text:
    A92A1517.
    A92A1518.
    TURPIN v. WORLEY et al. DEAN v. WORLEY et al.
    (425 SE2d 895)
   Birdsong, Presiding Judge.

The original complaint arose as a result of an automobile accident involving appellant/plaintiff Homer Turpin, appellee/defendant Nancy Worley, and co-defendant Albert Milford. Worley claimed her vehicle struck Turpin’s vehicle after Milford’s car pulled out in front of her requiring her to brake and causing her car to swerve into the other lane. Appellant appeals the judgment of the trial court awarding him pain and suffering in the amount of $100 and $4,157.77 property damage. Co-defendant Milford was awarded a directed verdict at the close of plaintiffs case. Appellee Worley and her daughter also had filed a third-party complaint against co-defendant Milford claiming he caused the accident, and that action was settled in favor of appellee’s daughter in the amount of $7,000.

The cross-complaint arose when third-party plaintiff/cross-appellee Nancy Worley sued third-party defendant/cross-appellant Will Dean and Canal Indemnity Company (Canal). Worley alleged her motor vehicle was insured under a garage policy by Canal, but if not covered, lack of coverage was due to the negligence of insurance agent Dean. The lower court bifurcated the trial of the third-party complaint from the main action and tried the third-party complaint first. Canal was granted a directed verdict. The jury concluded Dean was the agent of Nancy Worley, d/b/a Mountain Motors, and that the policy between Canal and Worley, d/b/a Mountain Motors, was cancelled as a result of Dean’s negligence. Judgment subsequently was entered against Dean in favor of Worley for $4,257.77 for judgment rendered against her on the main claim, for $6,860 and $500, respectively for reasonable attorney fees, and for $568 costs. Held:

Case No. A92A1517. Main Claim

1. Appellant/plaintiff asserts the verdict and judgment were contrary to law and the evidence, as medical expenses were proven in excess of $3,000. At trial appellant failed to prove medical expenses with that degree of certainty required by Lester v. S. J. Alexander, Inc., 127 Ga. App. 470, 471 (1) (193 SE2d 860). Evidence was introduced of prior and subsequent medical problems of plaintiff unrelated to the collision. The jury was charged that medical expenses could not be awarded, but could be used to assist in determining reasonable compensation for pain and suffering.

The evidence in this case did not require as a matter of law that the jury award damages for pain and suffering in an amount commensurate with appellant’s unperfected medical expense claim. Appellant’s primary complaint of injury was that of prolonged and debilitating headaches. Both of appellant’s expert witnesses gave deposition testimony that their conclusions relating to appellant’s pain would be strictly subjective. Dr. Vickery further testified: “As far as I could tell in my own diagnosis and treatment this was not a disabling problem.” Dr. Gotay, although testifying that a condition like appellant’s could be disabling, conceded that there is no test that can be performed to detect these headaches; “the headache being an expression of pain . . . it’s totally subjective”; and a doctor has to go by what the patient tells him, as the pain cannot be actually gauged or seen. Dr. Gotay further testified that 90 percent of any medical evaluation is based on the credibility of the patient, and because these types of symptoms are mostly subjective, it is extremely difficult to evaluate and prove a “malingerer situation with headaches.” It thus is readily apparent that the determination of the jury as to the credibility of appellant and the weight to be given his proof of pain and suffering would have substantial impact on the amount of damages to be awarded therefor in the case at bar. Assuming appellant had proven medical expenses relating to injury sustained in the collision in an amount of at least $3,000, “ ‘ “[a] verdict for less than the amount of the plaintiff’s proved medical expenses is not so inadequate as to require a new trial where there was testimony showing that the plaintiff’s complaints were at least partially related to her physical condition prior to the collision.” ’ ” Butler v. Anderson, 163 Ga. App. 547 (1) (295 SE2d 216); see Farley v. Thompson, 154 Ga. App. 505 (268 SE2d 778). Likewise, a verdict less than the amount of plaintiff’s proved medical expenses is not so inadequate as to require a new trial where, as here, there is some testimony that the pain suffered was subjective in nature and that proper medical diagnosis was substantially dependent upon patient credibility. The question of damages is ordinarily for the jury; and the court should not interfere with the jury’s verdict unless the damages awarded are clearly so inadequate or so excessive as to be inconsistent with the preponderance of the evidence in the case. OCGA § 51-12-12. “ ‘ “The general rule on appeal of an award of damages is that a jury’s award cannot be successfully attacked so as to warrant a new trial unless it is so flagrantly excessive or inadequate, in light of the evidence, as to create a clear implication of bias, prejudice, or gross mistake on the part of the jurors. (Cits.) Even though the evidence is such as to authorize a greater or lesser award than that actually made, the appellate court will not disturb it unless it is so flagrant as to ‘shock the conscience.’ ” ’ ” Peterson v. First Franklin Financial Corp., 201 Ga. App. 849, 850 (412 SE2d 612). So viewed, the judgment will not be disturbed. To set aside this award as being flagrantly inadequate would, in light of the expert testimony regarding the subjective character of appellant’s alleged pain and suffering, transgress upon the providence of the jurors who determined appellant’s credibility, observed his courtroom demeanor, and weighed the evidence. The assessment of a monetary value for pain and suffering is a matter for the enlightened conscience of the jury. Howard v. Gardner, 128 Ga. App. 545 (1) (197 SE2d 386). “ ‘ “Moreover, the trial court’s approval of the verdict creates a presumption of correctness that will not be disturbed absent compelling evidence. (Cits.)” [Cit.]’ ” Peterson, supra. There exists, in this case, insufficient evidence to overcome this presumption. See Ray v. Stinson, 172 Ga. App. 718, 720 (1B) (324 SE2d 506), aff'd. 254 Ga. 375 (329 SE2d 502). Further, appellant took no exceptions at trial either to the charges or to the form of the verdict, and has not enumerated any charging error. Compare Ray v. Stinson, 254 Ga. 375, supra.

2. Appellant asserts the trial court erred in directing verdict in favor of co-defendant Milford at the conclusion of plaintiff’s case. Although such a procedure is permissible (compare Chambers v. Williams Bros. Lumber Co., 80 Ga. App. 38 (55 SE2d 244)), where recovery is permitted against fewer than all defendants, “[a] trial court should exercise great caution before directing a separate verdict for one of several co-defendants, and it ought never to be granted unless it clearly appears that there is no evidence to affect the party in whose favor it is made.” 75A AmJur2d, Trial, § 985. The court in exercising its discretion should consider the likelihood that a remaining co-defendant, as to whom the trial will continue, will introduce evidence showing the moving defendant to be liable. 75A AmJur2d, supra at §§ 944 and 985.

Regarding the hearsay testimony of appellant’s witness, Spivey, concerning statements attributable to appellant as to Milford’s driving conduct, hearsay though admitted without objection lacks probative value to establish fact. See, e.g., Shaver v. State, 199 Ga. App. 428, 429 (1) (405 SE2d 281). Appellant has failed to establish that this hearsay met any recognized hearsay exception. Discounting this testimony, at the conclusion of appellant/plaintiff’s case there existed no evidence adequate to preclude the granting of Milford’s motion for directed verdict. However, during the subsequent testimony of co-defendant Worley, evidence was presented which would have precluded such grant.

Pretermitting whether the trial court erred in granting directed verdict in favor of Milford is the question whether the issue has been waived by the conduct of appellant. We conclude it has. During presentation of his case, appellant/plaintiff elected not to call co-defendant Worley for purposes of cross-examination (see generally OCGA § 24-9-81) to obtain her direct testimony regarding the driving conduct of co-defendant Milford. Further, appellant did not request the trial court’s permission to reopen its case so additional evidence as to Milford’s negligence could be presented, or to defer ruling on Milford’s motion for directed verdict. When the trial court expressly asked opposing counsel, regarding the motion for directed verdict, “do I hear anything from anybody,” appellant’s counsel posed no objection to an immediate ruling. A party cannot complain of a judgment, order, or ruling that his own trial procedure or conduct aided in causing. West v. Nodvin, 196 Ga. App. 825, 829 (3e) (397 SE2d 567). Such conduct constitutes both a form of induced error and waiver. Also, following the testimony of co-defendant Worley, appellant elected not to request reconsideration of the trial court’s grant of directed verdict. “ ‘A party cannot during trial ignore what he thinks to be an injustice, taking his chance on a favorable verdict, and complain later.’ ” Bolden v. Carroll, 239 Ga. 188, 189 (1) (236 SE2d 270).

Case No. A92A1518. Third-Party Claim

3. Cross-appellant/third-party defendant Dean, citing a specific page of the record in A92A1517, asserts the trial court erred in ruling that he did not stand in place of Canal after directing a verdict for Canal at the first trial. The cited page reveals no such ruling; neither does the equivalent page of the record in Court of Appeals Case No. 77583 (Dean v. Worley) pertaining to Case No. A92A1518. Conversely, the transcript in Case No. 77583 reflects the trial court held cross-appellant was “entitled to the same defenses” as Canal.

Error must be affirmatively demonstrated by the record. Cross-appellant has failed to establish that the particular ruling enumerated herein as error was in fact made by the trial court. It is not an appellate court’s function to cull the record on behalf of a party in search of error. Manderson & Assoc. v. Gore, 193 Ga. App. 723, 733 (8) (389 SE2d 251); accord Benefield v. Benefield, 224 Ga. 208, 209 (5) (160 SE2d 895).

4. Cross-appellant sought to argue the policy was “void on its face,” due to fraud or misrepresentations in completing the insurance application. The trial court ruled this argument could not be made, although cross-appellant would be allowed to argue that fraud or misrepresentation adversely affected the Worleys’ credibility.

Although the garage policy was issued to Nancy Worley d/b/a Mountain Motors, as named insured, the insurance application expressly disclosed both of the Worleys owned Mountain Motors and that Wayne Worley had five speeding violations. The record fails to establish that, under the attendant circumstances, any of the misrepresentations allegedly made on the application was material, that is, that the misrepresentations either would influence a prudent insurer in determining whether to accept the risk or to fix a different amount of premium in the event of such acceptance. See Sentry Indem. Co. v. Brady, 153 Ga. App. 168, 170 (264 SE2d 702). The trial judge did not err as enumerated.

