before the filing of the petition to terminate. Appellant was present and represented by counsel at the initial hearing, after which the court entered an order finding that C. D. P. was a deprived child. That order was not appealed. The reunification plan was incorporated by supplemental order into the court’s earlier order after appellant refused to comply with the agreed-upon plan.

Appellant also appeared twice before a judicial citizen review panel during this time, and the plan was extensively discussed and modified in some respects in an attempt to accommodate appellant. Appellant had ample time and opportunity to comply with the plan, which continued in existence, with some modifications, throughout the year preceding the filing of the petition. Under these circumstances, the intent of OCGA § 15-11-81 (b) (4) (C) has been served and appellant’s first enumeration of error has no merit.

2. Appellant contends that the juvenile court erred in denying his motion to dismiss because one year had not elapsed between filing the reunification plan and filing the petition to terminate, citing In the Interest of B. L., supra, as his sole authority for this contention. As discussed above, that case addresses the consideration of evidence of noncompliance with a reunification plan under OCGA § 15-11-81 (b) (4) (C) (iii). Neither the decision nor the relevant statute mandates dismissal of an action if brought within one year after filing the plan. Moreover, as the juvenile court stated in its order, failure to comply with the plan was not the dispositive factor in the court’s decision to terminate appellant’s parental rights. See Division 3, infra. Appellant’s contention has no merit.

3. Appellant also challenges the sufficiency of the evidence to support the juvenile court’s findings under OCGA § 15-11-81 (b). The termination of parental rights under OCGA § 15-11-81 is a two-step process. First, the court determines whether there is clear and convincing evidence of parental misconduct or inability. Second, the court considers whether termination is in the best interest of the child. In the Interest of G. K. J., 187 Ga. App. 443, 444 (3) (370 SE2d 490) (1988). The standard for appellate review of a termination of parental rights is “ ‘whether a rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights had been lost. (Cit.)’ [Cit.]” In the Interest of R. L. H., 188 Ga. App. 596, 597 (373 SE2d 666) (1988).

The record shows that C. D. P. is a profoundly disturbed child. He originally was taken into the custody of the Department of Family & Children Services (DFACS) at age two, when appellant stated that he was unable to care for him. Three foster homes in rapid succession requested his removal because of his bizarre behavior, which the juvenile court justifiably likened to that of “an untrained animal.”

According to the testimony of several witnesses, C. D. P. was so active and destructive that he required constant one-on-one supervision. He ate razor blades and dog food; bit a piece out of another child’s leather shoe, leaving bite marks on the child’s foot; bit and tormented the family dog; and sexually acted out with dolls and himself. He seemed oblivious to danger or pain, and did not cry or give any other expression of pain, even when severely cut in the razor blade incident. He was non-verbal except for the words “uh” and “do it,” the latter accompanied by pulling at his genitals or attempting to touch others’ genitals. The first foster mother testified that in her 11 years of providing foster care, C. D. P. was “unlike any child I have ever had and we have had over 100 children of all ages and he was just very extreme.”

C. D. P. ultimately was placed in a fourth foster home, where he had resided for over a year at the time of the hearing. The current foster mother testified that he continued to have behavioral difficulties, and that he was undergoing intensive psychological testing in an attempt to identify and treat his problems. However, there was uncontroverted testimony that his problems were lessening and his overall behavior was improving, although he was still developmentally behind his age group. The DFACS social services specialist attributed this improvement to his feeling of stability in the foster home. Despite his numerous behavior problems, she also testified that he was “highly adoptable” and that “with a lot of structure and a normal environment with some permanency where he can really settle in . . . he could really improve.”

Even without considering evidence of appellant’s failure to comply with the reunification plan, there is ample support in the record for a termination of parental rights under OCGA § 15-11-81 (b) (4). Witnesses testified that appellant was unable to perform simple tasks such as assisting C. D. P. with eating or keeping him clean. He seemed unable or unwilling to understand instructions. The witnesses testified to a lack of bonding between appellant and C. D. P., and to an inability by appellant to discipline or even to relate to C. D. P. The child was adversely affected by appellant’s visitation, trying to leave the room, clinging to the social services worker, and having nightmares and severe diarrhea after each visit. He showed improvement after appellant’s visitation was reduced to once a month.

After C. D. P. was placed in the custody of DFACS, appellant withheld the child’s Social Security payments and refused to contribute the payments towards C. D. P.’s support. At the hearing, he was often unable or unwilling to respond to questions, and testified on cross-examination that he would lie for $10. Despite the evidence of his inability or unwillingness to care for C. D. P., appellant does not acknowledge that he needs any assistance in learning to care for the child or that he himself needs psychological care. He offered during cross-examination to return C. D. P. to DFACS after a year “free of charge” if he was unable to care for him.

