text:
    A97A1260.
    HUNTER v. THE STATE.
    (493 SE2d 44)
   Pope, Presiding Judge.

Defendant Leon Charles Hunter was indicted and charged with two counts of kidnapping with bodily injury, two counts of aggravated battery and four counts of aggravated assault. During the course of a jury trial, the State presented evidence from which any rational trier of fact could have concluded beyond a reasonable doubt that defendant and Stephen Bruner, acting in concert, had coerced two victims at gunpoint to leave a parking lot in which the victims were walking and go to an adjacent wooded area, where defendant shot both victims in the leg. After the presentation of all evidence, however, the trial court only instructed the jury on simple kidnapping instead of kidnapping with bodily injury. The trial court also provided a jury form to the jury which referred to the kidnapping charges solely as “kidnapping” rather than “kidnapping with bodily injury.”

Subsequently, after concluding that the State failed to prove the aggravated battery charges as alleged in the indictment, the trial court reduced those charges to simple battery. It then submitted the case to the jury, which returned a guilty verdict on two counts of kidnapping, two counts of simple battery and two counts of aggravated assault. Thereafter, the trial court merged the aggravated assault charges with the kidnapping charges and gave defendant two life sentences for kidnapping. Defendant also received two 12-month sentences on the simple battery charges.

On appeal, defendant argues that the trial court erred in failing to instruct the jury that bodily injury is an essential element of kidnapping with bodily injury, and that absent such instruction, defendant’s convictions and sentence for kidnapping with bodily injury cannot stand. We agree.

Subsection (a) of OCGA § 16-5-40 defines kidnapping, and then subsection (b) of that same Code section provides that “[a] person convicted of the offense of kidnapping shall be punished by imprisonment for not less than ten nor more than 20 years, provided . . . that, if the person kidnapped shall have received bodily injury, the person convicted shall be punished by life imprisonment or by death.” While it is not explicit in the above statute, the courts of this state have treated kidnapping with bodily injury as a distinct offense separate from and greater than kidnapping. Patrick v. State, 247 Ga. 168, 170 (274 SE2d 570) (1981); Hester v. State, 216 Ga. App. 400, 401 (454 SE2d 604) (1995). Specifically, kidnapping is a lesser included offense of kidnapping with bodily injury, lacking only the element of bodily injury.

“It is the duty of the [trial court], with or without request, to give the jury an appropriate instruction as to the law on each substantive point of issue involved in a case so as to enable the jury to judiciously decide the guilt or innocence of a defendant.” (Citation and punctuation omitted.) Phelps v. State, 192 Ga. App. 193, 195 (1) (384 SE2d 260) (1989). Accordingly, in this case, it was incumbent upon the trial court to at least instruct the jury that bodily injury was an essential element of the offense of kidnapping with bodily injury. This is so even though the trial court read the indictment to the jury at the beginning of the trial, because the indictment merely accused defendant of “kidnapping” while referencing bodily injury to the victims during the kidnapping. As such, the indictment itself did not inform the jury that bodily injury was an essential element of the kidnapping charges against defendant.

Absent any reference to of instruction regarding the bodily injury element of the offense of kidnapping with bodily injury, we conclude that the trial court’s charge to the jury in this case was substantially in error and harmful as a matter of law in that it authorized a conviction for kidnapping with bodily injury upon proof of only the elements of simple kidnapping. Moreover, the failure to mention the bodily injury element in its instructions when combined with the verdict form given to the jury, which likewise made no reference to bodily injury, constitutes error so blatantly apparent and highly prejudicial that it deprived defendant of a fair trial as to the allegations of kidnapping with bodily injury set forth in the indictment against him. Thus, we are required to consider this error even though defendant failed to reserve any objection to the charge. Christopher v. State, 190 Ga. App. 393, 397-398 (6) (379 SE2d 205) (1989); Laney v. State, 184 Ga. App. 463, 467 (2) (361 SE2d 841) (1987). Upon doing so, we vacate defendant’s kidnapping with bodily injury convictions and the sentence imposed for those convictions. See Hester, 216 Ga. App. at 401; Chandler v. State, 204 Ga. App. 816, 821 (3) (421 SE2d 288) (1992); Hudson v. State, 189 Ga. App. 201, 202 (3) (375 SE2d 475) (1988). However, in light of the fact that the evidence in this case as set forth above was sufficient to allow the jury to convict defendant of either kidnapping with bodily injury or the lesser included offense of simple kidnapping under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), and the fact that the trial court’s jury instructions clearly set forth the elements required for a simple kidnapping conviction, in accordance with the State’s expressed preference for resentencing rather than for a new trial as to the counts involving kidnapping, we remand the case to the trial court with the direction that defendant be resentenced for simple kidnapping in accordance with the dictates of OCGA § 16-5-40 (b). Chandler, 204 Ga. App. at 821-822 (3); Hudson, 189 Ga. App. at 202 (3). Upon remand, the trial court may also reconsider any merger issues.

Decided October 20, 1997.

Emmett J. Arnold IV, for appellant.

Robert E. Keller, District Attorney, Nancy T. Bircher, Assistant District Attorney, for appellee.

Judgment vacated and case remanded for resentencing with direction.

Blackburn, J., and Senior Appellate Judge Harold R. Banke concur.


source: Caselaw Access Project

author: Andrews, Chief Judge.

license: Public Domain

text:
    A97A1954.
    MAYOMI v. PORTMAN PROPERTIES, INC. et al.
    (493 SE2d 39)
   Andrews, Chief Judge.

Leaving his job on the 19th floor of a building allegedly owned by Portman Properties, Inc. (Portman), Dare Mayomi boarded an elevator apparently serviced by Schindler Elevator Company (Schindler). The elevator descended to the lobby but stopped two feet above the lobby floor. When its doors opened, Mayomi stepped out and fell, injuring himself. He sued Portman and Schindler, claiming the defendants failed to adequately inspect and maintain the elevator or warn passengers of its hazards. Finding without question of fact that Mayomi should have seen that the elevator was not level with the floor, the trial court ruled that Mayomi failed to exercise ordinary care for his own safety and granted summary judgment to the defendants. Mayomi appeals.

1. In his sole enumeration, Mayomi contends that his “explanation of why he was not looking as he [exited the elevator] creates a question of fact for the jury.” The “explanation” to which he refers is contained in an affidavit he signed on November 7, 1996, and filed with the court on November 12, 1996, which he submitted as part of his “supplemental response” to the defendants’ motion for summary judgment. The trial court, however, heard oral argument on the motion for summary judgment on November 1, 1996, and its order does not refer to the affidavit. Therefore, we conclude the affidavit was not properly within the evidence considered by the trial court in making its determination. “An affidavit made in opposition to a motion for summary judgment not served at least one day before the hearing is barred by the Civil Practice Act from consideration as evidence unless the record discloses the trial court, in the exercise of its discretion, has allowed the affidavit to be served and considered.” (Citations and punctuation omitted.) Brown v. Williams, 259 Ga. 6, 7 (4) (375 SE2d 835) (1989). As nothing in the record shows the trial court considered this untimely affidavit, Mayomi’s argument that he was “distracted” by activities occurring in the lobby is meritless. Id.

2. In otherwise reviewing the evidence of record de novo, as we do from the grant of a summary judgment, we find no error. See Gentile v. Bower, 222 Ga. App. 736, 737 (477 SE2d 130) (1996). “Summary judgment is appropriate when the court, viewing all the evidence and drawing reasonable inferences in a light most favorable to the non-movant, concludes that the evidence does not create a triable issué as to each essential element of the case. [Cit.]” Steele v. Chappell, 222 Ga. App. 451 (474 SE2d 309) (1996). Mayomi testified he stood facing the elevator doors as it descended and was the first to exit the elevator. He was carrying no packages. The descent was uneventful, lighting in the elevator was “normal,” and there were no flickering or flashing lights to distract him. Mayomi testified during his deposition that he could not recall seeing any obstacles between the elevator and the lobby or unusual activities in the lobby which might distract him. He did not remember whether he looked down before stepping out of the elevator; nevertheless, after he fell he looked back and could see that the elevator floor was “a couple of feet” above the lobby floor.

“Summary judgment is appropriate in situations where the hazardous condition was visible to the plaintiff, had the plaintiff looked. [Cits.]” J. H. Harvey Co. v. Kinchen, 213 Ga. App. 868, 869 (446 SE2d 218) (1994). The facts of this case are very close to those of Stephens v. Dover Elevator Co., 109 Ga. App. 112 (135 SE2d 593) (1964). There the plaintiff stepped into an elevator that had not leveled appropriately, tripped and fell. In upholding a trial court’s dismissal of the complaint, this Court found the plaintiff had given no excuse for not seeing the plain hazard. “[T]he general allegation that she did not have knowledge of [the danger] must yield to the specific facts alleged which affirmatively disclosed that said condition was readily observable by the plaintiff and the attendant danger could have been avoided by her in the exercise of ordinary care for her own safety.” Id. Here, likewise, Mayomi stepped from an elevator that had stopped two feet above the lobby floor. He has given no reason for his failure to see the two foot gap between the elevator floor and the lobby floor. Under these circumstances, the trial court did not err by finding, as a matter of law, that Mayomi failed to exercise due care for his own safety. Compare Armor Elevator Co. v. Hinton, 213 Ga. App. 27, 29 (1) (443 SE2d 670) (1994), in which the plaintiff fell three feet when she exited a “misleveled” elevator. There we found the stress of flashing strobe lights inside the elevator distracted the plaintiff and allowed a jury to excuse her failure to look down before exiting the elevator and falling to the lobby floor.

Decided October 20, 1997.

Hillman J. Toombs, for appellant.

Schreeder, Wheeler & Flint, David H. Flint, Alexander J. Simmons, Jr., Drew, Eckl & Farnham, Gregory G. Schultz, Arthur H. Glaser, for appellees.

