author: Johnson, Judge.

text:
    A95A0689.
    HOESCH AMERICA, INC. v. DAI YANG METAL COMPANY, LTD.
    (459 SE2d 187)
   Johnson, Judge.

Dai Yang Metal Company, Ltd., a Korean corporation, negotiated with Unisun Corporation, another Korean corporation, for Dai Yang to sell steel to Bellamy International, Inc. (“Bellamy”), a California corporation. Dai Yang dealt only with Unisun in negotiating the contract and had been led to believe that Bellamy was the ultimate purchaser of the steel. All negotiations took place in Korea. Dai Yang shipped the goods to Bellamy in California as agreed. Dai Yang only learned of Hoesch America, Inc.’s (“Hoesch”) involvement when it received letter of credit documents bearing Hoesch’s name. The letters of credit were negotiated in Korea. Dai Yang was never informed that the goods were intended to be delivered to or used in Georgia. Dai Yang had no contact with Hoesch regarding payment and paid sales commissions for the transaction only to Unisun in Korea.

Alleging that some of the steel was defective, Hoesch filed a breach of contract action in Georgia against Dai Yang. Dai Yang was served with process in Korea but never answered or entered an appearance. Hoesch moved for and received a default judgment against Dai Yang and then petitioned to domesticate the Georgia judgment in California. At that time, Dai Yang moved in Georgia to open the default judgment and to dismiss the Georgia action, claiming it lacked the minimum contacts with Georgia necessary to be subject to the jurisdiction of Georgia’s courts. The trial court granted both Dai Yang’s motion to open the default judgment and its motion to dismiss the complaint.

1. Hoesch argues that the trial court erred in granting the motions because Dai Yang waived the defense of lack of personal jurisdiction by not raising it in a responsive pleading or filing a motion to dismiss after being served under Georgia’s Long Arm Statute. We do not agree that a nonresident served in an action brought under Georgia’s Long Arm Statute waives his lack of personal jurisdiction defense by not answering the complaint.

A court’s power to render a judgment binding on the parties depends at the outset upon it having jurisdiction. See generally Bid dinger v. Fletcher, 224 Ga. 501, 505 (162 SE2d 414) (1968). “[E]ver since Pennoyer v. Neff, 95 U. S. 714 (24 LE 565) (1877), it has been axiomatic that plaintiffs are not free to bring suit wherever they choose. . . . [T]he power of state courts to exercise personal jurisdiction over defendants in civil actions must always be tested against the guarantees of fairness and justice embodied in the due process clauses of the federal and state constitutions. A defendant may not be called upon to defend himself in a foreign tribunal unless he has done some act by which he avails himself of the benefits and protections of that jurisdiction’s laws.” (Citations omitted.) Watts v. Allstate Ins. Co., 214 Ga. App. 462, 463 (448 SE2d 55) (1994).

In Baldwin v. Iowa State &c. Assoc., the United States Supreme Court held that a resident of Iowa who was sued in Missouri and who made a special appearance to contest jurisdiction “had the election not to appear at all. If, in the absence of appearance, the court had proceeded to judgment and the present suit had been brought thereon, [the defendant] could have raised and tried out the issue in the present action, because it never would have had its day in court with respect to jurisdiction.” 283 U. S. 522, 525 (51 SC 517, 75 LE 1244) (1931). More recently, the United States Supreme Court stated: “A defendant is always free to ignore the judicial proceedings, risk a default judgment, and then challenge that judgment on jurisdictional grounds in a collateral proceeding.” Ins. Corp. v. Compagnie Des Bauxites, 456 U. S. 694, 706 (102 SC 2099, 72 LE2d 492) (1982).

Georgia’s Long Arm Statute is not inconsistent with those holdings of the United States Supreme Court. Our statute provides in pertinent part: “A person subject to the jurisdiction of the courts of the state under Code Section 9-10-91, or his executor or administrator, may be served with a summons outside the state in the same manner as service is made within the state. . . .” (Emphasis supplied.) OCGA § 9-10-94. OCGA § 9-10-91 provides that “[a] court of this state may exercise personal jurisdiction over any nonresident . . . as to a cause of action arising from any of the acts . . . enumerated in this Code section, in the same manner as if he were a resident of this state, if in person or through an agent, he: (1) Transacts any business within this state. . . .”

In other words, whether a nonresident is subject to the long arm jurisdiction of our courts is determined not simply by examining whether he was served with process, but by considering the criteria set forth in OCGA § 9-10-91. Where the criteria of OCGA § 9-10-91 have not been met, the criteria of Georgia’s Long Arm Statute have likewise not been met. An application of the criteria set forth in OCGA § 9-10-91 is critical, because otherwise any person served with process would be subject to the jurisdiction of Georgia’s courts, regardless of whether he has transacted any business here. Such a result would be unfair, unjust, unconstitutional, and contrary to the holdings of the United States Supreme Court.

We disagree with Hoesch’s argument that waiver of the defense occurred when Dai Yang failed to answer the complaint. In support of this argument, it relies on OCGA § 9-11-12 (h) (1) (B), which provides that a defense of lack of jurisdiction over the person is waived if neither made by motion nor included in a responsive pleading as originally filed. As discussed above, a foreign corporation which is not transacting business within this state cannot be forced to come into the state to defend against a claim or to contest jurisdiction. Under OCGA § 9-11-60 (d) (1), (f), a person may bring a motion to set aside a judgment void for lack of jurisdiction at any time. OCGA § 9-11-12 (h) (1) (B) cannot be constitutionally applied to preclude a nonresident from bringing such a motion after a default judgment is entered against it.

Hoesch also relies upon Vanguard Diversified v. Institutional Assoc., 141 Ga. App. 265 (233 SE2d 247) (1977), as support for its argument that a waiver occurred. In Vanguard, a panel of this court held that a defense of lack of personal jurisdiction was waived when no motion to dismiss had been made nor the defense included in a responsive pleading where the defendant had been properly served under the Long Arm Statute. Id. at (1). Vanguard relies upon three cases: Aiken v. Bynum, 128 Ga. App. 212 (196 SE2d 180) (1973); Echols v. Dyches, 140 Ga. App. 191 (230 SE2d 315) (1976), and Thrift v. Vi-Vin Products, 134 Ga. App. 717 (215 SE2d 709) (1975). We note that in Thrift, the defendant filed motions to set aside a default judgment for lack of jurisdiction prior to the effective date of the 1974 amendment to OCGA § 9-11-60 (d), which allowed judgments to be attacked for lack of personal jurisdiction. See Ga. L. 1974, pp. 1138, 1139. This court decided Thrift without considering the amendments to this statute. Id. at 718 (1). Echols and Thrift are both based entirely on Aiken. Aiken is a venue case. Id. at 213 (2). Jurisdiction and venue are very different matters; one concerns the right and power of a court to adjudicate a matter, while the other simply involves the place of the suit. See Biddinger, supra at 504-505. Furthermore, the part of the Aiken opinion relied upon in the other cases cited was unnecessary to the holding of the case and is merely dicta. Moreover, the case serves as physical precedent only, inasmuch as one of the three judges concurred in the judgment only. Finally, Aiken relies on King v. Phillips, 70 Ga. 409 (1883) as support for this statement, a case decided long before the enactment of Georgia’s Long Arm Statute. Thus, the trial court did not err in holding that Dai Yang’s failure to answer or move to dismiss before judgment was entered did not amount to a waiver of the defense of lack of jurisdiction. King, Vanguard, Aiken, Thrift, and their progeny cannot constitutionally be read to hold otherwise.

We recognize the fact that the actions of a nonresident defendant can in some cases result in a waiver of a lack of personal jurisdiction defense. Generally, however, a waiver results when a nonresident submits to the jurisdiction of the court by seeking a ruling from the court on the merits of the case or otherwise enters a general appearance without raising the issue. See Crawford v. Randle, 191 Ga. App. 112, 115 (1) (381 SE2d 77) (1989). Here, Dai Yang sought no ruling on the merits from the court, and therefore, is permitted to seek a ruling from the trial court on the question of jurisdiction. See Baldwin, supra. This case illustrates precisely why trial courts should inquire into questions of jurisdiction as well as service before entering a default judgment. And, while it may not be wise to ignore the process, a defendant may do so, risk default, and later attack the judgment based upon the fact that the court did not have jurisdiction over him. In not answering, Dai Yang did not waive its defense of lack of personal jurisdiction.

2. Hoesch argues that the trial court did not apply the correct test in determining whether it had jurisdiction over Dai Yang. Hoesch argues that the trial court should have applied the test set out in Ga. R. Bank &c. Co. v. Barton, 169 Ga. App. 821 (315 SÉ2d 17) (1984). That test provides that personal jurisdiction over a nonresident is established under the Long Arm Statute if the nonresident purposefully avails himself of the privilege of doing some act or consummating some transaction with or in the forum and the cause of action arises out of or results from the defendant’s activities within the forum; if both criteria are met, minimum contacts between the nonresident and the forum exist, provided such a finding is consonant with the due process notions of fair play and substantial justice. Id. at 822-823.

Although the trial court in its order does not specifically mention this case, it bases its analysis upon OCGA § 9-10-91 (1) and upon Drennen v. First Home Sav. Bank, 204 Ga. App. 714, 715 (1) (420 SE2d 376) (1992), a case which Hoesch cited as authority to the trial court and which utilizes the same test as Ga. R. Bank. In reaching its decision, the trial court considered such issues as whether Dai Yang transacted any business in Georgia, whether Dai Yang maintained an office or agents here, where negotiations took place, where the goods were shipped, whether there was a course of dealing between the parties, whether minimum contacts were shown between Dai Yang and Georgia, and whether Dai Yang had availed itself of any of the benefits of the law of Georgia. The trial court did not err in considering these factors. See generally Smith v. Air Ambulance Network, 207 Ga. App. 75 (427 SE2d 305) (1993); Burt v. Energy Svcs. Invest. Corp., 207 Ga. App. 210 (427 SE2d 576) (1993).

3. Hoesch contends that the trial court erred in finding that Dai

Decided July 13, 1995.

Smith, Gambrell & Russell, John G. Despriet, Glen P. Brock III, for appellant.