Finally, appellant repeatedly and consistently refused to cooperate with the reunification plan, despite apparent initial agreement. He agreed to participate in parenting classes, but did not care for C. D. P. or attend the parents’ discussion groups during the classes. After four weeks of a nine-month program, he left and refused to return. Although appellant agreed on the advice of the judicial citizen review panel to visit a psychologist for testing, he later refused to participate in the tests.

There was some conflict in the evidence with regard to the time at which C. D. P. began to display the speech and behavioral problems observed by the witnesses. Appellant and his sister-in-law gave testimony which could have implicated C. D. P.’s mother, rather than appellant, as the cause of these problems. However, the juvenile court resolved this conflict against appellant. “The reviewing court is to defer to the lower court in the area of factfinding and should affirm unless the appellate standard of review, here the rational factfinder test, is not met. When we apply that test here we note the conflicting evidence presented to the trial court and conclude that a rational factfinder could have found by clear and convincing evidence parental misconduct or inability as provided by OCGA § 15-11-81 (b).” (Citations and punctuation omitted.) In the Interest of C. M., 194 Ga. App. 503, 504 (1) (391 SE2d 26) (1990).

A finding of parental misconduct or inability is based upon the four factors outlined in OCGA § 15-11-81 (b) (4) (A). The earlier, unappealed order of the juvenile court established that C. D. P. was a deprived child. OCGA § 15-11-81 (b) (4) (A) (i). Given the evidence of appellant’s demonstrated inability to care for C. D. P.’s most basic needs, the apparent connection between appellant’s contact with C. D. P. and the worsening of the child’s emotional state, appellant’s withholding of support for C. D. P. and appellant’s refusal to participate in programs designed to improve his ability to care for the child, the juvenile court could have found by clear and convincing evidence that the lack of parental care and control was the cause of C. D. P.’s status as deprived. OCGA § 15-11-81 (b) (4) (A) (ii). Finally, in light of C. D. P.’s severe behavioral deficits and need for stability and special care, the condition of deprivation was likely to continue and to cause serious physical, mental, emotional, or moral harm. OCGA § 15-11-81 (b) (4) (A) (iii, iv). Under these circumstances, the trial court did not err in terminating the father’s parental rights. See In the Interest of J. C. J., 207 Ga. App. 599 (428 SE2d 643) (1993).

Decided November 19, 1993.

Jerry W. Moncus, for appellant.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Teresa E. Lazzaroni, Staff Attorney, David T. Blackburn, Nancy E. Bradshaw, for appellee.

Judgment affirmed.

Beasley, P. J., and Cooper, J., concur.


author: Cooper, Judge.

text:
    A93A1410.
    In the Interest of T. S., a child.
    (438 SE2d 159)
   Cooper, Judge.

Appellant was tried on two petitions alleging that he was delinquent for possession of alcohol by a minor, OCGA § 3-3-23; inhaling model glue, OCGA § 16-13-91; and for committing the designated felony act of aggravated assault, OCGA § 15-11-37 (a) (2) (B). He appeals from the adjudication of delinquency and disposition entered by the juvenile court.

1. Appellant contends that he was forced to trial without the benefit of counsel. However, the record contains a written acknowledgment of rights, signed by appellant and his mother. This form advised them of the right to be represented by counsel and of the right to appointed counsel if he could not afford his own attorney. He was further warned of the possible dispositions upon a finding of his delinquency and of the hazards of proceeding without an attorney. On the day of the hearing, appellant and his mother appeared without counsel. The juvenile court observed that appellant was not entitled to appointed counsel and had failed to retain counsel despite having been granted two continuances. Under these circumstances, the juvenile court was authorized to conclude that appellant and his mother had knowingly and voluntarily waived his right to be represented by retained counsel. Riley v. State, 237 Ga. 124, 128 (226 SE2d 922) (1976). Compare In re B. M. H., 177 Ga. App. 478 (339 SE2d 757 (1986).

