author: Pope, Chief Judge.

text:
    A92A2046.
    CAVENDER v. THE STATE.
    (429 SE2d 711)
   Pope, Chief Judge.

Defendant Randall James Cavender was convicted of three counts of aggravated assault and appeals.

1. Defendant first contends that the trial court erred in denying his motion for new trial on the basis that the verdict was contrary to the evidence. Specifically, defendant argues that the evidence does not support his conviction for the aggravated assault of both Keith Coleman and Officer William Grizzard because the evidence shows he fired only one shot at the vehicle in which Coleman and Officer Grizzard were riding.

The evidence adduced at trial shows that the charges against defendant arose out of a domestic dispute. Defendant admitted pushing his wife to the ground, and kicking and tripping her. At some point defendant’s wife managed to escape to a neighbor’s house where she called police. Officer William Grizzard responded to the call. Keith Coleman, a civilian, was riding as a passenger in the car with Officer Grizzard. Both Officer Grizzard and Coleman testified that defendant pointed a shotgun directly at the police vehicle in which they were riding and fired, striking the windshield of the vehicle. According to Officer Grizzard and Coleman, the defendant was approximately 40 to 50 feet away from the vehicle when he fired at the patrol car. Coleman testified that defendant’s actions in firing at the car placed him in fear of receiving bodily injury and Officer Grizzard testified that he felt like his life was in danger. Under these facts, we find the firing of a single shotgun blast at a car containing two persons in the front seat of the car authorized defendant’s conviction for the offense of aggravated assault as to both individuals. See Heard v. State, 204 Ga. App. 757 (2) (420 SE2d 639) (1992); see also Steele v. State, 196 Ga. App. 330 (2) (396 SE2d 4) (1990). Consequently, this enumeration of error is without merit.

2. Defendant next contends the trial court erred by allowing the State to introduce evidence of similar transactions (prior assaults on his wife) because a hearing was not held pursuant to Uniform Superior Court Rule 31.3 (B) before that evidence was admitted. “Uniform Superior Court Rule 31.3 (B) and our Supreme Court’s decision in Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991) mandate that a hearing be held before evidence of a similar transaction is admissible at trial. At that hearing the State must make three affirmative showings: (1) it seeks to introduce evidence of an independent offense or act for an appropriate purpose; (2) there is sufficient evidence to establish the accused committed the independent offense or act; and (3) there is a sufficient similarity between the independent offense or act and the crime charged so that the proof of the former tends to prove the latter. Williams, 261 Ga. at 642. ‘After the 31.3 (B) hearing, and before any evidence concerning a particular independent offense or act may be introduced, the trial court must make a determination that each of these three showings has been satisfactorily made by the state as to that particular independent offense or act.’ Id.

“This court has held, however, in cases in which a Rule 31.3 (B) hearing was held, that the failure of a defendant to object to the introduction of similar transaction evidence on the basis that the State has not made a sufficient showing and/or the trial court has not made the requisite findings as required by Rule 31.3 (B) and our Supreme Court’s decision in Williams precludes appellate consideration of those issues. See, e.g., Hunter v. State, 202 Ga. App. 195, 198 (3) (413 SE2d 526) (1991) (holding ‘nothing in . . . Williams suggests that the Supreme Court has determined to dispense with the long-standing rule that, to warrant appellate consideration, an objection to the admission of evidence must first have been raised in the trial court. If the argument that appellant advances in his brief had been raised in the form of an objection in the trial court, it is possible that. . . Williams might warrant a reversal of appellant’s conviction. In the absence of such an objection, however, any discussion of . .. Williams in the instant case is inappropriate.’). See also McGaha v. State, 204 Ga. App. 248 (418 SE2d 802) (1992); Shields v. State, 202 Ga. App. 659 (2) (415 SE2d 478) (1992).

“We must now consider whether the same rule applies if the error alleged on appeal is that no hearing was held prior to the introduction of the similar transaction evidence, and defendant fails to object to the introduction of the evidence on that basis. Rule 31.3 contemplates that the State will bring to the trial court’s attention its intent to present evidence of a similar transaction, the trial court will conduct the requisite hearing at an appropriate time, and the State will have ‘(t)he burden of proving that the evidence of similar transactions or occurrences should be admitted.’ At trial the State shall only present evidence of similar transactions specifically approved by the trial court. As our Supreme Court stated in Williams ‘before any evidence of independent offenses or acts may be admitted into evidence, a hearing must be held pursuant to . . . Rule 31.3 (B).’ (Emphasis supplied.) Williams, 261 Ga. at 642 (2) (b). Thus, the burden of conducting the requisite hearing before similar transaction evidence can be admitted at trial is placed squarely with the State and the trial court; defendant bears no burden to initiate this procedure. Accordingly, we hold the defendant’s failure to object to the admission of similar transaction evidence on the basis that a Rule 31.3 (B) hearing was not conducted does not constitute a waiver of the procedure dictated by Rule 31.3 (B) and does not preclude our consideration of this issue on appeal.” Riddle v. State, 208 Ga. App. 8, 9 (1) (b) (430 SE2d 153) (1993).

Although the similar transaction evidence was erroneously admitted because the trial court did not first conduct a hearing to determine the admissibility of this evidence, we must also determine whether, under the facts of this case, the admission of this evidence was harmless error. The record shows the defendant testified and admitted he committed an aggravated assault on his wife by pushing, kicking, and tripping her. Thus “ ‘error, if any, in the admission of [prior difficulties between the couple] would “not mandate a reversal because it is highly probable that that error did not contribute to the guilty verdict [with respect to that charge]. (Cit.)” (Cit.)’ Johnson v. State, 204 Ga. App. 246 (4) (419 SE2d 107) (1992).” Wheat v. State, 205 Ga. App. 388, 389 (2) (422 SE2d 559) (1992).

3. Lastly defendant contends that the trial court erred in refusing to charge the offense of battery, OCGA § 16-5-23.1, as a lesser included offense of the aggravated assault of his wife. As to this issue, the transcript and record show defendant orally requested that the jury be charged on battery and simple battery. The trial court declined to charge on the offense of battery, but agreed to charge the lesser included offense of simple battery. Defendant’s counsel seemed to acquiesce in this ruling, stating to the court “Your Honor, what we discussed with reference to battery, everything will be okay. We will accept that.” However, after the court charged the jury, counsel objected to the charge and reasserted the contention that the jury should have been instructed on the offense of battery as well as the offense of simple battery.

Decided March 19, 1993.

Alfred F. Zachry, for appellant.

Peter J. Skandalakis, District Attorney, Jeffery W. Hunt, Assistant District Attorney, for appellee.

Pretermitting whether, as the State contends, defendant’s initial acquiescence resulted in waiver of the error asserted, we find no error in the trial court’s refusal to charge on the offense of battery as a lesser included offense of the crime of aggravated assault. As has been repeatedly held by the appellate courts of this state, “[a] trial judge never errs in failing to include a charge on a lesser included offense unless there is a written request to charge.” Mosley v. State, 257 Ga. 382, 383 (2) (359 SE2d 653) (1987); French v. State, 199 Ga. App. 873 (1) (406 SE2d 526) (1991); Givens v. State, 199 Ga. App. 845 (1) (406 SE2d 272) (1991). Consequently, this enumeration is without merit.

Judgment affirmed.

Johnson, J., and Justice George H. Carley concur.


source: Caselaw Access Project

author: Cooper, Judge. McMurray, Presiding Judge,

license: Public Domain

text:
    A92A2050.
    ROBERTS v. THE STATE.
    (430 SE2d 175)
   Cooper, Judge.

Appellant was convicted of violating the Georgia Controlled Substances Act and appeals from the judgment entered on the conviction and the denial of his motion for a new trial.

Evidence adduced at trial shows that D. A. Liber, an undercover investigator for the Atlanta Police Department, met Shellie Ramey, appellant’s co-defendant, at a bar and told her he wanted to buy some “Dilaudid.” Ramey told Liber she could take him to find some. She drove with him to a street corner where appellant was standing. Ramey said “There’s Bobby,” and told Liber to stop the car so she could see if Bobby had any Dilaudid. After Liber parked nearby, Ramey left Liber’s car, talked with appellant, and returned, saying that Bobby had one pill left for $50. Liber gave her the $50 and watched her walk back to appellant and give him the money in return for a small package. Ramey then returned to Liber’s car and gave him a small pill which was . later identified as Hydromorphone or “Dilaudid,” a Schedule II controlled substance. Neither Liber nor E. G. Brown, another undercover investigator who witnessed the transaction through field glasses from another vehicle, could testify directly that the small package Ramey received from appellant was Dilaudid or that it was the same item she subsequently gave to Liber in his car.

1. In two enumerations of error appellant argues that the trial court erred in denying his motion for a continuance until the following term.

(a) Appellant first asserts that “the principles of justice” required a continuance because defense counsel was not prepared for trial. See OCGA § 17-8-33 (a). Appellant’s counsel, a Fulton County public defender, was unable to prepare for all nineteen of her cases scheduled for trial during that two-week trial calendar due to the public defender office’s extremely heavy workload. Noting that counsel had been assigned the case approximately seven-and-one-half months earlier and that appellant had been arraigned more than three months earlier, the trial court denied counsel’s motion for a continuance until the following term, but did grant her until the following Monday, just under a week, to complete her preparations. “A motion for continuance based on counsel’s claim of insufficient time to prepare for trial is addressed to the sound legal discretion of the trial court, and a ruling denying such a motion will not be interfered with unless the trial court abused its discretion in making the denial. [Cits.]” Snow v. State, 178 Ga. App. 842 (344 SE2d 762) (1986); see also OCGA § 17-8-22. There was no abuse of discretion in the trial court’s denial of appellant’s motion in this case.

(b) Appellant also argues that a continuance until the following term should have been granted pursuant to OCGA § 17-8-25 because co-defendant Ramey, who was expected to testify in appellant’s behalf that appellant did not give her the pill she delivered to Liber, was absent. However, OCGA § 17-8-25 requires a showing that, among other things, the party seeking the continuance “expects he will be able to procure the testimony of the witness at the next term of the court.” Having failed to appear for her own trial, co-defendant Ramey was a fugitive. Accordingly, appellant could not show that he expected to be able to procure her testimony at the next term. Contrary to appellant’s suggestion, it is not enough to meet the statutory requirements “to every extent possible.” Thus, the requirements of OCGA § 17-8-25 were not met, and the trial court did not abuse its discretion in failing to grant the continuance.

