text:
    A95A1726.
    BROWN v. KINSER et al.
    (461 SE2d 564)
   Birdsong, Presiding Judge.

This is a discretionary appeal of the order of the superior court denying appellant/defendant Lawrence C. Brown’s motion for litigation costs and attorney fees.

This suit arises from a claim of malpractice. Appellees/plaintiffs, Larry and Barbara Kinser, entered into an agreement with defendant Oakbrook Properties, Inc., to purchase certain residential real estate. A month later, defendants Oakbrook and Stephen K. Hill executed a security deed conveying the real estate as security to Reliance Heating and Air Conditioning, Inc., as security for a $5,000 debt. This deed was filed on February 26, 1988, but was not indexed until several days after February 29, 1988. Appellees, the Kinsers, obtained the services of a mortgage lender, Commonwealth Mortgage, Inc., who retained appellant Brown’s firm, allegedly to represent its interests in the transfer of the property. Prior to closing on February 29, 1988, a representative of appellant Brown’s firm, acting under appellant Brown’s direction and supervision, searched the county deed records; no claims to title or exceptions to clear title were noted except as set forth in the title opinion. Title examination failed to reveal the security deed that was conveyed to Reliance. Appellant contends that title examination failed to reveal the security deed because it was not indexed until several days after closing, and that prior to indexing there exists no way for a title searcher to discover such an encumbrance. At closing, defendant Hill signed an owner’s affidavit certifying that there was no indebtedness against the property and executed a warranty deed conveying the real estate to appellees. During closing, an attorney of defendant law firm gave appellees a brochure concerning title insurance; appellees elected to purchase title insurance and were issued an owner’s policy on March 4, 1988. On March 6, 1992, appellees received a demand letter from the law firm representing Reliance; the letter notified appellees of Reliance’s $5,000 security interest and demanded immediate loan repayment. When appellees attempted to contact their title insurance company they found the company was no longer in existence. On March 12, 1993, appellees filed suit against defendants Oakbrook, Hill, and Brown, individually and d/b/a Donner, Brown & Katz law firm. The complaint avers, inter alia, that appellant/defendant Brown committed malpractice with respect to the title examination of appellees’ residence.

On April 14, 1993, appellant Brown sent appellees a frivolous litigation letter; notwithstanding this notice, appellees pursued their claim. Thereafter appellant Brown filed a motion for summary judgment; summary judgment was granted as to all claims asserted by appellees. Accordingly, judgment was entered in favor of appellant, and costs were cast against appellees. Appellant Brown then filed a motion for litigation costs and attorney fees, pursuant to OCGA § 9-15-14. The motion was denied.

Appellant filed an application for discretionary appeal. Application for discretionary appeal was granted “but only as to the limited issue whether the trial court erred in denying [appellant/defendant’s] motion for litigation costs and attorney fees because there existed a complete absence of any justiciable issue, within the meaning of OCGA § 9-15-14 (a), on the alleged grounds that the applicable statute of limitations had run without tolling as to plaintiffs’ claim.” Held:

1. OCGA § 9-15-14 (a) pertinently provides that “reasonable and necessary attorney’s fees and expenses of litigation shall be awarded to any party against whom another party has asserted a claim . . . with respect to which there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted claim.” An applicant is not entitled to attorney fees merely because summary judgment was granted in his favor; grant of summary judgment does not per force result in an award of attorney fees for the prevailing party. Hyre v. Denise, 214 Ga. App. 552, 557 (10) (b) (449 SE2d 120); compare Deljou v. Sharp Boyleston Mgmt. Co., 194 Ga. App. 505 (391 SE2d 27).

2. Appellant Brown specifically asserts that the trial court erred in denying his motion for attorney fees on the ground that there exists a complete absence of any justiciable issue because the statute of limitation had run without tolling. The standard for reviewing an OCGA § 9-15-14 (a) ruling is the any evidence standard. Hyre v. Denise, supra, citing C & S Trust Co. v. Trust Co. Bank, 262 Ga. 345 (417 SE2d 148). “ ‘(N)otwithstanding the “any evidence” standard of review . . . , when considering an appeal from an award of attorney fees made under OCGA § 9-15-14 (a), we must determine whether the claim asserted below either had some factual merit or presented a justiciable issue of law.’ [Cit.]” Moore v. Harris, 201 Ga. App. 248, 249 (1) (410 SE2d 804). This same principle should be applied when determining whether a trial court erred in denying a motion for litigation costs and attorney fees. Further, merely pursuing a course of litigation in good faith does not automatically insulate a plaintiff from a claim for litigation costs and attorney fees pursuant to OCGA § 9-15-14 (a). Id. at 250 (1).

Actions for legal malpractice averring negligence or unskillfulness are subject to the four-year statute of limitation in OCGA § 9-3-25, which commences to run from the date of the attorney’s alleged wrongful act of negligence or unskillfulness. Jones, Day, Reavis & Pogue v. American Envirecycle, 217 Ga. App. 80 (456 SE2d 264); Foster v. Cohen, 203 Ga. App. 434, 436 (1) (417 SE2d 61). Appellees assert, inter alia, that appellant Brown committed legal malpractice by concealing the existence of Reliance’s security interest and by issuing the title insurance policy thereby fraudulently representing that no such lien was attached to the property. Thus, the last wrongful act of negligence or unskillfulness, giving rise to the claim of legal malpractice, could have occurred no later than March 4, 1988, the date of issuance of the title insurance policy. Appellees filed their complaint on March 12, 1993, over five years from the date of appellant Brown’s last wrongful act of negligence or unskillfulness.

Appellees, citing OCGA § 9-3-26, concede that legal malpractice actions are subject to a four-year statute of limitation; however, they assert that the statute of limitation was tolled in this case by the actual fraud of appellant Brown (OCGA § 9-3-96), and accordingly, the statute of limitation did not commence to run until appellees discovered the fraud as a result of the notice letter, received on March 6, 1992, from the law firm representing Reliance.

In Breedlove v. Aiken, 85 Ga. App. 719, 720 (70 SE2d 85), a physician concealed from his patient that, in addition to performing an authorized operation, the physician also performed two other unauthorized operations upon the patient. In reversing the lower court’s holding that the cause of action was barred by the statute of limitation, this court held: “ ‘Concealment per se amounts to actual fraud where for any reason one party has a right to expect full communications of the facts from another.’ [Cit.] ‘If the defendant . . . shall have been debarred or deterred from his action, the period of limitation shall run only from the time of the discovery of the fraud.’ [Cit.] Where there is ... a confidential relationship between physician and patient, and where the physician in performing an authorized operation goes beyond the contract and performs another operation, and where the patient does not know that the physician exceeded the contract, the concealment of the facts constitutes actual fraud and tolls the statute of limitations. [Cit.] The statute does not begin to run until the discovery of the fraud. [Cits.]” Breedlove, supra at 720-721. Breedlove is factually distinguishable and therefore not controlling. In Breedlove, the evidence was compelling that the doctor was in fact aware of the unauthorized operations, and thus, the mere act of concealment gave rise to the commission of an actual fraud on his patient. In the case at bar, appellees concede they possess no evidence which would establish either that appellants were aware that a lien existed on the premises at the time of delivery of the title insurance policy or that they otherwise knowingly concealed the same. Tender of the title insurance policy did not constitute an act of actual fraud, as a matter of law, under the circumstances here attendant.

While in certain circumstances, the existence of a confidential relationship between the parties will lessen, if not negate, the necessity for a showing of actual fraud (Arnall &c. v. Health Svc. Centers, 197 Ga. App. 791, 793 (2) (399 SE2d 565)) even assuming arguendo a confidential relationship existed as to the title insurance transaction, this is not a case where the necessity for a showing of actual fraud is totally negated. While the law recognizes that “ ‘ “[w]here a person sustains towards (another) a relation of trust and confidence, his silence when he should speak, or his failure to disclose what he ought to disclose, is as much a fraud in law as an actual affirmative false representation” ’ ” (id.), the circumstances attendant the confidential relationship must still be such as to enable the fiduciary to comply with a duty to speak and disclose. Although required to act in good faith, a fiduciary is not an absolute insurer as to the outcome of every act he performs in his client’s behalf. We decline to conclude that under the attendant circumstances the necessity for showing actual fraud was totally negated merely by the alleged relationship of the parties.

OCGA § 9-3-96 provides: “If the defendant or those under whom he claims are guilty of a fraud by which the plaintiff has been debarred or deterred from bringing an action, the period of limitation shall run only from the time of the plaintiff’s discovery of the fraud.” It was held in Findley v. Davis, 202 Ga. App. 332, 335 (2) (a) (414 SE2d 317), rev’d on other grounds, Davis v. Findley, 262 Ga. 612 (422 SE2d 859), that “ ‘ “[t]he fraud which will relieve the bar of the statute of limitation must be of that character which involves moral turpitude, and must have the effect of debarring or deterring the plaintiff from his action.” ’ [Cit.] The only fraud that would toll the statute of limitation in the present action would be fraud actually preventing or deterring [appellees] from bringing suit for the [appellant’s] alleged breach of duty in [fraudulent concealment of the existence of the security deed].” Accord Hyman v. Jordan, 201 Ga. App. 852, 854 (2) (412 SE2d 615). We find no existence in the record of any evidence that would support such a finding. Moreover, neither the opinion expressed as to the title search nor the issuance of an owner’s policy of title insurance constituted an act of actual fraud. The issuance by appellant Brown of the owner’s title insurance policy would constitute, at most, an implied expression of confidence in the legal sufficiency of the prior title search conducted by his law firm. We hold that mere express or implied statements as to the legal sufficiency of any legal documents prepared by appellant Brown’s firm or issued by him “are not actionable as actual fraud nor designed to deter or debar [appellees] from bringing suit. Such expressions of opinion (as opposed to [known] obfuscating facts) are not sufficient to establish the fraud required to toll the statute of limitation pursuant to [OCGA § 9-3-96]. [Cits.] Fraud cannot consist of mere broken promises, unfilled predictions or erroneous conjecture as to future events.” Riddle v. Driebe, 153 Ga. App. 276, 281 (265 SE2d 92).

As the record establishes, there exists no evidence giving rise to factual merit in appellees’ claim that the statute of limitation was tolled due to fraud, and as there exists no justiciable issue of law as to such claim of tolling, we find that the trial court abused its discretion in denying appellant Brown’s motion for attorney fees.

Judgment reversed.