Additionally, the record shows cross-appellant argued, without objection, that a person “cannot insure something [a person] doesn’t own. ... [A person] can’t insure your car. [A person] can’t insure your business. [A person] doesn’t own it. . . . The application said they both owned it. Well, if they both owned it, why aren’t they both suing us. . . . Mr. Worley says ... on paper, it belonged to Mrs. Worley. ... On paper don’t count. What counts is who owned the business.” Cross-appellant further argued: “I simply have to depend on . . . y’all going in the jury room and just saying . . . that just doesn’t make any sense. Folks don’t own stuff they don’t know about.. And if they do, they don’t deny it under oath.” Thus, cross-appellant in essence informed the jury they should not enforce the insurance policy, because contrary to the statements on the application, Nancy Worley did not own the car or the business and you cannot insure what you do not own. Assuming error had occurred as enumerated, it would be harmless as cross-appellant in effect was allowed to make an argument similar to that which the trial court earlier prohibited. OCGA § 9-11-61; see also Young v. State, 191 Ga. App. 651, 653 (2) (382 SE2d 642).

5. The trial court awarded cross-appellee certain damages resulting from cross-appellant’s negligent cancellation of the insurance policy; among these damages was $6,860 billed cross-appellee for legal representation in defending the suit brought by appellant Turpin. At issue is whether additional attorney fees should have been deducted from the $6,860 award, because such fees had been earned by crossappellee’s attorney in the contingency case brought by cross-appellee' and her daughter against Milford.

It was not contested that a reasonable hourly charge by crossappellee’s attorney was $100. But, at trial, cross-appellant contested the validity of 25.3 hours of the 88.6 hours billed — in essence requesting a deduction of $2,530 from the asserted cost of attorney fees. Although the trial court partially granted cross-appellant’s request and allowed a $2,000 fee deduction, it declined to permit a deduction of attorney fees “for anything in connection with the child’s case, because [it] considered] that an entirely different case.”

The posture of the record is not adequate to support a finding, as a matter of law, that a double recovery of damages in the form of overlapping attorney fees has been awarded. The question whether certain items in the litigation and settlement of the third-party complaint filed against third-party defendant Milford, and for which cross-appellee’s attorney received one-third of the settlement as attorney fees, sufficiently related to the litigation in the case at bar so as to warrant deduction in order to preclude a double recovery of damages, in this instance, primarily involves a factual adjudication to be made by the trial court. We will not reverse such factual determinations unless clearly erroneous. Cannon v. Coweta County, 260 Ga. 56, 58 (2) (389 SE2d 329). Cross-appellant has failed to show affirmatively by the record that the trial court’s ruling was clearly erroneous.

Further, the record reflects that in reaching its holding the trial court considered a document, purporting to reflect the hours expended as attorney fees in the case at bar, entitled “Amendment to Statement of Hours.” Although the original “Statement of Hours Expended” appears in the record, the parties do not cite the place in the record where the amended statement of hours can be found (Manderson, supra); and our examination of available records and transcripts does not reveal that the amended document has been forwarded for appellate review. The amended document was necessary for a meaningful review of the enumeration of error, and we will not further cull the record for this document or speculate as to its contents. As this necessary document is not available for appellate consideration, the ruling of the trial court also must be affirmed on this basis. Compare Nodvin v. West, 197 Ga. App. 92, 97 (3c) (397 SE2d 581).

6. Cross-appellant asserts the trial court erred in failing to grant his motion for directed verdict.

A motion for directed verdict must state the specific grounds on which it is based, and a ground not asserted cannot thereafter be raised on appeal. Hercules Automotive v. Hayes, 194 Ga. App. 135, 136 (2) (389 SE2d 571). Cross-appellant asserted, inter alia, in support of his motion that the policy had been “fraudulently entered” by the Worleys; that the insurance policy was void ab initio due to material misrepresentations in the insurance application; and that Nancy Worley was not a proper party at interest to claim under the policy. The issue that the vehicle Nancy Worley was driving at the time of collision was not an insured vehicle or otherwise covered by the policy was not adequately asserted at trial, either in support of the original motion or the renewed motion for directed verdict. Accordingly, we will not consider this issue in the disposition of this enumeration of error. Hercules, supra.

Further, cross-appellant did not specify in either of his motions for directed verdict what fraudulent material representations were made in the insurance application or on what specific basis Nancy Worley was not a proper person to claim under the insurance policy. However, it can be inferred that, in each instance, the basis being asserted was that she was not the owner of Mountain Motors. The posture of the record would not demand a verdict in favor of cross-appellant as to any of these grounds. Moreover, Nancy Worley, testified, inter alia, that she was the owner of the trade name, Mountain Motors. “A trade name primarily identifies the owner or operator of a business and may also be used to identify the goods handled by such owner.” (Emphasis supplied.) Gordy v. Dunwody, 209 Ga. 627, 632 (74 SE2d 886). Wayne Worley testified he had placed the business in his wife Nancy’s name. Further, the Worleys testified they did not receive payment of unearned premiums after the policy was cancelled. If the premiums had been retained by the insurer or by cross-appellant, the defense of fraud would not be available. An insurer cannot rely on the defense that an insured’s fraud or misrepresentation resulted in a void policy when it retains premiums subsequent to cancellation of the policy. State Farm Fire &c. Co. v. Jenkins, 167 Ga. App. 4, 6 (1) (305 SE2d 801). As cross-appellant was attempting to assert the defense of fraud or misrepresentation, by virtue of standing in the shoes of the insurer, he cannot lay claim to that defense if the insurer was not entitled to assert it or was estopped from raising it. The evidence did not demand a verdict in favor of cross-appellant as to this issue.

“When determining whether a trial court erred by denying a motion for a directed verdict, this court reviews and resolves the evidence and any doubts or ambiguities in favor of the verdict. A directed verdict is not authorized unless there is no conflict in the evidence on any material issue and the evidence introduced, with all reasonable deductions demands a certain verdict.” Canal Ins. Co. v. Wilkes Supply Co., 203 Ga. App. 35, 36 (2) (416 SE2d 105). A trial court’s ruling on a motion for directed verdict will not be disturbed if supported by any evidence (Stolle Corp. v. McMahon, 195 Ga. App. 270, 273 (3) (393 SE2d 52)), either direct or circumstantial (Read v. Benedict, 200 Ga. App. 4, 7 (2) (406 SE2d 488)). Applying this precedent in view of all the grounds asserted at trial supporting the motion, we find the trial court did not err in denying the motion for directed verdict. OCGA § 9-11-50 (a).

7. Cross-appellant asserts the trial court erred in denying his two motions for summary judgment. However, the record reveals that following denial of these motions the case was brought to trial, the jury returned a verdict that cross-appellant Dean was the agent of crossappellee Worley, d/b/a Mountain Motors, and that the policy issued by Canal to said cross-appellee was cancelled as a result of the negligence of cross-appellant. The verdict was made the judgment of the court. Thereafter, the parties waived jury trial on the issue of damages and the trial court rendered judgment against cross-appellant Dean in the total amount of $12,185.77 plus other court costs of $129.

Decided November 5, 1992 —

Reconsideration denied November 18, 1992

Robert F. Oliver, for appellant (case no. A92A1517).

Harman, Owen, Saunders & Sweeney, Michael W. McElroy, Jill D. Levy, for appellant (case no. A92A1518).

David C. Jones, Jr., for appellees.

“ ‘(W)here a motion for summary judgment is overruled and the case is tried, the appellate courts will review the sufficiency of the evidence to support the verdict as well as enumerations of alleged trial errors, but will not also review the denial of the motion for summary judgment.’ ” Hamrick v. Greenway, 257 Ga. 287, 288 (2) (357 SE2d 580); Melton v. Bow, 145 Ga. App. 272, 275 (5) (243 SE2d 590); compare Canal, supra at 35 (1). Having found no merit in cross-appellant’s other enumerations of error, noting incidentally cross-appellant has not enumerated and established the existence of any error in the charge to the jury, and finding some evidence of record to support the verdict and judgment (Locke v. Vonalt, 189 Ga. App. 783, 785 (1) (377 SE2d 696)), we will not review the denial of cross-appellant’s two motions for summary judgment.

8. Cross-appellee’s motion for imposition of frivolous appeal penalties against cross-appellant is denied.

Judgments affirmed.

Beasley and Andrews, JJ., concur.


source: Caselaw Access Project

author: Pope, Judge.

license: Public Domain

text:
    A92A1637, A92A1640.
    AUGUSTINE et al. v. FRAME; and vice versa.
    (425 SE2d 296)
   Pope, Judge.

On September 24, 1987, Chef Richard P. Augustine received physical therapy for his fractured arm from Marty Frame, a licensed physical therapist. After performing the exercise portion of Augustine’s therapy, Frame left for lunch and instructed a physical therapy aide to administer electrical stimulation treatment to Augustine’s arm. Frame testified during her deposition that she asked another licensed physical therapist, whom she knew would remain in the office during Frame’s lunch break, to cover for her. While the aide was in the process of setting up Augustine to the machine used to administer the electrical stimulation treatment, Augustine allegedly received an electrical shock of such force that the metal pins placed in his elbow were bent and broken, requiring Augustine to undergo a second surgery and additional therapy to correct the problem.

Augustine and his wife filed a complaint alleging medical malpractice against Frame and other parties. Frame moved for summary judgment and the trial court granted her motion. In Case No. A92A1637, the plaintiffs appeal the grant of summary judgment in favor of Frame. In Case No. A92A1640, Frame cross-appeals against plaintiffs claiming the trial court erred in limiting its grant of Frame’s motion for summary judgment to its finding that Augustine’s expert’s affidavit was defective.

Case No. A92A1637

1. We hold the trial court correctly found that plaintiffs’ expert’s affidavit was insufficient in this case. In support of her motion for summary judgment, Frame submitted her own affidavit in which she stated her opinion that she had fully met and exceeded the standards of diligence and care which physical therapists of ordinary skill and capacity commonly possess and exercise in the State of Georgia and in the profession in general in her care of Augustine. She further averred that her opinion was based upon her review of the facts of this case and her treatment of Augustine.

