text:
    A96A0444.
    BROWN v. MEYER et al.
    (473 SE2d 521)
   Birdsong, Presiding Judge.

A default judgment for $140,502.34 was entered in favor of plaintiffs Fred and Linda Meyer against Yvonne D. Brown, for damages arising out of a collision which occurred in March 1993 while Brown was moving to Atlanta, Georgia from Texas. At the time of the collision Brown used an Indiana driver’s license. Brown has lived in Atlanta since May 1993 and has had a Georgia driver’s license since April 1993. She lived in Georgia at the time of the filing in August 1994 of this suit and during its service under the Nonresident Motorist Act, OCGA § 40-12-1 et seq. The trial court refused to set aside the default judgment although Brown was never actually served. We granted a discretionary appeal. Held:

1. The defendant’s residence at the time the cause of action arose governs her amenability to service of a suit under the Nonresident Motorist Act, OCGA § 40-12-1 et seq. Service on Brown under this Act was proper, even though she was a resident of Georgia at the time of filing and service of this suit. See Rose v. Ryan, 209 Ga. App. 160, 161 fn. 2 (433 SE2d 291); Carroll v. Americal Corp., 207 Ga. App. 651 (428 SE2d 811); Bailey v. Hall, 199 Ga. App. 602 (1) (405 SE2d 579); Webb v. Oliver, 133 Ga. App. 555 (2) (211 SE2d 605); Foster v. Lankford, 120 Ga. App. 573 (171 SE2d 662); Horne v. Ewing, 89 Ga. App. 300 (2) (79 SE2d 339).

Decided June 13, 1996

Reconsideration denied July 9, 1996

Gary M. Cooper, for appellant.

Harper, Waldon & Craig, John B. Craig, Raymond J. OReilly, for appellees.

2. Service under the Nonresident Motorist Act was defective in this case. OCGA § 40-12-2 requires that service on the Georgia Secretary of State “shall be sufficient. . . upon any such nonresident, provided that notice of such service and a copy of the complaint and process are forthwith sent by registered or certified mail ... to the defendant, if his address is known, and the defendant’s return receipt and the plaintiff’s affidavit of compliance with this Code section are appended to the summons or other process and filed with the summons, complaint, and other papers in the case in the court wherein the action is pending.”

In this case, the defendant was not served with process, nor by certified mail, nor given any written notice of the pendency of the action. Only “[w]hen the notice authorized by statute is actually received [can] substituted service on an official of the State of venue becomet ] the equivalent of personal service.” Cheek v. Norton, 106 Ga. App. 280, 284 (126 SE2d 816). Failure to perfect service requires reversal.

Judgment reversed.

Beasley, C. J., and Blackburn, J., concur.


source: Caselaw Access Project

author: Andrews, Judge.

license: Public Domain

text:
    A96A0544.
    VITELLO v. STOTT et al.
    (473 SE2d 504)
   Andrews, Judge.

Shortly after Lisa Vitello purchased a house from Alfred Stott, she removed some vinyl siding from the house for a remodeling project and discovered extensive structural damage caused by termites. The damage, which existed at the time of the purchase, was not visible and was not discovered by Vitello prior to the closing because it was concealed under the vinyl siding which was placed over the original wood siding on the house. Vitello sued the seller (Stott), the individual and corporation which provided the termite report for the closing (Billy Taylor, individually and d/b/a Advanced Exterminating Company, Inc.), the selling broker and the broker’s sales agent (Northside Realty, a division of Fairgreen Capital, L.R, and Mary Agraz), and the corporation which Vitello hired to perform her inspection of the house under the terms of the sales contract (Hyre Building Inspection, Inc.).

In the pre-trial order entered in the case, Vitello alleged the defendants were aware of the hidden termite damage prior to the closing and that they fraudulently concealed this information from her and misrepresented the condition of the house and thereby fraudulently induced her to buy the termite-ridden house. She also alleged the defendants breached contractual obligations owed to her and that she was damaged by the professional negligence of defendants Taylor, Agraz, and Hyre.

At the close of the evidence presented by Vitello, the trial court granted a directed verdict in favor of all the defendants on the basis that Vitello failed to produce any evidence of damages showing either the diminished value of the property or the cost of repairing the termite damage. The trial court also granted a directed verdict in favor of defendant, Hyre, on the basis that Vitello failed to prove breach of contract or negligence. Vitello appeals from the trial court’s order granting the directed verdicts.

1. Vitello claims the trial court erred by refusing to allow her to provide evidence of damage by giving her own non-expert opinion testimony as to the diminished value of the property with the hidden termite damage.

A non-expert witness may render an opinion as to the value of realty if the evidence shows the witness had an opportunity for forming a correct opinion. OCGA § 24-9-66; Central Ga. Power Co. v. Cornwell, 139 Ga. 1, 5 (76 SE 387) (1912). Vitello testified that upon moving to Marietta in February 1993 she rented an apartment in the historical district of the city and began looking for a house to purchase in that area. She contacted a real estate agent who showed her numerous houses for sale in the historical district and discussed prices and purchase offers on various properties. Near the end of April 1993, Vitello made an offer to purchase the subject property, which was located in the historical district, and signed a sales contract with Stott on April 28, 1993, to purchase the house for $90,000.

Shortly after the closing on June 7, 1993, Vitello hired a contractor to do some remodeling on the house. In the course of this work, Vitello testified that the contractor removed a portion of the vinyl siding on the house and discovered termite damage hidden under the siding. Upon further investigation and removal of the vinyl siding from the house, Vitello discovered that a large portion of the house had extensive and severe structural damage caused by termites, which had been hidden from view under the vinyl siding. Vitello made a close personal inspection of the damage visible after removal of the siding and photographed and videotaped the damage. She also had two contractors inspect the house and give her estimates describing the damaged areas and the means, time, and cost necessary to repair the termite damage.

Based on testimony as to her recent familiarity with the value of similar houses for sale in the historical district, Vitello gave unobjected-to opinion testimony that the value of the house, as represented at closing in a structurally sound condition without the termite damage, would have been $90,000. When she was asked to give her opinion as to the diminished value of the house with the extensive structural termite damage, an objection was interposed that Vitello failed to show she had an opportunity to form a correct opinion because there was no evidence she was familiar with the market for similar termite-ridden houses in the area. The trial court sustained the objection and excluded the opinion testimony.

Generally, we will not disturb a trial court’s determination as to whether a witness had sufficient opportunity for forming a correct opinion. Smith v. Millen Properties, 179 Ga. App. 165 (345 SE2d 625) (1986). However, it was clear error in this case for the trial court to exclude Vitello’s opinion testimony on the basis that she had not demonstrated knowledge of the market for similar termite-ridden houses. Given the doubtful existence of any such market for termite-ridden houses, the issue was whether the record demonstrated that Vitello had an opportunity to form a correct opinion as to the amount this particular house diminished in value given the termite damage discovered after the closing.

No objection was made to Vitello’s opinion, based on her familiarity with similar property in the area, that the house in a structurally sound condition would have had a value of $90,000, so the relevant question was whether, in light of this knowledge, she had an opportunity to form a correct opinion as to the diminished value of the house with the termite damage. Vitello testified that she personally viewed the visible termite damage after the removal of the vinyl siding from the house, and she met with two contractors who inspected the house and gave her estimates of the damage to the house describing the extent of the damage and the cost of repairs.

This evidence demonstrated that Vitello was qualified to give an opinion as to the amount the termite damage diminished the value of the property. Schoolcraft v. DeKalb County, 126 Ga. App. 101, 102-103 (189 SE2d 915) (1972). Even if the opinion as to value was based in whole or in part on hearsay, this goes to the weight of the testimony and was not a basis for excluding the opinion. Id. at 103; City of Alma v. Morris, 180 Ga. App. 420, 422 (349 SE2d 277) (1986). Since Vitello’s testimony gave a basis for her opinion and showed she had an opportunity to form a correct opinion, it was error to exclude her opinion as to the diminished value of the property. Id. at 421; Oglethorpe Realty Co. v. Hazzard, 172 Ga. App. 98, 99 (321 SE2d 820) (1984); Schoolcraft, supra; OCGA § 24-9-66. It follows the trial court erred by directing verdicts on the basis that Vitello failed to prove damages.

Decided June 7, 1996

Reconsideration denied June 19, 1996 and July 9, 1996

Sams & Larkin, Garvis L. Sams, Jr., Joel L. Larkin, William W. Groves, for appellant.

Robert E. Flournoy III, for appellees.

2. We do not address Vitello’s enumerations of error dealing with whether sufficient evidence was presented to enable the jury to calculate damages by determining the cost of repairing the termite damage and whether the evidence was sufficient to support claims against Hyre for professional negligence and breach of contract. Since additional or different evidence may be presented at a new trial, none of the enumerations relating to the sufficiency of the evidence will be considered. OCGA § 5-5-48; Tompkins v. West, 123 Ga. App. 459, 461 (181 SE2d 549) (1971). Contrary to Vitello’s contention in her last enumeration of error, the order entered by the trial court does not direct verdicts in favor of defendants Stott, Northside Realty, and Agraz on the basis that there was no evidence of fraud.

Judgment reversed.

Pope, P. J., and Smith, J., concur.

       For purposes of a new trial, we do not determine that the jury must apply this damage rule to the exclusion of any other measure of damages which may be appropriate under the evidence. See Atlanta Recycled Fiber Co. v. Tri-Cities Steel Co., 152 Ga. App. 259, 264-265 (262 SE2d 554) (1979).


author: Beasley, Chief Judge.

text:
    A96A0649.
    BENNETT-MURRAY, INC. et al. v. BARNES.
    (473 SE2d 166)
   Beasley, Chief Judge.

After sustaining an on-the-job injury, Barnes filed a workers’ compensation claim against his employer, Bennett-Murray, Inc., for total disability income and medical benefits, as well as attorney fees. The ALJ denied the claim but the Appellate Division of the State Board awarded benefits and attorney fees. The superior court affirmed, and we granted the application for discretionary appeal of Bennett-Murray and its workers’ compensation insurance administrator.

On May 27, 1994, Barnes sustained a twisting injury to his back while working as a pipe layer for Bennett-Murray. He testified that he had no prior back problems. On June 1, he went to the hospital, complaining of lower back pain, left leg pain, and some right leg pain. He was referred to Dr. Kalson, who began treatment on June 6.