2. In his third enumeration of error, appellant contends that the trial court erred in allowing the State to impugn appellant’s character by repeatedly asking him on cross-examination whether he was familiar with one of the undercover investigators. See OCGA § 24-9-20 (b). Appellant’s contention is that the repeated questions invited the inference that if appellant knew one of the investigators, he must have been in trouble with the law before. However, appellant’s defense raised the issue of misidentification. Accordingly, that appellant and one of the investigators knew each other was relevant to rebut appellant’s defense, and relevant information is not rendered inadmissible because it may incidentally place a defendant’s character in issue. See Millis v. State, 196 Ga. App. 799 (1) (397 SE2d 71) (1990). Furthermore, our review of the record reveals that the trial court did not allow the State to explore how appellant and the investigator knew each other, and allowed repetition only to the extent necessary to clarify appellant’s answers. We therefore conclude that this enumeration of error is without merit.

3. Appellant argues that the trial court erred in allowing hearsay evidence offered by the State regarding what the missing co-defendant said to Liber during the course of the crime but disallowing hearsay testimony offered in his behalf regarding what the missing co-defendant subsequently told others about appellant’s role in the crime. Liber’s testimony about what co-defendant Ramey said to him during the course of the crime was properly admitted as part of the res gestae. See OCGA § 24-3-3. On the other hand, the testimony of appellant’s witnesses about what co-defendant Ramey said to them afterward — that she told them she had not received the pill she gave Liber from appellant and intended to so testify — was not part of the res gestae, nor did it fit within any other exception to the hearsay rule. Appellant contends these statements should have been allowed under the “necessity” exception of OCGA § 24-3-1 (b), which allows hearsay testimony where it is necessary and there is some “ ‘circumstantial guaranty of the trustworthiness of the offered evidence.’ ” (Emphasis omitted.) Higgs v. State, 256 Ga. 606, 607 (3) (351 SE2d 448) (1987). However, appellant’s reasoning that the co-defendant’s statement is inherently trustworthy because it was against her penal interest is belied by Timberlake v. State, 246 Ga. 488 (1) (271 SE2d 792) (1980). In Timberlake, the Supreme Court stated that declarations to third persons that the declarant rather than the accused was the actual perpetrator of a crime are not admissible under an exception to the hearsay rule, even though they are against the declarant’s penal interest, because admission of such declarations would allow a person to subvert the ends of justice by admitting the crime to others and then absenting himself from the jurisdiction. 246 Ga. at 492. Thus, the trial court did not err in allowing Liber to relate what co-defendant Ramey said during the course of the crime and disallowing appellant’s offered testimony regarding what his absent co-defendant told others about his role in the crime.

4. In his fifth enumeration of error, appellant contends that the trial court improperly limited his cross-examination of Liber by not admitting into evidence a police officer’s manual which allegedly would have contradicted Liber’s testimony that it is not standard procedure to have an incident report signed by a reviewing officer immediately after the incident occurs. In the instant case, Liber’s incident report was not signed by a reviewing officer until approximately two months after the incident, and appellant asserts that this delay renders Liber’s identification of appellant suspect. Contrary to appellant’s assertion, whether Liber followed, or was even aware of, reporting procedures set forth in the police officer’s manual was not relevant to the reliability of Liber’s identification of appellant. Thus, the manual was wholly immaterial matter, and the trial court did not err in refusing to admit it for impeachment purposes. See Brown v. State, 260 Ga. 153 (4) (391 SE2d 108) (1990).

5. In his sixth enumeration of error appellant argues that the trial court erred in refusing to give his requested charge on the law of circumstantial evidence. However, this enumeration was not included in appellant’s original enumerations of error and was added by amendment after the deadline for filing enumerations of error had passed. Such an amendment is not permitted. See Burke v. State, 153 Ga. App. 769 (7) (266 SE2d 549) (1980). Therefore, this argument will not be considered. See Bowen v. State, 191 Ga. App. 760 (382 SE2d 694) (1989).

Judgment affirmed.

McMurray, P. J., concurs specially. Blackburn, J., concurs in judgment only.

McMurray, Presiding Judge,

concurring specially.

I agree with all that is contained in the majority opinion and write only to note that even if the merits of defendant’s argument could have been reached in Division 5, there was no error in the trial court’s refusal to give defendant’s requested charge on the law of circumstantial evidence. While the decision in Robinson v. State, 261 Ga. 698, 699 (410 SE2d 116) holds that where the State depends at least in part on circumstantial evidence a charge on the law of circumstantial evidence must be given on request, an analysis of whether there has been compliance with the Robinson decision must involve consideration of whether a defendant’s requested charge is correct, legal, apt, even perfect, and precisely adjusted to some principle involved in the case, since otherwise a refusal to give the requested charge will not be cause for a new trial. Hollis v. State, 201 Ga. App. 224, 225 (2) (411 SE2d 48); Peebles v. State, 196 Ga. App. 176, 179 (3) (395 SE2d 640). The requirements of Robinson are satisfied when the jury is given a charge employing language substantially similar to that in OCGA § 24-4-6. Burris v. State, 204 Ga. App. 806, 811 (3) (420 SE2d 582). The refused charge in the case sub judice does contain some language apparently derived from OCGA § 24-4-6. However, instead of providing a neutral statement of a correct principle of law, the refused charge is argumentative since it emphasizes the reasoning and view of the evidence advocated by defendant. There was no error in the trial court’s refusal to give the argumentative charge. Thompson v. State, 164 Ga. App. 194, 195 (3) (296 SE2d 771); Colson v. State, 138 Ga. App. 366, 368 (9) (226 SE2d 154).

Decided March 19, 1993.

Avis K. Hornsby, for appellant.

Lewis R. Slaton, District Attorney, J. Clayton Culp, Assistant District Attorney, for appellee.


author: Birdsong, Presiding Judge.

text:
    A92A2127.
    ROBERTSON v. WHEELER et al.
    (429 SE2d 714)
   Birdsong, Presiding Judge.

Oscar Robertson entered into a contract in which he agreed to pay John Wheeler, Sylvia Wheeler Roberts, and Roy Roberts (“the sellers”) $1,065,000 for certain real property, and they agreed to furnish marketable title to the property. When Robertson did not appear at the closing, the sellers filed the suit seeking specific performance.

Robertson’s enumeration of error contends the trial court erred in granting summary judgment because the summary judgment was based solely on his failure to file a response to the sellers’ motion for summary judgment and statement of disputed facts. Indeed, the order granting summary judgment to the sellers reads as follows: “The court notes that there is no response to plaintiffs’ motion for summary judgment, as well as no statement of disputed facts; therefore, this court finds no genuine dispute of fact as to liability for breach of contract for the sale of land, and plaintiffs are entitled to summary judgment as to liability as a matter of law.” The order, however, denied summary judgment to the sellers on their entitlement to specific performance of the contract because the trial court found a genuine issue of material fact on whether there was a 16-year gap in the sellers’ title to the property.

Robertson’s motion for summary judgment contended the sellers could not deliver a marketable title to the land due to a claim against the mineral rights by another party and a 16-year gap in the title of the property to be sold. The court denied the motion, however, as it did not find the mineral rights claim was a defect as a matter of law justifying the failure to close, and the court found a genuine issue of material fact existed on whether the 16-year gap in the title was a defect in title justifying the right to refuse to close. Robertson has not sought appellate review of this decision.

The lower court next considered the sellers’ motion for summary judgment and granted partial summary judgment on the issue of breach of contract. Robertson now appeals from this grant of summary judgment to the sellers. Held:

Decided March 19, 1993.

David M. Cox, for appellant.

Landrum & Landrum, Phillip M. Landrum, Jr., Susan Landrum, for appellees.

1. The failure of the non-moving party to file the pleadings required by USCR 6.2 does not entitle the moving party to the grant of summary judgment. Wyse v. Potamkin Chrysler-Plymouth, 189 Ga. App. 64, 65 (374 SE2d 785); Moore v. Goldome Credit Corp., 187 Ga. App. 594, 595 (370 SE2d 843). Accordingly, it was error for the lower court to grant summary judgment to the sellers solely because Robertson had not filed the required pleadings. Although the sellers contend the trial court did not grant them summary judgment because Robertson failed to file a response to the motion and failed to file a statement of disputed facts, the order quoted above plainly states that was the reason for granting summary judgment. See Derbyshire v. United Builders &c., 194 Ga. App. 840, 843 (1) (392 SE2d 37). Therefore, the trial court’s order allows us to reach no other reasonable conclusion.

2. Moreover, our independent review of the record shows the trial court denied the sellers’ motion for summary judgment on specific performance and Robertson’s motion for summary judgment because the trial court found a genuine issue of material fact existed on whether the 16-year gap was a “defect in title justifying the right to refuse to close,” and the deposition of the sellers’ title attorney in the record stated that such a gap in the sellers’ title was revealed by his examination of the title. Although the record shows that the sellers planned to establish that they acquired title through prescription (see OCGA § 44-5-160 et seq.), whether the title was so acquired under this evidence is a jury issue. See Fambro v. Davis, 256 Ga. 326, 328 (348 SE2d 882). Accordingly, the grant of summary judgment to the sellers must be reversed.

Judgment reversed.

Beasley, P. J., and Andrews, J., concur.


author: Cooper, Judge. Andrews, Judge,

text:
    A92A2179.
    MOORE v. MELLARS.
    (430 SE2d 179)
   Cooper, Judge.

On December 13, 1989, Agnes Moore was involved in a vehicular accident. Moore sued Mellars to recover damages for the injuries she incurred and for pain and suffering. The suit was filed April 9, 1990, and tried on April 6, 1992; the jury returned a verdict in favor of defendant Mellars, which Moore appeals. She enumerates as her sole error on appeal the allowance into evidence of collateral source funds.

The trial transcript reveals that on direct examination Moore was asked by her attorney if she had returned to certain physicians after she had surgery. Moore replied, “I went on for my regular examinations until my husband got out of work, and then the insurance — didn’t have any.” Before her attorney asked another question she stated, “Am I not supposed to say that?” Further direct examination followed.

Prior to cross-examination, defense counsel argued outside the presence of the jury that because the plaintiff had opened the door regarding the existence of insurance, he was entitled to further examination on this point. Over Moore’s objection, the trial court ruled that because Moore had opened the door, Mellars could inquire in a limited fashion on this point.