Yang was not transacting business within Georgia and did not possess sufficient minimum contacts with Georgia to give the court jurisdiction. We disagree. “The Due Process Clause protects an individual’s liberty interest in not being subject to the binding judgments of a forum with which he has established no meaningful contacts, ties, or relations. The constitutional touchstone is whether the defendant purposefully established minimum contacts in the forum State. The foreseeability that is critical to due process analysis is that the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.” (Citations and punctuation omitted.) Eastlawn Corp. v. Bankers Equip. Leasing Co., 211 Ga. App. 551, 553 (439 SE2d 753) (1993). The only connection Dai Yang had with Georgia was that Hoesch sent the purchase orders to Dai Yang from Georgia; the shipping orders showed Hoesch, with a Georgia address, as the purchaser; and a Georgia bank issued the letters of credit covering the purchase. Dai Yang’s part in the transaction consisted of shipping the steel from Korea to California. These acts are insufficient to establish the purposeful activity with Georgia required by the Long Arm Statute. See Wise v. State Board &c. of Architects, 247 Ga. 206, 209 (2) (274 SE2d 544) (1981); Smith v. Air Ambulance Network, supra. They are also insufficient to satisfy the “transacting business” requirement of Georgia’s Long Arm Statute. See Berry v. Jeff Hunt Machinery Co., 148 Ga. App. 35, 36 (3) (250 SE2d 813) (1978). Under the facts of this case, Dai Yang has not transacted any business within this state, and the exercise of jurisdiction over it by Georgia’s courts would offend traditional fairness and substantial justice. See O. N. Jonas Co. v. B & P Sales Corp., 232 Ga. 256, 259 (206 SE2d 437) (1974); Hart v. DeLowe Partners, 147 Ga. App. 715, 717 (2) (C) (250 SE2d 169) (1978). A trial court’s ruling on a motion to set aside a judgment will be affirmed if there is any evidence to support it. There being evidence to support the trial court’s decision to set aside the default judgment, we affirm it. Arnold v. Brundidge Banking Co., 209 Ga. App. 278, 280 (433 SE2d 388) (1993). Likewise, we find no error in the trial court’s grant of Dai Yang’s motion to dismiss for lack of jurisdiction.

Judgment affirmed.

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

Jackson & Tyler, H. Bruce Jackson, Bruce A. Hagen, for appellee.


source: Caselaw Access Project

author: Pope, Presiding Judge. Beasley, Chief Judge,

license: Public Domain

text:
    A95A0776.
    ROONEY v. THE STATE.
    (459 SE2d 601)
   Pope, Presiding Judge.

We granted John Thomas Rooney’s application for interlocutory appeal to consider whether a superior court judge erred in reconsidering, and subsequently revoking, the pretrial bond set by another judge, who was presiding in the superior court judge’s place by designation. Under the facts of this particular case, we conclude that no error occurred because the designated judge should not have granted bond to Rooney after expressly finding that he was likely to intimidate witnesses or otherwise interfere with the administration of justice.

The Gwinnett County police arrested Rooney, and a magistrate formally charged him with rape, aggravated sodomy, aggravated sexual battery, burglary and battery. The magistrate set bond in the amount of $25,000 on each of the charges of aggravated sexual battery, burglary and battery. The magistrate did not, however, set bond on the rape and aggravated sodomy charges because only a superior court judge has the authority to do so. See OCGA § 17-6-1 (a) (3), (4).

On October 6, 1994, Rooney filed a petition for bond in the Superior Court of Gwinnett County. The matter was assigned to Judge James Oxendine, and a hearing was scheduled for October 20, 1994. On the day of the hearing, Judge Oxendine was out of town. Rooney admits, however, that Judge Oxendine had delegated authority to hear the matter to Gwinnett County Recorder’s Court Judge Michael Greene pursuant to OCGA § 17-6-1 (h). Neither party disputes that Judge Greene’s designation was appropriate, nor does either party contend that his designation was made pursuant to OCGA § 15-1-9.1 (e). Thus we reject the dissent’s assertion that a copy of the actual order designating Judge Greene must be obtained before a decision can be reached in this case.

During the bond hearing, Judge Greene heard testimony from Rooney and two witnesses for the State. The State’s first witness was Investigator Lorraine Jackson. She testified that her investigation showed that Rooney had forced his way into a woman’s home. When the woman resisted Rooney’s aggressions, Rooney became enraged. Rooney took the woman into the bathroom and forced her to perform oral sodomy on him. He then sodomized her with a tube of toothpaste. Thereafter, Rooney took the woman into her bedroom where he allegedly beat her with a belt and raped her. The woman later identifled Rooney as her attacker in a photographic lineup.

The State’s second witness, Billy Davis, testified that he was in a holding cell with Rooney. According to Davis, Rooney approached him about having the woman that accused him of rape “done in” during a carjacking. Davis said Rooney told him the woman’s name. He also testified that Rooney later told him that Rooney might try to pay the woman off.

After the bond hearing, Judge Greene issued a written order, dated October 21,1994, wherein he specifically found that there was a substantial risk that Rooney would intimidate witnesses or otherwise interfere with the administration of justice. Nonetheless, Judge Greene set bond in the amount of $50,000 on each of the rape and aggravated sodomy charges. Additionally, he ordered that the rape bond be “cash only.” Judge Greene did not disturb the bonds previously set by the magistrate.

On November 7, 1994, the State filed a motion for reconsideration. Judge Oxendine held a hearing on the State’s motion on November 14, 1994. During this hearing, Rooney presented no evidence, and the State only recalled Davis, who in essence gave the same testimony that he previously had given. At the hearing’s conclusion, after considering Davis’s testimony, the transcript of the hearing before Judge Greene and argument from both sides, Judge Oxendine granted the State’s motion. By order dated November 14, 1994, he revoked the rape and aggravated sodomy bonds. Judge Oxendine specifically stated in his order that there was evidence that Rooney raped and sodomized the victim and that there was a risk that Rooney would intimidate witnesses if released on bond. It is undisputed that Rooney had not made bond prior to the time the State filed its motion for reconsideration.

In his sole enumeration, Rooney contends that Judge Oxendine lacked the authority to reconsider Judge Greene’s order and that Judge Oxendine erred when he vacated the order and denied bond on the rape and aggravated sodomy charges. We disagree.

Contrary to Rooney’s assertion otherwise, this is not a case where one superior court judge has reconsidered and vacated another superior court judge’s order. In this case, Judge Greene merely was presiding over a matter pending before Judge Oxendine’s court. Moreover, any authority Judge Greene had was given to him by Judge Oxendine. Consequently, any order Judge Greene issued must be viewed as coming from Judge Oxendine’s court. Having said this, we hold that the authority to reconsider and subsequently vacate any such order was within Judge Oxendine’s sound legal discretion.

We reject the dissent’s position that Judge Oxendine lacked the authority to entertain the State’s motion for reconsideration merely because the motion was filed on the first day after the expiration of the term of court in which Judge Greene originally issued his bond order. See OCGA § 15-6-3 (20). Although the dissent relies on Pledger v. State, 193 Ga. App. 588 (388 SE2d 425) (1989) in support of such a proposition, Pledger is distinguishable from the case at bar because it did not involve the reconsideration of a bond order. Moreover, we do not consider the issuance of a bond order to be an “interlocutory ruling” of the type contemplated in Pledger. Therefore, Pledger is not controlling here. To hold otherwise would be the equivalent of setting bond orders in stone after the expiration of the term in which they are entered. We also note that neither of the parties to this appeal argues that expiration of the court term precluded Judge Oxendine from reconsidering Judge Greene’s initial order.

Upon review of the record, including the transcripts from both the bond and motion for reconsideration hearings, we conclude that Judge Oxendine did not abuse his discretion in reconsidering Judge Greene’s order. “[A] trial court may release a person on bail if the court finds the person: (1) Poses no significant risk of fleeing from the jurisdiction of the court or failing to appear in court when required; (2) Poses no significant threat or danger to any person, to the community, or to any property in the community; (3) Poses no significant risk of committing any felony pending trial; and (4) Poses no significant risk of intimidating witnesses or otherwise obstructing the administration of justice. OCGA § 17-6-1 (e).” (Emphasis supplied.) Ayala v. State, 262 Ga. 704, 705 (1) (425 SE2d 282) (1993). Here, Judge Greene made no such finding. To the contrary, he specifically found that Rooney posed a substantial risk of intimidating witnesses and otherwise interfering with the administration of justice. Because of this finding, Judge Greene should not have granted bond to Rooney.

In denying bond upon reconsideration, Judge Oxendine sufficiently set forth his reasons for doing so in his order, as is required by the Supreme Court’s holding in Lane v. State, 247 Ga. 387, 389 (276 SE2d 644) (1981). Because we find no manifest or flagrant abuse of discretion in his decision, we affirm. See Jernagin v. State, 118 Ga. 307, 308 (45 SE 411) (1903).

Judgment affirmed.

McMurray, P. J., Birdsong, P. J., Andrews, Johnson, Blackburn and Ruffin, JJ, concur. Beasley, C. J., dissents. Smith, J, not participating.

Beasley, Chief Judge,

dissenting.

I respectfully dissent. The court was not authorized to entertain the motion for reconsideration because it was filed on the first day of the next term, when the court could not act on it. The pretrial bond order was entered on October 26, during the September term of the court. OCGA § 15-6-3 (20). The next term commenced on November 7, the first Monday of November 1994. Id. The State’s motion for reconsideration was filed on that day, and the court acted on it on November 15.

As in Pledger v. State, 193 Ga. App. 588 (2) (388 SE2d 425) (1989), both of these filings were of no effect because the pretrial bond order had become “upon the roll” and was not subject to review or revision by the trial court. Gobles v. Hayes, 194 Ga. 297, 300 (21 SE2d 624) (1942). In criminal cases the inherent power of the court to vacate or modify its orders ceases with the term’s end, Pledger, supra at 589, likewise in civil cases. Bank of Cumming v. Moseley, 243 Ga. 858 (257 SE2d 278) (1979). Pledger noted that if the proceedings to vacate or modify are begun during the term in which the original order or judgment is entered, the court would be authorized to act. See Bowen v. State, 239 Ga. 517, 518 (2) (238 SE2d 62) (1977). Here the proceeding was begun on the first day of the new term, too late to extend the court’s authority into the new term. As in Pledger, so in Rooney’s case, this applies to the interlocutory order just as it would apply to a final judgment. The trial court’s order of November 15 must be reversed. The State’s remedy was to file a motion to revoke bond.