In October, Dr. Cabot performed an independent examination. Barnes complained of right leg pain only. An MRI performed by Dr. Cabot demonstrated degenerative changes with disc bulging and probable herniation at L5-S1, with disc material contacting the the-cal sac and left SI nerve root. Because Barnes’ complaints of pain were on the right side, whereas the MRI showed possible left-sided disc herniation, Dr. Cabot concluded that the herniation is not clinically significant and released Barnes to full-duty work. Dr. Kalson, on the other hand, concluded that the disc herniation is clinically significant, in that a centrally herniated disc will cause pain in both legs as it did in Barnes.

Finding that the MRI did not show central disc herniation, the ALJ found Dr. Cabot’s conclusions more persuasive than Dr. Kalson’s, and the ALJ denied benefits after finding that Barnes had not proven by a preponderance of the evidence that he is disabled as a result of his work injury.

The Appellate Division vacated the AL J’s award, concluding that the medical evidence sufficiently demonstrated that Barnes had proven by a preponderance of competent and credible evidence that he is disabled as a result of his work injury. It found that Barnes complained of left leg pain at his initial hospital visit and during physical therapy sessions while being treated by Dr. Kalson, that there were positive objective findings to substantiate his leg and back pain, and that he had no prior back problems.

1. OCGA § 34-9-103 (a), as amended in 1994, provides that “when the decision of an ALJ in the trial division is appealed to the appellate division, ‘[t]he findings of fact made by the administrative law judge in the trial division shall be accepted by the appellate division where such findings are supported by a preponderance of competent and credible evidence contained within the records.’ ” Clinical Arts v. Smith, 218 Ga. App. 681, 682 (462 SE2d 757) (1995). The amended version of OCGA § 34-9-103 (a) deleted language contained in the former versions of the statute giving the Board discretion to hear additional testimony. Id. at 682-683, n. 1. We thus held in Smith that although the Board was previously authorized to engage in a de novo consideration of the evidence and substitute its findings for those of the ALJ as long as there was any evidence to support its substituted findings, the Appellate Division does not have such authority under the new standard of review.

Nonetheless, the new standard authorizes the Appellate Division to engage in a broader review of the evidence than that permitted under the “any evidence” standard. “Preponderance of evidence” means the superior weight of the evidence. OCGA § 24-1-1 (5). The new standard authorizes the Appellate Division to weigh the evidence. “Competent evidence” means evidence which is “admissible.” OCGA § 24-1-1 (1). This aspect of the new standard only authorizes the Appellate Division to ensure that the ALJ’s findings are supported by admissible evidence. However, the new standard also authorizes the Appellate Division to make determinations concerning the credibility of the evidence.

In this case, the Appellate Division has reviewed the testimony of conflicting medical experts and determined that the testimony of one is entitled to more credit and weight than that of the other. This is a function the Appellate Division is currently authorized to perform. Although there is evidence supporting the ALJ’s finding that the testimony of one of the experts is entitled to greater credit and weight, there is evidence supporting the Appellate Division’s alternative finding. Therefore, the latter’s award must be affirmed, as it is not the function of either the superior court or this court to weigh the evidence. Metro Interiors v. Cox, 218 Ga. App. 396, 398 (461 SE2d 570) (1995).

2. The Appellate Division did not err in awarding attorney fees to Barnes.

Under OCGA § 34-9-221 (d), a notice controverting the right to compensation must be filed by the employer with the board on or before the twenty-first day after knowledge of the alleged injury or death. “If any provision of Code Section 34-9-221, without reasonable grounds, is not complied with and a claimant engages the services of an attorney to enforce his or her rights under that Code section and the claimant prevails, the reasonable quantum meruit fee of the attorney, as determined by the board, and the costs of the proceeding may be assessed against the employer.” OCGA § 34-9-108 (b) (2).

In this case, it is uncontested that Bennett-Murray filed the notice to controvert more than 21 days after knowledge of Barnes’ injury. It did not offer any explanation for its noncompliance with § 34-9-221 (d). Consequently, the evidence supports the Appellate Division’s finding that such noncompliance was without reasonable grounds. See generally Carr v. A. P. & Harry Jones Logging, 198 Ga. App. 698, 699 (1) (402 SE2d 538) (1991). The Appellate Division’s award of attorney fees in the amount of 25 percent of income benefits awarded was supported by the testimony of Barnes’ attorney that this was a reasonable and fair quantum meruit amount to be assessed. See G. Carbonara & Co. v. Helms, 205 Ga. App. 547, 548 (423 SE2d 36) (1992). Barnes did not abandon his attorney fee request in his appeal to the board.

Decided June 5, 1996

Reconsideration denied July 9, 1996

Moore & Rogers, Jeffrey A. Watkins, Michelle S. Davenport, for appellants.

Bennie H. Black, for appellee.

Judgment affirmed.

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


author: Ruffin, Judge. Pope, Presiding Judge, McMURRAY, Presiding Judge, Blackburn, Judge,

text:
    A96A0718.
    LUKOWSKI v. CAPITOLINE PRODUCTS, INC. et al.
    (473 SE2d 236)
   Ruffin, Judge.

This case involves an action for recommencement of disability income benefits based upon a change in condition. Lukowski appeals from the superior court order affirming the Appellate Division’s award, which reversed the Administrative Law Judge’s (“ALJ”) award of benefits from November 16, 1994, forward. Lukowski’s sole enumeration of error is that the superior court erred as a matter of law in applying the burden of proof as set forth in Aden’s Minit Market v. Landon, 202 Ga. App. 219 (413 SE2d 738) (1991), insofar as that case was expressly overruled in Maloney v. Gordon County Farms, 265 Ga. 825 (462 SE2d 606) (1995). For reasons which follow, we affirm.

The facts in this case, as found by the ALJ, are as follows. On January 13, 1994, while working for Capitoline Products, Lukowski sustained a severe, compensable, injury to his left hand, resulting in the amputation of a finger and two other surgeries. While the injury left Lukowski with a significant permanent disability, he was able to return to work in May 1994. “At that time, he resumed the same type of work he had done prior to the accident, but he was greatly hampered by the condition of his hand and had to adjust his methods.” On October 18, 1994, Lukowski was terminated because he refused to take a drug test, believing he would fail it, and he has been unemployed since that date.

The ALJ concluded, as a matter of law, that Lukowski was “not obligated to prove that he is completely unable to perform work of any kind, but only to carry the Aden’s burden’ of proof.” In the ALJ’s opinion, Lukowski met this burden “in that his testimony, the credible testimony of vocational rehabilitation supplier Barbara Tate, and the documentary evidence, establish that he conducted a sincere search for alternative suitable employment after leaving Capitoline and in that Ms. Tate’s expert opinion establishes that he probably would have been able to secure another job but for the injury.” However, since there was no evidence Lukowski began his search prior to November 16, 1994, the ALJ denied benefits before that date.

The Appellate Division accepted the ALJ’s findings, but concluded that these findings, coupled with additional findings, demanded a conclusion that Lukowski failed to meet his burden to show his job-related impairment has in any way hindered him from finding employment. Additional facts cited by the Appellate Division include the following. When Lukowski returned to full-duty work in May 1994, “[h]e did not require any assistance in the performance of his job duties, which included building pallets with the use of many different types of saws and a nail gun, and cutting laminate to fit ontop [sic] of counter tops.” The vocational expert testified there were not many job openings because it was the holiday season. In addition, she was not clear on Lukowski’s restrictions but believed they included no lifting over 50 pounds and problems with fine motor functions, and she took into consideration Lukowski’s nonworkrelated problems with his right hand. The vocational expert further testified she was unable to determine whether Lukowski could perform the same job he was performing at Capitoline without first completing a full analysis of the job. Lukowski’s treating physician noted that Lukowski could perform the manipulation of small objects and that Lukowski was using his left hand well.

Based on these additional findings, the Appellate Division concluded that while Lukowski has some impairment in his left hand, he failed to show the impairment has in any way hindered him from finding employment. The Appellate Division specifically concluded that the vocational expert’s opinion concerning Lukowski’s inability to find employment was based in part on injuries not related to his work-related accident and, therefore, was insufficient evidence to prove Lukowski was disabled due to his work-related injury.

On appeal, the superior court noted Lukowski “has the burden as outlined in Aden’s Minit Market ... to prove that his inability to find full-time employment is proximately caused by his disability.” Following the “any evidence” standard, the superior court affirmed the Appellate Division’s award, noting that no prospective employers told Lukowski why he was not hired and that there was a lack of evidence showing that prospective employers failed to hire Lukowski because of his injury.

1. In his sole enumeration of error, Lukowski asserts the superior court erred as a matter of law by applying the burden of proof set forth in Aden’s Minit Market. We disagree. Although Maloney overruled Aden’s Minit Market to the extent that it imposed an additional burden on the employee to prove the reasons why he was not hired by a prospective employer, Maloney still held that in order to receive workers’ compensation benefits based on a change in condition, “a claimant must establish by a preponderance of the evidence that he or she suffered a loss of earning power as a result of a compensable work-related injury; continues to suffer physical limitations attributable to that injury; and has made a diligent, but unsuccessful effort to secure suitable employment following termination.” Maloney, supra at 828. Maloney confirmed the rule in Hartford Accident &c. Co. v. Bristol, 242 Ga. 287 (248 SE2d 661) (1978), requiring the claimant to show that his inability to secure suitable employment elsewhere was proximately caused by his previous accidental injury. Harrell v. City of Albany Police Dept., 219 Ga. App. 810 (2) (466 SE2d 682) (1996).

In the present case, it is clear from the ALJ’s award, as well as the Appellate Division’s award and the superior court’s order, that the proper burden of proof was employed, notwithstanding the references to Aden’s Minit Market. Under Maloney, Lukowski still bears the burden to show that his inability to secure suitable employment elsewhere was proximately caused by his previous accidental injury. On appeal from an award of the State Board of Workers’ Compensation, this Court examines the record to see if there is competent evidence in the record to support the award and construes the evidence in a light most favorable to the prevailing party. Harris v. Seaboard Farms of Elberton, 207 Ga. App. 147, 149 (427 SE2d 524) (1993). In addition, “[a] correct decision of a trial court will not be reversed, regardless of the reasons given therefor.” (Citations and punctuation omitted.) Watts v. Wayne County Bd. of Ed., 201 Ga. App. 777, 779 (412 SE2d 541) (1991). Based on the foregoing, we find there is sufficient evidence to support the Board’s award and affirm the superior court’s order.