Accordingly, this cross-examination took place:

“Q: You made a claim for all of those bills to your husband’s insurance company, didn’t you?
“A: Some of them, yes, sir. Some of them, they refused to pay.
“Q: Have you paid a dime of those bills —
“A: Sir?
“Q: Have you paid a dime of those bills yourself?
“A: Have we paid a dime?
“Q: Have you paid any of those bills?
“A: Yes.
“Q: Which ones would those be?
“A: I can’t remember correctly. We have to pay twenty percent of everything, but there were certain tests that was ran — my husband could tell you better than I.
“Q: Do you know of any bills other than Dr. Karasu which has not been paid by the insurance company?
“A: We haven’t finished paying Dr. Williams.
“Q: Well, you see Dr. Williams for problems unrelated to the accident, haven’t you? [sic]”

[Defendant’s attorney seeks to impeach Moore with her deposition, during which the following exchange occurs.]

“Q: Just follow along with me right here, at line 15. ‘Ma’am, as of today, are you aware of any medical, hospital or chiropractic bill arising out of your treatment that has not been reimbursed to you by your husband’s insurance?
“Answer: T haven’t been reimbursed by any company. They’ve got notice that they’ve paid certain bills, but they haven’t paid Dr. Karasu. Did I read that accurately?
“A: That’s what it says.
“Q: So when you were asked that question before, the only one you knew that had not been paid was Dr. Karasu; is that correct?
“A: That’s what it says there.”

On redirect examination, Moore testified that she still owed doctors for treatment.

Citing Denton v. Con-Way Southern Express, 261 Ga. 41 (402 SE2d 269) (1991), Moore argues that the trial court erred in admitting this collateral source evidence. She claims that the admission of this evidence constituted error in that Denton prohibited this evidence in holding that OCGA § 51-12-1 (b), authorizing the admission of evidence of collateral source payments, was unconstitutional.

As further support for her position, Moore cites Hayes v. Gary Burnett Trucking, 203 Ga. App. 693 (2) (417 SE2d 676) (1992). In that case, the trial was held while Denton was pending in the Supreme Court, and the trial judge admitted the collateral source evidence pursuant to OCGA § 51-12-1 (b). The jury returned a verdict for the defendant, and on appeal, the plaintiff argued that the trial court erred in denying her motion in limine to exclude the collateral source evidence and in denying her motion to bifurcate the trial. At the time of our decision in Hayes, the Supreme Court had ruled in Denton that OCGA § 51-12-1 (b) was unconstitutional. Consequently, we reversed the trial court’s admission of the collateral source evidence. However, we affirmed the longstanding rule allowing cross-examination of a plaintiff on the availability of insurance benefits to impeach a plaintiff’s contentions regarding financial inability to seek medical treatment. Contrary to Moore’s assertions, Hayes does not present an “almost identical fact situation as this case.” In this case, Moore injected the issue of insurance into the trial on direct examination and additionally, several of her own trial exhibits were medical bills which referred to her insurance coverage. The cross-examination regarding the insurance issue was limited. Since Hayes reiterated the recognized rule allowing limited cross-examination on collateral source funds for impeachment purposes, that case does not require a different result.

“[E]ven prior to the abolition of the collateral source rule [and the declaration of OCGA § 51-12-1 (b) as unconstitutional in Den-ton], it was permissible to cross-examine a plaintiff on the availability of insurance benefits ‘to test his averment that he did not return to see a certain physician . . . because he was unable to pay for the physician’s service.’ ” Bridges v. Schier, 195 Ga. App. 583, 584 (2) (394 SE2d 408) (1990), citing Johnson v. Bryant, 178 Ga. App. 327 (3) (343 SE2d 397) (1986). Although Denton held that the provisions of OCGA § 51-12-1 (b) were unconstitutional, we do not read that holding as broadly as do appellants. “The effect of Denton v. Con-Way was to restore our law, concerning admissibility of evidence of collateral sources, to its status before the effective date of OCGA § 51-12-1 (b).” Willard v. Wilburn, 203 Ga. App. 393, 394 (416 SE2d 798) (1992). Certainly, the pre-Denton, and proper, rule is that when plaintiff opens the door and testifies that lack of insurance or financial hardship prevented her from seeking treatment, defendant is allowed to cross-examine her on this point in the narrow, limited manner which the trial court allowed in this case. See generally Daniel v. Parkins, 200 Ga. App. 710 (3) (409 SE2d 233) (1991).

Because we find no error in admitting this testimony, we need not address appellee’s additional argument that any error regarding damages was harmless in that the jury returned a verdict for appellee. See generally Willard, supra; U. S. Indus. v. Austin, 197 Ga. App. 74 (397 SE2d 469) (1990); Malloy v. Elmore, 191 Ga. App. 564 (382 SE2d 395) (1989).

Judgment affirmed.

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

Andrews, Judge,

concurring specially.

Although I concur with the majority’s conclusion that the trial court’s allowance of the testimony here was proper, I believe that it is necessary to overrule Hayes v. Gary Burnett Trucking, 203 Ga. App. 693 (2) (417 SE2d 676) (1992), to reach this result. In Hayes, which involved a quite similar situation, this court determined that pursuant to Denton v. Con-Way Southern Express, 261 Ga. 41 (402 SE2d 269) (1991), the allowance of the collateral source evidence constituted reversible error.

I recognize that there are factors which distinguish this case from Hayes. First, no motion in limine or motion to bifurcate was filed in the instant case. Furthermore, in Hayes, few details regarding the testimony and the nature of the collateral source evidence were given and it is possible that there are factual distinctions between Hayes and the instant case which are not readily apparent.

Nevertheless, to a large extent, the facts in this case and in Hayes are indistinguishable. Here, Moore injected the issue of insurance into the trial on direct examination and also through several of her own medical bills which were introduced as trial exhibits. Moore testified that a gap in treatment by one of her physicians was due to her inability to pay. In Hayes, the court specifically stated: “[appellees argue that the collateral source evidence was admissible because of appellant’s injection into the trial of issues related to the financial hardship she suffered as a result of the accident and appellant’s explanation that a gap in treatment by one of her physicians was due to her inability to continue to pay for the medical treatment. It is permissible to cross-examine a plaintiff on the availability of insurance benefits to test his averment that he did not return to see a certain physician because he was unable to pay for the physician’s services. However, we cannot conclude that by raising matters related to her financial condition after the accident, appellant opened the door for the admission of the collateral source evidence introduced by appellees. To allow such would enable appellees to get in through the back door the same prejudicial matter that the Supreme Court ruled in Denton to be inadmissible.” (Citations and punctuation omitted.) Hayes at 695. In my opinion, this portion of Hayes is inconsistent with an affirmance of the trial court’s decision here to allow the testimony and is inconsistent with the principle, cited by the majority, that the law has now been restored to its status before the enactment of OCGA § 51-12-1 (b). See generally Willard v. Wilburn, 203 Ga. App. 393 (416 SE2d 798) (1992).

Decided March 19, 1993.

Jerome C. Ware, for appellant.

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

I am authorized to state that Presiding Judge McMurray and Presiding Judge Birdsong join in this special concurrence.

       Regarding the legacy of Denton, see Grissom v. Gleason, 262 Ga. 374 (418 SE2d 27) (1992); see also Cincinnati Ins. Co. v. Reybitz, 205 Ga. App. 174 (1) (d) (421 SE2d 767) (1992).


author: Cooper, Judge.

text:
    A92A2257.
    GARY v. E. FRANK MILLER CONSTRUCTION COMPANY, INC.
    (430 SE2d 182)
   Cooper, Judge.

Appellant Patricia S. Gary and her husband entered into a contract with appellee under which appellee was to build a house for the Garys. During the construction, problems arose between the parties. The Garys had concerns regarding appellee’s workmanship, and appellee contended that there were insufficient funds in the construction bank account each month from which appellee drew its monthly compensation. As a result, they mutually agreed to rescind the contract and executed a “Contract of Rescission and Release” under which the contract was rescinded. The Garys agreed to pay $2,200 to appellee for expenses incurred in connection with the construction, and appellee released the Garys from liability arising from the construction. The Garys tendered a check to appellee for $2,200 but shortly thereafter stopped payment on the check. Appellee then filed this action for breach of contract based on the Garys’ failure to pay the sum of $2,200 and for fraud and conversion based on the dishonored check. The Garys answered the complaint and asserted a counterclaim for fraud in which they alleged that during the negotiations appellee made misrepresentations regarding the quality of work already completed and the status of certain outstanding obligations related to the construction, specifically, that the framing, cornice and siding work had been completed in a workmanlike manner; that the brick on the driveway wall was properly laid with wall ties; that all roofing work and corrections thereto had been completed in a workmanlike manner; and that appellee had previously secured a sufficient quantity of bricks to complete the house. The Garys alleged that they relied on these misrepresentations in arriving at their decision to rescind the contract and that certain defects were of such a nature as to constitute latent defects, not reasonably discoverable. The case proceeded to trial, and at the close of the evidence, appellee moved for directed verdicts on its complaint and the Garys’ counterclaim. The trial court granted directed verdicts on appellee’s complaint on the ground that the Contract for Rescission and Release constituted an accord and satisfaction and on the counterclaim, awarding appellee $2,200 plus interest. The court submitted the determination of attorney fees and punitive damages to the jury which returned a verdict in favor of appellee for $10,791.90 in attorney fees and $3,561.76 in punitive damages. This appeal followed. Because Mr. Gary died prior to the trial, Mrs. Gary is the sole appellant.

1. Appellant enumerates as error the improper admission of certain materialman’s liens which had been filed against appellant by various subcontractors. Appellant contends the testimony regarding the liens was irrelevant and prejudicial and that appellee failed to establish a proper foundation for the admission of the liens. “The issue as to the relevancy and materiality of evidence is for the trial court. Thus, admissibility of evidence is a matter which rests largely within the sound discretion of the trial court.” (Citations and punctuation omitted.) Armech Svc. Co. v. Rose Elec. Co., 192 Ga. App. 829, 830 (1) (386 SE2d 709) (1989). The general premise of appellee’s case was that the Garys made several costly changes to the original plans during construction which resulted in the severe undercapitalization of the bank account which was to fund the construction; that the Garys’ complaints regarding faulty workmanship were not genuine; and that the real issue in the case was the Garys’ inability to pay appellee coupled with their desire to build a more elaborate home than originally planned. The record shows that the liens were filed by subcontractors who were hired after appellee ceased working on the house and that appellant testified that she was dissatisfied with their work and refused to pay them. Appellee contends the liens were relevant to demonstrate the Garys’ financial situation at the time their check was presented to appellee and their pattern of refusing to pay rightful wages to the persons constructing their house. In our view, any prejudice which resulted from the testimony regarding the liens was outweighed by the probative value of the evidence. Moreover, the record reflects that appellee’s testimony provided a proper foundation for the testimony. Accordingly, we find no abuse of discretion.