2. Appellant enumerates the general grounds.

Under the Juvenile Code, “the standard of proof on charges of a criminal nature is the same as that used in criminal proceedings against adults — proof must be beyond a reasonable doubt. [Cits.]” M. W. W. v. State of Ga., 136 Ga. App. 472, 474 (221 SE2d 669) (1975). As to the aggravated assault, Griffin police were called to the scene where Wal-Mart security guards had detained appellant after a fight among several youths. Appellant claimed he acted in self-defense and in defense of his brother when he stabbed the victim. However, the evidence, although in conflict, was sufficient to authorize a finding that appellant stabbed the victim when that person was not threatening either appellant or his brother, but was trying to break up the fight. The evidence does not “demand a finding that [T. S.] acted solely in self-defense [or in defense of another within the meaning of OCGA § 16-3-21 (a)]. Instead, the evidence would authorize a rational trier of fact reasonably to conclude that [T. S.] stood his ground to engage in mutual combat [within the proscription of OCGA § 16-3-21 (b) (3)]. [Cit.]” Coker v. State, 209 Ga. App. 142, 143 (433 SE2d 637) (1993). This is sufficient evidence to support appellant’s adjudication of delinquency for having committed the designated felony act of aggravated assault.

Decided November 19, 1993.

Darrel L. Hopson, for appellant.

In a separate incident, appellant was a passenger in a vehicle stopped by the Spalding County Sheriff’s Department. The deputy detected a strong odor of spray paint and obtained the driver’s permission to search the car. He discovered an open bottle of vodka next to appellant and on the floor several bags containing spray paint. Appellant’s eyes were dilated, his speech was slightly slurred, and he was unsteady on his feet. Appellant denied inhaling paint and drinking alcohol but admitted that all other passengers of the car had done so. There was uncontested evidence that spray paint contained acetone, a chemical substance within the definition of model glue. OCGA § 16-13-90. This evidence was sufficient to support appellant’s adjudication of delinquency for joint underage possession of alcohol and for having inhaled “model glue” for the purpose of intoxication or stupefaction as proscribed by OCGA § 16-13-91.

Appellant also contends there was insufficient evidence of venue. However, no challenge as to venue was made below. The inference that the Griffin Police Department and the Spalding County Sheriff’s Department acted within the territorial limits of their authority is slight evidence of venue and is sufficient to establish venue in Spalding County beyond a reasonable doubt. Williams v. State, 193 Ga. App. 630 (2) (388 SE2d 884) (1989). The general grounds are without merit.

Judgment affirmed.

Beasley, P. J., and Smith, J., concur.

Johnnie L. Caldwell, Jr., District Attorney, for appellee.


text:
    A93A1419.
    STRICKLAND v. THE STATE.
    (438 SE2d 161)
   Smith, Judge.

Christopher L. Strickland and his wife were convicted of cruelty to children, for depriving Strickland’s four-year-old illegitimate son of necessary sustenance and for maliciously causing him excessive physical pain. OCGA § 16-5-70 (a), (b). Christopher Strickland alone appeals.

1. Strickland enumerates as error the failure of the trial court to direct a verdict in his favor on Count 1 of the indictment. The evidence at trial showed that a Department of Family & Children Services (DFACS) caseworker observed the child in his original foster home, and testified that he was a “hefty,” “robust” child before being delivered into the custody of Strickland and his wife. As a result of a letter prepared by a judicial citizens review panel and sent to him by DFACS, Strickland expressed an interest in developing a relationship with his illegitimate child. Ultimately DFACS released the child to Strickland’s wife as guardian. Approximately five months later, Strickland’s wife called DFACS to report that the child was uncontrollable and possessed by a demon; she asked to return the child to the custody of DFACS. When he arrived at DFACS, the child showed the emaciation, sunken eyes, swollen belly and pedal edema indicative of malnutrition. He had fresh and old scars over most of his body consistent with being scratched with fingernails and with being beaten with, a switch and a metal or wooden rod. The treating physician testified that the child was suffering from malnutrition. He stated that the signs and symptoms of malnourishment he observed could have developed after a week to ten days of malnourishment, but probably had developed over a longer period of time.

In support of his contention that the trial court should have directed a verdict of acquittal, Strickland claims his wife, who is not related to the child, had the sole responsibility for preparing meals and he therefore had no duty to feed the child. He further contends that although he acknowledged paternity, he had no authority over and no duty towards the child because the child was illegitimate. Strickland cites no legal authority for his contention that he had no responsibility for the child.

These contentions are completely without merit. OCGA § 16-5-70 (a) places within its scope “[a] parent, guardian, or other person supervising the welfare of or having immediate charge or custody of a child under the age of 18. . . .” Although OCGA § 19-7-25 provides that the mother of an illegitimate child is entitled to custody unless the father legitimates the child, the putative father nevertheless has certain enumerated rights and duties with respect to the child. OCGA § 19-7-24 clearly provides that “[i]t is the joint and several duty of each parent of a child born out of wedlock to provide for the maintenance, protection, and education of the child. . . .” (Emphasis supplied.) “It is clear . . . that the putative father is also a parent.” Nelson v. Taylor, 244 Ga. 657, 658 (1) (261 SE2d 579) (1979).