2. While Lukowski argues in his brief that the Appellate Division incorrectly conducted a de novo review and substituted its opinion regarding the weight and credibility of the witnesses for the ALJ’s, this allegation was not enumerated as error. Enumerations of error cannot be enlarged by means of statements in briefs of counsel to include issues not raised in the enumerations. In the Interest of B. N. P., 214 Ga. App. 412, 413 (448 SE2d 73) (1994). Therefore, this issue is not properly before this Court for review.

Judgment affirmed.

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

Pope, Presiding Judge,

concurring specially.

I fully concur in Division 1 of the majority opinion, but write separately to point out that the Appellate Division did not engage in a de novo review as the dissent suggests. The Appellate Division’s opinion explicitly states that it accepts the ALJ’s findings that “are supported by a preponderance of competent and credible evidence,” see OCGA § 34-9-103 (a), and goes on to explain that the vocational expert’s testimony was not competent and credible because she considered physical problems of claimant which were not related to his work injury as well as those which were.

I am authorized to state that Chief Judge Beasley joins in this special concurrence.

McMURRAY, Presiding Judge,

dissenting.

I respectfully dissent as the Appellate Division of the State Board of Workers’ Compensation (“Appellate Division”), the superior court and now a majority of this Court, assigns Lukowski with a burden of proof that was assigned in Aden’s Minit Market v. Landon, 202 Ga. App. 219 (413 SE2d 738), but later rejected by the Supreme Court in Maloney v. Gordon County Farms, 265 Ga. 825, 827-829 (462 SE2d 606). But even more glaring, in my view, is the superior court’s error in affirming the Appellate Division’s award based on application of the “any evidence” test. The problem with applying this standard is that the Appellate Division did not have authority to second guess the administrative law judge via de novo review, but was bound to accept “[t]he findings of fact made by the [ALJ] in the trial division . . . where such findings are supported by a preponderance of competent and credible evidence contained within the records.” OCGA § 34-9-103 (a). See Richardson v. Air Products & Chemicals, 217 Ga. App. 663, 664-665 (458 SE2d 694). I, therefore, believe the superior court should have remanded the case sub judice to the Appellate Division for review of the ALJ’s award based on the standard of review prescribed in OCGA § 34-9-103 (a). This disposition would then place the Appellate Division in appropriate posture for determining whether there is competent and credible evidence to support the ALJ’s finding that Lukowski satisfied his burden of showing that he is entitled to workers’ compensation benefits based on a change of condition. See Maloney v. Gordon County Farms, 265 Ga. 825, 827-829, supra.

The majority, however, sidesteps the controlling issues in the case sub judice by saying that Lukowski’s enumeration of error is too narrow to reach Lukowski’s argument “that the Appellate Division incorrectly conducted a de novo review and substituted its opinion regarding the weight and credibility of the witnesses for the ALJ’s. ...” I cannot go along with this tact because, in my view, Lukowski’s enumeration covers the superior court’s error in employing the “any evidence” standard in reviewing the Appellate Division’s award. To say otherwise ignores that the superior court found that it was bound by the “any evidence” test in determining whether Lukowski satisfied the burden of proof assigned under Aden’s Minit Market v. Landon, 202 Ga. App. 219, supra, overruled in Maloney v. Gordon County Farms, 265 Ga. 825, 827-829, supra.

Decided June 28, 1996

Mundy & Gammage, Kelly B. Gammage, for appellant.

Webb, Carlock, Copeland, Semler & Stair, Robert C. Semler, Colleen P. O’Neill, for appellees.

Blackburn, Judge,

dissenting.

I respectfully dissent from the opinion of the majority, as I believe that the expert’s testimony was sufficient to meet the requirements of Maloney v. Gordon County Farms, 265 Ga. 825 (462 SE2d 606) (1995). Furthermore, as the Appellate Division accepted the findings of the ALJ as being supported by a preponderance of the competent and credible evidence, its further review went beyond the new standard authorized by OCGA § 34-9-103 (a). See Bennett-Murray, Inc. v. Barnes, 222 Ga. App. 137 (473 SE2d 166) (1996).

The Appellate Division is authorized to review the evidence to determine if the ALJ’s findings are supported by the preponderance, or superior weight of the competent, or admissible evidence. See id. In the present case, the ALJ concluded that the expert’s testimony established that Lukowski would be able to secure another job but for the injury. The expert’s conclusion was not prefaced with any reference to Lukowski’s problems with his right hand, but noted his “limitations to his hand” and that Lukowski was basically a manual worker. Although the expert testified that she was aware of Lukowski’s problems with his right hand, she did not give this as a basis for her opinion.

The Appellate Division’s “additional findings” went beyond the scope of its authorized review as the record contains no evidence that challenges the expert’s testimony or that supports a determination that Lukowski could find suitable employment.


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

text:
    A96A0659.
    BRADEN v. BELL et al.
    (473 SE2d 523)
   Birdsong, Presiding Judge.

Steven Meredith Braden by his wife Martha Braden appeals the grant of judgment on the pleadings to H. V. Bell, Jr., M.D., H. D. Meltzer, M.D., the estate of H. D. Meltzer, M.D., Bell-Meltzer Pathology Group, P.A., and South Fulton Hospital n/k/a South Fulton Medical Center, Inc., in Braden’s action for wrongful death and medical malpractice. The complaint was filed on June 1, 1995, alleging that appellees committed medical malpractice in March 1984 by failing to diagnose that Steven Meredith Braden had a malignant carcinoma of the testes that caused Steven Meredith Braden’s death on June 3, 1993. The complaint further alleged that the misdiagnosis was discovered in January 1988 when Steven Meredith Braden sought further medical treatment. The complaint was supported by an expert’s affidavit which stated he had reviewed the slides taken in March 1984 and found that appellees had misdiagnosed Steven Meredith Braden’s cancer.

After appellees answered the complaint and denied liability, they filed a motion for judgment on the pleadings which asserted that the action was barred by the five-year medical statute of repose contained in OCGA § 9-3-71 (b) because the complaint alleged that the medical malpractice was committed in March 1984, but the complaint was not filed until June 1, 1995. OCGA § 9-3-71 (b) provides that “[n]otwithstanding subsection (a) of this Code section, in no event may an action for medical malpractice be brought more than five years after the date on which the negligent or wrongful act or omission occurred.” Subsequently, the trial court granted the motion for judgment on the pleadings and Braden appealed that decision to our Supreme Court because the appeal contended OCGA § 9-3-71 (b) was unconstitutional.

Finding that “any constitutional issue in this appeal merely involves the application of established constitutional law to the facts of [this] case,” the Supreme Court transferred the case for our consideration. Braden alleges that the trial court erred by failing to treat the motion for judgment on the pleadings as a motion to dismiss for failure to state a claim; erred by finding that OCGA § 9-3-71 (b) does not violate the equal protection guarantees of the Constitutions of the State of Georgia and of the United States; erred by finding that the rational basis test was the proper standard to apply when considering whether OCGA § 9-3-71 (b) violated the equal protection clauses; erred by failing to find that the five-year period in OCGA § 9-3-71 (b) was arbitrary; erred by not finding that OCGA § 9-3-71 (b) infringed on Braden’s substantive rights; erred by finding that retroactive application of OCGA § 9-3-71 (b) does not violate the Constitution of the State of Georgia; erred by finding that the negligent act or omission in OCGA § 9-3-71 (b) was complete in March 1984; and erred by granting judgment on the pleadings. Held:

1. Our Supreme Court “has exclusive jurisdiction over all cases involving construction of the Constitution of the State of Georgia and of the United States and all cases in which the constitutionality of a law, ordinance, or constitutional provision has been'called into question. Art. VI, Sec. VI, Par. II (1) of the Georgia Constitution.” Atlanta Independent School System v. Lane, 266 Ga. 657 (1) (469 SE2d 22). Further, if the Supreme Court has jurisdiction over a case because of this constitutional provision, it “will not transfer that case, but will issue a decision addressing the merits of the constitutional issues raised therein.” Id. at 658. Thus, although this Court can no longer deem the transfer of an appeal to this Court as a determination by the Supreme Court that no meritorious constitutional issue was presented (id.), appellate review in this Court ultimately is not affected because this Court has no jurisdiction to address a constitutional issue, except in limited circumstances. This Court has no jurisdiction to determine the constitutionality of a state law (Burke v. State, 205 Ga. 520, 521 (54 SE2d 348)), other than where the law has been held to be constitutional against the same attack being made (Blackwell v. State, 180 Ga. App. 253, 254 (349 SE2d 13)), and only “has jurisdiction to decide questions of law that involve the application, in a general sense, of unquestioned and unambiguous provisions of the Constitution of a given state of facts and that do not involve construction of some constitutional provision directly in question and doubtful either under its own terms or under the decisions of the Supreme Court of Georgia or the Supreme Court of the United States.” Pollard v. State, 229 Ga. 698 (194 SE2d 107). Further, “[when] a law has been held to be constitutional as against the same attack being made, the case requires merely an application of unquestioned and unambiguous constitutional provisions and jurisdiction of the appeal is in the Court of Appeals. Huguley v. State, 225 Ga. 191 (2) (167 SE2d 152) (1969).” Zepp v. Mayor &c. of Athens, 255 Ga. 449, 451 (339 SE2d 576). Moreover, constitutional issues not raised and ruled on below are not preserved for appeal. Ogletree v. State, 211 Ga. App. 845, 846 (440 SE2d 732).

This appeal was transferred because our Supreme Court deemed the constitutional issues presented merely to involve the application of established constitutional law to the facts. Thus, as OCGA § 9-3-71 (b) has previously been held constitutional despite similar attacks (Craven v. Lowndes County Hosp. Auth., 263 Ga. 657 (437 SE2d 308); Kumar v. Hall, 262 Ga. 639 (423 SE2d 653)), all of Braden’s enumerations of error based on arguments that OCGA § 9-3-71 (b) in some manner violates the Constitutions of the State of Georgia or of the United States, including Braden’s contention that OCGA § 9-3-71 (b) is arbitrary and infringes on substantive rights, are without merit.

2. Braden’s contention that the trial court erred by failing to treat the motion for judgment on the pleadings under OCGA § 9-11-12 (c) as a motion to dismiss for failure to state a claim upon which relief can he granted is also without merit. When a party moving for judgment on the pleadings, as in this case, does not introduce affidavits, depositions, or interrogatories in support of his motion, the motion is the equivalent of a motion to dismiss the complaint for failure to state a claim upon which relief can be granted. Sulejman v. Marinello, 217 Ga. App. 319, 320 (457 SE2d 251). See Ga. Prac. & Proc., § 9-7, p. 280 (1995 ed.). Because the averments in the complaint clearly show that the negligent or wrongful act or omission occurred in March 1984 and the complaint was not filed until June 1995, the complaint is barred by OCGA § 9-3-71 (b) and the trial court did not err by granting judgment on the pleadings to appellees.