Judgment affirmed.

Johnson and Blackburn, JJ, concur.

       This deposition testimony can also be considered to contradict his affidavit testimony regarding the “distractions” he encountered upon reaching the lobby, giving the trial court another basis for rejecting the affidavit testimony. See Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (1) (343 SE2d 680) (1986).


author: Pope, Presiding Judge.

text:
    A97A1983.
    MITCHELL et al. v. HAMILTON.
    (493 SE2d 41)
   Pope, Presiding Judge.

The trial court dismissed this personal injury action arising from an automobile collision because plaintiff Phyllis Mitchell served defendant Joy Hamilton over three months after the statute of limitation expired. Mitchell claimed that both she and her minor daughter, Kiara, were injured in the May 30, 1994 incident. She sought to recover damages for her own injuries and medical expenses incurred by her daughter. As Kiara’s next friend, Mitchell also made a personal injury claim on the child’s behalf. The trial court found Mitchell failed to show she made diligent efforts to serve Hamilton. We affirm the court’s dismissal of Mitchell’s claims for personal injury and for Kiara’s medical expenses; however, we reverse the dismissal of Kiara’s claims because the statute of limitation is tolled during her minority.

1. Mitchell’s claims are governed by a two-year statute of limitation, which expired May 30, 1996. OCGA § 9-3-33; see Davis v. Desa Intl., 209 Ga. App. 318 (433 SE2d 410) (1993). Mitchell did not serve Hamilton until September 4, 1996. When service is made outside the limitation period, “[t]he plaintiff has the burden of showing that due diligence was exercised. Ordinarily, the determination of whether the plaintiff was guilty of laches in failing to exercise due diligence in perfecting service after the running of the statute of limitations is a matter within the trial court’s discretion and will not be disturbed on appeal absent abuse.” (Citation and punctuation omitted.) Cantin v. Justice, 224 Ga. App. 195, 196 (480 SE2d 250) (1997). The plaintiff must also show the failure to timely serve was not her fault. Sykes v. Springer, 220 Ga. App. 388, 389 (1) (469 SE2d 472) (1996).

“The burden is on the plaintiff to ascertain a defendant’s residence, and that obligation does not arise only upon expiration of the statute of limitation. [Cit.]” Devoe v. Callis, 212 Ga. App. 618, 619 (1) (442 SE2d 765) (1994). When Mitchell’s attorney filed this action one month before the statute of limitation expired, she directed the sheriff to serve Hamilton at the address listed on a police report prepared almost two years earlier. “Under the circumstances, diligence would seem to dictate that [Mitchell] take at least some action to ensure that the information was not stale.” Walker v. Bord, 225 Ga. App. 242, 243 (483 SE2d 675) (1997). Because the sheriff returned that summons on May 31, 1996, with the notation that Hamilton had moved, Mitchell then became “obligated to exercise, not due diligence, but the greatest possible diligence to ensure proper and timely service.” (Citations and punctuation omitted.) Sykes, supra at 390 (2).

The record shows Mitchell made no further attempts at service until July 2, 1996, after she obtained a different address for Hamilton from the phone book. The summons and request for service she mailed to the clerk of superior court on July 2 were returned on July 22, apparently because no copy of the complaint was enclosed. By the time the sheriff could again attempt service on July 24, Hamilton had moved again. Mitchell’s counsel learned of this new problem on July 30, but she apparently made no further efforts at service for almost a month. Around August 26, the attorney called Hamilton’s phone number and learned she had moved to a different apartment in the same complex. She mailed the clerk a request for service on August 26. Even then, she did not know Hamilton’s actual apartment number and requested the sheriff ask the apartment’s resident manager for it. Mitchell has given no explanation for the month-long gaps between her May, July and late August attempts at service, and she has not explained her failure to include a copy of the complaint with her July summons. See Devoe, 212 Ga. App. at 620. Under these circumstances, we cannot say that the trial court abused its discretion in finding a lack of diligence and dismissing Mitchell’s claims. See Cantin, 224 Ga. App. at 197.

2. The trial court’s finding also authorized it to dismiss Mitchell’s claims for medical expenses Kiara incurred as a result of the collision. Under OCGA § 19-7-2, the right to recover a minor’s medical expenses in a tort action is vested solely in the child’s parents. See Jarrell v. State Merit System, 205 Ga. App. 527, 528 (423 SE2d 1) (1992); Rose v. Hamilton Med. Ctr., 184 Ga. App. 182 (361 SE2d 1) (1987) (physical precedent only). The expiration of the two-year statute of limitation for personal injury extinguished these claims. See Rose, 184 Ga. App. 182.

Decided October 20, 1997.

Joyce W. Bergman, for appellants.

Harper, Waldon & Craig, Thomas D. Harper, for appellee.

3. The trial court erred, however, by dismissing those personal injury claims belonging to Kiara Mitchell, who was 12 years old when her mother filed this suit on her behalf. The statute of limitation does not run against an unemancipated minor even though the child is represented by a next friend or guardian ad litem. See OCGA § 9-3-90; Barnum v. Martin, 135 Ga. App. 712, 715 (2) (219 SE2d 341) (1975). Because the statute is tolled until Kiara attains majority, the court erred in requiring her mother to show a diligent effort to serve Hamilton with notice of Kiara’s claims. Hamilton does not address this issue on appeal except to argue that Mitchell waived the right to make this argument. We disagree, as Mitchell did raise the issue in her oral argument before the trial court. See Hughes v. Montgomery Contracting Co., 189 Ga. App. 814, 815 (377 SE2d 723) (1989). Moreover, Hamilton’s attorney acknowledged at the motion hearing that the child’s claim for pain and suffering “could withstand the motion to dismiss.” Therefore, we reverse the trial court’s dismissal of Kiara’s claims for pain and suffering.

Judgment affirmed in part and reversed in part.

Johnson and Blackburn, JJ., concur.

       Although Mitchell’s complaint states that the accident occurred May 31, 1994, her brief acknowledges May 30, 1994 as the correct date.


author: Birdsong, Presiding Judge.

text:
    A96A0566.
    RAGAN ENTERPRISES, INC. v. L & B CONSTRUCTION COMPANY, INC. et al.
    (492 SE2d 671)
   Birdsong, Presiding Judge.

In Ragan Enterprises v. L & B Constr. Co., 221 Ga. App. 543 (472 SE2d 88) we reversed the grant of summary judgment to L & B Construction Company, holding that the subcontract between general contractor L & B and subcontractor Ragan Enterprises did not bar Ragan’s recovery of damages for a two-year delay because exculpatory clauses must be clearly and unambiguously stated and “ ‘ “must be specific in what they purport to cover.” ’ ” Id. The Supreme Court determined the clause in the subcontract in this case was “specific” enough to exculpate the contractor of damages even though it did not specifically mention damages. L & B Constr. Co. v. Ragan Enterprises, 267 Ga. 809 (482 SE2d 279).

Decided July 10, 1997

Reconsideration denied October 21, 1997.

Smith, Howard & Ajax, Larry S. McReynolds, Scott D. Cabalan, for appellant.

Following the remittitur, Ragan filed a “supplemental brief” urging this Court to address its remaining enumerations and to hold that the no-damages-for-delay clause in this contract is not enforceable because L & B’s delay was caused by bad faith and because L & B breached an express duty to schedule and coordinate the work and breached an implied duty not to delay Ragan’s performance.

The Supreme Court held Ragan cannot recover damages for L & B’s delays, “except those involving fraud and bad faith.” The actual phrase in the general contract, which the Supreme Court held “flows down” to the parties’ subcontract, prohibits delay damages except those “due solely to fraud or bad faith on the part of the owner or his agents.” (Emphasis supplied.) The bad faith alleged by Ragan is L & B’s failure to provide access to work sites, to coordinate the work, and to resolve discrepancies and deficiencies in the plans and specifications in a timely manner, and the fact that L & B ignored Ragan’s frequent complaints that the work was not being planned, scheduled and coordinated. However, no specific evidence is shown by Ragan that the delay in this case was due “solely” to L & B’s bad faith or fraud. Ragan asserts the parties could not reasonably have contemplated a delay of “this kind and magnitude,” that the delays were unreasonable in duration and that the delays were caused by L & B’s “active interference.” All this may be true but it does not necessarily follow that the entire delays, even those occurring as the result of active interference, were caused “solely” by L & B’s bad faith or fraud, that is by wilful and wanton acts or malicious intent or interested or sinister motive. See Jennings Enterprises v. Carte, 224 Ga. App. 538, 541 (481 SE2d 541); Michaels v. Gordon, 211 Ga. App. 470 (2) (b) (439 SE2d 722); McDonald v. Winn, 194 Ga. App. 459, 460 (390 SE2d 890). Ragan’s duty as respondent on motion for summary judgment is to show by specific evidence that a genuine issue of material fact exists on this issue, and generalized assertions of bad faith do not satisfy that duty. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474).

Pursuant to the Supreme Court’s holding, the summary judgment granted to L & B Construction by the trial court is hereby affirmed.

Judgment affirmed.

Beasley and Blackburn, JJ, concur.

Bovis, Kyle & Burch, John V. Burch, Gregory R. Veal, for appellees.


author: Eldridge, Judge.

text:
    A97A2122.
    GRAIN DEALERS MUTUAL INSURANCE COMPANY v. PAT’S RENTALS, INC. et al.
    (492 SE2d 702)
   Eldridge, Judge.

Appellee Pat’s Rentals, Inc. hired and retained Travis Reed as an employee. While allegedly acting within the scope of his employment and while operating a vehicle owned by and for his employer, Pat’s Rentals, Reed had a collision with Susanne Sanders, the minor daughter of Kay and Kenneth Sanders, injuring her. Individually and as next friend for their daughter, the Sanderses sued Reed and Pat’s Rentals in the Superior Court of Elbert County, Case No. 95EV-406G. Two of the multiple theories attributing liability to Pat’s Rentals were based upon the allegedly negligent hiring and retention of Reed.