Johnson and Smith, JJ., concur.

Decided August 23, 1995.

Wilson, Strickland & Benson, Warner R. Wilson, Jr., Sara L. Doyle, for appellant.

Garner & Still, Dennis T. Still, for appellees.


source: Caselaw Access Project

author: Smith, Judge.

license: Public Domain

text:
    A95A1764.
    GEARIN v. STATE OF GEORGIA.
    (461 SE2d 562)
   Smith, Judge.

Stanley Gearin was arrested on December 7, 1994, on charges of violating the Georgia Controlled Substances Act, DUI, and carrying a concealed weapon. The truck he was driving when he was arrested was seized pursuant to OCGA § 16-13-49, and the State subsequently filed a complaint for forfeiture. Gearin answered the complaint and filed a motion to suppress evidence. After a hearing, the trial court entered orders granting the forfeiture and denying Gearin’s motion to suppress. Gearin appeals.

1. Gearin contends the forfeiture was improper because the search of his truck was illegal. We do not agree.

Construed to support the trial court’s judgment, the evidence presented at the hearing showed that while driving his truck in Lawrenceville at approximately 10:15 p.m., Gearin encountered a routine police roadblock. When Gearin rolled down his window, Lawrenceville police officer Timothy Roberts detected the odor of alcohol and observed an open container of alcohol in the console between the seats. He asked Gearin to pull over in order to administer field sobriety tests. Gearin complied, but before any tests could be conducted, Roberts observed a pill bottle protruding from Gearin’s right front pants pocket. He asked Gearin if he could remove the bottle, and Gearin consented.

Roberts shook the bottle and heard no sound; he then opened the bottle and discovered two “corner bags” containing off-white powder that appeared to Roberts to be methamphetamine. Later analysis proved him to be correct, showing the bottle contained approximately 3.8 grams of methamphetamine. He then placed Gearin under arrest for violating the Georgia Controlled Substances Act and DUI. A later search of the truck also revealed less than four ounces of marijuana, and a handgun was found as well. Because OCGA § 16-13-49 (e) provides that more than four ounces of marijuana are required to support a forfeiture of property, the parties stipulated that the only basis for the forfeiture was the methamphetamine.

Gearin argues that Roberts exceeded the scope of the consent given him when he opened the bottle containing the methamphetamine rather than just removing it from Gearin’s pocket. We need not decide this question, however, because even assuming Gearin is correct that Roberts exceeded the scope of the consent given by opening the bottle, the methamphetamine was still admissible under the “inevitable discovery” rule. “ ‘(W)hen . . . the evidence in question would inevitably (or ultimately) have been discovered without reference to the police error or misconduct, . . . the evidence is admissible.’ [Cits.]” Barnett v. State, 204 Ga. App. 491, 494 (1) (420 SE2d 43) (1992).

Roberts testified he had made up his mind to arrest Gearin for DUI before discovering the contraband, and probable cause existed for him to do so. He testified that Gearin displayed many of the manifestations of intoxication: his eyes were red and glassy; he smelled strongly of alcohol and marijuana; and he was unsteady on his feet, stabilizing himself on the truck as he walked. Moreover, Gearin could certainly have been arrested under the “open container” law. OCGA § 40-6-253. A lawful search of Gearin’s person would have been performed incident to his arrest. See Allison v. State, 217 Ga. App. 580, 581 (1) (459 SE2d 557) (1995). Such a search inevitably would have revealed the methamphetamine. The trial court did not err in using the methamphetamine to support the forfeiture.

2. Gearin maintains the trial court erred in granting the forfeiture because the State presented no evidence showing that the truck was used to facilitate a drug sale or purchase or that Gearin was using the truck to transport drugs after buying or selling them. We do not agree.

Citing State of Ga. v. Wilbanks, 208 Ga. App. 422, 423 (1) (430 SE2d 668) (1993), Gearin points out that “[h]ad the legislature intended that all of the property on which a drug violation occurred was subject to forfeiture, it could have used language to so indicate.” He maintains the State presented no evidence that he was a dealer or that the truck was used to facilitate a sale or purchase of methamphetamine. He argues that unlike Moore v. State of Ga., 209 Ga. App. 89 (432 SE2d 597) (1993), forfeiture therefore was inappropriate in this case because an insufficient nexus was shown between the truck and the drug violation.

This is incorrect. Even assuming the presence of the gun and the packaging of the contraband are an insufficient basis from which to infer sale, purchase, or distribution, the evidence was sufficient to support forfeiture. In Moore, it was necessary to establish a strong nexus between the violation and Moore’s car and $200 in cash because when Moore was stopped, less than an ounce of marijuana was found on his person. OCGA § 16-13-49 (e) provides that “[a] property interest shall not be subject to forfeiture under this Code section for a violation involving one gram of cocaine or less or four ounces of marijuana or less unless said property was used to facilitate a transaction in or a purchase of or sale of a controlled substance or marijuana.” (Emphasis supplied.)

Decided August 23, 1995.

Wolfe & Steel, Brian E. Steel, for appellant.

Daniel J. Porter, District Attorney, Dan W. Mayfield, Assistant District Attorney, for appellee.

In this case, the forfeiture was not subject to the restrictive language of OCGA § 16-13-49 (e), because the forfeiture was based upon Gearin’s possession of methamphetamine. The restriction in OCGA § 16-13-49 (e) does not apply, and subsections (d) (2), (3), and (6) control the forfeiture. Tracking the language of those Code subsections, the truck “directly or indirectly” facilitated a violation of the Georgia Controlled Substances Act because methamphetamine was being transported in the truck. OCGA § 16-13-49 (d) (2). In addition, methamphetamine was found “in close proximity to” the truck. OCGA § 16-13-49 (d) (6). Possession of methamphetamine is also punishable by a prison term of more than one year, so as to comply with OCGA § 16-13-49 (d) (3). See OCGA §§ 16-13-26 (3) (B); 16-13-30 (e). The truck was therefore subject to forfeiture under those Code subsections. The evidence was sufficient to support the forfeiture.

Judgment affirmed.

Birdsong, P. J., and Johnson, J., concur.


text:
    A95A1807.
    SMITH v. THE STATE.
    (461 SE2d 561)
   Smith, Judge.

An arrest warrant was issued for Leisha Smith by the Recorder’s Court of Chatham County. Smith was then picked up and jailed, and her subsequent petition for bond was denied. Smith then unilaterally filed a “waiver of indictment” and “consent[ ] to be tried upon accusation” (see OCGA § 17-7-70) and concurrently filed a demand for trial under OCGA § 17-7-170. The State did not participate in or rely upon Smith’s waiver of indictment but instead presented its case to the grand jury. Smith was indicted on two counts of selling cocaine. Less than two months after Smith was formally indicted, she moved for discharge and acquittal. Her argument was that the State was obligated to try her within the term succeeding her unilateral waiver of indictment and demand for trial as opposed to the date she was indicted. The motion was denied, and this appeal followed. See Hub bard v. State, 254 Ga. 694 (333 SE2d 827) (1985). We affirm.

Decided August 23, 1995

Calhoun & Associates, Gregory N. Crawford, for appellant.

We have repeatedly held that a demand for trial under the provisions of OCGA § 17-7-170 is available only to those “against whom a true bill of indictment or an accusation is filed with the clerk” for a non-capital offense. Id. See generally State v. Hicks, 183 Ga. App. 715 (359 SE2d 712) (1987). Smith essentially asks this court to interpret OCGA § 17-7-170 as being available not only to those persons specifically addressed therein, but also to those persons who otherwise consent to the jurisdiction of the superior court. We do not agree with this interpretation of the statute.

OCGA § 17-7-170 confers a statutory right upon persons accused of a crime to demand trial, and “[b]ecause the penalty imposed by this statute against the state is so great, it must be strictly construed.” Day v. State, 187 Ga. App. 175, 176 (369 SE2d 796) (1988). A strict construction of OCGA § 17-7-170 does not lend itself to the interpretation Smith urges. Moreover, it has been held that the purpose of the provision authorizing waiver of indictment, currently codified as a part of OCGA § 17-7-70, is “to give to a person who has been charged with a felony the right, with the concurrence of the prosecuting officer and the judge, to have his case disposed of without having to await the action of the grand jury.” (Emphasis supplied.) Webb v. Henlery, 209 Ga. 447, 449 (74 SE2d 7) (1953) overruled on other grounds Garmon v. Johnson, 243 Ga. 855 (257 SE2d 276) (1979). We cannot merely ignore the Supreme Court’s observation in Webb, and we are presented with no authority even remotely challenging its basic soundness.

Although Smith correctly, points out that the constitutional right to a speedy trial attaches at the time of arrest, Haisman v. State, 242 Ga. 896, 898-899 (252 SE2d 397) (1979), “[i]t is well settled in Georgia law that the protection conferred by [OCGA § 17-7-170] attaches with the formal indictment or accusation.” (Citation and punctuation omitted.) State v. Hicks, supra at 717. Smith was not without access to a speedy trial. She did, however, utilize “the wrong method by prematurely invoking the provisions of OCGA § 17-7-170 rather than the constitutional protections which were available to [her].” Id.

The express provisions of OCGA § 17-7-170 do not mandate Smith’s acquittal under the circumstances presented.

Judgment affirmed.

Birdsong, P. J., and Johnson, J., concur.

Spencer Lawton, Jr., District Attorney, Christine M. Sieger, Assistant District Attorney, for appellee.


author: Blackburn, Judge.

text:
    A95A1158.
    SMITH et al. v. CITY OF LaGRANGE.
    (461 SE2d 550)
   Blackburn, Judge.

Plaintiffs, Trubee Smith, Raymond Anderson, and William Stephens, appeal the trial court’s order which granted defendant’s motion for summary judgment. Plaintiffs brought the underlying action alleging the City of LaGrange (the City) violated the equal protection clauses of the United States and Georgia Constitutions, breached their employment contracts, breached its fiduciary duty, and committed negligent and fraudulent acts in the administration of its retirement benefit plan.

The City’s retirement program provided that employees could continue medical and hospitalization insurance coverage on themselves and their dependents by paying the unsubsidized cost of the insurance plus two percent until the employee or their spouse was covered by Medicare. The plaintiffs’ underlying action involves two early retirement incentive programs instituted by LaGrange’s mayor and city council. The first incentive program allowed any employee who reached the age of 60 to 65 between July 1, 1990, through June 30, 1991, to retire during those dates and receive a contribution of $125 per month toward their post-retirement monthly health insurance premium until the employee was covered by Medicare. The second incentive program allowed any employee who reached the age of 62 to 65 between February 25, 1992, and June 30, 1992, to retire during those dates and receive free health insurance until the employee was covered by Medicare.