In opposition to Frame’s motion for summary judgment, plaintiffs filed the affidavit of their expert. The affidavit of plaintiffs’ expert states in pertinent part: “All of the information of this Affidavit is based upon my personal knowledge and examination of the documents, medical records and pleadings pertaining to the refracture of Plaintiff Richard P. Augustine’s right arm on or about September 24, 1987.” OCGA § 9-11-56 (e) requires that “[s]worn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.” Nothing was attached to the affidavit. However, “[a]n affidavit need not attach material upon which it is based if that material is part of the record in the case and is before the trial court, provided that the affidavit clearly identifies the record matter upon which it is based.” Jones v. Rodzewicz, 165 Ga. App. 635, 637 (302 SE2d 402) (1983). The trial court correctly concluded that the plaintiffs’ expert’s affidavit was deficient because the documents the expert relied upon to form his opinion were neither attached to the affidavit nor were they specifically identified in the affidavit. Landers v. Ga. Baptist &c., 175 Ga. App. 500-501 (1) (333 SE2d 884) (1985). See also Watson v. Ga. State &c., 201 Ga. App. 761 (1) (412 SE2d 286) (1991); cf. Hall u. Okehi, 194 Ga. App. 721 (391 SE2d 787) (1990) and Hughey v. Emory Univ., 168 Ga. App. 239 (308 SE2d 558) (1983) (in which the affidavits in question stated specifically which documents in the records the experts relied upon in forming their opinions); Jones, 165 Ga. App. 637 (in which the affidavit in question stated that it relied in part on the other party’s affidavit). In an action for medical malpractice the affidavit of the defendant stating that her care met the appropriate standard of care entitles the defendant to summary judgment if that opinion is not countered by the opinion of another expert. Hall, 194 Ga. App. at 723 (2). Because plaintiffs’ expert’s affidavit was insufficient for the reasons set forth above, the trial court correctly granted Frame’s motion for summary judgment.

Decided October 9, 1992 —

Reconsideration denied November 18, 1992

Beltran & Coffey, Frank J. Beltran, Simone R. Siex, for appellants.

Tittsworth & Grabbe, John C. Grabbe IV, for appellee.

Case No. A92A1640

2. Our holding in Division 1 makes it unnecessary to address Frame’s enumeration of error in this cross-appeal.

Judgments affirmed.

Carley, P. J., and Johnson, J., concur.

       It is undisputed that plaintiffs’ expert did not personally examine Augustine. Cf. Hayes v. Murray, 252 Ga. 529 (314 SE2d 885) (1984).


author: Andrews, Judge.

text:
    A92A0977.
    CURRY v. THE STATE.
    (425 SE2d 389)
   Andrews, Judge.

Curry was charged with operating a vehicle as an habitual violator, the case was tried to a jury, he was convicted and appeals. Viewing the evidence in the light most favorable to the verdict, the evidence was that Curry operated a vehicle on May 25, 1991, after having been notified of his status as an habitual violator on October 27, 1990. Curry testified at trial and denied that he was driving the vehicle on the alleged date, claiming that his nephew was driving.

In his sole enumeration of error, Curry claims that the trial court erred in allowing into evidence a letter delivered to him on October 25, 1990, from the Georgia Department of Public Safety which declared him to be an habitual violator based on the three offenses listed in the letter. The three other offenses referenced in the letter were a November 27, 1989 conviction for driving under the influence on October 29,1989; an April 24,1989 conviction for leaving the scene of an accident on April 1, 1989; and a July 9, 1990 conviction for driving with a suspended or revoked license on June 30, 1990. Curry claims that the reference to the other offenses should have been redacted from the letter prior to its introduction into evidence and that the failure to do so improperly placed his character into issue.

Citing Jarrard v. State, 195 Ga. App. 704 (3) (394 SE2d 555) (1990), Curry argues that the trial court’s failure to delete reference to the other charges from the record requires reversal. In Jarrará, supra, defendant was convicted for operating a motor vehicle after being declared an habitual violator. Jarrard appealed, claiming that the trial court erred by allowing into evidence his entire driving history, two prior habitual violator convictions, and a conviction for public indecency. In Jarrará, supra, this court held that the introduction of this evidence constituted reversible error, reasoning that proof of the underlying habitual violator status as required under OCGA § 40-5-58 (a) was sufficient and that allowing the additional evidence constituted harmful error. Jarrará held that the introduction of convictions which were extraneous to the conviction for habitual violator mandated reversal. See generally Smith v. State, 248 Ga. 828, 830 (3) (286 SE2d 709) (1982); Lancaster v. State, 189 Ga. App. 149 (375 SE2d 281) (1988).

Although, as in Jarrará, we agree that redaction of the information is the better practice, we do not believe that the court’s failure to do so in the instant case constituted harmful error. Compare Lancaster, supra. The jury was properly instructed regarding the definition of an habitual violator offense, which definition includes three or more previous convictions. Further, the contested issue between the parties in this case was whether Curry was driving on the particular date; there was no dispute as to his status as an habitual offender. “Under the circumstances, ‘(w)e fail to see how defendant could have been prejudiced by the admission of [this information]. The relevant evidence of him being an habitual violator . . . was undisputed and conclusive.’ ” Harper v. State, 175 Ga. App. 703 (334 SE2d 30) (1985).

“The contention that ‘listing . . . prior traffic convictions in an habitual offender case improperly places the recipient’s character into issue has . . . been considered and rejected by this court... as being nothing more than harmless error.’ [Cit.] Applying the high probability test for harmless error, [cit.], to the entire circumstances before us, we find that assuming error did occur, it was harmless. There exists a ‘high probability’ that this alleged error did not contribute to the jury’s verdict of guilty as to [the count on] which appellant was convicted.” Lance v. State, 191 Ga. App. 701, 704 (4) (382 SE2d 726) (1989).

Decided November 18, 1992.

L. Clark Landrum, for appellant.

David E. Perry, District Attorney, Melinda I. Ryals, Assistant District Attorney, for appellee.

Judgment affirmed.

Birdsong, P. J., and Beasley, J., concur.


text:
    A92A1205.
    MOSLEY v. THE STATE.
    (425 SE2d 392)
    Decided November 18, 1992.

      W. Dennis Mullis, for appellant.

      James L. Wiggins, District Attorney, Timothy G. Vaughn, Assistant District Attorney, for appellee.
   Andrews, Judge.

Claxton Mosley and a co-defendant were indicted in two counts for manufacturing marijuana, and for felony possession of more than one ounce of marijuana. Mosley was convicted by a jury on both counts. His sole enumeration of error on appeal is that the trial court failed to instruct the jury that possession of more than one ounce of marijuana was an essential element of the charged possession offense.

The trial court instructed the jury that Mosley was “charged in two counts; one is growing marijuana, and the other is possession of more than one ounce of marijuana.” Thereafter, the court charged that in reaching a verdict the jury must determine “[a]re they guilty or not of . . . possessing more than one ounce of marijuana?” The court followed these instructions with a charge that the State is required to prove each essential element of the crime charged beyond a reasonable doubt. The charge as a whole was sufficient to inform the jury that possession of more than one ounce of marijuana was an essential element of the offense charged in the indictment. Whitehead v. State, 177 Ga. App. 259-260 (339 SE2d 365) (1985); Walker v. State, 193 Ga. App. 100, 101 (386 SE2d 925) (1989).

Judgment affirmed.

Birdsong, P. J., and Beasley, J., concur.


author: Sognier, Chief Judge.

text:
    A92A1547.
    ROGERS v. SHARPE et al.
    (425 SE2d 391)
   Sognier, Chief Judge.

Jimmy Rogers filed this pro se action against various state prison officials asserting a claim for personal injury arising from an allegedly hazardous condition at a prison that the defendants negligently or wantonly failed to correct. The trial court granted the defendants’ motion to dismiss on the ground of official immunity, and Rogers appeals.

1. The trial court held that the negligent acts alleged in the complaint were discretionary activities and thus appellees were entitled to the defense of official immunity. See Hennessy v. Webb, 245 Ga. 329 (264 SE2d 878) (1980). Appellant contends the question whether the acts were discretionary or ministerial is irrelevant because appellees waived their immunity to the extent of the liability coverage provided to them by the Department of Corrections. See Logue v. Wright, 260 Ga. 206 (1) (392 SE2d 235) (1990). We agree and reverse.

Prior to a 1991 amendment, the Georgia Constitution provided that sovereign immunity of the State and its agencies and employees was waived to the extent of available liability insurance coverage. Ga. Const., Art. I, Sec. II, Par. IX (1983); see Martin v. Ga. Dept. of Public Safety, 257 Ga. 300, 301-303 (2) (357 SE2d 569) (1987). In response to appellant’s requests for admission, appellees admitted that on the date of appellant’s injury they “were afforded insurance coverage as employees of the [Department of Corrections] under DOAS FY91 State Employee Liability Policy.” Contrary to appellees’ contentions, the former insurance waiver provision of the Constitution, not the 1991 amendment, applies because appellant’s claim arose on August 23, 1990, prior to the January 1, 1991 effective date of the 1991 amendment. Curtis v. Bd. of Regents, 262 Ga. 226 (416 SE2d 510) (1992). Accordingly, appellees’ immunity was waived to the extent their insurance covers appellant’s claim, Martin, supra, and this waiver was not withdrawn by the passage of the 1991 constitutional amendment. Curtis, supra at 228.

2. Appellant also contends the trial court erred in an earlier order by denying his motion for sanctions for appellees’ failure to respond to his request for production of documents or to produce the documents in response to his motion to compel. In an order entered on December 19, 1991, the trial court denied appellant’s motion to compel on the ground that appellees complied with the discovery before the hearing scheduled on the motion and denied his motion for sanctions on the basis that as a pro se litigant he had not incurred any fees or expenses.

The record reveals that appellant served a request for production of documents upon appellees on May 18, 1991, a motion to compel on June 24, and a motion for sanctions on October 31. Appellees did not respond to the document production request until December 13, five days prior to the scheduled hearing on appellant’s motions. OCGA § 9-11-37 (d) (1) authorizes the imposition of sanctions for the failure of a party to respond to a request for production of documents, and sanctions may be entered under this provision without the prior filing of a motion to compel. Bryant v. Nationwide Ins. Co., 183 Ga. App. 577, 578 (359 SE2d 441) (1987). As appellant correctly notes, “ ‘[o]nce a motion for sanctions has been filed, their imposition cannot be precluded by a belated response made by the opposite party. (Cit.)’ [Cit.]” Singleton v. Eastern Carriers, 192 Ga. App. 227, 228 (3) (384 SE2d 202) (1989). Since appellees totally failed either to respond to appellant’s discovery request for seven months or to seek a protective order before appellant moved for sanctions, he was entitled to consideration of his motion. See id. Further, given that OCGA § 9-11-37 (d) (1) provides the trial court with a number of alternatives for sanctions in addition to attorney fees and expenses (see OCGA § 9-11-37 (b) (2) (A) — (Q), we vacate the order denying appellant’s motion for sanctions and thus remand this action for consideration of appropriate sanctions.