3. Braden’s contention that the trial court erred by failing to find that the act of medical malpractice was not complete until Steven Meredith Braden’s death is also without merit. OCGA § 9-3-71 (b) is “intended to create a five-year statute of ultimate repose and abrogation.” OCGA § 9-3-71 (c). Therefore, OCGA § 9-3-71 (b) bars an action from being brought more than five years from the negligent act or omission; if the injury occurs outside that period it is not actionable. Bieling v. Battle, 209 Ga. App. 874, 876-878 (434 SE2d 719); Hill v. Fordham, 186 Ga. App. 354, 357-358 (367 SE2d 128).

Therefore, for the reasons stated above, the trial court did not err by granting appellees’ motion for judgment on the pleadings.

Judgment affirmed.

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

Blackburn, Judge,

concurring and concurring specially.

I agree fully with the majority opinion that the law is as stated therein. I think statutes of limitation and repose which allow only a narrow window within which an injured party may sue are inappropriate and the passage of time which erodes evidence, memories and the availability of witnesses, works primarily to the detriment of the plaintiff, not the defendant, as it is the plaintiff who has the burden of proof. Apparently memories are better in cases involving instruments under seal and other cases where a 20-year statute of limitation applies. The intention of the legislature is clear, however, and I am bound by the decisions of our Court and of the Georgia Supreme Court.

Beasley, Chief Judge,

concurring specially.

I concur in the conclusion that the suit was barred by the statute of repose, OCGA § 9-3-71 (b). The action was not even filed within five years from discovery of the alleged misdiagnosis in January 1988, much less within five years of the alleged misdiagnosis. As the Supreme Court recognized in Craven v. Lowndes County Hosp. Auth., 263 Ga. 657, 660 (437 SE2d 308) (1993), even if the injury from the negligent act occurs outside the period legislatively designated for the accrual of rights (here five years), it is not actionable because the passage of time abolishes the cause of action.

One of the policy considerations for making a right of action finite is the practical recognition that time erodes evidence, memories, and the availability of witnesses. Craven, supra at 659, referring to Clark v. Singer, 250 Ga. 470, 472 (298 SE2d 484) (1983). The fulfillment of that purpose is evident on the face of the complaint here, as one of the doctors accused of malpractice, Dr. Meltzer, has died in the interim and thus will be unable to defend the actions he took or did not take in 1984. The risk of this happening increases over the course of time. Of course, on the plaintiffs’ side is the fact that a wrongful death action could not be brought until June 3, 1993, the date of Steven Braden’s death, although a suit for medical malpractice did not have to await the happening of that extreme end of the continuum of injury.

The majority opinion recites some of the enumerations of error posed by appellants. In addition, appellants enumerate as errors the rejection of the claims that the statute is fundamentally unfair and violates the Georgia Constitution, Art. I, Sec. I, Pars. I, II, XII, and XXVIII; and that it violates state and federal constitutional due process requirements. In the trial court, plaintiffs attacked constitutionality on three bases: state constitutional equal protection (Ga. Const. Art. I, Sec. I, Par. II), as to which they urged adoption of the dissent in Craven, supra; the constitutional prohibition of retroactive law (Ga. Const. Art. I, Sec. I, Par. X), as to which they relied on the dissent in Wright v. Robinson, 262 Ga. 844 (426 SE2d 870) (1993); and, in composite, fundamental fairness as embodied in the Georgia Constitution, Art. I, Sec. I, Pars. I, II, XII and XXVIII, and the due process and equal protection clauses of the federal constitution.

The trial court was cognizant of the various bases propounded in support of unconstitutionality, reciting them in its order, and it expressly rejected each ground. Thus, having been properly raised and ruled on, these separate bases were ripe for appellate determination of their merits. Blackston v. Dept. of Natural Resources, 255 Ga. 15, 17-18 (1) (334 SE2d 679) (1985). Compare Kelly v. City of Atlanta, 217 Ga. App. 365 (457 SE2d 675) (1995). See Atlanta Independent School System v. Lane, 266 Ga. 657 (469 SE2d 22) (1996).

Nevertheless, the Supreme Court transferred the appeal to this Court, giving the reason that only the application of established constitutional law is involved, as the majority recites. However, Craven, supra, only resolved the equal protection issue, and Kumar v. Hall, 262 Ga. 639, 644 (2) (423 SE2d 653) (1992), addressed only the constitutionality of OCGA § 9-3-73 (b), not OCGA § 9-3-71 (b), and then only against an attack that it violated equal protection and due process guarantees under the state and federal constitutions. Thus it appears that all constitutional grounds have not been resolved by the Supreme Court. I do not agree in the majority’s ostensible ruling that these grounds are without merit. We are without jurisdiction to decide them. Ga. Const. Art. VI, Sec. VI, Par. II (1); Harper v. State, 213 Ga. App. 611, 612 (1) (445 SE2d 300) (1994).

Decided June 14, 1996

Reconsideration denied July 9, 1996

The Johnson Law Firm, A. Blair Dorminey, for appellant.

Sullivan, Hall, Booth & Smith, Michael A. Pannier, for appellees.

I also cannot concur in the statement that “this court has no jurisdiction to address a constitutional issue, except in limited circumstances.” Majority at 146. We often, properly, decide issues of whether behavior is constitutionally permissible or not, such as in search and seizure cases and in Section 1983 actions. The application of both state and federal constitutional protections is left to this court to review. This is illustrated in Atlanta Gas Light Co. v. Ga. Pub. Svc. Commn., 212 Ga. App. 575, 576 (442 SE2d 860) (1994).

Finally, I do not concur in the exception stated as “other than” to our lack of jurisdiction to determine the constitutionality of a state law. There is no exception. What Blackwell v. State, 180 Ga. App. 253, 254 (349 SE2d 13) (1986), describes “as exception” is not an exception at all. Application of what has already been settled by the Georgia Supreme Court or the United States Supreme Court involves a different inquiry altogether; it takes constitutionality as a given, not as an issue.


author: Judge Harold R. Banke.

text:
    A96A0786.
    DEPARTMENT OF HUMAN RESOURCES v. MONEY.
    (473 SE2d 200)
   Judge Harold R. Banke.

The Department of Human Resources filed a paternity and child support recovery action against Obie Money, the putative father of Brandon H. Money. Money, who rebuffed DHR’s administrative attempts to collect this child support, denies he is Brandon’s father. He counterclaimed, alleging DHR’s administrative and judicial actions constituted improper harassment, violated his privacy, and caused him humiliation and emotional distress in violation of state law and 42 USC § 1983. DHR appeals from the trial court’s refusal to dismiss the counterclaim. Held:

1. Any action against DHR based on state law theories is disallowed by sovereign immunity. The Georgia Tort Claims Law, OCGA § 50-21-20 et seq., waives sovereign immunity in some cases. See OCGA § 50-21-23 (b). Two specific exceptions to the waiver are claims for losses resulting from “[legislative, judicial, quasi-judicial, or prosecutorial action or inaction” and “[a]dministrative action or inaction of a legislative, quasi-legislative, judicial, or quasi-judicial nature.” OCGA § 50-21-24 (4) and (5). Administrative and judicial action taken by the DHR to enforce the Legislature’s mandates set out in the Child Support Recovery Act, OCGA § 19-11-1 et seq., clearly falls within these exceptions. “‘The doctrine of sovereign immunity requires that the conditions and limitations of the statute that waives immunity be strictly followed. (Cits.)’ [Cit.]” Dept. of Human Resources v. Hutchinson, 217 Ga. App. 70, 71 (1) (456 SE2d 642) (1995).

2. Because the Georgia Tort Claims Act does not bar Money’s 42 USC § 1983 counterclaim against DHR for violations of his civil rights, our opinion in Division 1 does not fully dispose of the counterclaim. Therefore, we address DHR’s remaining contention that the counterclaim is “frivolous.”

Money’s counterclaim asserts, in part, that DHR violated his constitutional rights by pursuing its child support recovery efforts when it had “full knowledge” that the issue of his paternity of Brandon Money had been previously resolved. He claims the issue of his paternity is made res judicata by a divorce decree, filed in the Superior Court of Chatooga County, ending his marriage to Brandon’s mother. That decree incorporates an agreement between Money and his ex-wife that he did not father Brandon Money.

This divorce decree does not prohibit DHR from seeking a legal declaration of Money’s paternity of Brandon Money. Our Supreme Court has held that, where the State seeks reimbursement for support it has paid on behalf of a child (OCGA § 19-11-6 (a)), the State is acting in privity with the child and not the mother. Dept. of Human Resources v. Fleeman, 263 Ga. 756, 758 (2) (439 SE2d 474) (1994). “Because the child is not bound by the provisions of the divorce decree, collateral estoppel does not bar DHR in its claim under OCGA § 19-11-6 (a) insofar as DHR is pursuing that claim on the child’s behalf. [Cit.]” Id. Thus, to the extent Money bases his civil rights counterclaim on DHR’s allegedly groundless child support enforcement efforts, that counterclaim has no merit. We therefore reverse this case and remand it for proceedings consistent with this opinion.

Judgment reversed and remanded.

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

Decided June 25, 1996

Reconsideration denied July 9, 1996

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

Bruce & Hentz, Kenneth D. Bruce, for appellee.

       DHR raised on appeal no issue concerning an immunity defense to this civil rights claim. But see Will v. Michigan Dept. of State Police, 491 U. S. 58, 66-70 (109 SC 2304, 105 LE2d 45) (1989) (state is not a “person” subject to liability under 42 USC § 1983).


author: Blackburn, Judge. Beasley, Chief Judge,

text:
    A94A0326.
    THE STATE v. BERKY.
    (473 SE2d 590)
   Blackburn, Judge.

In State v. Berky, 214 Ga. App. 174 (447 SE2d 147) (1994), the trial court granted the defendant’s pre-trial motion to dismiss following the State’s announcement upon the call of the case that it could not proceed as the trial court had suppressed the videotape of the DUI arrest. The police officer had been killed and the State could not meet traditional foundational requirements for admission of the videotape. Upon the State’s appeal, we joined an overwhelming majority of states and adopted the silent witness theory for admission of videotapes in Georgia, reversing the trial court’s grant of Berky’s motion to dismiss.