Decided November 19, 1993.

Patrick G. Longhi, for appellant.

Lewis R. Slaton, District Attorney, Carl P. Greenberg, Carla E. Young, Vivian D. Hoard, Assistant District Attorneys, for appellee.

Strickland conceded that he was the child’s father, and that he and his wife had custody of the child. He considered the child his responsibility “in some ways.” Not only was he a “parent,” he also had “immediate charge and custody” of the child within the meaning of OCGA § 16-5-70 (a).

“A motion for a directed verdict of acquittal should be granted only when there is no conflict in evidence and the evidence with all reasonable deductions and inferences therefrom demands a verdict of acquittal as a matter of law. [Cits.] On appeal a reviewing court can consider all the evidence [cit.] and must view the evidence in the light most favorable to the verdict. [Cit.]” Jones v. State, 201 Ga. App. 102, 103-104 (2) (410 SE2d 199) (1991).

There is ample evidence on the record from which any rational trier of fact could find beyond a reasonable doubt that Strickiand was guilty of cruelty to children by depriving his child of necessary sustenance. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Accordingly, the trial court did not err by denying Strickland’s motion. See Jones, supra.

2. Strickland also contends that the trial court erred in denying his motion for a mistrial on the basis of remarks made by the prosecutor during closing argument. He further contends that the curative instructions given by the trial court were inadequate. However, the closing argument was not transcribed, nor was a substitute included in the record. See OCGA § 5-6-41. “With neither an original transcript of the offending portions of the assistant district attorney’s argument nor a transcript prepared from recollection (OCGA § 5-6-41 (g)), we must presume that the trial court acted correctly. [Cit.]” Houck v. State, 173 Ga. App. 388, 389 (2) (326 SE2d 567) (1985).

Judgment affirmed.

Beasley, P. J., and Cooper, J., concur.


text:
    A93A1426.
    FERROS et al. v. GEORGIA STATE PATROL et al.
    (438 SE2d 163)
   Smith, Judge.

Michael Ferros and William Smith brought suit against the Georgia State Patrol and various other state agencies and officers, alleging claims for violation of their constitutional rights under 42 USC § 1983, breach of contract, and negligent classification, and seeking permanent positions as lieutenants in the State Patrol, back pay, and attorney fees. They appeal from the trial court’s grant of summary judgment to the defendants. Pursuant to OCGA § 5-6-34 (d), they also seek review of an earlier order vacating a grant of default judgment against the defendants.

Ferros, Smith, and Carl Shaw are pilots who were sergeants in the Aviation Unit of the Special Operations Division of the State Patrol, commanded by Captain Chumley. In 1985, Colonel Hugh Hardison, who then headed the State Patrol, designated all three as “acting” lieutenants in the Aviation Unit. It is undisputed that designation of the three pilots as acting lieutenants was not a promotion or a classified position recognized by the State Merit System. To achieve promotion, application must be made to the Merit System, which determines whether individuals qualify for promotion by meeting the classification requirements. Although Hardison had authority to designate the title, he had no authority to promote or raise pay without the consent or permission of the Merit System. All three officers understood this, and none received enhanced pay or increased duties or responsibilities after the designation. However, all were given lieutenant’s bars and an unmarked patrol car, and were treated as lieutenants within the unit.

In 1988, when Curtis Earp succeeded Hardison and questioned the propriety of the “acting” designations, all three acting lieutenants returned to sergeant rank. Shaw filed a departmental grievance regarding his rank and sought promotion to lieutenant. Earp requested that the Merit System conduct an audit of pertinent classified positions within the Aviation Unit. Jerry Saylor, Chief of the Classification and Compensation Division of the State Merit System, conducted the audit, examining the unit’s classified positions and personally interviewing the officers involved. Based upon the interviews and written job descriptions, Saylor recommended that Shaw be promoted to lieutenant. Because their responsibilities were greater than other sergeants but less than those of lieutenants, he recommended that Ferros and Smith remain sergeants but receive supplemental pay. Appellants filed a grievance, but after a hearing, the department rejected their claims. The State Personnel Board declined to review their claims and this action ensued.

In June 1992, the case appeared on the trial calendar. Because counsel for defendants did not appear for trial, the court entered an order granting plaintiffs’ motion for default judgment. Thereafter, at a status conference requested by defendants, the court learned that defense counsel had not appeared for trial in reliance upon the court staff’s assurances that the case would be removed from the calendar because of the pending motion for summary judgment. The court found defendants’ reason for not appearing for trial sufficient, vacated its order granting default judgment, and granted plaintiffs a certificate of immediate review. This court denied the application for interlocutory appeal. The defendants’ motion for summary judgment was subsequently granted.