James Hanson, the city manager, deposed that a proposal regarding the first incentive program was made to the city council during May 1990 along with other budget-related proposals. As required by State law, the city council followed a formal adoption process and held public hearings during June. The budget was approved on June 27, 1990. The evidence is clear, however, that the inclusion of the incentive program within the budget proposal did not assure its adoption and approval; even plaintiff Anderson admitted that budget requests were speculative. Plaintiff Smith retired May 31, 1990, after the first proposal was presented but before its passage and adoption. Plaintiff Anderson retired December 31,1990, taking advantage of the first incentive program. While plaintiff Stephens was aware of the first incentive program, he chose not to participate and retired October 1, 1991. At the time of plaintiff Stephens’ retirement the second incentive program had not been presented to the city council. There is no evidence as to when the second incentive program was conceived.

1. Plaintiffs claim that the City failed to administer the incentive programs in a manner consistent with the equal protection mandates of the United States and Georgia Constitutions. Plaintiffs contend that the City failed to inform all eligible employees of the existence of the incentive programs. To support their claims of discrimination, plaintiffs point to the fact that the City did not reduce the incentive programs to writing. However, because plaintiffs were not affected adversely by the administration of the incentive programs, they have no standing to make such a challenge.

“Before a statute can be attacked by anyone on the ground of its unconstitutionality, he must show that its enforcement is an infringement upon his right of person or property, and that such infringement results from the unconstitutional feature of the statute upon which he bases his attack. [Cits.] He must show that the alleged unconstitutional feature of the statute injures him, and so operates as to deprive him of rights protected by the Constitution of this State or by the Constitution of the United States, or by both. [Cits.]” South Ga. Natural Gas Co. v. Ga. Public Svc. Comm., 214 Ga. 174, 175 (104 SE2d 97) (1958). See also Love v. Whirlpool Corp., 264 Ga. 701 (2) (449 SE2d 602) (1994). Cf. Sneakers of Cobb County v. Cobb County, 265 Ga. 410 (455 SE2d 834) (1995).

Because Smith retired prior to the adoption of either incentive program, the administration of the incentive programs did not affect his rights, which were determined at the time he retired. Cf. Horton v. State Employees Retirement System, 262 Ga. 458 (421 SE2d 703) (1992). Both Anderson and Stephens were timely made aware of the first incentive program and because they retired prior to the administration of the second incentive program, its administration did not affect their rights. Id.

2. Plaintiffs’ remaining claims are dependent on the existence of a duty which would require the City to inform employees of proposals being considered by the city council or proposals that may be presented to the city council in the future. Plaintiff Smith complains that he was not told of the first incentive program prior to his retirement, and all plaintiffs contend that they were discriminated against because they were not told, prior to their retirement, that the second incentive program would be offered in the future. In support of this contention, however, plaintiffs presented no evidence that the City could predict the adoption of the first incentive program prior to its implementation or that the City had any intention of proposing the second incentive program prior to the plaintiffs’ retirement dates.

Plaintiffs’ attempt to establish such a duty by claiming a fiduciary relationship existed between themselves and the City is not persuasive. There is no evidence that the City knew the incentive programs would be adopted by the city council and signed by the mayor. The City’s lack of knowledge of and inability to predict the future conduct of the city council and the mayor precludes plaintiffs’ claim for breach of any duty. “[The City] cannot be held liable for failing to disclose what they did not know and could not have foretold.” Garcia v. Unique Realty &c. Mgmt. Co., 205 Ga. App. 876, 878 (424 SE2d 14) (1992).

Decided August 16, 1995

Reconsideration denied August 24, 1995

Smith, Wallis & Scott, Kenneth A. Smith, for appellants.

Lewis, Taylor & Todd, Jeffrey M. Todd, for appellee.

3. Plaintiffs’ remaining contentions are moot.

The trial court did not err in granting the City’s motion for summary judgment.

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.


text:
    A95A1329.
    METRO INTERIORS, INC. et al. v. COX.
    (461 SE2d 570)
   Smith, Judge.

This workers’ compensation action involves the apportionment of a permanent partial disability under OCGA § 34-9-263. In 1990, Raleigh Cox was injured when the scaffolding he was using collapsed and he fell headfirst onto a concrete floor. While in the hospital undergoing treatment for a broken leg sustained in the fall, he noticed a hearing loss. He was referred to an otolaryngologist, Dr. Jamshidi, who found a bilateral mild to moderate sensori-neural hearing loss of approximately 28 percent in each ear. Because Dr. Jamshidi had not examined Cox before the accident and because Cox told the doctor he had a “slight” pre-existing hearing loss, the doctor was unable to determine whether the hearing loss was pre-existing or due to the accident.

Cox sought medical benefits for his hearing loss, including a hearing aid. In an order of March 23, 1993, the ALJ found “the traumatic injury sustained by the employee . . . aggravated the employee’s preexisting hearing deficiency,” but was “unable to find the exact amount of hearing loss suffered by the employee.” This order was never appealed by the parties. Cox later moved for enforcement of the 1993 order and an award of permanent partial disability. A hearing was held, at which Cox submitted the testimony of an audiologist who examined him in 1993 and found a sensori-neural hearing loss of approximately 37 percent. The audiologist agreed that Cox’s hearing had continued to deteriorate since Dr. Jamshidi’s testing in 1990 but could state neither the cause of the continuing deterioration nor whether the hearing loss was a result of the accident or a degenerative hearing loss.

The ALJ concluded that the source of Cox’s pre-existing hearing loss had not been established and that the percentage of the present hearing loss attributable to the 1990 injury could not be determined. He also denied Cox’s request for a second hearing aid. Cox appealed, and the appellate division (formerly the full board) affirmed the denial of permanent partial disability payments but directed that a second hearing aid be provided because Cox’s hearing loss was aggravated by the compensable accident. Cox again appealed. The superior court, without stating the basis for its order, reversed the award of the appellate division and remanded the case for determination of benefits under OCGA § 34-9-263 (c) (12). We granted the application of the employer and insurer for discretionary appeal.

It is well established that “aggravation of a pre-existing infirmity, whether congenital or otherwise, is compensable. The aggravation of a previous injury by continued work is a new accident.” (Citations and punctuation omitted.) Barry v. Aetna Life &c. Co., 133 Ga. App. 527, 530 (211 SE2d 595) (1974); see also SMB Stage Line v. Leach, 204 Ga. App. 229, 231 (2) (418 SE2d 791) (1992). This compensation, however, is not without limits: “While the claim for an aggravated pre-existing injury is not prohibited, it is limited by Code § 114-408.” Barry, supra at 530.

This Code section, as then in force, provided: “ ‘If an employee who suffers an injury in his employment has a permanent disability or has sustained a permanent injury, such as specified in section 114-406, suffered elsewhere, he shall be entitled to compensation only for the degree of incapacity which would have resulted from the later accident if the earlier disability or injury had not existed.’ ” Id. Because the intent of this Code section was to impose liability for injuries resulting to employees during the time of employment, not for a prior injury, “in determining the extent of the employee’s disability attributable to the injury received during his last (current) employment, the Board of Workmen’s Compensation should first determine the total disability found to exist after the last injury, determine the disability found to exist after the earlier injury sustained elsewhere and subtract the latter from the former, thereby arriving at the extent of disability to be attributed to the last injury and compensated by the last employer.” (Citations and punctuation omitted.) Id. at 531.

The successor to Ga. Code Ann. § 114-408 is OCGA § 34-9-241 (b), and it provides: “If an employee received an injury for which income benefits are payable under Code Section 34-9-263 and has a preexisting bodily loss or loss of use as described under Code Section 34-9-263 which was increased by reason of the injury, the employee shall be entitled to income benefits under Code Section 34-9-263 only for the loss or loss of use as increased by the injury.” Thus, as in Barry, when a pre-existing condition has been aggravated by a compensable injury, a determination must be made of the degree of disability attributable to the injury.

This Code section by its terms applies not only to previous compensable injuries but also to any “preexisting bodily loss or loss of use as described under Code Section 34-9-263.” In General Motors Corp. v. Hargis, 114 Ga. App. 143, 144 (2) (150 SE2d 303) (1966), we remanded a case under Ga. Code Ann. § 114-408 for apportionment between an injury sustained at work and a pre-existing football injury which apparently was non-compensable. Apportionment is likewise required by OCGA § 34-9-241 (b) when a claimant has a pre-existing degenerative infirmity described in OCGA § 34-9-263.

Cox’s reliance on SMB, supra, is misplaced. While apportionment was unavailable in SMB, the decision recognizes that apportionment is available, if provided for by statute, for a pre-existing congenital, non-work-related condition. No statutory provision exists for apportionment between work-related and congenital causes of “expenses [claimant] incurred as a result of [his] injury.” (Emphasis supplied.) 204 Ga. App. at 232. OCGA § 34-9-241 (b), however, expressly provides for the apportionment of permanent partial disability benefits under OCGA § 34-9-263.

As in all workers’ compensation cases, the burden is on the claimant employee to show that he has sustained an injury compensable under the Workers’ Compensation Act. Berry College v. Storey, 199 Ga. App. 298, 299 (2) (404 SE2d 640) (1991). Under the “any evidence” rule by which this court and the superior court review workers’ compensation awards, if the ALJ and appellate division accept the testimony of the claimant over that of a medical expert, we must affirm. Fulton-DeKalb Hosp. Auth. v. Hadley, 174 Ga. App. 503, 504-505 (1) (330 SE2d 432) (1985). We must likewise affirm when the ALJ and appellate division instead credit the physician’s testimony over that of the claimant or weigh the testimony of conflicting medical experts and credit the testimony of one over the other. Elbert County Bd. of Commrs. v. Burnett, 200 Ga. App. 379, 381 (408 SE2d 168) (1991). Such determinations of credibility and the weight of testimony are for the ALJ and appellate division, not for either reviewing court. Hadley, supra at 505. Moreover, there was evidence authorizing the ALJ to disregard the claimant’s testimony for contradiction under Pike v. Greyhound Bus Lines, 140 Ga. App. 863, 864 (1) (232 SE2d 143) (1977). Although Cox’s medical records showed a pre-existing hearing loss, Cox testified that he had no hearing loss before the accident, that he had never told the doctor so, and that the doctor “came up with” the notation on his medical records regarding a pre-existing hearing loss.