Appellee Unisun Insurance Company (“Unisun”) was the motor vehicle liability insurer for Pat’s Rentals, and Unisun was tendered the defense by its insured Pat’s Rentals; Unisun undertook the defense under a reservation of rights. Appellant Grain Dealers Mutual Insurance Company (“Grain Dealers”) had issued a commercial general liability (“CGL”) policy to Pat’s Rentals, which was in effect at the time of the collision. On August 13, 1996, Grain Dealers notified Pat’s Rentals’ counsel of record that it had no duty to defend or indemnify Pat’s Rentals against the claim for negligent hiring and negligent retention of Reed, because the CGL policy contained an automobile exclusion.

On October 25, 1996, Pat’s Rentals and Unisun brought this declaratory action in DeKalb Superior Court against Grain Dealers. After Grain Dealers answered, Pat’s Rentals and Unisun moved for summary judgment. Grain Dealers filed its own cross-motion for summary judgment, based upon the express language of its automobile exclusion.

On May 1, 1997, the trial court granted the motion for summary judgment for Pat’s Rentals and Unisun and denied the motion for summary judgment for Grain Dealers as to the duty to defend and indemnify against the claims for negligent hiring and negligent retention. Timely notice of appeal was filed.

Grain Dealers’ first two enumerations are the converse of each other: that the trial court erred in granting the summary judgment against it and in denying its motion for summary judgment; and that the motor vehicle policy exclusion in the CGL policy relieved it of the duty to defend or to indemnify Pat’s Rentals from the claims for negligent hiring and negligent retention of Reed.

(a) The liability coverage for defense and indemnification for the negligent operation and use of the motor vehicle of the insured by its employee for general and special damages is expressly excluded under the motor vehicle exclusion of the CGL policy issued by Grain Dealers and is specifically imposed upon Unison under its automobile liability policy. Thus, Grain Dealers has no duty to defend or to indemnify against general and special damages, i.e., “bodily injury” and “property damage.” Unisun does have such duty under its motor vehicle liability policy.

In Guaranty Nat. Ins. Co. v. Brock, 222 Ga. App. 294, 296-297 (2) (474 SE2d 46) (1996), this Court held that the nature of coverage for a professional insurance liability policy was such that the school district transportation supervisor, who was responsible for the hiring, training, and supervision of administration of school transportation and the drivers was not excluded from coverage by a motor vehicle exclusion provision, but received the coverage for which he had bargained as a professional educator or administrator. The specific language of the exclusion was not applicable to “ ‘the ownership, maintenance, operation, use, loading or unloading of . . . vehicles.’ ” Id. at 296 (2). In this case, the CGL policy excludes “ ‘bodily injury’ or ‘property damage,’ arising out of the ownership, maintenance, use or entrustment to others of any aircraft, ‘auto’ or watercraft owned or operated by or rented or loaned to any insured. Use includes operation and ‘loading or unloading.’” Such exclusion is much broader than the exclusion under Brock and would include not only negligent entrustment of the vehicle but also negligent hiring or retention of the driver. The issue in Brock was coverage or non-coverage, i.e., if there had been liability coverage for operation of the school buses, then the administrator’s coverage would have been secondary liability coverage.

Further, in this case, the issue is not between primary or secondary coverage, but between total exclusion and non-exclusion of coverage. In Brock, the reason that the issue was coverage, instead of exclusion, lies in the nature of the policy and the language of the exclusion to protect the individual from liability in the conduct of his professional school duties; if the exclusion in Brock had applied, then the administrator would have had no professional coverage at all under the normal performance and circumstances of his job as supervisor of transportation, which would contravene the very purpose of the professional liability insurance policy. Such is not the case here, because the CGL policy, absent the exclusion, would cover the collision as secondary coverage to the motor vehicle policy’s primary coverage, but CGL would also cover other business liability as well. The insured, Pat’s Rentals, contracted for a general liability coverage, CGL coverage, from Grain Dealers with an exclusion of motor vehicle coverage to avoid overlapping coverage and to reduce the premiums. Pat’s Rentals contracted with Unison to provide motor vehicle liability coverage only. Unlike Brock, the expectations of the insured and the insurers were that there would be two policies of insurance without overlapping coverage and that each insurer would accept a premium for a specific risk insured against as insurance specialists. Thus, Brock is distinguished both on the law and facts from this case.

Roberts v. Burke County School Dist., 267 Ga. 665 (482 SE2d 283) (1997), indicates that the coverage question may depend upon “proximate cause,” i.e., the meaning of “use” and how use involves causation for purposes of coverage. In this case, the direct and immediate cause, i.e., proximate cause, of potential liability was the operation of the motor vehicle, which comes within the direct coverage by Unisun; the indirect but foreseeable cause, i.e., concurrent proximate cause, was the negligent hiring and retention of Reed, which is covered by the CGL policy of Grain Dealers as secondary coverage, but for the exclusion. Thus, “but for” the motor vehicle exclusion, both insurers would have coverage: the primary coverage with Unisun, and the secondary coverage with Grain Dealers. Use of tort analysis concepts to construe insurance contract language provides no assistance except to determine potential liability risks and to demonstrate that “use” must fall outside the exclusion. .

Clearly, Grain Dealers fixed the limits of its risk by use of the motor vehicle exclusion language, which also excludes liability for negligent hiring or retention for “bodily injury” or “property damages” arising out of use of a motor vehicle. Pat’s Rentals knowingly accepted the policy with this clear and unambiguous exclusion and obtained motor vehicle coverage from Unisun to cover the specifically excluded risk in the CGL policy. See Continental Cas. Co. v. HSI Financial Svcs., 266 Ga. 260, 262 (466 SE2d 4) (1996); Southern v. Sphere-Drake Ins. Co., 226 Ga. App. 450 (486 SE2d 674) (1997); Dynamic Cleaning Svc. v. First Financial Ins. Co., 208 Ga. App. 37, 39 (430 SE2d 33) (1993). The intent of the policy, coupled with the exclusion, controls coverage, not how artfully a claim is drafted to bring inclusion within the coverage language and to avoid the exclusion language. Thus, the underlying facts and circumstances of the claim, rather than the theory of the claim, determine whether or not the exclusion applies. See Continental Cas. Co. v. HSI Financial Svcs., supra at 262; Dynamic Cleaning Svc. v. First Financial Ins. Co., supra at 39; Gary L. Shaw Builders v. State Auto. Mut. Ins. Co., 182 Ga. App. 220, 222-224 (2) (355 SE2d 130) (1987). Accordingly, the trial court erred in granting summary judgment to Pat’s Rentals and Unisun and in denying summary judgment to Grain Dealers.

(b) The secondary coverage for liability for punitive damages only, arising out of the negligent hiring or the negligent retention of the insured employee, Reed, is imposed upon Grain Dealers under the CGL policy, because the punitive damages: (1) are not expressly excluded by the policy language; (2) would arise directly and proximately from the alleged aggravating circumstances under OCGA § 51-12-5.1 (b) of the negligent hiring or negligent retention as part of the operation of Pat’s Rentals; and (3) would only incidentally arise from the operation of a motor vehicle, while the CGL policy’s automobile exclusion seeks to exclude only primary and secondary coverage for general and special damages, i.e., “bodily injury” and “property damage.”

By its plain and unambiguous language, the automobile exclusion applies only to “bodily injury” and “property damage.” Since the passage of OCGA § 51-12-5.1 (c) in 1987, “[pjunitive damages shall be awarded not as compensation to a plaintiff but solely to punish, penalize, or deter a defendant.” Thus, punitive damages are neither “bodily injury” nor “property damage” and clearly do not come within the plain language of the CGL policy automobile exclusion. See Continental Cas. Co. v. HSI Financial Svcs., supra at 262-263; Dynamic Cleaning Svc. v. First Financial Ins. Co., supra at 39; Gary L. Shaw Builders v. State Auto. Mut. Ins. Co., supra at 222. Therefore, the CGL policy of Grain Dealers provides secondary liability coverage for punitive damages, while Unisun provides primary liability coverage for all damages.

By the terms of its CGL policy, Grain Dealers could have expressly, clearly, and unambiguously excluded coverage for punitive damages under OCGA § 51-12-5.1, but it did not do so. Grimes v. St. Paul Fire &c. Ins. Co., 184 Ga. App. 219 (1) (361 SE2d 389) (1987); see factually Southern v. Sphere-Drake Ins. Co., supra; Canal Indem. Co. v. Blackshear Farmers Tobacco Warehouse, 227 Ga. App. 637, 640 (3) (490 SE2d 129) (1997). Punitive damages are a legal item of damages which a party may insure against. Greenwood Cemetery v. Travelers Indem. Co., 238 Ga. 313, 316-317 (232 SE2d 910) (1977); Fed. Ins. Co. v. Nat. Distrib. Co., 203 Ga. App. 763, 768 (3) (417 SE2d 671) (1992).

A liability policy of insurance must be construed strictly against the insurer as the drafter of the policy; coverage for punitive damages will be excluded from policy coverage only when the policy expressly and unambiguously makes such written exclusion in the policy, or by statute, as in the Uninsured Motorist Act. Richards v. Hanover Ins. Co., 250 Ga. 613, 615 (299 SE2d 561) (1983); Brock, supra at 296-297; Roman v. Terrell, 195 Ga. App. 219, 220-221 (393 SE2d 83) (1990); Coker v. State Farm Mut. Auto. Ins. Co., 193 Ga. App. 423 (388 SE2d 34) (1989); cf. State Farm Mut. Ins. Co. v. Kuharik, 179 Ga. App. 568 (347 SE2d 281) (1986). Thus, the automobile exclusion had the legal effect of preventing coverage only for primary or secondary liability for general or special damages, i.e., “bodily injury” and “property damage,” arising out of the use of a motor vehicle, but does not exclude secondary coverage for punitive damages for negligent hiring or negligent retention of an employee under aggravating circumstances which results in personal injuries caused by use of a motor vehicle.