1. We first address appellants’ enumerations regarding vacation of the order granting default judgment. In three enumerations, Ferros and Smith contend that the trial court improperly exercised its discretion to “open the default,” because no meritorious defense was presented under oath, defendants’ excuse did not constitute “providential cause,” and they did not pay costs, as required by OCGA § 9-11-55 (b).

Appellants’ reliance upon OCGA § 9-11-55 (b) is misplaced. That statute applies “[a]t any time before final judgment” and permits a defendant to file an answer despite the fact that the statutory time period has elapsed. Here, judgment had been entered, so OCGA § 9-11-60, not OCGA § 9-11-55 (b), applies. Allen v. Nash, 195 Ga. App. 597, 598 (1) (394 SE2d 395) (1990). The default judgment was vacated by the trial court because of a mistake unmixed with the negligence of defendants, pursuant to OCGA § 9-11-60 (d) (2). This was within the trial court’s authority and was not an abuse of discretion. Compare First Dixie Properties v. Chrysler Corp., 202 Ga. App. 145, 147 (413 SE2d 464) (1991).

2. Ferros and Smith enumerate as error the trial court’s finding that their job duties and responsibilities were not equal to those of Shaw. They argue that the trial court improperly decided this issue in the face of conflicting evidence creating a material issue of fact. They are correct in their assertion that this finding was crucial to the grant of summary judgment to appellees with respect to several of their claims. Moreover, we agree that the purpose of summary judgment is to determine whether a material issue of fact exists, and to that end, the court may not weigh conflicting evidence or determine the credibility of witnesses. See generally Haire v. City of Macon, 200 Ga. App. 744, 747 (409 SE2d 670) (1991).

Appellants have failed, however, to provide this court with the evidence, in the form of depositions, which they allege demonstrates the conflict forming the material issue of fact. As authority for the facts set forth in support of the argument in their brief, they cite references to depositions of the various parties. However, they specifically instructed the clerk of the superior court not to include the depositions in the record on appeal. The burden is on the appellant to show error by the record. Stevens v. Green, 204 Ga. App. 60, 61 (2) (418 SE2d 377) (1992). “ ‘In order for the appellate court to determine whether the grant of summary judgment was erroneous, the appellant^] must include in the record those items which will enable the appellate court to ascertain whether a genuine issue of material fact remains.’ Deficiencies in this regard cannot be supplied by brief. [Cit.] Where matter essential to making a decision is omitted, appellants have] failed to meet [their] burden of showing error. In such circumstances we may assume the [finding] is correct and affirm it. [Cits.]” Riverbend Ford-Mercury v. Kirksey, 196 Ga. App. 307, 309-310 (1) (395 SE2d 898) (1990).

3. Ferros and Smith contend the trial court erroneously granted summary judgment to appellees on the claim that appellants’ right to due process of law was violated when the Personnel Board denied them a hearing. Although cognizant that a “mutually recognized entitlement between a state and its employee can qualify as a constitutional property interest, Bd. of Regents v. Roth, 408 U. S. 564 [(92 SC 2701, 33 LE2d 548)] (1972); Perry v. Sindermann, 408 U. S. 593 [(92 SC 2694, 33 LE2d 570)] (1972),” the trial court found that neither plaintiff in this case had a protectable property interest in the rank of acting lieutenant, because it is undisputed that the Merit System had never recognized them as “acting” lieutenants.

Relying upon Brown v. Ledbetter, 569 FSupp. 170 (N.D. Ga. 1983), appellants argue that they need not show a property interest in the rank itself but only in being properly classified. They challenge the trial court’s determination that their claim differs significantly from that of the plaintiff in Brown; they further challenge the ruling that they possessed no protectable property interest in being correctly classified as lieutenants because they had merely possessed “the accoutrements” of that rank and had never performed the duties of the lieutenants. To the extent that their contentions are based on an assertion that the trial court’s finding was factually incorrect, we are foreclosed from addressing them because of appellants’ failure to include the evidence supporting this assertion in the record on appeal. We must assume that the finding is correct and that Ferros and Smith possessed only the accoutrements of the rank of lieutenant, and not its duties and responsibilities.