Decided August 24, 1995.

Drew, Eckl & Farnham, Nicole D. Tifverman, E. Janyce Dawkins, for appellants.

Rumsey & Ramsey, Penelope W. Rumsey, for appellee.

The ALJ and appellate division were authorized to conclude both that Cox had a pre-existing hearing loss and that Cox had failed to show the percentage of disability, if any, attributable to a compensable injury under OCGA § 34-9-241 (b). The superior court therefore erred in reversing the decision of the appellate division.

Judgment reversed.

Birdsong, P. J., and Johnson, J., concur.


author: Andrews, Judge.

text:
    A94A0535.
    R. J. TAYLOR MEMORIAL HOSPITAL, INC. v. GILBERT.
    (461 SE2d 316)
    Decided August 25, 1995.

      Jones, Cork & Miller, C. Ashley Royal, W. Kerry Howell, for appellant.

      Westmoreland, Patterson & Moseley, Thomas H. Hinson II, Bradley G. Pyles, for appellee.
   Andrews, Judge.

In R. J. Taylor Memorial Hosp. v. Gilbert, 213 Ga. App. 104 (443 SE2d 656) (1994), we reversed the trial court’s judgment denying a motion for summary judgment brought by the hospital. In Gilbert v. R. J. Taylor Memorial Hosp., 265 Ga. 580 (458 SE2d 341) (1995), the Supreme Court reversed the judgment of this Court. Accordingly, our original judgment in this case is vacated, the judgment of the Supreme Court is made the judgment of this Court, and the trial court’s judgment denying summary judgment to the hospital is hereby affirmed.

Judgment affirmed.

Beasley, C. J., and Johnson, J., concur.


author: McMurray, Presiding Judge.

text:
    A95A1048.
    SOUTHERN GENERAL INSURANCE COMPANY v. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH.
    (461 SE2d 574)
   McMurray, Presiding Judge.

In 1988, Robin Ann McDaniel, an insured of plaintiff Southern General Insurance Company, was involved in a motor vehicle collision with a tractor-trailer operated by an employee of Gemini Transportation Services, Inc. and insured by defendant National Union Fire Insurance Company of Pittsburgh. Plaintiff paid McDaniel $5,000 in no-fault benefits and notified defendant of its subrogation rights. McDaniel sued defendant and its insureds and obtained a jury verdict in the amount of $15,000 upon which a judgment was entered. Plaintiff then brought this subrogation action against defendant. This appeal is taken from the grant of defendant’s motion for summary judgment and from the denial of plaintiff’s motion for summary judgment. Held:

Although the no-fault insurance laws were repealed in Ga. L. 1991, p. 1608, effective October 1, 1991, this action is governed by those now repealed statutes since the subrogation rights at issue became fixed at the time of the collision and were unaffected by the repeal. Fire &c. Ins. Co. of Connecticut v. Govt. Employees Ins. Co., 213 Ga. App. 532, 533 (445 SE2d 338). Under the former OCGA § 33-34-3 (d) (1), insurers providing benefits without regard to fault were generally not subrogated to the rights of the person for whom benefits were provided; an exception provided under former OCGA § 33-34-3 (d) (1) (A) is applicable to this case since one of the vehicles in the collision underlying this case weighed more than 6,500 pounds unloaded.

Former OCGA § 33-34-3 (d) (1) (B) provided that the right of recovery and amount of recovery shall be determined on the basis of tort law between the insurers or self-insurers involved. The lack of specificity concerning the manner in which this right was to be enforced has resulted in this and previous litigation.

Defendant argues that plaintiff’s subrogation rights were waived when it failed to intervene in its insured’s tort action. This position is predicated in large part on two cases. First, in U. S. Fidelity &c. Co. v. Carl Subler Trucking, 800 F2d 1540 (11th Cir. 1986), the question addressed was “whether an insurer, entitled by way of subrogation to a claim for personal injury benefits paid its insured, may bring a separate suit against the defendant tortfeasor, previously sued for personal injury damages by the insured in an action where the insurer had the right to intervene but did not.” Id. at 1541. In holding that such a claim could not prevail, the federal court relied on three points taken from Georgia law: that in asserting a subrogation right an insurer stands in the shoes of its insured; that Georgia personal injury law prohibits an injured party splitting its cause of action so as to bring a second action; and that an insurance company has an absolute right to intervene in the insured’s action against the tortfeasor in order to protect its rights against the tortfeasor.

The final point underlying the federal decision is predicated on the second of the cases primarily relied upon by defendant. That case, State Farm Mut. &c. Ins. Co. v. Five Transp. Co., 246 Ga. 447 (271 SE2d 844), upholds the right of an insurer to intervene in the insured’s action against the tortfeasor and also contains the statement that where an insurer “allowed this case to proceed to a judgment without asserting its right of subrogation by intervening as a party plaintiff, it could be argued that it waived its right of subrogation. [Cits.]” Id. at 454. This statement has been argued to represent authority supporting the waiver theory advocated here by defendant, and it is only relatively recent that the Supreme Court of Georgia has definitively rejected that hypothesis by noting that this statement was dictum. See Prudential Commercial Ins. Co. v. Michigan Mut. Ins. Co., 261 Ga. 637, 639 (1) (410 SE2d 30).

Plaintiff maintains that Prudential is controlling in the case sub judice. In Prudential, the insurer did not intervene in its insured’s action against the tortfeasor prior to the settlement of that case. Yet, no waiver was found to result from that choice by the insurer, and in so holding, the Supreme Court of Georgia strongly rejected the previously noted dictum in State Farm.

This brings us to the question of whether the difference in the facts between the case sub judice and Prudential is of any legal significance. That is, does the fact that in the present case the insured’s action against the tortfeasor was resolved by verdict and judgment rather than settlement, as in Prudential, require a finding that the insurer’s choice not to intervene has resulted in a waiver of subrogation rights here while not in Prudential. As we find ño reasonable basis for such a distinction, we conclude that the present action is controlled by the decision in Prudential.

Being bound by the decisions of the Supreme Court of Georgia but not by those of a federal circuit court construing Georgia law, no further explanation of our rejection of the rationale in U. S. Fidelity &c. Co. is technically required. Yet, we note that we do not lightly disregard the analysis provided by a source we usually find to be highly persuasive. In this instance, however, we perceive a misunderstanding as to Georgia’s statutory scheme of subrogation which functions between insurers so that the points of Georgia law stated in this federal decision, concerning a second action against a tortfeasor, are inapplicable to the case sub judice. In any event, the federal court subsequently turned to the Supreme Court of Georgia for guidance, submitting the certified question which precipitated the Prudential decision.

Decided August 25, 1995

Wetzel & Associates, Michael L. Wetzel, Mary A. Miller, for appellant.

Dennis, Corry, Porter & Gray, William E. Gray II, Stephanie F. Goff, for appellee.

The superior court erred in granting defendant’s motion for summary judgment. The denial of plaintiff’s motion for summary judgment was also error.

Judgment reversed.

Andrews and Blackburn, JJ., concur.


text:
    A95A1353, A95A1354.
    THE STATE v. WILLIS; and vice versa.
    (461 SE2d 576)
   McMurray, Presiding Judge.

Defendant Willis was indicted for the offense of armed robbery and found guilty by a jury. Prior to trial defendant was given notice that the State would raise certain prior felony convictions and seek recidivist punishment if he was convicted. Certified copies of those convictions were entered into the record at the sentencing hearing and the State sought the imposition of a sentence of life imprisonment without parole pursuant to the mandatory provisions of OCGA § 17-10-7. In Case No. A95A1353, the State appeals the imposition of a sentence of life imprisonment. Defendant appeals his conviction of armed robbery in Case No. A95A1354. Held:

1. In his first enumeration of error, defendant maintains that the trial court erred in admitting into evidence his handwritten statement since it was obtained after he had been physically accosted by the investigating officers. This is predicated on an incident during the in-custody interrogation of defendant. At least two officers and defendant were seated around a table when defendant became agitated, stood up, and acted in a threatening manner towards the officers. An officer pushed the table against defendant in order to restrain him and instructed defendant to sit down. The allegation of physical abuse is predicated on the table striking defendant during this incident.

The essential question is whether the officers’ conduct amounted to a threat or coercion such as would preclude a conclusion that defendant’s statement was given voluntarily. In this instance, there was ample evidence that the officers acted appropriately to curb defendant’s outburst and did not cause him undue concern for his physical safety. Since the factual findings of the trial court, which implicitly included this view of the circumstances, in determining the voluntariness issue are not clearly erroneous, those findings must be accepted by this Court. McCoy v. State, 174 Ga. App. 621, 623 (3) (330 SE2d 746).

2. Next, defendant maintains that the trial court erred in refusing to suppress the in-court identification of defendant by the victim. After the victim identified defendant in a pre-trial lineup, she was told by an investigator that she had picked the person who they thought had committed the crime. We have repeatedly noted that it is not a good practice to indicate to a witness that the right person has been chosen from a lineup. However, as defendant concedes an in-court identification is not automatically tainted by such a comment. The question of whether the subsequent in-court identification is tainted depends on all the circumstances of each case. Dodd v. State, 236 Ga. 572, 573 (224 SE2d 408); Campbell v. State, 206 Ga. App. 456 (426 SE2d 45); Cridiso v. State, 200 Ga. App. 342, 344 (4) (408 SE2d 153).

In Case No. A95A1354, the victim had ample opportunity to view the perpetrator at the time of the crime considering both the amounts of time and light available. The victim was face to face with the perpetrator, her attention was focused on the perpetrator, there was ample light, and some period of time passed as the perpetrator searched her purse and wallet before attempting to force her into a vehicle. The victim was positive about her identification of defendant at the line-up and in court. Under these circumstances the trial court was authorized to conclude that the pre-trial identification did not impermissibly taint the subsequent in-court identification of defendant.

In so holding, we reject defendant’s attempt to distinguish Dodd v. State, supra, and its progeny simply because many of these cases involve a pre-trial lineup which is photographic and do not involve the physical presence of the defendant at a lineup as in the case sub judice. It is clear under our decision in Munn v. State, 208 Ga. App. 674, 676 (5d) (431 SE2d 447) that the test for admissibility of an in-court identification following a tainted pre-trial identification does not change where the pre-trial identification occurred at a physical lineup. In other words, the issue following a tainted pre-trial identification, whether involving a photographic or physical lineup, is whether the in-court identification had an independent origin. The evidence supports a conclusion that the in-court identification had an independent origin in the case sub judice, therefore this enumeration of error lacks merit.