Even if the order were efficacious, I would be compelled to dissent because we could not reach the conclusion contained in the majority opinion. In fact, we could reach no conclusion at all.

The record before us does not contain the order designating Judge Greene to act in this matter. Appellant contends in his brief that Judge Greene, a judge of the Recorder’s Court of Gwinnett County, was designated pursuant to OCGA § 17-6-1 (h). It permits the superior court judge by written order to “delegate the authority” to rule on the issue of bail in certain cases “to any judge of any court of inquiry within such superior court judge’s circuit.” This delegation may be made in the discretion of the superior court judge even though the same statute expressly excludes from courts of inquiry the issue of bail for offenses such as rape and aggravated sodomy. OCGA § 17-6-1 (a) and (b). Thus the legislature relegated the question of who should decide the bail issue to the superior court judges, to determine on a judge-by-judge basis “[e]xcept in cases in which life imprisonment or the death penalty may be imposed.” OCGA § 17-6-1 (h).

OCGA § 17-6-1 (h) further provides that “[t]he written order delegating such authority shall be valid for a period of one year, but may be revoked by the superior court judge issuing such order at any time prior to the end of that one-year period.” If Judge Greene was acting pursuant to such an order, there is no apparent reason why the motion for reconsideration of the order he issued could not come before him. This assumes that such a motion was valid in the first place and that the Gwinnett Recorder’s Court is a court of inquiry.

Decided July 13, 1995.

Ronnie K. Batchelor, for appellant.

Daniel J. Porter, District Attorney, Phil Wiley, Assistant District Attorney, for appellee.

On the other hand, the State contends in its brief that Judge Greene was sitting by designation pursuant to OCGA § 15-1-9.1 (1). Although subsection (1) does not apply because it relates to requests for assistance by “any judge other than a superior court judge,” Judge Greene could have been designated to assist under OCGA § 15-1-9.1 (e). The written designation would include the specific assignment, as described in subsection (f), and the assisting judge would be empowered under subsection (g) to “discharge all the duties and . . . exercise all of the powers and authority of a judge of the court in which he is presiding.” That would seem to include ruling on the motions for reconsideration of the assisting judge’s own orders, but perhaps in this case that was not embraced. We do not have the written designation. All we have from the record is the statement at the beginning of the hearing on October 20 before Judge Greene, in which an assistant district attorney said, “This is a miscellaneous calendar before the Honorable James W. Oxendine, Honorable Michael C. Greene will be presiding today.” Judge Oxendine had set this matter by rule nisi issued on October 11. Statements about the facts which are not supported by the record, particularly when they are at odds, cannot be considered. Court of Appeals Rule 27 (b) (1); Behar v. Aero Med Intl., 185 Ga. App. 845, 846 (1) (366 SE2d 223) (1988).

There is thus a question about the existence and extent of Judge Greene’s authority which is material to the enumeration of error pending before us. The question would be resolvable by reference to a more complete record. Were it not necessary to reverse the order because it was not authorized for the reason first given, we should by order require the trial court to transmit to this Court the document authorizing Judge Greene to act. OCGA § 5-6-48 (d). An expedited basis would be in order because the appellant is incarcerated, OCGA § 5-6-43 (c), and because this interlocutory appeal is delaying the final judgment on the charges.

We do not need that order, however, because Rooney must be permitted to make the bond as set by Judge Greene.


author: Ruffin, Judge.

text:
    A95A0849, A95A0850.
    MAGNAN et al. v. MIAMI AIRCRAFT SUPPORT, INC.; and vice versa.
    (459 SE2d 592)
   Ruffin, Judge.

We granted the application of James Magnan and Dieter Becker for discretionary appeal from the court’s judgment on a verdict in their favor in an amount of less than $10,000. Magnan and Becker sued Miami Aircraft Support, Inc. (“Miami Aircraft”) for personal injuries they sustained from exposure to the pesticide cyhalothrin. In response to the complaint, Miami Aircraft’s Florida counsel filed a notice of limited appearance, motion for interim admission pro hac vice, and motion for extension of time to respond to the complaint but did not file an answer. After Miami Aircraft’s time to answer the complaint expired, Magnan and Becker filed a motion for default judgment. The trial court granted the motion for default which established Miami Aircraft’s liability, subsequently denied Miami Aircraft’s motion to set aside the default, and a jury trial was held on the issue of damages. Prior to trial, all the parties filed motions in limine seeking to exclude certain evidence concerning the extent of the injuries. The trial court granted some of those motions and denied others. The jury returned a verdict awarding damages to Magnan and Becker, and both parties appealed.

Case No. A95A0849

1. Magnan and Becker contend the trial court erred in admitting evidence as to liability, proximate cause, and the existence of their injuries because those facts were established by Miami Aircraft’s default. We note initially that Magnan and Becker violated Court of Appeals Rule 27 (c) (1) by combining thirteen enumerations of error, two of which are identical, into this single argument. We will accordingly address them as one enumeration.

(a) OCGA § 9-11-55 (a) provides in relevant part that when a case is in default, the plaintiff is entitled to judgment “as if every item and paragraph of the complaint or other original pleading were supported by proper evidence, without the intervention of a jury, unless the action is one ex delicto or involves unliquidated damages, in which event the plaintiff shall be required to introduce evidence and establish the amount of damages . . . with the right of the defendant to introduce evidence as to damages. ...” (Emphasis supplied.) Viewed in this light, the complaint in this case showed that Magnan and Becker were working in an airport hangar when a forklift driver negligently punctured a drum containing the pesticide cyhalothrin. Some of the pesticide escaped, exposing Magnan and Becker to the fumes which resulted in unspecified injuries. Because the case was in default, OCGA § 9-11-55 (a) prohibited Miami Aircraft from presenting evidence which went to the right of recovery, even though the same evidence may have also gone to the assessment of damages. See Flanders v. Hill Aircraft cfee. Corp., 137 Ga. App. 286 (223 SE2d 482) (1976). See also Lenney v. Finley, 118 Ga. 427, 429 (2) (45 SE 317) (1903).

In this respect, the cause of action asserted in this case can be broken down into two components: (1) the breach of a legal duty which resulted in an injury and which gave rise to a right of recovery by virtue of the default, and (2) the amount of damages. See OCGA § 51-1-6. See also Cobb & Eldridge, Ga. Law of Damages (3rd ed.), § 1-2, p. 2. Miami Aircraft’s failure to answer did not result in the admission of the existence of any amount of damages, and it could properly contest the issue of damages by rigid cross-examination and by the introduction of evidence so long as the cross-examination did not touch on the issue of liability. See O’Connor v. Brucker, 117 Ga. 451 (2) (43 SE 731) (1903); Whitby v. Maloy, 150 Ga. App. 575 (2) (258 SE2d 181) (1979).

After considering the testimony of which Magnan and Becker complained under these rules, we conclude that the trial court did not err in allowing it. The challenged testimony was given by Miami Aircraft’s expert witnesses and concerned the chemical’s evaporation rate, ability to travel in air, and its neurological effects. None of this testimony challenged Miami Aircraft’s liability for damages incurred by Magnan and Becker or the fact of exposure and injury. Rather, this testimony concerned the extent of exposure and the effects of that exposure on Magnan and Becker. While the default established their exposure, injury, and right to recovery, Magnan and Becker bore the burden of showing the nature and amount of their damages, and Miami Aircraft was entitled to present its own evidence concerning those damages. See O’Connor, supra. See also 25A CJS, Damages, §§ 145-146. Accordingly, the testimony concerning the extent of Mag-nan’s and Becker’s exposure and the pesticide’s long- and short-term effects was admissible.

(b) Magnan and Becker also assert that the trial court erred in denying their motion in limine to exclude the testimony of lay witnesses which they contend went to liability, proximate cause, and fact of injury. As this enumeration is not supported by either argument or citation of authority, it is abandoned under Court of Appeals Rule 27 (c) (2). State Farm &c. Ins. Co. v. Hudson, 215 Ga. App. 218 (1) (450 SE2d 286) (1994) (decided under former Court of Appeals Rule 15 (c) (2)).

2. Magnan and Becker next contend the trial court erred in disallowing testimony concerning Magnan’s alleged permanent eye injury. As in Division 1, Magnan and Becker have violated Court of Appeals Rule 27 (c) (1), by grouping four enumerations of error into this single argument. Accordingly, we will address them as a single enumeration of error.

The trial court prohibited Magnan from presenting any evidence that the eye injuries he alleged were caused by the exposure, continued past August 14, 1990, the date that his ophthalmologist concluded the eye injuries were healed. Accordingly, the trial court redacted portions of the ophthalmologist’s deposition concerning eye problems of which Magnan complained after that date. It also struck the entire deposition of Dr. Robert Spector, a physician who treated Magnan after his ophthalmologist, who testified in his deposition that he could not give any opinion with a reasonable medical certainty that the eye problems of which Magnan later complained were caused by his exposure to the pesticide.

Although the default relieved Magnan and Becker from the burden of establishing that they were entitled to relief, they were still required to prove their damages. In proving damages for his alleged eye problems, Magnan could not simply testify that the continuing eye problems were caused by the incident; he was required to present expert medical testimony to make this showing. See Eberhart v. Morris Brown College, 181 Ga. App. 516 (1) (352 SE2d 832) (1987); Thomason v. Willingham, 118 Ga. App. 821 (2) (165 SE2d 865) (1968). For such expert testimony to be admissible, it must have been “based at least on reasonable probability.” Nat. Dairy Products Corp. v. Durham, 115 Ga. App. 420, 423 (154 SE2d 752) (1967). Because the testimony concerning Magnan’s later eye problems was, by his physicians’ own testimony, not based on a reasonable probability, the trial court properly excluded it. To rule otherwise would allow Magnan to present evidence of an unlimited number of injuries that could not possibly be proved to be related to his exposure to the pesticide; a result that, even after default cannot be permitted.

3. Magnan and Becker assert the trial court erred by instructing the jury that “[defendant has a right to dispute the damages even to the point of showing their nonexistence.” As we concluded in Division 1, Miami Aircraft could properly contest the issue of damages by rigid cross-examination and by the introduction of evidence. See O’Connor, supra. Likewise, if Magnan and Becker did not present any credible evidence as to their damages, the jury could conclude that although they were exposed to the pesticide, they did not carry their burden in proving damages. See Krasner v. Lester, 130 Ga. App. 234 (3) (202 SE2d 693) (1973). As we stated in Flanders, supra at 289, the charge complained of was a correct statement of the law and did no more than tell the jury that Miami Aircraft could contest whether Magnan and Becker carried the burden of proving their damages, something Miami Aircraft was clearly entitled to do. Accordingly, we find no error.