Decided October 2, 1997

Reconsiderations denied October 21, 1997

Bovis, Kyle & Burch, William B. Barrickman, Jana B. Tabor, for appellant.

Chambers, Mabry, McClelland & Brooks, Robert M. Darroch, Susan G. James, for appellees.

The very nature of the automobile exclusion, when considered with the general nature of claims for negligent hiring or negligent retention, creates an ambiguity as to coverage for punitive damages; punitive damages are more likely to arise under such theories of liability than under general negligent use of a motor vehicle and would place the insured at greater need for indemnification. Therefore, absent a specific written exclusion of punitive damages as an express part of the automobile exclusion, secondary coverage for punitive damages exists under the CGL policy issued, by Grain Dealers. See generally Fed. Ins. Co. v. Nat. Distrib. Co., supra at 768.

Judgment reversed.

Birdsong, P. J., and Ruffin, J., concur.


author: Smith, Judge. Beasley, Judge,

text:
    A97A1043.
    RUSS v. AMERICAN TELEPHONE & TELEGRAPH.
    (493 SE2d 46)
   Smith, Judge.

In this appeal, claimant Nancy Russ contends that the superior court applied an improper standard of review when it reversed the substituted findings of the appellate division of the State Board of Workers’ Compensation. We agree and reverse.

The ALJ found that Russ suffered a compensable injury to her back in April 1991 while working as a senior technical assistant with AT&T. She returned to work on a half-day basis in April 1993 and on a full-time basis in August 1993. On March 31, 1994, Russ was laid off. She subsequently sought total disability benefits due to a change in condition. AT&T opposed the claim. The ALJ denied Russ’s claim, finding that Russ did not meet her burden of proving that she made a diligent search for suitable employment and therefore failed to prove that she had undergone a change in condition for the worse under the standard of Maloney v. Gordon County Farms, 265 Ga. 825, 827 (462 SE2d 606) (1995). The appellate division, however, substituted an award of temporary total disability benefits, finding that Russ proved “by a preponderance of the evidence that she has made a diligent unsuccessful job search following her layoff from AT&T, that she continues to suffer physical limitations attributable to her compensable injury, and that she suffers a loss of earning power as a result of that injury.” The superior court then reversed the appellate division, concluding that the ALJ’s findings on the issue of Russ’s failure to make diligent efforts to find employment were supported by a preponderance of the competent and credible evidence. This appeal by Russ ensued.

OCGA § 34-9-103 (a) sets out the standard to be employed by the appellate division when reviewing findings of fact made by an ALJ: those findings “shall be accepted by the appellate división where such findings are supported by a preponderance of competent and credible evidence contained within the records.” Id. The role of the appellate division, as directed by OCGA § 34-9-103, was recently clarified in Bankhead Enterprises v. Beavers, 267 Ga. 506 (480 SE2d 840) (1997). The Supreme Court held that OCGA § 34-9-103 (a) permits the appellate division to vacate an ALJ’s findings of fact and conclusions of law when they are unsupported by a preponderance of the competent and credible evidence and to substitute alternative findings. According to Beavers, “[t]he appellate division must weigh the evidence and assess the credibility of witnesses and if it determines that the award of the ALJ is supported by a preponderance of admissible evidence, it will be accepted. But, if after assessing the evidence of record, the appellate division concludes that the award does not meet the statutes’ evidentiary standards, the appellate division may substitute its own alternative findings for those of the ALJ, and enter an award accordingly. [Cits.]” Id. at 507.

Once the appellate division has made an award, the scope of a superior court’s review of the appellate division’s findings is limited. It is bound by the “any evidence” standard of review and is not authorized to substitute its findings for those made by the appellate division or to substitute its judgment concerning the weight of evidence or credibility of witnesses. Owens-Brockway Packaging v. Hathorn, 227 Ga. App. 110, 111 (488 SE2d 495) (1997). Under this standard, the trial court’s role is not to “return to the original findings of the ALJ and evaluate whether that decision was supported by a preponderance of the evidence, but to review the appellate division’s order and make a determination as to whether it is supported by any evidence.” Id. Even if the appellate division’s reweighing of the evidence resulted in a conclusion differing from that of the ALJ, the superior court must affirm the appellate division if there is any evidence to support its conclusion. Id.

Here, the appellate division found that Russ was capable of performing only sedentary work because of her injury and that she applied for and interviewed for several jobs within her physical restrictions. The appellate division further found that while Russ was not qualified for positions with AT&T for which she applied, Russ did apply and interview for jobs with other employers, and she sent resumes to employers whose names were provided by a rehabilitation counselor. The appellate division apparently relied on this evidence to find that Russ had met her burden of proving by a preponderance of the evidence that she had made a diligent job search. Although the evidence was in conflict as to the issue of Russ’s job search, and the appellate division would have been authorized to affirm the findings of the ALJ, some evidence of record was presented supporting the substituted findings made by the appellate division. Consequently, we are bound under the “any evidence” standard to uphold the award of the appellate division and to reverse the decision of the trial court reinstating that of the ALJ. See Hathorn, supra; Bankhead Enterprises, supra; accord Bennett-Murray, Inc. v. Barnes, 222 Ga. App. 137, 138-139 (1) (473 SE2d 166) (1996).

Judgment reversed.

Beasley, J., concurs specially. Birdsong, P. J, concurs in the judgment only. McMurray, P. J., disqualified.

Beasley, Judge,

concurring specially.

This case is a good illustration of two jurisprudential matters with respect to the processing of the claim of an employee for workers’ compensation benefits.

1. One is the relationship between the scope in factual determination authority of the appellate division of the Workers’ Compensation Board and the more limited scope of that authority in the superior court sitting as an appellate court. Like the administrative law judge, the appellate division of the board engages in a weighing of the evidence. Its function, when an appeal challenges the findings of fact made by the administrative law judge, is to review the evidence of record anew but through the lens of the question (not strictly de novo): “Are the administrative law judge’s findings of fact supported by a preponderance of competent and credible evidence?” OCGA § 34-9-103 (a). If the appellate division assigns more weight to some evidence than the ALJ did, or rejects certain evidence as not competent (“admissible” per OCGA § 24-1-1 (1)), or believes or disbelieves witnesses differently, then the preponderance may be on the appealing party’s side because the appellate division decides the evidence on the loser’s side is actually of superior weight. OCGA § 24-1-1 (5). Discretion is inherent in this subjective decision-making process.

Just like juries, all judges would not weigh, or believe, or adjudge evidence competency alike, within the confines of the law’s outer limits. A substitute award results, taking the victory from the party who the ALJ decided had the greater weight of competent and credible evidence. See Bankhead Enterprises v. Beavers, 267 Ga. 506 (480 SE2d 840) (1997), and cases cited therein.

When the case, which thus far has been acted on only by the executive branch of government exercising a quasi-judicial function, reaches the judicial branch, it comes with very narrow rule of law parameters. OCGA § 34-9-105 (c) lists the only possible bases for reversal. The superior court has a much more limited authority than does the board, as the second tier reviewer. With respect to the facts, the findings of the board are conclusive unless, in the judgment of the superior court, “[tjhere is not sufficient competent evidence” to warrant the decision. OCGA § 34-9-105 (c) (4). The word “sufficient” does not authorize the superior court to balance the evidence for and against the two adverse positions, for it cannot weigh the evidence. Bennett-Murray, Inc. v. Barnes, 222 Ga. App. 137, 139 (1) (473 SE2d 166) (1996). It only looks at the body of evidence supporting the decision of the board to see if it is admissible first and sufficient in substance second to support the award. Thus there is a significant distinction between roles of the board and the superior court with respect to what the facts in the case are.

2. The second matter which this case and the opinion in it demonstrate is the agonizingly long and costly process which an employee’s workers’ compensation claim must follow if it is fought to the end by the employee or the employer and insurer. This case involves the establishment of the facts, but it could just as well have involved another legal issue and the process would be the same. There are more steps and more tiers in these very frequently occurring cases than in the vast amount of matters which require adjudication. The case is presented live on one level, and then there are four possible vertical review levels. All told, fifteen officers having judicial power can be involved if a petition for certiorari is filed in the Supreme Court, even if the case is addressed only by a panel of three judges in this Court. That is more than is accorded a death penalty criminal case, which involves at most eight judicial officers in the state system.

The initial factfinder, and the only one who personally observes the giving of testimony by the witnesses with all its nuances which contribute to the issue of credibility, is the ALJ. These executive officers are specialists in workers’ compensation law and the process of adjudication for such cases. After hearing and receiving all the evidence, the ALJ is bound to issue a decision within the short period of 30 days, and the compensation award must contain written “findings of fact and conclusions of law and any other necessary explanation of the action taken.” OCGA § 34-9-102 (f). If one of the parties perceives an error, or the ALJ recognizes error himself or herself, then the ALJ “may reconsider the official decision prior to its becoming final to correct apparent errors or omissions.” OCGA § 34-9-102 (f). So there is an opportunity for review at the very first level.

The non-prevailing party may then appeal to the three-member Workers’ Compensation Board’s appellate division. OCGA § 34-9-103 (a). A limited, not a de novo, review is authorized. The legislated change in the board’s function in 1994 moved it closer to a pure review function, for previously it was a second fact-finding body and could even hear witnesses. OCGA § 34-9-103 (a), pre-1994, July 1; Automatic Sprinkler Corp. &c. v. Rucker, 87 Ga. App. 375 (73 SE2d 609) (1952); Dept. of Revenue v. Hughes, 99 Ga. App. 127, 128 (1) (108 SE2d 184) (1959); Atlanta Family Restaurants v. Perry, 209 Ga. App. 581, 582 (434 SE2d 140) (1993).