2. Appellant also contends the trial court erred in granting directed verdicts in favor of appellee. “A directed verdict is authorized only when there is no conflict in the evidence on any material issue and the evidence, with all reasonable deductions and construed in favor of the non-moving party, demands a certain verdict. [Cits.]” Moore v. American Suzuki Motor Corp., 203 Ga. App. 189 (1) (416 SE2d 807) (1992).

Appellant argues that the grant of the directed verdict on her counterclaim for fraud was erroneous because there were “sufficient facts from which an intent to deceive and mislead could be inferred.” “An action for misrepresentation requires proof of five elements: (1) that the defendant made the representations; (2) that at the time he knew they were false; (3) that he made them with the intention and purpose of deceiving the plaintiff; (4) that the plaintiff relied on the representations; (5) that the plaintiff sustained the alleged loss and damage as the proximate result of their having been made.” (Citations and punctuation omitted.) Brown v. Buffington, 203 Ga. App. 402, 403 (416 SE2d 883) (1992). Appellant cites to no evidence which demonstrates that appellee knowingly made false statements on the matters included in the counterclaim, nor is there evidence that appellant reasonably relied on such statements in agreeing to the rescission and release. The evidence demonstrates that prior to executing the rescission and release appellant was on the construction site daily and questioned appellee’s workmanship very early in the construction process; that the parties performed a walk-through inspection of the construction site prior to the rescission; that appellant made no promises in connection with the rescission regarding the quality of the work performed; and that the Garys were fully aware of the problems and deficiencies attendant to the construction of the cornice, siding, framing, skylights, roof line, stucco board and the driveway wall prior to executing the rescission and release. Appellant cannot be heard to say that the deficiencies fraudulently induced her to terminate the contract when, to the contrary, the alleged deficiencies were the factors motivating her agreement to the rescission.

Moreover, there was also no testimony that appellee failed to secure a sufficient quantity of bricks. The evidence shows that the brick supplier estimated the amount of brick necessary to complete the house; that brick was delivered as needed; that due to delays in the construction occasioned by the various changes to the plan, all of the bricks from the initial stock were not delivered; that after appellee left the project, it was discovered that the bricks remaining from the initial stock were no longer available; and that another order of bricks, which would differ slightly from the initial order, would have to be made.

In agreeing to the rescission and release of the original construction contract there was mutual benefit and detriment. Appellee agreed to forego full recovery under the contract in exchange for its out-of-pocket expenses in the amount of $2,200, and the Garys agreed to release appellee from liability in the construction and were relieved of having to complete the project with a contractor with whom they were dissatisfied. Thus, an accord and satisfaction was achieved. See generally OCGA § 13-4-101. Accordingly, the trial court did not err in granting directed verdicts in favor of appellee.

3. Appellant enumerates as error the admission of certain statements purportedly made by Mr. Gary without the proper foundation. Appellant also complains that the statements were self-serving and elicited from an interested party. However, at trial appellant’s counsel objected on the grounds that Mr. Gary was not present at trial to defend himself and that the testimony violated the Dead Man’s Statute. “ ‘(I)t is axiomatic that a ground urged for the first time on appeal will not be considered.’ . . . [Cits.]” Woods v. Advanta Leasing Corp., 201 Ga. App. 844, 845 (2) (412 SE2d 607) (1991).

4. Appellant contends the trial court erred in its charge to the jury on fraud by injecting the word “or” just prior to stating the third element of fraud instead of “and.” However, reading the jury charge as a whole, it does not appear that the jury was misled by the misstatement. Morrison v. Dept. of Transp., 166 Ga. App. 144 (2) (303 SE2d 501) (1983).

5. Appellant also argues that the court erred in failing to instruct the jury as to its award of damages on the directed verdict. Appellant contends that the jury had no way of determining the appropriate level of damages to be awarded as punitive damages and attorney fees without notice of the actual damages awarded. Therefore, since the award of attorney fees and punitive damages is unsupported by any actual damages, it must fail. At the outset, we note that appellant raised no objection to the court’s failure to instruct the jury as to its award at trial; thus it is waived. Woods, supra. Moreover, we do not view this case, as appellant suggests, as one in which the jury had awarded punitive damages and attorney fees without an underlying damage award. There was an underlying damage award of $2,200 and the jury was properly instructed that its deliberation should be confined solely to the issues of punitive damages and expenses of litigation. Furthermore, the verdict was consistent with the evidence presented at trial. This enumeration is without merit.

Decided March 19, 1993.

Lawrence E. Burke, for appellant.

McCalla, Raymer, Padrick, Cobb, Nichols & Clark, Carol V. Clark, Linda S. Finley, for appellee.

6. Finally, appellant contends that the award of punitive damages must fail because the grant of the directed verdict was on the ground of accord and satisfaction and punitive damages cannot be awarded on causes of action which arise “ex contractu.” However, by finding an accord and satisfaction regarding the contract for rescission and release and by charging the jury on fraud, the court properly placed before the jury appellee’s claim for fraud and conversion based on the dishonored check upon which an award of punitive damages is authorized. This enumeration is also without merit.

Judgment affirmed.

McMurray, P. J., and Blackburn, J., concur.


author: Justice George H. Carley. Pope, Chief Judge, Beasley, Presiding Judge,

text:
    A92A2329.
    KING v. THE STATE.
    (430 SE2d 640)
   Justice George H. Carley.

Appellant was tried before a jury and found guilty of possession of cocaine with intent to distribute and possession of a firearm during the commission of a felony. He appeals from the judgments of conviction and sentences entered by the trial court on the jury’s guilty verdicts.

1. Appellant urges that the trial court considered inadmissible evidence during the sentencing phase. “Where the record has shown that illegal evidence has been considered in the presentence hearing, the appellate courts have generally granted a new trial on the issue of punishment. . . . [Cits.] . . . ‘Nevertheless, there is a presumption, in the absence of a strong showing to the contrary, that the trial judge, when sitting without a jury, separates the legal evidence from facts not properly in evidence in reaching his decision ([cit.]).’ ” (Emphasis supplied.) Workman v. State, 137 Ga. App. 746, 749 (7) (224 SE2d 757) (1976).

The record in the instant case shows that the evidence which appellant now contends to be inadmissible was admitted without objection. Thus, there was no affirmative ruling by the trial court on the admissibility of the evidence. The record further shows that the trial court enumerated its reasons for imposition of the sentences and did not include therein the evidence which appellant now contends to be inadmissible. “ [I]n the absence of any indication that [the trial court] relied on the material ... , we find the presumption to be'unrebutted, and that no error was committed.” Watkins v. State, 191 Ga. App. 87, 92 (8) (381 SE2d 45) (1989).

2. Within the 30 days following the trial court’s entry of a judgment of conviction and sentence on the jury’s guilty verdict, appellant secured new counsel who filed the instant appeal and raised the issue of the effectiveness of appellant’s trial counsel. The State urges that this issue has been waived because appellant’s new counsel elected to file an immediate appeal to this court rather than to pursue a motion for new trial in the trial court.

Several cases of this court, including Buchanan v. State, 200 Ga. App. 416, 417 (2) (408 SE2d 721) (1991); Williams v. State, 202 Ga. App. 650, 651 (2) (415 SE2d 67) (1992); and Lee v. State, 205 Ga. App. 659, 660 (6) (423 SE2d 29) (1992), support the State’s contention that the issue has been waived. Those cases are, however, in conflict with controlling Supreme Court authority. Sixayaketh v. State, 261 Ga. 690, 691 (2) (410 SE2d 112) (1991). Those cases are also in conflict with this court’s controlling whole-court authority. “The record shows that appellant’s appellate counsel filed a timely notice of appeal. . . . Under these circumstances, neither Thompson v. State, 257 Ga. 386 (359 SE2d 664) (1987) nor Dawson v. State, 258 Ga. 380 (369 SE2d 897) (1988) are authority for the proposition that the issue of the ineffectiveness of appellant’s trial counsel has been waived. ‘In the present case, appellate counsel did not represent (appellant) at trial or at [a] motion for new trial. Therefore, the requirement of Thompson that the issue of ineffectiveness must be raised at the time of the amended motion for new trial by a new attorney who files a motion for new trial does not preclude the issue here. . . . (T)he requirement of Dawson v. State, supra, that an evidentiary hearing must be requested at the time of an amended motion for new trial does not apply to a case where the appellate counsel did not participate in the motion for new trial, and the issue of ineffectiveness of counsel is raised for the first time on appeal. . . . Since the claim was only raised on appeal, there was no opportunity for a hearing before the trial court; it is not unreasonable that the case be remanded for a hearing at this point.’ [Cit.]” Parrish v. State, 194 Ga. App. 760, 762 (4) (391 SE2d 797) (1990).

The whole-court decision in Parrish has since been recognized as controlling and applied. “Although appellant’s current attorney made her appearance of record before the expiration of the 30[-]day period for the filing of a motion for new trial under OCGA § 5-5-40 (a), no motion for new trial was filed. Nonetheless, under this court’s holding in Parrish v. State, [supra], the lack of any opportunity for a hearing before the trial court requires that we remand this case for an evidentiary hearing on the issue of the asserted ineffectiveness of appellant’s trial counsel.” Adams v. State, 196 Ga. App. 804, 806 (2) (397 SE2d 153) (1990). See also Brady v. State, 207 Ga. App. 451 (2) (428 SE2d 373) (1993).