4. For the reasons stated above, the trial court did not err in denying Magnan and Becker’s motion for new trial.

Case No. A95A0850

5. In Case No. A95A0850, Miami Aircraft contends the trial court erred in denying its motion to set aside the default judgment.

(a) Miami Aircraft first argues its failure to timely answer the complaint was due to excusable neglect and that the trial court therefore abused its discretion in failing to grant the motion. Specifically, Miami Aircraft argues that its original Florida counsel, who was not admitted to practice in Georgia, mistakenly believed that he had an agreement with the attorney for Magnan and Becker that they would not prosecute the case until settlement discussions were pursued.

OCGA § 9-11-55 (b) gives a trial court discretion to open a default for excusable neglect. In reviewing the trial court’s exercise of this discretion, we must realize that, “no two [cases] are alike and each must stand on its own merits. The facts in each case are different and you must look at each in the light of the facts peculiar to that particular case. Generally, in cases concerning default judgments this court will not substitute its judgment for the trial judge’s, who had the opportunity to observe the witnesses and determine their credibility.” (Citations and punctuation omitted.) Coleman v. Superior Ins. Co., 204 Ga. App. 78, 79 (418 SE2d 390) (1992).

In this case, although Miami Aircraft’s original Florida counsel contended he had an agreement with opposing counsel that he would not prosecute the case until settlement was explored, plaintiffs’ counsel vehemently denied this contention in the response to Miami Aircraft’s motion. After hearing argument, the trial judge apparently decided that no such agreement existed. Furthermore, even if there were an agreement, Miami Aircraft’s original Florida counsel did not mention it in his motion for an extension or obtain Magnan’s and Becker’s consent to the motion. After considering these circumstances, and the additional fact that Miami Aircraft’s original Florida counsel never applied for special admission to practice under Uniform Superior Court Rule 4.4, we conclude that the trial court did not abuse its discretion by refusing to open the default. See id. See also Leasefirst v. Paulk, 200 Ga. App. 497 (1) (408 SE2d 707) (1991).

(b) Miami Aircraft also argues the default should have been set aside because Magnan and Becker obtained the default judgment without providing notice. Under OCGA § 9-11-5 (a) “the failure of a party to file pleadings in an action shall be deemed to be a waiver by him of all notices. . . .” Although Miami Aircraft’s original Florida counsel filed the motion to set aside prior to the default, because he was never specially admitted under Superior Court Rule 4.4, he could not file pleadings on behalf of Miami Aircraft. See Leasefirst, supra. In the absence of pleadings, the trial court did not err in granting Magnan and Becker’s motion for default without prior notice to Miami Aircraft. See Hubert v. Lawson, 146 Ga. App. 698 (3) (247 SE2d 223) (1978).

(c) We do not reach Miami Aircraft’s argument that the case never went into default because the preliminary motion filed by its original Florida counsel constituted an answer. This argument was not made below and will not be considered for the first time on appeal. Clark v. Chick-Fil-A, 214 Ga. App. 758 (1) (449 SE2d 313) (1994).

6. In its next enumeration of error, Miami Aircraft asserts the trial court erred in denying its motion to open and close arguments. Miami Aircraft was required to make this motion “before testimony by the other party [was] submitted.” Intl. Indem. Co. v. Coachman, 181 Ga. App. 82, 90 (6) (351 SE2d 224) (1986). And while Miami Aircraft contends it presented the motion on the eve of trial, the record shows it did not make the motion until the plaintiffs presented their case and Miami Aircraft was well into presenting its own evidence. Accordingly, the trial court did not err in denying the motion.

7. Miami Aircraft also asserts the trial court erred in limiting the admission of deposition testimony of its expert witnesses. The testimony at issue generally showed that Magnan and Becker could not have been exposed to the pesticide. Since we have already concluded in Division 1 that the fact of exposure was admitted, the trial court did not err in excluding this testimony. See Holland v. Tennyson, 201 Ga. App. 125 (410 SE2d 447) (1991).

8. Likewise, the trial court did not err in excluding the testimony of Miami Aircraft’s employees that they were exposed to the pesticide but did not suffer any injuries. Again, since the fact of injury was admitted, the trial court did not err in excluding this testimony. Id.

9. Miami Aircraft contends the trial court erred in denying its motion for a directed verdict because Magnan and Becker failed to present any competent evidence that their claim for damages resulted from any toxic exposure. We disagree. While Magnan and Becker could not testify as to the permanence of their injuries, they were competent to testify as to the pain and suffering they experienced from their exposure. See Guyer v. Mayor &c. of Savannah, 162 Ga. App. 598 (1) (292 SE2d 445) (1982). Both plaintiffs presented such testimony, and it was up to the jury to determine the credibility of the testimony and assess damages based on its enlightened conscience. Turpin v. Worley, 206 Ga. App. 341 (1) (425 SE2d 895) (1992). Since this testimony alone provided a sufficient basis for the court to deny Miami Aircraft’s motion for a directed verdict, we find no error.

Decided July 13, 1995

Paul C. Parker & Associates, William S. Sarandis, Philip L. Westee, for appellants.

Drew, Eckl & Farnham, Donald R. Andersen, William T. Mitchell, for appellee.

Judgment affirmed in Case Nos. A95A0849 and A95A0850.

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


author: Blackburn, Judge.

text:
    A95A0989.
    MARTIN v. THE STATE.
    (460 SE2d 92)
   Blackburn, Judge.

On reconsideration, the opinion rendered July 7, 1995, is vacated, and the following is substituted therefor.

The appellant, Michael DeWayne Martin, was charged by accusation with driving under the influence of alcohol. The trial court denied Martin’s motion in limine to suppress his breath test results, and Martin now appeals based upon newly amended OCGA § 40-5-67.1, which was given retroactive application by the legislature.

At 3:17 a.m., on September 10, 1994, Martin was stopped by a police officer and, after the administration of several field sobriety tests, was arrested for driving under the influence of alcohol. Thereafter, the arresting officer read Martin his implied consent rights, pertinently advising him that “[a]fter submitting to required testing you are entitled to additional chemical tests at your own expense from personnel of your own choosing.” (Emphasis supplied.) After lining out inapplicable portions thereof, the officer also advised Martin of such rights in writing. In denying Martin’s motion in limine, the trial court observed that although the rights advisement given Martin was not one which employed the exact language of the then governing statute, “the failure to give this language [did] not limit his options.” The trial court correctly applied the law as it existed prior to the 1995 legislative session.

Martin contends the trial court erred in denying the motion because the warning given him concerning his. right to independent chemical testing neither specified that such right extended to testing his blood, breath, urine, or other bodily substances nor specified which persons were qualified to do the testing. We agree that the warning given did not meet that which is statutorily required under OCGA § 40-5-67.1 as amended. Under former law, it is well settled that “ ‘(a) defendant is not entitled to a warning which tracks the exact language of the implied consent statute.’ (Citations, punctuation, and emphasis omitted.) Pryor v. State, 182 Ga. App. 79, 80 (2) (354 SE2d 690) (1987); Howard v. Cofer, 150 Ga. App. 579, 580 (2) (258 SE2d 195) (1979).” State v. Causey, 215 Ga. App. 85, 86 (449 SE2d 639) (1994). See also Martin v. State, 214 Ga. App. 614, 616 (448 SE2d 471) (1994). Likewise, we have consistently held that such warning must not completely fail to warn by omission if the state is to satisfy the statutory requirement that the warning be given. Id. See also State v. Harrison, 216 Ga. App. 325 (453 SE2d 820) (1995); Hulsey v. State, 138 Ga. App. 221 (225 SE2d 752) (1976).

OCGA § 40-5-67.1 was amended by the legislature to provide for the specific implied consent warning which law enforcement officers are required to give to one suspected of driving or being in actual physical control of a moving motor vehicle upon the highway or elsewhere throughout this state in violation of Code section 40-6-391, and the officer has arrested such person for a violation of Code section 40-6-391 or any local ordinance which adopts Code section 40-6-391 by reference.

OCGA § 40-5-67.1 (b) provides: “At the time a chemical test or tests are requested, the arresting officer shall select and read to the person the appropriate implied consent warning from the following: ... (2) Implied consent notice for suspects age 18 or over: ‘Georgia law requires you to submit to state administered chemical tests of your blood, breath, urine, or other bodily substances for the purpose of determining if you are under the influence of alcohol or drugs. If you refuse this testing, your Georgia driver’s license or privilege to drive on the highways of this state will be suspended for a minimum period of one year. Your refusal to submit to the required testing may be offered into evidence against you at trial. If you submit to testing and the results indicate an alcohol concentration of 0.10 grams or more, your Georgia driver’s license or privilege to drive on the highways of this state may be suspended for a minimum period of one year. After first submitting to the required state tests, you are entitled to additional chemical tests of your blood, breath, urine, or other bodily substances at your own expense and from qualified personnel of your own choosing. Will you submit to the state administered chemical tests of your (designate which tests) under the implied consent law?’ ” (Emphasis supplied.)

Ga. L. 1995, p. 1160, not codified by the General Assembly, provides that the Act shall apply to all cases pending at the time of its approval by the Governor. The Act was approved by the Governor on April 21, 1995.

As this case was pending on April 21, 1995, the implied consent warning prescribed by this amended statute was required in this case. It is clear that the legislature intended to mandate the warning to be given, and it is equally clear that the warning given here did not meet the statutory requirement. The statute requires that a defendant be advised of the right to “additional chemical tests of your blood, breath, urine, or other bodily substances,” and the warning given failed to do so.

Decided July 13, 1995

J. Michael Mullís, for appellant.

Keith C. Martin, Solicitor, for appellee.

The legislature is free to prescribe the implied consent warning which must be given and has now done so. OCGA § 40-5-67.1 (b). Inasmuch as the legislature knowingly and intentionally made the mandatory language applicable to pending cases, our role is to simply compare the warning given to the warning required. Having done so, we find the warning to be insufficient, and the trial court’s denial of defendant’s motion in limine must be reversed. The ruling of the trial court is reversed, and the case is remanded.