Nevertheless, once again findings of fact and conclusions of law are required. OCGA § 34-9-103 (a). And, as on the ALJ level, reconsideration of errors and/or omissions brought to the attention of the appellate division by the parties or a member of the division itself is provided for. Even at this stage, the ALJ may reconsider again. OCGA § 34-9-103 (a) and (b). Thus, there are by statute two stages of self-review to further protect the parties from injustice.

Then judicial review is available. OCGA § 34-9-105. As construed by this Court, there is an option of first judicial review taking place in the superior court sitting as an appellate court or first judicial review being in this Court. Atlanta Family Restaurants, supra, demonstrates this. The difference is that the appeal is of right to the superior court but only by application for discretionary review by this Court. OCGA § 5-6-35 (a) (1). This Court would grant review only if the appellant shows there is a possibility of legal error in the lower tribunal’s decision.

If the appellant or the superior court itself does not assure that the direct appeal is heard and decided within the time provided by statute, then the decision of the board is affirmed by operation of law. OCGA § 34-9-105 (b). That opens the door to a review of the board’s decision directly by the Court of Appeals, if it chooses to do so upon application. OCGA § 34-9-105 (d); Lanier v. Jim Brown Dev. Corp., 199 Ga. App. 255 (404 SE2d 626) (1991); Travelers Ins. Co. v. Adkins, 200 Ga. App. 278 (1)-(3) (407 SE2d 775) (1991).

OCGA § 5-6-35 (a) (1), which governs discretionary appeals, states that such may be taken “from decisions of the superior courts reviewing decisions of the State Board of Workers’ Compensation.” (Emphasis supplied.) Of course, when the board’s award is affirmed by operation of law, there is no decision of the superior court reviewing it. See Reynolds Constr. Co. v. Reynolds, 218 Ga. App. 23, 26 (459 SE2d 612) (1995) (Beasley, C. J., concurring specially). In addition, OCGA § 5-6-35 (d) states that the application shall be filed “within 30 days of the entry of the order, decision, or judgment complained of.” What is complained of was entered at the least nearly four months prior to the application for review by this Court. OCGA § 34-9-105 (b). Despite the wording of these subsections, this Court has construed that statute and OCGA § 34-9-105 (d) as authorizing it to review board decisions directly.

If the Court of Appeals agrees to review the matter, as it did in Nancy Russ’ case, then the door is open and the appeal follows the same path followed by a direct appeal. OCGA § 5-6-35 (g). This includes opportunity for petition for certiorari in the Supreme Court of Georgia, after this Court either decides the appeal or denies an application for full review. OCGA § 5-6-15. All seven justices decide whether or not to grant the petition, and if it is granted, all review the case. Ga. Const. 1983, Art. VI, Sec. VI, Par. I; OCGA § 15-2-6; Supreme Court Rule 17. Bankhead Enterprises is an example of a certiorari case where this Court declined full review and the Supreme Court reversed the superior court judgment (not one by operation of law) because the superior court misunderstood the dimensions of the role of the board in reviewing an ALJ award. It also accepts certiorari in cases where this Court allows a full review and issues a full opinion. See, e.g., Hallisey v. Ft. Howard Paper Co., 268 Ga. 57 (484 SE2d 653) (1997).

Thus, one workers’ compensation case may travel a long and slow and expensive and tortuous path before finality. Yet the purpose of the Workers’ Compensation Act is to provide ready relief to persons who are injured on the job. As stated in Southeastern Aluminum Recycling v. Rayburn, 172 Ga. App. 648, 649 (1) (324 SE2d 194) (1984), “The Workers’ Compensation Act was designed to provide immediate financial assistance to injured employees and to furnish a speedy, inexpensive and final settlement of their claims. [Cits.]” See also Slaten v. Travelers Ins. Co., 197 Ga. 1, 2 (28 SE2d 280) (1943); Travelers Ins. Co. v. Southern Elec., 209 Ga. App. 718, 719 (1) (434 SE2d 507) (1993). OCGA § 34-9-221 (a) bespeaks the goal: “Income benefits shall be paid periodically, promptly, and directly to the person entitled thereto, without an award, except where liability is controverted by the employer.” The current belabored process shunts aside the attribute of promptness.

The ALJ’s award is final unless an appeal is filed to the board. OCGA § 34-9-102 (f). If an appeal is taken from the decision of the board, “the appeal shall operate as a supersedeas if the employer has complied with the provisions of [law] respecting insurance; and no such employer shall be required to make payment of the award involved in the questions made in the case so appealed until the questions at issue therein shall have been fully determined in accordance with [the law].” OCGA § 34-9-105 (e). Then if an application for review by this Court is filed, either from the decision of a superior court or from a board decision which has been affirmed by operation of law, “[t]he filing of an application for appeal shall act as a supersedeas to the extent that a notice of appeal acts as supersedeas.” OCGA § 5-6-35 (h). OCGA § 5-6-46 sets the supersedeas law in civil actions.

Decided October 21, 1997

Bach & Hulsey, Robert J. Hulsey, Robert E. Bourne, for appellant.

Wilson, Strickland & Benson, Earl B. Benson, Jr., Sara L. Doyle, for appellee.

Nancy Russ’ injury occurred within the scope of her employment and while on the job in 1991. On May 18, 1994, she filed a notice of claim of change of condition for the worse as of March 31. Now, three and one-half years later, she has prevailed to the point of finality. That is, assuming there is no certiorari. The issue of whether this employee suffered a change has been resolved, entitling her to the workers’ compensation benefits which were to serve as steady income since 1994.

There are too many irons in this fire.


author: Blackburn, Judge. Beasley, Judge,

text:
    A97A1364.
    CITY OF ATLANTA GOVERNMENT v. SMITH.
    (493 SE2d 51)
   Blackburn, Judge.

Following his dismissal as a City of Atlanta police officer, Randolph Smith appealed to the city’s Civil Service Board (the Board), which conducted an evidentiary hearing and affirmed the dismissal. On writ of certiorari, the superior court reversed the Board and ordered Smith reinstated with back pay, and the city appeals this ruling. For the reasons discussed below, we reverse the superior court’s ruling and uphold the decision of the Board.

The basic facts of this case are not disputed. On February 21, 1991, responding to a tip from an informant, Smith arrested an individual for possession of cocaine and confiscated $233 in cash. Smith gave $120 of the confiscated money to the informant and filed an arrest report stating that he had confiscated only $113. The individual arrested by Smith turned out to be an undercover officer working with the informant on a sting operation for the Atlanta Police Department.

Smith was terminated for violating work rules by wrongfully paying confiscated money to the informant and filing a false report. In his appeal to the Board, Smith’s primary contention was that he was entrapped by the city. The Board did not address the merits of this claim, but held that, since the proceeding was not a criminal proceeding, entrapment was not a valid defense. The superior court reversed the Board on three grounds. First, the court found that Smith was in fact entrapped. Second, the court found that the city’s behavior was so outrageous that due process principles barred it from disciplining Smith. Finally, the court found that the city violated Smith’s due process rights by failing to hold a post-termination hearing within a meaningful time.

1. The appropriate standard to be applied by the superior court in reviewing on certiorari a decision of an inferior tribunal such as the Board is statutorily controlled. The relevant statute, OCGA § 5-4-12 (b), provides that “[t]he scope of review shall be limited to all errors of law and determination as to whether the judgment or ruling below was sustained by substantial evidence.” In Smith v. Elder, 174 Ga. App. 316 (1) (329 SE2d 511) (1985), this Court drew a distinction between the “substantial evidence” and the “any evidence” standards and held that the statute required application of a substantial evidence standard of review. In so doing, we overruled a line of cases holding that the appropriate standard of review to be applied by the superior court on certiorari was the any evidence standard. Id.

Following the decision in Elder, however, our Supreme Court held that “in Georgia the substantial-evidence standard is effectively the same as the any-evidence standard.” Emory Univ. v. Levitas, 260 Ga. 894, 897 (1) (401 SE2d 691) (1991). Notwithstanding this holding, this Court in Pelis v. LaPorte, 203 Ga. App. 850, 851 (418 SE2d 124) (1992), again held that it was error for the superior court on writ of certiorari to apply the any evidence standard of review rather than the substantial evidence standard.

As Pelis and Elder are inconsistent with the Supreme Court’s recognition in Levitas that “the substantial-evidence standard is effectively the same as the any-evidence standard,” such cases are hereby overruled to the extent they recognize a difference in the two standards. The appropriate standard of review to be applied to issues of fact on writ of certiorari to the superior court is whether the decision below was supported by any evidence. On appeal to this Court, “our duty is not to review whether the record supports the superior court’s decision but whether the record supports the initial decision of the local governing body or administrative agency.” Levitas, supra at 898 (1).

2. The city contends the superior court erred in finding that Smith was entrapped, arguing that entrapment is not a valid defense in a proceeding before the Board. This issue has previously been addressed by both this Court and by our Supreme Court.

In Schaffer v. State Bd. of Veterinary Medicine, 143 Ga. App. 68, 72 (2) (237 SE2d 510) (1977), this Court held that the entrapment defense, which is generally limited to a defense in a criminal proceeding, is available in an administrative hearing where a professional licensee is facing charges which could result in the loss of such licensee’s right to engage in that profession.

Our Supreme Court held in In the Matter of Kennedy, 266 Ga. 249 (466 SE2d 1) (1996) that the exception to the general rule that entrapment is a criminal defense only, established in Schaffer, had no application in a disciplinary proceeding involving one category of professional, that being an attorney. The court noted that a bar rule provided that “the procedures and rules of evidence applicable to civil cases under the law in Georgia shall apply” to attorney disciplinary proceedings. (Punctuation omitted; emphasis in original.) Id. at 251 (1). Since entrapment was not a defense available in civil cases, the court held that it was not available in attorney disciplinary proceedings. Id.