It follows that insofar as Buchanan, supra at 417 (2); Williams, supra at 651 (2); Lee, supra at 660 (6), and any other decision of this court holding that the issue of the effectiveness of trial counsel has been waived if new counsel elects to file a direct notice of appeal rather than a motion for new trial, they are contrary to the controlling authority of the Supreme Court and this court’s whole-court decision in Parrish v. State, supra at 762 (4), and they are hereby overruled. Accordingly, the instant “case must be remanded for an evidentiary hearing on the issue of the asserted ineffectiveness of [appellant’s trial counsel]. ‘If the trial court finds (appellant) was denied effective assistance of counsel, he will be entitled to a new trial. If the court finds adversely to (appellant), (appellant’s) right to appeal that order within thirty days is preserved. (Cit.)’ [Cit.]” Parrish v. State, supra at 762 (4).

Judgments affirmed and case remanded with direction.

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

Pope, Chief Judge,

concurring specially.

I agree that the whole court case of Parrish v. State, 194 Ga. App. 760, 762 (4) (391 SE2d 797) (1990) is controlling as to Division 2 and that his case must therefore be remanded to the trial court for a hearing on defendant’s ineffective assistance of counsel claim. However, I am compelled to write separately to express my concern with the line of cases that both appellate courts have rendered that has resulted in what Justice Fletcher recently described as “a confusing tangle of procedural rules regarding when to assert a claim of ineffective assistance of trial counsel.” Maxwell v. State, 262 Ga. 541, 543 (422 SE2d 543) (1992) (Fletcher, Justice, concurring specially).

As noted by the majority, this court has issued several panel decisions that correctly follow Parrish and its progeny. On the other hand, this court has also issued numerous panel decisions that ignore the holding in Parrish, and, in some cases, rely instead on cases decided prior to Parrish that were implicitly, though not specifically, overruled by Parrish. These cases, contrary to the holding in Parrish, have held that the issue of trial counsel’s ineffectiveness is waived if new counsel who enters the case before the expiration of the 30-day period during which a motion for new trial could be filed elects instead to file a direct appeal and therein asserts for the first time the ineffectiveness of trial counsel. Thus, while we are bound by Parrish, it is obvious that this court is not in complete accord that Parrish reaches the proper result in remanding for a hearing on the issue of ineffectiveness of trial counsel.

My review of several of our Georgia Supreme Court decisions dealing with this issue reveals equally muddy waters. In Sixayaketh v. State, 261 Ga. 690, 691 (2) (410 SE2d 112) (1991), the defendant dismissed his court-appointed counsel after trial and did not file a motion for new trial. However, proceeding pro se, defendant filed a timely notice of appeal raising for the first time the issue of trial counsel’s ineffectiveness. The Supreme Court held that under these circumstances the case should be remanded to the trial court for a hearing on defendant’s ineffective assistance of counsel claim.

While Sixayaketh provides direct authority for the result reached by the majority in this case, it is interesting to note that the Georgia Supreme Court denied certiorari in McJunkin, see footnote 1, supra, which reaches the opposite result of Parrish. Moreover, both Parrish and Sixayaketh, seem inconsistent with the often repeated mandate that to preserve an ineffectiveness claim for appellate review it must be raised at the “earliest practicable moment.”

Another inconsistency becomes obvious in attempting to reconcile these “timely” direct appeal cases (wherein new appellate counsel has elected to proceed by filing a notice of appeal rather than a motion for new trial), with the procedure set forth in Ponder v. State, 260 Ga. 840 (1) (400 SE2d 922) (1991) and more recently in Maxwell v. State, 262 at 542 (3) for out-of-time appeal cases. In Ponder the Supreme Court held that when permission to file an out-of-time appeal is granted, appellate (new) counsel must file a motion for new trial in the trial court within the 30 days granted for filing the out-of-time appeal or the issue of trial counsel’s ineffectiveness is waived.

More recently, in Maxwell the Supreme Court considered the question of whether the procedure set forth in Ponder must be followed even if the defendant has already filed and been denied a motion for new trial prior to the grant of permission to file an out-of-time appeal. The Court answered the question in the affirmative, ruling “that a defendant who has had one motion for new trial may file a second motion for new trial within 30 days after the grant of an out-of-time appeal.” Maxwell, 262 Ga. at 543. In reaching this result, the Court, relying on the rationale set forth in Ponder, noted “that the grant of an out-of-time appeal permits a defendant, by the grace of the court, to start the post-conviction process anew.” (Footnote omitted.) Maxwell, 262 Ga. at 542-543. Pursuant to the holdings in Ponder and Maxwell the out-of-time defendant must file a motion for new trial to avoid waiver of an ineffectiveness claim, while under Sixayaketh and Parrish and its progeny a defendant who acts within 30 days of entry of judgment can choose not to pursue that claim at the first instance in the trial court by filing a motion for new trial but can elect instead to raise the ineffectiveness issue for the first time on appeal with the knowledge that the case will be remanded for a hearing on that issue. This to me seems inconsistent.

Another inequity appears when we compare Parrish and cases such as the one at bar with those cases in which new counsel does file a motion for new trial or amended motion for new trial but fails to raise the ineffectiveness issue, and the appellate courts thereafter hold that issue is waived when later asserted for the first time on appeal. See, e.g., Thompson v. State, 257 Ga. 386 (2) (359 SE2d 664) (1987). It seems to me that the unintended result is that appellants in criminal cases (or their counsel) may decide it is safer to forego filing motions for new trial and proceed immediately to the appellate court, thereby creating a situation which is the antithesis of judicial economy and is in direct contravention to the stated goal of having these issues decided at the “earliest practicable moment.”

The time has come to unweave “the incredible tangle of special rules of procedure that apply when [an ineffective assistance of counsel] claim is asserted.” Maxwell, 262 Ga. at 543 (Fletcher, Justice, concurring specially). The best solution would be to implement a procedure, through the enactment of appropriate legislation, whereby the trial court would determine the effectiveness of counsel as a matter of course following every criminal trial in this state. This would obviate the need for the myriad of procedural rules, promote judicial economy by halting the practice of shuffling these cases back and forth between the lower and appellate courts, and most importantly, would allow these claims to be considered in the appropriate forum at the “earliest practicable moment.”

Beasley, Presiding Judge,

concurring specially.

I concur in Division 1 but not fully in Division 2. I concur only because I am bound by Parrish v. State, 194 Ga. App. 760, 762 (4) (391 SE2d 797) (1990). I agree with Chief Judge Pope for the most part, but I do not join in his suggestion for a solution.

In my view, the better practice would be to require defendants who wish to claim that trial counsel was constitutionally ineffective to present that claim “at the earliest practicable moment,” in the words of Smith v. State, 255 Ga. 654, 656 (3) (341 SE2d 5) (1986). That should mean, when new counsel enters the case before the judgment is appealed, by motion for new trial, or amendment to motion for new trial, or extraordinary motion for new trial after the time for motion for new trial has passed or such a motion has been denied. OCGA § 5-5-41 (a) and (b). Although an extraordinary motion does not extend the time for filing a notice of appeal, a 30-day extension for filing the notice can be sought. OCGA § 5-6-39 (a) (1) and (c). It can also be done after permission to file an out-of-time appeal has been obtained and before the notice for such is filed. Ponder v. State, 260 Ga. 840 (400 SE2d 922) (1991). There is ample opportunity, under orderly procedure readily available, for raising the issue at the trial court level while the case is still there, witnesses are available, memories are fresh, and an optimum quality hearing can be held. This avoids the long delay in final disposition of the case, with all of delay’s evil consequences.

When defendants are allowed to remain mum about the issue until the appeal is eventually ruled on and they gain a return to the trial court for consideration of an issue which could have been dealt with a year or more before, the procedure becomes, in my view, an abuse of process and a disservice to the constitutional mandate for the “speedy, efficient, and inexpensive resolution of . . . prosecutions.” Ga. Const. 1983, Art. VI, Sec. IX, Par. I. It wastes judicial resources, requiring the trial court to resurrect its recollection after a much greater time lapse from the time of trial and in most instances requires piecemeal appeal.

If there is some valid reason the issue is not raised and ruled on at the earliest practicable moment, then the avenue of habeas corpus is available. Requiring timely raising, with the clear sanction of waiver, would in most cases result in resolution of the issue, if there is an arguable one, before any direct appeal, and would serve to afford a speedier trial in needful cases, without the delay of a remand.

It is not necessary to determine effectiveness as part of the procedure in every criminal case, as suggested in the special concurrence. This would bog down the system with unfounded inquiries or could even lead to cursory decisions on the question because it becomes routine. It would require new counsel to enter every criminal case so that the record, which would have to be prepared, can be reviewed. New counsel would have to interview trial counsel and comb the record for indicia of ineffectiveness and would have to investigate defendant’s complaints about trial counsel’s actions, or inactions, which are outside the record. The trial court cannot represent the defendant in ascertaining flaws in trial counsel’s performance.

Moreover, a hearing will have to be conducted in most cases. This issue would then automatically be a part of every criminal appeal.

In the case of Sixayaketh v. State, 261 Ga. 690 (410 SE2d 112) (1991), considered by the majority as controlling, defendant was proceeding pro se. For him, proceeding without the aid of counsel, the earliest practicable moment to complain of trial counsel’s representation may well have been on direct appeal.

Decided March 19, 1993.

Bruce F. Morriss, Daniel Shim, for appellant.

Lewis R. Slaton, District Attorney, Kenneth D. Feldman, Carl P. Greenberg, Assistant District Attorneys, for appellee.

I am authorized to state that Judge Johnson and Judge Blackburn join in this special concurrence.

        Lee v. State, 205 Ga. App. 659 (423 SE2d 29) (1992); Williams v. State, 202 Ga. App. 650 (415 SE2d 67) (1992); Buchanan v. State, 200 Ga. App. 416 (408 SE2d 721) (1991); Watts v. State, 200 Ga. App. 54 (1) (406 SE2d 562) (1991); McJunkin v. State, 199 Ga. App. 353 (405 SE2d 110), cert. denied, 199 Ga. App. 906 (1991).

       A review of these decisions shows that a majority of judges now serving on this court have authored or concurred in opinions so holding.


author: McMurray, Presiding Judge.

text:
    A92A1717.
    WILKERSON et al. v. ALEXANDER et al.
    (429 SE2d 685)
   McMurray, Presiding Judge.