3. Defendant enumerates as error the denial of his motion for mistrial which was submitted after a police detective noted during cross-examination that defendant was a suspect in several criminal cases. However, since the motion for mistrial was not renewed after the trial court gave curative instructions to the jury, the issue was not preserved for appeal. Bailey v. State, 209 Ga. App. 390, 394 (6) (433 SE2d 610); Black v. State, 199 Ga. App. 819, 820 (406 SE2d 258).

4. In his final enumeration of error, defendant contends that the evidence admitted at trial was not sufficient to authorize his conviction. That evidence shows that the victim was leaving church when she heard someone run up behind her. Someone tried to pull the victim’s purse off her shoulder but she tried to hang on to it until the perpetrator faced her with a knife and told her to let go of it. After the perpetrator had searched her purse and wallet he threatened the victim again with the knife in an attempt to get her into a vehicle, but she escaped. The victim positively identified defendant as the perpetrator of this crime at a pre-trial lineup and adhered to this identification at trial. Based on this evidence, a rational trier of fact was authorized to find defendant guilty beyond a reasonable doubt of armed robbery. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Pruitt v. State, 217 Ga. App. 681 (1), 682 (458 SE2d 696). Defendant’s conviction of the offense of armed robbery must be affirmed.

5. In Case No. A95A1353, the State appeals the sentence of life imprisonment imposed upon defendant and contends that this sentence was void since OCGA § 17-10-7 required that defendant be sentenced to life imprisonment without eligibility for parole. The State may appeal a void sentence. State v. Baldwin, 167 Ga. App. 737, 738 (1) (307 SE2d 679).

The version of OCGA § 17-10-7 applicable to defendant’s offense is that which existed prior to the 1994 amendment (applicable January 1,1995), and includes paragraph (b) which removes the possibility of parole in regard to the sentence of fourth offender recidivists. The record shows notice to defendant that the prior convictions would be used against him at sentencing. Certified records of at least five of the noticed prior felony convictions were introduced by the State at the presentence hearing.

Nonetheless, defendant argues that there was no proper notice of the State’s intent to rely on the prior convictions or OCGA § 17-10-7 since such was not reflected on the face of the indictment. This argument was once correct, more than 20 years ago under a short lived two-step sentencing procedure. Under the statutory scheme applicable to defendant’s conviction, the absence of any allegation as to defendant’s recidivism in the indictment stands as no impediment to the imposition of sentencing pursuant to OCGA § 17-10-7. Mitchell v. State, 202 Ga. App. 100 (1) (413 SE2d 517).

Since defendant’s sentence is not in conformity with the applicable version of OCGA § 17-10-7 (b), it is void. The sentence only is reversed and the case remanded in order that the trial court may impose a sentence upon defendant which does not allow the possibility of parole pursuant to OCGA § 17-10-7 (b) and is otherwise in conformity with the law. State v. Baldwin, 167 Ga. App. 737, 739 (3), 740, supra.

Decided August 25, 1995.

Richard A. Malone, District Attorney, William S. Askew, Assistant District Attorney, for appellant.

Thomas J. O’Donnell, for appellee.

Judgment affirmed in Case No. A95A1354. Judgment reversed in Case No. A95A1353 and remanded with direction.

Andrews and Blackburn, JJ., concur.


author: Johnson, Judge.

text:
    A95A1409.
    COLLINS v. J. C. PENNEY COMPANY, INC.
    (461 SE2d 582)
   Johnson, Judge.

J. C. Penney Company, Inc., brought an action against Marcus E. Collins, Sr., Commissioner of the Georgia Department of Revenue, seeking a refund of assessed use taxes and interest. The Department appeals from the trial court’s grant of summary judgment in favor of Penney. The Department’s appeal is properly before this court. Collins v. AT&T, 265 Ga. 37 (456 SE2d 50) (1995). Because we find that the law of Georgia supports the Department’s assessment of use taxes and interest against Penney, we reverse.

In October 1989, the Department conducted a sales and use tax audit of Penney for the period October 1985 through December 1988. Following that audit, the Department assessed Penney $893,162 in use taxes as well as $257,828 in accrued interest. This assessment resulted from the treatment of certain direct mail advertising materials and newspaper inserts as tangible personal property within the provisions of Georgia’s use tax statute. Penney conceded the propriety of the Department’s imposition of use taxes on a portion of those newspaper inserts which were distributed as “store copies” but filed a Petition for Redetermination for the remaining $1,006,837 in use taxes and interest, which the Department denied. Penney paid the full $1,150,990 in assessed use taxes and interest in November 1989. Shortly thereafter, Penney filed a Claim for Refund, which the Department also denied. Finally, Penney filed the present action for this same refund in Fulton County Superior Court pursuant to OCGA § 48-2-35 (b) (4).

The trial court considered the parties’ cross-motions for summary judgment based upon the following stipulated facts. Penney is a Delaware corporation qualified to conduct business in Georgia. In the furtherance of its business, Penney advertises its merchandise in numerous ways, two of which are the subject of this action: direct mail advertisements, comprising catalogs and monthly billing notice tear-offs and inserts; and advertising circulars, which are inserted into newspapers. The planning, layout and design for all of these materials were conducted in either Dallas or New York. Penney paid printers located outside of Georgia to produce both the direct mail materials and newspaper inserts. Penney had the printers deliver these materials to Georgia residents and newspapers by common carrier or the United States Postal Service. Penney paid no sales or use tax on any of these materials in the state where they were produced.

Regarding the direct mail materials, Penney supplied to the printers the names and mailing addresses to which catalogs and billing notice tear-offs and inserts were sent. The residents selected by Penney to receive these catalogs were previous customers who had purchased more than a designated dollar amount of merchandise. The billing notice tear-offs and inserts accompanied the monthly billing statements mailed to holders of Penney’s credit cards.

Regarding the newspaper inserts, Penney directed the printers to send most of these materials to specific newspapers in Georgia with which Penney had contracts. Some portion of the inserts produced was delivered directly to Penney’s retail stores to be distributed as “store copies.” Once the printers delivered the inserts to the United States Postal Service or common carrier, title transferred to Penney. Title to these materials remained with Penney even after they were delivered to the newspaper publishers. Penney had control over the date on which the inserts were included in the newspapers and could elect to have the inserts included in newspapers going only to particular geographic zones. Also, at Penney’s request, the newspaper publishers could have removed the inserts from the newspaper after insertion up until the point that the newspapers “hit the streets.”

In addition to insertion into newspapers, the inserts were distributed by separate mailings and as part of groupings of similar advertising materials. As noted, Penney has conceded for the purposes of this litigation that all of the newspaper inserts distributed other than with a newspaper were properly taxed. Penney had these inserts distributed between 36 and 42 times per year during the audit period. Finally, no newspaper publisher copyrighted the inserts, and only the Atlanta Journal-Constitution microfilmed the inserts for inclusion in its historical record.

The relevant portion of Georgia’s use tax statute provides that “[u]pon the first instance of use, consumption, distribution, or storage within this state of tangible personal property purchased at retail outside this state, the owner or user of the property shall be a dealer and shall be liable for a tax at the rate of 3 percent of the cost price or fair market value of the property, whichever is lesser.” OCGA 48-8-30 (c). “Use” is defined as “the exercise of any right or power over tangible personal property incident to the ownership of the property. . . .” OCGA § 48-8-2 (12). “Use tax,” however, is defined to include not only the “use,” but also the “consumption, distribution, and storage of tangible personal property. . . .” OCGA § 48-8-2 (13). Also relevant is Georgia’s definition of “retail sale” as being a sale “for any purpose other than for resale. . . .” OCGA § 48-8-2 (6) (A).

The trial court concluded that Penney did not exercise sufficient right or power over the direct mail advertising materials such that Penney could be said to have used those materials in Georgia within the statutory definition. The trial court further concluded that the advertising inserts became an integral component of the newspaper itself, were resold as part of the newspaper and, therefore, were not purchased by Penney “at retail.” The Department appeals these rulings.

Direct Mail Advertisements

1. The Department argues that the issue of whether direct mail advertisements are subject to use tax is controlled by L. M. Berry & Co. v. Blackmon, 231 Ga. 659 (203 SE2d 520) (1974), and that the trial court erred in distinguishing this case. As discussed later in this division, we agree with the Department that the trial court’s interpretation of L. M. Berry & Co. is incorrect. But we find that the unambiguous terms of Georgia’s use tax statute more expediently dispose of this issue. Both OCGA §§ 48-8-30 (c) and 48-8-2 (13) use the word “distribution.” Although every tax statute “must be construed liberally in favor of the taxpayer,” Telecom*USA v. Collins, 260 Ga. 362, 364 (1) (393 SE2d 235) (1990), the use tax statute explicitly makes “distribution” a distinct and independent basis for imposing the use tax. When a word in a statute is not defined, that word should be given its commonly understood meaning. OCGA § 1-3-1 (b); Oxford v. Chance, 104 Ga. App. 310, 313 (121 SE2d 825) (1961). Webster’s Third New International Dictionary defines “distribution” as meaning “the spreading out or scattering over an area or throughout a space . . . [or] delivery or conveyance (as of newspapers or goods) to members of a group. . . .” It is clear in this case that Penney distributes the direct mail advertising materials through its agent, the printer, to residents of Georgia in order to further its merchandising business.

Penney’s argument that only the “use” of the property as defined in OCGA § 48-8-2 (12) will support an assessment of use taxes is simply inconsistent with the plain language of the statute. While the word “use” may be ambiguous and in need of definition, “use” is only one of four activities that gives rise to tax liability under the use tax statute. If the legislature had intended that the use tax statute be applied in the manner urged by Penney, it would have been unnecessary to explicitly include “consumption, distribution, or storage . . .” in the definition of “use tax” and in the use tax enabling statute. OCGA §§ 48-8-2 (13); 48-8-30 (c). “All the words of a statute are to be given due weight and meaning. [Cit.]” Undercofler v. Colonial Pipeline Co., 114 Ga. App. 739, 742 (152 SE2d 768) (1966).