Schaffer requires no different result in the present situation. Smith was not deprived herein of a license to engage in a given profession, but was rather terminated from a particular job. While an individual terminated from a job for wrongful conduct may as a practical matter find it difficult to obtain other employment within the same line of work, he is not in fact deprived by the government of the right to engage in such work. Thus, this case falls under the general rule that entrapment is not available in a civil proceeding. Therefore, the Board correctly held that entrapment is not an available defense under the facts of this case, and the superior court erred in holding otherwise.

3. In addition to finding that Smith was entrapped, the superior court, relying on dicta in United States v. Russell, 411 U. S. 423 (93 SC 1637, 36 LE2d 366) (1973), held that the city’s behavior was so outrageous that due process principles precluded the city from disciplining Smith. In Russell, the United States Supreme Court held that the defense of entrapment was predicated upon the defendant’s predisposition to commit the crime, and not on the government’s degree of involvement with the crime. However, the Court stated in dicta that “we may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction.” Id. at 431-432.

Smith raised this issue before the Board, and although the Board did not specifically address the issue in its written order, it implicitly rejected Smith’s argument by upholding his termination. As discussed above, we are required to reverse the superior court if there was any evidence to support the Board’s decision. See Levitas, supra. The Board’s decision was clearly supported by some evidence. The evidence shows that the Atlanta Police Department, in response to a tip from an informant that an officer was paying confiscated drug money to the informant, set up a sting operation to catch the officer. The police arranged for an undercover officer to pose as a drug dealer and for the informant to notify Smith of the location of the dealer. The informant contacted Smith on his pager on more than one occasion to encourage him to arrest the drug dealer. Although the evidence is somewhat conflicting regarding the number of times the informant contacted Smith the day of the arrest, there is no evidence that he did more than inform Smith of the dealer’s location and encourage him to hurry to the scene. There is no evidence that the informant during these conversations encouraged Smith to file a false arrest report. Accordingly, not only was there evidence to support the Board’s decision, the evidence clearly shows that “[tjhe law enforcement conduct here stops far short of violating that fundamental fairness, shocking to the universal sense of justice, mandated by the Due Process Clause of the Fifth Amendment.” (Punctuation omitted.) Russell, supra at 432. Accordingly, the superior court erred in finding that the city was barred from disciplining Smith by its outrageous behavior.

4. The city contends the superior court erred in holding that Smith’s due process rights were violated by the failure to hold a timely post-termination hearing, noting that this issue was not raised in the hearing before the Board. “Where constitutional issues are raised for the first time in the superior court on certiorari from a judgment of an inferior tribunal, the superior court cannot consider, nor can this court review, the constitutional questions thus sought to be made.” Jones v. Mayor &c. of Athens, 105 Ga. App. 86, 90-91 (123 SE2d 420) (1961). Accordingly, the superior court erred in considering this issue.

Judgment reversed.

Andrews, C. J., McMurray, R J, Birdsong, P. J., Johnson and Eldridge, JJ., concur. Pope, P. J., Beasley, Smith and Ruffin, JJ., concur specially.

Beasley, Judge,

concurring specially.

I must concur because of the Supreme Court of Georgia’s pronouncement in Emory Univ. v. Levitas, 260 Ga. 894 (401 SE2d 691) (1991), that “substantial,” as the word is used in OCGA § 50-13-19 (h) (5), means “any.” In applying the standard, it also equates “substantial” and “any” with “some.” Id. at 899. Thus, OCGA § 50-13-19 (h) (5) can be read: “Clearly erroneous in view of any reliable, probative evidence on the whole record,” as well as “clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record.”

Like OCGA § 50-13-19 (h) (5), which governs superior court review of agency decisions under the Administrative Procedure Act, OCGA § 5-4-12 (b) states: “The scope of review shall be limited to all errors of law and determination as to whether the judgment or ruling below was sustained by substantial evidence.” This statute, which governs the superior court review on writ of certiorari to an inferior judicatory or person exercising judicial powers (see OCGA § 5-4-3), applies in this case.

Due to the decision in Levitas, the distinction drawn in the separate opinion in Smith v. Elder, 174 Ga. App. 316, 317-319 (329 SE2d 511) (1985), between “any” evidence and “substantial” evidence is not given legal status in Georgia. It should be otherwise. I would agree with Justice Hunt’s dissent on this point in the Levitas case and with the dissent of Justice Hall in Hall v. Ault, 240 Ga. 585, 587-588 (242 SE2d 101) (1978). They view the substantial evidence test as providing a broader scope of review than the any evidence test.

The two words have different meanings, and words must be given their plain and ordinary meaning, except for words which are terms of art or have a particular meaning in a specific context. OCGA § 1-3-1 (b). See Osborne Bonding &c. Co. v. State of Ga., 224 Ga. App. 590, 591 (481 SE2d 578) (1997). The courts are obliged to construe the legislative intendment in the context of their use in the statutes. OCGA § 1-3-1 (a). See Bibb County v. Hancock, 211 Ga. 429, 440 (2) (86 SE2d 511) (1955) (the words of a statute are always to be construed in connection with their context); OCGA § 1-3-1 (a). It is not a matter of higher courts appropriating to themselves a greater degree of oversight over lower judicatories but rather a matter of fulfilling their proper role as assigned by the law, an allocation made by the legislature of the scope of review desired.

As to common meaning, according to Webster’s Third International Dictionary, when the term “any” is used as an adjective as it is here, it means “to any extent, in any degree, at all.” And the term “substantial,” when used as an adjective, means, among other ways of putting it, “considerable in amount, value, or worth; having a solid or firm foundation; soundly based; carrying weight.” The American Heritage Dictionary (2nd college ed.) defines “any” as “one or some, regardless of kind, quantity, or number” and “substantial” as “considerable in importance, value, degree, amount, or extent.” There is a difference in plain English.

In ruling as it did in Levitas, the Supreme Court depended on the rationale in Dept. of Human Resources v. Montgomery, 248 Ga. 465, 466 (1) (284 SE2d 263) (1981), but in Montgomery the court equated “substantial evidence” with “any evidence” merely because in Georgia the standard used to review the grant or denial of a directed verdict is the latter. It created the following syllogism: The United States Supreme Court held that substantial evidence is the same amount as would justify refusal to direct a verdict; the standard in Georgia used to review the grant or denial of a directed verdict is the any evidence test; therefore “substantial evidence” as used by the Georgia legislature in Code Ann. § 89-1717 (b) (5) (now OCGA § 45-19-39 (b) (5)) means “any evidence.”

Decided October 21, 1997.

Clifford E. Hardwick TV, Overtis H. Brantley, Lisa S. Morchower, for appellant.

Brenda A. Raspberry, for appellee.

According to Montgomery, the same holds true for OCGA §§ 45-20-9 and 50-13-19. The same must be said for OCGA § 5-4-12 (b), which is couched in identical wording.

Consequently, I am compelled to concur.

It should be noted that in Illinois v. Gates, 462 U. S. 213, 236 (103 SC 2317, 76 LE2d 527) (1983), the Supreme Court held that the proper standard for testing if a. magistrate validly issued a search warrant is to assume that the magistrate had a “ ‘substantial basis for . . . conclud(ing)’ ” that probable cause existed. The court identified and discussed the strength of the indicia of the basis and never used the word “any” as a synonym. This Court applies that standard. See, e.g., Brown v. State, 190 Ga. App. 324, 326 (2) (378 SE2d 908) (1989).

Compare the Georgia test for review of trial court rulings on motions to suppress: fact findings should not be disturbed “ ‘if there is any evidence to support [them].’ ” Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994); Edwards v. State, 219 Ga. App. 239, 244 (3) (464 SE2d 851) (1995). This Court has also used a “substantial basis” test for the same review purpose. See, e.g., Raulerson v. State, 223 Ga. App. 556, 557 (2) (479 SE2d 386) (1996).

I am authorized to state that Presiding Judge Pope, Judge Smith and Judge Ruffin join in this special concurrence.

        Consolo v. Fed. Maritime Comm., 383 U. S. 607, 620 (86 SC 1018, 16 LE2d 131) (1966), which interpreted the Federal Administrative Procedure Act’s use of “substantial evidence” as meaning “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. at 620.


text:
    A97A1863.
    YOUNG et al. v. KITCHENS.
    (492 SE2d 898)
   Birdsong, Presiding Judge.

Appellant/plaintiff Delbert Young, as legal guardian of Stephen Robert Young and Patrick Matthew Young, minor children, appeals the order of the superior court granting summary judgment to appellee/defendant Wendell Ward Kitchens.

This appeal arises from a suit for damages for personal injury, pain and suffering by the deceased Dennis James Young. Young sustained fatal injuries in a traffic incident in which a vehicle driven by appellee struck and killed him. On the evening of February 2, 1994, Young was driving his girl friend, Weaver, in his automobile. Young’s automobile broke down, and he and his girl friend commenced walking eastbound on the right side of Frontage Road, a two-lane access road to Interstate 20. The night was dark. Earlier, Young had consumed approximately a quart of beer, but in his girl friend’s opinion, he was not drunk at the time of the incident. Young was wearing blue jeans, a white shirt that had a hood on it, a deer-skin leather jacket with fringes on it, and white tennis shoes. Weaver was wearing blue jeans, a white shirt, and a shiny medium-colored blue jacket of satiny-looking material. At times, Young would walk on the shoulder of the road, and at times he would walk in the roadway itself. Several cars passed the couple without incident; traffic was light to moderate.

Miller was driving his car eastbound on Frontage Road when he had to swerve suddenly across the yellow centerline to avoid a man, later identified as Young, who was walking in the roadway with his back to oncoming cars. Miller testified that both the night and the man’s clothing were dark and that he saw the man only because of bis white tennis shoes. After Miller sounded his car horn, Weaver and Young “[g]ot out of the way” of traffic and continued down the roadway. In the meantime, Miller turned his car around to warn the man to get out of the road; as he approached the couple, he saw another car approaching. There was a blur in front of the oncoming car’s headlights followed by screaming.