Judgment reversed and case remanded.

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


author: Beasley, Chief Judge.

text:
    A95A0168.
    DEPARTMENT OF CORRECTIONS v. MACK.
    (459 SE2d 573)
   Beasley, Chief Judge.

Mack was employed by the Georgia Department of Corrections as director of the mental health unit at the Rutledge Correctional Institution beginning in February 1988, after having been employed by the Department of Human Services from 1976 to 1985 and as a mental health counselor at the Department of Corrections from 1985 to 1988. He was discharged from his employment on November 26, 1990, for violating the policy against sexual harassment contained in the Department’s Standard Operation Procedures Rule IVJ 13-0003 (effective April 1, 1989).

Some two years after hearing argument in the matter, the superior court reversed the State Personnel Board’s adoption of its hearing officer’s decision, which had upheld Mack’s discharge. We granted the Department’s application for discretionary appeal. The problem in this case involves the procedure that was followed by the Department.

The Department’s Rule IVJ 13-0003 provides:

“2. Complaints of sexual harassment received by any . . . Appointing Authority . . . will be reported as soon as possible to the Director of Employee Relations.

“3. Upon receipt of the report of sexual harassment, the Director of Employee Relations will evaluate the report and, where appropriate, assign the case to a Certified Grievance Hearing Officer for investigation.”

Next is set out the procedure the hearing officer is to follow. Included is that if, after investigating, the hearing officer determines the matter should be referred to the Internal Affairs Section for further investigation, the hearing officer is to consult with the Director of Employee Relations regarding referral.

Within ten days of completing the inquiry, the hearing officer is to report the findings, conclusions, and recommendations to the Department’s Commissioner, with a copy to the Director of Employee Relations. The Commissioner is to take appropriate action based on this report and the Internal Affairs Section’s report, if the matter was referred to it. All employees were to read this rule regarding policy and procedure, and Mack did so on April 20, 1989, as indicated by his signature on the acknowledgment form.

The warden at Rutledge, who is the Appointing Authority in this case, received complaints of sexual harassment from two of Mack’s subordinate female employees, Favors and Barns. He did not report the complaints to the director of employee relations at the Department’s headquarters in Atlanta for evaluation, and a certified grievance hearing officer was not appointed. The warden testified that these were the first sexual harassment complaints he had received and that, on the advice of the regional office, he referred the matter to Internal Affairs for investigation.

During its course, Mack was interviewed at the Department’s central offices by the two attorneys who then prosecuted the case on behalf of the Department. They expressly represented to Mack that they were conducting the “interview” as administrative hearing officers, “so as to enable the appointing authority in the situation, Richard Szabo [the warden], to make a determination as to what is appropriate.” They noted that there had been some investigation by the Internal Affairs Section and the GBI polygraphist. Mack complained at the outset that the standard procedure was not followed and also asked why the process was taking so long in his case. This was discussed but not resolved other than by the interview proceeding ahead, for approximately two hours. Mack was terminated by the warden as Appointing Authority. He appealed, and the Commissioner of Correction’s Designee for Adverse Action made the Department’s final determination of dismissal.

Mack appealed further, to the State Personnel Board, as authorized by State Personnel Board Rules 14 and 15. A hearing officer was assigned, and he conducted the administrative hearing, at which one of the Department’s hearing officers who had interviewed Mack during the Department’s investigation represented the Department. The hearing officer’s role, powers, and duties are described in OCGA § 45-20-9 (b)-(g).

At the administrative hearing, Mack objected without success to admission of his statement to the Department’s attorneys, on the grounds that it was taken by two Department attorneys and he was not represented by counsel at the time the statement was given. In such hearings, “[t]he rules of evidence as applied in the trial of civil nonjury cases in the superior courts of Georgia shall be followed.” OCGA § 45-20-9 (d) (1).

The hearing officer found that the dismissal was authorized by the State Personnel Board’s Rule 15 and that the appointing authority followed the correct procedure in dismissing Mack, thereby rejecting Mack’s argument to the contrary. The hearing officer ruled that the internal affairs section was competent and authorized to conduct and did conduct the investigation, and the hearing officer implicitly found no resultant prejudice to Mack. The hearing officer also rejected Mack’s position that it was the warden who terminated him, finding instead that it was the Commissioner’s Designee who effected the final adverse action; however, the hearing officer’s decision was “that the action taken by his Appointing Authority in dismissing him, is upheld.” The State Personnel Board affirmed an appeal brought under OCGA § 45-20-9 (a)-(c).

In reversing the board, the superior court ruled: (1) that the entire case against Mack was based upon an unlawful procedure, OCGA § 45-20-9 (m) (3), because the Department of Corrections did not follow its own established procedure and, in addition, the Department’s prosecuting attorneys interviewed the charged employee under the guise of hearing officers; (2) that the findings of the board were clearly erroneous in view of the testimony and record as a whole and lack of credible evidence, OCGA § 45-20-9 (m) (4); (3) that the board did not follow its own policies and procedures of progressive discipline. The court also made reference to the fact that the board’s hearing officer had recently been the attorney representing the department in personnel matters similar to Mack’s, but it expressly declined to rule on any issue presented in this regard, having concluded that the other three rulings required reversal.

1. The trial court, sitting as an appellate court in such matters, “may reverse the decision or order of the board if substantial rights of the petitioner have been prejudiced because the board’s findings, inferences, conclusions, decisions, or orders are: ... (4) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; . . .” OCGA § 45-20-9 (m). The undisputed evidence, indeed the finding of the board’s hearing officer, is that the Department of Corrections did not afford the charged employee the procedural rights it had established but instead created what was apparently an ad hoc method of dealing with the complaints against him. The ruling that this was proper was clearly erroneous as a matter of law. Once the employee grievance procedure is promulgated, it must be followed or properly revised.

Although the court based its order on its authority to reverse the State Personnel Board when the board’s conclusions and decisions are “(3) Made upon unlawful procedure,” the procedure which it referred to was that of the Department of Corrections, not the State Personnel Board. However, that authority might be liberally construed to cover the board’s decision which is made upon the unlawful procedure brought to it and shown to it, as in this case.

In either event, whether authorized under subsection (3) or (4), the superior court did not err in reversing the board because the dismissal was improperly arrived at.

As noted by the superior court, the procedure established by the Department as a Commissioner’s Directive (Rule IVJ 13-0003) for sexual harassment cases is for the protection of both the accused and the accuser. Contrary to these procedural requirements, of which the Department made sure Mack had express notice when the policies and procedures were adopted in 1989, the aberrational course of action described above was followed and the case was assigned to the department’s prosecuting attorneys, who during their conduct of the investigation represented themselves to Mack as hearing officers. Hearing officers are quasi-judicial and must be independent of both sides and impartial to each. See Dept. of Transp. v. Del-Cook Timber Co., 248 Ga. 734, 739-740 (3e, 5a) (285 SE2d 913) (1982).

The procedure followed was in gross violation of Mack’s procedural rights with respect to termination of his private property interest in retaining employment. The Department cannot establish such a procedure and then ignore it, either through inexperience or wilfulness, without jeopardizing due process and risking erroneous termination. “It is well established that, where there has been a serious procedural defect in the prescribed events leading to the discharge of a Government employee, the employee may be entitled to the continued benefits of his employment until it has been terminated in proper fashion. [Cits.] However, not every procedural defect, no matter how trivial or harmless, will nullify what otherwise would have been a valid discharge. ‘It is not every deviation from specified procedure, no matter how technical or regardless of its basic nature, that automatically serves to invalidate a discharge.’ [Cits.] Where the defect in no way prejudiced the plaintiff, it may be treated as harmless error. [Cits.]” Crimaldi v. United States, 651 F2d 151, 153-154 (1) (2nd Cir. 1981). Considering the totality of the process utilized, and its degree of departure from that which the Department adopted, we cannot conclude that the defects were not prejudicial.

Decided June 21, 1995

Reconsideration denied July 14, 1995.

Michael J. Bowers, Attorney General, Daryl A. Robinson, Lori V. Winkleman, Assistant Attorneys General, for appellant.

F. Houser Pugh, for appellee.

2. The remaining issues are moot. Moreover, the appellant’s third of three enumerations of error refers to the hearing officer’s qualifications, a subject expressly not ruled on by the court; it presents nothing for our review. Archie v. Scott, 190 Ga. App. 145, 146 (1) (378 SE2d 182) (1989).

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.


author: McMurray, Presiding Judge.

text:
    A95A0316.
    BALDWIN v. THE STATE.
    (460 SE2d 80)
   McMurray, Presiding Judge.

Defendant was charged in an accusation with driving under the influence of alcohol. He was also given citations for failure to maintain lane and for having an open container of alcohol in his car. The evidence adduced at his jury trial showed that Officer Ed Smith of the Clayton County Police Department noticed defendant’s vehicle “straddling the roadway markings or the solid white line to the left,” delineating the lefthand emergency lane. Officer Smith followed the car and observed as “the car then swerved across the lane to the right and straddled the roadway marking to the right.” The vehicle “continued swerving across the lane, straddling the roadway markings to the left and to the right.” Officer Smith stopped the vehicle and obtained defendant’s driver’s license and proof of insurance. As Officer Smith spoke with defendant, he “detected a strong odor of alcoholic beverage on his breath and person.” Defendant’s “eyes were very glassy and bloodshot.” There was a half-filled can of beer “sitting on the console next to the gear shift.” When Officer Smith poured its contents out, the can was sweaty with condensation and cold to the touch. Defendant’s attitude was “combative and insulting.” Defendant was unable to walk a straight line, heel to toe, and also unable to stand on one leg for more than ten seconds. He declined to submit to a State-administered breath analysis.

The jury found him guilty on all three charges. For driving under the influence of alcohol, defendant was sentenced to serve 12 months in the county jail and pay a fine of $1,000. For failure to maintain lane, defendant was sentenced to an additional and consecutive 12 months. A $200 fine for having an open container was suspended. Defendant’s motion for new trial was denied, and this appeal followed. Held:

1. Defendant first argues that he was improperly denied an evidentiary hearing on the claim of ineffective assistance of trial counsel, as urged in his motion for new trial. However, the record demonstrates that appellate counsel, who filed defendant’s July 10, 1994, motion for new trial, is not the same attorney who represented defendant at trial. The motion urges ineffective assistance but contains no factual allegations nor any demand for an evidentiary hearing. A rule nisi schedules some type of hearing on defendant’s motion for new trial. However, there is no transcript of that hearing, and defendant does not show what evidence he proffered there only to have it excluded by the trial court.