Moreover, the Department’s assessment of the use tax against Penney comports with the purpose of the use tax statute as articulated in L. M. Berry & Co., supra. “Georgia’s statutory scheme for levying and collecting sales and use taxes presents a comprehensive plan to assure fairness in that items purchased and used in Georgia bear no higher tax burden than items purchased elsewhere and used in Georgia. Protections are afforded to those items on which sales tax has been paid elsewhere.” Id. at 660 (1). Georgia’s use tax is thus a compensating tax designed to preclude the avoidance of sales tax. Independent Publishing Co. v. Hawes, 119 Ga. App. 858, 861 (168 SE2d 904) (1969). Had Penney used printers in Georgia to produce these direct mail materials for delivery to Georgia residents, we have no doubt that Penney would have owed sales tax on the price of these materials. Allowing Penney to avoid both sales tax and use tax by purchasing the direct mail advertising materials outside of Georgia and then distributing them inside Georgia is contrary to the purpose of the use tax as a compensating tax. See L. M. Berry & Co. v. Blackmon, supra at 661 (1). If we were to accept Penney’s argument, its direct mail materials would escape taxation altogether.

We do not read the specific holding in L. M. Berry & Co. as requiring a different result. In L. M. Berry & Co., the Supreme Court considered whether an Ohio corporation that supplied telephone directories printed outside the state to resident telephone subscribers in Georgia was liable for use taxes on the cost of printing those directories. As with this case, the tangible property at issue was produced by third-party printers. The Supreme Court of Georgia affirmed the decision of both the trial court and the Court of Appeals in finding that the assessment of use taxes against the taxpayer was proper.

In distinguishing L. M. Berry & Co. from the instant case, the trial court focused on the definition of “use” as requiring the exercise of a “right or power over tangible personal property incident to the ownership. . . .” OCGA § 48-8-2 (12). The trial court then relied on the existence of the contractual obligations requiring the taxpayer in L. M. Berry & Co. to deliver the directories into Georgia as the basis for the taxpayer’s “right or control” over the property in that case. The trial court read L. M. Berry & Co. as applying only to the narrow circumstances of that case and, therefore, held that the absence of contractual obligations requiring Penney to deliver direct mail materials to Georgia residents distinguished the case before us now from L. M. Berry & Co..

We respectfully disagree that L. M. Berry & Co. must be so limited. Even if L. M. Berry & Co. is read as requiring that the taxpayer “use” the property as defined by OCGA § 48-8-2 (12), rather than “distribute” the property, we do not believe that contractual obligations are the exclusive measure of whether a taxpayer has made “use” of the property. Certainly, L. M. Berry & Co. does not suggest that contractual obligations are the only basis for finding an “exercise of right or control incident to ownership . . .’’of tangible personal property. Instead, we agree with the reasoning employed in a case from Louisiana involving very similar circumstances to those involved here. In D. H. Holmes Co. v. McNamara, 486 U. S. 24 (108 SC 1619, 100 LE2d 21) (1988), the United States Supreme Court stated that, “[the taxpayer’s] contention that it lacked sufficient control over the catalogs’ distribution in Louisiana to be subject to the use tax verges on the nonsensical. [The taxpayer] ordered and paid for the catalogs and supplied the list of customers to whom the catalogs were sent.” Id. at 32 (2). We recognize that the Supreme Court was considering a Commerce Clause challenge to the use tax rather than construing Louisiana’s use tax statute; however, its logic is directly applicable and persuasive. Penney designed, ordered and paid for the direct mail materials and supplied to the printers all of the instructions and addresses for distributing them. Clearly, Penney exercised right or power over these materials.

Finally, we note that Penney asks this court to interpret the use tax statute in a manner that would place Georgia alone among states with similarly worded statutes. See, e.g., J. C. Penney Co. v. Olsen, 796 SW2d 943 (Tenn. 1990); McNamara v. D. H. Holmes Co., 505 S2d 102 (La. Ct. App. 4th Cir. 1987) (same case considered by the United States Supreme Court, aff’d on other grounds). Indeed, even courts in states with use tax statutes less broadly worded than Georgia’s have upheld use tax assessments against similar direct mail advertising materials. See, e.g., Comfortably Yours v. Director, Div. of Taxation, 1992 N.J. Tax LEXIS 22 (1992), aff’d 272 N.J. Super. 540 (640 A2d 862) (App. Div. 1994).

Penney’s direct mail advertising materials fall squarely within the intent and provisions of the Georgia use tax statute and were properly taxed. The decision of the trial court exempting the payment of the use tax on the direct mail advertising materials must be reversed.

Preprinted Newspaper Inserts

2. The Department argues that the trial court erred by holding that the preprinted newspaper inserts become a component of the newspapers into which they are inserted, that the inserts are resold as part of the newspaper and, therefore, that Penney does not purchase the inserts “at retail” as required by the use tax statute. OCGA § 48-8-30 (c). Again, we agree with the Department.

Although the question of these preprinted newspaper inserts presents an issue of first impression in Georgia, we are not without assistance from numerous other jurisdictions. Authority from the courts of these other states is divided on whether the inserts become a component or integral part of the newspaper. Courts in Alabama, Missouri, Kansas and Massachusetts have held that these inserts do become a component or integral part of a newspaper. See, e.g., Eagerton v. Dixie Color Printing Corp., 421 S2d 1251 (Ala. 1982); Daily Record Co. v. James, 629 SW2d 348 (Mo. 1982); In re Appeal of K-Mart Corp., 238 Kan. 393 (710 P2d 1304) (1985); Sears, Roebuck & Co. v. State Tax Comm., 370 Mass. 127 (345 NE2d 893) (1976). In contrast, courts in Arizona, Connecticut, Arkansas, Wisconsin, South Dakota, Tennessee and Vermont have held that inserts do not become part of the newspapers into which they are inserted. See, e.g., Mervyn’s v. Ariz. Dept. of Revenue, 173 Ariz. 644 (845 P2d 1139) (Ariz. Tax Ct. 1993); Caldor v. Heffernan, 183 Conn. 566 (440 A2d 767) (1981); Ragland v. K-Mart Corp., 274 Ark. 297 (624 SW2d 430) (1981); Wis. Dept. of Revenue v. J. C. Penney Co., 108 Wis.2d 662 (323 NW2d 168) (Ct. App. 1982); K-Mart Corp. v. S. D. Dept. of Revenue, 345 NW2d 55 (S.D. 1984); Sears, Roebuck & Co. v. Woods, 708 SW2d 374 (Tenn. 1986); Hannaford Brothers Co. v. Vt. Dept. of Taxes, 150 Vt. 6 (547 A2d 1353) (1988).

Those courts finding that inserts are not a component of a newspaper have generally employed similar reasoning. Caldor v. Heffernan, supra. This reasoning is perhaps best articulated in Ragland v. K-Mart, supra at 432 (1), where the Arkansas Supreme Court classified six factors that supported its conclusion that inserts do not become a component of the newspaper: (1) ownership — the taxpayer purchased the inserts and retained title until the newspapers were delivered to customers; (2) preparation — the inserts were prepared by an independent third party, not the newspaper publisher; (3) regularity of insertion — the advertising inserts did not appear with sufficient regularity; (4) privity of contract — the taxpayer paid the newspaper to carry the inserts; whereas, the newspaper publisher paid for the right to insert the comics, etc.; (5) “supplement to” — the inserts carried a heading that specifically identified them as supplemental; and (6) distribution — the inserts were distributed in numerous other ways besides via newspapers.

We note generally that at least five of the six factors identified in Ragland are satisfied in this case. Specifically, the factors designated as ownership, preparation, regularity of insertion, privity of contract and distribution are all clearly present. We believe that the line of cases following Caldor and Ragland represents the better reasoned and more persuasive position, and we hold that advertising inserts do not become a component of the newspaper and are not resold within the meaning of OCGA § 48-8-2 (6) (A).

In addition, the following facts, to which the parties in this case have stipulated, further demonstrate that these inserts are not essential components of a newspaper. Penney purchased the preprinted inserts from the printer and then paid various newspapers to distribute those inserts. In addition to distribution through newspapers, the inserts were also distributed separately, both through alternative methods available from the newspaper publishers and as store copies. Penney has conceded that all inserts distributed using these alternative methods were properly taxed. Instead of becoming part of the newspaper, as Penney urges, the numerous distribution methods demonstrate that the inserts are distinct and separate items used to promote Penney through a variety of channels.

We do not accept Penney’s argument that these same inserts, which it gives away free as store copies and which it pays newspapers to mail free of charge to potential customers as part of these alterative distribution methods, are resold merely because they are distributed with the newspapers. The inserts distributed with the newspapers can be “zoned” so that they do not appear in every paper on the date of distribution, a decision made by Penney. The cost of the newspaper on the date the inserts are distributed does not vary based on whether or not the preprinted inserts are included and does not vary between days on which inserts are distributed and days on which they are not. Both of these facts suggest that the price paid by purchasers of the newspapers does not include any increase for the inserts and undermine Penney’s contention that its inserts were resold.

Ironically, not only does the purchase price of the newspapers not include any increase due to the inclusion of the inserts, as one would expect if the inserts were truly being resold, but the record in this case demonstrates that the price is actually decreased by the presence of these inserts. Newspaper publishers charge retailers such as Penney for the service of distributing these inserts, and the revenue thus generated helps defray the cost of publishing the newspapers. Were it not for the revenue from the distribution of these inserts, newspapers would cost more to consumers.

Decided August 25, 1995

Michael J. Bowers, Attorney General, Daniel M. Formby, Warren R. Calvert, Senior Assistant Attorneys General, for appellant.

Smith, Gambrell & Russell, E. Kendrick Smith, William B. Wood, Thomas M. Barton, for appellee.

We believe there is an important basis for distinguishing these inserts from those portions of the newspaper such as the comics and Parade magazine which are also preprinted by third parties in other states and then purchased by the newspaper publishers for inclusion in various newspapers to strengthen the quality of the product they sell to the public. In contrast, Penney pays the newspaper publishers to insert the advertising materials in order to take advantage of the newspaper’s distribution network. If Penney must pay the newspaper publisher to include the inserts, then clearly the newspaper publishers do not consider the inserts to be an essential part of their product. Otherwise, one would expect to find the publishers purchasing the advertising inserts to strengthen the quality of their product.