The oncoming car, which was traveling eastbound, was driven by appellee who was approximately one and one-half miles from his house. Appellee was accompanied by his wife. The weather was clear, and at the accident site, there was no hill or curve which blocked appellee’s view. Appellee’s vehicle was traveling 35 to 40 mph, the headlights were on, and appellee was looking straight down the street. Appellee testified without contradiction that just as he crested an incline in the road, he observed the headlights of Miller’s oncoming automobile; he did not see Young in the roadway until his vehicle was approximately three or four feet away from him. Appellee’s wife screamed, and appellee’s car struck Young. If it had been daylight, Young would have been visible possibly from a distance of 300 to 600 feet. (There is some evidence in the record that it was approximately one-tenth of a mile from the declining side of the hill crest to the point of impact.) Weaver testified that at the time of the impact Young and she both were “walking close to the road,” although she does not remember the actual impact. Appellee immediately stopped his car in the eastbound travel lane and ran back to where Young was lying on the ground just off to the right of the roadway; Miller also stopped and attempted to assist. Miller observed that Young was injured and was trying to speak; Miller then went back to his car to phone for assistance.

While in his car, Miller observed another car approaching. This car was unable to stop so it swerved onto the shoulder of the road, hitting the open door of appellee’s car and allegedly running over Young who was lying injured on the ground approximately three to five feet off to the right of the roadway. The driver of this vehicle fled the scene. Young died as a result of this incident.

Appellee testified by way of deposition that he was returning home from visiting his grandson; when he visits his grandson, he travels a particular route that includes a portion of the access road. As he was driving on the access road at the Oxford Road intersection, he “remembered seeing the headlights of another car coming. And [he does not] remember just where that car was at, but all at once [he] got a glimpse of a person coming from my right to my left. And about that time my wife hollered, and about then at that time, I hit [the person].” He struck Young with the right headlight and right portion of the windshield of his car. Appellee further testified that the glare from the headlights “could have” had some effect on his vision; he just knows that he did not see Young until he was three or four feet from him at which time he immediately hit his brake either a split second before or at impact. Although unable to remember all the details of the impact, appellee’s wife testified that Young had “just stepped out in front of us quickly,” but she just saw a glimpse of this and does not know which way he was facing; the right-hand side of their car struck Young, and she did not see Young until the car hit him. lii a subsequent deposition, appellee’s wife testified that she did not see Young before their car hit him, and nothing else brought Young to her attention before impact.

Appellant’s sole enumeration is that the trial court erred in granting summary judgment to appellee, as its holding was based on an erroneous conclusion that appellant was unable to point to any evidence in the record which tends to show that appellee breached hi's duty to Young. Held:

1. Appellant’s brief is replete with inaccurate citations as to the volume and page of cited precedent. As officers of this Court, counsel have a duty to use due diligence in providing accurate citations of authority in their appellate briefs.

2. In granting summary judgment in behalf of appellee, the trial court stated inter alia, “[defendant contends that [pjlaintiff is unable to point to any evidence in the record which tends to show that [defendant breached his duty of care. The court agrees.” The applicable summary judgment standard is that of Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474). At summary judgment a movant/ defendant must demonstrate by reference to evidence in the record that there is an absence of evidence to support at least one essential element of the non-moving party’s case. In other words summary judgment is appropriate when the court, viewing all the facts and reasonable inferences flowing therefrom in a light most favorable to the non-moving party, concludes that the evidence does not create a triable issue as to each essential element of the case. Id. at 495. At summary judgment a movant/defendant may discharge his burden by pointing out by reference to the affidavits, depositions, and other documents in the record that there is an absence of evidence to support the non-moving party’s case. If the moving party discharges this burden, the non-moving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. Id. at 491. In ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all reasonable inferences and conclusions arising therefrom most favorably toward the party opposing the motion. Moore v. Goldome Credit Corp., 187 Ga. App. 594, 595-596 (370 SE2d 843).

3. While it is clear that the deceased, at the time of impact, was not in compliance with the provisions of OCGA § 40-6-96 pertaining to pedestrians walking on or along a roadway, questions of contributory negligence, comparative negligence, and the exercise of due care for one’s own safety also are questions which ordinarily are not susceptible to summary adjudication. Thompson v. Crownover, 259 Ga. 126, 129 (5) (381 SE2d 283).

During his deposition testimony, appellee gave an unqualified negative response to the question whether there was “anything obstructing or blocking [his] view of Mr. Young . . . within a quarter mile of the incident.” Any evidence offered by appellee in contradiction to this testimony and for which no reasonable explanation was tendered as to the reason for the inconsistency would be subject to the rule of Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (2) (343 SE2d 680). Gentile v. Miller, Stevenson &c., Inc., 257 Ga. 583 (361 SE2d 383). No reasonable explanation has been tendered for any discrepancy arising as to appellee’s testimony that there existed an unobstructed distance of a quarter-mile. Thus, it must be accepted that there existed no type of obstruction which would block appellee’s view within a quarter-mile from the scene of the incident. Id.

However, even if the unobstructed distance were only one-tenth of a mile, our disposition of this case would remain the same. Further, although appellee testified that the oncoming car’s headlights cast “some glare” or “a certain amount of glare” on him and “could have had some effect” on his vision, at no time did he testify that he was blinded by or rendered incapable of seeing by the oncoming car’s headlights. Several cars passed the deceased, Young, without incident. Although Young was dressed in dark clothing, Miller was able to see his white tennis shoes and avoid striking him. Weaver testified without contradiction that as she and Young walked they were always close enough to converse with each other; the jacket she was wearing was medium or cornflower blue of a shiny, satiny-material, it was not really that dark; and, if a light were to shine on it, “you could see it.”

OCGA § 40-6-93 provides: “Notwithstanding other provisions of this chapter, every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway, shall give warning by sounding his horn when necessary, and shall exercise proper precautions upon observing any child or any obviously confused, incapacitated, or intoxicated person.” (Emphasis supplied.) In this regard, “[t]he driver of a motor vehicle has no right to assume that the road ahead of him is clear of traffic [or pedestrians], and hé must maintain .a diligent outlook therefor.” Leggett v. Brewton, 104 Ga. App. 580, hn. 3 (122 SE2d 469); Lorig v. Brunson, 84 Ga. App. 558, 562 (66 SE2d 268) (driver must maintain vigilant lookout for pedestrians on the road). “ ‘[N]egligence, like any other fact, may be proved by circumstantial as well as by direct testimony.’ ” Cagle v. Atchley, 127 Ga. App. 668, 669, 675 (5) (194 SE2d 598); see OCGA § 24-1-1. Lack of due diligence is susceptible to proof by circumstantial evidence. See Cagle, supra; OCGA § 24-1-1. A jury could, based on the posture of the evidence in this appellate record, find that appellee breached his duty to exercise due diligence to ensure the lane in which he was traveling was clear of pedestrian or vehicular traffic. Miller was able to observe Young in time to avoid a collision, various vehicles previously had passed the couple without incident, appellee did not affirmatively testify that he was blinded by oncoming headlights but only that the glare “could have” had an effect on his vision, and Weaver who was walking close to Young was wearing a shiny, medium-blue jacket which could be seen when light hit it. Both Miller and appellee had their vehicle lights on as they approached the couple. As lack of diligence can be established by circumstantial evidence, see Cagle, supra; OCGA § 24-1-1, and as there exists no direct evidence that the oncoming headlights, in fact, blinded appellee, there exists more than one permissible reasonable inference which could be drawn by the factfinder. “OCGA § 40-6-93 (Code Ann. § 68A-504) establishes that motorists on the highways must exercise ordinary care to discover and avoid persons in the roadway. . . .” (Emphasis supplied.) Fountain v. Thompson, 252 Ga. 256, 257 (312 SE2d 788). “It is the jury’s function to draw an inference from the evidence when more than one inference can be drawn.” Thompson v. Crownover, supra at 130 (6). In view of the posture of the evidence in this case, albeit far from compelling, the trial court erred in granting summary judgment in behalf of appellee. Compare Fountain, supra; Banks v. Payne, 213 Ga. App. 783 (445 SE2d 826) (physical precedent only), cert. denied, 214 Ga. App. 905.

Decided October 21, 1997.

Slappey & Sadd, James N. Sadd, Grant G. Morain, for appellants.

Fortson, Bentley & Griffin, Michael C. Daniel, for appellee.

Eubanks v. Mullis, 51 Ga. App. 728 (181 SE 604), relied upon by appellant is distinguishable and not controlling. Also distinguishable and not controlling are the precedents relied upon by appellee, including Norman v. Williams, 220 Ga. App. 367 (469 SE2d 366) (could infer from the evidence that the pedestrian ran onto the roadway); Tucker v. Love, 200 Ga. App. 408 (408 SE2d 182) (pedestrian ran in front of path of bus during heavy rainfall; jury verdict in favor of bus driver); and Johnson v. Ellis, 179 Ga. App. 343 (346 SE2d 119) (pedestrian collided with side of driver’s car while attempting to cross street).

Judgment reversed.

Eldridge, J, and Senior Appellate Judge Harold R. Banke concur.


author: McMurray, Presiding Judge.

text:
    A97A1876.
    CLAYTON v. THE STATE.
    (492 SE2d 894)
   McMurray, Presiding Judge.

Defendant Michael Jerome Clayton was charged in a special presentment with selling cocaine. Counsel was appointed to represent him. Defendant was found guilty by a jury and sentenced to life imprisonment. The record contains no motion for new trial. Approximately two years after defendant was sentenced, the trial court denied defendant’s motion for out-of-time appeal, and this direct appeal followed. Held:

Decided October 21, 1997.

Michael J. Clayton, pro se.

John R. Parks, District Attorney, for appellee.