The rules of the State Personnel Board require a hearing only when a demotion or adverse action such as a loss of pay has taken place. See Rules of the State Personnel Board, § 14.200. Since appellants were never classified or recognized by the Merit System as lieutenants, they were not demoted and, in fact, received a pay increase after the audit. Given the assumed factual predicate, we find that the trial court was correct in concluding that appellants’ right to due process of law was not violated by denying them a hearing.

4. In several enumerations, Ferros and Smith also complain of the trial court’s resolution of their claim that their right to equal protection of the laws was violated because they were treated differently from Shaw and from pilots employed by the Department of Natural Resources (DNR).

(a) Their arguments that an issue of fact remains regarding whether they performed supervisory duties equal to those performed by Shaw are controlled adversely to them by our decision in Division 2, supra.

(b) They contend that even assuming Shaw did in fact have supervisory responsibility over them, the trial court erred in concluding that this difference in authority precludes a finding that they were “similarly situated” for purposes of equal protection analysis. However, we agree with the trial court that Pearson v. Macon-Bibb County Hosp. Auth., 952 F2d 1274, 1280 (11th Cir. 1992), relied upon by appellants, is distinguishable in that it involved not equal protection but whether, for Title VII purposes, a prima facie showing could be made by a hospital employee of the disparate disciplinary treatment afforded to three other employees she alleged were “similarly situated.” The Pearson court held that given that the four employees were all responsible for, and failed to perform, a certain task, differences in their job status and overall responsibilities were irrelevant to this showing. Id. The same is not true in this case. As pointed out by the trial court, the equal protection clause of the Fourteenth Amendment to the United States Constitution mandates that all persons similarly situated should be treated alike. It was crucial to their claim for Ferros and Smith to show that Shaw was “similarly situated” in that the work responsibilities of all three were the same, in order to show that their right to equal protection had been violated when Shaw was promoted and they were not. If Shaw had supervisory duties over them, it follows that the court correctly concluded that all three were not “similarly situated.”

(c) The trial court concluded that the fact that DNR pilots were ranked and paid as captains did not violate appellants’ right to equal protection because OCGA § 45-20-2 (15) (Z) (i) explicitly excludes “officers, officials, employees, and positions of the [DNR], except those . . . which are as of March 14, 1984, in fact in the classified service” from classification by the State Merit System. Since appellants remain in the Merit System, for equal protection purposes their rank must be compared with others within that system, who are “similarly situated.”

Decided November 19, 1993.

Steven K. Leibel, for appellants.

5. Appellants assert that the trial court erred in granting summary judgment to appellees with respect to the claim that the Merit System breached their contracts. It is well settled that the Merit System Act, OCGA § 45-20-1 et seq., creates a constitutionally protected contract between the Merit System employees and the State. Clark v. State Personnel Bd., 252 Ga. 548, 550 (2) (a) (314 SE2d 658) (1984). However, unlike the plaintiffs in Clark, appellants’ status as lieutenants was never authorized or recognized by the Merit System, and thus appellants were never lieutenants under their contract with the State. Even assuming appellants are correct that their elevation to the positions of “acting” lieutenants must be viewed as “temporary,” “intermittent,” or “emergency” appointments under §§ 9.300-9.600 of the Rules of the State Personnel Board, those appointments would have expired pursuant to those rules long before the termination of appellants’ “acting” status. We agree, therefore, with the trial court that no breach of appellants’ contract with the State occurred.

6. The trial court ruled against appellants on their claim for negligent misclassification. Their claim is based on paragraph 4.702 of the Rules of the State Personnel Board, providing that “[t]hose positions which are substantially similar with respect to difficulty, responsibility, degree of supervision required and exercised, nature and kind of work required, and generally the same kind and amount of training and experience for proper performance and which merit approximately equal pay, shall be allocated to the same class.”

As in Divisions 2 and 4 (a), supra, absence from the record on appeal of evidence supporting appellants’ position that their responsibilities were equal to those of lieutenant precludes, for the most part, our review of the trial court’s conclusion. We note, however, that in the job description of a “lieutenant” in the State Patrol (which was attached to Saylor’s deposition below and is included in the record as an attachment to the State’s brief in support of summary judgment below), first among the responsibilities and duties is the requirement to “act as commander of all operations, in the absence of the commander.” It is undisputed that Ferros and Smith did not assume command in the absence of Chumley, whereas Shaw did so. Assuming there is such a cause of action as negligent misclassification, this enumeration is without merit, and we must affirm the trial court’s judgment.

Judgment affirmed.

Beasley, P. J., and Cooper, J., concur.

Michael J. Bowers, Attorney General, John C. Jones, Daryl A. Robinson, Senior Assistant Attorneys General, Donald C. English, for appellees.


text:
    A93A1529.
    PEOPLES v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY.
    (438 SE2d 167)
   Beasley, Presiding Judge.