We also disagree with Penney’s contention that its inserts should be treated in the same manner as what are commonly called “real estate tabs” (tabs). As indicated in the stipulation of facts, newspaper publishers sell space in the tabs, and the tabs are produced on the newspaper publishers’ presses, not those of third-party printers, using the same quality of paper and print as ordinary newsprint. We view these tabs as more akin to advertising space on the actual pages of the newspapers. Advertising space within the pages of the newspaper is exempt from sales and use tax under Georgia Department of Revenue Rules & Regulations, Rule 560-12-2-.02 (5).

Ultimately, this issue turns on the character of the relationship between the preprinted inserts and the newspapers through which they are distributed. While the inserts may frequently be associated with newspapers in the minds of the public, the inserts do not become components or integral parts of the newspapers.

Therefore, we hold as a matter of law that the preprinted inserts are not, and do not become, a component or integral part of the newspapers through which they are distributed. The trial court’s ruling on this issue is, therefore, reversed.

Judgment reversed.

Birdsong, P. J., and Smith, J., concur.

       This section was amended in 1989 increasing the tax to four percent of the cost or fair market value of the property.


text:
    A95A1450.
    SORRELLS v. THE STATE.
    (461 SE2d 904)
   Smith, Judge.

Keith Sorrells was indicted by a Clarke County grand jury on one count of selling cocaine, OCGA § 16-13-30 (b). He was tried by a jury and found guilty, his motion for new trial was denied, and he appeals.

1. Sorrells asserts the general grounds, contending the identification testimony was unreliable. The evidence shows that an undercover agent of the Georgia Bureau of Investigation positively identified Sorrells as the person from whom he purchased cocaine, and a video and audio tape of Sorrells selling the cocaine to the agent was played for the jury. Moreover, a sergeant of the Athens-Clarke County Police Department “immediately recognized” the person on the videotape as Sorrells, whom he had known “since he was a teenager.”

Sorrells contends that testimony from his mother and sister established that he was misidentified. Contradictory testimony, however, was elicited on cross-examination. The evidence was in conflict, but in light of the videotape and the positive identification by the law enforcement officers, the jury was authorized to reject, and did reject, the defense testimony. “We do not determine the credibility of eyewitness identification testimony. Rather the determination of a witness’ credibility, including the accuracy of eyewitness identification, is within the exclusive province of the jury. Moreover, on appeal, we must view the evidence in the light most favorable to the verdict; the appellant no longer enjoys the presumption of innocence; and, rather than weighing the evidence or determining the credibility of witnesses, this court determines evidentiary sufficiency.” (Citations and punctuation omitted.) Jones v. State, 214 Ga. App. 788, 789 (449 SE2d 330) (1994).

There was ample evidence presented from which a rational trier of fact could reasonably find that Sorrells was guilty of the offense charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Sorrells also contends the trial court erred in denying his motion under Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986). Sorrells objected at trial to the striking of four members of the panel, but he enumerates error on appeal as to only one prospective juror. We note that the prosecutor offered racially-neutral explanations for his peremptory challenges before the trial court determined affirmatively on the record that a prima facie case had been made. Once the prosecutor offered racially-neutral explanations for the peremptory challenges and the trial court ruled on that basis, the preliminary issue of whether the defendant made a prima facie showing became moot. Ellerbee v. State, 215 Ga. App. 312, 315 (6) (450 SE2d 443) (1994).

In reviewing the trial court’s disposition of a Batson motion, we must bear in mind that the prosecutor’s explanation need not justify a challenge for cause, but must be neutral, related to the case to be tried, and reasonably specific. Gamble v. State, 257 Ga. 325, 327 (5) (357 SE2d 792) (1987). The trial court’s decision rests largely upon assessment of the prosecutor’s state of mind and credibility; it therefore lies “ ‘peculiarly within a trial judge’s province.’ [Cits.]” Smith v. State, 264 Ga. 449, 454 (448 SE2d 179) (1994). The trial court’s factual findings must be given great deference and may be disregarded only if clearly erroneous. Lingo v. State, 263 Ga. 664, 666 (1) (b) (437 SE2d 463) (1993).

The reasons offered by the prosecution were sufficiently race neutral to withstand the Batson challenge. The prosecutor explained that the panel member in question had been stricken from another panel on the preceding day, and “I don’t like to use people I struck the day before.” Although the panel member resided in a “very high crime area,” the prosecutor stated that was not the reason he struck her. He did so because he believed she was inattentive and unresponsive to his questions; also, she had expressed concern to the court on the previous day regarding her absence from her job and whether or not she would be paid promptly. The trial judge noted that he had, in fact, made special arrangements for this panel member to receive her pay on a daily basis rather than at the end of her service.

While the courts have noted that striking a panel member solely on the basis of residence in a particular neighborhood may be grounded in an improper “stereotypical belief,” Sorrells’ reliance on Congdon v. State, 262 Ga. 683 (424 SE2d 630) (1993), is misplaced. The prosecutor in Congdon acknowledged he would have stricken from the panel any black resident of a Georgia town because of an unrelated, controversial criminal investigation. 262 Ga. at 683-684. This was an improper reason for exercising a peremptory strike and required a new trial. Id. at 685. The Supreme Court has held, in contrast, that residence in an area in which a particular type of crime is prevalent may justify use of a peremptory strike in a case in which that type of crime is involved. Smith v. State, supra, 264 Ga. at 449-451 (explanation that gang activity was prevalent in particular public housing project racially-neutral where offense charged was gang-related and gang members were witnesses). Here, the undercover agent testified to drug purchases made in the panel member’s neighborhood during the undercover operation that led to Sorrells’ arrest. Taking this information in conjunction with the striking of the panel member on the preceding day, the panel member’s inattention, and her concerns about her employment and financial situation, we cannot say the trial court’s denial of Sorrells’ Batson motion was clearly erroneous.

Decided August 25, 1995.

John W. Donnelly, for appellant.

Harry N. Gordon, District Attorney, Gregory K. Schwarz, Assistant District Attorney, for appellee.

3. Sorrells also contends the trial court erred in refusing to admit the testimony of a deputy sheriff that the undercover agent witness for the State allegedly misidentified a defendant in an unrelated criminal prosecution. A similar contention was rejected by the Georgia Supreme Court in Salisbury v. State, 223 Ga. 414 (2) (156 SE2d 48) (1967) (trial court properly excluded testimony that eyewitnesses had mistakenly identified perpetrators of unrelated criminal offenses). “ Tt may be stated that generally the best method of attacking the credibility of an eyewitness’ identification is by cross-examination. The memory of a witness may not be disparaged by other witnesses in order to impeach that testimony; it must be done by cross-examination of the witness whose recollection is attacked. [Cits.]’ [Cits.]” Porter v. State, 188 Ga. App. 675, 676 (2) (373 SE2d 805) (1988). The agent was extensively cross-examined on this issue, and the cross-examination covered the alleged misidentification to which the deputy sheriff would have testified. The trial court did not err in excluding this testimony.

4. In Sorrells’ final enumeration of error, he contends that his trial counsel was ineffective, based solely on counsel’s failure properly to subpoena the deputy sheriff. Although the deputy objected to testifying on the ground that he had not been properly subpoenaed, the trial court sustained the State’s objection on the ground of relevance. Because we have concluded in Division 3 of this opinion that the trial court did not err in this decision, it follows that the failure properly to subpoena the witness was harmless. See generally Ruffin v. State, 201 Ga. App. 792, 795 (2) (b) (412 SE2d 850) (1991).

Judgment affirmed.

Birdsong, P. J., and Johnson, J., concur.


text:
    A95A1590.
    GIVENS v. THE STATE.
    (461 SE2d 579)
   Blackburn, Judge.

Louis Givens appeals his convictions of attempted armed robbery, possession of a firearm during the commission of a felony, possession of a firearm by a first offender probationer, and three counts of aggravated assault. The trial court directed a verdict as to a count of giving a false name to a law enforcement officer.

Viewed in a light to support the jury’s verdict, the evidence reveals that on the night of July 30, 1994, Givens was a passenger in a blue and white, “low-rider” truck with a white camper shell driven by co-defendant Michael Tester. The truck “tailgated” a vehicle occupied by three women, following it for approximately two miles using high-beam headlights until the driver turned the car into a residential development and finally stopped in a driveway. The truck stopped at the entrance to a nearby driveway. By the light of a street lamp, the victim driver saw a black male wearing a dark shirt, long shorts, a bandanna across his face, and a white ball cap get out of the truck and come around some bushes. At a distance of eight to ten feet, he ordered the victim driver to get out of her car. Instead, she shifted into reverse, backed rapidly out of the driveway, and sped off down the street. As she drove away, the perpetrator fired three shots at the car. The women drove to a well-lighted supermarket parking lot and called a 911 dispatcher to report the shooting incident.

While on duty, Gwinnett County police officer Friel heard an initial radio lookout for a black male who was involved in an attempted armed robbery in which shots were fired. The radio lookout further described the alleged perpetrator as in a white, low-rider pickup. A few minutes after the lookout was transmitted by radio, a truck fitting the dispatcher’s description passed Officer Friel on Jimmy Carter Boulevard less than three miles from the scene where the shots were fired with a black male in the passenger seat. Before turning on his emergency equipment, Officer Friel asked if the truck he was looking for had a camper shell on it and was advised that it did. Based on the vehicle description, its proximity to the scene, and receiving confirmation that the vehicle he sought was equipped with a white camper shell, Officer Friel stopped the truck, got the occupants out, and handcuffed them. Givens, one of two passengers, was wearing long shorts and a dark shirt. Inside the truck, in plain view, were a bandanna and an automatic weapon. While Tester and Givens were being detained, the victims were brought from the supermarket parking lot to the investigation scene. All three women immediately identified the truck, and the victim driver positively identified Givens on the basis of the bright print on the front of his T-shirt and a white ball cap.

1. Givens contends the trial court erred in failing to suppress evidence obtained as a result of the investigative stop of Tester’s low-rider truck. He argues the stop was unauthorized because officers had no particularized description of the vehicle, no knowledge of its direction of travel, and no knowledge that its occupants had been involved in other criminal activity.

“Although an officer may conduct a brief investigative stop of a vehicle, such stop must be justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct. Investigative stops of vehicles are analogous to Terry-stops, and are invalid if based upon only unparticularized suspicion or hunch. An investigastop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal conduct. . . . What is demanded of the police officer, as the agent of the state, is a founded suspicion, some necessary basis from which the court can determine that the detention was not arbitrary or harassing.

