author:
Smith, Judge. Ruffin, Judge,
      Beasley, Judge, McMurray, Presiding Judge,

text:
    A97A0781.
    UTICA MUTUAL INSURANCE COMPANY et al. v. MITCHELL.
    (490 SE2d 489)
   Smith, Judge.

Suanne Marie Mitchell filed this action in superior court pursuant to OCGA § 9-11-60 (d) to set aside the dismissal by the probate court of her mother as guardian of Mitchell’s property. The trial court granted the motion. Because OCGA § 9-11-60 (d) was not an appropriate vehicle for seeking review in this case, we reverse.

The action underlying this appeal arose from a guardianship that came into effect following the settlement of a wrongful death action. As a result of the settlement, Mitchell, 13 years old at the time, was awarded approximately $450,000 to be held in a trust. Her mother, Kirby, was appointed guardian of Mitchell’s property on May 13, 1988. Utica Mutual Insurance Company provided a $450,000 bond during the course of the guardianship. On April 3, 1991, Kirby petitioned the probate court to allow her resignation as guardian. Her justification for resigning was that Mitchell had been emancipated by marriage in February 1990. After the petition was filed, a citation was issued, and notice of the dismission hearing was published. On May 6, 1991, the probate court issued a final order and letters of dismission relieving Kirby from the guardianship. Subsequently, in May 1995, Mitchell filed an action in superior court to set aside the dismissal of Mitchell as guardian. She then filed a motion for summary judgment which the trial court granted. This appeal by Utica ensued.

The trial court did not have authority to rule on Mitchell’s summary judgment motion because it was without jurisdiction under OCGA § 9-11-60 to entertain the action to set aside the dismissal. Subsection (a) of that statute provides, “A judgment void on its face may be attacked in any court by any person. In all other instances, judgments shall be subject to attack only by a direct proceeding brought for that purpose in one of the methods prescribed in this Code section.” (Emphasis supplied.) The judgment Mitchell seeks to attack, that of the probate court dismissing her mother as guardian, is not void on its face. That judgment explicitly recites that “[a]ll procedural requirements of Georgia law have been met.” Such a recitation, although broad, necessarily includes those requirements set forth at OCGA § 29-2-84, the statute addressing the procedures for obtaining letters of dismission from the probate court. Although Mitchell now argues that the probate court did not, comply with those procedures and even submits the affidavit of the probate court judge to that effect, such evidence is not apparent from the face of the probate court judgment.

Furthermore, the Supreme Court has expressly limited judgments void on their faces under subsection (a) to “those judgments which lack either personal or subject matter jurisdiction.” Murphy v. Murphy, 263 Ga. 280, 282 (430 SE2d 749) (1993). As for any argument that the judgment is void because the probate court did not have personal jurisdiction for lack of service, the record shows that the application for dismission was published as provided in OCGA § 29-2-84 (a). Such service in special statutory proceedings is expressly allowed by OCGA § 9-11-4 (j). Accordingly, the judgment is not void, and Mitchell was not authorized to attack that judgment in superior court. See OCGA § 9-11-60 (b) (judgments may be attacked by motion to set aside only in court of rendition).

The dissent argues that the probate court judgment is void for lack of personal jurisdiction because the ward was never served with notice of the dismission. In particular, the dissent states that notice was required under OCGA § 9-11-4 or § 29-2-77. A reading of those statutes, though, shows that they do not require such notice. OCGA § 29-2-84 (a) is the only statute addressing service of a petition for dismission, and there is no dispute that notice of the hearing was properly published under that statute. OCGA § 9-11-4 (j) expressly provides that service is sufficient when “made in accordance with the statutes relating particularly to the proceeding.” Service was accomplished as provided by OCGA § 29-2-84, and it was therefore sufficient.

It may be regrettable that service on the ward is not expressly provided for in our Code, but the statutory scheme as currently provided by our legislature simply does not require personal service on the ward. Because notice was accomplished as provided by the probate code, it cannot be said that the probate court judgment was void on its face, and the superior court did not have jursidiction over the issues raised by Mitchell’s action.

Judgment reversed.

Andrews, C. J, Birdsong, P. J., and Ruffin, J, concur and concur specially. Beasley and Eldridge, JJ, concur in part and dissent in part. McMurray, P. J., dissents.

Ruffin, Judge,

concurring specially.

I concur in the court’s opinion, but not without concern over the due process issues Judge Beasley raises in her separate opinion. As she notes, due process may well require that the ward receive personal notice of the guardian’s attempts to end their relationship. As Judge Smith correctly states, however, the statutory scheme as currently designed by the Legislature does not require the guardian to personally serve the ward with a copy of the petition for dismission. Judge Beasley’s partial dissent, in effect, is an effort to declare unconstitutional these statutory notice provisions by finding service by publication to be constitutionally impermissible. Such an action exceeds this Court’s power.

As the superior court noted in its ruling, Mitchell argued that the statutory notice provisions at issue failed to provide her procedural due process. Such a claim may have merit, considering the potential effect of the judgment on the ward’s claims that the guardian failed properly to discharge her duties. See Gay v. Gay, 121 Ga. App. 287, 290 (2) (173 SE2d 712) (1970) (order granting letters of dismission creates presumption that guardian fully and completely performed his or her duties); Allan v. Allan, 236 Ga. 199, 206 (223 SE2d 445) (1976) (in year’s support proceeding, statute providing for notice by publication failed constitutional muster because it failed to notify parties whose rights were affected by final judgment).

The trial court, however, did not make any ruling regarding the constitutionality of the statutory scheme. Neither did Mitchell file any cross-appeal raising this issue. Therefore, the question is not before this Court. See Decatur Fed. S & L Assn. v. Litsky, 207 Ga. App. 752, 755 (2) (429 SE2d 300) (1993). Even if it were, we could not decide the matter. “This Court has no jurisdiction to determine the constitutionality of a state law, other than where the law has been held to be constitutional against the same attack being made, and only has jurisdiction to decide questions of law that involve the application, in a general sense, of unquestioned and unambiguous provisions of the Constitution of a given state of facts and that do not involve construction of some constitutional provision directly in question and doubtful either under its own terms or under the decisions of the Supreme Court of Georgia or the Supreme Court of the United States.” (Citations and punctuation omitted.) Braden v. Bell, 222 Ga. App. 144, 146 (1) (473 SE2d 523) (1996) (physical precedent only); see also Pollard v. State, 229 Ga. 698 (194 SE2d 107) (1972). Because the issue was not addressed in the trial court, we are also unable to transfer this case to the Supreme Court for determination. Decatur Fed., supra.

Whether due process concerns require personal service on the ward is a murky and tangled issue, requiring a court of competent jurisdiction to consider the statutory notice provisions in light of other statutes allowing a ward who had no notice of the dismission to request an accounting. Compare OCGA §§ 29-2-84 and 29-2-77 (allowing dismission without personal notice to ward) with §§ 29-2-74 and 29-2-83 (allowing ward to reopen settlement). Given the limited scope of the issues properly before us, I concur with Judge Smith’s analysis and result.

I am authorized to state that Chief Judge Andrews, Presiding Judge Birdsong, and Judge Smith join in this special concurrence.

Beasley, Judge,

concurring in part and dissenting in part.

1. The trial court was not precluded from reaching the merits of plaintiff’s claim because it did have jurisdiction of it.

Mitchell, the former ward, filed an “action to set aside dismissal of [the guardian of plaintiff’s property]” in the superior court. She amended it once to detail certain alleged irregularities with respect to fulfillment of the guardian’s duties and to seek a final accounting and settlement in the superior court. In her original complaint, she had asked the superior court to permit her to file with the probate court a petition for final accounting and settlement.

As authority for bringing this action in superior court, plaintiff cited OCGA § 9-11-60 (d), which governs motions to set aside judgments and specifies the permissible grounds for such relief. This method for obtaining relief from the probate court judgment constitutes a direct proceeding, as stated in subsection (b). Sanders v. S. D. Leasing, 189 Ga. App. 409, 410 (376 SE2d 420) (1988), disapproved on other grounds Okekpe v. Commerce Funding Corp., 218 Ga. App. 705, 706 (463 SE2d 23) (1995). It is limited to the court which issued the judgment complained of, because subsection (b) provides that “[j]udgments may be attacked by motion only in the court of rendition.”

Plaintiff could attack the probate court judgment in the superior court only in accordance with subsection (a), which governs collateral attacks. As provided therein, only “[a] judgment void on its face may be attacked in any court by any person.” The question then is whether plaintiff’s action in reality attacks the probate court judgment as being “void on its face” despite plaintiff’s designation of subsection (d) as her procedural means.

The Supreme Court has defined the term “void on its face,” as used in this portion of the 1966 Civil Practice Act, to mean “those judgments which lack either personal or subject matter jurisdiction.” Murphy v. Murphy, 263 Ga. 280, 282 (430 SE2d 749) (1993). Clearly, the probate court had jurisdiction of the guardian’s application for letters of dismission. OCGA § 29-2-84. Plaintiff’s action, as amended, did not challenge that.

She did challenge the procedure which was followed in the probate court, which she alleged short-circuited the statutory requirements for dismissal of the guardian, allowing the guardian to defraud her. She also claimed that a nonamendable defect appeared on the face of the record in that she, as the minor whose property was the subject of the guardianship, was “not given notice of the dismissal hearing as required by OCGA § 29-2-77.” It provides for notice by citation. In this regard Mitchell’s case differs from Lawing v. Erwin, 251 Ga. 134 (303 SE2d 444) (1983), in which the complainant did not “assert lack of notice or failure of service” when attacking a judgment collaterally and thus was not permitted to proceed under OCGA § 9-11-60 (a). Id. at 135. The Supreme Court recognized that such an assertion would allow a subsection (a) collateral attack. That was not changed by Murphy, which limited “void on its face” to judgments which lack either personal or subject matter jurisdiction.