Decided November 18, 1992.

Jimmy Rogers, pro se.

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

Judgment reversed in part; vacated and remanded in part.

McMurray, P. J., and Cooper, J., concur.


author: Carley, Presiding Judge.

text:
    A92A0853.
    ANDERSON v. THE STATE.
    (426 SE2d 6)
   Carley, Presiding Judge.

Appellant was tried before a jury and found guilty of robbery. He appeals from the judgment of conviction and sentence entered by the trial court on the jury’s guilty verdict and his enumerations of error relate only to the issue of the effectiveness of his trial counsel.

1. The victim’s daughter, who was an eyewitness to the crime, testified to the following: As she sat in the courtroom before the preliminary hearing, she had observed appellant who, at the time, had “more men with him.” She recognized appellant as the robber. Thereafter, an officer asked her if appellant was the robber and she confirmed that he was.

Appellant urges that his trial counsel was ineffective in failing to object to the introduction of this “impermissibly suggestive” identification testimony. However, the failure to object was not an instance of ineffective representation, since the testimony “was clearly not the product of any impermissibly suggestive procedure. [Cits.]” Wilson v. State, 181 Ga. App. 435 (1) (352 SE2d 618) (1987). See also Jones v. State, 171 Ga. App. 184 (1) (319 SE2d 18) (1984); Brown v. State, 171 Ga. App. 70, 71 (3) (318 SE2d 498) (1984); Prater v. State, 148 Ga. App. 831, 841 (7) (253 SE2d 223) (1979). Compare Bradley v. State, 148 Ga. App. 722, 723 (2) (252 SE2d 648) (1979). “The chance viewing of the appellant prior to trial as he sat with others was no more suggestive than seeing him in the hall as he and other defendants are being brought in for trial, or seeing him seated at the defense table as each witness comes in to testify.” McClesky v. State, 245 Ga. 108, 110 (2) (263 SE2d 146) (1980).

The officer did not direct the attention of the victim’s daughter from the other men to appellant. She had already identified appellant before the officer questioned her. In her response to the officer, she merely acknowledged her prior identification of appellant. If she had taken the initiative and informed the officer of her identification of appellant, there certainly would be no reason for exclusion of her testimony. Daniels v. State, 252 Ga. 30 (1) (310 SE2d 904) (1984); Prater v. State, supra. Likewise, there is no reason why her testimony should be excluded merely because the officer elicited an affirmation of her prior identification of appellant.

Moreover, even if the identification testimony of the victim’s daughter had been inadmissible, the failure of appellant’s trial counsel to have secured its exclusion would not warrant a reversal of his conviction. The victim herself testified and identified appellant as the robber. “With this evidence, we cannot conclude that there was any reasonable probability that the result in [appellant’s] trial would have been any different if the [identification testimony of the victim’s daughter] had been excluded.” Whitner v. State, 202 Ga. App. 608, 609 (415 SE2d 52) (1992).

2. In several instances, trial counsel failed to object to hearsay. In no instance, however, was the hearsay prejudicial and it was shown that trial counsel had intentionally waived objection in order not “to interrupt the flow [of the trial] so the jury thinks that you are trying to hide something.”

Whether it may be more prejudicial to object than to allow the introduction of evidence which goes merely to irrelevant issues is certainly a tactical and strategic decision. Appellant’s trial counsel made that decision and, that she did so, affords him no ground for a new trial. “If we continue to second guess trial counsel on strategy and tactics when counsel have faithfully and diligently performed their function, we would have a proliferation of appeals on the flimsiest of grounds. Tt is important for appellate judges to remember that “[a] defendant is entitled to a fair trial but not a perfect one, for there are no perfect trials.” (Cits.)’ [Cit.]” Stripling v. State, 155 Ga. App. 636, 637 (2) (271 SE2d 888) (1980). In a “perfect” trial, trial counsel would object even to non-prejudicial, irrelevant evidence. However, the failure of trial counsel to object to such evidence in the instant case did not deprive appellant of a “fair” trial.

Decided November 3, 1992 —

Reconsideration denied November 19, 1992.

Zion, Tarleton & Siskin, Jonathan J. Wade, for appellant.

Robert E. Wilson, District Attorney, Gregory A. Adams, J. George Guise, Assistant District Attorneys, for appellee.

3. Without objection, the victim testified to certain post-robbery events, including her receipt of “hang-up” telephone calls which she had tried to have traced and her initiation of a police investigation into a possible break-in of her residence wherein nothing had been found to be missing. Appellant urges that the inference of this testimony was to the effect that he was responsible for the telephone calls and the possible break-in and that his trial counsel was ineffective for failing to object. According to appellant’s trial counsel, however, she had not objected in order to urge that this testimony reflected that the victim was in a highly emotional state after the robbery and that this highly emotional state contributed to the victim’s misidentification of appellant as the perpetrator of the robbery. Thus, trial counsel did not consider the testimony to be prejudicial to appellant, but beneficial to appellant’s misidentification defense. According to trial counsel, the victim was so emotional that she was prepared to identify any suspect, even the innocent appellant, as the robber. This was, of course, a legitimate trial tactic and strategy and affords no basis for the reversal of appellant’s conviction. See generally Cribbs v. State, 204 Ga. App. 109 (1) (418 SE2d 405) (1992).

4. Appellant had no right to have voir dire and closing arguments fully recorded. Roper v. State, 251 Ga. 95, 98 (5) (303 SE2d 103) (1983); Aiken v. State, 226 Ga. 840, 841 (1) (178 SE2d 202) (1970). Accordingly, the fact that trial counsel did not request that voir dire and arguments be fully recorded did not deprive appellant of any right and would not serve to demonstrate that she was ineffective.

Judgment affirmed.

Pope and Johnson, JJ., concur.


text:
    A92A1137.
    A92A1138.
    RAMSDELL et al. v. STATE AUTO MUTUAL INSURANCE COMPANY. WALSH et al. v. STATE AUTO MUTUAL INSURANCE COMPANY.
    (425 SE2d 661)
   Pope, Judge.

Effective May 24, 1989,- State Auto Mutual Insurance Company (“State Auto”) issued a policy of automobile liability insurance coverage to Richard Ramsdell as the named insured for the policy period ending November 24, 1989. That policy was a continuation of a policy which began on May 24, 1985. The policy listed Richard Ramsdell and his wife Mary R.. Ramsdell as drivers under the policy and insured three automobiles, a 1984 Honda Accord, a 1986 Chrysler Fifth Avenue, and a 1985 Dodge 600.

On June 13, 1989, the Ramsdells’ son, Robert, was involved in a collision while driving the Honda, a covered vehicle under the Rams-dells’ policy. Because Robert was not listed as a driver under the policy and was at that time residing at his parents’ home, State Auto insisted that Robert be added to the policy. On September 6, 1989, Richard Ramsdell requested that his son Robert and a 1987 Pontiac Grand Am be added to his policy. After Robert was added as a driver under the policy, State Auto learned that he had received a ticket for driving under the influence of alcohol (“DUI”) and that he had pled nolo contendere to that charge. By letter dated September 29, 1989, State Auto issued a notice that the Ramsdells’ policy would be can-celled within 30 days due to Robert’s driving record. The evidence showed that this notice was sent to Hansford-Cloy Insurance Agency, the insurance agency that placed the Ramsdells’ coverage with State Auto. An insurance agent with Hansford-Cloy, Ms. Purvis, then contacted Richard Ramsdell and informed him that his family’s coverage would be cancelled.

Richard Ramsdell inquired about what he could do to retain coverage with State Auto. After the agent spoke with persons employed by State Auto in its underwriting department, she told Richard that he should write a letter stating that Robert was not a resident in his home and that title to the car driven by Robert would be transferred to him. On or before November 15, 1989, Richard Ramsdell telefaxed a letter to Ms. Purvis. The text of that letter follows:

“Effective 11/20/89, Robert Ramsdell will not be included on my auto insurance plan carried by your company. Robert will have clear title to the 1987 Grand Am #1G2NE510U7H782933 and since mid September is a student of North Georgia College and resides there full time. Please continue coverage on my 1986 Fifth Avenue (Chrysler) and my wife’s 1985 Dodge 600 convertible. Also, please change my address to 924 Model Court; Stone Mountain, Georgia 30088.”

After receiving this letter, Ms. Purvis sent a change request to State Auto which stated that effective November 20, 1989, both Robert Ramsdell and the 1987 Pontiac Grand Am should be removed from the Ramsdells’ policy.

These cases arise from a motor vehicle accident which occurred on November 21, 1989, one day after the policy changes became effective. On that day Robert Ramsdell, while driving the Grand Am, lost control of the vehicle and ran off the road. Robert’s only passenger, Bradley Walsh, was ejected from the automobile and killed. The vehicle was titled to Richard Ramsdell on the date of the accident.

State Auto filed a complaint for declaratory judgment seeking a determination as to whether it is obligated under the Ramsdells’ policy to provide coverage for that accident. The complaint originally named Richard and Robert Ramsdell as defendants. By consent order Hubert and Barbara Walsh, the parents of Bradley Walsh, were added as defendants. The Walshes and State Auto each filed motions for summary judgment. The trial court granted State Auto’s motion for summary judgment. In Case No. A92A1137, the Ramsdells appeal the trial court’s grant of summary judgment in State Auto’s favor. In Case No. A92A1138, the Walshes appeal the trial court’s grant of summary judgment to State Auto and the denial of their motion for summary judgment.

Case No. A92A1137

1. The Ramsdells argue that there remains a genuine issue of material fact concerning whether Richard Ramsdell intended to delete coverage for the 1987 Pontiac Grand Am effective November 20, 1989. Richard Ramsdell testified that his intent when he wrote the letter was to delete only coverage for his son and to retain coverage for the Grand Am until he transferred title to that vehicle to his son.