“It is a requisite of a sound system of criminal justice, serving alike the proper ends of defendants and of the public, that any contention concerning the violation of the constitutional right to counsel should be made at the earliest, practicable moment.” Smith v. State, 255 Ga. 654, 655 (3), 656 (341 SE2d 5). In the case sub judice, defendant through his new counsel had the opportunity to conduct an evidentiary hearing on his claim of ineffective assistance of trial counsel prior to this appeal but failed to take advantage of that opportunity, for aught that appears of record. Consequently, this challenge to his convictions on the ground that no evidentiary hearing was held on his claim of ineffective assistance of trial counsel “is procedurally barred, and no remand is required. Owens v. State, 263 Ga. 99 (3) (428 SE2d 793) (1993).” Bailey v. State, 264 Ga. 300 (443 SE2d 836). Compare Richardson v. State, 256 Ga. 746, 748 (8) (353 SE2d 342).

2. Next, defendant contends the trial court “improperly participated in plea bargaining when he indicated at the pre-trial conference, and in his pre-trial order, that he would accept the state’s sentence recommendation if [defendant] entered pleas of guilty to the charges of [driving under the influence of alcohol] and improper lane change prior to trial.”

The record contains a standard or form order reciting that a pretrial conference was held, and a handwritten entry itemizes the State’s “recommendation as to sentence if the defendant pleads guilty/nolo contendere.” The pre-trial order further states the “Court has indicated that if the defendant pleads guilty/nolo prior to this case being placed on a trial calendar that the [State’s sentencing] recommendation would be accepted.” The pre-trial order notifies the defendant that the court would entertain a plea “within one week from the date of this order,” after which the case would be placed upon the trial calendar. The pre-trial order further informs the defendant that in the event the case is placed on the trial calendar and the defendant wishes to enter a guilty/nolo plea later in time than “one week prior to Monday of the week scheduled for trial[,]” then the trial court would not be bound by any sentencing recommendations but “will impose such sentence as it thinks appropriate without consideration of negotiations by the parties.” Furthermore, a guilty/nolo plea may be “scheduled at a time later than one week prior to the week scheduled for trial, provided the Court has had an opportunity to consider the negotiated sentence and has stated whether or not it would be accepted by the Court.”

Uniform Superior Court Rule 33.5 (A) directs that the trial judge “should not participate in plea discussions.” “ ‘(J)udicial participation in plea negotiations is prohibited as a constitutional matter when it is so great as to render a guilty plea involuntary.’ United States v. Adams, [634 F2d 830 (5th Cir. 1981)]. See also United States v. Schmidt, [376 F2d 751 (4th Cir. 1967)].” Skomer v. State, 183 Ga. App. 308, 310 (358 SE2d 886). We pretermit the question whether the entry of this pre-trial order constitutes an impermissible participation by the trial court in plea negotiations or whether, in truth, the order is merely proper notice and an explanation of the scheduling and procedures to be followed if a criminal case is placed upon the trial calendar. In the case sub judice, defendant did not plead guilty but exercised his right to be tried before a jury. This enumeration fails to present any question for decision and is consequently without merit.

3. In his third enumeration, defendant contends the trial court erred in sentencing him to jail time greater than that contemplated by the State’s pre-trial recommendations for a negotiated plea. He argues that he has been denied due process of law “because the trial Judge improperly penalized [him] after he elected to be tried by a jury instead of entering negotiated pre-trial pleas of guilty. . . .” In support of this contention, defendant claims the “record clearly shows that ‘but for’ [his] election to be tried by a jury, the trial judge would not have sentenced [him] to a term in jail longer than [that to which he] would have been sentenced . . .” if he had entered pre-trial guilty pleas. However, it is our view that the record clearly shows that the trial court’s pre-trial order gave unmistakable written advance notice that the court would not be bound by the State’s pre-trial sentencing recommendations nor by negotiations. The record also contains evidence of defendant’s two prior convictions for driving under the influence of alcohol (1988 and 1989), two 1989 convictions for driving with a suspended license, as well as convictions for giving a false name and escape.

“It is not error for the trial judge to impose a greater sentence upon a defendant after he has heard the evidence at trial than he might have imposed in conjunction with a guilty plea. Meeks v. State, 142 Ga. App. 452 (236 SE2d 119) (1977).” Arnold v. State, 163 Ga. App. 94, 96 (5) (292 SE2d 891). OCGA § 17-10-1 authorizes the trial court to sentence a defendant to any amount of time within the limits provided by law. See Duncan v. State, 213 Ga. App. 394, 397 (10), 398 (444 SE2d 583). Inasmuch as defendant’s consecutive misdemeanor sentences are within the statutory ranges, this enumeration is without merit.

Decided May 8, 1995

Reconsideration denied July 14, 1995

Michael B. King, for appellant.

Robert E. Keller, District Attorney, Elizabeth B. Cofer, Assistant District Attorney, for appellee.

4. Defendant’s final contention is that he was “entitled to be considered for probation. ...” However, defendant did not request probation but asked only that the court “allow [him] a couple of days to see the doctor first before reporting. . . .” The record does not demonstrate that the trial court failed to exercise its discretion or was operating under a misapprehension as to the extent of its discretion. Compare Decker v. State, 139 Ga. App. 707, 711 (9) (229 SE2d 520), where the trial court’s statements on the record “indicated [the erroneous belief that] it lacked the [authority] to consider probation.” This enumeration is without merit.

Judgment affirmed.

Andrews and Blackburn, JJ., concur.


text:
    A95A0320.
    MOORE v. SAVANNAH COCOA, INC. et al.
    (459 SE2d 580)
   Blackburn, Judge.

Thomas N. Moore worked as a security guard for United Detective Agency (United). In the summer of 1992, during the course of his employment, Moore suffered a heart attack while attempting to extinguish a fire at a warehouse leased by Savannah Cocoa, Inc. (Savannah). As a result of his injuries, Aetna Casualty & Surety Company (Aetna), United’s workers’ compensation insurance carrier, paid Moore income and medical benefits.

On February 1, 1994, Moore commenced the instant action against Savannah, asserting that the company failed to maintain a safe working environment that caused and/or contributed to his injuries. United and Aetna sought to intervene in order to protect their subrogation liens. Savannah subsequently moved for summary judgment on Moore’s claim and to dismiss Moore as a party plaintiff based upon OCGA § 34-9-11.1.

At the time this action was pending in the trial court, OCGA § 34-9-11.1 (c) provided that employees suing parties other than their employers must institute those actions (third-party actions) within one year of receiving the injury. Failure to file the suit within the one-year period resulted in an assignment of the claim to the employer or the employer’s insurer.

In granting Savannah’s motion for summary judgment, the trial court held that Moore’s right to enforce any claim against Savannah was effectively assigned to United and Aetna as a matter of law based upon Moore’s failure to file suit within the one-year period provided in OCGA § 34-9-11.1 (c). Accordingly, the trial court determined that as assignees of Moore’s cause of action, United and Aetna were not intervenors in the action but were actually the real parties in interest and, consequently, substituted them as party plaintiffs in place of Moore. This appeal followed.

While this case was pending on appeal, Act Number 336 (H. B. 596) was enacted to “clarify and revise the provisions related to subrogation” in OCGA § 34-9-11.1. One alteration was changing the period within which an injured employee may pursue third-party actions from one year to whatever period is permitted by the applicable statute of limitation. In the present case, the applicable statute of limitation is two years. OCGA § 9-3-33. Another alteration was the deletion of the language that any third-party action not instituted by the employee within the appropriate period was “assigned” to the employer or the employer’s insurer. Rather, the revised statute provides that the employer or its insurer may, but is not obligated to, pursue the third-party action if the employee has not done so within one year of being injured. However, should the employer or its insurer institute such an action, they must immediately notify the employee who then has the option of intervening in the action. In adopting these revisions to the act, the legislature expressly provided that they would apply retroactively to all injuries occurring on or after July 1, 1992. OCGA § 34-9-11.1 (e). Moore suffered his injuries in August 1992. Further, the legislature provided that all prior laws in conflict with these revisions were expressly repealed.

1. “ ‘[A] reviewing court should apply the law as it exists at the time of its judgment rather than the law prevailing at the rendition of the judgment under review, and may therefore reverse a judgment that was correct at the time it was rendered and affirm a judgment that was erroneous at the time, where the law has been changed in the meantime and where such application of the new law will impair no vested right (in this State) under the prior law.’ [Cits.]” Powell v. Dougherty Christian Academy, 215 Ga. App. 551, 552 (451 SE2d 465) (1994). Consequently, this court must apply the revised OCGA § 34-9-11.1 (c) in reviewing the trial court’s decision unless application of the revised statute will impair a vested right.

Savannah argues that it has a vested right in the prior statute’s one-year filing requirement. We disagree. The one-year limit is analogous to a statute of limitation. In Canton Textile Mills v. Lathem, 253 Ga. 102 (317 SE2d 189) (1984), the Georgia Supreme Court held that one did not have a vested, substantive right in a statute of limitation. “ ‘Statutes of limitation find their justification in necessity and convenience rather than in logic. . . . They represent a public policy about the privilege to litigate. Their shelter has never been regarded as what now is called a “fundamental” right or what used to be called a “natural” right of the individual. He may, of course, have the protection of the policy while it exists, but the history of pleas of limitation shows them to be good only by legislative grace and to be subject to a relatively large degree of legislative control.’ [Cit.]” Id. at 105. Adopting this reasoning, we determine that the one-year filing limitation was not a substantive right vested in Savannah.