Appellant Shiela Wilkerson, individually and as administratrix of the estate of her minor daughter Nyrica Knox, brought an action against appellees Brenda Davis and Roosevelt Alexander alleging that their negligence caused the wrongful death of the child in a fire in their home. Appealing from the grant of summary judgment to appellees, she contends summary judgment was improper because three issues of material fact are in dispute: (1) whether there was a functioning smoke detector in the appellees’ house on the night of the fire, demonstrating their superior knowledge of the increased risk of foreseeable, life-threatening danger; (2) whether appellees’ failure to have a functioning smoke detector in the house on the night of the fire was the proximate cause of Nyrica Knox’s death; and (3) whether Nyrica Knox should be considered in the status of a licensee or invitee, even though this distinction has been significantly diluted by recent court decisions regarding duties owed to minors.

The undisputed facts, briefly summarized, are as follows: Roosevelt Alexander and Brenda Davis, who are common-law husband and wife, had been friends and close neighbors of appellant since 1988. Davis’s three children, two grandchildren and niece, Ashley Davis, lived with them. Ashley Davis and appellant’s six-year-old daughter Nyrica Knox became friends and played together every day. Appellant and Brenda Davis and Davis’s adult daughter Vanessa Davis also spent a lot of time together at one house or the other, and on weekends, while Alexander was working nights, they would often go together to a nightclub. On these occasions, Nyrica Knox stayed overnight at the appellees’ house with the other children, who were supervised by the 13-year-old daughter of Brenda Davis after Alexander left for work.

On Saturday, September 16, 1990, appellant had not planned to go out, but Nyrica Knox wanted to spend the night with Ashley Davis. Appellant initially refused to let her go, but when Brenda Davis' called to invite the child to come over appellant permitted her to leave between 8:00 and 9:00 p.m. Davis suggested they go to the nightclub and appellant declined, but then decided to go get a tire she needed for her car and asked Davis to accompany her in case she had any car trouble. Brenda Davis, Vanessa Davis and appellant sat and talked at appellant’s house until about 10:45 p.m. Brenda Davis called and asked her children to bring her a pair of flat-heeled shoes in case she had to walk home, and all of them came over to appellant’s house with the shoes except Nyrica Knox, who the other children said had fallen asleep on the sofa in the den.

Brenda Davis went back to her house to check on Nyrica Knox while appellant and Vanessa Davis waited in the car before they departed. Alexander had left for work but everything was fine and Nyrica Knox was still asleep on the sofa. Brenda Davis, Vanessa Davis and appellant went to the house of the friend who had the tire. A short time after they arrived, they were told that Davis’s house was on fire. When they got back to the house, they learned that Nyrica Knox had been taken to Grady Hospital, where she died of smoke inhalation. All the other children had been able to escape unharmed from the burning house except Nyrica Knox, who was found behind the door on the bathroom floor.

The fire department arson investigator determined that the fire was started in the bedroom next to the kitchen by small children playing with a lighter. Appellant remembered seeing matches and lighters left out around the house on several occasions, but said that Brenda Davis would always either put them away from the children, or warn the children not to touch them. She also recalled that there was a smoke detector near the kitchen. She was at the house about three weeks prior to the fire while Brenda Davis was cooking. She deposed that when smoke set off the alarm, Davis reached up and turned it off so it would not buzz. She added that Davis turned it back on when the smoke cleared.

The arson investigator testified he did not believe there was a smoke detector in the house as he could not locate any signs of one, and he thought Roosevelt Alexander had told him there was none. By affidavit, he deposed there was no doubt or question in his mind that had there been a smoke detector on the premises he would have found it or a part of it during his investigation, as the severity of the fire was not a factor in the ultimate location of a smoke detector at a given scene. The appellees were unequivocal, however, that there had been a functioning smoke detector located in the house at all times they were living there. Held:

1. Appellant contends that the most significant issue in dispute is whether there was a functioning smoke alarm in appellees’ house on the night of the fire. She argues that the arson investigator’s failure to find any signs of one in the burned house raises an inference that there was none, creating a pivotal question of fact for jury resolution; that even though there is no statute requiring that a functioning smoke alarm must be maintained as a matter of law, the appellees had a common-law duty to do so and the “deliberate removal” of the fire detector from their house was a violation of the duty they owed Nyrica Knox; and that having undertaken to provide a safe environment by purchasing a house with a smoke alarm, their removal of this protection was negligent.

“In order to state a cause of action for negligence it is necessary to establish the essential elements of duty, breach of that duty, and proximate cause which amounts to a legally sufficient causal connection between the conduct alleged and the resulting injury. [Cit.]” Black v. Ga. Southern & Fla. R. Co., 202 Ga. App. 805, 806 (1) (415 SE2d 705) (1992). “It is a well settled principle of negligence law that the occurrence of an unfortunate event is not sufficient to authorize an inference of negligence. [Cit.]” Franklin v. Elmer, 174 Ga. App. 839 (1), 842 (332 SE2d 314) (1985). “The essence of negligence ‘consists of exposing another to whom one owes a duty, or exposing oneself, to a foreseeable unreasonable probability of harm. Reasonable foresight does not require of a plaintiff or a defendant that he anticipate exactly what will happen and exercise perfect judgment to prevent injury. “Not what actually happened, but what the reasonably prudent person would then have foreseen as likely to happen, is the key to the question of reasonableness.” (Cit.) “Negligence is predicated on faulty or defective foresight rather than on hindsight which reveals a mistake.” (Cits.)’ [Cit.] If a defendant owes no legal duty to the plaintiff, there is no cause of action in negligence. [Cit.]” Ogletree v. Navistar Intl. Transp. Corp., 194 Ga. App. 41, 44 (1), 45-46 (390 SE2d 61) (1989), overruled on other grounds, Weatherby v. Honda Motor Co., Ltd., 195 Ga. App. 169 (393 SE2d 64) (1990).

Absent a statute, ordinance or regulation requiring the installation and maintenance of a smoke detector, appellees had no legal obligation to do so. Compare Total Equity Mgmt. Corp. v. Demps, 191 Ga. App. 21, 23 (2) (381 SE2d 51) (1989). “Thus the matter is thrown into the common law, which does not specifically set this particular requirement either. If such a duty exists, it is because it arises under the statute which provides that: ‘In general, ordinary diligence is that degree of care which is exercised by ordinarily prudent persons under the same or similar circumstances. . . . The absence of such diligence is termed ordinary negligence.’ OCGA § 51-1-2.” Ogletree v. Navistar Intl. Transp. Corp., supra at 46.

We do not consider the evidence presented by appellant to be such as to demand a holding, as a matter of law, that the appellees were under a duty to provide a functional smoke detector for the benefit of Nyrica Knox and failed to do so. Thus, “we do not find a material question of fact remains as to the essential element of breach of duty. ‘Negligence cannot be presumed; on the contrary, performance of duty and freedom from negligence is presumed. (Cit.)’ (Emphasis in original.) [Cit.]” Robertson v. MARTA, 199 Ga. App. 681, 683 (405 SE2d 745) (1991). Here, as in Wren v. Harrison, 165 Ga. App. 847, 849 (303 SE2d 67) (1983), “ ‘[w]hile this court is sympathetic to the great loss suffered by the bereaved [mother], under the facts of this case [she has] failed to establish any duty owed which would provide a basis for actionáble negligence. (Cits.)’ [Cits.]”

2. In addition, “[appellant’s] argument overlooks the principle that liability in tort does not arise unless there is present both negligence and proximate cause.” (Emphasis in original.) Taylor v. Mc-Lendon, 205 Ga. App. 390 (2) (422 SE2d 440) (1992). Regardless of whether there was a functioning smoke detector in the appellees’ home and whether the alarm went off on the night of the fire, the evidence does not prove that the absence of such a warning device was the proximate cause of Nyrica Knox’s tragic death. Clearly, she did not sleep through the fire since she had moved from the couch into the bathroom, and there was nothing to indicate that the only reason she did not survive was because no alarm sounded. Indeed, the fire inspector testified that because many people, particularly children, become so frightened during fires that they hide in concealed places rather than leaving the house as they should, fire fighters are trained to look under beds and in closets as a part of the preliminary search they conduct.

3. It is thus unnecessary to determine if Nyrica Knox was an invitee or a licensee in appellees’ home at the time of the fire. “A defendant may prevail on its motion for summary judgment ‘by showing the court that the documents, affidavits, depositions and other evidence in the record reveal there is no evidence sufficient to create a jury issue on at least one essential element of a plaintiff’s case. If there is no evidence sufficient to create a genuine issue as to any essential element of plaintiff’s claim, that claim tumbles like a house of cards. All the other disputes of fact are rendered immaterial. (Cit.) A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).’ [Cits.]” Collins v. Byrd, 204 Ga. App. 893, 894 (420 SE2d 785) (1992).

Decided March 2, 1993 —

Reconsideration denied March 22, 1993.

Robert B. Lipman, Darryl S. Marmon, for appellants.

Drew, Eckl & Farnham, Peter H. Schmidt II, Elizabeth C. Helm, for appellees.

Appellant has failed to fulfill this edict. Appellees, having pierced the allegations of the complaint and established as a matter of law that the appellant could not recover under any theory fairly drawn from the pleadings and the evidence, were entitled to prevail on their motion for summary judgment, and the trial court correctly' ruled in their favor. Baldwin County Hosp. Auth. v. Martinez, 204 Ga. App. 840 (420 SE2d 760) (1992).

Judgment affirmed.

Cooper and Blackburn, JJ., concur.


author: Johnson, Judge.

text:
    A92A2108.
    JOHNSON v. THE STATE.
    (429 SE2d 690)
   Johnson, Judge.

Larry D. Johnson was convicted of aggravated child molestation and two counts of child molestation. He appeals from his convictions and the denial of his motion for a new trial.

1. At a hearing outside of the jury’s presence, Special Agent Clyde Heard testified that while administering a polygraph examination to Johnson, Johnson made certain inculpatory statements to him. Agent Heard testified that Johnson admitted that he had taken showers with the victim and had touched her breasts; and that he had had the occasion to injure himself and during that time the victim had taken part in bathing him, making contact with his penis. These statements were allegedly made to Agent Heard while they were inside the examination room, during the period before and after Johnson was connected to the polygraph machine. These two stages are referred to as the “pre-test” and “post-test” stages of the exam, respectively. The trial court had previously ruled the results of the polygraph exam inadmissible as there was no effective stipulation between the parties, but allowed the alleged statements made by Johnson during the pre-test and post-test periods to be admitted. Johnson contends that the trial court erred in admitting the statements into evidence. We agree.