On motion for summary judgment the burden is on the movant to prove that there remains no genuine issue of material fact. The opposing party must be given the benefit of all reasonable doubts that can be drawn from the evidence. Turner v. Regal Ins. Co., 201 Ga. App. 720, 721 (411 SE2d 802) (1991). We hold that the only reasonable interpretation of the letter quoted above is that Richard Ramsdell requested that both Robert Ramsdell and the 1987 Pontiac Grand Am be removed from his policy effective November 20,1989. The trial court correctly found there remained no genuine issue of material fact concerning what policy changes Richard Ramsdell requested in the letter quoted above.

2. The Ramsdells also contend that there remains an issue of material fact concerning whether the cancellation of coverage for Robert Ramsdell was the act of Richard Ramsdell or State Auto. While Richard Ramsdell did not seek to modify his policy until he was threatened with cancellation by State Auto, that fact does not make his act of removing his son from the policy the act of State Auto. Richard Ramsdell had the option of obtaining automobile insurance through another company. He chose not to exercise that option and instead to eliminate the reason that State Auto refused to insure the risk of covering his family and automobiles. Consequently, summary judgment was properly granted to State Auto as to this issue.

3. Contrary to the Ramsdells’ contention otherwise, the policy was not cancelled, it was only modified. See Progressive Preferred Ins. Co. v. Davis, 199 Ga. App. 598 (405 SE2d 529) (1991); Buffington v. State Auto Mut. Ins. Co., 192 Ga. App. 389 (384 SE2d 873) (1989). The modifications made were at the request of Richard Ramsdell. Therefore, whether State Auto complied with the policy provisions regarding cancellation or termination is irrelevant to this appeal.

4. The Ramsdells argue State Auto’s notice of cancellation to Richard Ramsdell violated OCGA § 33-24-45 because none of the reasons listed in subsection (c) of that statute existed at the time State Auto issued its notice of cancellation. OCGA § 33-24-45 (c) (5) states that cancellation is appropriate when “[t]he named insured failed to disclose in his written application or in response to inquiry by his broker or by the insurer or its agent information necessary for the acceptance or proper rating of the risk.” Thus, whenever the insurer learns that “information necessary for the acceptance or proper rating of the risk” was not made available to it before the policy is issued or modified, it has the statutory right to issue a notice of cancellation for the policy. Clearly, information that the driver’s license of a driver recently added to the policy had recently been suspended because of a DUI violation is. “information necessary for the acceptance or proper rating of the risk.” After learning about the suspension of Robert Ramsdell’s license, State Auto acted within its statutory authority by issuing a notice of cancellation of the Ramsdells’ policy.

5. Our holding in Division 1 makes it unnecessary to address the Ramsdells’ remaining enumerations of error.

Case No. A92A1138

6. The Walshes posit that even if both Robert Ramsdell and the Grand Am were removed from coverage effective November 20, 1989, because the Grand Am was still titled to Richard Ramsdell it would be a “covered auto” as that term is defined in the policy. Essentially, the Walshes suggest that the Grand Am was still covered on November 21, 1989, as an owned auto provided to a family member with the owner’s permission for a family purpose. Subsection J of the definítions section of the policy defines the term “covered auto” as meaning:

“1. Any vehicle shown in the Declarations.
2. Any of the following types of vehicles on the date you become the owner:
a. a private passenger auto; or
b. a pickup or van.
This provision (J.2) applies only if:
a. you acquire the vehicle during the policy period;
b. you ask us to insure it within 30 days after you become the owner; and
c. with respect to a pickup or van, no other insurance policy provides coverage for that vehicle.”

Richard Ramsdell did not purchase the Grand Am within 30 days from the date of the accident. As we discussed in Division 1, Richard Ramsdell requested that the Grand Am be removed from coverage under the policy effective November 20, 1989. It is axiomatic that one may not obtain coverage from an insurer for every automobile titled to him by procuring insurance on fewer than all vehicles. It also follows that one may not cancel insurance coverage on a particular vehicle and maintain that the insurer should still be liable if the vehicle is later used for a family purpose.

Furthermore, the definition of “covered auto” must be read in conjunction with Subsection B of the policy exclusions, which provides as follows:

“We do not provide Liability Coverage for the ownership, maintenance or use of:
1. Any motorized vehicle having fewer than four wheels.
2. Any vehicle, other than ‘your covered auto,’ which is:
a. owned by you; or
b. furnished or available for your regular use.
3. Any vehicle, other than ‘your covered auto,’ which is:
a. owned by any ‘family member;’ or
b. furnished or available for the regular use of any ‘family member.’
However, this exclusion (B.3.) does not apply to your maintenance or use of any vehicle which is:
a. owned by a ‘family member;’ or
b. furnished or available for the regular use of a ‘family member.’ ”

That provision clearly excludes from coverage vehicles owned by the insured that are not “covered autos” within the meaning of the policy. After November 20, 1989, the Grand Am was not a “covered auto” as that term is defined in the policy and it was specifically excluded from coverage by Subsection B of the Exclusions section.

Decided September 8, 1992

— Reconsiderations denied October 13, 1992 and November 19, 1992

L. David Wolfe & Associates, L. David Wolfe, for appellants (case no. A92A1137).

Finch, McCranie, Brown & Thrash, Richard W. Hendrix, for appellants (case no. A92A1138).

Freeman & Hawkins, Michael J. Goldman, Kevin W. Pendley, for appellee.

7. The Walshes argue that even if the Grand Am is not a “covered auto” as that term is defined in the policy, State Auto must provide liability coverage for this accident because the Grand Am was being used for a family purpose at the time of the accident. The Walshes do not cite and we are aware of no authority that supports this strained interpretation of the policy.

8. The Walshes suggest that summary judgment in State Auto’s favor is violative of public policy because it allows the named insured to circumvent Georgia’s compulsory automobile insurance coverage requirements. The Walshes confuse the obligations of the insurer with those of owners of automobiles. The Ramsdells ran afoul of Georgia’s compulsory insurance laws by failing to provide liability coverage for the 1987 Grand Am owned by Richard Ramsdell and operated by Robert Ramsdell on the date of the accident. State Auto decided that Robert Ramsdell presented a risk that it was unwilling to insure, which is not violative of public policy under the facts of this case. See Buffington, supra.

The trial court correctly granted State Auto’s motion for summary judgment.

Judgments affirmed.

Carley, P. J., and Johnson, J., concur.


text:
    A92A1174.
    A92A1175.
    ABREU v. THE STATE. GORDON v. THE STATE.
    (425 SE2d 331)
   Carley, Presiding Judge.

Appellants Faye Abreu and Edward Ray Gordon were tried jointly before a jury on indictments which charged them with the commission of various sexual crimes against Abreu’s daughter. Abreu was found guilty of enticing a child for indecent purposes and child molestation. Gordon was found guilty of three counts of enticing a child for indecent purposes and two counts of child molestation. After the trial court had entered judgments of conviction and sentences on the jury’s guilty verdicts, appellants filed motions for new trial. When the motions for new trial were denied, separate notices of appeal but identical enumerations of error were filed. Accordingly, the two cases are hereby consolidated for appellate disposition in this single opinion.

1. In their motions for new trial, appellants raised the issue of the effectiveness of their trial counsel, based upon his failure to have objected to certain of the trial court’s instructions to the jury. The denial of their motions for new trial on this ground is enumerated as error.

In its charge and recharge on the definitions of the crimes of “enticing a child” and “child molestation,” the trial court quoted the entirety of the language of OCGA §§ 16-6-5 (a) and 16-6-4 (a). Trial counsel’s failure to object does not demonstrate his ineffectiveness, because there was no reversible error. “ ‘It is not usually cause for new trial that an entire Code section is given . . . even though a part of the charge may be inapplicable under the facts in evidence.’ (Cits.) [Cit.]” Anderson v. State, 262 Ga. 26, 27 (1a) (413 SE2d 732) (1992). Neither OCGA § 16-6-5 (a) (Cimildoro v. State, 259 Ga. 788, 789 (1) (387 SE2d 335) (1990)) nor OCGA § 16-6-4 (a) (Day v. State, 193 Ga. App. 179, 180 (3) (387 SE2d 409) (1989)) sets forth alternative methods by which the crimes defined therein may be committed. Moreover, even assuming that those statutes did provide for alternative methods, “the trial court sent the indictment[s] out with the jury so they could read the specific charges themselves, [cit.], and thus we find no reversible error here.” Day v. State, supra at 180 (3).

Appellants rely upon Grimes v. State, 199 Ga. App. 152, 154 (2) (404 SE2d 324) (1991) as authority for the proposition that it was error for the trial court to have submitted to the jury an excerpt from its charge that had been reduced to writing. That reliance is misplaced, because, under controlling Supreme Court authority, the holding in that division of Grimes is no longer viable. The procedure of reducing the trial court’s charge to writing and submitting it to the jury “should [not] be prohibited by an adherence to the mechanistic regimes of the past.” Anderson v. State, supra at 28 (3b). Accordingly, even if trial counsel had objected to the employment of that procedure in the instant case, there would be no reversible error.

When the trial court gave its recharge, it did not include an unrequested recharge on “reasonable doubt.” Trial counsel did not object to the failure to include recharge on “reasonable doubt.” But, even if he had, there would be no reversible error. Schwerdtfeger v. State, 167 Ga. App. 19, 21 (2) (305 SE2d 834) (1983). See also Haggins v. State, 181 Ga. App. 530 (2) (353 SE2d 12) (1987); Chancellor v. State, 165 Ga. App. 365, 374 (29) (301 SE2d 294) (1983). Compare Grimes v. State, supra at 153-154 (2).

“The fact that defense counsel made no . . . objections to the charge obviously establishes no lack of effectiveness on his part absent some deficiency or impropriety in the charge which was harmful to the appellant^]. ” Norris v. State, 176 Ga. App. 164, 167-168 (6) (335 SE2d 611) (1985). In the instant case, appellants have made “no showing that any of the instructions given were error. . . .” Brinson v. State, 191 Ga. App. 151, 154 (5) (381 SE2d 292) (1989). Moreover, trial counsel was sufficiently effective to obtain Abreu’s acquittal on one count of enticing a child for indecent purposes and two counts of child molestation and Gordon’s acquittal on two counts of child molestation. Bradley v. State, 193 Ga. App. 515, 517 (6) (388 SE2d 331) (1989). It follows that the trial court did not err in failing to grant appellants’ motions for new trial on the ground that their trial counsel was ineffective.