On certiorari, the Georgia Supreme Court reversed our decision for lack of jurisdiction, finding that there was no basis for the State’s appeal of the granting of defendant’s motion to dismiss, notwithstanding the provisions of OCGA § 5-7-1 (a) (1), which grants to the State a right of direct appeal “[f]rom an order, decision, or judgment setting aside or dismissing any indictment or accusation or any count thereof.” The Supreme Court held that the dismissal resulted from a general evidentiary ruling by the trial court on the motion to suppress. Berky v. State, 266 Ga. 28 (463 SE2d 891) (1995).

Our Supreme Court relied upon State v. Lavell, 214 Ga. App. 525 (448 SE2d 270) (1994), a case which did not involve a dismissal of the accusation, but rather was simply an interlocutory appeal of a general evidentiary ruling, that being the trial court’s suppression, on hearsay grounds, of the police report, where the police officer was unavailable to testify because he had been killed.

Our Supreme Court further relied upon State v. Land-O-Sun Dairies, 204 Ga. App. 485, 487 (419 SE2d 743) (1992) a case in which the record reflected that the trial court granted defendant’s pre-trial motion to exclude the testimony of certain witnesses, a nonappealable general evidentiary ruling. Thereafter, the State requested that the court treat the motion as a motion to quash the indictment so that it could appeal the order. Over objection, the trial court agreed and granted the motion to quash. The State appealed, and this Court held that the State could not circumvent the statute and create avenues for appeal by requesting a trial court to convert an adverse general evidentiary ruling into a motion to quash the indictment, and that this Court had no jurisdiction because the order became one quashing the indictment only at the State’s request.

Morris v. State, 262 Ga. 446, 447-448 (421 SE2d 524) (1992), cited by our Supreme Court, involved a double jeopardy issue. In mid-trial, the trial court dismissed the State’s case following the State’s failure to disclose the identity of an informant, after having been ordered to do so by the court. The State appealed, and this Court held that the trial court’s action constituted a dismissal of the indictment and the State was entitled to an appeal under OCGA § 5-7-1 (a) (1). The Supreme Court’s review on certiorari was limited to the merits of defendant’s motion to dismiss the State’s appeal on grounds of double jeopardy. The Supreme Court held that because the termination of the trial was improper, further prosecution was prohibited and therefore the State’s appeal should have been dismissed.

This case, unlike those cited by the Supreme Court, involves an appeal by the State from a dismissal initiated by the defendant. It does not involve an intentional attempt to manipulate the court’s ruling so as to create a right of appeal as was the case in State v. Land-O-Sun Dairies, supra. Neither does it involve a double jeopardy issue as was the case in Morris v. State, supra. This case does involve a dismissal of the accusation, unlike State v. Lavell, supra, which was simply a general evidentiary interlocutory ruling with no dismissal of the accusation.

In State v. McCard, 173 Ga. App. 504 (326 SE2d 856) (1985), we allowed the direct appeal by the State of the trial court’s grant of the defendant’s motion in limine to exclude the results of his blood-alcohol test. In doing so we relied on our Supreme Court’s answer to a certified question in State v. Strickman, 253 Ga. 287 (319 SE2d 864) (1984). Therein, our Supreme Court answered the following certified question from this Court: Although otherwise considered an interlocutory ruling, in a criminal case where the defendant’s pretrial motion in limine to suppress evidence is granted based upon allegations not involving illegal search and seizure, is the grant of such motion in limine subject to direct appeal by the state under OCGA § 5-7-1 (4)?’ ” (Emphasis supplied.) OCGA § 5-7-1 (a) (4) provides for an appeal from the State “[fjrom an order, decision, or judgment sustaining a motion to suppress evidence illegally seized in the case of motions made and ruled upon prior to the impaneling of a jury.” Our Supreme Court held “that if a defendant moves before trial to exclude evidence on the ground that it was obtained in violation of law, the grant of such a motion — whatever its name — is subject to direct appeal on the part of the state.” Strickman, supra at 288. The Supreme Court construed the language of OCGA § 5-7-1 (a) (4) liberally, finding that “the appeal statute [was] remedial in nature, so that an error committed by a trial judge, which otherwise might work a miscarriage of justice, can be corrected on appeal.” Id.

Under the ruling of our Supreme Court in Berky, it would appear that it would be procedurally impossible for the State to initiate an appellate review of the “Silent Witness Theory” in Georgia. Although not before us in the present case, we are pleased to note that the 1996 legislature passed and the Governor signed House Bill 1235 to be codified at OCGA § 24-4-48 which provides for the admissibility of photographs, motion pictures, videotapes, and audio recordings where the authenticating witness is unavailable.

We are bound by the decisions of our Supreme Court, and accordingly, our earlier opinion in this matter is hereby vacated, and we adopt the opinion of the Supreme Court.

Opinion vacated and appeal dismissed.

Birdsong, P. J., Pope, P. J., and Johnson, J., concur. Beasley, C. J., and McMurray, P. J., concur specially. Andrews, Smith and Ruffin, JJ., concur in the judgment only.

Beasley, Chief Judge,

concurring specially.

I concur in the vacation of our earlier opinion and the dismissal of the appeal, but not in the view expressed in the new opinion, that this court would have jurisdiction but for the ruling of the Supreme Court on certiorari. I do agree that we are bound to follow the direction of the Supreme Court. Ga. Const. Art. VI, Sec. VI, Par. VI. The Supreme Court determined that OCGA § 5-7-1 did not authorize an appeal by the State from the trial court order, so it should have been dismissed by this Court.

Although I concurred in the judgment and opinion when this Court first decided the case, see State v. Berky, 214 Ga. App. 174 (447 SE2d 147) (1994), the appeal clearly should have been dismissed.

The State’s notice of appeal states that it is from the dismissal of the accusation for want of prosecution but takes care to state that the transcript of the hearing on the “motion to suppress/motion in limine” will be filed for inclusion.

The State’s enumerations of error and brief make it self-evident that its appeal was from the unappealable grant of the motion in limine. The enumerations are that “The trial court erred in dismissing the accusation for want of prosecution” and that “The trial court erred in granting [Berky’s] motion in limine to exclude videotape evidence of the alleged crime.” The first enumeration was subsumed in the second by a combined argument, which is summarized at the outset by the statement that “The trial court erred in dismissing the accusation for want of prosecution when the State could not prosecute because the trial court erroneously excluded the sole evidence of the crime.” The argument focused entirely on the admissibility of the videotape.

After the State filed its brief, the defendant simultaneously filed his brief plus a motion to dismiss the appeal and brief in support of it. He pointed out that OCGA § 5-7-1 did not authorize the State’s appeal and cited an unpublished case in which this Court a few months earlier had dismissed the State’s application for leave to appeal an interlocutory order granting defendant’s motion in limine. The basis for the dismissal was that neither subsection (3) nor subsection (4) of OCGA § 5-7-1 (a) authorized an appeal by the State. State v. Land-O-Sun Dairies, 204 Ga. App. 485, 487 (419 SE2d 743) (1992), and State v. Hollomon, 132 Ga. App. 304 (208 SE2d 167) (1974), were cited in the order. The substantive issue was the same: the admissibility of a videotape depicting an arrest by the same officer, who was killed a few days after the arrest. Reconsideration and certiorari were denied in that case. Defendant Berky urged that the State’s appeal was frivolous because of the dismissal in the earlier case; it actually was ordered two weeks before the motion hearing in Berky’s case.

The State replied that jurisdiction was provided by subsection (1), which allows it to appeal from an order dismissing an accusation, even “[w]here the dismissal is a direct and sole result of the trial court’s exclusion or suppression of ALL of the State’s evidence.”

We did not expressly rule on the motion but instead issued an opinion on the merits, impliedly denying the motion or at least in effect denying it by our action. Defendant moved for reconsideration and pointed out the problem of jurisdiction and the absence of a ruling on his motion. He noted that the State was in fact not appealing from the dismissal of the accusation because it did not object to the dismissal when it announced that it was not ready to proceed with the trial. The motion for reconsideration was denied and the petition for certiorari was granted.

The activity in the trial court reveals that the issue was prompted not by the defendant but by the State, in the first place.

Defendant filed a motion to suppress scientific tests and his own statements, if any, on the grounds of an illegal stop, detention, and arrest. No mention was made of the videotape or of the officer’s death. The State responded to the motion by filing a “Brief in Support of Admissibility of Videotape and Police Report” which did not address the subject of the motion except peripherally.

Decided July 9, 1996.

Gerald N. Blaney, Jr., Solicitor, Richard E. Thomas, Assistant Solicitor, for appellant.

Russell T. Bryant, for appellee.

At the hearing, the defendant made an oral motion in limine to preclude the videotape, and both the State and defendant requested a ruling on this motion before the court and the parties addressed the motion to suppress. The court obliged and granted the motion on the authority of Allen v. State, 146 Ga. App. 815 (247 SE2d 540) (1978), whereupon defendant withdrew his motion to suppress.

On the day set for jury trial, defendant announced “ready” and the State announced that it was unable to prosecute in light of the ruling on the motion in limine. Defendant moved for dismissal of the accusation for want of prosecution and the court was compelled to grant it.

Although an appellate ruling on the substantive issue of admissibility may be desirable, as the trial court suggested at the outset of the motion hearing, the procedure utilized here does not present it, as the Supreme Court explained. This was not, in actuality, an appeal from an order dismissing an accusation, as is permitted by OCGA § 5-7-1 (a) (1).

In cases not affected by OCGA § 24-4-48, which was enacted by the General Assembly in 1996, the issue of the admissibility of the videotape must await a proper appeal, such as an instance where a trial court admits, over defendant’s objection, such evidence or other evidence generated by a law enforcement officer who dies before trial. If defendant is convicted, the issue will be ripe for resolution by an appellate court in an appeal taken by defendant.

Or, utilizing the interlocutory procedure in OCGA § 5-6-34 (b), a defendant could raise it on a granted application for review of the denial of a defendant’s motion in limine to exclude the evidence. See, e.g., Sosebee v. State, 257 Ga. 298 (357 SE2d 562) (1987); Deckard v. State, 210 Ga. App. 421 (436 SE2d 536) (1993). But the opposite is not permitted. The State could not raise this issue through an interlocutory application after the grant of a motion in limine excluding the tape evidence. OCGA § 5-7-1; State v. Land-O-Sun Dairies, supra; State v. McKenna, 199 Ga. App. 206 (404 SE2d 278) (1991); State v. Hollomon, supra.

I am authorized to state that Presiding Judge McMurray joins in this special concurrence.


author: Johnson, Judge.

text:
    A96A1047.
    THE STATE v. JOHNSON.
    (473 SE2d 593)
    Decided July 9, 1996.