As to deficiencies in the probate court procedure with respect to lack of accounting and settlement, this would not come within the definition attributed to “void on its face” by the Supreme Court so as to allow her collateral attack on this basis in the superior court.

As to lack of notice, which addresses lack of personal jurisdiction in the probate court to issue letters of dismission, the statutory procedure for obtaining such letters does not expressly require notice to her or the appointment of, or notice to, a guardian ad litem as plaintiff asserted. OCGA § 29-2-84 requires only notice by publication, which was accomplished. But the purpose of such publication is to notify creditors and other unknown interested parties that the guardian is about to be dismissed and to provide an opportunity to object. It is additional to notice to the person whose property is the subject matter of the guardianship and thus who owns the main interests at stake. Notice by the least effective means, publication, is obviously not intended for the ward, who not only is known but also has allegedly just become able to manage his or her property independent of the guardian. Such a person is rarely, if ever, likely to learn of the application for dismission by reading the county’s official organ. Due process requires notice to the ward. As stated eloquently by Judge Floyd E. Propst in his Handbook for Probate Judges of Georgia (Council of Probate Court Judges of Georgia, 1992) at 358: “The law is very jealous of the rights and interests of wards, and seeks rigidly to guard them.” The significance of dismission is awesome, because “[djismissal under [OCGA § 29-2-84] . . . amounts to an adjudication that [the guardian] has fully and completely performed all the duties of his trust.” Gay v. Gay, 121 Ga. App. 287, 290 (173 SE2d 712) (1970). The estates of minors, as here, and incompetent persons are at stake.

The probate judge in this case knew that due process notice was required by law and it was part of the procedure practiced, but not in this case. He stated in his affidavit: “It is the procedure of this court, in a proceeding for the dismissal of a guardian, that I appoint a guardian ad litem where the ward is still a minor, that notice of the proceeding be given by the petitioner to the ward and that a hearing is conducted on all issues with regard to dismissal of the guardian including a fully accounting of the ward’s estate.”

The notice to the ward had to be accomplished pursuant to OCGA § 9-11-4 or § 29-2-77, in order to constitute due process. OCGA § 15-9-122 provides that the general laws and rules of practice are applicable to civil cases in the probate courts unless OCGA § 9-11-81 provides to the contrary. OCGA § 9-11-81 states that the Civil Practice Act applies “to all special statutory proceedings except to the extent that specific rules of practice and procedure in conflict [with the CPA] are expressly prescribed by law.” OCGA § 29-2-84, which sets out the procedure for obtaining letters of dismission, does not spell out how the ward is to be notified. Thus, OCGA § 9-11-4 does not conflict with it.

Statutes are to be construed as a whole. Weldon v. Bd. of Commrs. of Monroe County, 212 Ga. App. 885, 887 (2) (443 SE2d 513) (1994), and cits. And the service provisions of the Civil Practice Act harmonize well with the probate code provisions for letters of dismission. The legislature clearly intends CPA process to apply to probate court procedure where appropriate. OCGA § 9-11-4 (j). The latter merely requires publication to notify non-parties who may have an interest, which is not covered by the CPA. The CPA covers notice to the adverse party, in this instance the ward. OCGA § 9-11-4. Plus the probate code allows an optional means of notifying the ward other than by CPA service, i.e., by citation. OCGA § 29-2-77. Plaintiff cites OCGA § 29-2-77 as the governing statute with respect to notice to her; it must be construed to mean that, instead of one of the other statutory provisions for service, the guardian may use this method, i.e., citation to appear and be present. “May” does not mean the guardian can notify or not, but rather that the guardian “may” do it in this fashion, or under OCGA § 9-11-4. The finality of the grant of letters of dismission in Hoke v. Walraven, 57 Ga. App. 106 (194 SE 610) (1937), pivoted largely on the fact that it was done “after due citation” to the ward, who therefore “had knowledge that the application would be made . . . [and] filed no objection to the guardian’s discharge.” Id. at 106. The court stated that the ward “was legally cited by the ordinary to show cause against the discharge.” Id. at 115. See Propst, supra at 368.

A guardian “may” wish to cite the ward or new guardian to be present at settlement of the guardianship account so as to preclude the final account from being challenged within five years, as would otherwise be permitted by OCGA § 29-2-74, or within four years, as provided by OCGA § 29-2-83. A particular form of due process being provided for in the probate code for mere settlement of accounts, and no special notice process being required in the probate code for dis-mission of the guardian altogether, the general civil practice requirements apply. This analysis does not involve a consideration of the constitutionality of OCGA § 29-2-84 at all. It merely involves an ascertainment of the procedure required by the laws of Georgia for the grant of letters of dismission to a guardian. Such a determination requires more than a consideration of OCGA § 29-2-84 in isolation; one small square of fabric does not a cloak make.

In her brief on appeal, plaintiff Mitchell relies on OCGA § 9-11-4 (d) (3). She was a minor at the time and had become emancipated due to marriage; that is what prompted the guardian’s application for dismission. Just because she became emancipated did not mean the guardian did not have to give notice, as appellants argue. Whether emancipated or not, the guardian was legally responsible for her property, the disposition of which was under the supervision of the court, until dismission.

It is on this ground alone that the superior court had jurisdiction of the action as a collateral attack, pursuant to OCGA § 9-11-60 (a). Since the superior court did not reach this issue, it would normally be necessary to remand the case for the court to rule on it. However, it is undisputed that service was not made on the emancipated minor ward, by citation or otherwise. The probate court judge by affidavit swore that at the time of dismissal of the guardian “no notice of the dismissal petition was given the ward by the Court nor is there a record of service on the ward.” There was not even a final receipt from the ward, showing a final settlement between the guardian and the ward. See OCGA §§ 29-2-82, 29-2-81; Propst, supra at 316-317. The superior court had jurisdiction of this issue and should have set aside the judgment of the probate court on this basis.

A judgment right for any reason is to be affirmed. Darugar v. Hodges, 221 Ga. App. 227, 229 (471 SE2d 33) (1996). Thus, I dissent from the majority opinion insofar as the vacating and setting aside of the probate court order is concerned.

2. But the superior court went further and ordered that defendant Kirby and her surety present her accounts and vouchers for examination and for a final accounting, and in addition ordered that the case be tried by a jury on the issues of a final accounting and plaintiff’s allegations. As authority for doing so, the superior court cited OCGA § 23-2-70 and two cases from the Supreme Court.

OCGA § 23-2-70 establishes the scope of equity jurisdiction over matters of account. Mitchell’s action is not one for an equitable accounting but rather to set aside another court’s order in part because of an improper and inadequate accounting. It is only in certain prescribed circumstances, such as when an accounting at law is inadequate, that equity jurisdiction can be exercised. Herring v. Standard Guaranty Ins. Co., 238 Ga. 261 (232 SE2d 544) (1977); Peeples v. Peeples, 193 Ga. 358 (18 SE2d 629) (1942). The accounting which plaintiff seeks, and her challenges to the “full discharge of the duties of [the guardian’s] trust,” are within the competence of the probate court as set forth in OCGA §§ 29-2-84, 29-2-76. Compare OCGA § 29-2-45. They are matters within the jurisdiction of the probate court in connection with the application for letters of dismission and must be resolved within that statutory procedure.

The two cases cited by the superior court do not support its assuming jurisdiction over the guardian’s fulfillment of her duties with respect to plaintiff’s property. In Evans v. Little, 246 Ga. 219, 220 (271 SE2d 138) (1980), the Supreme Court held that “[t]he existence or non-existence of administration of [an] estate does not preclude the bringing of a partition action by a tenant in common” and also that the liability of one co-tenant to the others for amounts he collected is based on his status as a co-tenant, not on his status as an administrator. Thus, the proper jurisdiction for the co-tenants’ action was in the superior court. The other case cited by the superior court is Atlanta Trust Co. v. Nat. Bondholders Corp., 188 Ga. 761 (4 SE2d 644) (1939), which involves an equitable petition for accounting, which plaintiff’s action in the superior court is not.

Thus, I concur in the reversal of the superior court’s judgment but only to this extent.

One other matter: plaintiff brought her action against both the guardian and the guardian’s surety, Utica, but the probate court judgment she seeks to set aside did not relieve the surety. It just relieved the guardian from paying further bond. Plaintiff recognizes in her brief on appeal that Utica has not been discharged and relieved of liability. She apparently has not sued Utica on the bond. Utica is an appellant because it does not want the dismissal of its principal, the guardian, to be set aside. In this it should fail.

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

McMurray, Presiding Judge,

dissenting.

I respectfully dissent from the judgment of reversal. “An appeal shall lie to the superior court from any decision made by the probate court, except an order appointing a temporary administrator.” OCGA § 5-3-2 (a). In my view, the issues in this appeal, as enumerated and briefed by the parties, involve strictly a determination whether the evidence supported the superior court’s vacation and setting aside of the probate court’s letters of dismission. The standard of appellate review is, therefore, simply an “any evidence” standard.