2. Appellants urge that certain counts of the indictments are void and that the trial court erred in failing so to hold.

“If the [indictments were] void for any reason, the question should have been raised by demurrer before pleading to the merits, or by motion in arrest of judgment after conviction. [Cit.]” (Emphasis supplied.) Rucker v. State, 114 Ga. 13, 14 (1) (39 SE 902) (1901). No demurrers or motions in arrest of judgment were filed by appellants. The issue of the purported voidness of certain counts of the indictments was first raised in appellants’ motions for new trial. Under controlling Supreme Court authority, appellants’ motions for new trial cannot be considered to be a viable procedural substitute for motions in arrest of judgment. Boswell v. State, 114 Ga. 40, 41 (2) (39 SE 897) (1901).

“[W]e may consider only issues properly raised in lower courts. [Cit.] In this instance, the issue which these [appellants] argue was not properly raised in the trial court. A motion for new trial is not a proper vehicle for raising questions as to the legal sufficiency of an [indictment]. [Cits.]” Carr v. State, 184 Ga. App. 889-890 (363 SE2d 319) (1987). Accordingly, appellants’ enumerations of error predicated upon the purported voidness of certain counts of the indictments present nothing for review.

Mataluni v. State, 185 Ga. App. 551 (1) (364 SE2d 911) (1988); Thomason v. State, 196 Ga. App. 447 (2) (396 SE2d 79) (1990); and Purser v. State, 201 Ga. App. 839 (412 SE2d 869) (1991) “do not compel a different result. The issue of [the proper procedural vehicle for contesting the purported voidness of an indictment so as to preserve the issue for appellate review] was not considered in [any] of those cases and [none] is, therefore, authority which is contrary to our [holding in] the instant appeal[s].” Cook v. Ga. Power Co., 204 Ga. App. 119, 120 (418 SE2d 451) (1992). “ ‘ “Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to be considered as having been so decided as to constitute precedents.” ’ [Cits.]” Gordy Tire Co. v. Dayton Rubber Co., 216 Ga. 83, 89 (1) (114 SE2d 529) (1960). The issue was considered by the Supreme Court in Rucker v. State, supra, and Boswell v. State, supra, and the holdings therein are controlling in the instant cases.

Decided October 30, 1992 —

Reconsideration denied November 19, 1992

Peters, Townsend, Shapiro & Wilson, Michael B. Shapiro, Douglas N. Peters, for appellants.

David E. Perry, District Attorney, Melinda I. Ryals, Ronnie A. Wheeler, Assistant District Attorneys, for appellee.

3. As to their convictions for enticing a child for indecent purposes, appellants urge the insufficiency of the evidence of venue. The evidence showed that the child was “enticed” in the county wherein appellants were prosecuted, but the evidence also showed that the alleged act of indecency or child molestation occurred in another county. Thus, it is appellants’ contention that there is a fatal lack of evidence that an act of indecency or child molestation was committed, attempted or intended in the county of prosecution.

“The crime of enticing a child for indecent purposes in violation of OCGA § 16-6-5 requires the showing of a joint operation of the act of enticing a child and the intention to commit acts of indecency or child molestation. ... [A] conviction under OCGA § 16-6-5 need not be based upon evidence that an act of indecency or child molestation was accomplished or even attempted. . . .” Lasseter v. State, 197 Ga. App. 498, 499 (1) (399 SE2d 85) (1990). Accordingly, the crime is complete when the child is enticed with the requisite intent, regardless of the ultimate site whereat the enticer contemplates that the act of indecency or child molestation is to be perpetrated. Thus, it is immaterial that the evidence showed that appellants actually took the child into a county other than that wherein they were prosecuted. What would be material is whether the evidence showed that, while in the county wherein they were prosecuted, appellants enticed the child with the requisite intent to commit the alleged act of indecency or child molestation at any location. There was no asserted deficiency in the evidence in that regard.

Judgments affirmed.

Pope and Johnson, JJ., concur.


author: Birdsong, Presiding Judge.

text:
    A92A1230.
    A92A1231.
    DIXIE RECYCLING SYSTEMS, INC. v. BARNES et al. DIRECTOR OF THE ENVIRONMENTAL PROTECTION DIVISION OF THE DEPARTMENT OF NATURAL RESOURCES v. BARNES et al.
    (425 SE2d 297)
   Birdsong, Presiding Judge.

We granted discretionary appeal to determine whether the trial court was without jurisdiction under OCGA § 12-2-1 (c) to hear an administrative appeal regarding a solid waste handling permit granted by the Environmental Protection Division of the Department of Natural Resources (appellant in Case No. A92A1231) to Dixie Recycling, Inc. (appellant in Case No. A92A1230). The trial court found it had jurisdiction of the appeal for judicial review and upon an extensive review of the evidence, rendered comprehensive findings of fact and conclusions of law. The trial court’s ruling is partially in favor of appellees, who are 31 citizens of Hancock County. Held:

OCGA § 12-2-1 (c) provides: “[W]hen a petition for judicial review of a final decision of the Board of Natural Resources [is filed], if the superior court. . . does not hear the case within ninety days from the date the petition for review is filed . . . the final decision of the board shall be considered affirmed by operation of law unless a hearing originally scheduled to be heard within the 90 days has been continued to a date certain by order of the court. In the event a hearing is held later . . . because a hearing originally scheduled to be heard within the 90 days has been continued to a date certain by order of the court, the final decision of the board shall be considered affirmed by operation of law if no order of the court . . . has been entered within 30 days after the date of the continued hearing.”

Unless this administrative statute is complied with, the superior court has no jurisdiction to review the administrative decision. See Synthetic Indus, v. Camp, 196 Ga. App. 637 (396 SE2d 518). The record shows that after filing the petition for judicial review on July 5, 1991, three times within the ninety days, appellees scheduled the matter to be heard. On each scheduled date, appellees’ attorney appeared at the courthouse at the appointed time although the hearings had been continued.

A hearing was not held within the 90 days because appellants kept postponing it. Within the 90 days, the judge rescheduled the hearing for October 18, 1991, “a date certain.” OCGA § 12-2-1 (c). The hearing was held that day.

On November 16, 1991, the court’s ruling was filed. It found: “During this October 18, 1991 hearing neither [the EPD’s attorney] nor the attorneys for [Dixie] said or did anything which indicated that it was their position that this court was, pursuant to OCGA § 12-2-1 (c), without jurisdiction to hear this action, or that the ruling of the ALJ has been affirmed by operation of law.”

Decided October 19, 1992 —

Reconsideration denied November 19, 1992

Groover & Childs, Denmark Groover, Jr., Lovett & Hicks, L. Robert Lovett, for appellant (case no. A92A1230).

Michael J. Bowers, Attorney General, Robert S. Bomar, Senior Assistant Attorney General, Brenda H. Cole, Assistant Attorney General, for appellant (case no. A92A1231).

In Felton Pearson Co. v. Nelson, 260 Ga. 513, 514 (397 SE2d 431), the Supreme Court said the workers’ compensation statute requiring judicial review to take place within a certain time “is designed to expedite the disposition of [administrative] claims that have been appealed to the courts of this state. To hold, however, that the trial court did not have the discretion to continue the hearing . . . exalts the need for speedy disposition over fair treatment of the parties and the policy of reaching the merits of a controversy.”

Appellants contend that no review hearing was requested and no continuance was granted; but the trial court has found that hearings were requested and the trial judge stated in his order that he rescheduled, that is, “continued” the hearing. The hearing was properly continued outside the 90-day period to a “date certain,” and the court’s order of judicial review was issued within 30 days of that hearing.

Since judicial review was timely provided and a decision was timely rendered, it ill behooves appellants to suggest appellees had not properly asked for judicial review but had asked for something else. To say the trial court was without jurisdiction to review the case would penalize appellees for appellants’ last-minute requests for rescheduling; this would not be “fair treatment of the parties.” Id. at 515.

Moreover, appellants’ conduct in proceeding with the hearing on October 18, 1991, without raising an issue as to the trial court’s jurisdiction, operated as an agreement that the hearing was timely and properly held, and constituted a waiver of any possible claim to the contrary.

As to grounds urged for reversal, appellants have not borne their burden to show harmful error on appeal and we do not presume the trial court committed error where that fact does not affirmatively appear in the record. See Green v. Sun Trust Banks, 197 Ga. App. 804, 807 (399 SE2d 712). The trial judge’s order is supported by evidence and is not clearly erroneous; we are therefore bound to affirm it under OCGA § 50-13-19 (h). See Hicks v. Harden, 133 Ga. App. 789 (213 SE2d 49).

Judgments affirmed.

Beasley and Andrews, JJ., concur.

H. Christopher Coates, for appellees.


text:
    A92A1281.
    REID v. THE STATE.
    (425 SE2d 315)
   Birdsong, Presiding Judge.

Appellant Douglas Allen Reid was indicted and tried for murder. He was found guilty of voluntary manslaughter and sentenced to 20 years in the penitentiary. His motion for new trial was denied and he appeals from his conviction and sentence. Held:

1. Reid enumerates as error the denial of his motion for directed verdict made at the close of the State’s evidence, and the denial of his motion for new trial on the general grounds. His argument in support of his contention that the prosecution failed to prove its case is based upon the following statement of facts quoted in its entirety from his brief: “Appellant shot his girlfriend’s husband in the parking lot of the Alpharetta Pizza Hut.” He claims there was no evidence that the victim died as a result of the gunshot wound; and that the evidence he fired the gun was purely circumstantial and failed to exclude every other reasonable hypothesis save that of his guilt. We do not agree.

The medical examiner testified that he had performed an autopsy on the victim, who had sustained a gunshot wound to the right side that went through the space between the fourth and fifth ribs, the right lung, the aortic blood vessel from the heart, the left lung and ended in the muscles in his back. The victim’s wife testified that she tried to stop her husband from approaching the car in which Reid was the sole occupant to start a fight, but he threw her to the ground. Then she heard a gunshot and saw Reid’s car drive away , immediately. The officer who arrived at the scene within minutes stated he found the victim lying on the ground looking “very pale,” with “shallow breathing” and appearing to be “beyond any help.” The State’s forensic expert testified that the portion of the bullet retrieved from the victim’s body was fired from a weapon Reid subsequently handed over to the police. Reid surrendered himself to the police. At trial he took the stand and admitted making prior threats to shoot the victim, and he admitted the final confrontation occurred when he knew the victim had no weapon and he nevertheless cocked and loaded his own gun.