      Gerald N. Blaney, Jr., Solicitor, for appellant.

      Phyllis Miller, for appellee.
   Johnson, Judge.

While represented by counsel, John E. Johnson, Jr., entered a plea of guilty to charges of driving while under the influence of alcohol, attempting to elude a law enforcement officer, and driving with a suspended license. Johnson was sentenced by the State Court of Gwinnett County and, more than a year later, filed a motion in state court to withdraw his plea, claiming it was not knowingly, intelligently, freely or voluntarily made. The trial court granted his motion. The state appeals, arguing that the trial court erred in allowing the guilty plea to be withdrawn when the motion was filed outside the term of court in which the judgment was entered. We agree and reverse.

The trial court’s authority to grant a motion to withdraw a guilty plea ends with the term of court in which the judgment of conviction is entered. State v. Kight, 175 Ga. App. 65, 66 (1) (332 SE2d 363) (1985). The terms of court for the State Court of Gwinnett County begin in January, March, May, July, September and November. Ga. L. 1981, pp. 3034-3035, § 2. The state court’s judgment of conviction in this case was entered on October 3, 1994, during its September 1994 term. The order granting the motion was entered in December 1995, during the court’s November 1995 term, a full seven terms and more than a year beyond the term in which the judgment was entered. The trial court therefore lacked authority to allow Johnson to withdraw his plea. See Jarrett v. State, 217 Ga. App. 627, 628 (1) (458 SE2d 414) (1995). At the time of his motion, the only remedy available to Johnson would have been through habeas corpus proceedings. See Lowery v. State, 188 Ga. App. 411 (373 SE2d 261) (1988). Inasmuch as the trial court here was not a superior court, it lacked jurisdiction to treat the motion as a habeas corpus proceeding. Thigpen v. State, 165 Ga. App. 837, 838 (303 SE2d 81) (1983). The trial court erred in granting Johnson’s motion.

Judgment reversed.

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


text:
    A96A1102.
    HOPKINS v. THE STATE.
    (473 SE2d 267)
   Johnson, Judge.

A jury found Kareem Abdul Hopkins guilty of selling cocaine. Hopkins appeals, arguing that the evidence was insufficient to authorize his conviction because he was elsewhere at the time of the transaction and the agent who identified him as the seller must have mistaken him for someone who looked like and often visited Hopkins in his motel room.

Viewing the evidence in the light most favorable to the jury’s verdict, it shows that a confidential informant told an agent with the federal Naval Investigative Service that Hopkins was selling drugs out of his motel room in Kingsland, Georgia, near a naval base. The agent set up an undercover narcotics operation using naval security officer John Cornish as the buyer. Before sending Cornish and the confidential informant to Hopkins’ room, they were searched for money and drugs. When Cornish and the informant arrived at the motel room, a man opened the door and was introduced by the informant as “Kareem.” The man identified as “Kareem” went back into the room, came out and walked down the corridor with the informant and Cornish. Kareem pulled out two small plastic bags and said “forty.” Cornish gave him $40 in government funds and was handed the plastic bags containing what later tested positive for cocaine. At trial, Cornish identified Hopkins as the person who sold him the cocaine. The manager of the motel testified that Hopkins was staying in the room on the date of the transaction.

“On appeal of a criminal conviction, the appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility.” (Citations and punctuation omitted.) Platt v. State, 211 Ga. App. 721, 722 (440 SE2d 495) (1994). In light of Cornish’s in-court testimony and other evidence presented by the state, the jury was authorized to and did reject Hopkins’ alibi testimony. See Slaughter v. State, 217 Ga. App. 449, 450 (1) (a) (459 SE2d 168) (1995). Moreover, the accuracy of eyewitness identification is within the exclusive province of the jury. Gray v. State, 213 Ga. App. 507, 509 (1) (445 SE2d 328) (1994). The evidence was sufficient to sustain Hopkins’ conviction for sale of cocaine under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Hutson v. State, 216 Ga. App. 100 (1) (453 SE2d 130) (1995).

Judgment affirmed.

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

Decided July 9, 1996.

Clyde M. Urquhart, for appellant.

Glenn Thomas, Jr., District Attorney, George C. Turner, Jr., Assistant District Attorney, for appellee.


author: McMurray, Presiding Judge.

text:
    A96A1111.
    WATSON v. THE STATE.
    (473 SE2d 262)
   McMurray, Presiding Judge.

Defendant was tried before a jury and found guilty of rape and incest for sexual acts committed against his daughter. Viewed in the light most favorable to the jury’s verdict, the evidence revealed that on the morning of April 9, 1995, Mary Ann Groomes stepped out of the home she shared with defendant and the victim, his 14-year-old daughter, to speak with a neighbor. She returned presently, only to find the “front screen door was hooked.” Mary Ann Groomes managed to pop the hook from the latch, and when she went inside, she “found [defendant] on the bed with his daughter, and he jumped up off the top of her. And she was undressed from the waist down, and he ran to the other side of the room.” Defendant was clad only in basketball shorts, while the victim’s clothes were “at the foot of the bed on the floor and she was laying on the bed with her legs wide open.” As Mary Ann Groomes started beating defendant with a broom, he attempted to explain that “some guys said that they had been with [the victim] and that she had a tattoo between her legs and he was looking for the tattoo.” Mary Ann Groomes confirmed that the victim had a tattoo, but “not between her legs. It’s on her thigh.” Before the police arrived, the victim told Mary Ann Groomes “that he [defendant] was making her have sex with him.” Mary Ann Groomes saw defendant drinking whiskey that morning. Deputy Gene Shattles of the Terrell County Sheriff’s Department arrived and spoke with the victim, who “was upset at first. It took about fifteen minutes before she would say anything, then she talked.” At the police station, the victim “stated that it had been going on since she was six years old.” Defendant returned to the home and Deputy Shattles placed him under arrest. Defendant had “bloodshot eyes, kind of slurred speech like he had been . . . under the influence of alcohol.” Once or twice, defendant stated to Deputy Shattles that “he was only checking — that he heard a rumor that some boys put a hickey in the lower part, and he was checking to see if this was really true.”

The 14-year-old victim testified “he [defendant] was drunk. So, I told him that I was fixing to go over to grandma’s house. . . .” She did not wish to be around defendant when he had been drinking. As she was getting her shoes, “he grabbed [her] . . . and pulled down our clothes. . . . He [threw her] on the bed, and he had his hand around [her] neck. Then he told [the victim] to shut up and stop all that hooping and hollering because . . . nobody [was] going to believe it anyway. . . .” The victim’s “shorts and [her] panties . . .” were on the floor. Without removing his shorts, defendant “took his penis out and put it in [her].” Defendant said to the victim, “if [she] ever told anybody, he was going to kill [her].”

Decided July 9, 1996.

Charles R. Hunt, for appellant.

Charles M. Ferguson, District Attorney, for appellee.

The jury found defendant guilty of each charge, and this direct appeal followed. Held:

1. Although not enumerated as error, we find the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) to authorize the jury’s verdict that defendant is guilty, beyond a reasonable doubt, of rape and incest as alleged in the indictment. Kirby v. State, 187 Ga. App. 88 (1), 89 (369 SE2d 274). See also Baker v. State, 245 Ga. 657, 664 (5) (266 SE2d 477).

2. In his sole enumerated error, defendant contends the trial court erred in permitting Mary Jane Salter, of the Terrell County Department of Family & Children Services, to testify as a rebuttal witness for the State, after she had sat through the trial and heard the testimony of the State’s previous witnesses. He argues that this was in violation of the rule of sequestration.

Generally, “in all cases, either party shall have the right to have the witnesses of the other party examined out of the hearing of each other.” OCGA § 24-9-61. For aught that appears of record, however, the rule of sequestration was never invoked by either the State or defendant before the presentation of evidence. Consequently, this enumeration is without merit. Smallwood v. State, 193 Ga. App. 807, 808 (1), 809 (389 SE2d 390); Byers v. Lieberman, 126 Ga. App. 582, 585 (4) (191 SE2d 470).

Judgment affirmed.

Johnson and Ruffin, JJ, concur.


text:
    A96A1247.
    CARTER v. ENSLEY et al.
    (473 SE2d 265)
   Johnson, Judge.

Natalie Carter filed an action against Walter Ensley, and his father Benny Ensley under the family purpose doctrine, seeking to recover damages allegedly sustained when she was struck by a pickup truck driven by Walter Ensley. In their answer, the Ensleys asserted that the sole proximate cause of any damages sustained by Carter was her own negligence in stepping into the path of Ensley’s vehicle as it traveled through an intersection. The Ensleys filed a motion for summary judgment, which the trial court granted.

Both Carter and Ensley were students at Valdosta State University on the day of the accident, which occurred near the campus. According to Ensley’s deposition testimony, as Ensley was driving on North Oak Street, he saw that the traffic signal at the intersection of North Oak Street and Brookwood was green. Ensley noticed pedestrians in his peripheral vision, but was looking ahead as he entered the intersection. He did not see Carter until it was too late to avoid hitting her, although he was able to swerve. Eric Prince, also a student, witnessed the accident. He deposed as follows: “I was just walking to class and [Carter] was in front of me. And she was getting ready to cross the street. The light was green, the guy had the right of way. I was just looking and I had to be at least 15 feet — between 12 and 15 feet behind her, and she kept walking across the street. And the guy was coming, and it just all happened so fast. She continued walking. She didn’t appear to seem like she was slowing down or anything. I guess she had a miscommunication with the traffic light. So, anyway, she continued to walk across the street; and the guy saw her; and he blew his horn; and he attempted to stop, but it wasn’t his fault. . . . From what I could see, he couldn’t avoid it.” Prince also testified that Ensley did not appear to be exceeding the speed limit. Jeffrey Perry, another eyewitness to the accident, testified that the truck in which he was a passenger was stopped at a red light when he saw Ensley’s truck travel through the intersection on green, sound his horn, and hit Carter.

Carter does not recall if she looked at either the traffic lights controlling the intersection or the pedestrian cross-walk signals before entering the intersection. She testified at her deposition that as she approached the intersection she looked, but saw nothing coming. She never saw Ensley’s vehicle before it hit her. Carter’s father testified by way of affidavit that Ensley visited the hospital after the accident and told him that he was in a hurry to get to class. .