Plaintiff Suanne Marie Rivkin Quinton, now known as Suanne Marie Mitchell, initiated this petition to set aside the order of the Probate Court of Union County, Georgia, which had previously “dismissed [her mother, defendant Linda Rivkin Plott, now known as Linda Rivkin Kirby (‘defendant Kirby’),] as guardian of [plaintiff’s] property. . . .” Defendant Utica Mutual Insurance Company “was served with a copy of the Petition as the surety on a bond in the amount of $450,000, which [bond] was issued pursuant to the Probate Court of Union County’s Order of May 11, 1988.” The petition alleged in part that defendant Kirby’s “dismissal was improperly granted and/or fraudulently obtained as there was no accounting and settlement made to the Probate Court. . . .” Plaintiff amended her complaint to allege that she “did not become aware Defendant Kirby [allegedly] breached her fiduciary duty until December of 1994 when she [plaintiff] began to investigate the status of her estate,” and further alleged commingling of funds, waste, and mismanagement. Plaintiff demanded a final accounting and settlement. Both defendants admitted that defendant Kirby had been dismissed as the guardian of plaintiff’s property after plaintiff married but denied the material allegations of fraud and impropriety.

Plaintiff subsequently moved for summary judgment under OCGA § 9-11-56 (a), supporting her motion in part with the affidavits of Marcus Sosebee, Judge of the Probate Court of Union County. Probate Judge Sosebee, who is not an attorney, deposed that while it is the “procedure of [that] court, in a proceeding for the dismissal of a guardian, [to] appoint a guardian ad litem where the ward is still a minor, . . . and that a hearing [be] conducted on all issues . . . including a full accounting of the ward’s estate, . . . [at] the time of the dismissal of [defendant Kirby] as natural guardian of the property of [plaintiff,] no guardian ad litem was appointed to represent the ward at the dismissal hearing; no hearing was conducted on the issues of dismissal, no final accounting was provided by the [defendant] and the fact that the ward was still a minor was not made known to the Court by [defendant] or her counsel. . . .” This testimony was corroborated by the affidavit of Shirley Stokes, former Clerk of the Probate Court of Union County.

The Superior Court of Union County determined that any presumption of regularity had been overcome and that the direct, positive, and uncontradicted evidence showed that the probate court “did not examine the guardian’s accounts and vouchers to verify the truth of the application nor did the Probate Court receive evidence that the Plaintiff was of age and there was no longer a necessity for continuing the guardianship.” Consequently, the Superior Court ordered “that the letters of dismission granted Defendant Kirby by the Probate Court of Union County on May 6, 1991 be . . . vacated and set aside. . . .” The Superior Court further ordered that “this case proceed to trial on the issue of a final accounting and settlement of Defendant Kirby’s guardianship. . . .” From this order effectively granting partial summary judgment, defendants bring this direct appeal. OCGA § 9-11-56 (h).

Defendants first contend the Superior Court erred in setting aside the judgment of the Probate Court, arguing that plaintiff failed to make out a case for relief from judgment under the standards of OCGA § 9-11-60 (d). This contention is, in my view, without merit.

“Letters of dismission may be granted by the judge of the probate court to any guardian upon compliance with the procedure outlined in this Code section. The guardian shall . . . [set] forth his full discharge of the duties of his trust. The judge of the probate court shall examine the guardian’s accounts and vouchers to verify the truth of the application. . . . Proof shall bé offered to show that the ward is of age or that there is no longer a necessity for continuing the guardianship.” OCGA § 29-2-84 (a).

“ Tt is an imperative duty of an accounting party, whether an agent, a trustee, a receiver or an executor (for . . . they all stand in the same situation) to keep his accounts in a regular manner, and to be always ready with his accounts; neglect of this duty is a ground for charging him with interest for balances in his hands and with cost. So a trustee and executor is bound to render every necessary information that is required of him, and he who, undertaking to give information, gives but half information, in the view of a court of chancery, conceals; if he has not all the information necessary, he is bound to seek first, and if practicable, to obtain it.’ That concealment per se amounts to actual fraud when, from any reason, one party has a right to expect full communication of the facts from another, is a well-settled principle, recognized by both the civil and the moral law. [Cit.]” (Emphasis in original.) Poullain v. Poullain, 76 Ga. 420, 444 (5), 446 (4 SE 92). Like an executor or trustee, “the guardian [of a minor’s property] acts in a fiduciary capacity, and is bound to utmost good faith with the court and the ward in the interest of the latter.” American Surety Co. v. Adams, 190 Ga. 575 (hn. 2) (10 SE2d 30).

The uncontradicted positive evidence here fully supports the determination of the Superior Court that defendant Kirby failed to apprise the Probate Court of material facts, failed to offer an accounting, and failed to state the applicable standard for obtaining letters of dismission as established by OCGA § 29-2-84. “We have just seen that it is the duty of the ordinary [now probate judge], in passing upon all these accounts, and especially upon the final account, with a view to granting the guardian a discharge, to ascertain, before doing so, that all the duties of the trust have been fully performed, and that this essential fact must be made to appear by a careful scrutiny and examination by him of the various items thereof and the vouchers sustaining them. It is scarcely necessary to observe that the omission of what is claimed to be much the larger part of the estate and the incorrectness of other items [or factual allegations], or[, as here,] the failure to furnish any vouchers whatever, would raise a presumption against the fairness of the transaction. . . .” Poullain v. Poullain, 76 Ga. 420, 444 (5), 445, 447, supra. The Superior Court did not, in my opinion, err in granting summary judgment to plaintiff, effectively vacating and setting aside the judgment of the Probate Court. As my colleagues in the majority would nevertheless reverse that correct determination, I respectfully dissent.

Decided July 16, 1997

Reconsideration denied July 31, 1997

Gambrell & Stolz, Bryan M. Cavan, Leo J. Fogarty, Ronald C. Melcher, Mikele S. Carter, for appellants.

Gunter & Stancil, Norman S. Gunter, for appellee.

       The publication required “all persons interested” to appear at a specified time and place for a hearing on the petition for dismissal.

       Mitchell alleged that the dismissal was improperly granted because, among other things, there was no accounting and settlement made to the probate court and on the ground that a nonamendable defect appeared on the face of the record because she was not given notice of the dismissal hearing.

       OCGA § 15-9-17 also provides methods of service “notwithstanding . . . other provision[s] of law to the contrary,” but this section was not in effect until July 1, 1994. Ga. L. 1994, p. 725, § 1. The probate court issued its final order in 1991.

       Or, after July 1, 1994, under OCGA § 15-9-17.


source: Caselaw Access Project

author: Andrews, Chief Judge. McMurray, Presiding Judge,

license: Public Domain

text:
    A97A0816.
    POTTS et al. v. UAP-GA AG CHEM, INC. et al.
    (490 SE2d 432)
   Andrews, Chief Judge.

Potts, Jr., administrator of the estate of Rusty LeBlanc, LeBlanc’s widow, Phillips, and Phillips on behalf of LeBlanc’s minor child appeal from the trial court’s grant of summary judgment to UAP-GA AG CHEM, Inc. (UAP) and Register, a UAP employee, in their wrongful death and survival action alleging fraud and intentional infliction of emotional distress against UAP and Register.

1. In reviewing grant or denial of summary judgment, this Court conducts a de novo review of the evidence. Goring v. Martinez, 224 Ga. App. 137, 138 (2) (479 SE2d 432) (1996); Gaskins v. Hand, 219 Ga. App. 823 (466 SE2d 688) (1996).

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party,, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff’s claim, that claim tumbles like a house of cards. All of the other disputes of fact are rendered immaterial. [Cit.] A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

So viewing the evidence, it was that LeBlanc, 29 years old, worked for UAP at its Sylvester, Georgia branch as a truck driver. That branch had four employees, including LeBlanc. Defendant Register was the branch manager, Jordan was the warehouse manager, and Phillips worked in the warehouse. UÁP accepted and distributed farm chemicals, including pesticides, and provided applicators to farmers for applying its products to their fields.

On Friday, August 13, 1993, Register gave instructions to Jordan that one of the applicators be washed off. He was aware that LeBlanc could be asked to perform such a task. Phillips and LeBlanc then washed off all ten to fifteen applicators on the lot. The applicators had granular chemicals caked on them and it was necessary to use a pressure washer to dislodge the chemicals. After cleaning the applicators, LeBlanc became nauseated, suffered a headache, and became dizzy. LeBlanc told his wife upon arriving home that he had gotten chemicals on him. He suffered nausea, diarrhea, and vomiting through the weekend and missed work on Monday.

On Friday, August 20, LeBlanc told Phillips that he had again washed the applicators while Phillips was gone and had again gotten ill. On Saturday, his wife took LeBlanc to Palmyra Hospital’s emergency room where he was given fluids and sent home with direction to return if he did not improve. Early Sunday morning, he returned to the hospital and was admitted by Dr. Frankos. LeBlanc advised Dr. Frankos of his daily exposure to chemicals. Dr. Frankos treated LeBlanc for acute gastroenteritis and was of the opinion that chemical poisoning was “pretty low on the list” of potential diagnoses. LeBlanc was released on August 24 on a clear liquid diet for 24 hours, then a bland diet for 24 hours, and scheduled for a followup visit.

LeBlanc’s wife took him to Worth County Hospital on August 24, 1993, because of his continuing nausea, diarrhea, and vomiting, and he was admitted to Dr. Capps’ service. Dr. Capps was aware that LeBlanc had previously been in Palmyra Hospital and was told by LeBlanc that he suspected food poisoning or that “he had been exposed on his job to chemicals.” Dr. Capps found his symptoms to be consistent with those caused by a cholinesterase inhibitor, an organophosphate used in farm chemicals, and performed tests to pursue this issue.