Plaintiff Peoples appeals from the trial court’s grant of his uninsured/underinsured motorist carrier State Farm’s motion to dismiss based on its claim of untimely service of process. Peoples contends that the court erred because, prior to the expiration of the two-year statutory limitation, he filed a motion for leave to add State Farm and also State Farm had been notified of the possibility of a claim.

On September 21, 1990, Peoples was a passenger in a vehicle which collided with a vehicle operated by Holley. By letter to Peoples’ counsel dated February 17, 1992, a State Farm claim superintendent acknowledged that the insurer’s exposure “appear [ed] to be as excess PIP and as . . . possibly an Underinsured Motorist claim.”

On August 24, 1992, Peoples sued Holley, alleging negligence which was wanton, reckless and showed conscious indifference to consequences. He moved to add State Farm as an indispensable party about two weeks later, which was still within the statute of limitation. He attached a proposed amendment to the complaint and a copy of the original complaint. This was accompanied by a letter to the court and a proposed order granting the addition and amendment.

The next day, September 9, the court clerk sent a letter notifying Peoples’ counsel that the trial court’s next motion day was not until October 23, and that the attorney had to forward a consent or place the matter on said motion calendar. On September 25, plaintiff’s attorney forwarded a consent for signing to defendant Holley’s attorney, who advised on September 29, that he was not in a position to sign a consent order adding State Farm as a party.

After receiving notice that the motion to add State Farm was assigned to the October 23 court calendar, Holley’s counsel sent a letter to the court stating that he would not attend the hearing because he was not in a position to oppose or agree to plaintiff’s motion. On December 11, the court granted the motion to add State Farm and permitted the amended complaint. Peoples filed the amendment on December 16, summons issued that day, and service was perfected on State Farm on December 28.

Thereafter, it filed an answer reserving its rights and without submitting to the court’s jurisdiction, a cross-claim against defendant Holley, interrogatories, and a request for production of documents. Later, it moved to dismiss the case as to it, claiming that it was not served within the applicable statute of limitation. The court granted the motion, citing as authority State Auto Ins. Co. v. Reese, 191 Ga. App. 818 (383 SE2d 157) (1989), and Bohannon v. Futrell, 189 Ga. App. 340 (375 SE2d 637) (1988).

As discussed in both Bohannon and Reese, OCGA § 33-7-11 (d) requires service on the uninsured motorist carrier within the time allowed for service on the defendant in the tort action. Compliance with the statutory mandate does not confer party status on the carrier. See Bohannon at 341 (1). Instead, the carrier has the option of becoming a party and filing its pleadings, or filing pleadings on behalf of the defendant owner or operator or both, or doing nothing. Therefore, the question of whether or not State Farm was timely served as the uninsured motorist carrier is not dependent on its status as a party to the suit by amendment. See OCGA § 9-11-4 (c). Nor is the issue notice or harm to the carrier, but squarely the timeliness of service. See Reese at 819 (1). The carrier must be served at the outset, “as though [it] were actually named as a party defendant.” OCGA § 33-7-11 (d). Although a plaintiff has the option of naming his carrier as a party defendant or not, he has no option regarding service. The law requires that the insurer be served so that it, not merely the insured, can assess its potential liability from the time litigation commences against the tortfeasor.

The insured cannot avoid the mandate of OCGA § 33-7-11 (d) and the consequences of not complying with it by adding the insurer to the tort suit when and if he perceives a need to pursue uninsured or underinsured motorist coverage for payment of the potential judgment against the tortfeasor. The legislature has given the opportunity to anticipate underinsured motorist claim liability and to prepare for it to the insurer, which under its contract bears the ultimate risk of payment of a judgment against an uninsured or underinsured tortfeasor. It has a choice of whether and when and how to be involved in the tort suit.

In Williams v. Colonial Ins. Co. of California, 199 Ga. App. 760 (406 SE2d 99) (1991), in which the uninsured motorist carrier was served within five days after the expiration of the statute of limitation, this court held that “ ‘ “[w]here the statute of limitation accrues between the date of filing and the date of service, whether or not it relates back (if the service is more than five days after the filing) depends on the length of time and the diligence used by the plaintiff.” (Cits.)’ (Emphasis supplied.) [Cit.] This rule has previously been applied by this court with respect to service against uninsured motorist carriers. [Cit.]” We might add, whether they are defendants or not.