In a single sentence order, the trial court granted the Ensleys’ motion for summary judgment and Carter appeals. While the evidence of record in this case suggests that Carter failed to exercise due care for her own safety, “evidence is insufficient to support summary judgment if it merely preponderates towards the defendant’s theory, or if it only discloses that satisfactory proof of plaintiff’s case on trial will be unlikely. [Cits.]” Scott v. Owens-Illinois, 173 Ga. App. 19, 21 (325 SE2d 402) (1984). In Banks v. Payne, 213 Ga. App. 783, 785 (445 SE2d 826) (1994), a factually similar case which stands as physical precedent only, this Court found summary judgment was inappropriate in a case which relied solely on expressions of opinion. The determination of issues such as whether Ensley was operating his vehicle with due care, and whether Carter could have avoided the injury to herself by exercising due care for her own safety, are uniquely issues for a finder of fact. See Hill v. Copeland, 148 Ga. App. 232, 235 (4) (250 SE2d 822) (1978).

Decided July 9, 1996.

Loyce W. Turner, Jr., for appellant.

Young, Thagard, Hoffman, Scott & Smith, F. Thomas Young, John H. Smith, Jr., for appellees.

The appellees cite three cases in support of their argument that the mere occurrence of an accident does not demand a finding of negligence: Neal v. Miller, 194 Ga. App. 231 (390 SE2d 125) (1990); Johnson v. Ellis, 179 Ga. App. 343 (346 SE2d 119) (1986); and Richardson v. Pullen, 175 Ga. App. 305 (333 SE2d 130) (1985). Verdicts were directed in favor of the defendants in each of these cases. None of them involved the grant or denial of summary judgment. While a motion for summary judgment is analogous to a motion for a directed verdict, Porter v. Felker, 261 Ga. 421 (1) (405 SE2d 31) (1991), “[a]n evidentiary posture authorizing the grant of a directed verdict may not authorize the grant of summary judgment in a case . . . where the party making the motion for summary judgment is not required to carry the burden on the trial of the case.” (Citations and punctuation omitted.) Winn-Dixie of Greenville v. Ramey, 186 Ga. App. 257, 258 (1) (366 SE2d 785) (1988). Because Carter bears the burden at trial of proving Ensley negligent, a contention he has attempted to rebut with opinion evidence in his motion for summary judgment, we conclude that the trial court erred in granting summary judgment and reverse.

Judgment reversed.

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


text:
    A96A1268.
    SOUTHEASTERN SECURITY INSURANCE COMPANY v. HOTLE.
    (473 SE2d 256)
   Johnson, Judge.

A jury agreed with plaintiff Nicole Hotle that she had been subjected to a hostile work environment and was a victim of sexual harassment while working for Southeastern Security Insurance Company. They assessed general damages of $1 and punitive damages in the amount of $45,000 against Southeastern, and general damages of $1 and punitive damages in the amount of $20,000 against Southeastern’s employee, James Alexander. Southeastern appeals.

1. Southeastern complains that the trial court erred in failing to grant Alexander’s motion for directed verdict as to Hotle’s intentional infliction of emotional distress claim; in denying Southeastern’s motion for directed verdict as to punitive damages; in denying Southeastern’s motion for new trial because the verdict was contrary or against the weight of the evidence and because the trial court allowed the admission of irrelevant and prejudicial evidence; and in denying Southeastern’s motion for j.n.o.v. on the issue of damages. Because the standard of review on appeal following a jury’s verdict, the “any evidence” or “some evidence” rule, is the same for all of these allegations of error we will consider them together. “Where a jury returns a verdict and it has the approval of the trial judge, the same must be affirmed on appeal if there is any evidence to support it as the jurors are the sole and exclusive judges of the weight and credit given the evidence. . . . The appellate court must construe the evidence with every inference and presumption in favor of upholding the verdict, and after judgment, the evidence must be construed to uphold the verdict even where the evidence is in conflict. As long as there is some evidence to support the verdict, the denial of defendant’s [motion] for [directed verdict,] new trial and j.n.o.v. will not be disturbed.” (Citations and punctuation omitted.) Willis v. Brassell, 220 Ga. App. 348 (469 SE2d 733) (1996).

Viewed in this light, the evidence supports the facts as follows. Hotle, then 19 years old, went to work for Southeastern as a data entry clerk. Hotle worked for three months, under three different supervisors, without incident. Then, Alexander, vice president of Southeastern, and nephew of the company’s owner, became her supervisor. In conjunction with her job duties, Hotle reported to Alexander regularly on Monday mornings. On those occasions, Alexander would ask Hotle questions such as: “Did you get laid this weekend?” or “Did you get stuck this weekend?” or “Did you have a two-on-one this weekend?” Alexander once asked Hotle to bring him a cup of coffee, holding it between her legs and walking on her hands. He referred to Hotle and the other female employees as his “bitches.” Alexander’s comments were not always directed at Hotle, but were made in her presence. When Alexander overheard one employee ask another to stick a document in the file room, he commented that he would “stick you in the file room.” Alexander once asked an employee if she would like to “try him out” and compare him with her husband. The same former Southeastern employee testified that she heard comments of a sexual nature almost daily. Alexander admitted on cross-examination that another Southeastern manager opined on one occasion that Hotle and one of the other female employees could “use a good hard f_On another occasion, as a female employee answered the phone “May I help you?” a manager stated: ‘Yeah, get down on your knees.” Hotle testified that she tried to discourage this type of behavior, and she and others complained to management that they found this behavior offensive and upsetting.

(a) In order to sustain a claim of intentional infliction of emotional harm in a sexual harassment case, a “plaintiff must show 1) that defendant’s behavior was wilful and wanton or intentionally directed to harming plaintiff; 2) that the actions of defendant were such as would naturally humiliate, embarrass, frighten, or outrage the plaintiff; 3) that conduct caused mental suffering or wounded feelings or emotional upset or distress to plaintiff.” Coleman v. Housing Auth. of Americus, 191 Ga. App. 166, 170 (1) (381 SE2d 303) (1989). Because some evidence was presented which would satisfy all three prongs of that test, the trial court properly denied Alexander’s motion for directed verdict on the intentional infliction of emotional harm claim. See generally Shaw v. Ruiz, 207 Ga. App. 299, 303 (428 SE2d 98) (1993).

(b) Likewise, there was ample evidence from which the jury could conclude that Southeastern, through the actions of its president and other management personnel, participated in the perpetuation of a hostile work environment, and exhibited a total want of care. The denial of Southeastern’s motion for directed verdict as to punitive damages was not error. Southeastern’s reliance on Troutman v. B. C. B. Co., 209 Ga. App. 166, 168 (2) (433 SE2d 73) (1993) is misplaced. In this case there was evidence from which a jury could conclude that harassment was institutionalized at Southeastern, starting with the actions of its president and pervading the company. Thus the jury had evidence before it from which it could conclude that the company evinced a total want of care, raising an inference of a conscious indifference to the consequences.

(c) Similarly the trial court did not err in denying Southeastern’s motion for new trial on general grounds because evidence was presented in support of Hotle’s claims that Southeastern negligently retained Alexander and failed to keep its workplace free of sexual harassment. See Rogers v. Carmike Cinemas, 211 Ga. App. 427 (439 SE2d 663) (1993).

(d) Southeastern’s assertion that the trial court erred in failing to grant its motion for new trial because the trial court allowed the admission of irrelevant or prejudicial evidence is likewise without merit. “Unless the potential for prejudice in the admission of evidence substantially outweighs its probative value the Georgia rule favors the admission of any relevant evidence, no matter how slight its probative value. Evidence of doubtful relevancy or competency should be admitted and its weight left to the jurors. Where evidence is offered and objected to, if it is competent for any purpose, it is not erroneous to admit it. Absent a manifest abuse of discretion, a court’s refusal to admit evidence on grounds of lack of relevance will not be disturbed on appeal.” (Citations and punctuation omitted.) Wilson v. Southern R. Co., 208 Ga. App. 598, 604 (4) (431 SE2d 383) (1993). Because evidence of comments made to employees other than the plaintiff in this case is directly relevant to Hotle’s work environment, such evidence was relevant and was properly admitted. That the evidence was prejudicial to Southeastern does not render it inadmissible. The prejudicial effect of the evidence did not outweigh its probative value and the trial court did not err in admitting it.

(e) Finally, the trial court did not err in denying Southeastern’s motion for j.n.o.v. Southeastern argues that the awards for general damages and punitive damages constitute an impermissible double recovery. See Waldrip v. Voyles, 201 Ga. App. 592, 594-596 (2) (411 SE2d 765) (1991). The jury awarded Hotle $1 from Alexander and $1 from Southeastern. The specially drafted verdict form, which neither party excepted to, did not specify which of the several underlying causes of action which were pled formed the basis of that award. “Presumptions favor the validity of verdicts and a construction, if possible, will be given which will uphold them.” Adams v. Smith, 129 Ga. App. 850, 853 (5) (201 SE2d 639) (1973). The trial court did not err in denying Southeastern’s motion for j.n.o.v. on this ground.

Southeastern also argues that the denial of its motion for j.n.o.v. was error because the amount of the award for punitive damages was disproportionate to the amount awarded for general damages. We do not look to a mechanical formula to establish the relationship between general and punitive damage awards. Rather, we look to the evidence to determine whether there was support for the jury’s verdict. “Punitive damages are not compensation for injury. Instead, they are private fines levied by civil juries to punish reprehensible conduct and to deter its future occurrence. ... A deterrence award is based on factors, for the most part, unrelated to the injury to any particular victim, and is limited only by the collective conscience of the jury.” (Citations and punctuation omitted,) Hosp. Auth. of Gwinnett County v. Jones, 259 Ga. 759, 762 (2) (386 SE2d 120) (1989). “[T]he notion that punitive damages must necessarily bear some relationship to the actual damages awarded by the jury has been rejected in this state. However this relationship may be considered on the issue whether the punitive damage award is excessive due to undue passion and prejudice.” (Citation and punctuation omitted.) Oglethorpe Power Corp. v. Sheriff, 210 Ga. App. 299, 301-302 (4) (c) (436 SE2d 14) (1993). We do not find the trial court’s conclusion that the award in this case was based on evidence rather than undue passion and prejudice to be clearly erroneous.