“Critical to the determination of the validity of a stop is whether the officer making it possessed particularized and objective reasons for suspecting the person stopped of criminal activity.” (Citations and punctuation omitted.) State v. Fowler, 215 Ga. App. 524, 525 (451 SE2d 124) (1994).

Within minutes of the crime, Officer Friel received a radio lookout for a black male who attempted an armed robbery less than three miles away and fled in a white, low-rider truck. As the message was coming in, such a truck passed the officer on Jimmy Carter Boulevard. Once he verified with the dispatcher that the truck in question indeed had a white camper shell, he made a stop to investigate further. Given the truck’s description and proximity to the crime, the officer had a well-founded, objective basis for suspecting the occupants of the truck were the subjects of the lookout.

The trial court’s ruling on a motion to suppress must be viewed most favorably to uphold the trial court’s decision. Holmes v. State, 214 Ga. App. 827 (1) (449 SE2d 172) (1994). In light of the foregoing, the police officers were authorized to stop the truck for further investigation, and the trial court correctly denied Givens’ motion to suppress.

2. Givens contends the evidence was insufficient to establish that a robbery was being attempted. He argues that while the conduct was an aggravated assault, speculation by the victim or the driver of the vehicle in which he was a passenger is insufficient to warrant a conviction for attempted robbery.

Pretermitting the question as to whether the intent to commit attempted armed robbery may be inferred upon speculative testimony, upon being cross-examined, Givens stated that the intent in stopping the women was to commit armed robbery; he stated that he was wearing a white ball cap and black T-shirt with the word “Guess” printed in multiple" colors on the front of it when the armed robbery was committed; although he denied having been the perpetrator, he would not deny that he was to share in any proceeds of the robbery; the victims identified the perpetrator as a black male who wore a dark T-shirt with what appeared to be a bright object on the front of it and a white baseball cap. After a review of the record, we find that rational jurors could reasonably have found Givens guilty, beyond a reasonable doubt, of attempted armed robbery. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Accordingly, Givens’ conviction of attempted armed robbery is affirmed.

Decided August 25, 1995.

David L. Whitman, for appellant.

Daniel J. Porter, District Attorney, Donald L. Johstono, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.

       A truck that is low to the ground because the springs or frame has been cut.


text:
    A95A1698.
    TILLER v. THE STATE.
    (461 SE2d 572)
   Smith, Judge.

John Tiller was convicted of seven counts of cruelty to animals.

1. Tiller makes various arguments in support of his contention that the evidence was insufficient to support verdicts of guilty and that the trial court erred in denying his motion for directed verdicts on all counts.

The charges stem from Tiller’s treatment of horses on his farm in Barrow County. He first argues that unlike drug cases, being in “possession” of neglected, suffering animals is not a crime. He asserts that even assuming the horses were neglected, the State failed to show he was responsible for that neglect since no evidence was introduced establishing that he owned the property or the horses. This argument is specious.

Tiller himself testified that he owned the farm where the horses were found. He also testified that he “raised” the horses and stated several times that he purchased some of the horses in issue or traded other horses for them.

Moreover, neither ownership of the property on which the animals are found nor ownership of the animals is a material element of the offense. OCGA .§ 16-12-4 (a) provides that cruelty to animals is committed when one’s “act, omission, or neglect causes unjustifiable physical pain, suffering, or death to any living animal.” The evidence shows without question that Tiller was responsible for the care and feeding of the horses. Therefore, if the State established that the horses were neglected and were suffering, the necessary elements were proved.

Tiller also argues the State did not prove that the animals were neglected or treated improperly. On the contrary, the State established that the horses were not fed properly and were denied essential medical treatment. Animal control officers testified the horses were so thin that their ribs and other bones could be seen. A veterinarian testified the horses either were not being fed or had a condition that caused them to lose weight, such as unchecked parasites. They were malnourished and anemic. The pastures on which the horses were kept had no grass for grazing, and no other food was present. Some horses were attempting to eat twigs and bark. Even accepting Tiller’s testimony that he purchased feed for the horses, he admitted he had not purchased enough to feed them at the recommended rate. In addition, the horses’ hooves were in poor condition, and some had other conditions requiring medical attention. A veterinarian testified that the animals suffered pain because of their maltreatment. The elements of the offense were therefore established.

A directed verdict is proper only when there is no conflict in the evidence and the evidence demands a verdict of acquittal as a matter of law. Riden v. State, 213 Ga. App. 17 (1) (443 SE2d 865) (1994). On appeal, we must consider the evidence in the light most favorable to the verdict. Id. at 18 (1). Viewed in this manner, the evidence was sufficient to authorize the jury to find Tiller guilty beyond a reasonable doubt of seven counts of cruelty to animals under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). The trial court did not err in denying Tiller’s motion for directed verdict.

2. Tiller contends the trial court’s charge confused the jury because it failed to indicate that the jury should consider each charge separately and could return “a mixture of guilty and not guilty verdicts.” We have examined the charge and find that it clearly conveyed this instruction to the jury. In addition, when the State expressed some doubt regarding this point the trial court recharged the jury, specifically informing the jury that it could fill in on the verdict form what it decided on each separate count. The charge was sufficiently clear that the jury would have understood it was dealing with separate counts. Heard v. State, 177 Ga. App. 802, 804 (4) (341 SE2d 459) (1986). This enumeration is without merit.

3. Contrary to Tiller’s contention, the trial court did not err in admitting a videotape depicting the horses’ condition and that of the pasture when the. horses were seized. The State laid a proper foundation for admission of the tape, showing that it fairly and accurately depicted the horses and the scene. It is axiomatic that the purpose of evidence is to persuade. Without more, the mere fact that certain evidence may be highly effective in persuading a jury is not a sufficient basis for excluding it. Although we can agree with Tiller that the tape may have “inflamed” the jury, it was relevant to the jury’s consideration of the charged crimes. Photographs that are material and relevant to any issue are admissible even though they may inflame the jury. Leavitt v. State, 264 Ga. 178, 180 (7) (442 SE2d 457) (1994).

Decided August 25, 1995.

L. Scott McLarty, for appellant.

Timothy G. Madison, District Attorney, Hillary M. Krepistman, Robin R. Riggs, Assistant District Attorneys, for appellee.

Judgment affirmed.

Birdsong, P. J., and Johnson, J., concur.


text:
    A95A0967.
    STUBBS et al. v. RAY et al.
    (461 SE2d 906)
   Johnson, Judge.

On January 24, 1991, Leonard Stubbs, Sr. signed an authorization for an angiogram, a diagnostic procedure, to be performed by Charles Ray III, M.D. Instead, Ray performed an angioplasty, an invasive surgical procedure. After the procedure, Stubbs began to experience excruciating pain in his leg. Ray was notified about Stubbs’ condition, but did not come to the room or arrange for another physician to do so. Several hours later, another doctor saw Stubbs and ordered emergency surgery to attempt revascularization, which was unsuccessful. Gangrene developed and, as a result, Stubbs’ leg was amputated above the knee.

Stubbs and his wife filed suit against Ray, Radiology Associates of Columbus, P.C., Ray’s practice group, and St. Francis Hospital, not a party to this appeal, alleging medical malpractice and battery because the procedure was performed without Stubbs’ informed consent, in violation of OCGA § 31-9-1. Ray, who is a radiologist, filed a motion to dismiss, alleging that the affidavit was insufficient because it was from a general surgeon rather than a radiologist and because it failed to satisfy the requirements of OCGA § 31-9-6.1 with respect to the new informed consent to surgical procedures statute. The trial court converted the motion to dismiss to a motion for partial summary judgment and granted it in favor of Radiology Associates and Ray based on the incompetency of the Stubbses’ expert affidavit. This is an appeal from that ruling.

1. This division addresses the sufficiency of the affidavit of Dr. Joseph Bussey submitted with the Stubbses’ complaint in accordance with OCGA § 9-11-9.1. In his motion to dismiss, Ray relied on Chandler v. Koenig, 203 Ga. App. 684 (417 SE2d 715) (1992), arguing that Ray is a radiologist, a specialty from a different professional school than Bussey, a general surgeon. After making that assertion, Ray argues that by making that assertion, the burden shifted to the Stubbses to respond with contrary evidence regarding Bussey in accordance with Hewett v. Kalish, 264 Ga. 183 (442 SE2d 233) (1994). Hewett, however, merely allows a plaintiff the opportunity to respond to a challenge to the sufficiency of an affidavit, it does not require it. Id. at 185. Merely because a challenge is raised does not necessarily mean the challenge has any merit. We believe that Bussey’s affidavit sufficiently establishes that his expertise in the area of post-operative care overlaps with Ray’s, a radiologist who performed a surgical procedure; the Stubbses were not required to offer any further evidence at that point. Therefore, the failure of the Stubbses to respond to Ray’s allegations that a general surgeon is incompetent to offer an affidavit against a radiologist who performs a surgical procedure did not entitle him to summary judgment pursuant to Hewett.

Decided August 28, 1995.

Agnew, Schlam & Bennett, G. Michael Agnew, Brinkley & Brinkley, Jack T. Brinkley, for appellants.

Hatcher, Stubbs, Land, Hollis & Rothschild, Robert C. Martin, Jr., C. Morris Mullin, Gerry, Friend & Sapronov, Mari L. Myer, Drew, Eckl & Farnham, James M. Poe, for appellees.

In this case, the Stubbses allege that Ray’s failure to respond to a known post-operative risk associated with angioplasty in a timely manner constituted professional malpractice. See Allison v. Patel, 211 Ga. App. 376, 377 (438 SE2d 920) (1993). Bussey’s affidavit establishes that he is a board-certified general surgeon who, from his training, experience and practice, is familiar with the standard of care, skill and diligence exercised by physicians and surgeons in the post angiography and angioplasty management of patients, particularly with the symptoms of clotting and blockage of arteries. Because, as noted above, these qualifications overlap with those of a radiologist performing that same surgical procedure, and because the affidavit in all other ways satisfies the requirements of OCGA § 9-11-9.1, we find that summary judgment based on the insufficiency of the affidavit was improperly granted.

2. Summary judgment was properly granted to Ray and Radiology Associates on Stubbs’ battery claim. See Harris v. Tatum, 216 Ga. App. 607, 608-609 (1) (b) (455 SE2d 124) (1995), in which the language of the consent form signed by the patient was identical to the one signed by Stubbs.

Judgment affirmed in part and reversed in part.

Birdsong, P. J., and Smith, J., concur.