On August 25, Dr. Capps “put him on Atropine [an antidote for a cholinesterase inhibitor] and while on Atropine changed his Don-natal to Donnagel, which doesn’t contain the Atropine-like substance that Donnatal does, so I didn’t want to duplicate that.” Dr. Capps also testified that, in his experience, exposure to organophosphates tended to be a fairly acute, short-lived toxic experience and, based on his conversation with Register on LeBlanc’s third day of hospitalization, “I feel like I’ve treated him for a period long enough to cover the kind of exposure that I’m familiar with. ... So that’s why, ... on the date I indicated that I went ahead and stopped the Atropine. I really felt like I had done all I could do with that without any more specific information.”

Dr. Capps discontinued the Atropine on August 27 at 1:10 a.m. because “I felt that the main purpose of Atropine in that form and in that dosage would be to cover the possibility that he had been exposed to a toxic chemical. I expected that exposure to result in a short-term toxic syndrome, and I had been reassured by his employer [Register] that he could not possibly have been exposed to any chemicals. . . . [H]e said, ‘he’s not around chemicals.’ ” Had he been advised by Register of exposure to such chemicals, “the only thing I would have done differently had I been told the specific nature of a poison is to try to find out if it had any weird, unexpected, long-term or any permutation on this general theme that should alter my approach.”

LeBlanc improved on August 29, but then worsened on August 30. Although LeBlanc had been taken off Atropine, “[h]e was getting anticholinergics the entire time. I never discontinued anticholinergics. He was switched from Atropine to an oral form. I doubt the anticholinergics were stopped until he got to Palmyra.”

Dr. Capps transferred him to Palmyra Hospital where he was seen by Dr. Burnette on August 30 to consider the possibility of gall bladder problems. Dr. Burnette determined the problem was not the gall bladder and, based on LeBlanc’s and his wife’s statement that, two weeks previously, he had been exposed to chemicals, he was again administered Atropine. When LeBlanc did not improve, his care was transferred to Dr. Dorsey, an internist who was also told about LeBlanc’s exposure to chemicals.

Dr. Dorsey examined LeBlanc, including reviewing records of the earlier Palmyra stay and was aware from Dr. Burnette’s history as well as LeBlanc’s information that LeBlanc had been exposed to chemicals. Dr. Dorsey did not have LeBlanc’s records from his Worth County Hospital stay. Despite continued treatment by Dr. Dorsey, LeBlanc died on September 3, 1993. Although an autopsy was performed, no definitive cause of death was identified by the pathologist, Dr. Isele. Dr. Isele was asked if he had ruled out “absolutely acetylcholinesterase poisoning” and replied “[i]n my mind, yes.” Also, Dr. Dorsey testified that “I did not feel that Mr. LeBlanc’s signs and symptoms, at the time that I entered the case or first saw Mr. LeBlanc, were consistent with cholinesterase or organophosphate poisoning.”

On June 9, 1994, a claim for workers’ compensation benefits was filed on behalf of Phillips and her daughter asserting that LeBlanc “was exposed to toxic and poisonous materials and died as a result of this exposure.”

2. Pretermitting the issues of (a) whether there has been an intervening proximate cause between the alleged fraudulent statement of Register to Dr. Capps, i.e., the treatment by two succeeding doctors who were not aware of Register’s statement, but were aware of chemical exposure, see Stegall v. Central Ga. EMC, 221 Ga. App. 187, 190 (2) (470 SE2d 782) (1996) and (b) whether there was any showing made that Register’s statement was made to induce LeBlanc to act or refrain from acting in reliance on the statement and that LeBlanc justifiably relied on it, see Watson v. Zurich-American Ins. Co., 221 Ga. App. 4, 5 (1) (470 SE2d 684) (1996) and Maddox v. Southern Engineering Co., 216 Ga. App. 6, 7 (1) (453 SE2d 70) (1995), we address the exclusivity provision of OCGA § 34-9-11 to determine whether any viable fraud or intentional infliction of emotional distress claim has been shown by Potts and Phillips that is outside the scope of that section.

As stated by the Supreme Court, “[t]he workers’ compensation law provides benefits to an employee injured in an accident arising out of and in the course of the employment. The legislature has expressly codified its intent that the Act be liberally construed to bring both employers and employees within the act. Where the Act is applicable, its provisions are the exclusive remedy for the employee against the employer. . . . The exclusivity provision is the bedrock of the workers’ compensation system. The legislature has determined that it is the quid pro quo for workers receiving a guarantee of prompt benefits for work-related injuries without regard to fault or common-law defenses and without the delay inherent in tort litigation. Workers’ compensation has never been intended to make the employee whole — it excludes benefits for pain and suffering, for loss of consortium, and it provides a cap on wage benefits.” Doss v. Food Lion, 267 Ga. 312, 313 (1) & (2) (477 SE2d 577) (1996). That case held that the intentional delay of medical treatment by the employer/ insurer which exacerbates an existing work-related physical injury does not provide the employee with an independent cause of action beyond workers’ compensation.

The only enumeration of error urged is that the trial court erred in concluding that the immunity that “protects employers and fellow-employees under the Workers Compensation Act, extends to intentional misconduct by the employer done off the worksite and at times that the employee is not engaged in any work activity.” Although numerous other theories are argued in the brief, this is the only ground which we consider. Powell v. State, 210 Ga. App. 409, 414 (7) (437 SE2d 598) (1993).

Appellants rely upon Griggs v. All-Steel Buildings, 209 Ga. App. 253 (433 SE2d 89) (1993) for their contention that the employer is not protected from a fraud claim by an employee. There, this Court held that fraud by the employer and insurer in settling a workers’ compensation claim with an employee who had been brain injured on the job was “not an ‘accident’ and the damages resulting therefrom do not arise ‘out of or in, the course of the employment,’ but rather, result from the intentional misconduct of the defendants subsequent to the physical injuries which gave rise to the original workers’ compensation claim [and suit was not barred by OCGA § 34-9-11].” Id. at 255. See also Boulware v. Quicktrip Corp., 226 Ga. App. 399 (486 SE2d 662) (1997).

UAP and Register rely upon Southwire Co. v. Benefield, 184 Ga. App. 418 (361 SE2d 525) (1987), which held that “when an employee’s injuries are compensable under the Act, he is absolutely barred from pursuing a common law tort action to recover for such injuries, even if they resulted from intentional misconduct on the part of the employer. [Cits.]” Id. at 419. The misconduct alleged there was a conspiracy to commit fraud, deceit, and medical malpractice by withholding knowledge that the employee had been exposed to lead poisoning in the workplace.

We need not resolve the conundrum posed by these arguably conflicting holdings, however, because the only alleged fraud put forth by appellants is that committed by Register, a co-employee of LeBlanc. In this situation, as found by Judge Blackburn, author of Griggs, supra, in Wall v. Phillips, 210 Ga. App. 490 (436 SE2d 517) (1993), “[u]nder OCGA § 34-9-11 (a), ‘the Georgia Workers’ Compensation Act is now the exclusive remedy for injuries sustained by an employee during the course of employment resulting from the negligence of a co-worker.’ [Cit.] This bar also applies to intentional torts committed by one worker against a co-worker, unless the tortious act was committed for personal reasons unrelated to the conduct of the employer’s business. Murphy v. ARA Svcs., 164 Ga. App. 859 (298 SE2d 528) (1982).” (Emphasis supplied.) Wall, supra at 491.

Decided July 14, 1997

Reconsideration denied July 31, 1997

Stephen L. Ivie, John M. Brown, for appellants.

King & Spalding, J. Kevin Buster, Carmen R. Toledo, Gardner, Willis, Sweat & Goldsmith, Donald A. Sweat, Farmer, Farmer, Malone & Sherrer, R. Martin Adams, Charles M. Goetz, Jr., for appellees.

Here, there has been no showing made of any such personal animosity between Register and LeBlanc and Register and UAP were entitled to summary judgment. Zaytzeff v. Safety-Kleen Corp., 222 Ga. App. 48, 49 (2) (473 SE2d 565) (1996); Baldwin v. Roberts, 212 Ga. App. 546 (1) (442 SE2d 272) (1994); see Johnson v. Hames Contracting, 208 Ga. App. 664, 667 (4) (431 SE2d 455) (1993).

Judgment affirmed.

Birdsong, P. J., Beasley, Smith, Ruffin and Eldridge, JJ, concur. McMurray, P. J., dissents.

McMurray, Presiding Judge,

dissenting.

The fraud and intentional infliction of emotional distress alleged by plaintiffs was not an accident arising out of and in the course of employment. OCGA § 34-9-1 (4). Instead, plaintiffs rely upon the intentional misconduct of defendant Register subsequent to the physical injuries upon which any workers’ compensation claim is predicated. Therefore, I would hold that this lawsuit is not barred by OCGA § 34-9-11. In my view, the controlling analysis is that set forth in Griggs v. All-Steel Buildings, 209 Ga. App. 253 (433 SE2d 89). The reliance of the majority upon Wall v. Phillips, 210 Ga. App. 490 (436 SE2d 517) is misplaced since that case involves a suit based on an injury compensable under the Georgia Workers’ Compensation Act. The injuries which plaintiffs allege in the present case were inflicted upon Rusty LeBlanc while he lay in a hospital bed, bear no causal connection to the conditions under which his work was performed, and are not compensable under the Act. Plaintiffs having presented evidence of fraud, reliance, and resulting injuries, there are genuine issues of material fact requiring jury resolution. Therefore, I respectfully dissent.

       Canaan Industries and Dowelanco, a general partnership, the manufacturer and seller, respectively, of chemicals to UAP are also defendants below and the claims against them remain pending there.

       This is the same Phillips to whom LeBlanc’s widow was married after his death.


author: Smith, Judge.

text:
    A97A0818.
    JACKSON v. THE STATE.
    (490 SE2d 430)
   Smith, Judge.