Citing Allianz Life Ins. Co. v. Riedl, 264 Ga. 395, 398 (444 SE2d 736) (1994), Savannah further argues that it has a vested and substantive right in the assignment of Moore’s claim to United and Aetna. Allianz stands for the proposition that a contractual assignment may create substantive rights in the assignee. Id. at 397. While we agree that a prior contractual assignment may create vested rights in an assignee, the assignment in the present matter was not a contractual agreement. It was a statutory remedy. “ ‘The fact that one obtains a status under the provisions of one law does not amount to a contract or create a vested right that prevents a subsequent legislature from repealing the old law and passing a new one.’ [Cit.]” Fulton County v. Spratlin, 210 Ga. 447 (80 SE2d 780) (1954); see also Canton Textile Mills v. Lathem, supra. We determine no vested right existed in the assignment. For this reason it is unnecessary to address which portions of the revision were intended “to clarify,” and were thus always intended to be as written in Act Number 336, and which were intended to “revise” the prior act and thereby changed same.

Moore commenced the present action within the applicable statute of limitation. This was in accordance with his rights under the revised statute. Without determining whether the trial court acted correctly or erroneously under the terms of the old statute, we reverse its decision to dismiss Moore and to substitute United and Aetna as party plaintiffs applying the revised statute.

2. In light of our decision in Division 1, we need not address Moore’s additional enumerations of error.

Decided July 6, 1995

Reconsideration denied July 14, 1995

Zipperer & Lorberbaum, Ralph R. Lorberbaum, Eugene C. Brooks IV, for appellant.

Bouhan, Williams & Levy, Peter D. Muller, Walter C. Hartridge, for appellees.

Judgment reversed.

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

       It is ironic that Savannah claims a vested right in the assignment when United and Aetna, the actual assignees, make no such claim.


text:
    A95A0691.
    GRAY et al. v. JOHN R. VAUGHN, M.D., P.C.
    (460 SE2d 86)
   Blackburn, Judge.

This is an appeal by plaintiffs/appellants from the trial court’s grant of summary judgment in favor of defendant/appellee John R. Vaughn, M.D., P.C. (Vaughn, P.C.) in this medical malpractice action. The remaining defendants, Dr. Kulkarni; ABC, P.C.; and the Hospital Authority of Houston County d/b/a Houston County Medical Center (Medical Center) are not involved in this appeal.

The appellants, Daryl R. Gray and Tommie L. Gray, Jr., are the parents of a four-year-old son, Tommie L. Gray III (Tommie). On or about December 9, 1991, the Grays sought medical treatment for Tommie at the emergency room of Medical Center. By agreement with Medical Center, Vaughn, P.C. had contracted to provide physicians for Medical Center’s emergency room. Vaughn, P.C. entered into an agreement with Dr. Kulkarni to provide the emergency room services for which it had contracted with Medical Center. Dr. Kulkarni was the physician on duty on December 9, 1991.

Upon their arrival at the hospital, the Grays were directed to a triage area in the emergency facility where nurses obtained the medical history and the vital signs of the child. Dr. Kulkarni considered this information in examining the child and diagnosing his condition. Dr. Kulkarni failed to diagnose the child’s spinal meningitis condition and sent him home without proper treatment for his condition. The next day, the child’s condition was properly diagnosed as spinal meningitis. The child lapsed into a coma and subsequently underwent amputations of both legs allegedly as a result of complications arising from the delay in properly treating the spinal meningitis.

The Grays instituted the instant action against Dr. Kulkarni; Vaughn, P.C.; ABC, P.C.; and Medical Center, asserting that the triage nurses were negligent in failing to adequately obtain, record, and communicate the child’s medical history. The Grays further asserted that Dr. Kulkarni failed to properly examine, diagnose, and treat the child. Vaughn, P.C. responded to the complaint, denying liability and the material allegations of the complaint. Vaughn, P.C. subsequently moved for summary judgment, averring by affidavit that no one working in the emergency room on the subject night was its employee. The Grays later amended their complaint and alleged that Vaughn, P.C. had a duty to supervise the hospital’s nurses in taking medical histories pursuant to the terms of its contract with Medical Center. The Grays further alleged that Vaughn, P.C. was responsible for the acts and omissions of Dr. Kulkarni based upon its contract with the physician.

In granting its motion for summary judgment, the court held that Vaughn, P.C. was not liable for the acts and omissions of the emergency room nurses under the borrowed servant rule espoused in Ross v. Chatham County Hosp. Auth., 258 Ga. 234 (367 SE2d 793) (1988). The court further held that the contract between Vaughn, P.C. and Dr. Kulkarni was insufficient to hold Vaughn, P.C. liable for Dr. Kulkarni’s acts as a purported employee. This appeal followed.

1. The Grays initially maintain that the trial court erred in granting summary judgment in favor of Vaughn, P.C. because it had a duty to supervise the triage nurses pursuant to its contract with Medical Center.

Paragraph 8 of the agreement between Vaughn, P.C. and Medical Center specifically states that “[Vaughn, P.C.] assumes responsibility' for the technical supervision of any such employee or servant and agrees to supervise closely their performance of duties in connection with the emergency services required by this Agreement. . . . Although the [Medical Center] shall be responsible for the employment of personnel assigned to assist Physician Contractors in providing emergency services and professional medical services, [Vaughn, P.C. ] shall be responsible for determining the manner and method in which said personnel assist the Physician Contractor in the diagnosis and treatment of illness or injury.” (Emphasis supplied.)

Under the clear and unambiguous terms of the subject agreement, Vaughn, P.C. assumed responsibility for determining the manner and method of the performance of emergency room nursing duties by Medical Center’s personnel and the supervision thereof. Vaughn’s duty to supervise the triage nurses is created by its contractual obligation. This is not a case involving the “borrowed servant” rule. Cf. Doctors Hosp. of Augusta v. Bonner, 195 Ga. App. 152 (392 SE2d 897) (1990). The proper recordation and communication of a patient’s vital signs, history, and complaints is essential to ensuring that a patient’s condition is properly diagnosed by the examining physician, who is responsible for verifying the patient’s condition and material history at the time of the examination where time and conditions permit. The failure to properly supervise nursing personnel who assist in providing medical care can result in liability for any damages resulting from such failure by one whose responsibility it is to provide such supervision. Here, Vaughn, P.C. was contractually obligated to provide supervision of the triage nurses and cannot escape liability for any failure to do so based upon its contract with Dr. Kulkarni, whom it selected to meet its obligations to control and supervise the subject personnel.

Vaughn, P.C.’s reliance on the Supreme Court’s decision in Ross is misplaced. In the present case, unlike in Ross, there is a contract of employment expressly providing for Vaughn, P.C.’s supervision of nurses and other Medical Center personnel who assist Vaughn, P.C. in providing emergency services in connection with the agreement.

Accordingly, Vaughn, P.C. is liable for damages resulting from any negligence by it or its agents in the supervision of the triage nurses in failing to adequately obtain, record, and communicate the medical history of the child to Vaughn, P.C.’s physicians. Consequently, the trial court erred in granting summary judgment in favor of Vaughn, P.C.

2. The Grays next assert that Vaughn, P.C. may be liable for Dr. Kulkarni’s negligence in failing to properly diagnose the child’s spinal meningitis because the corporation contractually agreed to control the time, manner, and method of his performance of emergency services. We disagree.

In order for Vaughn, P.C. to be held liable for any negligence of Dr. Kulkarni, it must be shown that the physician was an employee of the corporation. Brown v. Coastal Emergency Svcs., 181 Ga. App. 893 (2) (354 SE2d 632) (1987), aff’d sub nom. Richmond County Hosp. Auth. v. Brown, 257 Ga. 507 (361 SE2d 164) (1987). “The true test of whether the relationship is one of employer-employee or employer-independent contractor is whether the employer, under the contract either oral or written, assumes the right to control the time, manner and method of executing the work, as distinguished from the right merely to require certain definite results in conformity to the contract.” (Citations and punctuation omitted.) Brown v. Coastal Emergency Svcs., supra at 894-895. See also Sparlin Chiropractic Clinic, P.C. v. TOPS Personnel Svcs., 193 Ga. App. 181, 182 (2) (387 SE2d 411) (1989). The parties’ agreement that a person is an independent contractor is not determinative of his or her status and other factors may negate such designation. See Bonner, supra.

The evidence was that four physicians, including John R. Vaughn, worked for Vaughn, P.C. Together, the four provided emergency room services as required by the contract between Vaughn, P.C. and the hospital. While Vaughn did schedule the shifts to be worked, he did so only after talking to the other doctors and obtaining their input. The doctors individually had to obtain staff privileges from the hospital and be credentialed to practice medicine, and Vaughn did reserve the right to terminate their services. Here, the claimed error made by Dr. Kulkarni was the failure to properly diagnose the onset of meningitis, by examining the patient and considering all information supplied by the doctor’s discussion with the child’s mother and the analysis of the history taken previously by the nurse.

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

Nothing in the written contract between Vaughn, P.C. and Kulkarni gives the corporation the right to control the method and manner of Kulkarni’s practice of medicine while he is serving his shift at the emergency room. Compare Doctors Hosp. of Augusta v. Bonner, supra at 161 (6). Dr. Vaughn was not in the emergency room on the evening in question, and as far as the record reflects, there were no “corporate guidelines” relating to the practice of emergency room medicine other than the general standards overseen by the staff of the hospital in granting staff privileges and assuring quality control of medical care.

Here, also, there is the additional fact that there was posted in the emergency room a plaque which advised patients that the emergency room doctors were “independent contractors.” No mention of Vaughn, P.C. was made in the notice. Therefore, there was no evidence which would support a finding that Kulkarni was an employee of Vaughn, P.C. or that the corporation had the right to control the method or manner of Kulkarni’s performance of his medical duties.

Consequently, the trial court erred in granting summary judgment to Vaughn, P.C. based upon negligence in the supervision of the nursing staff, but did not err in granting summary judgment to Vaughn, P.C. for the professional negligence of Dr. Kulkarni.

Decided July 6, 1995

Reconsiderations denied July 13, 1995 and July 14, 1995

Reynolds & McArthur, Charles M. Cork III, for appellants.

Chambless, Higdon & Carson, Joseph H. Chambless, Jon C. Wolfe, for appellee.

Judgment affirmed in part and reversed in part.

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


author: Beasley, Chief Judge. Pope, Presiding Judge,

text:
    A94A1448.
    MILLER et al. v. GEORGIA PORTS AUTHORITY.
    (460 SE2d 100)
   Beasley, Chief Judge.

Stewart and Denise Miller brought this personal injury and loss of consortium action against Georgia Ports Authority (Authority) after Stewart Miller was injured while working as a longshoreman at the Authority’s Garden City Terminal on November 7, 1991. The trial court granted the Authority’s motion to dismiss due to plaintiffs’ failure to comply with the provisions of the Georgia Tort Claims Act, see OCGA § 50-21-26 (a), and plaintiffs filed the present appeal.