Neither do we believe that the U. S. Supreme Court’s recent decision in BMW of North America v. Gore, _ U. S. _ (116 SC 1589, 134 LE2d 809) (1996) demands a different result here. In that case, the Alabama Supreme Court adjusted a jury’s punitive damage award to $2 million in a case in which BMW did not disclose to a purchaser that a vehicle, marketed as new, had been repainted. The Supreme Court accepted certiorari in that case to explore the character of the standard that will identify constitutionally excessive punitive damage awards. The inquiry begins with an identification of the state interest that the punitive damage award is designed to serve. In the BMW case the state interest is the protection of consumers from questionable trade practices. Here, the state interest is to protect women from being subjected to harassment in the workplace. The inquiry continues with an evaluation of how reprehensible the conduct was. The Supreme Court concluded that none of the aggravating factors associated with particularly reprehensible conduct was present in a case where repainting a car was not disclosed to a purchaser. Here, the jury found that the behavior to which Hotle was subjected was degrading and reprehensible. And although the Supreme Court found the ratio of the compensatory damage award to the punitive damage award to be suspect in the BMW case, it once again reiterated its rejection of a categorical approach to the calculation of damages.

The state has a compelling interest in deterring the reprehensible conduct to which Hotle was subjected while an employee at Southeastern, and although the relationship between the compensatory and punitive damages awarded here is unbalanced, the jury spoke and the trial court, which also heard the evidence, did not find the award excessive. The trial court did not abuse its discretion in refusing to grant Southeastern’s motion for j.n.o.v.

2. The trial court did not err in denying Southeastern’s motion to reduce the punitive damage award. A trial court should not interfere with the amount of damages awarded by a jury unless they are so clearly inadequate or so excessive as to be inconsistent with the preponderance of the evidence in the case. OCGA § 51-12-12. “An excessive or inadequate verdict constitutes a mistake of fact rather than of law. It addresses itself to the discretion of the trial judge who saw the witnesses and heard the testimony. This court is a court for the correction of errors of law only, and this court’s jurisdiction is confined to the question of whether the trial court abused [its] discretion in overruling the motion [for reduction of damages] on this ground.” St. Paul Fire &c. Ins. Co. v. Dillingham, 112 Ga. App. 422, 425 (145 SE2d 624) (1965). The trial court’s refusal to reduce the jury’s award was not an abuse of discretion and we find no error. -

3. The trial court instructed the jury that “[i]n order for punitive damages to be awarded, the plaintiff must prove by clear and convincing evidence that the defendants’ actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.” Southeastern now complains that the trial court erred in failing to define the clear and convincing standard of proof for the jury. Southeastern’s argument that it was error not to define clear and convincing is well-taken. See Clarke v. Cotton, 263 Ga. 861 (440 SE2d 165) (1994). Unfortunately for Southeastern, however, this case is too similar to the case upon which it relies to be of benefit. As in Clarke, “counsel for the defendants acquiesced in the trial court’s instructions. . . . Accordingly, the defendants have waived any claim that the trial court’s error in its charge was harmful.” Id. at 863. Southeastern never requested a charge defining the clear and convincing standard and failed to except to the charge on the basis that the definition was not given. This issue, then, raised for the first time in this appeal, has been waived. “An alleged error raised for the first time on appeal will not be considered by this court. [Cit.]” Cora v. Wagner, 196 Ga. App. 774, 775 (2) (397 SE2d 46) (1990).

Decided July 9, 1996.

Hertz & Link, Eric J. Hertz, Houston D. Smith III, Harvey G. Berss, for appellant.

Gill, Peterson & Harris, Allen F. Harris, Mark A. Thompson, for appellee.

Judgment affirmed.

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


text:
    A96A1452.
    PATTERSON v. THE STATE.
    (473 SE2d 255)
   McMurray, Presiding Judge.

Defendant was charged in an indictment with one count of aggravated child molestation, two counts of incest, and four counts of child molestation, for acts committed against his two minor daughters, Y. R. and A. P, and also a minor niece, M. L. The jury acquitted him of aggravated child molestation and one count of child molestation, but found him guilty of two counts of incest and three counts of child molestation. Two of those three counts of child molestation were merged with the two counts of incest. Defendant filed this direct appeal from the judgment and sentence. Held:

1. Defendant first enumerates the refusal of the trial court to give the following written request to charge: “The fact that one or more of the witnesses in this case is a child should not. . . bring any more weight or credit to her or their testimony. In other words, the fact that a witness is a child does not make her or their testimony any more truthful than that of the defendant or anyone else testifying in this matter.” •

“Notwithstanding the provisions of subsection (a) of [OCGA § 24-9-5], ... in criminal cases involving child molestation, and in all other criminal cases in which a child was a victim of or a witness to any crime, any such child shall be competent to testify, and his credibility shall be determined as provided in Article 4 of this chapter[, OCGA §§ 24-9-80 through 24-9-85].” OCGA § 24-9-5 (b). Pursuant to. OCGA § 24-9-80, the credibility of any witness is a matter to be determined by the jury under proper instructions from the court. Whether the circumstance that a witness is a child makes that child’s testimony more truthful than that of the defendant is strictly a matter of credibility for the jury to determine, taking into consideration all other appropriate factors. See McIlwain v. State, 264 Ga. 382, 383 (3) (445 SE2d 261) and Frasier v. State, 143 Ga. 322 (5) (85 SE 124). In our view, defendant’s request is not an accurate statement of the law and is argumentative, in that it erroneously charges that the credibility of each witness is the same in the eyes of the law. The correct proposition is that the rules for determining the credibility or believability of all the witnesses are the same. See Thomas v. State, 217 Ga. App. 720 (1), 721 (458 SE2d 897). The trial court did not err in refusing to give this instruction.

2. Defendant enumerates the general grounds with respect to the two counts of incest. He correctly notes that A. P. herself never testified from the stand that defendant committed an act of incestuous intercourse. Nevertheless, adults to whom A. P. made such accusations related those events to the jury. Jan Wilkov, M.D., performed a physical examination of both A. P. and Y. R. Dr. Wilkov testified that, during that examination, “she [A. P] said, quote, [defendant] touched my private area, finger and penis were inside, end quote.” Y. R. testified that defendant “put his private part inside of me.” Y. R. also told Dr. Wilkov “quote, he [defendant] touched my private part with his private part. [Dr. Wilkov] asked her what it felt like. Quote, bad. It went inside.” The physical examination indicated that Y. R. “was penetrated with a reasonable degree of medical certainty, . . . because of what she told [Dr. Wilkov] and because of the physical findings that go right along with that.” This evidence was sufficient, under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560), to authorize the jury’s verdicts that defendant committed the offense of incest with A. P. as alleged in Count 2 of the indictment and with Y. R. as alleged in Count 3 and the offense of child molestation as alleged in Count 6. Patterson v. State, 212 Ga. App. 257 (1) (441 SE2d 414). See also Dent v. State, 220 Ga. App. 147 (1) (469 SE2d 311). The enumeration of the general grounds is without merit.

Decided July 9, 1996.

Carla J. Friend, for appellant.

J. Tom Morgan, District Attorney, Lee A. Mangone, Barbara B. Conroy, Assistant District Attorneys, for appellee.

Judgment affirmed.

Johnson and Ruffin, JJ, concur.


author: McMURRAY, Presiding Judge.

text:
    A96A1465.
    BECK v. THE STATE.
    (473 SE2d 263)
   McMURRAY, Presiding Judge.

Defendant Beck was charged by indictment with the offenses of armed robbery, violation of the Georgia Controlled Substances Act, and habitual felon. The alleged offense of habitual felon was an invocation of the provisions of OCGA § 17-10-7 (b) (2) as amended by Ga. L. 1994, p. 1959, § 12, effective January 1, 1995, which require a mandatory sentence of life without parole upon conviction of a second serious violent felony, if the defendant is not sentenced to death. Defendant had a previous conviction for armed robbery in 1989. See OCGA § 17-10-6.1 for the definition of “serious violent offender.”

During the trial of the case, a plea bargaining agreement was reached and defendant entered his plea of guilty of armed robbery. Under that agreement, the remaining charges were to be nol prossed. Defendant was sentenced to life in prison.

Within 30 days defendant filed a motion styled as a motion for new trial, but which was in substance a motion to withdraw his plea of guilty maintaining that his plea was coerced. This appeal is taken from the denial of that motion. Held:

“ ‘ “Once the question of the validity of a guilty (or nolo contendere) plea has been raised, the burden is on the State to show that the plea was intelligently and voluntarily entered. The State may accomplish this end by two means, (1) showing on the record of the guilty plea hearing that the defendant was cognizant of all the rights he was waiving and the possible consequences of his plea; or (2) fill a silent record by use of extrinsic evidence that affirmatively shows that the guilty plea was knowing and voluntary.” (Cit.)’ White v. State, 211 Ga. App. 779 (440 SE2d 527) (1994). However, ‘(a)fter pronouncement of sentence, a ruling on a motion to withdraw a plea of guilty is within the discretion of the trial court and will not be disturbed on appeal absent a manifest abuse of such discretion.’ (Citations and punctuation omitted.) Bice v. State, 212 Ga. App. 184 (441 SE2d 507) (1994).” Spurgeon v. State, 214 Ga. App. 227 (447 SE2d 164). See also White v. State, 211 Ga. App. 779, supra.

Decided July 9, 1996.

Richard K. Murray, for appellant.

Kermit N. McManus, District Attorney, Herbert M. Poston, Jr., Assistant District Attorney, for appellee.

The plea transcript shows compliance with the procedures required under Uniform Superior Court Rules 33.7, 33.8, and 33.9 in order to establish that a guilty plea was knowing and voluntary. Appropriate responses were made by the defendant to each of the queries from the superior court including an explicit denial that the guilty plea was entered as a result of any threat or promise.

Nonetheless, defendant contends that he did not voluntarily enter his plea in that he was coerced by the threat of sentencing under OCGA § 17-10-7 (b) (2), as amended, to a period of life without parole. Defendant maintains that since his first conviction for armed robbery preceded the amendment of this statute, said amendment is inapplicable to this case and that such an application would amount to a violation of the ex post facto prohibitions of the United States and Georgia Constitutions. But in examining the voluntariness of defendant’s plea, the determinative issue is whether the plea represents a voluntary and intelligent choice among the alternative courses of action available to defendant. That defendant would not have pleaded but for the desire to avoid prosecution for additional crimes or to avoid receiving a longer sentence is not the type of coercion which prevents a plea from being free and voluntary. Shakur v. State, 239 Ga. 548, 549-550 (238 SE2d 85); Clark v. State, 186 Ga. App. 106, 108 (3) (366 SE2d 361), aff’d, State v. Clark, 258 Ga. 464 (369 SE2d 900). Therefore, we find no abuse of discretion in the superior court’s denial of defendant’s motion to withdraw his plea of guilty of armed robbery.

Judgment affirmed.

Johnson and Ruffin, JJ, concur.