Anthony Otto Jackson was convicted by a jury on August 6, 1996, of armed robbery, false imprisonment, and burglary. He was sentenced to serve a term of life plus 20 years. He was represented at trial by retained counsel. No motion for new trial or notice of appeal was filed within the time authorized by law.

On September 24, 1996, however, Jackson filed in the trial court a pro se motion in forma pauperis for production of documents and records pursuant to provisions of OCGA § 9-11-34 (1) (b), seeking the transcript of his trial and other items. Citing OCGA § 9-15-2 (d), the trial court denied that motion, finding that Jackson had “failed to make an appropriate showing of necessity or justification” and that the motion showed “on its face such a complete absence of any justiciable issue of law or fact that it cannot be reasonably believed that the court could grant any relief.”

After sending a long letter to the Council of Superior Court Judges, Jackson again filed in the trial court a motion for the production of documents, including the trial transcript, claiming he was precluded from appealing his conviction because he had no access to these documents. The trial court again denied Jackson’s motion, noting that “some of the requested documents were furnished to Petitioner’s employed counsel . . . prior to and during trial, and it further appearing that there are no pending proceedings relative to this matter.”

Jackson brings this appeal from the trial court’s denial of his motion. He contends that his retained counsel “abandoned” him and that he needs the documents requested to perfect an appeal, to which he is entitled as a matter of right.

Because a motion for production of documents pursuant to the civil discovery statute, OCGA § 9-11-34, is not a proper method of obtaining the documents Jackson claims he needs, we affirm the trial court’s denial of his motion. This is not a civil matter, and nothing is pending in the trial court. “After the time for appeal has expired there is no due process or equal protection right to a free copy of one’s court records absent a showing of necessity or justification.” (Citations and punctuation omitted.) McDowell v. Balkcom, 246 Ga. 611 (272 SE2d 280) (1980). If Jackson is now to obtain direct review of those issues that could and should have been raised in a timely appeal, he must first obtain a proper written order from the trial court allowing him to file an out-of-time appeal. See Bohannon v. State, 203 Ga. App. 783, 784 (417 SE2d 679) (1992). The trial court must then determine who bears the ultimate responsibility for failure to file a timely appeal. Cannon v. State, 175 Ga. App. 741, 742 (334 SE2d 342) (1985). If the trial court determines that responsibility lies with Jackson himself, the motion will be denied. If the trial court agrees with Jackson that his attorney “abandoned” him, the motion should be granted.

Decided July 14, 1997

Reconsideration denied July 31, 1997.

Anthony O. Jackson, pro se.

Michael J. Bowers, Attorney General, for appellee.

Judgment affirmed.

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


author: McMurray, Presiding Judge.

text:
    A97A0821.
    GOLD KIST, INC. v. WILSON et al.
    (490 SE2d 466)
   McMurray, Presiding Judge.

This is the third appearance of this case before this Court. Defendant Gold Kist, Inc. appeals once more following the entry of findings of facts and conclusions of law as directed in Gold Kist v. Wilson, 220 Ga. App. 426, 428 (1) (469 SE2d 504). See also Gold Kist v. Wilson, 213 Ga. App. 154 (444 SE2d 338). The 15 plaintiffs are farmers who were members of the Gold Kist cooperative, each of whom built or modernized facilities to produce either eggs or pullets to be marketed by defendant. This lawsuit resulted after Gold Kist sold its egg processing facility which served the plaintiffs and assigned their production contracts to the purchaser. An overview of plaintiffs’ claims and the controverted issues may be obtained by reviewing the previous opinions. Held:

1. While we are all aware of the maxim that the cardinal rule of contract construction is to ascertain the intention of the parties, contract construction has been described as a three-step process. The final part of this process is to submit to the jury any ambiguity in the contract which cannot be negated by the trial court’s application of the statutory rules of construction. Richard Haney Ford, Inc. v. Ford Dealer Computer Svcs., 218 Ga. App. 315, 316 (1) (b) (461 SE2d 282); Duffett v. E & W Properties, 208 Ga. App. 484, 486 (2) (430 SE2d 858). In the first appeal, this Court determined that the sales and production agreements between the parties were “internally ambiguous and . . . also ambiguous when read in conjunction with the Gold Kist membership agreement and Gold Kist’s by-laws.” Gold Kist v. Wilson, 213 Ga. App. 154, 155 (1), supra. This Court concluded that these and other ambiguities could not be resolved without submission to the factfinder and overturned a grant of summary judgment in favor of plaintiffs while approving the denial of summary judgment to Gold Kist. Id. at 156 (1), (2).

Upon the trial of the case, the trial judge served as the trier of fact. The trial judge’s findings of fact will not be disturbed on appeal as long as there is any evidence to support those findings. This Court is not authorized to substitute its judgment for the judgment of the trial court unless the record discloses absolutely no evidence in support of the finding by the trial court. Macon-Bibb County Indus. Auth. v. Central of Ga. R. Co., 266 Ga. 281, 282 (1) (466 SE2d 855); Wilkins v. Wilkins, 234 Ga. 404, 405 (216 SE2d 302).

This does appear to be a case in which we are unable to discover any evidence in the record authorizing the findings of the trial court on two of the important issues concerning the financial arrangements between Gold Kist and the plaintiffs. The first of these deals with the so-called profits from the sale of the eggs and pullets produced by plaintiffs. The trial court found that Gold Kist was not entitled to withhold any of the money received for the sale of eggs, pullets, or spent hens other than a deduction for certain expendable items provided by Gold Kist including feed, vaccines, medicine, disinfectant, and supplies. The trial court’s formula also permitted Gold Kist to deduct for the day-old chicks provided to pullet producers and for pullets provided to egg producers.

The trial court’s accounting is defective for a number of reasons. First, the trial court has not correctly calculated the profits to Gold East since its formula fails to reflect the cash payments made by Gold Kist to the plaintiffs. This includes, for example, the amount Gold Kist paid the plaintiffs on a periodic basis prior to a flock becoming productive and the payments made to the egg growers for each dozen eggs produced.

Nonetheless, putting aside these accounting problems, when there was a profit to the egg division as calculated by Gold Kist, it was proportionately assigned to each plaintiff’s equity account. A portion of that sum was paid out to each plaintiff and the remainder retained as “notified equity” assigned proportionately to each plaintiff or other farmer member of the cooperative.

The trial court found that Gold Kist is entitled to hold in the equity accounts only the sums it has earned as its profits and is not entitled to withhold any money received for the sale of eggs, pullets or spent hens above the allowable deductions noted above. The trial court’s view leaves unanswered the obvious question of where and how Gold Kist will make a profit or from what source it will acquire the funds to conduct operations under this formula. Plaintiffs’ own expert on cooperatives testified that the ability to retain profits was necessary for a cooperative to survive and that he knew of no cooperative which did not.

The plaintiffs argue that the notified equity or profits of Gold Kist were to be generated by sales of feed, vaccines, medicine, disinfectant, and other supplies provided to the plaintiffs. Yet, as plaintiffs’ argument acknowledges, Gold Kist was contractually bound to provide these items at a reasonable price. This theory is completely unsupported by any evidence in the record and presented a further question as to whether any profits on the sales of such supplies at reasonable prices would reasonably be anticipated to provide the funding for operation of the egg division of Gold Kist. The uncontroverted testimony is that no significant profits were generated by the sale of these supplies to farmers such as plaintiffs.

The practice at Gold Kist was to retain the notified equity for 20 years. The redemption of notified equity at the end of that period of time is referred to as the “revolving” of the notified equity, the term “revolving” reflecting that the payments when made related to the amount retained in a particular prior year. Provision was made under this practice to permit farmers withdrawing from the cooperative to immediately receive a disbursement of their notified equity in which case the amount of the payment was determined by discounting the amount of the notified equity to its present value. These sums were received by plaintiffs, and the matter being contested with regard to the equity accounts is the difference between the face amounts of the notified equity and the discounted present value of that amount.

The fatal flaw in the trial court’s finding, that plaintiffs were entitled to all of the profits from Gold Kist’s sale of the eggs and that Gold Kist should have paid to plaintiffs the full undiscounted amount of notified equity, lies in the fact that this position is contradicted by the uncontroverted evidence presented at trial including the testimony of plaintiffs, who one after one, testified that they understood that they would not be paid all of the profits from the egg sales, and that the portion of the profits not distributed would be retained in the notified equity accounts, that the equity accounts would be held for a lengthy period by Gold Kist, and that early withdrawals from the equity account would be discounted.

Gold Kist did not sell pullets. The pullets produced by a number of the plaintiffs were simply delivered to the farms of the egg producers. There is no established market for the sale of pullets. The trial court in effect created a fictional sale of the pullets and calculated the profits thereof in a manner comparable to its calculation of the profit on egg sales with the exception that in this instance the trial court allowed Gold Kist a deduction for the cash payments made to the pullet producers. Nonetheless, the determination of profits due the pullet producers is subject to the same criticisms as that related to the egg producers. These plaintiffs also expected the retention of profits in the notified equity accounts.

Next, we reach the trial court’s conclusion that even if Gold Kist were entitled to withhold funds in the equity accounts, it cannot terminate its relationship with the plaintiffs and retain the equity. The contested point is whether plaintiffs are entitled to receive the face value of these accounts or the value as discounted to present value. The trial court determined that plaintiffs are entitled to face value and stated two theories in support of this proposition. One of these theories is that there has in effect been a dissolution of Gold Kist in relation to these plaintiffs. The by-laws of Gold Kist provide that equity be distributed at face value in the event of a dissolution. However, this provision is clearly inapplicable since Gold Kist has not been dissolved and there are other provisions of the by-laws which govern termination of membership and provide for the payment to the former members of the discounted present value of their equity accounts.