1. The Millers assert that the procedures required by the Act do not apply to the Authority. The Act applies to “the State of Georgia and any of its offices, agencies, authorities, departments, commissions, boards, divisions, instrumentalities, and institutions, but does not include counties, municipalities, school districts, other units of local government, hospital authorities, or housing and other local authorities.” OCGA § 50-21-22 (5). When this was enacted in 1992, the Authority was already in existence, having been created in 1945. Ga. L. 1945, p. 464 et seq. By its very name, it was an “authority” of the State. Not only that, the legislature specifically described this creature as “a body corporate and politic, . . . which shall be deemed to be an instrumentality of the State of Georgia and a public corporation. . . .” OCGA § 52-2-4.

When the Georgia Supreme Court considered the status of the Authority in 1962 to determine whether it was covered by the National Labor Relations Act, it concluded that it “is a creature of the State, and in the operation of the docks, wharves, etc., it does so as the instrumentality of the State for governmental purposes as authorized by the Constitution.” Intl. &c. Assn. v. Ga. &c. Auth., 217 Ga. 712, 716 (1) (a) (124 SE2d 733) (1962). As a result, the Court held, it came within the exception in the NLRA for “any State or political subdivision thereof.” Id. at 714, 716.

The General Assembly was bound to know of the Authority’s existence as such when it adopted the Tort Claims Act, included the State’s “instrumentalities,” and did not expressly exclude the Georgia Ports Authority along with the other express exclusions. If this authority, this instrumentality, is not covered, then what authority or instrumentality is intended by the General Assembly to be embraced?

McLucas v. State Bridge Bldg. Auth., 210 Ga. 1, 6 (77 SE2d 531) (1953), does not remove the Georgia Ports Authority from the Act, because it would remove all instrumentalities; yet the Act expressly applies to “instrumentalities.” McLucas was not written with the Georgia Tort Claims Act in mind, since it was decided almost 40 years before the Act was passed. Nor was it written about the Georgia Ports Authority but about the State Bridge Building Authority, created separately. The question was whether its revenue bonds were obligations of the State, not whether it could be sued in tort.

Similarly, Thomas v. Hosp. Auth. of Clarke County &c., 264 Ga. 40, 41 (1) (440 SE2d 195) (1994), does not apply; hospital authorities are expressly excluded from subjection to the Georgia Tort Claims Act. OCGA § 50-21-22 (5). If they were not immune from suit in the first place, it would be unnecessary to exclude them from the group which is subject to the Tort Claims Act. Yet in Thomas, which was decided after the adoption of the Tort Claims Act, the Supreme Court held that “a hospital authority, though an instrumentality of government, is not, in any sense, an agency or department of the state. . . .” Id. at 42. “[H]ospital authorities, because they are neither the state nor a department or agency of the state, are not entitled to the defense of sovereign immunity.” Id. at 41. Thus they may be sued, just as any other entity.

Although the question of whether the Authority is constitutionally entitled to immunity has not been directly addressed, in Marine Port Terminals v. Ga. Ports Auth., 180 Ga. App. 380, 381 (348 SE2d 896) (1986), this court accepted without discussion that OCGA § 52-2-4’s “sue and be sued” language constituted “a waiver of governmental immunity by which the Ports Authority consents to the filing of a suit in the proper forum. Hodges v. Tomberlin, 510 FSupp. 1280, 1283.” However, “sue and be sued” language has since been declared insufficient to waive immunity, and all cases stating the contrary have been overruled. Self v. City of Atlanta, 259 Ga. 78, 79-80 (377 SE2d 674) (1989). Other than the “sue and be sued” language, there is nothing in OCGA § 52-2-1 et seq. that could be construed as “an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver.” Ga. Const, of 1983, Art. I, Sec. II, Par. IX (e) (1991 Amend.). Thus, it appears that before 1991, GPA had a mantle of sovereign immunity.

The Georgia Supreme Court has stated: “The language used in the 1991 amendment is virtually identical to that used in the 1983 amendment to describe the entities to which sovereign immunity applies. With full knowledge of the construction placed upon the similar language of the 1983 amendment, [cit.], the legislature proposed and the voters of this state ratified the 1991 amendment. Absent any evidence that the legislature intended a different interpretation or to indicate that the electorate did not intend to extend sovereign immunity to counties, we hold the 1991 amendment’s extension of sovereign immunity to ‘the state and its departments and agencies’ must also apply to counties. [Cits.]” Gilbert v. Richardson, 264 Ga. 744, 747 (2) (452 SE2d 476) (1994). By the same token, absent evidence to the contrary, the 1991 amendment intended no change in the Authority’s status as to sovereign immunity, it was covered, and the Act applies. This analysis has been used before. See Coffee County School Dist. v. Snipes, 216 Ga. App. 293, 294-295 (454 SE2d 149) (1995).

Moreover, it is not clear that the General Assembly, in describing those entities which are subject to the Georgia Tort Claims Act, meant only to include those which could otherwise assert the defense of sovereign immunity. The legislature did not state that, in its definition, but rather listed a number of governmental entities whose employees’ tortious acts could be redressed at the expense of the state treasury. It is, of course, limited, see for example OCGA § 50-21-24, as the legislature wished to keep confined “[t]he exposure of the state treasury to tort liability.” At the same time, it was desirous of being fair and equitable to injured people. OCGA § 50-21-21.

As sovereign immunity applies to the Authority, the trial court was correct in determining the Act applies.

2. The Millers also contend the Act’s notice requirements set forth in OCGA § 50-21-26 cannot be applied to their suit retroactively because to do so would be unconstitutional. OCGA § 50-21-27 specifically provides that the Act is to be applied retroactively, and OCGA § 50-21-26 (a) (1) provides detail on how notice is to be given in suits when the cause of action accrued between January 1, 1991 and July 1, 1992, as it did in this case. The Supreme Court has exclusive jurisdiction over appeals challenging the constitutionality of a statute. Ga. Const, of 1983, Art. VI, Sec. VI, Par. II (1). This appeal was transferred from this court to the Supreme Court. The question was briefed. The Supreme Court then transferred it back to this court without explanation. Such a transfer “ ‘ “is a final determination that no constitutional question was in fact properly raised or, if so raised, that it was not meritorious.” [Cit.]’ [Cits.]” Ryals v. State, 215 Ga. App. 51, 52 (1) (449 SE2d 865) (1994).

Judgment affirmed.

Birdsong, P. J., Andrews, Johnson and Ruf fin, JJ., concur. McMurray, P. J., Pope, P. J., and Blackburn, J., dissent. Smith, J., not participating.

Pope, Presiding Judge,

dissenting.

I respectfully dissent. The Georgia Tort Claims Act (GTCA) was enacted as a means to waive the sovereign immunity extended to the “state and all of its departments and agencies” in Art. I, Sec. II, Par. IX (e) of the 1983 Georgia Constitution, as amended effective January 1, 1991. Id. at (a); Gilbert v. Richardson, 264 Ga. 744, 746 (2) (452 SE2d 476) (1994); see also Intl. Business Machines Corp. v. Evans, 265 Ga. 215, 217 (2) (453 SE2d 706) (1995). The first question to be answered then is whether the Authority is entitled to assert the defense of sovereign immunity as a department or agency of the State as those terms are used in the 1991 amendment; if it is not, then the GTCA is inapplicable. By focusing on the applicability of the GTCA without first resolving this issue, the majority and the Authority put the cart before the horse.

The question of whether the Georgia Ports Authority is a “department or agency” of the State under the 1991 amendment is one of first impression. Although the majority relies on cases which suggest that the Authority enjoyed immunity under prior law, the majority acknowledges that “the question of whether the Authority is constitutionally entitled to immunity has not been directly addressed.” I would also point out that even if the Authority enjoyed immunity before the 1991 amendment, “[t]he Supreme Court has construed differently the same phrase contained in the pre-1991 amendment versus the post-1991 amendment for the apparent purpose of changing the impact of the GTCA.” Gilbert v. Richardson, 217 Ga. App. 612 (458 SE2d 405) (1995) (physical precedent only).

Moreover, relying on past precedent leads to the conclusion that the Authority is not a department or agency of the State. Our Supreme Court has looked at entities with similar statutory attributes and concluded that “[wjhile [an] Authority is an instrumentality of the State, it is nevertheless not the State, nor a part of the State, nor an agency of the State. It is a mere creature of the State, having distinct corporate entity.” McLucas v. State Bridge Bldg. Auth., 210 Ga. 1, 6 (77 SE2d 531) (1953). In Thomas v. Hosp. Auth. of Clarke County &c., 264 Ga. 40, 41 (1) (440 SE2d 195) (1994), the court noted that in earlier cases it had “applied a narrow definition in determining what constitutes the state or a political division thereof, distinguishing the state and its political subdivisions from instrumentalities created by the state to carry out various functions.” Id. at 41 (1). See also id. at 41, n. 1. And it makes no difference in this analysis that the statute creating the authority provides that it will be performing “essential governmental functions,” “[s]ince a hospital authority, though an instrumentality of government, is not, in any sense, an agency or department of the state, the nature of its function is irrelevant; it is not, by the language of the statute entitled to the protection of sovereign immunity.” Id. at 42. Applying the same considerations here, I would conclude that the Ports Authority is not entitled to the protection of sovereign immunity extended to the state, its departments and agencies, and that the trial court thus erred in dismissing plaintiffs’ complaint for failure to comply with the GTCA.

Decided July 14, 1995

Adams & Ellis, George L. Lewis, Lester B. Johnson III, for appellants.

Michael J. Bowers, Attorney General, John B. Ballard, Jr., Roland F. Matson, Senior Assistant Attorneys General, Ranitz, Mahoney, Coolidge & Mahoney, Thomas J. Mahoney III, R. Stephen Flagler, for appellee.

I find it unnecessary to address plaintiffs’ remaining enumeration of error, because I do not believe the GTCA applies to plaintiffs’ claims.

I am authorized to state that Presiding Judge McMurray and Judge Blackburn join in this dissent.

       As to hospital authorities, see OCGA § 31-7-75 and as to the Ports Authority, see OCGA § 52-2-37.