“A directed verdict of acquittal in a criminal case is authorized only ‘(w)here there is no conflict in the evidence and the evidence introduced with all reasonable deductions and inferences therefrom shall demand a verdict of acquittal or “not guilty.” ’ (Emphasis supplied.) OCGA § 17-9-1 (a). [Cit.] When, as in this case, a conviction is upheld on appeal because the evidence is such that a rational trier of fact could find appellant’s guilt beyond a reasonable doubt, according to the standard in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560), it cannot possibly be said the evidence demanded a verdict of acquittal.” Miller v. State, 201 Ga. App. 108-109 (1) (410 SE2d 328). “On appeal a reviewing court can consider all the evidence (Bethay v. State, 235 Ga. 371, 375 (219 SE2d 743)) and must view the evidence in the light most favorable to the verdict. [Cit.]” Jones v. State, 201 Ga. App. 102, 103 (2) (410 SE2d 199). The trial court did not err in denying either motion.

Decided October 28, 1992 —

Reconsideration denied November 19, 1992

Steven W. Reighard, for appellant.

Lewis R. Slaton, District Attorney, Henry M. Newkirk, Nancy A. Grace, Assistant District Attorneys, for appellee.

2. Nor do we agree that the trial court erred in refusing to instruct the jury on the lesser included offense of involuntary manslaughter (OCGA § 16-5-3 (b)) as requested by appellant. He argues that the Supreme Court has announced a new rule that a written request to charge a lesser included offense must always be given if there is any evidence the defendant is guilty of the lesser included offense; and that applying the rule to the instant case, a conviction of the lesser included offense of involuntary manslaughter could have been supported by considering the lawful act to be self-defense and the unlawful manner to be the use of excessive force. His reliance on State v. Alvarado, 260 Ga. 563 (397 SE2d 550) is misplaced, however, as the rule was voiced there in regard to a written request to charge the lesser included offense of possession of a controlled substance. “The Georgia Supreme Court in Pullin v. State, 257 Ga. 815 (4) (364 SE2d 848) (1988), expressly rejected defendant’s argument that the use of excessive force in self-defense constitutes the commission of lawful act/unlawful manner involuntary manslaughter. ‘(I)f (the defendant) is justified in killing under OCGA § 16-3-21 [he] is guilty of no crime at all. If [he] is not so justified, the homicide does not fall within the “lawful act” predicate of OCGA § 16-5-3 (b) . . . for the jury, in rejecting [his] claim of justification, has of necessity determined thereby that the act is not lawful.’ [Cits.]” Goodwin v. State, 204 Ga. App. 209, 210 (1) (419 SE2d 39). We find no grounds for reversal.

Judgment affirmed.

Beasley and Andrews, JJ., concur.


author: Johnson, Judge.

text:
    A92A1348.
    MORRIS v. RYAN’S FAMILY STEAK HOUSES, INC.
    (425 SE2d 362)
   Johnson, Judge.

Virginia Morris brought this negligence action against Ryan’s Family Steak Houses, Inc. seeking damages for injuries she sustained when she slipped and fell to the floor near the salad bar in its restaurant. The trial court granted Ryan’s motion for summary judgment. Morris appeals.

Morris contends that she slipped on food that was negligently allowed to remain on the floor immediately adjacent to the salad bar. Morris’ husband and daughter, who accompanied Morris to the restaurant on the day of the fall, both testified that they did not see any foreign substance on the floor prior to Morris’ fall. The restaurant contends that there was no food on the floor at the time of Morris’ fall.

In her sole enumeration of error, Morris asserts that the trial court erred in granting summary judgment in favor of Ryan’s. We disagree.

It is well settled that in order to establish liability on the part of a proprietor for a slip and fall attributable to a foreign substance on the floor, the plaintiff must show: 1) that the proprietor had actual or constructive knowledge of a foreign substance and, 2) that the complainant was without knowledge of the substance or, for some reason attributable to the proprietor, was prevented from discovering the foreign substance. Alterman Foods v. Ligon, 246 Ga. 620, 623 (272 SE2d 327) (1980).

There is no evidence in the record supporting Morris’ contention that Ryan’s had actual knowledge of any substance on the floor at or near the time of Morris’ fall. Therefore we must determine if the record supports the trial court’s apparent conclusion that Ryan’s lacked constructive knowledge that a foreign substance was on the floor where Morris fell. The record shows that it was Ryan’s practice to regularly and continuously inspect the floor in the restaurant for the safety of its customers. Ryan’s employees are assigned to a duty list for the specific task of inspecting for and removing foreign substances from the floor. We have previously held that where there is evidence showing that a reasonable inspection and/or cleaning procedure is in place and had been followed, normally no actionable constructive knowledge can be charged to the proprietor. See Mallory v. Piggly Wiggly Southern, 200 Ga. App. 428, 430 (408 SE2d 443) (1991); see also Shiver v. Singletary, 186 Ga. App. 746 (368 SE2d 523) (1988). Morris’ husband admitted in his deposition that during previous visits to the restaurant he had observed what appeared to be a regular practice of Ryan’s to clean the tiled area around the salad bar. Witnesses for both Morris and Ryan’s indicated that the floor in the restaurant was continuously checked for debris and such debris, when seen, was removed. Applying the standard set forth in Mallory, supra, we conclude that the plaintiff has failed to come forward with any evidence upon which Ryan’s could be charged with constructive knowledge of any alleged foreign substance on the floor at the place and time of Morris’ fall.

Decided November 9, 1992 —

Reconsideration denied November 19, 1992

Butler, Wooten, Overby & Cheeley, James E. Butler, Jr., Peter J. Daughtery, for appellant.

Sullivan, Hall, Booth & Smith, John E. Hall, Jr., David V. Johnson, for appellee.

Summary judgment is appropriate where the moving party shows he is entitled to judgment as a matter of law and there is no genuine issue as to any material fact. Minor v. E. F. Hutton & Co., 200 Ga. App. 645, 646 (409 SE2d 262) (1991). The trial court did not err in granting summary judgment to Ryan’s given the record in this case.

Judgment affirmed.

Carley, P. J., and Pope, J., concur.


author: Carley, Presiding Judge. Johnson, Judge,

text:
    A92A1613.
    MOTEL PROPERTIES, INC. v. MILLER.
    (425 SE2d 334)
   Carley, Presiding Judge.

While an invitee at appellant-defendant’s motel facility on Jekyll Island, appellee-plaintiff decided to take a night-time stroll on the beach. Although the beach itself is owned by the State of Georgia, a sidewalk extends from appellant’s motel building some 369 feet toward the beach. At 200 feet, the sidewalk crosses appellant’s property line and continues toward the beach for 169 feet across property owned by the state. Although the sidewalk does not extend to the water’s edge, a sand pathway to the beach begins at the end of the sidewalk. Across the sand pathway, some 27 feet from the end of the sidewalk, there is a line of granite boulders. As appellee walked down the sidewalk toward the beach, there was no sign warning him of the existence of the line of granite boulders and no illumination of the area where those boulders were located. Appellee stepped from the end of the sidewalk and continued along the sand pathway. In the darkness, he stumbled over the granite boulders and was injured. As the result of his injuries, appellee filed suit against appellant. After discovery, appellant moved for summary judgment on the ground that it had no liability for injuries which were not sustained by appellee on its property. The trial court denied appellant’s motion, but certified its order for immediate review. The instant case results from the grant of appellant’s application for an interlocutory appeal.

1. “Where the owner or occupier invites, induces or leads another to come on his land for a lawful purpose he must use due care to keep the premises and approaches safe for the invitee’s use. Under [OCGA § 51-3-1], premises and approaches are not the same, otherwise the language is redundant. Premises and the approaches to those premises are the two areas the owner must use due care to keep safe.” (Emphasis in original.) Todd v. F. W. Woolworth Co., 258 Ga. 194, 196 (1) (366 SE2d 674) (1988). “Of course, the premises must constitute the actual [improvement] and lot of land on which it rests, which is under the actual dominion and control of the owner or occupier. But approaches is a more complex and bothersome term and is more difficult of definition.” (Emphasis in original.) Elmore of Embry Hills v. Porcher, 124 Ga. App. 418, 419 (183 SE2d 923) (1971).

Construing the evidence most favorably for appellee, a genuine issue of material fact remains as to whether he was injured when, after leaving appellant’s “premises,” he stumbled over granite boulders on the “approaches” to appellant’s premises. The sidewalk led directly from appellant’s motel building across its property onto the state’s property and to the sand pathway and the beach on the other side of the line of granite boulders. A jury would be authorized to find that the entirety of the sidewalk and sand pathway, including that portion on the state’s property, was an “approach” between appellant’s motel premises and the beach. “[T]he term ‘approaches’ as used in [OCGA § 51-3-1], prefers to the sidewalk or other approach that is directly contiguous! adjacent to, and touching the premises under the control of the owher or occupier.” Elmore of Embry Hills v. Porcher, supra at 420.

2. “[A]n owner or occupier of land has a duty under OCGA § 51-3-1 with regard to the approach to his premises circumscribed by his right in the approach. ... If his right in the approach is an easement his duty is to use due care toward his invitees in the exercise of his rights under the easement. He has a more limited framework than the owner of a fee. His duty does riot require him to do things not permitted under the easement.” Todd v. F. W. Woolworth Co., supra at 196 (1).

The burden was on appellant, as the movant for summary judgment, to show that, in the exercise of its right in the approach between its motel facility and the beach, it used due care toward its invitees. Even assuming that appellant had no right to remove the granite boulders or to provide a means of access around or over them, a genuine issue of material fact would still remain as to whether appellant had the right to illuminate the granite boulders or to post a warning sign as to their existence. Indeed, the evidence does not negate the possibility that either a source of illumination or a warning sign placed on appellant’s own property would not have been sufficient to meet appellant’s duty of due care to its invitees who were using the sidewalk and sand pathway to travel between its motel building and the beach. “Whether it constituted negligence not to do these things was for the jury.” Todd v. F. W. Woolworth Co., supra at 197 (1).

“We have considered Spindel v. Gulf Oil Corp., 100 Ga. App. 323 (111 SE2d 160) (1959). It is consistent with our holding here because ... it [is not] indicated in the opinion of that case that there was any effective way under the circumstances for the defendant to give warning of the obstruction had it tried to do so.” Todd v. F. W. Woolworth Co., supra at 197 (5). In the instant case, it is not indicated that there was no effective way under the circumstances for appellant to give warning of the granite boulders, by placing lighting or a warning sign on either the state’s or its own property. Thus, because genuine issues of material fact remain for jury resolution, the trial court correctly denied appellant’s motion for summary judgment.