It is well settled that results of unstipulated polygraph examinations are inadmissible evidence. Sustakovitch v. State, 249 Ga. 273, 275 (2) (290 SE2d 77) (1982); State v. Chambers, 240 Ga. 76, 77 (239 SE2d 324) (1977). The question before us, however, is whether, as a matter of law, a defendant’s “pre-test” and “post-test” statements made at an unstipulated, inconclusive polygraph examination may be admitted into evidence.

In Brown v. State, 175 Ga. App. 246 (333 SE2d 124) (1985), the trial court allowed into evidence testimony to the effect that after defendant entered into a stipulation that he would submit to a state-administered polygraph test and that the results would be admitted into evidence, he declined to take the test. We reversed the trial court in Brown acknowledging that “[i]n this State it is only evidence as to the results of polygraphs that is admissible, and then only upon express stipulation of the parties.” Id. at 248. This is so because “doubt exists as to the complete reliability of lie detector tests.” State v. Chambers, supra at 77.

The record reveals that the evidence presented at the hearing on this matter indicated that Johnson’s inculpatory statements were made during, and as a result of, the polygraph exam. Agent Heard testified that: “Polygraph means from beginning to end, pre-test, post-test, in-test interviews; there are three portions to it. So the polygraph test is from the moment I talk to him until the moment he walks out the door. That’s the polygraph examination.”

We find the state’s argument that the statements were admissible as pre-test or post-test statements to be untenable. All of the evidence presented at the hearing indicated that pre-test and post-test interviews are an integral part of the polygraph examination. We conclude that Johnson’s inculpatory statements were made as a result of and, indeed, were a part of, an unstipulated polygraph examination and as such were inadmissible as evidence at his trial.

We cannot hold the trial court’s error in admitting the evidence to be harmless because we cannot say, as a matter of law, that the error did not contribute to Johnson’s convictions. See Brown v. State, supra at 249 (4). Accordingly, we find that the trial court’s error in admitting the prejudicial evidence requires that Johnson’s conviction be reversed.

2. As a result of our holding above, we need not reach the appellant’s remaining enumerations of error.

Decided March 9, 1993 —

Reconsideration denied March 22, 1993

Cook, Noell, Tolley & Wiggins, Edward D. Tolley, Ronald E. Houser, for appellant.

Harry N. Gordon, District Attorney, James B. McClung, Assistant District Attorney, for appellee.

Judgment reversed.

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

       We are further troubled by the fact that Johnson was advised by counsel, prior to entering the examination room, that the polygraph test was unstipulated and therefore nothing he said would be used against him at trial. This assurance created an expectation in Johnson that once he entered the room he was protected and is consistent with Agent Heard’s testimony defining “polygraph test.” Furthermore, the voluntariness of the subject statements is drawn into question by the additional fact that Johnson’s counsel was not permitted in the examination room during the test.


text:
    A92A2420.
    BOULDEN et al. v. FOWLER.
    (429 SE2d 692)
   Johnson, Judge.

This is the second appearance of this case in this court. In Boulden v. Fowler, 202 Ga. App. 237 (414 SE2d 263) (1991), we reversed the trial court’s dismissal of the appeal on the ground that there had been an unreasonable and inexcusable delay in filing the trial transcript. The case is now before us for consideration of the appeal on its merits. Specifically, Kathryn and David Boulden raise three enumerations of error regarding jury instructions given in the trial at which they were awarded a verdict in the amount of $10,000 for injuries Kathryn Boulden sustained in a motor vehicle accident.

1. Boulden first asserts that the trial court erred when it charged the jury on the law of collateral source. Because no specific references to the record are given (in contravention of Court of Appeals Rule 15), it is difficult to ascertain which portion of the charge appellant finds objectionable. The record reveals that the trial court refused to give defendant’s requested charge on the collateral source rule. OCGA § 51-12-1. A charge was given regarding the mandatory provisions of the no-fault law, and the jury instructed that any award for loss of earnings should be reduced by the $2,500 Boulden had already received. OCGA § 33-34-9. No exception was taken to that charge, however. “It is axiomatic that a party cannot complain of the giving of an instruction to the jury unless he objects thereto after the court has instructed the jury and before the jury returns a verdict.” Rodriguez v. Davis, 202 Ga. App. 550, 551 (1) (415 SE2d 41) (1992). No proper objection to the jury charge having been made, there is nothing before us to review.'

2. Boulden next complains that the trial court erred when it charged the jury on the law of driving under the influence. David Boulden, who was driving the car in which Kathryn was riding when she was injured, admitted to having consumed two beers three to four hours prior to the collision. The police officer who investigated the accident testified that he did not smell alcohol on Boulden’s breath or observe any signs that he was under the influence of alcohol. Compare Seitz v. McCullough, 138 Ga. App. 147 (225 SE2d 917) (1976). Having given his opinion earlier that the collision was caused by the other vehicle failing to yield the right-of-way, the investigating officer responded on cross-examination that it would not change his opinion in any way if he knew that David Boulden had consumed the alcohol several hours earlier. The court instructed the jury that it is unlawful for a person to drive while under the influence of alcohol to the extent that it is less safe for the person to drive and that the jury must decide whether David Boulden was driving under the influence of alcohol to the extent that it was less safe for him to drive.

Decided March 12, 1993 —

Reconsideration denied March 22, 1993

David Wolfe & Associates, L. David Wolfe, Susan E. Teaster, for appellants.

Hatcher, Stubbs, Land, Hollis & Rothschild, Robert C. Martin, Jr., for appellee.

There is absolutely no evidence that the alcohol consumed by David Boulden in any way affected his driving as of the time of the collision. There was absolutely no evidence that he was a “less safe driver” as a result of having consumed alcohol. “A charge on an issue not warranted by the evidence should not be given to the jury.” Ware v. Martin, 209 Ga. 135 (4) (70 SE2d 759) (1952). “Substantively correct or not, a charge which is not authorized by the evidence ... is presumed to be harmful. . . . Instructions not warranted by the evidence are cause for a new trial unless it is apparent that the jury could not have been misled thereby.” (Citations and punctuation omitted.) Petrolane Gas Svc. v. Eusery, 193 Ga. App. 860, 862 (2) (389 SE2d 355) (1989). The charge on driving under the influence was unsupported by the evidence, and it is reversible error to have given it.

3. Finally, Boulden asserts that the trial court erred in charging the jury on the law of assumption of the risk. In light of our holding in Division 2, there is no evidence that there was risk to assume, and giving this charge would be error as well. However, assumption of the risk is an absolute defense and the jury could not have found that Kathryn Boulden “assumed the risk” and still awarded her damages. See Benson v. Tucker, 160 Ga. App. 217, 218 (3) (286 SE2d 485) (1981). Therefore, even if the trial court erred in giving this charge, it was harmless.

Judgment reversed.

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


author: Andrews, Judge.

text:
    A92A2028.
    CLAYTON COUNTY HOSPITAL AUTHORITY et al. v. WEBB et al.
    (430 SE2d 89)
   Andrews, Judge.

Clayton County Hospital Authority (Authority), and five affiliated corporations created by the Authority, appeal from the judgment of the trial court ordering them to provide records sought under the Open Records Act, OCGA § 50-18-70 et seq., by Sandra Webb and the Georgia Baptist Medical Center (Georgia Baptist).

The Authority is a governmental entity created pursuant to the Hospital Authorities Act, OCGA § 31-7-70 et seq. In January 1991, the Authority reorganized itself by creating a group of affiliated nonprofit corporations, and transferring control of the Authority’s assets to one or more of these corporations: Georgia MedCorp, Inc. (MedCorp); Georgia MedCorp Ventures, Inc. (Ventures); Georgia MedCorp Development, Inc. (Development); Southern Regional Medical Center, Inc. (SRMC), and Southern Regional Medical Center Foundation, Inc. (Foundation). Through a lease and management agreement, the Authority transferred substantially all of its assets, totaling more than $145,000,000 to SRMC for a period of 40 years. SRMC subsequently transferred assets to at least some of the other corporations. The records of the Authority, MedCorp, Ventures, Development, SRMC, and Foundation are in the possession of and controlled by the Authority.

In February 1992, Webb, a resident of Clayton County, made a request pursuant to the Act to inspect and copy the following records of the Authority:

“(1) All records, including but not limited to minutes, notices, attendance lists, records of votes, resolutions, notes, agenda, presentations, and handouts, relating to meetings of the Authority from January 1, 1990 to the present.

“(2) All records relating to financial transactions from January 1, 1990, to present which, in the case of any individual transaction, involved the transfer to, from or on behalf of the Authority of more than $100,000.

“(3) Copies of the 1991 audit of the Authority and the unaudited year-end financial statements of the Authority.”

The Authority provided some of the records, but refused to provide others. In March 1992, Webb made another request under the Act to inspect and copy the following records of the Authority, MedCorp, Ventures, Development, SRMC, and Foundation:

“(1) All records of transfers of funds from the Authority to MedCorp, Development, SRMC, Ventures or Foundation.

“(2) All records of transfers of funds from MedCorp, Development, Ventures or Foundation to any person or entity, including but not limited to transfers between MedCorp, Development, Ventures or Foundation.

“(3) All records of transfers of funds from SRMC to MedCorp, Development, Ventures or Foundation.

“(4) All records of meetings of all boards, committees, and officers of MedCorp, Development, Ventures or Foundation.

“(5) All records identifying the sources of the $29,553,041 listed on page 12 of the 1991 Audited Financial Statements of Clayton County Hospital Authority as an ‘Asset whose use is limited (By board for capital improvements),’ and all records identifying the limitations that exist as to the use of such asset.

“(6) All records explaining the change from $36,532,325 to $0 for ‘Assets whose use is limited, less current portion’ on page 2 of the 1991 Audited Financial Statements of Clayton County Hospital Authority.

“(7) All records identifying the sources of the $22,675,542 listed on page 6 of the 1991 Audited Financial Statements of the Clayton County Hospital Authority as a ‘Transfer of assets limited as to use to Southern Regional Medical Center, Inc.’ and all records identifying the limitations that exist as to the use of such asset.