Defendant enumerates the denial of his motion for an out-of-time appeal premised upon the alleged ineffectiveness of trial counsel for failing to apprise defendant of his right to an appeal and for failing to timely pursue that appeal.

“An out-of-time appeal occasionally is appropriate where, due to [allegedly] ineffective assistance of counsel,, no appeal has been taken. See Furgerson v. State, 234 Ga. 594 (216 SE2d 845) (1975).” Williams v. State, 251 Ga. 83 (303 SE2d 111). In the case sub judice, the record is inadequate to determine whether trial counsel fulfilled the important responsibility to inform defendant of his rights after conviction. Expressing no opinion on the merits of defendant’s claim of ineffective assistance, we vacate the denial of his motion for out-of-time appeal and remand the case sub judice for an evidentiary hearing on that claim via a motion for new trial. Maxwell v. State, 262 Ga. 541, 542 (3) (422 SE2d 543); Ponder v. State, 260 Ga. 840 (1) (400 SE2d 922). Defendant, if indigent, is entitled to the assistance of appellate counsel. Sims v. Balkcom, 220 Ga. 7 (136 SE2d 766). An adverse ruling on the motion for new trial may be appealed directly. Johnson v. State, 266 Ga. 775, 778 (9), 779 (470 SE2d 637).

Judgment vacated and case remanded with direction.

Smith, J., and Senior Appellate Judge Harold R. Banke concur.


text:
    A97A1902.
    In the Interest of N. C. et al., children.
    (492 SE2d 895)
   McMurray, Presiding Judge.

Appellant-respondent, the natural mother, appeals from the judgment of the juvenile court terminating her parental rights in her minor children, S. C., A. C., and N. C., on the grounds of parental misconduct and inability to care for her children. OCGA § 15-11-81 (b) (4) (A) (i)-(iv).

Appellant disputed only two allegations of the termination petition. Viewed in the light most favorable to the juvenile court’s disposition, the evidence adduced below reveals the following: Immediately upon birth in January 1993, temporary custody of A. C., the youngest child, was placed in the Gwinnett County Department of Family & Children Services. A. C. was a deprived child, because both appellant and the infant tested positive for cocaine at A. C.’s birth. According to Liz Query, a Social Service Specialist with the Gwinnett County DFACS, appellant “gave birth to A. C. in a parking lot at the hospital [and] admitted to Officer Eberhardt that she had smoked three rocks of cocaine at that time.” In April 1993, N. C. and S. C. were taken into protective custody after appellant “was arrested. There was an outstanding warrant on her, the officer went to the home, the home was in deplorable condition, no power, no food, no electricity, one of the children was sick. At that time, the children were deprived.”

On stationery from the Gwinnett/Rockdale/Newton Mental Health, Mental Retardation, Alcohol & Drug Services, appellant falsified a letter reciting that she had completed a six-week drug rehabilitation program and recommending the return to appellant of her children. Liz Query testified “the children were placed back in [appellant’s] home in October [1993], and then the children were picked back up again about a week and a half later, due to . . . another outstanding warrant for [appellant] ... for forgery.” “They were returned [to appellant] in February [1994, but have] been re-deprived twice or placed back into care. So they have basically been back in care since June of ’94 and have not returned back home. The visitation has been very sporadic. [Appellant has] had about three visits since 1995, and there’s not been a completion of drug and alcohol treatment. [DFACS] searched for relatives, [talked] to relatives for three years. No one seems to really be willing to make a serious commitment to these children. [DFACS is] making some permanent plans for the children.”

Other evidence showed that appellant was recently arrested for shoplifting; that her probation had been revoked again; that she has not maintained stable employment; and that she has failed to make child support payments. In the expert opinion of Liz Query, the Social Service Specialist, “[i]f they [the children] were returned to the home, . . . they [would] be at risk of further deprivation.”

In her sole enumeration of error, appellant contends the juvenile court erred in terminating her parental rights “due to the lack of clear and convincing evidence that the deprivation is likely to continue.” Held:

The facts must be enough to show by clear and convincing evidence that the deprivation found would likely continue and likely cause serious harm to the child. OCGA § 15-11-81 (b) (4) (A) (iii-iv). It is true that a “recurring pattern of drug abuse, crime and incarceration [standing alone was held to amount to] no compelling evidence . . . which would clearly convince a rational trier of fact that the child’s past deprivation will continue so as to authorize the total termination of the mother’s parental rights. [Cits.]” In re N. F. R., 179 Ga. App. 346, 347 (2), 348-349 (346 SE2d 121). But in that case, that natural mother “had been off drugs for a year, was attending counseling and working 14-16 hours a day. . . .” Id. at 347 (2).

Decided October 21, 1997.

Sherriann H. Hicks, for appellant.

Thurbert E. Baker, Attorney General, Jeffrey L. Milsteen, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Stephanie M. Baldauff, Assistant Attorneys General, Joyner & Burnette, John C. Joyner, Kathryn C. Reeder, Laurie G. Mayer, for appellee.

In the case sub judice, in addition to appellant’s refusal or inability to complete drug rehabilitation, she is not gainfully employed. There is nothing to indicate that she can support her children and that they will not once again be left alone in deplorable conditions, without power and heat. “In a case such as this, a plea of ‘six more months’ to improve is without force to overcome the proof of unrelieved detriment already suffered by the children for their entire [lives], where there is no indication but the promise to suggest hope of improvement. [Cit.]” In re G. M. N. & D. M. N., 183 Ga. App. 458, 461 (359 SE2d 217). A rational trier of fact could reasonably have found by clear and convincing evidence proof of appellant’s parental inability which is likely to go unremedied, as is required by OCGA § 15-11-81 (b) (4) (A) (iii). In the Interest of D. T., 221 Ga. App. 328, 329 (1), 330 (471 SE2d 281).

Judgment affirmed.

Smith, J, and Senior Appellate Judge Harold R. Banke concur.


text:
    A97A2109.
    JACKSON v. THE STATE.
    (492 SE2d 897)
   McMurray, Presiding Judge.

Defendant was charged in accusations with “driving with license suspended” and “improper backing.” After a bench trial, he was found guilty of each charge and ordered to pay fines and restitution. From the judgment of conviction defendant brings this direct appeal. Held:

1. In his first enumeration of error, defendant contends the trial court erred in admitting into evidence an uncertified copy of defendant’s driving record. He argues there was a lack of adequate foundation, because “the prosecutor cannot be a witness,” ostensibly relying on Tipton v. State, 213 Ga. App. 764, 765 (2) (445 SE2d 860) and Waters v. State, 210 Ga. App. 305 (1), 307 (436 SE2d 44).

OCGA § 24-3-17 (b) “allows for the introduction of records obtained from any terminal lawfully connected to the GCIC [(Georgia Crime Information Center)], without the need for additional certification.” Thompson v. State, 265 Ga. 677, 678 (2) (461 SE2d 528). Preterm itting whether a prosecutor can state in her place that she obtained a driving record from a computer lawfully connected to the GCIC, we find that Tipton v. State, 213 Ga. App. 764, supra, and Waters v. State, 210 Ga. App. 305, supra, simply do not control.

In the case sub judice, the State was granted a brief recess, after which time the State put up the witness Sherlyn Filimore-Martin, a preaccusation supervisor with the Fulton County Solicitor’s office. Filimore-Martin is a “certified GCIC coordinator,” who identified State’s Exhibit 1 via the “origination agency identity number, and this is [the Fulton County Solicitor’s] number on the far left-hand corner.” Filimore-Martin further testified that the Fulton County Solicitor’s computer terminal is “connected to the GBI ([Georgia Bureau of Investigation]), Panthersville.” She also confirmed the exhibit as a “GCIC, criminal history, driver’s history.” This exhibit was then admitted over defendant’s objection. Since the State adduced a sworn witness to identify the printout of defendant’s driver’s license as a report from the GCIC, we find no error in admitting this exhibit over defendant’s objection as to lack of foundation.

2. Defendant objected to the testimony of Filimore-Martin on the ground that she had not been identified on the list of witnesses supplied by the State before trial. The State’s attorney claimed surprise, and defendant was given an opportunity to interview FilimoreMartin, who was permitted thereafter to testify over defendant’s objection. This evidentiary ruling is enumerated as error.

“Prior to arraignment, every person charged with a criminal offense shall be furnished with a copy of the indictment or accusation and, on demand, with a list of the witnesses on whose testimony the charge against such person is founded. Without the consent of the defendant, no witness shall be permitted to testify for the state whose name does not appear on the list of witnesses as furnished to the defendant unless the prosecuting attorney shall state that the evidence sought to be presented is newly discovered evidence which the state was not aware of at the time of its furnishing the defendant with a list of witnesses.” OCGA § 17-16-21.

In the case sub judice, the State’s attorney “did not state precisely that the evidence . . . was ‘newly-discovered’; but [s]he did state that it was evidence which [s]he had no knowledge that [s]he would need at the time [s]he furnished the list of witnesses to [defendant]. . . .” Yeomans v. State, 229 Ga. 488, 490-491 (2) (192 SE2d 362) (interpreting former Code Ann. § 27-1403). Compare Bentley v. State, 210 Ga. App. 862, 863 (2) (b), 864 (438 SE2d 110) (interpreting former OCGA § 17-7-110), where the State failed to establish the applicability of the exception for “newly discovered” evidence. In our view in the case sub judice, this was an adequate showing of surprise to authorize the trial court to exercise its discretion to grant a continuance and to permit this witness to identify the GCIC printout, over defendant’s objection that this witness was not listed as a witness on the list as originally furnished defendant by the State. Consequently, this enumeration is without merit.

Decided October 21, 1997

Patterson & Patterson, Jackie G. Patterson, Yasma Patterson, for appellant.

Carmen Smith, Solicitor, Allison L. Byrd, Cheryl Harper, Assistant Solicitors, for appellee.

Judgment affirmed.

Beasley and Smith, JJ, concur.