The trial court also stated a theory based on the supposition that the equity funds were advanced to be used for plaintiffs’ benefit in providing capital for the egg operation, that the purpose for which the funds were advanced had ended, and that the plaintiffs who advanced the money are entitled to its return. See Atlanta Motorcycle Sales v. Fulton Nat. Bank, 147 Ga. App. 297 (248 SE2d 558); Fed. Employees Credit Union v. Capital Auto. Co., 124 Ga. App. 144 (183 SE2d 39); and Brooks v. Holman, 121 Ga. App. 720 (175 SE2d 131). However, this theory is inconsistent with the contingent nature of plaintiffs’ interest in the equity accounts. “Redemption of patronage allocations is a matter within the discretion of the directors of the cooperative. It is well established that ‘equity credits allocated to a patron on the books of a co-operative do not reflect an indebtedness which is presently due and payable by the co-operative to such patron. Such equity credits represent patronage dividends which the board of directors of a co-operative, acting under statutory authority so to do, has elected to allocate to its patrons, not in cash or other medium of payment which would immediately take such funds out of the working capital of the co-operative, but in such manner as to provide or retain capital for the co-operative and at the same time reflect the ownership interest of the patron in such retained capital. Equity credits are not an indebtedness of a co-operative which is presently due and payable to the members, but represent an interest which will be paid to them at some unspecified later date to be determined by the board of directors. . . .” Howard v. Eatonton Co-Operative Feed Co., 226 Ga. 788, 791 (2) (177 SE2d 658).

We conclude that the trial court erred in concluding that plaintiffs were entitled to all of the profits from Gold Kist’s sale of eggs and pullets. We also conclude that the trial court erred in concluding that Gold Kist should have paid the full face amount of notified equity to plaintiffs. Neither conclusion is authorized by the evidence presented at trial and to the extent that the judgment of the trial court is predicated on these erroneous conclusions it must be reversed.

2. The trial court did not err in concluding that the production contracts between Gold Kist and the plaintiffs were unassignable personal services contracts. In Gold Kist v. Wilson, 213 Ga. App. 154, 156 (2), supra, this Court recognized that “a confidential relationship plainly existed between the parties to this litigation. . . .” Contract rights involving a relation of personal confidence between the parties cannot be transferred by one of the parties to the contract without the consent of the other. Decatur North Assoc., Ltd. v. Builders Glass, 180 Ga. App. 862, 865 (350 SE2d 795); Cowart v. Singletary, 140 Ga. 435, 440 (5), 446 (79 SE 196). Phrases in the production contracts which contemplated an assignment thereof did not amount to a consent to an assignment of those contracts by Gold Kist.

3. The trial court erred in awarding damages on the individual claim of James Crews. This plaintiff entered into a production contract with Gold Kist shortly before its sale of the egg processing facility. Under the contract, Gold Kist was to deliver 125,000 pullets at an approximate age of 18 weeks. In fact Gold Kist provided only 6,000 pullets while an additional 120,000 molted chickens were supplied by the purchaser of the processing plant. The gist of this claim is that the young pullets called for in the contract would have remained productive for a greater length of time because they had the potential for a second egg laying cycle if the flock was molted. However, because the production contract granted Gold Kist the sole option to molt the birds, this plaintiff had no contractual right to keep the flock beyond the period of the initisll egg laying cycle. Indeed, the 6,000 pullets which were provided by Gold Kist were removed after the initial laying cycle.

Plaintiffs’ only response to this enumeration of error is to rely upon the law of the case rule, OCGA § 9-11-60 (h), and the opinion in Gold Kist v. Wilson, 213 Ga. App. 154, supra. However, that earlier opinion does not state a holding that a jury question is presented as to whether Gold Kist breached its contract with James Crews.

4. Next, Gold Kist contends that the trial court erred in awarding contract damages on Neil Hampton’s and H. J. Murray’s individual tort claims based on theories of fraud or negligent advice. Gold Kist argues that the trial court erred by allowing plaintiffs to recover benefit of the bargain damages under a tort cause of action. Sofet v. Roberts, 185 Ga. App. 451 (364 SE2d 595); Chrysler Corp. v. Taylor, 141 Ga. App. 671 (234 SE2d 123). The line of cases cited by Gold Kist are related to the “economic loss rule” which prevents recovery in tort when a defective product has resulted in a loss. Bates & Assoc. v. Romei, 207 Ga. App. 81, 83 (4) (426 SE2d 919). Unlike the cases relied upon by Gold Kist, these claims do not arise from the breach of a duty growing out of a contractual relationship. We find no authority for the application of the principle argued by Gold East to a claim which is entirely independent of any contractual duty. Additionally, the trial court’s order does not reveal the measure of damages used in reaching the judgment on these claims, and we reject the supposition that it may be inferred from the evidence which is recited as having been considered by the trial court in reaching the judgment. This enumeration is without merit.

Decided July 16, 1997

Reconsideration denied July 31, 1997

Alston & Bird, Jay D. Bennett, Richard R. Hays, Kenneth D. Steele, for appellant.

Gibson & Spivey, Douglas L. Gibson, for appellees.

5. The trial court did not err in denying Gold Kist’s motion for involuntary dismissal. The decision in Gold Kist v. Wilson, 213 Ga. App. 154, supra, determined that there were material issues of fact requiring resolution by a trier of fact. There is no suggestion of any significant change in the evidentiary posture of the case since that decision. Therefore, the former ruling of this Court remains binding as the law of the case. OCGA § 9-11-60 (h); McLean v. Continental Wingate Co., 222 Ga. App. 805, 807 (1) (476 SE2d 83).

Judgment affirmed in part, reversed in part, and remanded with direction to enter final judgment consistent with this opinion.

Smith, J., concurs. Beasley, J., concurs in the judgment only.


author: Beasley, Judge.

text:
    A97A0862, A97A1109.
    LOGAN v. ST. JOSEPH HOSPITAL et al.; and vice versa.
    (490 SE2d 483)
   Beasley, Judge.

In Case No. A97A0862, Priscilla Logan appeals from the trial court’s order reversing a State Board of Workers’ Compensation’s decision that she was entitled to psychological treatment as workers’ compensation. In Case No. A97A1109, St. Joseph Hospital and its agent Alexsis, Inc. (collectively the “hospital”) appeal the trial court’s denial of their motion to dismiss Logan’s appeal. Refusal to dismiss the appeal was appropriate, and Logan’s appeal has merit.

Case No. A97A1109

1. The employer hospital’s ground for dismissal of its employee Logan’s appeal was that Logan delayed 91 days in paying the costs for the record. Based on the evidence and arguments received at a hearing, the trial court found that Logan was likely to be destitute and living with various family members and therefore difficult to contact despite her counsel’s repeated efforts. Her counsel was required to leave messages with various relatives in order to communicate with her. The court also accepted counsel’s contention that Logan suffered from a psychological condition (evidence of which is contained in the testimony to the ALJ set forth below) that precluded her from understanding the nature of the proceedings and that in fact had led her to believe that her appeal had already been won. These circumstances led the trial court to find that the delay in paying the costs was not unreasonable nor inexcusable. On appeal, the hospital claims the trial court abused its discretion in making these findings.

OCGA § 5-6-48 (c) provides that “the trial court may order the appeal dismissed where there has been an unreasonable delay in the transmission of the record to the appellate court, and it is seen that the delay was inexcusable and was caused by the failure of a party to pay costs in the trial court or file an affidavit of indigence.” “ ‘ “The cause for delay in the processing of the appeal is a fact issue for determination in the trial court,” and in making that determination the trial court exercises a broad legal discretion which is subject to appellate scrutiny only for abuse. [Cits.]’ ” Miller v. Ingles Market, 214 Ga. App. 817, 818 (449 SE2d 166) (1994).

The hospital disputes the findings of the trial court and argues that “Logan presented no response or affidavit in opposition to [the hospital’s] motion [and] [t]here has been no evidence proffered by appellee Logan to explain the delay in payment of costs.” The record before the ALJ contains extensive testimony as to Logan’s psychological condition, and the court heard other evidence and arguments of Logan at a hearing which was not transcribed. “ Tn the absence of a transcript, we must assume that the trial court’s findings were supported by the evidence.’ [Cit.]” Intl. Indem. Co. v. Saia Motor Freight Line, 223 Ga. App. 544, 547 (3) (478 SE2d 776) (1996). Because the burden is on the hospital to show error from the record, the hospital’s argument fails. See Studard v. Dept. of Transp., 219 Ga. App. 643, 644 (1) (466 SE2d 236) (1995).

Leonard v. Ognio, 201 Ga. App. 260 (410 SE2d 814) (1991), which reversed the trial court for abuse of discretion and dismissed the appeal, is distinguishable. Leonard cited the rule that a delay in paying costs in excess of 30 days is prima facie unreasonable and inexcusable. The 43-day delay in that case required a dismissal because of “the absence of any evidence as to why the delay occurred.” Id. at 262. The only evidence submitted by the appellants in opposition to the motion to dismiss the appeal in Leonard was the affidavit of their attorney that he had forwarded the bill of costs to appellants with a request that a check be forwarded to him, and the affidavit of one appellant stating he had not received the letter and bill. Noting that appellants’ counsel had knowledge of the circumstances necessary to prevent an unreasonable and inexcusable delay, counsel’s single failed attempt to communicate with his clients was insufficient to explain the delay.