Judgment affirmed.

Pope, J., concurs and also concurs specially. Johnson, J., concurs specially.

Johnson, Judge,

concurring specially.

I am constrained to concur with the holding in this case as Todd v. F. W. Woolworth Co., 258 Ga. 194 (366 SE2d 674) (1988) is controlling. However, I find Justice Weltner’s dissent in the Todd case, which provides a practical and workable method for circumscribing “approaches,” compelling.

In all likelihood the boundary line was not known to the plaintiff at the time the action was filed, and it made practical sense to name both the motel and the state as party defendants. During discovery, however, it was learned that the path extended an additional 169 feet across state property before it reached the hazard. It was the state which allowed a path to run into a dangerous condition without erecting either a fence, a warning sign, or illuminating the hazard. It makes more sense to me that the motel’s duty would end where the state’s begins under the particular facts and circumstances of this case.

Certainly the motel could foresee that seaside vacationers will follow a path to the water, however, and it is foreseeable that some may choose to do so in the dark of night. Following Todd, and Hackett v. Dayton Hudson Corp., 191 Ga. App. 442 (382 SE2d 180) (1989), which holds that the duty of a landowner begins when he is aware of the dangerous condition on his property, or an approach thereto, I reluctantly agree that the trial court properly denied Motel Properties’ motion for summary judgment.

Decided November 3, 1992 —

Reconsideration denied November 19, 1992

Forbes & Bowman, Morton G. Forbes, Johnny A. Foster, for appellant.

John P. Batson, for appellee.

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


author: Cooper, Judge.

text:
    A92A1441.
    SNAPPER POWER EQUIPMENT COMPANY v. CROOK.
    (425 SE2d 393)
   Cooper, Judge.

In Georgia Elec. Co. v. Rycroft, 259 Ga. 155 (378 SE2d 111) (1989), the Supreme Court held that an employer is not obligated to pay workers’ compensation benefits to an injured worker who misrepresented his physical condition at the time he was hired if that misrepresentation is both relied upon by the employer and causally related to the subsequent injury for which the worker seeks compensation. We granted this discretionary appeal to consider whether an employer who institutes payments without an award when a worker is injured in 1987 may in 1990, after the decision in Rycroft, rely on Rycroft to suspend payments to that worker.

Appellee applied for a job with appellant in February 1986, falsely answering a number of questions on the application regarding his history of back problems. Appellee was hired and subsequently injured his back while lifting grass catchers in March 1987. Appellant instituted payment of workers’ compensation benefits without an award at that time. Rycroft was decided in 1989, and in March 1990, appellant requested a hearing on its right to suspend appellee’s benefits based on Rycroft, asserting that false statements on appellee’s application were both relied on and causally related to appellee’s subsequent injury. A hearing was held, and the administrative law judge ruled that appellant’s request to suspend appellee’s benefits approximately three years after it instituted payment of workers’ compensation benefits without an award was not timely brought under OCGA § 34-9-221 (h). The ALJ further ruled that Rycroft would not be retroactively applied under Flewellen v. Atlanta Cas. Co., 250 Ga. 709 (300 SE2d 673) (1983). The decision of the ALJ was adopted first by the full board and then by the superior court, from whose order appellant appeals.

1. OCGA § 34-9-221 (h) provides: “Where compensation is being paid without an award, the right to compensation shall not be controverted except upon the grounds of change in condition or newly discovered evidence unless notice to controvert is filed with the board within 60 days of the due date of first payment of compensation.”

This provision effectively establishes “a 60-day statute of limitation, the running of which results in a limitation as to the grounds upon which the employer/insurer can rely to controvert continued compensation.” Carpet Transport v. Pittman, 187 Ga. App. 463, 468 (1) (370 SE2d 651) (1988). Appellant does not argue that its Rycroft defense is grounded on changed conditions or newly discovered evidence. Instead, appellant first argues that the 60-day limitation should not apply because appellant could not have controverted appellee’s right to compensation based on misrepresentations in his employment application in a timely manner, since those misrepresentations did not provide the basis for a defense until Rycroft was decided in 1989. We do not agree that appellant could not have controverted appellee’s entitlement to payment based on false statements made at the time of his employment prior to Rycroft. Rycroft was a logical outgrowth of existing common law and statutory principles of fraud and contract. Although this court had previously rejected a similar defense in Ledbetter v. Pine Knoll Nursing Home, 180 Ga. App. 654 (350 SE2d 299) (1986), the decision in that case was primarily based on lack of proximate cause between the misrepresentations and the injury. Rycroft did not overrule Ledbetter, but distinguished it. We see no reason why appellant could not have argued its facts and attempted to distinguish Ledbetter prior to the decision in Rycroft just as the employer in Rycroft did. Appellant is effectively arguing that parties should be excused from compliance with statutes of limitation whenever they seek to rely on a claim or defense whose validity is established by a judicial decision rendered after the limitation period has run. However, such a rule would severely undermine the court’s and parties’ interest in finality which statutes of limitation are meant to serve. See, e.g., Bryant v. Allstate Ins. Co., 254 Ga. 328, 331 (326 SE2d 753) (1985); see also Southeastern Aluminum Recycling v. Rayburn, 172 Ga. App. 648, 649 (324 SE2d 194) (1984). Accordingly, we conclude that appellant cannot avoid the bar of OCGA § 34-9-221 (h) on the grounds that the Rycroft defense was so novel that appellant could not have raised it in a timely manner.

Appellant’s second contention is that, since the Rycroft defense is judicially created, it should “take precedence over” and not be limited by the legislatively created procedural requirements of OCGA § 34-9-221 (h). This argument is antithetical to all established principles of separation of powers and the role of the judiciary in interpreting a statutory scheme. “[Construction belongs to the courts, legislation to the legislature.” Modern Homes Constr. Co. v. Burke, 219 Ga. 710, 715 (135 SE2d 383) (1964). Moreover, “[t]he legislative, judicial, and executive powers shall forever remain separate and distinct. . . .” 1983 Ga. Const., Art. I, Sec. II, Par. III. The workers’ compensation scheme is the creation of the legislature. The courts may construe the legislation and fill in gaps by looking to common-law principles and other relevant statutes, as the Georgia Supreme Court did in Rycroft. See Rycroft, 259 Ga. at 159. A defense established in this manner does not take on a life of its own outside the statutory scheme, however, and certainly does not “take precedence over” statutory provisions. We therefore conclude that OCGA § 34-9-221 (h) applies to bar appellant’s untimely assertion of a Rycroft defense in this case.

Decided November 19, 1992.

Gorby, Reeves, Moraitakis & Whiteman, Harold W. Whiteman, Jr., Andrew Nelson, for appellant.

Johnny B. Mostiler, for appellee.

2. Because we have concluded that appellant’s reliance on Rycroft is procedurally barred, we need not address appellant’s additional arguments that the employer’s defense established in Rycroft should be retroactively applied under the principles set forth in Flewellen v. Atlanta Cas. Co.,, supra, and that appellant has shown that the elements of the defense are present in this case.

Judgment affirmed.

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


text:
    A92A1542.
    KINSEY v. ELROD.
    (425 SE2d 395)
   Cooper, Judge.

In this personal injury case, appellant appeals a grant of summary judgment for appellee.

Appellant was injured in an automobile accident involving several vehicles. In October 1990, she signed an agreement releasing one of the drivers from liability in return for a payment of $4,500. Appellant then sued appellee, but appellee moved for summary judgment on the grounds that the release signed by appellant released not only the settling driver but also “any other person . . . charged with responsibility for injuries to [appellant]” as a result of the multi-vehicle accident, including appellee. In response to appellee’s motion for summary judgment, appellant submitted the affidavit of her attorney stating that when the parties to the release negotiated that agreement they did not intend to release appellee and a letter from the settling driver’s insurer. Although recognizing that extrinsic evidence of the parties’ intent could be considered, the trial court ruled that the submitted affidavit and letter did not adequately show such intent and thus granted appellee’s motion for summary judgment.

A release of one joint tortfeasor does not discharge others “unless it is agreed that it will discharge them,” and extrinsic evidence will be considered in determining whether the parties to the release agreed that other joint tortfeasors should be discharged. Posey v. Medical Center-West, 257 Ga. 55, 59 (354 SE2d 417) (1987). Moreover, boilerplate language in a release purporting to discharge any or all other persons “does not serve to release a [joint] tortfeasor who is not named in the release, unless evidence shows the parties meant to include him.” (Emphasis supplied.) Jackson v. Dyches, 200 Ga. App. 174, 175 (407 SE2d 126) (1991). This language reflects a presumption against release of other joint tortfeasors and indicates that boilerplate language in the release purporting to discharge any or all others is not sufficient to overcome that presumption alone. In a case involving an almost identical boilerplate clause the Supreme Court stated: “[W]e think that the party claiming coverage under the release should bear the burden of proof on that issue. ‘(T)he alleged wrongdoers, who are not parties to the release and have made no payments towards satisfaction of the plaintiff’s injuries, may fairly be called upon to show that the release was intended to discharge them or that the plaintiff has received full compensation.’ [Cit.]” Williams v. Physicians &c. Hosp., 249 Ga. 588, 591 (292 SE2d 705) (1982). “Posey extended the rationale of the Williams case, which involved successive tortfeasors, to cases involving joint tortfeasors.” Jackson, supra at 175. Accordingly, even if appellant’s evidence of the parties’ intent not to discharge appellee was insufficient or unacceptable, summary judgment was not appropriate because appellee — the moving party and the party with the burden of proof on the issue — presented nothing to show the release was intended to cover her other than the boilerplate language.

Judgment reversed.

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

Decided November 19, 1992.

Alfred L. Allgood, for appellant.

Blasingame, Burch, Garrard & Bryant, David S. Thomson, for appellee.

       For releases executed after April 1992, the presumption against release of unnamed or unspecified joint tortfeasors is conclusive: only those parties named or otherwise specifically identified in the release are discharged. Lackey v. McDowell, 262 Ga. 185 (415 SE2d 902) (1992). Because the release in this case was executed prior to April 1992, we apply the law as it was before Lackey.