“(8) All records identifying the investment in real estate listed on page 2 of the 1991 Audited Financial Statements of Clayton County Hospital Authority as a ‘Transfer of investment in real estate to Southern Regional Medical Center, Inc.’ ”

In response to the second request, attorneys for the Authority agreed to provide some of the records, but refused to provide others on the ground that MedCorp, Ventures, Development, and Foundation are private non-profit corporations, and their records are not public records subject to the Act. Subsequently, Webb was also refused access to the records of various committee meetings of the Authority and SRMC on grounds that such records would reveal “plans, proposals, or strategies that would be of competitive advantage in the operation of the Hospital.”

Webb claims she made these requests in her own behalf as an interested taxpayer of Clayton County, although she admits she is an employee of Georgia Baptist, and that Georgia Baptist provided her with legal counsel to make the requests, and paid all of her legal fees, and all expenses associated with the requests.

On April 13, 1992, Georgia Baptist, a private non-profit corporation, made a request under the Act for access to the records denied Webb, along with additional records of the Authority, MedCorp, Ventures, Development, SRMC, and Foundation. In the letter making the request, Georgia Baptist asserted that it was aware of the Authority’s reorganization, and of its efforts using the new corporate structure to file an application to build a hospital in Fayette County. The request further states that Georgia Baptist had also applied to build a hospital in Fayette County, and that the Authority’s refusal to provide relevant records to Webb raised questions about the legality of the Authority’s competition with Georgia Baptist in the pending applications. In addition to records not provided to Webb, the request sought “all other records of [the Authority, MedCorp] and their subsidiaries which address the plan of reorganization approved by the Authority and its implementation.” In response, the Authority provided no additional records, and further claimed that the withheld records were not subject to the Act because they were being sought for a commercial purpose.

On April 17, 1992, Webb and Georgia Baptist filed a petition in Clayton County Superior Court against the Authority and all five affiliated corporations seeking to compel disclosure of the requested records under the Act. The Authority and the other defendant corporations moved for dismissal of the petition under OCGA § 50-18-70 (e) on the basis that the pending applications of Georgia Baptist and MedCorp for certificates of need for a hospital in Fayette County required that access to the requested records be given prior approval in the administrative proceedings associated with the applications.

The foregoing facts were before the trial court in the pleadings, admissions therein, or stipulations of the parties. After a hearing in which no evidence was presented, the trial court denied the motion to dismiss, ruled that the Authority and all of the defendant corporations were subject to the Act, and granted the petition on the conditions that the plaintiffs provide a statement under OCGA § 50-18-70 (d) that the information in the records was not to be used for commercial purposes, and that the defendants were not required to produce records exempted by OCGA § 31-7-75.2.

On appeal, the Authority and the other corporate defendants assert three errors: (1) that under OCGA § 50-18-70 (e), the requests required prior approval in the pending certificate of need administrative proceedings; (2) that Webb and Georgia Baptist were not entitled to receive the requested information because they intended to use it for commercial purposes as controlled by OCGA § 50-18-70 (d); and (3) that the records requested from the five affiliated corporations created when the Authority reorganized were not public records subject to the Act.

1. The first question in an Open Records Act suit is whether the requested records are “public records.” Napper v. Ga. Television Co., 257 Ga. 156, 160 (356 SE2d 640) (1987). Under OCGA § 50-18-70 (a), public records “shall mean all documents, papers, letters, maps, books, tapes, photographs, computer based or generated information, or similar material prepared and maintained or received in the course of the operation of a public office or agency. ‘Public records’ shall also mean such items received or maintained by a private person or entity on behalf of a public office or agency which are not otherwise subject to protection from disclosure. Provided, further, this Code section shall be construed to disallow an agency’s placing or causing such items to be placed in the hands of a private person or entity for the purpose of avoiding disclosure.” The Act encompasses “[a]ll state, county, and municipal records. . . .” Board of Regents &c. of Ga. v. Atlanta Journal &c., 259 Ga. 214, 215 (378 SE2d 305) (1989). As a governmental entity created pursuant to OCGA § 31-7-70 et seq., the records of the Clayton County Hospital Authority are subject to the provisions of the Act. Richmond County Hosp. Auth. v. Southeastern Newspapers Corp., 252 Ga. 19 (311 SE2d 806) (1984). Moreover, the Act specifically provides that “[a] 11 public records of hospital authorities shall be subject to this article except for those otherwise excepted by this article or any other provision of law.” OCGA § 50-18-72 (c) (1).

The Authority and its five corporate affiliates contend that the reorganization created MedCorp, Ventures, Development, Foundation, and SRMC as private corporations, whose records are not “public records” subject to the Act. No evidence was introduced at the hearing as to the organization or function of the five affiliated corporations. However, the defendants admitted in their response to the petition that all of the corporations were created as part of a reorganization of the Authority; that the assets of the Authority were transferred to one or more of the corporations, and that the records of all of the corporations remained in the possession and control of the Authority. On these facts, there was a sufficient basis to conclude that the private corporations functioned under the direction and control of the Authority to implement the Authority’s duty to provide for the public health. None of the disputed records was examined by the trial court, and the defendants now claim Webb and Georgia Baptist failed to carry the burden of proving the documents were public records subject to the Act. The Authority admittedly had the documents it claimed to be private records in its possession, and made no effort to produce them for examination by the trial court in support of its position. If the defendants intended to rely upon the specific contents of the withheld documents as a defense to production under the Act, they had the burden of producing the records for inspection by the court. See Brown v. Minter, 243 Ga. 397, 398 (254 SE2d 326) (1979). In fact, the defendants relied not on the specific content of any requested document to demonstrate its private nature, but rather on the claim that the documents were those of private corporations not subject to the Act. Despite the private status of the corporations, the trial court was authorized to find on the facts before it that they were subject to the Act, and that the requested documents were “public records” under the Act. See Macon Telegraph Pub. Co. v. Bd. of Regents &c. of Ga., 256 Ga. 443, 444-445 (350 SE2d 23) (1986); Richmond County, supra at 192.

2. Secondly, we must determine whether the public records in this case were protected from disclosure under the provisions of OCGA § 50-18-70 (e). Effective April 6, 1992, subsection (e) was added to OCGA § 50-18-70, and provides that: “In a pending proceeding under Chapter 13 of this title, the ‘Georgia Administrative Procedure Act,’ or under any other administrative proceeding authorized under Georgia law, a party may not access public records pertaining to the subject of the proceeding pursuant to this article without the prior approval of the presiding administrative law judge, who shall consider such open record request in the same manner as any other request for information put forth by a party in such a proceeding.”

The record reflects that Georgia Baptist and MedCorp have both filed an application with the State Health Planning Agency for a certificate of need to build a hospital in Fayette County. The procedures set forth in OCGA § 31-6-40 et seq. for consideration of a certificate of need by the Health Planning Agency, and appeal to the Health Planning Review Board, establish administrative proceedings within the meaning of OCGA § 50-18-70 (d). See North Fulton Community Hosp. v. State Health Planning &c. Agency, 168 Ga. App. 801 (310 SE2d 764) (1983). The trial court made no determination as to whether all or any of the records requested by Georgia Baptist pertained to the subject of a pending certificate of need application filed by Georgia Baptist, or to any pending application of MedCorp to which Georgia Baptist has become a party by giving notice of its opposition to the application. See OCGA § 31-6-44. Since the record is not sufficient on this issue, the case must be remanded for the trial court to consider evidence, make this determination as to the documents requested by Georgia Baptist, and, if necessary, refer document requests for approval by the presiding officials in any administrative proceeding to which Georgia Baptist is a party.

Decided March 10, 1993 —

Reconsideration denied March 23, 1993.

Oliver, Duckworth, Sparger & Winkle, G. Robert Oliver, Powell, Goldstein, Frazer & Murphy, Randall L. Hughes, Kim H. Roeder, Adrienne E. Marting, for appellants.

Driebe & Driebe, Charles J. Driebe, D. Keith Scott, Jr., Trout- man, Sanders, Lockerman & Ashmore, Robert P. Williams II, W. Randall Tye, Mark S. Vanderbroek, for appellees.

Since Webb is not a party to the administrative proceedings at issue, any documents she requested in her own behalf are not governed by OCGA § 50-18-70 (e). However, it is not at all clear that she requested the documents in her own behalf. She freely admitted she is employed by Georgia Baptist. Georgia Baptist provided her with attorneys to prepare the requests, and paid the attorney fees and all expenses. On remand, the trial court must also hear evidence to determine whether Webb acted wholly or partly in her own behalf, or whether she acted solely at the instance of Georgia Baptist in an effort to circumvent the requirements of OCGA § 50-18-70 (e). To the extent the trial court determines Webb requested documents for Georgia Baptist, those documents are bound by the requirements of OCGA § 50-18-70 (e) as if directly requested by Georgia Baptist.

3. We find no merit in the contention that the trial court should have denied Webb and Georgia Baptist access to the requested documents because they intended to use the documents for commercial purposes. Under OCGA § 50-18-70 (d), “[n]o public officer or agency shall be required to provide access to public records which are to be used for commercial purposes. The requesting party shall sign a statement agreeing not to use information gathered pursuant to said request for commercial purposes. Commercial purposes shall not include news-gathering requests for information or legitimate research for educational, scientific, or public purposes.” If the requesting party signs a statement agreeing not to use the requested information for commercial purposes, there is no basis under subsection (d) to deny access to the records. Since the trial court’s order was conditioned on the statement being provided, we find no error on this ground.

Judgment reversed and remanded with directions.

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

Parker, Hudson, Rainer & Dobbs, John H. Parker, Jr., David G. Cleveland, Armando L. Basarrate II, amici curiae.

       The issues raised in this appeal do not require any consideration of whether the Authority’s reorganization and subsequent activities are a valid exercise of its power under the Hospital Authorities Act. Compare Richmond County Hosp. Auth. v. Richmond County, 255 Ga. 183 (336 SE2d 562) (1985).

       There is no claim on appeal that the requested documents are protected by a specific exemption under OCGA § 50-18-72, nor has any issue been raised concerning the exemption of OCGA § 31-7-75.2, which the trial court cited as a condition of its order.

       Even though the requests filed by Webb under the Act in February and March of 1992 preceded the April 6,1992 effective date adding subsections (d) and (e) to OCGA § 50-18-70, Webb had no vested rights under the Act. Since no vested rights were affected by the modification of the statute, the added requirements of subsections (d) and (e) apply to Webb’s requests. Evans v. Belth, 193 Ga. App. 757, 758-759 (388 SE2d 914) (1989).