Priscilla Logan’s case is substantially different in at least four respects. First, the trial court conducted an evidentiary hearing to determine whether Logan could rebut the prima facie presumption of unreasonableness and inexcusability. As explained earlier, there is no transcript, so we must assume the trial court’s findings of reasonableness and excusability were supported by the evidence. Intl. Indem. Co., supra; Getz Exterminators v. Walsh, 124 Ga. App. 402 (184 SE2d 358) (1971) (absent a transcript of hearing, appellate court “cannot say that the trial judge abused his wide discretion” in finding that failure to respond timely to discovery was due to providential cause). In Leonard the trial court considered only two written affidavits. “ Tf a motion is decided on the basis of the written submissions, the reviewing court is in an equal position with the trial court to determine the facts and therefore examines the facts under a non-deferential standard.’ [Cit.]” Cobb County v. Jones Group P.L.C., 218 Ga. App. 149, 150 (1) (460 SE2d 516) (1995). Thus, in Leonard, we considered the affidavits anew in determining reasonableness and excuse.

Second, Logan’s condition, which included both financial and mental disability, helped explain counsel’s difficulty in contacting her and in accomplishing in a prompt fashion the payment of record costs. There were no such disabilities in Leonard. Third, counsel in Leonard sent a single letter to the clients with no follow-up. Fourth, there were no circumstances in Leonard regarding the appellants’ personal condition and circumstances which may have confused them as to the status of the appeal.

In view of the evidence underlying the trial court’s fact findings, the trial court did not err as a matter of law in finding a sufficient basis for overcoming the rebuttable presumption of unreasonableness and inexcusability where more than 30 days had elapsed before payment of costs. It was not an abuse of discretion to weigh the equities of dismissing versus proceeding in light of the facts and to give justice larger place. See ITT Terryphone Corp. v. Modems Plus, 171 Ga. App. 710, 711 (1) (320 SE2d 784) (1984); Compher v. Ga. Waste Systems, 155 Ga. App. 819, 820-821 (1) (273 SE2d 200) (1980).

Case No. A97A0862

2. Logan enumerates as error the superior court’s reversal of the Board’s fact findings in her favor. She argues that had the superior court applied the “any evidence” standard, it would have affirmed the Board’s ruling. OCGA § 34-9-105 (c) (4).

In May 1990, Logan, an employee of the hospital, injured her neck while lifting a trash bag. Dr. Reynolds, a neurosurgeon, has treated her since that time for a cervical or muscle strain. The parties stipulated that the injury was compensable under workers’ compensation and the hospital has paid and continues to pay for the medical bills of Dr. Reynolds. In 1992 Logan’s income benefits ceased based on a finding of the ALJ and of the Board that she could return to work.

In March 1992 Dr. Adams, a licensed psychologist, evaluated Logan in connection with a disability determination by the Social Security Administration. Dr. Adams diagnosed Logan as suffering from chronic pain syndrome and major or severe depression. He recommended that she receive psychotherapeutic treatment, to which Dr. Reynolds later agreed. Because Dr. Reynolds believed there was no biological basis for Logan’s continued pain from the neck injury, he thought that Logan was suffering from a personality disorder which he termed a hysterical reaction to the neck injury and which he believed could be treated by Dr. Adams. Accordingly, Dr. Reynolds referred Logan to Dr. Adams for psychological evaluation and treatment. The hospital refused to pay Dr. Adams’ treatment. Six months later Dr. Reynolds renewed his request that Dr. Adams treat Logan “with appropriate psychotherapy modalities in an effort to combat her anxiety/depressive reactions which are associated with chronic neck pain.” When the hospital again refused to pay, Logan obtained a hearing before an ALJ, who heard Logan’s testimony live and received into evidence the depositions of Drs. Reynolds and Adams.

In July 1994, the ALJ denied Logan’s request for treatment, holding that “the weight of the evidence is not sufficient to establish that any treatment to be provided by Dr. John Adams would be related to the employee’s prior job injury, nor would it be reasonable and necessary to effect a cure, give relief and return this employee to suitable employment.” He found that “Dr. Reynolds has been unable to find anything objective to confirm the existence of constant subjective pain; that Dr. Reynolds feels that she should return to some suitable work which she has not; that other doctors consulted by Dr. Reynolds have also been unable to find anything physical that would confirm the employee’s complaints of pain; that the employee saw Dr. Adams on four occasions earlier and testified that he did not help her deal with her pain and in February 1994 she did not think that she needed to return to see Dr. Adams; that Dr. Adams has no definable plan of treatment for the employee and is not sure of her medical diagnosis; that Dr. Adams did not consider the MMPI performed at [the Medical College of Georgia] which shows an exaggeration of symptoms by the employee.”

Logan appealed to the appellate division of the State Board of Workers’ Compensation, which considered the evidence de novo. OCGA § 34-9-103 (a) (former version). In December 1994 the appellate division issued a decision reversing the decision of the ALJ and finding that based on Dr. Reynolds’ testimony, Logan “has a personality disorder which causes her pain to be prolonged and makes her feel more pain over longer periods of time than the average person,” and that she would benefit from treatment from Dr. Adams. The appellate division found further that Dr. Adams had not yet treated Logan but had simply evaluated her one time for social security purposes, and that treatment by Dr. Adams “is a sequela of her original injury.”

The hospital appealed to the superior court, which in February 1995 remanded the case to the appellate division to make specific findings for its conclusion that the treatment was related to the original injury. OCGA § 34-9-105 (d). The following January, the appellate division, reciting the history of the case and noting that in July 1994 it had conducted a de novo review, applied the new standard of review mandated by OCGA § 34-9-103 (a) as amended effective July 1, 1994 (see Ga. L. 1994, p. 887, § 8) and found that “the findings of fact and conclusions of law of [the ALJ] are not supported by a preponderance of the competent and credible evidence contained in the record.”

Adopting anew the findings set forth in its December 1994 order, the appellate division noted several errors in the ALJ’s order, including his conclusion that Dr. Adams had treated Logan (in fact he had only evaluated, not treated, her one time); his reasoning that treatment was not warranted because Dr. Adams did not have a treatment plan (Dr. Adams had no treatment plan because he did not yet have permission to treat her); and his reliance on Dr. Reynolds’ testimony that it was inconceivable that Logan four years later still suffered physical effects from the injury (Dr. Reynolds opined that Logan’s pain was prolonged by her personality disorder). Citing credibility problems in Dr. Reynolds’ testimony (including his misunderstanding that Logan had received psychological treatment and not benefited therefrom) and his repeated referral of Logan to Dr. Adams for treatment of her chronic pain disorder, the appellate division found that although Logan’s work injury did not cause her mental disability, “it is part of the reason for its continuation.” It then concluded that, because “the employer takes the employee as it finds her,” the employee’s continued problems with severe pain are compensable.

On appeal, the superior court reversed the appellate division, holding that it had improperly used a de novo standard of review in its January 1996 decision. Finding that the ALJ’s original findings were supported by a preponderance of the competent and credible evidence, the court reinstated the ALJ’s decision and denied Logan’s claim for psychological treatment. Discretionary appeal was granted by this Court.

Prior to July 1, 1994, OCGA § 34-9-103 had authorized the Board to conduct a de novo review and even to take additional evidence if desired. As amended, the statute now reads that “the appellate division [of the Board] shall review the evidence and shall then make an award with findings of fact and conclusions of law. . . . The findings of fact made by the administrative law judge in the trial division shall be accepted by the appellate division where such findings are supported by a preponderance of competent and credible evidence contained within the records.” Ga. L. 1994, p. 887, § 8. As judicially construed, the statute means that “the appellate division must weigh the evidence and assess the credibility of witnesses and if it determines that the award of the ALJ is supported by a preponderance of admissible evidence, it will be accepted. But, if after assessing the evidence of record, the appellate division concludes that the award does not meet the statutes’ evidentiary standards, the appellate division may substitute its own alternative findings for those of the ALJ, and enter an award accordingly. [Cits.]” Bankhead Enterprises v. Beavers, 267 Ga. 506, 507 (480 SE2d 840) (1997). See AT&T v. Cotten, 222 Ga. App. 261, 263 (474 SE2d 102) (1996); Bennett-Murray, Inc. v. Barnes, 222 Ga. App. 137, 138-139 (1) (473 SE2d 166) (1996). Evaluating the competency and credibility of the evidence, the appellate division performs a “hybrid review function” and decides whether the greater weight lies with the ALJ’s findings. T. V. Minority v. Chaffins, 223 Ga. App. 495, 498 (479 SE2d 373) (1996) (Beasley, C. J, concurring specially). If so, it must accept them; if not, it can substitute its own findings. Id. at 497.

Here the appellate division, noting the incredulity and inconsistency of the evidence and reasoning relied upon by the ALJ, expressly found in its January 1996 decision that the ALJ’s findings of fact and conclusions of law were “not supported by a preponderance of the competent and credible evidence.” Based on a reasoned analysis of the evidence, the appellate division made its own findings and concluded that the proposed treatment related to the original compensable injury. The reference to “de novo review” in the first paragraph of its decision was nothing more than a historical note that in its December 1994 decision it had erroneously used that standard. The superior court erred in holding that the appellate division followed the wrong standard of review.

3. The superior court also erred in failing to apply the “any evidence” standard to its review of the appellate division’s decision. OCGA § 34-9-105 (c) (4) allows the trial court to set aside the appellate division’s findings of fact only if “[tjhere is not sufficient competent evidence in the record” to support those findings. See Bankhead Enterprises, supra at 508; Bennett-Murray, Inc. v. Barnes, supra at 139.