Here, the court had to look “at all the facts involved and ascertain whether the plaintiff was in any way guilty of laches. If he were, of course he would be barred, but if he acted in a reasonably diligent manner then he would not be. (Cits.)” (Punctuation omitted.) Gordon v. Coles, 207 Ga. App. 889 (429 SE2d 297) (1993). The matter is within the trial court’s discretion and the court’s decision will not be disturbed absent abuse. Id.

Decided November 19, 1993.

Hart & McIntyre, George W. Hart, for appellant.

Crim & Bassler, Nikolai Makarenko, Jr., Alan W. Connell, for appellee.

That plaintiff filed his motion to add the carrier as a party and to amend the complaint to reflect such addition prior to the expiration of the statute of limitation provided no justification for failing to serve the carrier at the time suit was filed. The reason is that the carrier’s right to service was independent of its insured’s decision to add it as a party to the action. Thus, the two-step analysis for allowing parties to be added, as set out in Horne v. Carswell, 167 Ga. App. 229 (306 SE2d 94) (1983), is unnecessary because it is irrelevant. The plaintiff articulated no reason for the delay other than that the court had not earlier permitted its addition as a party. Therefore, the trial court was authorized to find the plaintiff’s lack of diligence as a matter of law in its service on the carrier, and consequently, to grant State Farm’s motion to dismiss it from the action.

Judgment affirmed.

Cooper and Smith, JJ., concur.


author: Blackburn, Judge.

text:
    A93A1834.
    WILLIAMS v. PAYNE et al.
    (438 SE2d 170)
   Blackburn, Judge.

R. Tommy Williams appeals the trial court’s order terminating his parental rights with respect to his minor child. Marci Williams, the child’s mother, voluntarily gave up custody of her child in favor of her uncle and his wife, the appellees, and is not involved in this appeal. On appeal, Williams enumerates six of the trial court’s findings as error. However, each enumeration concerns the correctness of the trial court’s decision to terminate Williams’ parental rights; therefore, they will be discussed together.

“A finding of unfitness must center on the parent alone, that is, can the parent provide for the child sufficiently so that the government is not forced to step in and separate the child from the parent. A court is not allowed to terminate a parent’s natural right because it has determined that the child might have better financial, educational, or even moral advantages elsewhere. [Cit.] Only under compelling circumstances found to exist by clear and convincing proof may a court sever the parent-child custodial relationship.” Carvalho v. Lewis, 247 Ga. 94, 95 (274 SE2d 471) (1981). Furthermore, “evidence of past unfitness, standing alone, is insufficient to terminate the rights of a parent in his natural child; clear and convincing evidence of present unfitness is required. [Cits.]” Blackburn v. Blackburn, 249 Ga. 689, 692 (292 SE2d 821) (1982).

After a hearing, the juvenile court determined that Williams was currently unfit based upon a combination of the following facts: (1) Williams’ failure to sufficiently exercise his visitation rights and, when exercised, his failure to act as physical caretaker of the child, instead allowing his mother or girl friend to care for the child; (2) the existence of “great discord and aberrant behavior” in the home of Williams’ parents, where Williams resides; (3) an act of violent behavior directed toward the child’s mother by Williams in the presence of the child, in which Williams threw rocks at the car in which the mother and child were sitting, then proceeded to pull the mother out of the car by her hair and hit her head against the car door; (4) Williams’ arrearage in child support payments of $945, despite his full-time employment; and (5) Williams’ failure to handle his own finances, instead, allowing his mother to pay his child support payments, when paid. The record further indicated that Williams resided with his parents in a situation in which fighting, both verbal and physical, was not uncommon. The child’s mother also testified to an instance when Williams struck the child hard enough to knock the child off the three-wheel toy the child was riding across the living room floor.

The superior court adopted the findings of the juvenile court and determined that because Williams was unfit by clear and convincing evidence, the best interest of the child dictated that the child remain in the custody of the appellees.

“[T]he appropriate standard of appellate review in a case where a parent’s rights to his child have been severed is ‘whether after reviewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost.’ ” Id. at 694. Our review of the record supports the trial court’s findings. Although there was conflicting testimony, “[t]he reviewing court is to defer to the lower court in the area of factfinding and should affirm unless the appellate standard of review is not met.” (Citation and punctuation omitted.) In the Interest of B. P., 207 Ga. App. 242, 244 (427 SE2d 593) (1993). The record indicates that the trial court applied the clear and convincing standard to the facts presented and properly terminated Williams’ parental rights.

Judgment affirmed.

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

Decided November 19, 1993.

John B. Begonia, Jr., for appellant.

Strauss & Walker, Calvin M. Walker, Joab L. Kunin, for appellees.