“ ‘ “In reviewing a workers’ compensation award, both this court and the superior court must construe the evidence in the light most favorable to the party prevailing before the appellate division. It is axiomatic that the findings of the State Board of Workers’ Compensation, when supported by any evidence, are conclusive and binding, and that neither the superior court nor this court has any authority to substitute itself as a fact finding body in lieu of the Board.” . . . (Cits.)’ [Cit.]” Atlas Automotive v. Wilson, 225 Ga. App. 631, 633 (484 SE2d 669) (1997). See also Southwire Co. v. George, 266 Ga. 739, 742 (470 SE2d 865) (1996); Waffle House v. Padgett, 225 Ga. App. 144, 146 (483 SE2d 131) (1997). In reviewing the appellate division’s decision, the superior court must follow the “any evidence” standard even when the appellate division has found that the ALJ’s findings were not supported by a preponderance of the evidence and has substituted its own findings. See Bankhead Enterprises, supra; Bennett-Murray, Inc., supra; Shuman v. Engineered Fabrics, 220 Ga. App. 636, 637 (1) (469 SE2d 847) (1996); Sutton v. B&L Express, 215 Ga. App. 394, 395 (1) (450 SE2d 859) (1994).

There is ample evidence to support the appellate division’s finding that the ALJ’s findings on causation and need for treatment were not supported by a preponderance of the evidence. Logan herself testified that her prolonged pain was related to her neck injury and that she felt Dr. Adams could help her. See Metro Interiors v. Cox, 218 Ga. App. 396, 398 (461 SE2d 570) (1995) (“appellate division [may] accept the testimony of the claimant over that of a medical expert”); Bennett-Murray, Inc., supra at 138-139 (appellate division may credit one witness over another contrary to findings of ALJ). Dr. Adams testified similarly. Dr. Reynolds had continuously treated Logan since the injury originally occurred for the pain associated therewith, and had seen no improvement over the years. Dr. Reynolds told Logan her pain related back to the original injury and opined that Logan’s personality disorder, which may have pre-existed the injury, was prolonging the pain she continued to experience as a result of the injury and that she would benefit from treatment by Dr. Adams. Dr. Adams testified similarly.

Assuming Logan’s present pain is purely a psychic condition, it is covered by workers’ compensation. “[I]t has long been the rule in this state that a psychological injury or disease is compensable if it arises ‘ “naturally and unavoidably” . . . from some discernible physical occurrence.’ [Cits.]” Southwire Co., supra at 741. See Atlas Automotive, supra (major depressive disorder compensable); Hanson Buick v. Chatham, 163 Ga. App. 127 (292 SE2d 428) (1982) (psychic injuries arising out of physical injury compensable); Howard v. Superior Contractors, 180 Ga. App. 68, 69-70 (1) (348 SE2d 563) (1986) (post-traumatic stress syndrome compensable). Although the psychic injury must relate back to the physical injury, “[t]he physical injury need not be the precipitating cause of the psychic trauma; it is compensable if the physical injury contributes to the continuation of the psychic trauma.” Southwire Co., supra at 741-742. Compare Williams v. ARA Environmental Svcs., 175 Ga. App. 661 (334 SE2d 192) (1985) (psychic trauma stimulated by psychic stimulus not compensable). Even though the employee’s psychic condition pre-existed the physical injury, “ ‘there is a presumption that an employer takes an employee as he finds him,’ that is, with his existing health conditions.” A&P Transp. v. Warren, 213 Ga. App. 60, 63 (443 SE2d 857) (1994). See Lumbermen’s Mut. Cas. Co. v. Griggs, 190 Ga. 277, 289 (9 SE2d 84) (1940); Colonial Stores v. Hambrick, 176 Ga. App. 544, 546 (3) (336 SE2d 617) (1985).

Atlas Automotive, supra, approximates the facts of this case. Months after the employee injured his lower back at work, the treating physician determined there was no physical basis for the employee’s continued pain and he referred the employee for psychiatric counseling. The employer refused to pay for the treatment. The employee saw a psychiatrist nevertheless, who diagnosed the employee as having a major depressive disorder and recommended counseling. The employer again refused to pay for counseling and also suspended the employee’s income benefits. We upheld the findings of the appellate division that the employee’s physical back injury contributed to the continuation of his psychological disorder of major depression and chronic pain, and that therefore income benefits and payment for psychiatric treatment were mandated. We also affirmed the superior court’s assessment of a $500 civil penalty against the employer for refusing to authorize psychiatric treatment.

Decided July 16, 1997

Reconsideration denied July 31, 1997.

Victor Hawk, for appellant.

Hull, Towill, Norman & Barrett, Neal W. Dickert, Floyd M. Taylor, Nancy S. Gentry, for appellees.

Under the “any evidence” standard, the superior court was bound to affirm the appellate division’s findings that Logan’s physical neck injury contributed to the continuation of her major depression and chronic pain syndrome and its conclusion that the hospital must pay for the requested psychological treatment. Our holding requires reversal of the judgment and remand for a new judgment consistent herewith. Logan’s second enumeration of error is moot.

Judgment affirmed in Case No. A97A1109. Judgment reversed in Case No. A97A0862.

McMurray, P. J, concurs. Smith, J., concurs in the judgment only.

       Even if the appellate division had claimed it was engaging in a de novo review in its January 1996 decision, this error may not have been fatal if all the appellate division did was substitute “its findings for those of the ALJ to the extent it determined that the ALJ’s findings were unsupported by credible evidence.” Harrell v. City of Albany Police Dept., 219 Ga. App. 810, 811-812 (1) (466 SE2d 682) (1996). But see AT&T v. Cotten, supra (case remanded where court could not discern standard used).

       The evidence also supported the other findings of the appellate division discrediting the ALJ’s findings. For example, the evidence showed that Dr. Adams has never treated Logan; Logan desired to be treated by Dr. Adams; Dr. Adams did consider the MMPI performed by the Medical College of Georgia; and Dr. Adams did not develop a treatment plan for Logan because he did not have authorization to treat her.

       The appellate division should give some level of “deference to the ALJ’s decision on credibility where such decision is based on seeing and hearing the witnesses. This-handicap must be taken into account as a significant factor when the board judges the credibility of competent evidence when performing its hybrid review function.” T. V. Minority v. Chaffins, supra (Beasley, C. J., concurring specially). Here the primary testimony on causation and need for treatment is found in Dr. Reynolds’ testimony, which the ALJ received by deposition.


author: Blackburn, Judge.

text:
    A97A0945.
    GIVENS v. THE STATE.
    (490 SE2d 530)
   Blackburn, Judge.

Izell Givens appeals his convictions of armed robbery and aggravated assault. On appeal, Givens asserts the trial court erred in denying his motion for directed verdict of acquittal, contending that the only evidence against him was the non-corroborated testimony of an indicted co-conspirator. As sufficient evidence of corroboration was introduced, we affirm Givens’ convictions.

“A directed verdict of acquittal is authorized only when there is no conflict in the evidence and the evidence and all reasonable deductions and inferences that can be drawn from it demand a verdict of acquittal. Pierce v. State, 209 Ga. App. 366, 368 (4) (433 SE2d 641) (1993). On appeal, this court does not reweigh the evidence but only determines its legal sufficiency. Lysfjord v. State, 208 Ga. App. 811 (1) (432 SE2d 247) (1993).” Davis v. State, 213 Ga. App. 212 (1) (444 SE2d 142) (1994).

At trial, co-defendant Richard Lee Roberts testified that Givens and another co-defendant, Terry Christopher, discussed robbing the victim. Givens stated that he would kill the victim in order to avoid identification. Thereafter, Givens left the trailer with a bar bell and a telephone cord. Roberts took the bar bell from Givens and approached the victim’s home. When the victim answered the door, Roberts hit him in the head with the bar bell. Givens searched through the victim’s house and took the victim’s gun. Roberts ran down the road and was later picked up by Givens and Christopher, who was driving the victim’s truck. The three then traveled to Texas in the victim’s truck.

“In Georgia, a defendant may not be convicted on the uncorroborated testimony of an accomplice. OCGA § 24-4-8. The corroboration must be independent of the accomplice’s testimony and it must connect the defendant to the crime or lead to the inference that he is guilty. However, the corroborating evidence need not of itself be sufficient to warrant a conviction of the crime charged. Slight evidence from an extraneous source identifying the accused as a participant in the criminal act is sufficient corroboration of the accomplice to support a verdict. The corroborating evidence may be circumstantial.” (Citations and punctuation omitted.) Clanton v. State, 208 Ga. App. 669, 670 (1) (a) (431 SE2d 453) (1993).

“[T]he sufficiency of corroborating evidence should be peculiarly a matter for the jury to determine.” (Punctuation omitted.) Harris v. State, 165 Ga. App. 186, 187 (299 SE2d 393) (1983). In the present case, Roberts’ testimony was corroborated by Ron Deavers’ testimony that he saw Givens standing by the victim’s truck around the time of the assault, and by Deputy Sheriff Michael Spears’ testimony that he arrested Givens in South Houston, Texas, in possession of the victim’s truck. Although Givens contends that Deavers’ testimony was impeached, such issue is for the jury’s determination. Furthermore, “[ejvery person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime.” OCGA § 16-2-20 (a).

We find that the evidence was sufficient to enable a rational trier of fact to find Givens guilty beyond a reasonable doubt of aggravated assault and robbery. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

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

Decided July 31, 1997.

Lawrence W. Daniel, for appellant.

Thomas J. Charron, District Attorney, Michael S. Moody, Debra H. Bernes, Nancy I. Jordan, Assistant District Attorneys, for appellee.